[Federal Register Volume 73, Number 18 (Monday, January 28, 2008)]
[Rules and Regulations]
[Pages 4736-4758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1436]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 070627217-7523-02]
RIN 0648-AV70
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Northeast
Region Standardized Bycatch Reporting Methodology Omnibus Amendment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS is implementing approved management measures contained in
the Standardized Bycatch Reporting Methodology (SBRM) Omnibus Amendment
(SBRM Amendment) to the Fishery Management Plans (FMPs) of the
Northeast Region, developed by the Mid-Atlantic and New England Fishery
Management Councils (Councils). The SBRM Amendment establishes an SBRM
for all 13 Northeast Region FMPs, as required under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
The measures include: Bycatch reporting and monitoring mechanisms;
analytical techniques and allocation of at-sea fisheries observers; an
SBRM performance standard; a review and reporting process; framework
adjustment and annual specifications provisions; a prioritization
process; and provisions for industry-funded observers and observer set-
aside programs.
DATES: This final rule is effective February 27, 2008.
[[Page 4737]]
ADDRESSES: Copies of the SBRM Amendment, and of the Environmental
Assessment (EA), with its associated Finding of No Significant Impact
(FONSI), and the Regulatory Impact Review (RIR), are available from
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management
Council, Room 2115, Federal Building, 300 South New Street, Dover, DE
19901-6790; and from Paul J. Howard, Executive Director, New England
Fishery Management Council, 50 Water Street, Newburyport, MA 01950. The
EA/FONSI/RIR is also accessible via the Internet at http://www.nero.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Michael Pentony, Senior Fishery Policy
Analyst, 978-281-9283.
SUPPLEMENTARY INFORMATION:
Background
This final rule implements approved management measures contained
in the Northeast Region Omnibus SBRM Amendment, which was approved by
NMFS on behalf of the Secretary of Commerce (Secretary) on October 22,
2007. A proposed rule for this action was published on August 21, 2007
(72 FR 46588), with public comments accepted through September 20,
2007. A subsequent publication extended this comment period through
September 24, 2007 (72 FR 53751).
Section 303(a)(11) of the Magnuson-Stevens Act requires that all
FMPs ``establish a standardized reporting methodology to assess the
amount and type of bycatch occurring in the fishery.'' In 2004, several
conservation organizations challenged the approval of two major
amendments to Northeast Region FMPs. In ruling on these suits, the U.S.
District Court for the District of Columbia found that the FMPs did not
clearly establish an SBRM as required under the relevant section of the
Magnuson-Stevens Act and remanded the amendments back to the agency to
fully develop and establish the required SBRM [See, Oceana, Inc., v.
Evans, 2005, WL 555416 (D.D.C. Mar 9, 2005)(Oceana I); and Oceana,
Inc., v. Evans, 384 F. Supp 2d 203 (D.D.C. 2005)(Oceana II)]. In
particular, the Court found that the amendments (1) failed to fully
evaluate reporting methodologies to assess bycatch, (2) did not mandate
an SBRM, and (3) failed to respond to potentially important scientific
evidence.
In response, the Councils, working closely with NMFS, undertook
development of a remedy that would address all Northeast Region FMPs.
In January 2006, development began on the Northeast Region Omnibus SBRM
Amendment. This amendment covers 13 FMPs, 39 managed species, and 14
types of fishing gear. The purpose of the amendment is to: Explain the
methods and processes by which bycatch is currently monitored and
assessed for Northeast Region fisheries; determine whether these
methods and processes need to be modified and/or supplemented;
establish standards of precision for bycatch estimation for all
Northeast Region fisheries; and, thereby, document the SBRM established
for all fisheries managed through the FMPs of the Northeast Region. The
amendment also responds to the ``potentially important scientific
evidence'' cited by the Court in the two decisions referenced above.
The Northeast Region SBRM Amendment establishes an SBRM comprised
of seven elements: (1) The methods by which data and information on
discards are collected and obtained; (2) the methods by which the data
obtained through the mechanisms identified in element 1 are analyzed
and utilized to determine the appropriate allocation of at-sea
observers; (3) a performance measure by which the effectiveness of the
Northeast Region SBRM can be measured, tracked, and utilized to
effectively allocate the appropriate number of observer sea days; (4) a
process to provide the Councils with periodic reports on discards
occurring in Northeast Region fisheries and on the effectiveness of the
SBRM; (5) a measure to enable the Councils to make changes to the SBRM
through framework adjustments and/or annual specification packages
rather than full FMP amendments; (6) a process to provide the Councils
and the public with an opportunity to consider, and provide input into,
the decisions regarding prioritization of at-sea observer coverage
allocations; and (7) to implement consistent, cross-cutting observer
service provider approval and certification procedures and to enable
the Councils to implement either a requirement for industry-funded
observers or an observer set-aside program through a framework
adjustment rather than an FMP amendment.
Bycatch Reporting and Monitoring Mechanisms
The amendment maintains the status quo methods by which data and
information on discards occurring in Northeast Region fisheries are
collected and obtained. The Northeast Region SBRM will employ sampling
designs developed to minimize bias to the maximum extent practicable.
The Northeast Fisheries Observer Program (NEFOP) continues to serve as
the primary mechanism to obtain data on discards in all Northeast
Region commercial fisheries managed under one or more of the subject
FMPs. All subject FMPs will continue to require vessels permitted to
participate in said fisheries to carry an at-sea observer upon request,
and all data obtained by the NEFOP under this SBRM will be collected
according to the techniques and protocols established and detailed in
the Fisheries Observer Program Manual and the Biological Sampling
Manual. Data collected by the NEFOP include, but are not limited to,
the following items: Vessel name; date/time sailed; date/time landed;
steam time; crew size; home port; port landed; dealer name; fishing
vessel trip report (FVTR) serial number; gear type(s) used; number/
amount of gear; number of hauls; weather; location of each haul
(beginning and ending latitude and longitude); species caught;
disposition (kept/discarded); reason for discards; and weight of catch.
These data are collected on all species of biological organisms caught
by the fishing vessel and brought on board, including species managed
under the subject FMPs, but also including species of non-managed fish,
invertebrates, and marine plants. To obtain information on discards
occurring in recreational fisheries subject to a Northeast Region FMP,
the Northeast Region SBRM fully will incorporate, to the extent
practicable and appropriate for the Region, all surveys and data
collection mechanisms implemented by NMFS and affected states as a
result of the agency-wide redesign of the Marine Recreational Fisheries
Statistics Survey (MRFSS) Program.
Analytical Techniques and Allocation of At-sea Fisheries Observers
The amendment substantially expands and refines the status quo
methods by which the data obtained through the mechanisms included
above are analyzed and utilized to determine the appropriate allocation
of at-sea observers to fully incorporate all managed species and all
relevant fishing gear types in the Northeast Region. At-sea fisheries
observers will, to the maximum extent possible and subject to available
resources, be allocated and assigned to fishing vessels according to
the procedures established through the amendment. All appropriate
filters identified in the amendment will be applied to the results of
the analysis to determine the observer coverage levels needed to
achieve the objectives of the SBRM.
[[Page 4738]]
SBRM Performance Standard
The amendment is intended to ensure that the data collected under
the Northeast Region SBRM are sufficient to produce a coefficient of
variation (CV) of the discard estimate of no more than 30 percent, in
order to ensure that the effectiveness of the Northeast Region SBRM can
be measured, tracked, and utilized to effectively allocate the
appropriate number of observer sea days. Each year, the Regional
Administrator and the Science and Research Director will, subject to
any external operational constraints, allocate at-sea observer coverage
to the applicable fisheries of the Northeast Region sufficient to
achieve a level of precision (measured as the CV) no greater than 30
percent for each applicable species and/or species group, subject to
the use of the filters noted above.
SBRM Review and Reporting Process
The amendment requires an annual report on discards occurring in
Northeast Region fisheries to be prepared by NMFS and provided to the
Councils, and a report every 3 years that evaluates the effectiveness
of the Northeast Region SBRM. Every 3 years, the Regional Administrator
and the Science and Research Director will appoint appropriate staff to
work with staff appointed by the Executive Directors of the Councils to
obtain and review available data on discards and to prepare a report
assessing the effectiveness of the Northeast Region SBRM. This report
will include, at a minimum: (1) A review of the recent levels of
observer coverage in each applicable fishery; (2) a review of recent
observed encounters with each species in each fishery, and a summary of
observed discards by weight; a review of the CV of the discard
information collected for each fishery; (4) an estimate of the total
discards associated with each fishery; (5) an evaluation of the
effectiveness of the SBRM at meeting the performance standard for each
fishery; (6) a description of the methods used to calculate the
reported CVs and to determine observer coverage levels, if those
methods are different from those described and evaluated in the SBRM
Amendment; (7) an updated assessment of potential sources of bias in
the sampling program and analyses of accuracy; and (8) an evaluation of
the implications for management of the discard information collected
under the SBRM, for any cases in which the evaluation performed for
item 5 indicates that the performance standard is not met. Once each
year, the Science and Research Director will present to the Councils a
report on catch and discards occurring in Northeast Region fisheries,
as reported to the NEFOP by at-sea fisheries observers. This annual
discard report will include: (1) The number of observer sea days
scheduled for each fishery, by area and gear type, in each quarter; (2)
the percent of total trips observed, by gear type, in each quarter; (3)
the distribution of sea sampling trips by gear type and statistical
area in each fishery; (4) the observed catch and discards of each
species, by gear type and fishery, in each quarter; and (5) the
observed catch and discards of each species, by gear type and fishery,
in each statistical area.
Framework Adjustment and/or Annual Specification Provisions
The amendment enables the Councils to make changes to certain
elements of the SBRM through framework adjustments and/or annual
specification packages rather than full FMP amendments. All subject
FMPs provide for an efficient process to modify aspects of the
Northeast Region SBRM, as relates to each specific FMP, should the need
arise and the appropriate Council determine that a change to the SBRM
is warranted and needed to address a contemporary management or
scientific issue. Depending on the provisions of each FMP, changes to
the SBRM may be effected either through a framework adjustment to the
FMP or through annual or periodic specifications. Such changes to the
SBRM may include modifications to the CV-based performance standard,
the means by which discard data are collected/obtained in the fishery,
reporting on discards or the SBRM, or the stratification (modes) used
as the basis for SBRM-related analyses. Such changes may also include
the establishment of a requirement for industry-funded observers and/or
observer set-aside provisions.
Prioritization Process
The amendment establishes a process to provide the Councils and the
public with an opportunity to consider, and provide input into, the
decisions regarding prioritization of at-sea observer coverage
allocations, if the expected resources necessary may not be available.
In any year in which external operational constraints would prevent
NMFS from fully implementing the required at-sea observer coverage
levels, the Regional Administrator and Science and Research Director
will consult with the Councils to determine the most appropriate
prioritization for how the available resources should be allocated. In
order to facilitate this consultation, in these years, the Regional
Administrator and the Science and Research Director will provide the
Councils, at the earliest practicable opportunity: (1) The at-sea
observer coverage levels required to attain the SBRM performance
standard in each applicable fishery; (2) the coverage levels that would
be available if the resource shortfall were allocated proportionately
across all applicable fisheries; (3) the coverage levels that
incorporate the recommended prioritization; and (4) the rationale for
the recommended prioritization. The recommended prioritization should
be based on: Meeting the data needs of upcoming stock assessments;
legal mandates of the agency under other applicable laws, such as the
Marine Mammal Protection Act (MMPA) and the Endangered Species Act
(ESA); meeting the data needs of upcoming fishery management actions,
taking into account the status of each fishery resource; improving the
quality of discard data across all fishing modes; and/or any other
criteria identified by NMFS and/or the Councils. The Councils may
choose to accept the proposed observer coverage allocation or to
recommend revisions or additional considerations for the prioritized
observer allocations ultimately adopted and implemented by the Regional
Administrator and the Science and Research Director.
Industry-Funded Observers and Observer Set-Aside Program Provisions
The amendment implements consistent, cross-cutting observer service
provider approval and certification procedures and enables the Councils
to implement either a requirement for industry-funded observers and/or
an observer set-aside program through a framework adjustment, rather
than an FMP amendment.
Comments and Responses
A total of 11 individual comment letters were received on the
proposed rule and the amendment.
Comment 1: A letter by representatives of a professional
association for at-sea fisheries observers raised concerns regarding
the provision of the SBRM Amendment that establishes observer
certification and approval procedures to allow a multiple service
delivery model under an industry-funded observer program. The
commenters specifically focused on concerns related to the contractual
relationship that would be established between the observer service
provider
[[Page 4739]]
and the fishing vessel, rather than between the observer service
provider and NMFS. The commenters refer to experience with a similar
model utilized in Alaska under the North Pacific Groundfish Observer
Program. The commenters cautioned that, in their opinion, such a
contractual relationship may reduce the reliability of the data
collected by the at-sea observers due to the potential for bias and
conflict of interest. The commenters also cited concerns over quality
control of the data due to the lack of direct oversight by the agency.
To remedy the potential problems they identified, the commenters
suggested that NMFS evaluate the performance of approved observer
service providers on an annual basis, increase Federal funding for
observers contracted by and paid for by NMFS, and/or utilize an
independent non-profit organization (either an existing organization
such as the Atlantic States Marine Fisheries Commission or an
organization created specifically for this purpose) to provide an
``arms-length'' relationship between the fishing industry, NMFS, and
observer service providers.
Response: NMFS acknowledges that a perceived conflict of interest
could be a potential issue for some types of industry-funded observer
programs. Rigorous data quality assurance and control standards,
observer training and certification programs, and frequent reviews and
oversight of the observer data collection programs are all means to
address these concerns. NMFS acknowledges that some of the issues
raised by the commenter regarding the North Pacific Groundfish Observer
Program have been previously identified as potential concerns with that
model, but notes that there are significant differences between the
North Pacific program and the single industry-funded program that is
currently in place in the Northeast Region. These differences include
the observer set-aside that is an important component of the Northeast
sea scallop observer program and serves to mitigate the conflict of
interest concerns by providing a mechanism to offset the added cost to
sea scallop fishing vessels of carrying an observer. Also, to minimize
the likelihood that an observer would develop ties to a vessel owner/
operator and/or feel pressure by a vessel owner/operator to misreport,
the regulations prohibit observer service providers from consecutively
deploying the same observer on the same vessel and from deploying an
observer on the same vessel more than twice per month.
While NMFS shares some of the concerns identified by the commenters
relative to the need to ensure that there is no real or perceived
conflict of interest between the at-sea observers and the fishing
vessels, and to ensure reliable, high quality data are collected and
reported, none of these concerns are immediately applicable to this
rulemaking. The regulatory changes implemented in this final rule
merely establish the procedures that potential observer service
providers must follow to be considered for approval, and the standards
that they must meet on a continuing basis to maintain their
certification to serve in the Northeast Region. However, excepting the
sea scallop observer program that was formally implemented under a
separate rulemaking (72 FR 32549, June 13, 2007), no other fisheries in
the Northeast Region are operating under an industry-funded observer
requirement that would utilize these regulations. This action makes no
changes to the regulations or procedures established under Amendment 13
to the Sea Scallop FMP, other than to generalize the observer
certification procedures to apply more broadly than for the sea scallop
fishery alone. The intent of this action was to create a more efficient
process for the Councils to develop future industry-funded programs,
should the need arise in any fishery. Actual implementation of an
industry-funded observer program that would enable fishing vessels to
select from a list of approved observer service providers would require
the appropriate Council to initiate, develop, and have approved such a
program for each particular fishery.
The development of future Council fishery management actions to
implement any additional industry-funded observer programs provides the
appropriate opportunity to ensure that the programs fully address the
data quality concerns and limitations noted by the commenters. NMFS is
committed to ensuring that data collected and provided by at-sea
fisheries observers are of the highest-possible quality and meet all
applicable standards for reliability, precision, and accuracy. Any
proposal by a Council to implement a future industry-funded observer
program, such as is currently in place for the sea scallop fishery,
would be reviewed to ensure it fully explains and justifies how the
data to be obtained through the program meet all appropriate quality
standards.
Comment 2: One member of the public endorsed the comments of the
observers' professional association, voicing his concern over industry-
funded observer programs as exist in Alaska under the North Pacific
Groundfish Observer Program. The commenter added, however, that his
concerns do not refer to the sea scallop observer program that is
linked to an observer set-aside program to offset the costs to the
vessels of carrying an observer. The commenter is most concerned with
the perceptions of conflict of interest that can arise under situations
where the observer service provider is contractually linked, and
dependent on, the fishing vessels rather than NMFS.
Response: The response above to comment 1 addresses the majority of
the points raised by the commenter. As noted by the commenter, observer
set-aside programs, such as the Northeast sea scallop program, mitigate
many of these concerns by providing a mechanism to offset the added
cost to the vessel of carrying an observer. While there is no
requirement to do so, NMFS fully anticipates that any program developed
by a Council to implement an industry-funded observer program would be
directly associated with an observer set-aside program that offsets the
additional costs to the vessels. No such program is currently proposed
or under development by either Council, but the SBRM Amendment provides
a mechanism for the Councils to develop and propose a set-aside program
that uses quota, days-at-sea, increased trip limits, or other means to
compensate fishing vessels that carry observers.
Comment 3: The comments submitted by a public interest
environmental organization were very similar to those of the observers'
professional association. The commenters oppose changing the NEFOP to a
model based on the North Pacific Groundfish Observer Program, in which
the industry finances the observer program through independent
contracts with observer service providers. The commenters raised
concerns regarding the appearance of a conflict of interest between the
fishing vessels and the observer service providers, a threat of bias in
the data collection, creating an economic incentive to avoid
observation, less transparency of observer data, and a lack of control
on harassment of an interference with observers. The comment letter
also expressed concern that the SBRM would discourage monitoring for
marine mammals and other non-bycatch related monitoring.
Response: Although the commenters in this case appear to have
misunderstood the intent of the SBRM Amendment, NMFS takes their
concerns seriously. The response above to comment 1 addresses the
majority of the concerns raised by the commenters, but NMFS points out
that the commenters
[[Page 4740]]
claim that the SBRM Amendment effects a ``conversion'' of the NEFOP
from one controlled by NMFS to an industry-funded program. This is not
the case. The SBRM Amendment provides a mechanism for the Councils to
develop and propose industry-funded observer programs that would serve
to supplement the existing NMFS-funded observer program, but this
action neither implements nor requires such a program. Currently, the
Councils are free to develop and propose such a system (as was done in
Amendment 13 to the Sea Scallop FMP); the SBRM Amendment allows the
Councils to use the framework adjustment process to propose a similar
program instead of requiring a full FMP amendment. NMFS fully
anticipates that any such program would include an observer set-aside
mechanism, such as exists for the sea scallop fishery. As noted above
and by other commenters, such a mechanism mitigates many of the
concerns raised by the commenters.
NMFS disagrees with the commenter that such a system, should one be
proposed by a Council and implemented by NMFS, would result in industry
``control'' of the observer program. The regulations at 50 CFR
648.11(h) and (i) provide extensive and detailed procedures that must
be followed by all observer service providers in order to obtain and
maintain NMFS certification as valid service providers. These
regulations specifically address the issues of potential conflicts of
interest (Sec. 648.11(h)(6)), harassment of or interference with
observers (Sec. 648.11(h)(5)(vii)(F)), and data transparency (Sec.
648.11(h)(5)(vii)(A)). Regarding the concerns raised about the
availability of the ``raw'' observer data, the regulations at Sec.
648.11(h)(5)(vii)(A) require that, in addition to providing summary
data within 12 hours of landing, that the observer service providers
``provide the raw (unedited) data collected by the observer to NMFS
within 72 hours of the trip landing.'' Regarding the commenters'
opinion that the plan creates an economic incentive to evade
observation, this claim does not take into account that observer set-
aside programs in many ways may actually create an incentive to be
observed, as a set-aside program would grant a vessel extra quota,
trips, DAS, or increased possession limits in exchange for carrying an
observer.
The commenters are also incorrect that the plan ``discourages''
marine mammal monitoring. NMFS acknowledges in the SBRM Amendment the
importance of its mandate under other applicable laws, such as the MMPA
and the Migratory Bird Act, but the focus of the SBRM is on those
living marine resources defined as fish and bycatch under the Magnuson-
Stevens Act. Only the Magnuson-Stevens Act requires an SBRM to be
established, and the Magnuson-Stevens Act specifically excludes certain
types of organisms, specifically marine mammals and birds, from the
definitions.
The commenters are mistaken to conclude that the ``SBRM is based on
a flawed model.'' The actual SBRM established as a result of this
action is wholly severable from the provision that authorizes the
Councils to develop and propose an industry-funded observer program
through a framework adjustment rather than an amendment to an FMP. The
SBRM does not implement, require, or rely upon any industry-funded
observer programs that may be developed and proposed by a Council in
the future.
Comment 4: An organization representing a coalition of fishing
interests involved in the Atlantic herring fishery submitted comments
critical of the field sampling protocols and procedures used by at-sea
observers to monitor bycatch occurring in fisheries that pump their
catch directly from the codend into the vessel hold. The commenters
asserted that the current observer protocols for the herring fishery
contain loopholes that were not addressed in the SBRM Amendment, due to
the potential for unobserved catch to be released from the net without
being brought on board the vessel for the observer to monitor. The
commenters expressed concern regarding the lack of mandated observer
coverage on at-sea processing vessels, which transfer catch from the
codend of catcher vessels to the hold of the processor vessel and about
how pair trawls are treated if an observer is aboard only one of the
paired vessels. The commenters also expressed concern that the
filtering procedures described in the SBRM Amendment would result in
exclusion of certain fishing modes (such as mid-water trawls) from
observer coverage due to low levels of coverage in the past (``the SBRM
ensures that [the mid-water trawl] mode will be unobserved in
perpetuity'').
Response: All fishing vessels permitted by NMFS to operate in the
Northeast Region under one or more of the FMPs subject to the SBRM
Amendment are currently obligated to carry a NMFS-certified observer on
any trip for which they are requested by the Regional Administrator to
do so (at Sec. 648(a), (b), (c) , and (d)). This requirement does not
change, and is, in fact, reinforced in section 1.7 of the amendment.
This requirement, by definition, applies to herring at-sea processors.
The commenters incorrectly claim that the SBRM excludes some fishing
modes from observer coverage; in fact, according to the results of the
importance filter adopted in the amendment, the coverage allocated to
the New England mid-water trawl fishing mode, cited by the commenters
as ``unobserved in perpetuity,'' would be 316 days, nearly twice the
coverage level in 2004 and would represent 11.5 percent of trips taken
in 2004. The commenters appear to misunderstand the function of the
importance filters, which is to eliminate certain species (those for
which the total discards in a fishing mode is a negligible proportion
of either the total discards of that species across all fishing modes,
or for which the total discards of that species is a negligible
proportion of total fishing-related mortality of that species) from the
calculation of the observer coverage allocation within a fishing mode
(the allocation being no less than the highest coverage level of all
species remaining after the importance filter is applied). Under no
circumstances do the importance filters eliminate any fishing modes
from the observer allocation process. This can be seen in Appendix C of
the amendment in a table illustrating the results of applying the SBRM
to the 2004 dataset. There is some level of observer coverage assigned
to each of the 39 fishing modes addressed in the SBRM Amendment. In
addition, the commenters asserted that the SBRM Amendment did not
address the field sampling protocols to be used in collecting data by
at-sea fisheries observers. This is incorrect. Section 1.7 of the SBRM
Amendment stipulates that ``The NEFOP shall serve as the primary
mechanism to obtain data on discards in all Northeast Region commercial
fisheries managed under one or more of the subject FMPs,'' and that
``all data obtained by the NEFOP under this SBRM shall be collected
according to the techniques and protocols established and detailed in
the Fisheries Observer Program Manual (NEFOP 2006a) and the Biological
Sampling Manual (NEFOP 2006b).'' This section of the SBRM Amendment
goes on to identify the minimum data fields to be collected by
Northeast Region observers. The Fisheries Observer Program Manual and
the Biological Sampling Manual provide general as well as specific
instructions for at-sea observers operating on mid-water trawl, purse
seine, and pair trawl vessels; these instructions and sampling
priorities explicitly account, to the extent
[[Page 4741]]
practicable, for the contingencies identified by the commenters
(including pair trawls with only one vessel observed, pumped fish, loss
of fish in the net, etc.).
Comment 5: A letter from an organization representing commercial
fishermen from Cape Cod expressed concern with how the SBRM would
perform in monitoring hard TACs (total allowable catch) and fishery
sectors. The commenters acknowledged that at least some of the changes
under the SBRM Amendment will improve the region's bycatch reporting,
and characterized the importance filter process as ``crucial for
prioritizing observer coverage.'' However, the commenters stressed
three primary recommendations for improving the SBRM Amendment: (1)
Ensuring that the SBRM provides a means to accurately and precisely
quantify discards for all stocks across all stock areas; (2)
identifying levels of monitoring coverage for sectors necessary for TAC
management; and (3) providing a real-time, publicly-accessible, and
transparent reporting methodology that allows for enforcement of
accountability measures.
Response: The commenters imply that the SBRM Amendment should have
addressed the new requirement included in the Magnuson-Stevens
Reauthorization Act of 2007 (MSRA) for all FMPs to include ``Annual
Catch Limits'' (ACLs) and ``Accountability Measures'' (AMs) and
indicate how the SBRM would perform in the face of these new
requirements. However, the MSRA does not require ACLs and AMs be
developed and implemented for any fishery until at least 2010 (for
fisheries experiencing overfishing) or 2011 (for all other fisheries).
Also, the new MSRA provision related to ACLs and AMs, by its very
definition, applies to all catch, not just bycatch, and is a
requirement much broader in scope than the requirement to establish an
SBRM, which remains a separate requirement under the Magnuson-Stevens
Act and was not modified by the MSRA. Section 1.2 of the SBRM Amendment
acknowledges the changes promulgated through the MSRA, but explains
that no changes to the amendment are necessary as a result. This action
remains necessary primarily to correct deficiencies identified by the
Court in Amendment 13 to the Northeast Multispecies FMP and Amendment
10 to the Sea Scallop FMP in order to bring the Northeast Region FMPs
into compliance with the requirement to establish an SBRM as specified
as section 303(a)(11) of the Magnuson-Stevens Act. As the Councils
embark on fishery management actions to bring the FMPs into compliance
with the new requirements of the MSRA, changes to the SBRM established
herein may be necessary to accommodate the specific attributes of the
ACLs and AMs that will be developed, but such changes would address
specific management needs that go beyond the mandate of section
303(a)(11) to establish an SBRM to assess the amount and type of
bycatch, which is the focus of this action. Because it is impossible at
this time to foresee all the particular attributes of the various ACL
and AM programs that may be developed and adopted by the two Councils
for all 13 FMPs, and how the SBRM may need to change to accommodate
those programs, it would be premature to attempt to craft an SBRM that
could accommodate all possible ACL and AM outcomes, without resulting
in an SBRM so vague and generalized as to be ineffectual at meeting its
current objectives.
Regarding the specific points raised by the commenter, NMFS asserts
that the Northeast Region SBRM is wholly sufficient to quantify
discards for all stocks across all stock areas. Data collected by at-
sea fisheries observers provide sufficient information to determine the
specific stocks of fish discarded, and the stock areas in which the
discard event occurred. These data can be used to apportion the
collected discard estimates across all stocks and stock areas. This is
illustrated in Appendix F and Appendix G of the amendment, which
provide example data queries and analyses based on the data collected
by at-sea observers and a sample format for the information requested
by the Councils to be provided in annual discard reports. In both
cases, discard data are summarized by stock and statistical area, which
is a finer scale even than stock area (i.e., stock areas are composed
of multiple statistical areas).
The commenters also suggest that the SBRM must identify observer
coverage levels for fishery sectors authorized under an FMP to provide
for a specific level of certainty in future TAC management programs.
The commenters appear to assume that a one-size-fits-all approach would
be appropriate for all potential future instances of sector management.
Sectors are unique and temporary fishery management provisions that
authorize a collective of similar fishing vessels (e.g., hook vessels
operating out of Cape Cod) to be granted a portion of a TAC for 1 year
in exchange for abiding by the specific provisions and limitations
identified in the sector management plan. Currently, there are two
approved sectors operating in New England waters; both are authorized
under the sector management provisions of Amendment 13 to the Northeast
Multispecies FMP. As many as 19 additional multispecies sectors are
under development, and the New England Council is considering adopting
similar sector provisions in upcoming amendments to the other New
England FMPs. The sector provisions of the Northeast Multispecies FMP
require that the vessels interested in forming a sector prepare and
submit annually a sector proposal that includes, among other things,
``detailed plans for the monitoring and reporting of landings and
discards'' (at Sec. 648.87(b)(2)(vi)). Under the sector provisions of
the FMP, it is the responsibility of the sector proponents to propose
how discards will be monitored and reported, while the Council and NMFS
retain the authority to determine if the proposed plans are sufficient.
Sector proposals developed by members of the fishing industry are
submitted to and reviewed by the New England Council. Those approved by
the Council are incorporated into framework adjustments to the
Northeast Multispecies FMP and submitted to NMFS for review. At that
time, NMFS considers the specific provisions of the proposed sector
plan to ensure it would meet all requirements of the FMP and be
consistent with the provisions of the Magnuson-Stevens Act and other
applicable law. Given the variety of sector proposals currently under
development, and the expectation of additional sector provisions
included in the other New England FMPs, it would not be practicable to
stipulate in this amendment the specific levels of observer coverage
that would be necessary for each sector, as this would depend on the
number of vessels participating, the area(s) to be fished, the target
and likely incidental species, fishing gear(s) used, and the other
reporting mechanisms required under each sector plan. This action is
focused on the requirement at section 303(a)(11) of the Magnuson-
Stevens Act to develop a methodology to assess the amount and type of
bycatch and provides a framework for modifications to the overarching
methodology to address specific future management needs. The Councils
recognized the need for the SBRM Amendment to be flexible enough to
adapt to such changes, noting in section 6.9.5 of the amendment that
because new sector programs may be implemented through a framework
adjustment, the same framework action could be used to ``modify the
SBRM to
[[Page 4742]]
ensure sufficient data are collected'' on discards.
The commenters asserted that the SBRM must establish a ``real-time,
publicly-accessible, and transparent reporting methodology.'' NMFS
disagrees with the commenters on this point. The Magnuson-Stevens Act
requires simply that an SBRM be established; it imposes no minimum
legal requirements on whether this system provide data in real time, or
the degree to which the data are publicly accessible. A ``real-time''
reporting system, as requested by the commenters, would require that
data be presented in a publicly accessible medium as the discards are
observed and documented by the at-sea fisheries observer. This would
provide no time for the fishing trip to end, for the observer to submit
the data to NMFS, and for NMFS to review, edit, and audit the data
prior to publishing the data. This would severely reduce the quality of
the data and, in so doing, diminish the usefulness and reliability of
the discard data. Data reduction and summaries are necessary in order
to prevent the release of sensitive and proprietary data that is
protected under the Magnuson-Stevens Act and other Federal statutes.
NMFS concludes that it is more appropriate to engage a full data
quality control and assurance program, as summarized in Appendix D of
the SBRM Amendment, in order to ensure the resulting data are of the
highest possible quality before they are released to the public or used
in management.
Comment 6: A conservation organization submitted extensive comments
on the SBRM Amendment and its proposed rule, urging that NMFS not
approve the amendment. The comments addressed several elements of the
SBRM Amendment, and include references to the results of a technical
review of the amendment conducted under contract to another
conservation organization. The responses to the comments identified in
the technical review are addressed separately under comment 10. All
other points raised in the comment letter are addressed in this
response.
The commenters, while acknowledging that the SBRM Amendment
``dramatically'' improves upon prior documents by specifying a
monitoring and reporting system that could be implemented, expressed
concern that the amendment fails to actually establish this system
because it vests NMFS with discretion as to the allocation of observer
coverage if there are external constraints (such as an insufficient
budget) that prevent full implementation. The commenters suggested that
the amendment could have adopted a formal decision procedure that would
stipulate how observers are to be allocated if there is a budget
shortfall, such as requiring that the budget allocations be cut pro
rata across all fishing modes, or to rank fishing modes according to a
standard of priority and fully allocating observer coverage across
priority modes until funding is exhausted.
The commenters claim that the SBRM Amendment fails to mandate that
data be reported in a rational manner useful for fisheries management,
and that the amendment fails to establish a reporting requirement that
provides information on the amount, type, and disposition of bycatch.
The commenters also claim that the amendment fails to recognize the
fishery management needs of the Councils and the needs of the public.
The commenters claim that the amendment fails to establish an SBRM
because it provides for framework adjustment provisions to enable the
Councils to develop and propose changes to the SBRM. The commenters
also claim that the SBRM Amendment fails to consider the bycatch of
species that are not targeted under Northeast Region FMPs, including
failing to consider alternatives for including ``non-managed'' species
in the SBRM.
The commenters claim that NMFS ``locked'' the public and Fishery
Management Councils out of the decision-making process to develop the
SBRM Amendment. The commenters also claim that the SBRM Amendment
violates NEPA because an environmental impact statement (EIS) was not
prepared. Regarding the environmental assessment's (EA) compliance with
NEPA, the commenters raised the following concerns: The EA fails to
adequately discuss the purpose, need, and scope of the amendment; the
EA fails to consider a reasonable range of alternatives, including
performance standards other than 30 percent, different reporting
formats or frequencies, or different ways to assess accuracy; the EA
fails to consider cumulative environmental impacts; and the EA fails to
adequately address protected resources.
Response: NMFS disagrees with the commenters' assertion that the
amendment fails to establish an SBRM because it vests NMFS with some
degree of discretion in cases where external operational constraints
prevent full implementation of the resulting at-sea observer
allocations. The SBRM Amendment establishes an extensive and detailed
methodology to utilize available observer data on discards occurring
across all relevant Northeast Region fisheries, assess the degree to
which those data meet the established performance standard, allocate
observer coverage levels across all relevant fisheries to achieve said
performance standard, and provide reports to the Fishery Management
Councils on the discards that are occurring and on the effectiveness of
the SBRM itself at meeting its objectives. The prioritization process
is one component of the overall program that explicitly recognizes that
external operational constraints (such as Congressional budget
allocations) may occasionally prevent the full implementation of the
SBRM. The process establishes a rigorous review and consultation
process to engage the Councils and the public in determining the most
appropriate approach to prioritize observer coverage on these occasions
that reflects the needs and priorities of the agency and Councils at
the time.
The commenters suggested that the amendment could have implemented
a requirement to apportion any budget allocations pro rata across all
fishing modes, or could have ranked fishing modes according to a
specific standard of priority and require that observers be fully
allocated to the highest priority modes in descending order until the
available budget is exhausted. NMFS notes that several options such as
these are described in section 6.6 of the amendment, but that the
Councils recognized the importance of retaining sufficient flexibility
in the SBRM to adapt to changing conditions and priorities in the
fisheries. The approach suggested by the commenters would leave the
Councils and NMFS with a rigid system that would require an FMP
amendment to modify the priority allocation of resources. NMFS also
notes that retaining some level of discretion in allocating resources
is necessary for the agency to adequately meet its obligations under
other laws in addition to the Magnuson-Stevens Act, such as the ESA and
MMPA. Lastly, the commenters appeared to have misconstrued the
instructions from the Court. Instead of requiring that the SBRM
Amendment stipulate the precise areas where observers must be
concentrated, the Court, in Oceana II, clarified that it ``only
requires that the FMP establish some method for determining observer
concentration instead of leaving all decisions to the Regional
Administrator's discretion'' [See, Oceana II at p. 234 (footnote 41)].
The SBRM Amendment establishes a very specific method for determining
observer allocations across all relevant fisheries, and does not leave
``all
[[Page 4743]]
decisions'' to the Regional Administrator. Rather, only in years in
which external operational constraints prevent full implementation
would NMFS have any discretion to adapt the results of the SBRM, and
only then following a review and consultation with the Councils in a
public forum. NMFS asserts that this approach is consistent with both
the intent of the SBRM provisions of the Magnuson-Stevens Act and the
guidance provided by the Court.
NMFS rejects the commenters' claim that the SBRM Amendment fails to
mandate that data be reported in a rational manner useful for fisheries
management, and that the amendment fails to establish a reporting
requirement that provides information on the amount, type, and
disposition of bycatch. Section 6.4 of the SBRM Amendment describes the
alternatives considered regarding potential reporting procedures, and
section 1.7 of the amendment establishes the requirements for two types
of reports to be prepared at different time intervals. The amendment
requires an annual report be provided to the Councils to provide the
data they requested on the current status of observer coverage and
discard information, along with an additional report provided every 3
years that assesses the SBRM in a more comprehensive manner. The
amendment, in sections 1.7 and 6.4, identifies the specific data
elements to be provided in the reports, including the amount, species,
location, and gear types involved. The information to be reported, the
frequency, and the format for the reports was proposed and adopted by
both Councils as their preferred alternative approach to obtaining SBRM
reports on a routine basis. NMFS asserts that the Councils are in the
best position to determine their needs as to SBRM reports, and, as
such, the SBRM Amendment clearly reflects the needs of the Councils for
this information.
NMFS disagrees with the commenters that the SBRM Amendment fails to
actually establish an SBRM simply because it provides a procedure for
the Councils to make changes to certain provisions of the SBRM through
the use of framework adjustments rather than full FMP amendments. The
intent of this provision of the amendment is to facilitate an efficient
and timely process for the Councils to develop and submit proposed
changes to the SBRM, limited within certain constraints. Nothing in
this provision diminishes or abrogates the agency's obligation to
carefully review any framework adjustment proposed by a Council to
ensure that the proposed changes are consistent with the Magnuson-
Stevens Act, other applicable law, and do not undermine or contravene
the parent FMP. The amendment clearly stipulates that intent, as at
section 6.5.2, which provides that ``the intent of this [framework]
provision is to provide an efficient means for the Council to change
the performance standard in certain circumstances when a higher level
of precision (i.e., reducing the CV to less than 30 percent) is desired
for a particular fishery or management program [emphasis added].''
Providing this mechanism to modify certain elements of the SBRM is
considered important because several provisions of the parent FMPs
already establish framework adjustment protocols for items such as
creating new special access programs (SAPs) or new fishery sectors. As
these changes are developed through a framework adjustment process,
changes to the SBRM may be necessary in order to ensure sufficient
discard reporting in the new SAP or sector. Without the ability to
effect the necessary changes to the SBRM through the framework
adjustment implementing the SAP or sector, the Council would have to
defer implementation of each such framework until an accompanying
amendment could be developed to implement the changes to the SBRM. This
delay would directly contravene the intent of the parent FMPs.
NMFS also disagrees with the commenters that the amendment failed
to consider the bycatch of species that are not targeted under the
Northeast Region FMPs. This issue is addressed in several sections of
the amendment. First, section 1.7 of the amendment clearly stipulates
that the data collected by at-sea fisheries observers ``shall be
collected on all species of biological organisms caught by the fishing
vessel and brought on board, including species managed under the
subject FMPs but also including species on non-managed fish,
invertebrates, and marine plants.'' This section of the amendment
continues to stipulate, in a footnote, that a complete list of the
species for which the listed data elements are to be collected can be
found in Appendix A and Appendix R of the Fisheries Observer Program
Manual. These lists include more than 500 distinct species and species
codes that must be accounted for by observers in their catch and
discard reports. This provision of the SBRM requires that information
regarding the discards of all species be reported by at-sea observers
and reported to NMFS. The same information collected on species managed
under a subject Northeast Region FMP would also be available, at the
same level of detail, on all other species. The SBRM, however, is
specifically crafted around the species managed under a subject FMP,
and it is these species, with the addition of threatened and endangered
sea turtles, that drive the allocation of observers across the subject
fishing modes. Contrary to the claim of the commenters, the Councils
explicitly considered expanding this aspect of the SBRM calculations to
include all non-managed species. This is described in section 6.8.1 of
the amendment document and includes the Councils' rationale for not so
expanding the SBRM.
NMFS rejects the claim by the commenters that the agency ``locked''
the public and Councils out of the decision-making process to develop
the SBRM Amendment. The process to development the amendment included
numerous and varied opportunities for the public and the Councils to
fully engage and provide valued input, fulfilling the letter and spirit
of NEPA. The commenters correctly pointed out that the primary analyses
and technical materials were developed by a Fishery Management Action
Team (FMAT) that was chaired by a NMFS staff member, but claim that
this represents a ``flawed'' approach. The choice of a NMFS staff
member to serve as chair of this technical group was suggested by the
Councils as a way to help with staffing resource concerns shared by the
Councils. However, in all respects other than the position of the
group's chair, the membership of the FMAT reflected the standard
operating procedures for Plan Development Teams (PDTs), as used by the
New England Council, as well as FMATs as used by the Mid-Atlantic
Council. The SBRM FMAT included staff from both Councils, the Northeast
Fisheries Science Center, NOAA General Counsel, and the Northeast
Regional Office, all with the requisite expertise and background in the
subject matter.
All activities, analyses, and recommendations of the FMAT were
reported to a Joint Oversight Committee composed of voting member of
both Councils, and all such meetings of the SBRM Committee were held in
public fora with advance notice to the public. Throughout the
development of the amendment, the SBRM Committee held six public
meetings ranging in location from Virginia Beach, VA, to Peabody, MA.
All decisions of the Councils with regards to establishing the range of
alternatives to be considered in the
[[Page 4744]]
amendment, selecting the preferred alternatives, approval of the draft
amendment for release to the public, reviewing the results of the
analyses and information provided by the FMAT, assessing the comments
submitted by the public on the draft amendment and the changes proposed
to address those comments were first vetted through the SBRM Committee
in public meetings. In addition to the six meetings of the SBRM
Committee, the Councils met publicly a total of 13 times to receive
reports on the progress of the SBRM Amendment, to review the decisions
and recommendations of the SBRM Committee, and to formally approve and
adopt the amendment for release to the public and, later, to submit for
Secretarial review. There was also a public meeting at which members of
both Councils' SSCs conducted a formal peer-review of the technical
components of the SBRM Amendment, and two public hearings were held to
provide ample opportunity for interested members of the public to
provide comments on the draft amendment.
Lastly, NMFS disagrees with the assertion by the commenters that
the SBRM Amendment violates NEPA because an EIS was not prepared.
Consistent with NEPA, Council for Environmental Quality (CEQ)
regulations, and NOAA administrative policy, NMFS and the Councils
collaborated to prepare an EA to evaluate the significance of the
environmental impacts expected as a result of the actions considered in
the SBRM Amendment. The results of this assessment are provided in
section 8.9.2 of the amendment, which supports the finding of no
significant impacts (FONSI) signed by the agency on October 16, 2007.
The commenters provided no evidence, nor even any claims, that the
conclusions in the FONSI are not supported by the facts presented in
the EA for this finding. Contrary to the claim of the commenters, NMFS
asserts that the EA considers a sufficient range of alternatives to
satisfy the requirements of NEPA. As described throughout the amendment
(the Executive Summary and chapters 6, 7, and 8), the alternatives
considered by the Councils were structured around seven specific
elements that together comprise the Northeast Region SBRM. Multiple
alternatives were developed and considered for each element and, in
some cases, various sub-options were also developed and considered. As
noted in Appendix E of the amendment, in response to a similar comment
received on the draft amendment, the available permutations of the
various alternatives considered in this action exceeds 1,400 if the
sub-options are not counted. Accounting for the sub-options, the number
of possible outcomes exceeds 2,100 distinct sets of management
alternatives. In addition to the sets of alternatives expressly
analyzed in the EA, the Councils considered, but ultimately rejected
from detailed analysis, an additional four distinct alternatives. These
additional alternatives are described in section 6.8 of the amendment,
and, contrary to the claim of the commenters, include alternatives that
specifically addresses setting alternate CV levels and different
intervals for the SBRM reports.
NMFS disagrees with the commenters that the EA fails to adequately
discuss the purpose, need, and scope of the amendment. All of these
elements are specifically identified and are fully described in chapter
1 of the amendment. The commenters assert that the EA fails to consider
cumulative environmental impacts. NMFS rejects this claim, as section
7.3 of the amendment explicitly provides a discussion of the expected
cumulative effects associated with the action. NMFS asserts that this
treatment of cumulative effects is consistent with CEQ regulations and
current NOAA policy. Regarding protected resources, several elements of
sections 7.1 and 7.2 of the amendment address the potential impacts of
the actions on protected resources, and NMFS considers this treatment,
along with sections 8.3 and 8.8 of the amendment, to be adequate under
all applicable law. Endangered sea turtles are explicitly addressed in
the SBRM (see chapters 5 and 6), and are afforded a priority superior
to all other fish species by ``trumping'' the second and third level
importance filters (i.e., if the results of the second and third level
importance filters would result in an observer allocation to a fishing
mode that is less than the number of sea days calculated to adequately
observe sea turtles, then the higher sea turtle allocation is applied).
As noted throughout the amendment document, the Magnuson-Stevens Act
specifically excludes marine mammals and birds from the definitions of
fish and bycatch and, therefore, the SBRM (because it exists solely as
a Magnuson-Stevens Act construct) need not expressly account for marine
mammals or birds. Therefore, NMFS considers the SBRM Amendment to
adequately address protected resources.
Comment 7: A comment letter written on behalf of four conservation
organizations raised many of the same concerns as the conservation
organization noted above. In particular, the commenters frequently
referred to the results of the technical review described below. The
responses to the comments identified in the technical review are
addressed separately under comment 10. All other points raised in the
comment letter are addressed in this response.
The commenters claim that the SBRM Amendment fails to achieve the
purpose of the action or meet the related requirements of the Magnuson-
Stevens Act and the prior Court orders because it fails to explain the
methods and processes by which bycatch is currently monitored, fails to
determine whether these methods and process should be modified and/or
supplemented, and fails to document the SBRM established for all
Northeast Region FMP fisheries. The commenters claim that the SBRM
Amendment does not explain the methods by which data and information on
discards are obtained by observers. The commenters reiterated the claim
made in comment 4 that the SBRM Amendment ``conclude[s] that observer
coverage is not warranted'' in the mid-water trawl fishery.
The commenters claim that the SBRM Amendment fails to specify
levels of observer coverage required for each FMP, citing concern that
the ``mere performance targets'' leave the actual level of observer
coverage entirely up to the agency. The commenters also claim that the
SBRM fails to adequately cover ``non-managed'' bycatch species.
The commenters claim that NMFS ``prevented'' the New England and
Mid-Atlantic Councils and the public from meaningfully participating in
the development of the SBRM Amendment. Similar to the previous
commenter, the commenters claim that an EIS should have been prepared,
rather than the EA, and that the document therefore does not comply
with NEPA. In particular, the commenters claim that the lack of an EIS:
Limited the opportunities for public participation and stymied the
involvement of the Councils; failed to consider a range of
alternatives; and failed to ensure that decision-makers and the public
are well informed about the potential environmental impacts of the
action. The commenters suggested that the amendment should have been
presented in a more accessible format, claiming that the SBRM is a
``nearly incoherent document.'' The commenters claim that the FMAT
formed to prepare the technical materials for the Councils was a
``failure'' and failed to engage the Councils. The commenters further
claim that the SBRM Amendment was ``carefully steered around the
avoidance
[[Page 4745]]
of the public participation requirements of NEPA,'' and that
opportunities for public participation, including the two public
hearings, were limited to Council meetings with short agenda items and
``little or no'' opportunity for public comment. The commenters also
criticized the amount of time available to review and comment on the
amendment, claiming that much of the document was not available ``in
any form'' until shortly before the Councils approved the document in
June 2007. The commenters concluded by criticizing the 60-day comment
period on the amendment, claiming that this amount of time was
insufficient.
The commenters suggested that NMFS engage independent and objective
scientific expertise, along with the public, and prepare an EIS in
support of a ``significantly revised'' SBRM Amendment. The commenters
claim that the SBRM was never peer reviewed by independent reviewers at
any stage of its development. The commenters recognized that the
document was reviewed by members of the Councils' SSCs, but claim that
these reviewers ``lacked the highly specialized expertise necessary to
conduct a review of this nature,'' and that the reviewers cannot be
considered as independent and objective because they serve as members
of the Councils' SSCs.
Response: NMFS disagrees that the amendment fails to explain the
methods and processes by which bycatch is currently monitored or that
the amendment fails to evaluate whether these methods should be
modified and/or supplemented, noting that chapter 4 addresses these
specific issues. Additional information about the current bycatch data
collection programs is provided in chapter 5 of the amendment and in
associated reference documents that are clearly identified throughout
the amendment. As noted above in response to comments on this issue, it
is incorrect to conclude that the SBRM Amendment in any way suggests
that observer coverage ``is not warranted'' in any fishing mode,
including the New England mid-water trawl mode, which the amendment
indicates would be allocated 316 observer sea days based on the 2004
observer data, a two-fold increase over the actual coverage in this
fishing mode in 2004.
NMFS disagrees with the commenters' implication that the SBRM
Amendment was intended to specify levels of observer coverage required
for each FMP. Nothing in the Magnuson-Stevens Act, or in either
relevant Court order described above, requires that an SBRM include
specific observer coverage levels to be identified for each FMP.
Rather, the intent of the Magnuson-Stevens Act SBRM provision,
supported by the Court, was to establish procedures to determine the
appropriate levels of coverage [See, Oceana II at p. 233 (footnote 38),
where the Court states that ``Oceana I did not require that an FMP
mandate a specific level of observer coverage'']. The amendment clearly
establishes the procedures to be used to make these determinations and
requires that the agency utilize these procedures (``Each year, the
Regional Administrator and the Science and Research Director shall
allocate sufficient at-sea observer coverage to the applicable
fisheries of the Northeast Region in order to achieve a level of
precision . . . no greater than 30 percent for each applicable species
and/or species group'' SBRM Amendment at section 1.7).
The commenters' claim that the agency ``prevented'' the Councils
from participating in a meaningful way in the development of the
amendment is patently false. As described earlier in response to
previous comments, the development of the SBRM Amendment was conducted
under the oversight of a joint Council committee that included members
from both Councils. All decisions regarding the development of the
amendment were made by the Councils and were based on the
recommendations of the SBRM Oversight Committee. Contrary to the claim
of the commenters, the evidence clearly indicates that both Councils
were fully engaged in the development of this amendment, and there were
no actions taken on the part of the agency to ``prevent'' such
engagement.
NMFS considers the SBRM Amendment and associated EA to comply fully
with the requirements of NEPA, the CEQ regulations, and NOAA
Administrative Order 216-6, and, therefore, rejects the assertion by
the commenters that an EIS should have been prepared. According to the
CEQ regulations, and all available guidance on the subject, an EIS need
only be prepared when an EA or other related analysis identifies
significant effects on the environment or if the facts available to the
action agency cannot support the conclusions required in order to make
a FONSI. The EA associated with the SBRM Amendment fully evaluated the
expected direct, indirect, and cumulative impacts likely to result from
implementation of the action. The EA, in both form and scope, followed
all agency guidelines for an EA associated with an FMP amendment. As
noted in response to previous comments, a full range of reasonable
alternatives was considered by the Councils during the development of
the amendment, and all relevant effects of the action, and its
alternatives, were identified and made available to the relevant
decision-makers. In response to the claim that the amendment document
is ``nearly incoherent,'' NMFS notes that at no stage in the
development of the amendment did anyone else raise such a comment. NMFS
considers this amendment to be an organized, well-written, and
approachable document that includes each element required by NEPA and
all applicable laws. The inclusion in the amendment of highly technical
concepts and methodologies was necessary in order to treat the
statistical analyses and modeling elements inherent in the development
of an SBRM in a complete and transparent manner. Great care was taken
to present this information clearly, to organize the amendment in a
logical manner, and to use clear prose to the extent possible.
NMFS disagrees with the claim that the FMAT process was a failure.
The FMAT members included representatives from both Councils' staffs,
and the FMAT reported to the Councils' SBRM Oversight Committee at each
step in the process to develop the amendment. The FMAT produced a draft
amendment 8 months after the first FMAT meeting, at which time it was
accepted by both Councils and released for public review. Following the
public comment period on the draft amendment and draft EA, the FMAT
prepared revisions to several sections of the amendment and presented
all revisions to the Committee less than 4 months after the end of the
comment period. NMFS considers the FMAT process to be a success by all
accepted standards and practices for Council actions. Regarding the
claim that the development of the amendment was intended to avoid
public participation, as noted above in response to the previous
comment on this issue, public participation was encouraged and multiple
opportunities for public participation were provided throughout the
development process. Both public hearings held on the draft amendment
were noticed well in advance of the hearings, both were held in public
venues in conjunction with, but not during, public meetings of the New
England and Mid-Atlantic Councils. Both hearings were relatively well
attended (32 individuals attended the first hearing in Gloucester, MA,
and 16 individuals attended the second hearing in New York, NY), and
both hearings remained open until all in the audience who wished to
provide comment had
[[Page 4746]]
done so. No time limits were placed on any commenter, and no one was
precluded from speaking. As a result of the discussions of the Councils
and comments from the public, several changes to the SBRM Amendment
were made throughout its development, including the revisions to the
importance filter process, the inclusion of multiple reporting
procedures, and the incorporation of an external peer review of the
underlying analyses conducted by the Councils' SSCs.
NMFS disagrees with the claim of the commenters that the document
was not available ``in any form'' until shortly before the Councils
approved the document in June 2007. Drafts of the amendment and EA were
available prior to the Council meetings in September and October 2006
at which the draft amendment was approved for release to the public for
public hearings. The public hearing draft of the amendment and EA was
posted to the Internet and made available on November 1, 2006,
initiating a 60-day comment period. Copies of the public hearing draft
were available by mail for anyone who requested one, and copies were
available at both public hearings. The public hearing draft of the
amendment and EA remained available on the Internet until it was
replaced by a revised draft in mid-2007. In advance of the April 2007
meeting of the SBRM Oversight Committee, errata sheets reflecting the
sections of the draft amendment that had been revised to address public
comments were made available on the New England Council's Internet
page. Copies of these revised sections of the amendment were also made
available at the April 2007 meeting. Following the April 2007 meeting
of the Committee, these revised sections were integrated into the draft
amendment, and a final draft of the amendment was posted to the
Internet in early June.
Regarding the criticism that the 60-day comment period on the
amendment (72 FR 41047) was insufficient, NMFS notes that this 60-day
time period for public review of FMPs and amendments is stipulated in
section 304 of the Magnuson-Stevens Act (``Upon transmittal by the
Council to the Secretary of a fishery management plan or plan
amendment, the Secretary shall . . . immediately publish in the Federal
Register a notice stating that the plan or amendment is available and
that written information, views, or comments of interested persons on
the plan or amendment may be submitted to the Secretary during the 60-
day period beginning on the date the notice is published.'').
NMFS asserts that it is unnecessary to engage additional expertise,
and finds no reason to disapprove and revise the SBRM Amendment. NMFS
disputes the commenters' claim that the SBRM was not peer reviewed by
independent reviewers, noting that both Councils solicited their
respective SSCs for members with the expertise to conduct a formal peer
review of the technical components of the SBRM Amendment. Four
reviewers, two from each Council's SSC, with all the requisite
expertise and background to conduct such a review, met in August 2006
in a public forum to assess the SBRM. The results of the peer review
were made publicly available in September 2006 and were fully addressed
in revisions to the initial draft of the SBRM Amendment and all
comments and suggestions made by the SSC members were incorporated.
Comment 8: A comment letter by the chief scientist for a
conservation organization asserted that the analyses and preferred
options in the SBRM Amendment represent improvements over previous
versions. The commenter stressed that the selected alternative for the
importance filter is ``much better'' than the non-preferred
alternative, and that it is ``appropriate'' to concentrate observer
sampling effort on fishing modes that cause a high fraction of the
discard mortality and a high fraction of the total fishing mortality
for each harvested species. The commenter also stated that the
preferred alternative precision standard (a CV of 30 percent) for
bycatch estimates for each managed species and fishing mode is
``appropriate.'' In addition, the commenter concurred with one of the
conclusions of the McAllister report (see below) that simulation
testing should be done to evaluate the precision and potential biases
of each proposed estimator.
Response: NMFS agrees with the commenter that the SBRM represents
an improvement over previous versions, that the importance filter is a
sound and appropriate approach to concentrate observer coverage, and
that the performance standard of a 30 percent CV is appropriate for
discard estimates. The response to the comment concurring with the
McAllister report on simulation testing is addressed below in response
to comment 10.
Comment 9: A comment letter written by attorneys representing an
association of full-time, limited access scallop fishermen in New
England and the Mid-Atlantic endorsed the SBRM Amendment, noting that,
in their opinion, the SBRM Amendment addresses all relevant legal
requirements. The commenters claim that the amendment establishes an
appropriately flexible system to meet unknown future demands on the
observer system. The commenters assert that the amendment appears to
have achieved a reasonable and practicable balance in the scope of the
SBRM and the approach taken to allocate observer coverage across the
subject fishing modes. The commenters support the use of the importance
filters by focusing limited resources on the areas of greatest concern
to management. The commenters also support the provisions of the rule
that allows the Councils to develop an observer set-aside program
through a framework adjustment to the FMP, rather than a full
amendment. In addition, the commenters support the establishment of
standards for certifying additional observer service providers.
Response: NMFS agrees with the comments.
Comment 10: A comment letter from a conservation organization
included a detailed technical review of the scientific analyses and
methodology underlying the SBRM Amendment. A technical review was
submitted by Dr. Murdoch McAllister of the University of British
Columbia. Although the McAllister report found the importance filters
to be ``scientifically sound,'' ``well-founded,'' and ``sensible from a
scientific point of view'' and to be effective at reducing the amount
of observer effort required without compromising the quality of data
required for bycatch estimation, the McAllister report raised several
issues related to the analysis conducted in support of the SBRM
Amendment. The McAllister report claims to have identified a number of
flaws in the estimation method chosen to be applied in the SBRM, and
that the observer coverage levels that result from the application of
this estimator could potentially lead to ``wastage'' of government
resources because ``unnecessarily high'' or ``unacceptably low''
numbers of observer sea days could be specified by the SBRM. The
McAllister report claims that the SBRM Amendment failed to adequately
evaluate the statistical properties of the six alternative bycatch
estimation methods considered, and raised concerns that the key
assumptions of the preferred statistical method do not hold, such that
the SBRM Amendment utilizes a statistical method that is inferior to
others that might have been selected. The report notes that an
alternative statistical method that was considered, but not selected,
may have resulted in lower CVs in bycatch estimates than the other
methods. The McAllister report recommends that
[[Page 4747]]
simulation testing of the candidate bycatch estimation methods be
conducted to evaluate the potential bias and precision in the methods
prior to selecting one for implementation.
The McAllister report also raises concern regarding the degree to
which evidence of bias in the observer data is acknowledged in the
analyses supporting the SBRM Amendment, suggesting that there is
evidence of bias in the data where none was reported. This concern is
extended to include the use of the FVTR as a source of kept biomass,
which may have more bias than described in the amendment. The report
concludes with the claim that the SBRM is ``unlikely'' to provide
reliable discard estimates or prescriptions for observer coverage,
noting that this is ``largely due'' to the issues previously raised
regarding the ratio bycatch estimator that was selected.
In spite of the concerns raised, the McAllister report concedes
that ``the observer data on bycatch appear to be the best available
data on bycatch by species and fishing fleet type.'' Dr. McAllister
notes that ``no other data exist with the extent of coverage of bycatch
species, landed species, and fishing mode,'' and that there is a
relatively small proportion of the various potential combinations of
species and fishing mode for which observer coverage is too low to
permit estimation of bycatch. The report acknowledges that there are
sufficient data in the ``vast majority'' of fishing mode and species
combinations to enable computation of a bycatch value and a standard
error for the estimate, and that ``no other type of data collected
comes close to providing the high level of coverage offered by the
existing observer dataset.'' The McAllister report also acknowledges
that the high proportion of the estimates of bycatch presented in the
SBRM with CVs of 30 percent or less indicate that the ``existing
observer database has potential to provide bycatch estimates with the
desired level of precision.''
In addition to the concerns described above, the McAllister report
also raises a concern regarding the selection of a 30 percent CV of the
discard estimate as an appropriate performance standard for the SBRM,
noting that in commonly applied stock assessment models, the desired CV
of the catch estimate would be 10 percent or less, not 30 percent.
Response: Dr. Murdoch McAllister makes a number of important
comments on the SBRM Amendment. His thorough review on behalf of
Lenfest Ocean Program highlights a number of important issues for
discard estimation and suggests some useful approaches for improving
the estimators currently employed. NMFS considered his comments, but,
despite the issues raised by Dr. McAllister, contends the SBRM is
consistent with all legal and statutory requirements, and is based upon
the best available science. The SBRM incorporates not only the sampling
design but also the infrastructure to collect auxiliary data, the
methods of estimation and the properties of the estimators, and
approaches to improve the allocation of observer coverage to the
diverse fishing fleets of the Northeast Region. The SBRM is fully
consistent with the limitations of the data necessary to support
estimation of discards across a wide range of species and fisheries.
Improvements can always be made to statistical models and
techniques to derive bycatch estimates. By reviewing observer coverage
annually and instituting optimal allocation procedures, the SBRM is
designed to continuously improve the underlying data. Ultimately, the
utility of any statistical model depends more on the quality of the
data than the sophistication of the model. Nonetheless, the SBRM is
designed to collect data that will support many different types of
statistical estimators. In order to achieve this goal, the information
in the observed samples must be sufficient for inference about the
unobserved fraction of the fishery. The basis for the program rests on
the quality of the discard data collected at sea by fisheries observers
and the ability to extrapolate estimates of total discards from the
observed fraction of the fleets to the unobserved fractions. Any
estimator of total discards requires that the observed rate of discards
in a sample can be expanded to a total. An estimator based on discards
per trip requires an estimate of total trips; an estimator based on
discards per day absent requires an estimate of total days absent.
Estimators that compute discard rates as a function of some set of
environmental conditions or vessel attributes must have the ability to
apply those same characteristics for the unobserved set.
The remarks of Dr. McAllister appear to indicate some confusion
regarding the estimators that are applied for the purpose of
initializing the SBRM and those which will be used in stock
assessments. NMFS acknowledges that these estimators do not necessarily
have to be the same. In fact, one would expect that improved discard
estimates can be derived after the data are collected because more
information about the fishing trip, and the nature of the discards, is
available. Possible refinements to the data and the resulting discard
estimates include various post-stratification approaches, incorporation
of other auxiliary variables, and intensive investigation of regulatory
effects (e.g., size limits, trip limits, overall quotas, closed area
effects, permit restrictions etc.). The ability to implement these
changes is governed ultimately by the quality of the statistical
sampling design. On that point, the SBRM is on firm ground: while the
McAllister report provides a number of instances where further research
efforts can be directed, it does not alter our conclusion that the SBRM
is a scientifically-sound process for implementing a continuously
improving process of bycatch estimation.
The SBRM addresses discarding issues for the entire range of
fishing activities in the Northeast. This synoptic approach requires
careful attention to the limitations and availability of data to
estimate discards and provides a representative methodology to apply
consistently across all Northeast Region fisheries. The inclusion of
all species and all fisheries precluded a detailed case-by-case
treatment of the best estimators in favor of a standardized approach to
provide reasonable results across the full range of Northeast Region
fisheries. The SBRM incorporates objective approaches to reduce the
estimation problem to a subset of cells that are biologically
important.
Dr. McAllister did not comment on the procedures for collecting
data on trips or the observer training program. As this was not in his
terms of reference, it is assumed that neither the Lenfest Ocean
Program nor Dr. McAllister had any serious concerns about observer
training or quality assurance procedures. The ability to extrapolate
from the observed fishing trips to the unobserved fraction rests in
part on the overall sampling design. On this topic, Dr. McAllister
states ``In my view the sampling program proposed for obtaining bycatch
estimates has a few issues regarding accuracy but largely appears to be
the best available sampling program for bycatch estimation.''
It is noted that, in spite of the concerns raised, the McAllister
report concedes that ``the observer data on bycatch appear to be the
best available data on bycatch by species and fishing fleet type.'' The
author notes that ``no other data exist with the extent of coverage of
bycatch species, landed species, and fishing mode,'' and that there is
a relatively small proportion of the various potential combinations of
species and fishing mode for which observer coverage is too low to
permit estimation of bycatch. His report
[[Page 4748]]
acknowledges that there are sufficient data in the ``vast majority'' of
fishing mode and species combinations to enable computation of a
bycatch value and a standard error for the estimate, and that ``no
other type of data collected comes close to providing the high level of
coverage offered by the existing observer dataset.'' The McAllister
report also acknowledges that the high proportion of the estimates of
bycatch presented in the SBRM with CVs of 30 percent or less indicate
that the ``existing observer database has potential to provide bycatch
estimates with the desired level of precision.''
Dr. McAllister criticizes the selection of the ratio estimator as
the appropriate model for estimation. NMFS acknowledges that the ratio
estimator is not uniformly supported across all 2,700 cells (45 fleets
and 60 species groups). In some instances, the trip-based estimator
(average discards per trip multiplied by total trips) may in fact have
greater precision. In effect, all of the discard estimation methods
considered in the SBRM are stratified ratio estimators. The simple
expansion method preferred by Dr. McAllister uses total trips as a
measure of effort. Implicitly, this means that the stratification
variables used in the SBRM are sufficient to define strata with a low
degree of within-stratum variability and high degree of between stratum
variability. The incorporation of ``days absent'' as a measure of
fishing effort recognizes that residual variation in trip length may be
important for characterizing bycatch; however, the measure of days
absent does not account for variations in transit time to fishing
grounds or search activities (i.e., there could be significant
differences in actual fishing time true effort if transit time is
accounted for). The use of total landings addresses this weakness and
provides at least one performance-based measure of fishing effort,
wherein variation in fishing power can be addressed. Because catch is
the product of effort and abundance, total landings per trip can be
viewed conceptually as a surrogate for effective fishing effort, if
average abundance within a year does not change too greatly.
The SBRM proposes the use of a stratified ratio estimator as a
general measure of the total bycatch by species. The estimator
incorporates two complementary components to improve the precision of
the estimates. Stratification by ``fleets'' reduces the variability
within non-overlapping sets. For some species, it would be possible to
develop more refined stratifications, particularly after the sample has
been collected. Some fleets are strongly associated with a particular
species, such as the scallop dredge fleet and the hydraulic dredge
fleet for clams. However, for most fleets, the target species is not
identifiable in advance. Some vessels will change net types during a
cruise to shift among species groups (e.g., gadoids vs. flatfish).
Contrary to the comments of Dr. McAllister, the estimators used in
the SBRM are consistent with the many peer-reviewed published studies
of discard estimation. For example, Pikitch et al. (1998)\1\ estimated
total bycatch for Pacific halibut as the product of a bycatch ratio of
discard per hour fished (stratified by fleet, season, and depth) and
total hours fished. Total hours fished were assumed to have negligible
error because, in the words of the authors, ``the states of Oregon,
Washington, and California collect logbooks for the majority of fishing
trips (70-90 percent in Oregon, nearly 100 percent in Washington, and
about 80 percent in California).'' In their paper, the authors
concluded that logbook records, which McAllister claims are
``notoriously inaccurate,'' were sufficient to estimate hours fished
even when they are known to be incomplete.
---------------------------------------------------------------------------
\1\ Pikitch, E.K., J.R. Wallace, E.A. Babcock, D.L. Erickson, M.
Saelens, and G. Oddsson. 1998. Pacific halibut bycatch in the
Washington, Oregon, and California groundfish and shrimp trawl
fisheries. North American Journal of Fisheries Management, 18:569-
586.
---------------------------------------------------------------------------
Stratoudakis et al. (1999)\2\ recognized the bias in small sample
ratio estimators and recommended an alternative method based on
collapsed stratification. The authors examined a wide range of ratio
estimators, similar to the procedures used in the SBRM. They
recommended the use of a ``partially collapsed estimator'' that used
total gadoid landings or total demersal species landings as the
auxiliary variable in the ratio estimator. They recommended pooling
across strata to estimate the discard ratio. In the SBRM, the discard
ratio for the ``combined'' estimator was in fact a ``partially
collapsed estimator'' over quarters. Their comparisons of ratio
estimators with the stratified sample mean estimator suggested improved
performance for most but not all species. They concluded the partially
collapsed ratio estimator, with gadoid or total landings as the
auxiliary variable, offers a sensible method for estimating total
species discards within Scottish waters. Another advantage cited by
these investigators was the decreased reliance on ad hoc decisions that
arise when single species discard/kept ratios are employed.
---------------------------------------------------------------------------
\2\ Stratoudakis, Y., R.J. Fryer, R.M. Cook, and G.J. Pierce.
1999. Fish discarded from Scottish demersal vessels: Estimators of
total discards and annual estimates for targeted gadoids. ICES
Journal of Marine Science, 56:592-605.
---------------------------------------------------------------------------
In a comprehensive evaluation of discarding in the multispecies and
multi-country fisheries of the Northwest Atlantic, Watson et al.
(2000)\3\ also estimated total discards by species using the ratio of
discard to total kept. Previous studies of discarding have also relied
extensively on discard to kept ratios, and have typically required
pooling of information across fisheries. Clarke et al. (2002)\4\ used a
discard to kept ratio to estimate discards of a squalid shark off the
northern coast of Ireland. They noted that this ratio ``enabled the
estimation of the total weight discarded by raising the overall discard
rate to the reported landings of the target species.'' Harrington et
al. (2005)\5\ and Zeller and Pauly (2005)\6\ also reported a number of
discard estimates based on discard to kept ratios.
Allain et al. (2003)\7\ considered two methods for estimating the
total weights of fish discarded by the French grenadier fleet.
Extrapolations of total landings using effort based ratios, as
suggested by McAllister, resulted in differences between observed and
predicted between -67 and +52 percent per quarter. They noted that real
effort is difficult to estimate owing to different fractions of time
actually spent on fishing grounds. Instead, they favored a target
species (grenadier) approach as the denominator of a discard to kept
ratio because ``it was the target species of the fishery, it was the
only species both landed and discarded, and it was the most common
species in the catches of deepwater commercial trawlers.'' Borges et
al. (2005)\8\ also analyzed discards at the trip level and considered
four ratio estimators. The authors
[[Page 4749]]
concluded that expansions based on total trips or total landings were
most appropriate. Their studies suggested that no single approach may
be appropriate for all fishery strata and that the performance of the
discard to total kept estimator was sometimes inferior to a simple
discard per trip estimator.
---------------------------------------------------------------------------
\3\ Watson, R., S. Guennete, P. Fanning, and T.J. Pitcher. 2000.
The basis for change: Part 1, Reconstructing fisheries catch and
effort data. P. 23-39 in D. Pauly and T.D Pitcher (eds) Methods for
Assessing the Impacts of Fisheries on Marine Ecosystems in the North
Atlantic. Fisheries Centre Res. Rep. 8(2), 195 pp.
\4\ Clarke, M.W., P.L. Connolly, and J.J. Braken. 2005. Catch,
discarding, age estimation, growth, and maturity of the squalid
shark, Deania calceus, west and north of Ireland. Fisheries
Research, 55:25-35.
\5\ Harrington, J.M., R.A. Myers, and A.A. Rosenberg. 2005.
Wasted fishery resources: Discarded bycatch in the USA. Fish and
Fisheries, 6:350-361.
\6\ Zeller, D. And D. Pauly. 2005. Good new, bad news: Global
fisheries discards are declining, but so are total catches. Fish and
Fisheries, 6:156-150.
\7\ Allain, V., A. Biseau, and B. Kergoat. 2003. Preliminary
estimates of French deepwater fishery discards in the Northeast
Atlantic Ocean. Fisheries Research, 60:185-192.
\8\ Borges L., E. Rogan, and R. Officer. 2005. Discarding by the
demersal fishery in the waters around Ireland. Fisheries Research,
76:1-13.
---------------------------------------------------------------------------
The Food and Agricultural Organization of the United Nations has
sponsored two of the most comprehensive estimates of worldwide
discards. The first, by Alverson et al. (1994),\9\ estimated total
discards by using ratios of discards to kept of the same species. The
second major paper, by Kelleher (2005)\10\, updated the Alverson et al.
review using total landings in the fleet as the primary raising factor.
The SBRM uses an approach similar to Kelleher. The focus is on
fisheries rather than target species. Kelleher argues that the
relationship between landings and discard of a species is influenced by
many different factors and does not constitute an a priori basis for
estimation of total discards.
Many attempts in the literature to model bycatch have been based on
regression trees and Generalized Additive Models that partition the
data into multiple categories (see Stratoudakis et al. 1999\11\, Allen
et al. 2002\12\, Borges et al. 2005\13\). These partitions have been
based on post hoc analyses of single species and have been valuable
approaches for improving the utility of discard estimates. However, it
is not clear how such approaches could be easily applied in the context
of multivariate responses. The partitioning of fleets into sectors
based on properties observable before the trip is taken is a major
attribute of the current NEFOP sampling program (e.g., Cotter et al.
2002\14\, Allen et al. 2002). The ability to post-stratify the trips
into improved strata after the trip is taken is a responsibility of the
individual assessment analyst. The SBRM allows for this process by
ensuring that whatever assessment methodology is used, one must
consider the total scope of potential discards across all fleets.
---------------------------------------------------------------------------
\9\ Alverson, D.L., M.H. Freeberg, S.A. Murawski, and J.G. Pope.
1994. A global assessment of fisheries bycatch and discards. FAO
Fisheries Technical Paper No. 339, 235 pp.
\10\ Kelleher, K. 2005. Discards in the world's marine
fisheries: An update. FAO Fisheries Technical Paper No. 470, 134 pp.
\11\ Stratoudakis, Y., R.J. Fryer, R.M. Cook, and G.J. Pierce.
1999. Fish discarded from Scottish demersal vessels: Estimators of
total discards and annual estimates for targeted gadoids. ICES
Journal of Marine Science, 56:592-605.
\12\ Allen, M., D. Kilpatrick, M. Armstrong, R. Briggs, G.
Course, and N. Perez. 2002. Multistage cluster sampling design and
optimal sample sizes for estimation of fish discards from commercial
trawlers. Fisheries Research, 55:11-24.
\13\ Borges, L., A.F. Zuur, E. Rogan, and R. Officer. 2005.
Choosing the best sampling unit and auxiliary variable for discard
estimations. Fisheries Research, 75:29-39.
\14\ Cotter, A.J.R., G. Course, S.T. Buckland, and C. Garrod.
2002. A PPS sample survey of English fishing vessels to estimate
discarding and retention of North Sea cod, haddock, and whiting.
Fisheries Research, 55:25-35.
---------------------------------------------------------------------------
NMFS acknowledges that all measures of accuracy based on
observations are incomplete, since the ``truth'' (or its approximation)
is unknown. However, the multiple lines of evidence used in the SBRM
suggest that potential biases in the NEFOP observer data do not negate
the utility of all estimates. Several of the data validation issues
highlighted by Dr. McAllister were examined as part of a recent
Groundfish Assessment Review Meeting (GARM) held in the fall of 2007.
This particular meeting of the GARM dealt with the catch, survey, and
environmental data that will be used to assess 19 Northeast groundfish
stocks in 2008. The review panel, including its chair, included eight
independent, external scientists with relevant experience.
In addition to the methods described in the SBRM, another
validation approach was presented at the GARM that included a
comparison of total landings by species estimated from the observed
fraction of the fleet with the actual landings enumerated in the VTR
data. In other words, an estimate of the average landings of a single
species per total landings in the observer data was multiplied by the
total landings of all species in each fleet. If the observer data are a
representative sample, the confidence interval for estimated total
landings should encompass the true value. Liggens et al. (1997)\15\
used a similar approach for estimating observer bias by comparing
average catch rates and length frequencies between observed and
unobserved vessels. The results of this exercise supported the
conclusions presented in the SBRM Amendment, and confirm that the
method and underlying data provide sound estimates of discards. For
many species and species groups, the estimated landings based on NEFOP
data compared favorably to the VTR landings, with the 95 percent
confidence interval of the estimated landings encompassing the VTR
landings.
---------------------------------------------------------------------------
\15\ Liggens, G.W., M.J. Bradley, and S.J. Kennelly. 1997.
Detection of bias in observer-based estimates of retained and
discarded catches from a multi-species trawl fishery. Fisheries
Research, 32:133-147.
---------------------------------------------------------------------------
The GARM considered this evidence and concluded that the combined
ratio method was validated by comparing estimated landings using
expanded kept portion of the catch in the observer data to the actual
report landing. The estimated landings appear to be in line with the
reported total landings. Using kept weight of all species in the
denominator of the combined ratio ensures that all the catch data are
used in estimating discards. The GARM review panel also concluded that
the SBRM documents a number of estimators of discarding and validation
of the combined ratio method was provided using the 2005 observer data
set by a follow-up analysis. VTR data were used as a surrogate for
Dealer data to expand the NEFOP discard ratios to total discards. In
most cases (95 percent), there was good correspondence between VTR and
Dealer landings, adding confidence to the use of these data, although
there were patterns in the data for some species (e.g., surfclam/
quahog, hakes) that require further exploration. The GARM concluded
that, overall, the technique was synoptic, reasonably well validated,
and exhibited little evidence of bias.
Contrary to Dr. McAllister's comments, simulation tests of
alternative estimators have been conducted for several species. These
results were reviewed as part of the GARM described above. NMFS has
also conducted studies to estimate total landings from the observed
sample data and have found good agreement for the methods used in the
SBRM. Scientists at the Northeast Fisheries Science Center conducted a
simulation study of the behavior of six different estimators of total
discards, including the combined ratio (discard to kept) and the sample
mean estimator (discard to trip) as described in the SBRM Amendment.
Results supported the use of the discard to total kept ratio and the
simple expansion method. The independent GARM reviewers considered this
additional analysis and concluded that the analysis provided a
comprehensive simulation study to test the overall performance of a
number of discard estimation techniques with respect to bias and
precision. Two methods were clearly superior to the other four
techniques: The SBRM's combined ratio estimator (ratio of sums) and the
direct estimator, based on mean discard per trip scaled up to all trips
in the simulation datasets. The latter had been advocated by McAllister
for the estimation of discards, and would be the preferred approach if
there is no
[[Page 4750]]
correlation between the numerator and denominator of the estimate
(i.e., there is no correlation between discard weight and kept weight).
However, the GARM reviewers concluded that McAllister's preferred
method only provides unbiased estimates of total discards if the total
number of trips is known, which is often not the case in the New
England fisheries. Total landings estimates are considered more
reliable than those of the total number of trips, and so the GARM
reviewers concluded that the SBRM's combined ratio estimator of mean
discard based on observed trips has the advantage that it can be
combined with known landings data to estimate total discards. They
considered this to be a pragmatic solution to data deficiencies, and
noted that the SBRM appears to provide estimates with similar precision
as the direct estimator. The bias in the combined ratio estimator
depends on the sample size (number of observed trips) and was
negligible for the data being assessed in the simulation study.
Regarding the assertion that a CV of 30 percent is an insufficient
precision standard for the SBRM, the commenter identifies, as a
suggested alternative, a CV of 10 percent for catch estimates used in
stock assessments. However, NMFS points out that estimates of bycatch,
which are the focus of this action, are but one aspect of overall
catch, which includes all commercial and recreational landings as well
as discards. As illustrated in Appendix C to the SBRM Amendment, for
most species, discards represent a very small proportion of total
catch. Therefore, the CV of the landings estimates contributes much
more significantly to the CV of the overall catch than does the CV of
the discard estimate. Also, as explained earlier, the data generated
through the SBRM are utilized in different ways in individual stock
assessments, and that post-stratification techniques available at the
individual stock assessment level provide an opportunity to refine
estimates as Dr. McAllister suggests. While NMFS agrees that higher
precision is always a laudable goal, it notes that the Councils' SSC
reviewers, as well as another independent scientist commenting on the
SBRM Amendment (see comment 8), all concluded that the proposed
standard of a CV of 30 percent is appropriate for its stated purpose.
In sum, NMFS has carefully considered the comments and suggestions
made by Dr. McAllister, in some cases conducting additional analyses
which have been subjected to an additional level of independent
external peer review through the GARM, and found that none of the
comments undermine NMFS's findings regarding the adequacy of the
Northeast Region SBRM.
Comment 11: One member of the public expressed concern over whether
the agency may be unduly swayed in the actions it takes due to
political interference. The commenter suggested that all fishing quotas
be cut by 50 percent, but no evidence or analysis was provided to
support such a reduction.
Response: This comment letter did not address the specific
provisions of the SBRM Amendment or its proposed rule, and the comments
have no bearing on the agency's decision relative to this action.
Classification
The Administrator, Northeast Region, NMFS, determined that the
Northeast Region SBRM Omnibus Amendment is necessary for the
conservation and management of Northeast Region fisheries and that it
is consistent with the Magnuson-Stevens Act and other applicable laws.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification. As a result, a regulatory flexibility
analysis was not required and none was prepared.
Dated: January 22, 2008
Samuel D. Rauch III
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service
0
For the reasons set out in the preamble, 50 CFR part 648 is amended as
follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.11, paragraphs (h) and (i) are revised to read as
follows:
Sec. 648.11 At-sea sea sampler/observer coverage.
* * * * *
(h) Observer service provider approval and responsibilities--(1)
General. An entity seeking to provide observer services 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 vessel owners and shall be posted on
the NMFS/NEFOP website at http://www.nefsc.noaa.gov/femad/fsb/.
(2) Existing observer service providers. Observer service providers
that currently deploy certified observers in the Northeast must submit
an application containing the information specified in paragraph (h)(3)
of this section, excluding any information specified in paragraph
(h)(3) of this section that has already been submitted to NMFS.
(3) Contents of application. An application to become an approved
observer service provider shall contain the following:
(i) Identification of the management, organizational structure, and
ownership structure of the applicant's business, including
identification by name and general function of all controlling
management interests in the company, including but not limited to
owners, board members, officers, authorized agents, and staff. If the
applicant is a corporation, the articles of incorporation must be
provided. If the applicant is a partnership, the partnership agreement
must be provided.
(ii) The permanent mailing address, phone and fax numbers where the
owner(s) can be contacted for official correspondence, and the current
physical location, business mailing address, business telephone and fax
numbers, and business e-mail address for each office.
(iii) A statement, signed under penalty of perjury, from each owner
or owners, board members, and officers, if a corporation, that they are
free from a conflict of interest as described under paragraph (h)(6) of
this section.
(iv) A statement, signed under penalty of perjury, from each owner
or owners, board members, and officers, if a corporation, describing
any criminal convictions, Federal contracts they have had, and the
performance rating they received on the contract, and previous
decertification action while working as an observer or observer service
provider.
(v) A description of any prior experience the applicant may have in
placing individuals in remote field and/or marine work environments.
This includes, but is not limited to, recruiting, hiring, deployment,
and personnel administration.
(vi) A description of the applicant's ability to carry out the
responsibilities and duties of a fishery observer services
[[Page 4751]]
provider as set out under paragraph (h)(2) of this section, and the
arrangements to be used.
(vii) Evidence of holding adequate insurance to cover injury,
liability, and accidental death for observers during their period of
employment (including during training). Workers' Compensation and
Maritime Employer's Liability insurance must be provided to cover the
observer, vessel owner, and observer provider. The minimum coverage
required is $5 million. Observer service providers shall provide copies
of the insurance policies to observers to display to the vessel owner,
operator, or vessel manager, when requested.
(viii) Proof that its observers, either contracted or employed by
the service provider, are compensated with salaries that meet or exceed
the U.S. Department of Labor (DOL) guidelines for observers. Observers
shall be compensated as a Fair Labor Standards Act (FLSA) non-exempt
employees. Observer providers shall provide any other benefits and
personnel services in accordance with the terms of each observer's
contract or employment status.
(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 an appropriate NMFS/NEFOP 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 less than eight individuals will be delayed until
further requests make up the full training class size. Requests for
training classes must be made 30 days in advance of the requested date
and must have a complete roster of trainees at that time.
(x) An Emergency Action Plan (EAP) describing its response to an
``at sea'' emergency with an observer, including, but not limited to,
personal injury, death, harassment, or intimidation.
(4) Application evaluation. (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 of the applicant's
ability to perform the duties and responsibilities of a fishery
observer service provider, as demonstrated in the application
information. A decision to approve or deny an application shall be made
by NMFS within 15 business 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 the NMFS/NEFOP website specified in paragraph (h)(1)
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
fishery observer program.
(iii) An application shall be denied if NMFS determines that the
information provided in the application is not complete or the
evaluation criteria are not met. 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 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) Responsibilities of observer service providers. (i) An observer
service provider must provide observers certified by NMFS/NEFOP
pursuant to paragraph (i) of this section for deployment in a fishery
when contacted and contracted by the owner, operator, or vessel manager
of a vessel fishing, unless the observer service provider refuses to
deploy an observer on a requesting vessel for any of the reasons
specified at paragraph (h)(5)(viii) of this section. An approved
observer service provider must maintain a minimum of eight
appropriately trained NEFOP certified observers in order to remain
approved; should a service provider cadre drop below eight, the
provider must submit the appropriate number of candidates for the next
available training class. Failure to do so shall be cause for
suspension of their approved status until rectified.
(ii) An observer service provider must provide to each of its
observers:
(A) All necessary transportation, including arrangements and
logistics, of observers to the initial location of deployment, to all
subsequent vessel assignments, and to any debriefing locations, if
necessary;
(B) Lodging, per diem, and any other services necessary for
observers assigned to a fishing vessel or to attend an appropriate
NMFS/NEFOP Observer Training class;
(C) The required observer equipment, in accordance with equipment
requirements listed on the NMFS/NEFOP website specified in paragraph
(h)(1) of this section, prior to any deployment and/or prior to NMFS
observer certification training; and
(D) Individually assigned communication equipment, in working
order, such as a cell phone or pager, for all necessary communication.
An observer service provider may alternatively compensate observers for
the use of the observer's personal cell phone or pager for
communications made in support of, or necessary for, the observer's
duties.
(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 hours 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 appropriate fishery.
(iv) Observer deployment limitations. Unless alternative
arrangements are approved by NMFS, an observer provider must not deploy
any observer on the same vessel for two or more consecutive
deployments, and not more than twice in any given month. 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.
(v) Communications with observers. An observer service provider
must have an employee responsible for observer activities on call 24
hours a day to handle emergencies involving observers or problems
concerning observer logistics, whenever observers are at sea, stationed
shoreside, in transit, or in port awaiting vessel assignment.
(vi) Observer training requirements. The following information must
be submitted to NMFS to request a certified observer training class at
least 30 days prior to the beginning of the proposed training class:
Date of requested training; a list of observer candidates, with a
minimum of eight individuals; observer candidate resumes; and a
[[Page 4752]]
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 beginning of a NMFS/NEFOP Observer Training class.
NMFS may reject a candidate for training if the candidate does not meet
the minimum qualification requirements as outlined by NMFS National
Minimum Eligibility Standards for observers as described in paragraph
(i)(1) of this section.
(vii) Reports--(A) Observer deployment reports. The observer
service provider must report to NMFS when, where, to whom, and to what
fishery an observer has been deployed, within 24 hours of their
departure. The observer service provider must ensure that the observer
reports back to NMFS its Observer Contract (OBSCON) data, as described
in the certified observer training, within 12 hours of landing. OBSCON
data are to be submitted electronically or by other means as specified
by NMFS. The observer service provider shall provide the raw (unedited)
data collected by the observer to NMFS within 72 hours of the trip
landing.
(B) Safety refusals. The observer service provider must report to
NMFS any trip that has been refused due to safety issues, e.g., failure
to hold a valid USCG Commercial Fishing Vessel Safety Examination Decal
or to meet the safety requirements of the observer's pre-trip vessel
safety checklist, within 24 hours of the refusal.
(C) Biological samples. The observer service provider must ensure
that biological samples, including whole marine mammals, sea turtles,
and sea birds, are stored/handled properly and transported to NMFS
within 7 days of landing.
(D) Observer debriefing. The observer service provider must ensure
that the observer remains available to NMFS, including NMFS Office for
Law Enforcement, for debriefing for at least 2 weeks following any
observed trip. If requested by NMFS, an observer that is at sea during
the 2-week period must contact NMFS upon his or her return.
(E) Observer availability report. The observer service provider
must report to NMFS any occurrence of inability to respond to an
industry request for observer coverage due to the lack of available
observers on staff by 5 pm, Eastern Standard Time, of any day on which
the provider is unable to respond to an industry request for observer
coverage.
(F) Other reports. The observer provider must report possible
observer harassment, discrimination, concerns about vessel safety or
marine casualty, observer illness or injury, and any information,
allegations, or reports regarding observer conflict of interest or
breach of the standards of behavior must be submitted to NMFS within 24
hours of the event or within 24 hours of learning of the event.
(viii) Refusal to deploy an observer. (A) An observer service
provider may refuse to deploy an observer on a requesting fishing
vessel if the observer service provider does not have an available
observer within 72 hours of receiving a request for an observer from a
vessel.
(B) An observer service provider may refuse to deploy an observer
on a requesting fishing vessel if the observer service provider has
determined that the requesting vessel is inadequate or unsafe pursuant
to the reasons described atSec. 600.746.
(C) The observer service provider may refuse to deploy an observer
on a fishing vessel that is otherwise eligible to carry an observer for
any other reason, including failure to pay for previous observer
deployments, provided the observer service provider has received prior
written confirmation from NMFS authorizing such refusal.
(6) Limitations on conflict of interest. An observer service
provider:
(i) Must not have a direct or indirect interest in a fishery
managed under Federal regulations, including, but not limited to, a
fishing vessel, fish dealer, fishery advocacy group, and/or fishery
research;
(ii) Must assign observers without regard to any preference by
representatives of vessels other than when an observer will be
deployed; and
(iii) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who conducts fishing or fishing related activities
that are regulated by NMFS, or who has interests that may be
substantially affected by the performance or nonperformance of the
official duties of observer providers.
(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 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 that clearly disproves the reasons 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, 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 if no rebuttal is
submitted, shall be the final decision of NMFS and 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 fishing trips on which the observers are
deployed at the time the observer service provider is removed from the
list of approved observer 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) Failure to meet the requirements, conditions, and
responsibilities of observer service providers specified in paragraphs
(h)(5) and (h)(6) of this section;
(ii) Evidence of conflict of interest as defined under paragraph
(h)(3) of this section;
(iii) Evidence of criminal convictions related to:
(A) Embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements, or receiving stolen
property; or
(B) The commission of any other crimes of dishonesty, as defined by
state law or Federal law that would seriously
[[Page 4753]]
and directly affect the fitness of an applicant in providing observer
services under this section;
(iv) Unsatisfactory performance ratings on any Federal contracts
held by the applicant; and
(v) Evidence of any history of decertification as either an
observer or observer provider.
(i) Observer certification. (1) To be certified, employees or sub-
contractors operating as observers for observer service providers
approved under paragraph (h) of this section must meet NMFS National
Minimum Eligibility Standards for observers. NMFS National Minimum
Eligibility Standards are available at the National Observer Program
website: http://www.st.nmfs.gov/st4/nop/.
(2) Observer training. In order to be deployed on any fishing
vessel, a candidate observer must have passed an appropriate NMFS/NEFOP
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. Observer training shall include an observer training trip, as
part of the observer's training, aboard a fishing 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) Observer requirements. All observers must:
(i) Have a valid NMFS/NEFOP fisheries observer certification
pursuant to paragraph (i)(1) of this section;
(ii) Be physically and mentally capable of carrying out the
responsibilities of an observer on board fishing vessels, pursuant to
standards established by NMFS. Such standards are available from NMFS/
NEFOP website specified in paragraph (h)(1) of this section and shall
be provided to each approved observer service provider;
(iii) Have successfully completed all NMFS-required training and
briefings for observers before deployment, pursuant to paragraph (i)(2)
of this section; and
(iv) Hold a current Red Cross (or equivalence) CPR/first aid
certification.
(4) Probation and decertification. NMFS has the authority to review
observer certifications and issue observer certification probation and/
or decertification as described in NMFS policy found on the NMFS/NEFOP
website specified in paragraph (h)(1) of this section.
(5) Issuance of decertification. Upon determination that
decertification is warranted under paragraph (i)(3) of this section,
NMFS shall issue a written decision to decertify the observer to the
observer and approved observer service providers via certified mail at
the observer's most current address provided to NMFS. The decision
shall identify whether a certification is revoked and shall identify
the specific reasons for the action taken. Decertification is effective
immediately as of the date of issuance, unless the decertification
official notes a compelling reason for maintaining certification for a
specified period and under specified conditions. Decertification is the
final decision of NMFS and the Department of Commerce and may not be
appealed.
0
3. Add Sec. 648.18 to subpart A to read as follows:
Sec. 648.18 Standardized bycatch reporting methodology.
NMFS shall comply with the Standardized Bycatch Reporting
Methodology (SBRM) provisions established in the following fishery
management plans: Atlantic Bluefish; Atlantic Herring; Atlantic Salmon;
Deep-Sea Red Crab; Mackerel, Squid, and Butterfish; Monkfish; Northeast
Multispecies; Northeast Skate Complex; Sea Scallop; Spiny Dogfish;
Summer Flounder, Scup, and Black Sea Bass; Surfclam and Ocean Quahog;
and Tilefish.
0
4. In Sec. 648.21, paragraph (c)(13) is added to read as follows:
Sec. 648.21 Procedures for determining initial annual amounts.
(c) * * *
(13) Changes, as appropriate, to the Northeast Region SBRM,
including the coefficient of variation (CV) based performance standard,
fishery stratification, and/or reports.
* * * * *
0
5. In Sec. 648.24, paragraph (a)(1) is revised to read as follows:
Sec. 648.24 Framework adjustments to management measures.
(a) * * *
(1) Adjustment process. The Council shall develop and analyze
appropriate management actions over the span of at least two Council
meetings. The Council 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 Council meeting. The Council's recommendations on adjustments or
additions to management measures must come from one or more of the
following categories: 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, changes to the Northeast Region SBRM (including the CV-
based performance standard, the means by which discard data are
collected/obtained, fishery stratification, reports, and/or industry-
funded observers or observer set-aside programs), any other management
measures currently included in the FMP, set aside quota for scientific
research, regional management, and process for inseason adjustment to
the annual specification.
* * * * *
0
6. In Sec. 648.55, paragraph (e)(32) is revised and paragraph (e)(33)
is added to read as follows:
Sec. 648.55 Framework adjustments to management measures.
* * * * *
(e) * * *
(32) Changes to the Northeast Region SBRM, including the CV-based
performance standard, the means by which discard data are collected/
obtained, fishery stratification, reports, and/or industry-funded
observers or observer set-aside programs.
(33) Any other management measures currently included in the FMP.
* * * * *
0
7. In Sec. 648.77, paragraph (a)(1) is revised to read as follows:
Sec. 648.77 Framework adjustments to management measures.
(a) * * *
(1) Adjustment process. The Council shall develop and analyze
appropriate management actions over the span of at
[[Page 4754]]
least two Council meetings. The Council 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 Council meeting. The Council's
recommendations on adjustments or additions to management measures must
come from one or more of the following categories: The overfishing
definition (both the threshold and target levels), description and
identification of EFH (and fishing gear management measures that impact
EFH), habitat areas of particular concern, set-aside quota for
scientific research, VMS, OY range, suspension or adjustment of the
surfclam minimum size limit, and changes to the Northeast Region SBRM
(including the CV-based performance standard, the means by which
discard data are collected/obtained, fishery stratification, reports,
and/or industry-funded observers or observer set-aside programs).
* * * * *
0
8. In Sec. 648.90, paragraphs (a)(2)(i), (a)(2)(iii), (b)(1)(ii), and
(c)(1)(i) are revised to read as follows:
Sec. 648.90 NE Multispecies assessment, framework procedures and
specifications, and flexible area action system.
* * * * *
(a) * * *
(2) Biennial review. (i) Beginning in 2005, the NE Multispecies PDT
shall meet on or before September 30 every other year, unless otherwise
specified in paragraph (a)(3) of this section, under the conditions
specified in that paragraph, to perform a review of the fishery, using
the most current scientific information available provided primarily
from the NEFSC. Data provided by states, ASMFC, the USCG, and other
sources may also be considered by the PDT. Based on this review, the
PDT will develop target TACs for the upcoming fishing year(s) and
develop options for Council consideration, if necessary, on any
changes, adjustments, or additions to DAS allocations, closed areas, or
on other measures necessary to achieve the FMP goals and objectives,
including changes to the Northeast Region SBRM. For the 2005 biennial
review, an updated groundfish assessment, peer-reviewed by independent
scientists, will be conducted to facilitate the PDT review for the
biennial adjustment, if needed, for the 2006 fishing year. Amendment 13
biomass and fishing mortality targets may not be modified by the 2006
biennial adjustment unless review of all valid pertinent scientific
work during the 2005 review process justifies consideration.
* * * * *
(iii) Based on this review, the PDT shall recommend target TACs and
develop options necessary to achieve the FMP goals and objectives,
which may include a preferred option. The PDT must demonstrate through
analyses and documentation that the options they develop are expected
to meet the FMP goals and objectives. The PDT may review the
performance of different user groups or fleet Sectors in developing
options. The range of options developed by the PDT may include any of
the management measures in the FMP, including, but not limited to:
Target TACs, which must be based on the projected fishing mortality
levels required to meet the goals and objectives outlined in the FMP
for the 10 regulated species, Atlantic halibut (if able to be
determined), and ocean pout; DAS changes; possession limits; gear
restrictions; closed areas; permitting restrictions; minimum fish
sizes; recreational fishing measures; description and identification of
EFH; fishing gear management measures to protect EFH; designation of
habitat areas of particular concern within EFH; and changes to the
Northeast Region SBRM, including the CV-based performance standard, the
means by which discard data are collected/obtained, fishery
stratification, reports, and/or industry-funded observers or observer
set-aside programs. In addition, the following conditions and measures
may be adjusted through future framework adjustments: Revisions to
status determination criteria, including, but not limited to, changes
in the target fishing mortality rates, minimum biomass thresholds,
numerical estimates of parameter values, and the use of a proxy for
biomass; DAS allocations (such as the category of DAS under the DAS
reserve program, etc.) and DAS baselines, etc.; modifications to
capacity measures, such as changes to the DAS transfer or DAS leasing
measures; calculation of area-specific TACs, area management
boundaries, and adoption of area-specific management measures; Sector
allocation requirements and specifications, including establishment of
a new Sector; measures to implement the U.S./Canada Resource Sharing
Understanding, including any specified TACs (hard or target); changes
to administrative measures; additional uses for Regular B DAS; future
uses for C DAS; reporting requirements; the GOM Inshore Conservation
and Management Stewardship Plan; GB Cod Gillnet Sector allocation;
allowable percent of TAC available to a Sector through a Sector
allocation; categorization of DAS; DAS leasing provisions; adjustments
for steaming time; adjustments to the Handgear A permit; gear
requirements to improve selectivity, reduce bycatch, and/or reduce
impacts of the fishery on EFH; SAP modifications; and any other
measures currently included in the FMP.
* * * * *
(b) * * *
(1) * * *
(ii) The WMC shall recommend management options necessary to
achieve FMP goals and objectives pertaining to small-mesh multispecies,
which may include a preferred option. The WMC must demonstrate through
analyses and documentation that the options it develops are expected to
meet the FMP goals and objectives. The WMC may review the performance
of different user groups or fleet Sectors in developing options. The
range of options developed by the WMC may include any of the management
measures in the FMP, including, but not limited to: Annual target TACs,
which must be based on the projected fishing mortality levels required
to meet the goals and objectives outlined in the FMP for the small-mesh
multispecies; possession limits; gear restrictions; closed areas;
permitting restrictions; minimum fish sizes; recreational fishing
measures; description and identification of EFH; fishing gear
management measures to protect EFH; designation of habitat areas of
particular concern within EFH; changes to the Northeast Region SBRM,
including the CV-based performance standard, the means by which discard
data are collected/obtained, fishery stratification, reports, and/or
industry-funded observers or observer set-aside programs; and any other
management measures currently included in the FMP.
* * * * *
(c) * * *
(1) * * *
(i) After a management action has been initiated, the Council shall
develop and analyze appropriate management actions over the span of at
least two Council meetings. The Council shall provide the public with
advance notice of the availability of both the proposals and the
analyses and opportunity to comment on them prior to and at the second
Council meeting. The Council's recommendation on adjustments or
additions to management measures, other than to address gear conflicts,
[[Page 4755]]
must come from one or more of the following categories: DAS changes,
effort monitoring, data reporting, possession limits, gear
restrictions, closed areas, permitting restrictions, crew limits,
minimum fish sizes, onboard observers, minimum hook size and hook
style, the use of crucifer in the hook-gear fishery, fleet Sector
shares, recreational fishing measures, area closures and other
appropriate measures to mitigate marine mammal entanglements and
interactions, description and identification of EFH, fishing gear
management measures to protect EFH, designation of habitat areas of
particular concern within EFH, changes to the Northeast Region SBRM,
and any other management measures currently included in the FMP. In
addition, the Council's recommendation on adjustments or additions to
management measures pertaining to small-mesh NE multispecies, other
than to address gear conflicts, must come from one or more of the
following categories: Quotas and appropriate seasonal adjustments for
vessels fishing in experimental or exempted fisheries that use small
mesh in combination with a separator trawl/grate (if applicable),
modifications to separator grate (if applicable) and mesh
configurations for fishing for small-mesh NE multispecies, adjustments
to whiting stock boundaries for management purposes, adjustments for
fisheries exempted from minimum mesh requirements to fish for small-
mesh NE multispecies (if applicable), season adjustments, declarations,
participation requirements for the Cultivator Shoal Whiting Fishery
Exemption Area, and changes to the Northeast Region SBRM (including the
CV-based performance standard, the means by which discard data are
collected/obtained, fishery stratification, reports, and/or industry-
funded observers or observer set-aside programs).
* * * * *
0
9. In Sec. 648.96, the section heading, paragraphs (a), (b)(5), and
(c)(1)(i) are revised to read as follows:
Sec. 648.96 Monkfish annual adjustment process and framework
specifications.
(a) General. The Monkfish Monitoring Committee (MFMC) shall meet on
or before November 15 of each year to develop target TACs for the
upcoming fishing year in accordance with paragraph (b)(1) of this
section, and options for NEFMC and MAFMC consideration on any changes,
adjustment, or additions to DAS allocations, trip limits, size limits,
the Northeast Region SBRM (including the CV-based performance standard,
fishery stratification, and/or reports), or other measures necessary to
achieve the Monkfish FMP's goals and objectives. The MFMC shall review
available data pertaining to discards and landings, DAS, and other
measures of fishing effort; stock status and fishing mortality rates;
enforcement of and compliance with management measures; and any other
relevant information.
(b) * * *
(5) Annual review process. The Monkfish Monitoring Committee (MFMC)
shall meet on or before November 15 of each year to develop options for
the upcoming fishing year, as needed, and options for NEFMC and MAFMC
consideration on any changes, adjustment, or additions to DAS
allocations, trip limits, size limits, the Northeast Region SBRM
(including the CV-based performance standard, fishery stratification,
and/or reports), or other measures necessary to achieve the Monkfish
FMP's goals and objectives. The MFMC shall review available data
pertaining to discards and landings, DAS, and other measures of fishing
effort; stock status and fishing mortality rates; enforcement of and
compliance with management measures; and any other relevant
information.
* * * * *
(c) * * *
(1) * * *
(i) Based on their annual review, the MFMC may develop and
recommend, in addition to the target TACs and management measures
established under paragraph (b) of this section, other options
necessary to achieve the Monkfish FMP's goals and objectives, which may
include a preferred option. The MFMC must demonstrate through analysis
and documentation that the options it develops are expected to meet the
Monkfish FMP goals and objectives. The MFMC may review the performance
of different user groups or fleet sectors in developing options. The
range of options developed by the MFMC may include any of the
management measures in the Monkfish FMP, including, but not limited to:
Closed seasons or closed areas; minimum size limits; mesh size limits;
net limits; liver-to-monkfish landings ratios; annual monkfish DAS
allocations and monitoring; trip or possession limits; blocks of time
out of the fishery; gear restrictions; transferability of permits and
permit rights or administration of vessel upgrades, vessel replacement,
or permit assignment; measures to minimize the impact of the monkfish
fishery on protected species; gear requirements or restrictions that
minimize bycatch or bycatch mortality; transferable DAS programs;
changes to the Northeast Region SBRM, including the CV-based
performance standard, the means by which discard data are collected/
obtained, fishery stratification, reports, and/or industry-funded
observers or observer set-aside programs; and other frameworkable
measures included in Sec. Sec. 648.55 and 648.90.
* * * * *
0
10. In Sec. 648.100, paragraph (a) is revised and paragraph (b)(12) is
added to read as follows:
Sec. 648.100 Catch quotas and other restrictions.
(a) Review. The Summer Flounder Monitoring Committee shall review
each year the following data, subject to availability, unless a TAL has
already been established for the upcoming calendar year as part of a
multiple-year specification process, provided that new information does
not require a modification to the multiple-year quotas, to determine
the annual allowable levels of fishing and other restrictions necessary
to achieve, with at least a 50-percent probability of success, a
fishing mortality rate (F) that produces the maximum yield per recruit
(Fmax): Commercial, recreational, and research catch data; current
estimates of fishing mortality; stock status; recent estimates of
recruitment; virtual population analysis results; levels of
noncompliance by fishermen or individual states; impact of size/mesh
regulations; discards; sea sampling and winter trawl survey data or, if
sea sampling data are unavailable, length frequency information from
the winter trawl survey and mesh selectivity analyses; impact of gear
other than otter trawls on the mortality of summer flounder; and any
other relevant information.
(b) * * *
(12) Changes, as appropriate, to the Northeast Region SBRM,
including the CV-based performance standard, fishery stratification,
and/or reports.
* * * * *
0
11. In Sec. 648.108, paragraph (a)(1) is revised to read as follows:
Sec. 648.108 Framework adjustments to management measures.
(a) * * *
(1) Adjustment process. The Council shall develop and analyze
appropriate management actions over the span of at least two Council
meetings. The Council must provide the public with advance notice of
the availability of the recommendation(s), appropriate
[[Page 4756]]
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 Council meeting. The Council's
recommendations on adjustments or additions to management measures must
come from one or more of the following categories: 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 essential fish habitat (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, operator permits,
changes to the Northeast Region SBRM (including the CV-based
performance standard, the means by which discard data are collected/
obtained, fishery stratification, reports, and/or industry-funded
observers or observer set-aside programs), any other commercial or
recreational management measures, any other management measures
currently included in the FMP, and set aside quota for scientific
research.
* * * * *
0
12. In Sec. 648.120, paragraph (a) is revised and paragraph (b)(13) is
added to read as follows:
Sec. 648.120 Catch quotas and other restrictions.
(a) Review. The Scup Monitoring Committee shall review each year
the following data, subject to availability, unless a TAL already has
been established for the upcoming calendar year as part of a multiple-
year specification process, provided that new information does not
require a modification to the multiple-year quotas: Commercial,
recreational, and research data; current estimates of fishing
mortality; stock status; recent estimates of recruitment; virtual
population analysis results; levels of noncompliance by fishermen or
individual states; impact of size/mesh regulations; impact of gear on
the mortality of scup; discards; and any other relevant information.
This review will be conducted to determine the allowable levels of
fishing and other restrictions necessary to achieve the F that produces
the maximum yield per recruit (Fmax).
(b) * * *
(13) Changes, as appropriate, to the Northeast Region SBRM,
including the CV-based performance standard, fishery stratification,
and/or reports.
* * * * *
0
13. In Sec. 648.140, paragraph (a) is revised and paragraph (b)(12) is
added to read as follows:
Sec. 648.140 Catch quotas and other restrictions.
(a) Review. The Black Sea Bass Monitoring Committee shall review
each year the following data, subject to availability, unless a TAL
already has been established for the upcoming calendar year as part of
a multiple-year specification process, provided that new information
does not require a modification to the multiple-year quotas, to
determine the allowable levels of fishing and other restrictions
necessary to result in a target exploitation rate of 23 percent (based
on Fmax) in 2003 and subsequent years: Commercial, recreational, and
research catch data; current estimates of fishing mortality; stock
status; recent estimates of recruitment; virtual population analysis
results; levels of noncompliance by fishermen or individual states;
impact of size/mesh regulations; discards; sea sampling and winter
trawl survey data, or if sea sampling data are unavailable, length
frequency information from the winter trawl survey and mesh selectivity
analyses; impact of gear other than otter trawls, pots and traps on the
mortality of black sea bass; and any other relevant information.
(b) * * *
(12) Changes, as appropriate, to the Northeast Region SBRM,
including the CV-based performance standard, fishery stratification,
and/or reports.
* * * * *
0
14. In Sec. 648.160, paragraph (a) is revised and paragraph (b)(9) is
added to read as follows:
Sec. 648.160 Catch quotas and other restrictions.
* * * * *
(a) Annual review. On or before August 15 of each year, the
Bluefish Monitoring Committee will meet to determine the total
allowable level of landings (TAL) and other restrictions necessary to
achieve the target fishing mortality rate (F) specified in the Fishery
Management Plan for Atlantic Bluefish for the upcoming fishing year or
the estimated F for the fishing year preceding the Council submission
of the recommended specifications, whichever F is lower. In determining
the TAL and other restrictions necessary to achieve the specified F,
the Bluefish Monitoring Committee will review the following data,
subject to availability: Commercial, recreational, and research catch
data; current estimates of fishing mortality; stock status; recent
estimates of recruitment; virtual population analysis results; levels
of noncompliance by fishermen or individual states; impact of size/mesh
regulations; discards; sea sampling data; impact of gear other than
otter trawls and gill nets on the mortality of bluefish; and any other
relevant information.
(b) * * *
(9) Changes, as appropriate, to the Northeast Region SBRM,
including the CV-based performance standard, fishery stratification,
and/or reports.
* * * * *
0
15. In Sec. 648.165, paragraph (a)(1) is revised to read as follows:
Sec. 648.165 Framework specifications.
(a) * * *
(1) Adjustment process. After a management action has been
initiated, the Council shall develop and analyze appropriate management
actions over the span of at least two Council meetings. The Council
shall provide the public with advance notice of the availability of
both the proposals and the analysis and the opportunity to comment on
them prior to and at the second Council meeting. The Council's
recommendation on adjustments or additions to management measures must
come from one or more of the following categories: Minimum fish size,
maximum fish size, gear restrictions, gear requirements or
prohibitions, permitting restrictions, recreational possession limit,
recreational season, closed areas, commercial season, description and
identification of essential fish habitat (EFH), fishing gear management
measures to protect EFH, designation of habitat areas of particular
concern within EFH, changes to the Northeast Region SBRM (including the
CV-based performance standard, the means by which discard data are
collected/obtained, fishery stratification, reports and/or industry-
funded observers or observer set-aside programs), and any
[[Page 4757]]
other management measures currently included in the FMP.
* * * * *
0
16. In Sec. 648.200, paragraph (b) introductory text is revised to
read as follows:
Sec. 648.200 Specifications.
* * * * *
(b) Guidelines. As the basis for its recommendations under
paragraph (a) of this section, the PDT shall review available data
pertaining to: Commercial and recreational catch data; current
estimates of fishing mortality; discards; stock status; recent
estimates of recruitment; virtual population analysis results and other
estimates of stock size; sea sampling and trawl survey data or, if sea
sampling data are unavailable, length frequency information from trawl
surveys; impact of other fisheries on herring mortality; and any other
relevant information. The specifications recommended pursuant to
paragraph (a) of this section must be consistent with the following:
* * * * *
0
17. In Sec. 648.206, paragraphs (b)(28) and (b)(29) are revised and
paragraph (b)(30) is added to read as follows:
Sec. 648.206 Framework provisions.
* * * * *
(b) * * *
(28) TAC set-aside amounts, provisions, adjustments;
(29) Changes, as appropriate, to the Northeast Region SBRM,
including the CV-based performance standard, the means by which discard
data are collected/obtained, fishery stratification, reports, and/or
industry-funded observers or observer set-aside programs; and
(30) Any other measure currently included in the FMP.
* * * * *
0
18. In Sec. 648.230, paragraphs (a), (b)(4), and (b)(5) are revised
and paragraph (b)(6) is added to read as follows:
Sec. 648.230 Catch quotas and other restrictions.
(a) Process for setting specifications. The Spiny Dogfish
Monitoring Committee will review the following data at least every 5
years, subject to availability, to determine the total allowable level
of landings (TAL) and other restrictions necessary to assure that a
target fishing mortality rate specified in the Spiny Dogfish Fishery
Management Plan will not be exceeded in each year for which TAL and any
other measures are recommended: Commercial and recreational catch data;
discards; current estimates of F; stock status; recent estimates of
recruitment; virtual population analysis results; levels of
noncompliance by fishermen or individual states; impact of size/mesh
regulations; sea sampling data; impact of gear other than otter trawls
and gill nets on the mortality of spiny dogfish; and any other relevant
information.
(b) * * *
(4) Trip limits;
(5) Changes to the Northeast Region SBRM, including the CV-based
performance standard, fishery stratification, and/or reports; or
(6) Other gear restrictions.
* * * * *
0
19. In Sec. 648.237, paragraph (a)(1) is revised to read as follows:
Sec. 648.237 Framework provisions.
(a) * * *
(1) Adjustment process. After the Councils initiate a management
action, they shall develop and analyze appropriate management actions
over the span of at least two Council meetings. The Councils shall
provide the public with advance notice of the availability of both the
proposals and the analysis for comment prior to, and at, the second
Council meeting. The Councils' recommendation on adjustments or
additions to management measures must come from one or more of the
following categories: Minimum fish size; maximum fish size; gear
requirements, restrictions or prohibitions (including, but not limited
to, mesh size restrictions and net limits); regional gear restrictions;
permitting restrictions and reporting requirements; recreational
fishery measures (including possession and size limits and season and
area restrictions); commercial season and area restrictions; commercial
trip or possession limits; fin weight to spiny dogfish landing weight
restrictions; onboard observer requirements; commercial quota system
(including commercial quota allocation procedures and possible quota
set-asides to mitigate bycatch, conduct scientific research, or for
other purposes); recreational harvest limit; annual quota specification
process; FMP Monitoring Committee composition and process; description
and identification of essential fish habitat; description and
identification of habitat areas of particular concern; overfishing
definition and related thresholds and targets; regional season
restrictions (including option to split seasons); restrictions on
vessel size (length and GRT) or shaft horsepower; target quotas;
measures to mitigate marine mammal entanglements and interactions;
regional management; changes to the Northeast Region SBRM, including
the CV-based performance standard, the means by which discard data are
collected/obtained, fishery stratification, reports, and/or industry-
funded observers or observer set-aside program; any other management
measures currently included in the Spiny Dogfish FMP; and measures to
regulate aquaculture projects.
* * * * *
0
20. In Sec. 648.260, paragraph (b) introductory text is revised to
read as follows:
Sec. 648.260 Specifications.
* * * * *
(b) Development of specifications. In developing the management
measures and specifications, the PDT shall review at least the
following data, if available: Commercial catch data; current estimates
of fishing mortality and catch-per-unit-effort (CPUE); discards; stock
status; recent estimates of recruitment; virtual population analysis
results and other estimates of stock size; sea sampling, port sampling,
and survey data or, if sea sampling data are unavailable, length
frequency information from port sampling and/or surveys; impact of
other fisheries on the mortality of red crabs; and any other relevant
information.
* * * * *
0
21. In Sec. 648.293, paragraphs (a)(1)(xiv) and (xv) are revised and
paragraph (a)(1)(xvi) is added to read as follows:
Sec. 648.293 Framework specifications.
(a) * * *
(1) * * *
(xiv) Habitat areas of particular concern,
(xv) Set-aside quotas for scientific research, and
(xvi) Changes to the Northeast Region SBRM, including the CV-based
performance standard, the means by which discard data are collected/
obtained, fishery stratification, reports, and/or industry-funded
observers or observer set-aside programs.
* * * * *
0
22. In Sec. 648.321, paragraphs (b)(19) and (b)(20) are revised and
paragraph (b)(21) is added to read as follows:
Sec. 648.321 Framework adjustment process.
* * * * *
(b) * * *
(19) OY and/or MSY specifications;
(20) Changes to the Northeast Region SBRM, including the CV-based
performance standard, the means by which discard data are collected/
obtained, fishery stratification, reports, and/or industry-funded
observers or observer set-aside programs; and
[[Page 4758]]
(21) Any other measures contained in the FMP.
* * * * *
[FR Doc. E8-1436 Filed 1-25-08; 8:45 am]
BILLING CODE 3510-22-S