[Federal Register Volume 76, Number 42 (Thursday, March 3, 2011)]
[Proposed Rules]
[Pages 11858-11890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4395]
[[Page 11857]]
Vol. 76
Thursday,
No. 42
March 3, 2011
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 648
Magnuson-Stevens Fishery Conservation and Management Act Provisions;
Fisheries of the Northeastern United States; Northeast (NE)
Multispecies Fishery; Framework Adjustment 45; Proposed Rule
Federal Register / Vol. 76 , No. 42 / Thursday, March 3, 2011 /
Proposed Rules
[[Page 11858]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 100923469-1002-02]
RIN 0648-BA27
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Northeast (NE)
Multispecies Fishery; Framework Adjustment 45
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes regulations to implement measures in Framework
Adjustment (FW) 45 to the NE Multispecies Fishery Management Plan
(FMP). FW 45 was developed by the New England Fishery Management
Council (Council) to prevent overfishing, rebuild overfished stocks,
achieve optimum yield (OY), and minimize the economic impact of
management measures on affected vessels, pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
This action would revise the biological reference points and stock
status for pollock, update annual catch limits (ACLs) for several
stocks for fishing years (FYs) 2011-2012, adjust the rebuilding program
for Georges Bank (GB) yellowtail flounder, increase scallop vessel
access to the Great South Channel Exemption Area, approve five new
sectors, modify the existing dockside and at-sea monitoring
requirements, revise several sector administrative provisions,
establish a Gulf of Maine (GOM) Cod Spawning Protection Area, and
refine measures affecting the catch of limited access NE multispecies
Handgear A vessels. This action would disapprove the Council's proposed
catch limits for GB yellowtail flounder for FY 2011, and instead
propose new catch limits for this stock through emergency action
authority based on new flexibility provided by the International
Fisheries Agreement Clarification Act. This action is necessary to
ensure that the fishery is managed on the basis of the best available
science, to comply with the acceptable biological catch (ABC) control
rules adopted in Amendment 16 to the FMP, and to enhance the viability
of the fishery following the transition to sector management in 2010.
DATES: Comments must be received by March 18, 2011.
ADDRESSES: You may submit comments, identified by 0648-BA27, by any of
the following methods:
Electronic submissions: Submit all electronic public
comments via the Federal eRulemaking Portal: http://www.regulations.gov.
Fax: (978) 281-9135, Attn: Douglas Christel.
Mail: Paper, disk, or CD-ROM comments should be sent to
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries
Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the
outside of the envelope, ``Comments on the Proposed Rule for NE
Multispecies Framework Adjustment 45.''
Instructions: All comments received are a part of the public record
and will generally be posted to http://regulations.gov without change.
All Personal Identifying Information (for example, name, address, etc.)
voluntarily submitted by the commenter may be publicly accessible. Do
not submit Confidential Business Information or otherwise sensitive or
protected information. NMFS will accept anonymous comments (enter N/A
in the required fields, if you wish to remain anonymous). You may
submit attachments to electronic comments in Microsoft Word, Excel,
WordPerfect, or Adobe PDF file formats only.
Copies of FW 45, its Regulatory Impact Review (RIR), a draft of the
environmental assessment (EA) prepared for this action, and the Initial
Regulatory Flexibility Act (IRFA) analysis prepared by the Council are
available from Paul J. Howard, Executive Director, New England Fishery
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The
IRFA analysis assessing the impacts of the proposed measures on small
entities and describing steps taken to minimize any significant
economic impact on such entities is summarized in the Classification
section of this proposed rule. The FW 45 EA/RIR/IRFA, as well as the
relevant analyses for Amendment 16 and other recent actions, are also
accessible via the Internet at http://www.nefmc.org/nemulti/index.html
or http://www.nero.noaa.gov. Copies of recent stock assessments for
stocks managed by the FMP are also accessible via the Internet at
http://www.nefsc.noaa.gov/groundfish.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
rule should be submitted to the Regional Administrator at the address
above and to the Office of Management and Budget (OMB) by e-mail at
[email protected], or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Douglas W. Christel, Fishery Policy
Analyst, phone: 978-281-9141, fax: 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
The FMP specifies management measures for 16 species in Federal
waters off the New England and Mid-Atlantic coasts, including both
large-mesh and small-mesh species. Small-mesh species include silver
hake (whiting), red hake, offshore hake, and ocean pout; while large-
mesh species include Atlantic cod, haddock, yellowtail flounder,
pollock, American plaice, witch flounder, white hake, windowpane
flounder, Atlantic halibut, winter flounder, redfish, and Atlantic
wolffish. Large-mesh species are further divided into 19 individual
stocks and are referred to as ``regulated species,'' that, along with
ocean pout, are collectively referred to as groundfish.
A major overhaul of the FMP occurred in 2004 with implementation of
Amendment 13 on May 1, 2004 (April 27, 2004; 69 FR 22906), which
included the establishment of rebuilding programs for stocks managed by
the FMP and measures necessary to end overfishing, rebuild overfished
stocks, and help mitigate the economic impacts of effort reductions in
the fishery to the extent practicable. Amendment 13 also established a
biennial adjustment process intended to update status determination
criteria, adopt and update rebuilding programs, and revise management
measures necessary to achieve the objectives of the FMP and the
mandates of applicable law. A second substantial revision to the FMP
came in 2010, with the implementation of Amendment 16 (April 9, 2010;
75 FR 18262). Amendment 16 updated status determination criteria for
all regulated NE multispecies and ocean pout stocks based upon revised
assessments for all stocks; adopted rebuilding programs for stocks
newly classified as being overfished and subject to overfishing; and
revised management measures to achieve the conservation objectives of
the FMP and to minimize the economic impacts of such measures,
including significant revisions to the sector management measures,
reporting requirements, trip limits, and days-at-
[[Page 11859]]
sea (DAS) measures. Amendment 16 not only established a process for
specifying ABCs and ACLs and distributing available catch among
components of the fishery that catch regulated species and ocean pout,
but it also specified accountability measures (AMs) necessary to
prevent overfishing on these stocks and addressed overages of ACLs, as
required by the Magnuson-Stevens Act. 16 U.S.C. 1801 et seq. In another
action, FW 44 (April 9, 2010; 75 FR 18356), NMFS set the ACLs for FYs
2010 through 2012, and distributed such allocations among the various
components of the fishery that catch these stocks. An April 9, 2010,
final rule (75 FR 18113) implemented the approval of 17 new sectors in
FY 2010, and specified their respective annual catch entitlements
(ACEs, or sector quotas) for each stock allocated to sectors pursuant
to Amendment 16.
The Council developed FW 45 as part of the established framework
and biennial adjustment process to revise measures necessary to prevent
overfishing and rebuild overfished stocks, while achieving OY in the
fishery and minimizing economic impact to the extent practicable.
Pursuant to the Magnuson-Stevens Act, the Council has proposed FW 45 to
NMFS, which has reviewed the proposal and is presenting it for public
review. If implemented, FW 45 would set and update ACLs for several
stocks pursuant to the process established by Amendment 16 and FW 44.
Updated stock assessments for pollock and GB yellowtail flounder
conducted in 2010 require the ACLs originally established under FW 44
to be updated based upon revised stock status for pollock and a revised
rebuilding program for GB yellowtail flounder proposed in FW 45.
Further, following the transition to sectors under Amendment 16, the
Council realized that several changes to existing measures are
necessary to make the Amendment 16 measures work more effectively, as
described below.
Proposed Measures
The following summarizes the measures proposed by the Council in FW
45, based on the order in which applicable provisions appear in the
regulations at 50 CFR part 648. These measures build upon the
provisions implemented by previous management actions, and are intended
to either supplement or replace existing regulations, as described for
each measure. This proposed rule also includes revisions to regulations
that are not specifically identified in FW 45, but that are necessary
to correct errors in, or clarify, existing provisions, as described
further below. The proposed regulations implementing measures in FW 45
were deemed by the Council to be consistent with FW 45, and necessary
to implement such provisions pursuant to section 303(c) of the
Magnuson-Stevens Act through a January 11, 2011, letter from the
Council Chairman to the Regional Administrator (RA).
1. Status Determination Criteria for Pollock
Amendment 16 updated the status determination criteria for existing
NE multispecies regulated species and ocean pout stocks based upon the
best available scientific information regarding stock status resulting
from the Groundfish Assessment Review Meeting (GARM III), a
comprehensive stock assessment for all species managed by the FMP,
conducted in August 2008. GARM III originally characterized pollock as
overfished and subject to overfishing. However, due to the high
uncertainty of the determination of pollock stock status, as noted in
the GARM III stock assessment conclusions, and on the advice from the
Council's Scientific and Statistical Committee (SSC), the body charged
by the Magnuson-Stevens Act with recommending an ABC to the Council for
each stock, an updated pollock stock assessment was conducted in 2010.
The pollock peer-reviewed benchmark stock assessment review (Stock
Assessment Workshop, or SAW, 50) was completed in June 2010, with the
final summary report completed on July 14, 2010. This assessment
determined that pollock is not overfished or subject to overfishing.
Thus, this species no longer requires the rebuilding program
established in Amendment 16. Based upon this updated assessment, NMFS
implemented an emergency action (July 20, 2010; 75 FR 41996) to
incorporate the results of this assessment and update the status
determination criteria and the associated FY 2010 ABC and ACL for this
species. On December 1, 2010 (75 FR 74661), this emergency action was
continued through the end of FY 2010 (April 30, 2011).
In FW 45, NMFS proposes to integrate the results of the 2010
pollock stock assessment into the FMP. Table 1 lists the proposed
revised status determination criteria, with numerical estimates of
these parameters listed in Table 2. The revised biomass target
parameter for pollock, where spawning stock biomass is at maximum
sustainable yield (SSBMSY) or its proxy, is SSB at 40
percent maximum spawning potential (MSP). The maximum fishing mortality
rate (F) threshold is the FMSY proxy, or
F40MSP.
Table 1--Description of the Proposed Pollock Status Determination Criteria
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Biomass target Minimum biomass Maximum fishing mortality
Species (Btarget) threshold threshold
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Pollock............................ SSBMSY: SSB/R (40%MSP) \1/2\ Btarget......... F40MSP
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Table 2--Numerical Estimates for the Proposed Pollock Status Determination Criteria
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Biomass target Maximum fishing
Species (SSBMSY or proxy) in mortality threshold MSY in mt
mt (FMSY or proxy)
----------------------------------------------------------------------------------------------------------------
Pollock............................ 91,000................ 0.41.................. 16,200
----------------------------------------------------------------------------------------------------------------
2. Rebuilding Program for GB Yellowtail Flounder
In 2004, GARM II concluded that the GB yellowtail flounder stock
was overfished and subject to overfishing. In response, the Council
developed a rebuilding program for this stock in FW 42 (October 23,
2006; 71 FR 62156). That rebuilding program incorporated an adaptive
rebuilding strategy that was expected to rebuild the stock by 2014 with
a 75-percent probability of success, and was anticipated to rebuild
this stock in 8 years, 2 years ahead of the
[[Page 11860]]
maximum rebuilding period allowed by section 304(e)(4) of the Magnuson-
Stevens Act. The intent of that rebuilding program was to rebuild the
stock as quickly as possible, consistent with efforts to jointly manage
this stock with Canada as part of the U.S./Canada Resource Sharing
Understanding (Understanding).
More recent estimates of the status of this stock conducted by the
Transboundary Resource Assessment Committee (TRAC) in July 2010
indicate that overfishing is not occurring, but that the stock is still
in an overfished condition (TRAC 2010/05). This estimate is affected by
updated estimates of the 2005 year class that suggest this year class
is much smaller than previously thought. This report concludes that it
is not possible to rebuild this stock by 2014, even at F = 0.
Accordingly, as part of FW 45, the Council proposes to revise the GB
yellowtail flounder rebuilding program to rebuild the stock by 2016,
with a 50-percent probability of success to extend the rebuilding
program to the maximum extent allowed by applicable law. This revision
would extend the rebuilding program for this stock out to the maximum
10-year rebuilding period allowed by the Magnuson-Stevens Act and lower
the probability of success from 75 percent to 50 percent in order to
maximize the amount of GB yellowtail flounder that could be caught
while the stock rebuilds.
3. Overfishing Levels and ABCs for Particular Stocks
NMFS also proposes in FW 45 to revise the overfishing levels (OFLs)
and ABCs of particular stocks, including GB cod, GB haddock, GB
yellowtail flounder, and pollock for FYs 2011 and 2012. Revisions to
the OFLs and ABCs for pollock and GB yellowtail flounder are based upon
the updated assessments and revised rebuilding strategies for these
stocks, as described in Items 1 and 2 of this preamble, respectively,
and by the 2010 International Fisheries Agreement Clarification Act for
GB yellowtail flounder, as described in Item 5 of this preamble.
Revisions to the OFLs and ABCs for the GB cod and GB haddock stocks are
based upon updated TRAC assessments of the eastern components of the
stock. It is anticipated that the FY 2012 values of the ABCs for GB
cod, GB haddock, and GB yellowtail flounder will be revised during
2011, based on new transboundary stock assessments conducted by the
TRAC, and will likely be specified again in conjunction with the FY
2012 U.S./Canada Management Area total allowable catch (TAC) levels, as
further described in Item 5 of this preamble. Table 3 contains the OFLs
and ABCs for FYs 2011 and 2012 proposed under FW 45 with the exception
of GB yellowtail flounder, as noted below. The expected economic
impacts of the proposed ABCs are summarized below.
For GB yellowtail flounder, the FY 2011 U.S. ABC shown in Table 3
represents a revised shared U.S./Canada Management Area TAC based upon,
and consistent with, determinations and decisions about this stock by
the Transboundary Management Guidance Committee (TMGC), pursuant to the
Understanding in a February 9, 2011, conference call. This meeting of
the TMGC was precipitated based on provisions of the recently enacted
International Fisheries Agreement Clarification Act which provides
increased flexibility to NMFS and the Council in setting higher fishing
limits for those portions of stocks subject to the Understanding. This
Act states that decisions made under that Understanding should be
considered as ``management measures under an international agreement''
that ``dictate otherwise'' for purposes of section 304(e)(4)(A)(ii) of
the Act (16 U.S.C. 1854(e)(4)(A)(ii)) and that the Council and the
Secretary of Commerce may ``establish catch levels for those portions
of fish stocks within their respective geographic areas covered by the
Understanding on the date of enactment of this Act that exceed the
catch levels otherwise required under the Northeast Multispecies
Fishery Management Plan if * * * overfishing is ended immediately.''
(Sec. 202(2) and (3) of the International Fisheries Agreement Act).
Because the U.S./Canada Management Area represents the entire stock
area for GB yellowtail flounder, the shared U.S./Canada Management Area
TAC for this stock also represents the ABC for this stock. The revised
ABC agreed to by the TMGC is being proposed consistent with the
provisions of the International Fisheries Agreement Clarification Act
and the harvest strategy of the Understanding that requires overfishing
to be prevented and the facilitation of the rebuilding of overfished
stocks.
The revised ABC recommended by the TMGC is higher than that
approved by the Council's SSC and adopted by the Council in FW 45
(i.e., a U.S. ABC of 1,099 mt for FY 2011 and 1,222 mt for FY 2012).
Because this revised ABC was not considered by the Council in FW 45,
NMFS proposes to implement the revised FY 2011 ABC and ACL for this
stock as a separate but parallel action to FW 45 pursuant to its
emergency action authority specified in section 305(c) of the Magnuson-
Stevens Act. NMFS has determined that the adoption of the International
Fisheries Agreement Clarification Act meets the criteria for proposing
this emergency action, as explained further in Item 5 of this preamble.
Because this proposed revision would be made under the authority to
implement a Secretarial emergency action pursuant to section 305(c) of
the Magnuson-Stevens Act instead of a Council action, the involvement
of the SSC in the specification of the ABC for this stock is not
specifically required, although the emergency rule must still be
consistent with the best scientific information available. Although
NMFS could wait for the SSC to consider the new assessment, the time
necessary to complete such a process would unduly delay the possibility
of increasing the TAC for this stock as quickly as possible and
addressing the emergency exigencies of this matter. NMFS has determined
that revising the ABC and ACL through this proposed emergency action is
consistent with best scientific information available. The duration of
this proposed revision to the GB yellowtail flounder ABC is limited by
the Magnuson-Stevens Act to 180 days, but may be extended to make the
revised ABC and ACL effective for the duration of FY 2011 (through
April 30, 2012), consistent with the authority in the Magnuson-Stevens
Act to extend emergency actions for up to an additional 186 days.
For FYs 2010-2012, the SSC recommended that the ABC for GOM winter
flounder be specified based on 75 percent of recent catches of this
stock as part of FW 44. For FY 2011, the Council tasked the SSC with
reviewing the GOM winter flounder catches for FY 2009 and any
additional survey information collected since GARM III to determine
whether revisions to the FY 2011 and 2012 ABCs are necessary for this
stock. The SSC considered available information at its August 2010
meeting, as well as an alternative approach to determine the ABC for
GOM winter flounder by the Groundfish Plan Development Team (PDT) that
utilized an area-swept survey approach to determine the ABC for this
stock. However, the SSC was concerned that increased catch resulting
from the PDT's alternative approach to specifying ABC for this stock
could compromise stock status or rebuilding, given lingering
uncertainty regarding the information necessary to evaluate the risks
of jeopardizing stock status. Therefore, the SSC did not recommend any
changes to the ABC for this stock, and the FW 44
[[Page 11861]]
values for FY 2011 and FY 2012 are maintained.
The OFL value for a stock is calculated using the estimated stock
size for a particular year, and represents the amount of catch
associated with FMSY, i.e., the F that, if applied over the
long term, would result in MSY. The ABCs are those recommended to the
Council's SSC following the SSC's August 25-26, 2010, meeting and its
reports to the Council at the Council's September and November 2010
meetings. The ABCs recommended by the SSC are lower than the OFLs in
order to take into account scientific uncertainty in setting catch
limits. The ABC value for a stock is calculated using the estimated
stock size for a particular year based upon the ABC control rules
established by Amendment 16. The ABC represents the amount of catch
associated with 75 percent of FMSY, or the F rate required
to rebuild the stock within the defined rebuilding time period
(Frebuild), whichever is lower, with the exception of GOM
and Southern New England (SNE)/Mid-Atlantic (MA) winter flounder. For
SNE/MA winter flounder, the ABC recommendations are based on estimates
of discards that result from recent management measures. For GOM winter
flounder, the ABC recommendation is based on 75 percent of recent
catches.
Table 3--Proposed Revisions to Overfishing Levels and Acceptable Biological Catches
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OFL (mt, live weight) U.S. ABC (mt, live weight)
Stock -------------------------------------------------------------------------------------------------------
FY 2011 FY 2012 FY 2013 FY 2014 FY 2011 FY 2012 FY 2013 FY 2014
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Georges Bank cod................................ 7,311 * 8,090 NA NA 4,766 * 5,364 NA NA
Georges Bank haddock............................ 59,948 * 51,150 NA NA 34,244 * 29,016 NA NA
Georges Bank yellowtail flounder................ 3,495 * 4,335 NA NA ** 1,458 NA NA NA
White hake...................................... 4,805 5,306 NA NA 3,295 3,638 NA NA
Pollock......................................... 21,853 19,887 20,060 20,554 16,900 15,400 15,600 16,000
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* Preliminary estimates that may be revised in 2012 based on TRAC and TMGC considerations.
** This value represents an increase from the U.S. ABC adopted by the Council in FW 45 based on the flexibility afforded by the International Fisheries
Agreement Clarification Act and described further in Item 5 of this preamble.
4. ACLs
Similar to adjustments in the OFLs and ABCs described in Item 3 of
this preamble, FW 45 proposes revisions to the ACLs for several stocks,
including GB cod, GB haddock, GB yellowtail flounder, white hake, and
pollock. Pursuant to Magnuson-Stevens Act requirements and Amendment
16, the Council recommended ACLs that are lower than the ABCs, in order
to account for management uncertainty. The total ACL for a stock
represents the catch limit for a particular FY, considering both
biological and management uncertainty, and the limit includes all
sources of catch (landed and discards) and all fisheries (commercial
and recreational groundfish fishery, State-waters catch, and non-
groundfish fisheries). The division of a single ABC value for each
stock (for a particular FY) into sub-ACLs, and ACL-subcomponents,
accomplishes three objectives: (1) The ABC is sub-divided to account
for all components of the fishery and sources of fishing mortality; (2)
allocations are made for certain fisheries; and (3) management
uncertainty is taken into account, as described in Appendix II of FW
45.
For FW 45 the ABC was sub-divided into fishery components on a
stock-specific manner, prior to the consideration of management
uncertainty. The following components of the fishery are reflected in
the total ABC: Canadian share/allowance (expected Canadian catch); U.S.
ABC (available to the U.S. fishery after accounting for Canadian
catch); State waters (portion of ABC expected to be caught from State
waters outside Federal management); other sub-components (expected
catch by other non-groundfish fisheries such as exempted fisheries);
scallop fishery; mid-water trawl fishery; commercial groundfish
fishery; and recreational groundfish fishery. The percentage of the ABC
deducted for anticipated catch from State waters is between 1 and 10
percent for most stocks, but for Atlantic halibut and GOM winter
flounder, 50 percent and 25 percent of the ABC of each stock is set
aside for State waters catch, respectively. The amount deducted for
anticipated catch of other regulated species and ocean pout in other
sub-components of the fishery is between 4 to 6 percent of the ABC for
each stock, with the exception of windowpane flounder stocks, in which
29 percent is set aside for such catch.
The allocation of yellowtail flounder to the scallop fishery is not
changed by this framework. Under FW 44, the Council elected to allocate
100 percent of the estimated GB and SNE/MA yellowtail flounder bycatch
associated with the projected scallop catch in FY 2010, and 90 percent
of the yellowtail flounder bycatch projected for the scallop fishery in
FYs 2011 and 2012. Based on doubts about accurately estimating expected
bycatch in the scallop fishery and not wanting to unnecessarily
constrain the scallop fishery, the Council voted to maintain the
specific FW 44 allocations of yellowtail flounder to the scallop
fishery under FW 45, rather than base yellowtail flounder allocations
on current information about anticipated bycatch amounts in the scallop
fishery. Thus, the SNE/MA yellowtail flounder allocations to the
scallop fishery listed in Tables 5 and 6 are the same amounts
implemented under FW 44 in 2010 (the allocation of SNE/MA yellowtail
flounder remain at 82 and 127 mt, live weight, respectively during FYs
2011 and 2012), while the GB yellowtail flounder allocations to the
scallop fishery listed in Tables 11 and 12 remain at 200.8 and 307.5
mt, live weight, respectively, during FYs 2011 and 2012. No specific
allocation of Cape Cod (CC)/GOM yellowtail flounder would be made to
the scallop fishery, because the incidental catches of this stock by
the scallop fishery are relatively low. Catches of this stock will be
considered part of the ``other sub-component'' of the ACL.
The FY 2011 and 2012 yellowtail flounder allocations to the scallop
fishery are characterized as sub-ACLs to reflect the fact that the
Council adopted AMs for the scallop fishery that would be responsive to
yellowtail flounder catches in excess of these sub-ACLs, as part of
Amendment 15 to the Atlantic Sea Scallop FMP at its November 2010
meeting. A proposed rule soliciting comment on that action is expected
to
[[Page 11862]]
be published shortly, with a final decision to approve, partially
approve, or disapprove such measures expected in spring 2011. Current
regulations set a cap on the amount of yellowtail flounder that may be
harvested from the scallop access areas from the SNE/MA and GB
yellowtail flounder stock areas. Specifically, current regulations cap
yellowtail flounder harvest from scallop access areas at 10 percent of
the ``total TAC'' for each of the stock areas. In light of the proposed
ACL components, ``total TAC'' means ``total ACL.'' For FY 2011, this
means 10 percent of 1,416 mt (141.6 mt) for GB yellowtail flounder,
based on the proposed total ACL listed in Table 11 proposed based on
the flexibility afforded by the International Fisheries Agreement
Clarification Act, as further described in Item 4 of this preamble
below. Because the U.S./Canada Management Area represents the entire
stock area for GB yellowtail flounder, the U.S./Canada Management Area
TAC for this stock that is available to the U.S. fishery also
represents the ACL for this stock. The specification and distribution
of the GB yellowtail flounder ACL is discussed further in Item 5 of
this preamble and shown in Tables 11 and 12.
Under this action, the mid-water trawl fishery would be allocated
0.2 percent of the U.S. ABC for GB and GOM haddock. The values for the
allocations to the mid-water trawl fishery listed in Table 5 are
slightly less than 0.2 percent, due to the 7-percent reduction of these
allocations to account for management uncertainty for this stock. For
example, the FY 2011 ABC of 32,244 mt was multiplied by 0.002 (32,244
mt x .002 = 68.5 mt), and then reduced by 4.79 mt (68.5 mt x 0.07 =
4.79 mt) to arrive at the proposed allocation of 64 mt. Because the
herring fishery already has AMs associated with this allocation that
were developed as part of FW 43 (August 15, 2006; 71 FR 46871), all of
the haddock allocations to the mid-water trawl fishery are
characterized as sub-ACLs.
The concept of management uncertainty for the purpose of developing
ACLs, as outlined in the process specified in Amendment 16 and
described in detail in FW 44, was characterized as the likelihood that
management measures will result in a level of catch that is greater
than the catch objective. Consistent with that process, management
uncertainty was evaluated for each stock, considering the following
elements of the fishery and the FMP: Enforceability; monitoring
adequacy; precision of management tools; latent effort; and catch of
groundfish in non-groundfish fisheries. For most stocks and components
of the fishery (ABC components), the default adjustment (reduction) to
the catch level for a fishery component was 5 percent. For stocks with
less management uncertainty, the adjustment was 3 percent, and for
those stocks or components with more management uncertainty, the
adjustment was 7 percent.
Tables 5 through 8 list the proposed distribution of the total ACL
for stocks affected by measures in FW 45 to the groundfish fishery, the
scallop fishery, the mid-water trawl herring fishery, State waters
fisheries, and other fishery sub-components, such as exempted
fisheries. A full list of the FY 2011 ACLs will be sent to NE
multispecies permit holders and posted on the NMFS Northeast Regional
Office Web site (http://www.nero.noaa.gov) once finalized. As noted in
the FW 44 final rule, while ACLs are specified through FY 2012 for most
stocks, it is likely that the Council will adopt ACLs for FYs 2012
through 2014 though a future Council action. Therefore, ACLs specified
through FY 2012 in FW 44 and proposed in this action for FW 45 will
only be implemented if the anticipated Council action is delayed. In
contrast, the pollock ACLs are not expected to be revisited until FY
2013, with any changes effective for FY 2014. The proposed ACL listed
in Table 5 for white hake corrects an error published in Table 4 of
both the FW 44 proposed (February 1, 2010; 75 FR 5021) and final rules,
respectively, that listed the commercial sub-ACL for white hake for FY
2011 as 2,566 mt (the FY 2010 value) instead of the correct value of
2,974 mt. For a detailed description of the process used to estimate
management uncertainty and calculate ACLs as part of FW 45, refer to
Appendix II of the FW 45 EA (see ADDRESSES).
Table 5--Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Groundfish sub- Mid-water trawl State waters ACL Other ACL sub-
Stock Total ACL ACL Scallop fishery herring fishery sub-component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB cod...................................... 4,540 4,301 0 0 48 191
GB haddock.................................. 32,616 30,840 0 64 342 1,370
SNE/MA yellowtail flounder.................. 641 524 82 0 0 27
White hake.................................. 3,138 2,974 0 0 33 132
Pollock..................................... 16,166 13,952 0 0 769 1,445
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 6--Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2012
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Groundfish sub- Mid-water trawl State waters ACL Other ACL sub-
Stock Total ACL ACL Scallop fishery herring fishery sub-component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB cod *.................................... 5,109 4,841 0 0 54 215
GB haddock *................................ 27,637 26,132 0 54 290 1,161
SNE/MA Yellowtail flounder.................. 936 759 127 0 0 40
White hake.................................. 3,465 3,283 0 0 36 146
Pollock..................................... 14,736 12,612 0 0 754 1,370
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Preliminary estimate that may be revised in 2012 based on Transboundary Resource Assessment Committee and Transboundary Resource Management Committee
considerations.
[[Page 11863]]
Table 7--Pollock Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2013
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Groundfish sub- Mid-water trawl State waters ACL Other ACL sub-
Stock Total ACL ACL Scallop fishery herring fishery sub-component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pollock..................................... 14,927 12,791 0 0 756 1,380
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 8--Pollock Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2014
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Groundfish sub- Mid-water trawl State waters ACL Other ACL sub-
Stock Total ACL ACL Scallop fishery herring fishery sub-component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pollock..................................... 15,308 13,148 0 0 760 1,400
--------------------------------------------------------------------------------------------------------------------------------------------------------
The commercial groundfish sub-ACL is further divided into the non-
sector (common pool vessels) sub-ACL and the sector sub-ACL, based on
the total vessel enrollment in all sectors and the cumulative Potential
Sector Contributions (PSCs) associated with those sectors. Table 9
lists the preliminary distribution of the groundfish sub-ACL between
common pool and sectors based on rosters submitted to NMFS as of
December 1, 2010. This distribution is different from the common pool
and sector sub-ACLs listed in the EA for FW 45, as those were based
upon preliminary sector roster information and do not reflect updated
rosters submitted to NMFS. However, this distribution is the same as
the sector sub-ACLs and ACE specified for each sector listed in the
proposed rule to approve sector operations plans for FY 2011. That rule
uses sector rosters submitted to NMFS as of December 1, 2010, to
calculate each individual sector's ACE for FY 2011, and which are
expected to publish soon. FY 2011 sector rosters will not be finalized
until May 1, 2011, because the owners of individual permits signed up
to participate in sectors have until April 30, 2011, to drop out of a
sector and fish in the common pool. Therefore, it is possible that the
FY 2011 sector sub-ACL listed in Table 9 and the proposed rule to
approve the FY 2011 sector operations plans will be reduced at a later
date, and the common pool sub-ACL will increase, due to vessels leaving
sectors and entering the common pool after publication of the FW 45
final rule and specification of ACLs for FY 2011.
Despite such changes, the proposed groundfish sub-ACL (common pool
sub-ACL plus the sector sub-ACL) listed in Tables 5 through 8 would not
likely change. Based on the final rosters, NMFS intends to publish a
rule in early May 2011 to modify these sub-ACLs, and notify the public
if these numbers change. In addition, it is almost certain that all of
the FY 2012 sub-ACLs for the common pool and sectors will change and be
re-specified prior to FY 2012 due to annual changes to the sector
rosters and changes to the ABCs for GB cod, GB haddock, and GB
yellowtail flounder based on the specification of Canadian TACs for
these stocks, as described above in Item 5 of this preamble.
Table 9--Preliminary Distribution of Groundfish Sub-ACL Between Common Pool and Sector Vessels
[Mt, live weight]
----------------------------------------------------------------------------------------------------------------
Groundfish sub-ACL Common pool sub-ACL Sector sub-ACL
Stock -----------------------------------------------------------------------------
FY 2011 FY 2012 * FY 2011 FY 2012 * FY 2011 FY 2012 *
----------------------------------------------------------------------------------------------------------------
Georges Bank cod.................. 4,301 4,841 99 111 4,202 4,730
Georges Bank haddock.............. 30,840 26,132 129 109 30,711 26,023
Georges Bank yellowtail flounder 1,142 1,142 17.4 17.4 1,124.6 1,124.6
**...............................
White hake........................ 2,974 3,283 35 39 2,939 3,244
Pollock........................... 13,952 12,612 138 125 13,814 12,487
----------------------------------------------------------------------------------------------------------------
* Preliminary estimate that may be revised in 2012 based on updated sector rosters and Transboundary Resource
Assessment Committee and Transboundary Resource Management Committee considerations.
** These values represent an increase from the ACLs adopted by the Council in FW 45 based on the flexibility
afforded by the International Fisheries Agreement Clarification Act and described further in Item 5 of this
preamble.
5. Annual Specifications for the U.S./Canada Management Area
The FMP specifies a procedure for setting annual hard TAC levels
(i.e., TACs that, when reached, will trigger a regulatory response in
the form of area closures or other restrictions) for Eastern GB cod,
Eastern GB haddock, and GB yellowtail flounder in the U.S./Canada
Management Area. The regulations governing the annual development of
TACs were authorized by Amendment 13 to the FMP in order to be
consistent with the Understanding, an informal agreement between the
Northeast Region of NMFS and the Maritimes Region of the Department of
Fisheries and Ocean of Canada (DFO) that outlines a process for the
management of the shared GB groundfish resources. The Understanding
specifies an allocation of TAC for these three stocks for each country,
based on a formula that considers historical catch percentages and
current resource distribution.
Annual TACs for these stocks are determined through a process
involving the Council, the TMGC, and the U.S./Canada Transboundary
Resources Steering Committee. In August 2010, the TMGC approved the
2010 Guidance
[[Page 11864]]
Documents for Eastern GB cod and Eastern GB haddock, which included
recommended U.S. TACs for these stocks. The recommended FY 2011 TACs
were based on the most recent stock assessments (TRAC Status Reports
for 2010), and the fishing mortality strategy shared by NMFS, the
Department of Fisheries and DFO. The shared strategy has two parts: (1)
To maintain a low to neutral (less than 50-percent) risk of exceeding
the F limit reference (Fref = 0.18, 0.26, and 0.25 for cod, haddock,
and yellowtail flounder, respectively); and (2) when stock conditions
are poor, F should be further reduced to promote rebuilding. The
Council reviewed the recommendations of the TMGC and approved those
recommendations at its September 2010 meeting, as detailed further
below.
The TMGC concluded that the most appropriate combined U.S./Canada
TAC for Eastern GB cod for FY 2011 is 1,050 mt. This TAC corresponds to
the average of the pertinent two models for a low risk (less than 25-
percent) of exceeding the Fref of 0.18 (i.e., FMSY) in FY
2011, and a greater than neutral probability of biomass growth of up to
10 percent. The annual allocation shares between countries for FY 2011
are based on a combination of historical catches (10-percent weighting)
and resource distribution based on trawl surveys (90-percent
weighting). Applying this formula results in the proposed allocations
of 19 percent of the shared TAC to the U.S. and 81 percent for Canada,
or a FY 2011 quota of 200 mt for the U.S. and 850 mt for Canada.
For Eastern GB haddock, the TMGC concluded that the most
appropriate combined U.S./Canada Management Area TAC for FY 2011 is
22,000 mt. This corresponds to a 50-percent risk of exceeding Fref
(i.e., FMSY) of 0.26, assuming the entire TAC will be caught
in FY 2010. In reality, this TAC level represents a low risk level,
because the anticipated catch in FY 2010 will likely be less than the
FY 2010 TAC. The annual allocation share recommendations between
countries for FY 2010 are based on a combination of historical catches
(10-percent weighting) and resource distribution based on trawl surveys
(90-percent weighting). Applying this formula results in proposed
allocations of 43 percent of the shared TAC to the U.S. and 57 percent
to Canada, or a FY 2011 quota of 9,640 mt for the U.S. and 12,540 mt
for Canada.
For GB yellowtail flounder, the TMGC concluded that the most
appropriate combined U.S./Canada Management Area TAC for FY 2011 is
1,900 mt. This TAC corresponds to a low probability (< 25 percent) of
exceeding Fref (i.e., FMSY) of 0.25, and an
expected 10-percent increase in median biomass from 2011 to 2012. The
TMGC noted that F was below 0.15 in 2008 and 2009. The annual
allocation share recommendations between countries for FY 2011 are
based on a combination of historical catches (10-percent weighting) and
resource distribution based on trawl surveys (90-percent weighting).
This weighting results in proposed allocations of 55 percent of the
shared TAC to the United States and 45 percent to Canada, or a FY 2011
quota of 1,045 mt for the United States and 855 mt for Canada.
Table 10--2011 U.S./Canada TACs (Mt, Live Weight) and Percentage Shares (In Parentheses)
----------------------------------------------------------------------------------------------------------------
Eastern GB GB yellowtail
Eastern GB cod haddock flounder
----------------------------------------------------------------------------------------------------------------
Total Shared TAC....................................... 1,050 22,000 1,900
U.S. TAC............................................... 200 (19%) 9,640 (43%) 1,045 (55%)
Canada TAC............................................. 850 (81%) 12,540 (57%) 855 (45%)
----------------------------------------------------------------------------------------------------------------
This proposed rule notifies the public that a recent statute, the
International Fisheries Agreement Clarification Act, signed by
President Obama on January 4, 2011, affects the proposed FY 2011 U.S./
Canada Management Area TAC and ACL for GB yellowtail flounder.
Specifically, the new statute allows for additional flexibility under
the Understanding regarding the range of catch levels that may be
considered for GB yellowtail flounder, which allows for a higher yearly
TAC for this species.
As described in Item 4 of this preamble, the catch limits for GB
yellowtail flounder result from the annual recommendation of the TMGC,
a group that consists of NMFS and United States fishing industry
representatives and their counterparts in the DFO and the Canadian
fishing industry. Based on the new flexibility provided by the
International Fisheries Clarification Act, the TMGC held a conference
call on February 9, 2011, to reconsider the FY 2011 shared GB
yellowtail flounder TAC. During this conference call, the TMGC agreed
to a revised shared GB yellowtail flounder TAC for FY 2011 of 2,650 mt
(documentation of this call is available from NMFS, see ADDRESSES).
This revised TAC represents a 39 percent increase compared to the FY
2011 TAC (i.e., 1,900 mt) originally adopted by the Council as part of
FW 45, and would increase the amount of GB yellowtail flounder
allocated to the directed NE multispecies fishery (1,142 mt) by 44
percent compared to the amount of this stock originally allocated to
this fishery under FW 45 (790.7 mt). NMFS is considering implementing
this revised U.S./Canada Management Area TAC for this stock based upon
Secretarial emergency authority specified in section 305(c) of the
Magnuson-Stevens Act through the final rule that would implement
approved measures under FW 45. To put this in the context of the
Magnuson-Stevens Act, NMFS is proposing to disapprove the ABC, ACL, and
U.S./Canada Management Area TAC for GB yellowtail flounder adopted by
the Council in FW 45, and to replace them, through its emergency
authority, with the revised ABC, ACL, and U.S./Canada Management Area
TAC for this stock recommended by the TMGC following its February 9,
2011 conference call.
NMFS policy guidelines for the use of emergency rules (August 21,
1997; 62 FR 44421) specify the following three criteria that define
what an emergency situation is, and justification for final rulemaking:
(1) The emergency results from recent, unforeseen events or recently
discovered circumstances; (2) the emergency presents serious
conservation or management problems in the fishery; and (3) if the
emergency action is being implemented without prior public comment, the
emergency can be addressed through emergency regulations for which the
immediate benefits outweigh the value of advance notice, public
comment, and deliberative consideration of the impacts on participants
to the same extent as would be expected under the normal rulemaking
process. In this case, the third prong of these criteria is not
directly involved because NMFS is providing opportunity for prior
public comment. NMFS policy guidelines further provide that emergency
action is justified for certain situations where
[[Page 11865]]
emergency action would prevent significant direct economic loss, or to
preserve a significant economic opportunity that otherwise might be
foregone. The 2010 International Fisheries Agreement Act, signed into
law by President Obama on January 4, 2011, is considered to be a
``recently discovered circumstance,'' because the Council was not aware
if or when the legislation would be considered by Congress when it
adopted final measures under FW 45 at its November 2010 meeting. The
emergency presents serious management concerns because the low catch
limits for GB yellowtail flounder dictated by Magnuson-Stevens Act
requirements in force before the International Fisheries Agreement Act
was enacted could result in substantially reduced fishing effort and
decreased catch and revenue compared to the higher catch limits that
would be available if action is taken pursuant to the International
Fisheries Agreement Act. For the common pool fishery, when the
projected catch of GB yellowtail flounder is equal to the common pool
GB yellowtail flounder sub-ACL, such vessels may no longer fish in the
Eastern U.S./Canada Area, and may not possess yellowtail flounder
caught in the Western U.S./Canada Area. For vessels fishing in sectors,
when an individual sector's GB yellowtail flounder ACE is caught,
participating vessels may no longer fish in the U.S./Canada Management
Area. As a result of the loss of access to the Eastern U.S./Canada Area
(for common pool vessels) or the whole U.S./Canada Management Area (for
sector vessels), not only do vessels lose revenue associated with GB
yellowtail flounder, but they lose revenue associated with multiple
other stocks that are caught concurrently, such as GB winter flounder.
Emergency action to increase the GB yellowtail flounder ACL and U.S./
Canada Management Area TAC would enable additional economic opportunity
that could otherwise be forgone and, therefore, likely avoid economic
impacts from an unnecessarily low ACL for this stock, based upon
applicable law. Therefore, NMFS has determined that the current
situation meets the criteria for emergency action.
Because the U.S./Canada Management Area represents the entire stock
area for GB yellowtail flounder, the U.S./Canada Management Area TAC
for this stock that is available to the U.S. fishery also represents
the ACL for this stock. Thus, the revised GB yellowtail flounder TAC
proposed in this action also requires applicable changes to the ACL,
and how the ACL for this stock is distributed to the various components
of the fishery that catch this stock, that were adopted by the Council
in FW 45. The proposed revised GB yellowtail flounder ACL, sub-ACL, and
ACL sub-components are specified in Tables 11 and 12 for FYs 2011 and
2012, respectively. A revised U.S./Canada TAC for GB yellowtail
flounder would not affect the sub-ACL for the scallop fishery,
specified by FW 45 as 200.8 mt.
Table 11--Revised GB Yellowtail Flounder Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mid-Water trawl herring State waters ACL sub- Other ACL sub-
Total ACL Groundfish sub-ACL Scallop fishery fishery component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
1,416 1,142 200.8 0 0 73
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 12--Revised GB Yellowtail Flounder Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2012
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mid-water trawl herring State waters ACL sub- Other ACL sub-
Total ACL* Groundfish sub-ACL Scallop fishery fishery component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
1,426 1,046 307.5 0 0 77
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Preliminary estimate that may be revised in 2011 based on TRAC and TMGC considerations.
The regulations related to the Understanding, promulgated by the
final rule implementing Amendment 13, state that ``any overages of the
GB cod, haddock, or yellowtail flounder TACs that occur in a given
fishing year will be subtracted from the respective TAC in the
following fishing year.'' Therefore, if an analysis of the catch of the
shared stocks by U.S. vessels indicates that an over-harvest occurred
during FY 2010, the pertinent components of the ACL would be adjusted
downward in order to be consistent with the FMP and Understanding. If
an adjustment to one of the FY 2011 TACs of cod, haddock, or yellowtail
flounder is necessary, it will be done consistent with the
Administrative Procedure Act, and the fishing industry will also be
notified.
6. Incidental Catch TACs and Allocations to Special Management Programs
This proposed rule specifies incidental catch TACs applicable to
the NE multispecies special management programs (i.e., special access
programs (SAPs) and the Regular B DAS Program) for FYs 2011 and 2012,
based on the proposed common pool sub-ACLs listed in Item 4 of this
preamble. As noted above, FY 2011 sector rosters will not be finalized
until May 1, 2011, because permits currently enrolled in sectors have
until April 30, 2011, to drop out of a sector and fish in the common
pool. Therefore, the amount of the common pool sub-ACL may change based
upon changes to the number of vessels participating in the common pool
during FY 2011. Based on the final rosters, NMFS will publish a rule in
early May 2011 to modify these sub-ACLs, and notify the public if these
numbers change.
Incidental catch TACs are specified for certain stocks of concern
(i.e., stocks that are overfished or subject to overfishing) for common
pool vessels fishing in the special management programs, in order to
limit the amount of catch of stocks of concern that can be caught under
such programs. The Incidental Catch TACs proposed below are consistent
with the allocation of incidental catch TACs among special management
programs in the FMP. However, because pollock is no longer considered
overfished or subject to overfishing, FW 45 proposes to remove this
species from the list of stocks of concern, and eliminate the
incidental catch TAC for this stock.
[[Page 11866]]
The incidental catch TACs apply to catch (landings and discards)
that end on a Category B DAS (either Regular or Reserve B DAS). The
catch of stocks for which incidental catch TACs are specified on trips
that start under a Category B DAS and then flip to a Category A DAS do
not accrue toward such TACs, but rather the overall common pool sub-ACL
for that stock. The incidental catch TACs by stock based on the common
pool sub-ACL are shown in Table 13, while Tables 14 and 15 list the
distribution of these TACs among existing special management programs.
Table 13--Preliminary Common Pool Incidental Catch TACs by Stock for FY 2011-2012
[Mt, live weight]
----------------------------------------------------------------------------------------------------------------
Percentage of sub- 2011 Incidental 2012 Incidental
Stock ACL catch TAC catch TAC
----------------------------------------------------------------------------------------------------------------
GB cod................................................. 2 2.0 2.2
GOM cod................................................ 1 1.3 1.3
GB yellowtail flounder................................. 2 0.3 0.3
CC/GOM yellowtail flounder............................. 1 0.3 0.4
SNE/MA yellowtail flounder............................. 1 1.1 1.7
American plaice........................................ 5 3.9 4.1
Witch flounder......................................... 5 1.2 1.2
SNE/MA winter flounder................................. 1 7.3 7.6
GB winter flounder..................................... 2 0.3 0.3
White hake............................................. 2 0.7 0.8
----------------------------------------------------------------------------------------------------------------
Table 14--Distribution of Incidental Catch TACs Among Special Management Programs
[Mt, live weight]
----------------------------------------------------------------------------------------------------------------
Closed area I
Regular B DAS hook gear Eastern U.S./
Stock program (percent) haddock SAP Canada haddock
(percent) SAP (percent)
----------------------------------------------------------------------------------------------------------------
GB cod................................................. 50 16 34
GOM cod................................................ 100 na na
GB yellowtail flounder................................. 50 na 50
CC/GOM yellowtail flounder............................. 100 na na
SNE/MA yellowtail flounder............................. 100 na na
Plaice................................................. 100 na na
Witch flounder......................................... 100 na na
SNE/MA winter flounder................................. 100 na na
GB winter flounder..................................... 50 na 50
White hake............................................. 100 na na
Pollock................................................ 50 16 34
----------------------------------------------------------------------------------------------------------------
Table 15--Incidental Catch TACs for Special Management Programs by Stock for FY 2011-2012
[Mt, live weight]
----------------------------------------------------------------------------------------------------------------
Regular B DAS program Closed area I hook gear Eastern U.S./Canada
-------------------------- haddock SAP haddock SAP
Stock ---------------------------------------------------
FY 2011 FY 2012 FY 2011 FY 2012 FY 2011 FY 2012
----------------------------------------------------------------------------------------------------------------
GB cod............................ 1.0 1.1 0.3 0.4 0.7 0.8
GOM cod........................... 1.3 1.3 na na na na
GB yellowtail flounder............ 0.15 0.15 na na 0.1 0.1
CC/GOM yellowtail flounder........ 0.3 0.4 na na na na
SNE/MA yellowtail flounder........ 1.1 1.7 na na na na
American plaice................... 3.9 4.1 na na na na
Witch flounder.................... 1.2 1.2 na na na na
SNE/MA winter flounder............ 7.3 7.6 na na na na
GB winter flounder................ 0.1 0.2 na na 0.1 0.2
White hake........................ 0.7 0.8 na na na na
----------------------------------------------------------------------------------------------------------------
7. Great South Channel Exemption Area
The current regulations at Sec. 648.80 state that a vessel may not
fish in either the GOM or GB Exemption Areas unless it is fishing under
a NE multispecies or a scallop DAS, is fishing with exempted gear, or
is fishing in an exempted fishery, among other restrictions. Several
exempted fisheries were created by previous adjustments to the FMP
based on a procedure for adding, modifying, or deleting fisheries from
the list of exempted fisheries originally established by FW 9 to the
FMP on April 15, 1995 (60 FR 19364), and expanded in Amendment 7 on May
31, 1996 (61 FR 27710). A fishery may be exempted by the NMFS NE RA
after consultation with the Council, if the RA determines, based on
available data or information, that the bycatch of
[[Page 11867]]
regulated species of groundfish is, or can be reduced to, less than 5
percent by weight of the total catch, and that such exemption will not
jeopardize the fishing mortality objectives of the FMP.
On October 25, 2005, a request was submitted on behalf of the
General Category scallop fleet to establish an additional exempted
scallop dredge fishery in the GOM/GB Exemption Area, in the vicinity of
traditional scalloping grounds within the area known as the Great South
Channel, off Cape Cod, MA. This request was approved, and the Great
South Channel Exemption Area was created, on August 31, 2006 (71 FR
51779). That rule allowed vessels issued a general category scallop
permit, then an open access permit, and vessels with limited access
scallop permits not fishing under a scallop DAS allocation, to use
small dredges with a combined width not greater than 10.5 ft (3.2 m) in
portions of the Great South Channel. Two large portions of the
exemption area were closed seasonally to General Category scallop
vessels to protect spawning populations of yellowtail flounder during
peak spawning periods, including a southern closure from April 1
through June 30 of each year, and a northern closure from June 1
through June 30. However, limited access scallop vessels fishing under
a scallop DAS could still fish within the Great South Channel Exemption
Area during those peak spawning periods because their catch of
scallops, and, therefore, yellowtail flounder, was limited by the DAS
effort controls in the scallop fishery.
Since the 2006 rulemaking that created the Great South Channel
Exemption Area, the general category scallop permits have become
limited access permits subject to an individual fishing quota (IFQ)
system under Amendment 11 to the Atlantic Sea Scallop FMP (April 14,
2008; 72 FR 20090). Amendment 11 redefined the general category permits
as ``limited access general category,'' or ``LAGC'' permits, and
imposed limits on the amount of scallop catch from each LAGC IFQ
vessels. Because of the catch limits of the IFQs, the amount of
regulated species and ocean pout, particularly yellowtail flounder,
caught by these vessels is also limited. Thus, the main justification
for the spawning protection areas for general category scallop
vessels--to minimize the impact on spawning yellowtail flounder--has
been significantly mitigated through these catch limits. Further
evaluation of the catch of limited access scallop vessels fishing on a
DAS during these spawning periods reveals that the bycatch of
yellowtail flounder in these areas during the peak spawning periods is
below the 5-percent bycatch threshold established for exempted
fisheries under Amendment 7. Therefore, based upon an industry request
to reevaluate the necessity of these spawning closures, FW 45 proposes
to eliminate the yellowtail spawning closure areas within the Great
South Channel Exemption Area and allow all scallop vessels, including
LAGC scallop vessels, to fish within this area throughout the entire
year in accordance with applicable scallop regulations. To clarify that
scallop vessels operating in the Great South Channel Exemption Area are
still subject to the applicable scallop regulations, a reference to the
scallop regulations at subpart D of 50 CFR part 648 was included in the
proposed regulations.
8. GOM Cod Spawning Protection Area
During the solicitation of public comment on measures proposed
under Amendment 16, several individuals expressed concern regarding the
impact of fishing activity on known spawning aggregations of GOM cod.
Similar concerns were identified by the Massachusetts Division of
Marine Fisheries during the early development of FW 45. In response, FW
45 proposes to create a GOM Cod Spawning Protection Area that would be
effective from April through June of each year to protect spawning
aggregations of GOM cod.
The proposed GOM Cod Spawning Protection Area is rectangular in
shape and would be located just south of the Isle of Shoals off the New
Hampshire coastline, with its long axis oriented in a northwest to
southeast direction. The exact coordinates for this proposed area are
specified in section 4.3.2 of FW 45 and in this proposed rule. This
area was identified by researchers at the University of New Hampshire,
working in conjunction with several commercial fishing vessels, and
corresponds to areas and times when large spawning cod congregate
during peak spawning months. The proposed area is intended to prevent
fishing from interfering with spawning activity and reducing future
recruitment in the fishery.
As proposed, all commercial fishing vessels using gear capable of
catching groundfish would be prohibited from fishing within the
proposed area from June 1 through June 30 of each year, while all
recreational vessels would be prohibited from using gear capable of
catching groundfish in the area from April 1 through June 30 of each
year. For commercial vessels, only vessels fishing with ``exempted
gear,'' as defined in the current regulations, would be allowed into
this area during the closure periods. Exempted gear includes pelagic
hook and line gear, pelagic longline gear, spears, rakes, diving gear,
cast nets, tongs, harpoons, weirs, dipnets, stop nets, pound nets,
pelagic gillnets, pots and traps, shrimp trawls with a properly
configured grate, and surfclam and ocean quahog dredges. Pelagic
gillnet gear is currently further defined as a single pelagic gillnet
not longer than 300 ft (91.4 m) and not greater than 6 ft (1.83 m)
deep, with a maximum mesh size of 3 inches (7.6 cm), that is attached
to the boat and fished in the upper two-thirds of the water column.
Only pelagic hook-and-line gear, as defined in the current regulations,
would be allowed to be used in the area by recreational vessels. For
both recreational and commercial vessels, ``pelagic hook and line
gear'' is defined as handline or rod and reel gear that is designed to
fish for, or that is being used to fish for, pelagic species, no
portion of which is designed to be or is operated in contact with the
bottom at any time. The catch or possession of any regulated species or
ocean pout by vessels using the exempted gear described above from
April 1 through June 30 of each year would be prohibited. Both
recreational and commercial vessels would be allowed to transit the
proposed area, provided all gear is stowed according to existing
regulations.
During the development of FW 45, draft measures and discussions at
Council and Groundfish Oversight Committee meetings made it clear that
the Council did not intend to allow vessels using midwater trawl gear
to fish in the proposed GOM Cod Spawning Protection Area from April 1
through June 30. However, it is less clear whether the Council intended
this prohibition to also apply to vessels employing purse seine gear.
The proposed regulations to implement FW 45 that were submitted by the
RA to the Council for deeming consistent with section 303(c) the
Magnuson-Stevens Act reflected the current text in the FW 45 document,
as described above. Therefore, because midwater trawl gear and purse
seine gear are not included in the current list of exempted gear, this
action would not allow commercial vessels fishing with either midwater
trawl gear or purse seines into this area during June of each year.
These regulations were deemed consistent with FW 45 and the FMP by the
Council Chairman through a letter dated January 11, 2011. Accordingly,
NMFS considers the proposed regulations to be consistent with Council
intent for FW 45.
[[Page 11868]]
9. Handgear A and B Measures
Cod Trip Limit
Amendment 13 originally created the limited access NE multispecies
Handgear A permit and open access NE multispecies Handgear B permit,
and specified the existing effort controls for such permits, including
trip limits. The cod trip limit for Handgear A and B vessels
implemented under Amendment 13 was set at 300 lb (135 kg) and 75 lb
(90.7 kg) per trip, respectively, and did not differentiate between the
GOM and GB cod stocks. In addition, Amendment 13 implemented measures
that adjusted these cod trip limits proportionally to any changes to
the GOM cod limit specified for NE multispecies DAS vessels in Sec.
648.86(b), rounded up to the nearest 50 lb (22.7 kg) for Handgear A
vessels and 25 lb (11.3 kg) for Handgear B vessels. Further, Amendment
13 did not differentiate between the GOM and GB cod stocks regarding
adjustments to the cod trip limits. Thus, under Amendment 13, if the
GOM cod limit specified for DAS vessels was reduced, the cod limit for
Handgear A and B vessels would be reduced as well, regardless of
whether such vessels fished in either the GOM or GB cod stock area, as
demonstrated in an adjustment to such trip limits on July 30, 2010 (75
FR 44924).
FW 45 proposes to rectify these two issues by clarifying that the
cod trip limits applicable to Handgear A and B vessels are stock-
specific to the GOM or GB cod stock, including any adjustments to such
trip limits. Handgear A vessels would be subject to an initial cod
limit of 300 lb (135 kg) per trip for both the GOM and GB cod stocks,
until NMFS adjusts the cod trip limit applicable to common pool vessels
fishing under a NE multispecies DAS for either of these stocks below
300 lb (135 kg) per trip. Once either the GOM or the GB cod trip limit
for common pool DAS vessels is reduced below 300 lb (135 kg) per DAS,
the applicable cod trip limit for Handgear A vessels would be adjusted
to be the same as the daily limit for common pool DAS vessels. For
example, if only the GOM cod trip limit for NE multispecies DAS vessels
was reduced to 250 lb (113.4 kg) per DAS, then the cod trip limit for a
vessel issued a Handgear A category permit that is fishing in the GOM
Regulated Mesh Area (i.e., the area specified for the GOM cod trip
limit) would also be reduced to 250 lb (113.4 kg); however, the cod
trip limit for a Handgear A vessel fishing for GB cod south of the GOM
Regulated Mesh Area (the GB cod stock area is considered the GB, SNE,
and MA Regulated Mesh Areas) would be maintained at 300 lb (135 kg) per
trip. The initial Handgear B cod limit for both the GOM and GB stocks
would be maintained at 75 lb (90.7 kg) per trip, but would be adjusted
proportional (rounded up to the nearest 25 lb (11.4 kg)) to any changes
in the daily GOM or GB cod trip limits for DAS vessels in the future,
as necessary. For example, if the GOM cod trip limit was reduced by 50
percent from 800 lb (362.9 kg) per DAS to 400 lb (181.4 kg) per DAS,
then the cod trip limit for a Handgear B vessel fishing in the GOM
Regulated Mesh Area would also be reduced by 50 percent to 37.5 lb (17
kg), rounded to the nearest 25 lb (11.3 kg), or 50 lb (22.7 kg) per
trip. In this example, the cod trip limit for a Handgear B vessel
fishing for GB cod south of the GOM Regulated Mesh Area would be
maintained at 75 lb (90.7 kg) per trip.
FW 45 explicitly provides NMFS with the ability to propose
administrative measures necessary to implement the stock-specific cod
trip limits, including a letter of authorization (LOA) to fish in
defined stock areas. Consistent with existing provisions to administer
different cod trip limits for DAS vessels that were first established
by FW 20 (April 1, 1997; 62 FR 15381), NMFS proposes to require the
owner or operator of a Handgear A or B vessel to declare his or her
intent to fish for GB cod by obtaining and retaining on board a paper
LOA from the RA. Alternatively, the owner or operator of a Handgear A
permitted vessel may declare his or her intent to fish for GB cod south
of the GOM Regulated Mesh Area prior to each trip via a vessel
monitoring system (VMS), if the vessel elects, or is required (i.e.,
when fishing in multiple broad stock areas on the same trip), to use
VMS under the current regulations. These declarations enable at-sea
enforcement personnel to identify the applicable cod trip limits and
effectively enforce the appropriate regulations during boarding
operations. The minimum participation period for this LOA would be 7
consecutive days to minimize the administrative burden of this
provision, consistent with existing practice for LOAs issued to DAS
vessels. If a vessel declares via VMS, this would be required on a
trip-by-trip basis, and no minimum participation period is necessary.
Because the current cod trip limits are based upon Regulated Mesh
Area, not stock area, the owner or operator of a Handgear A or B vessel
that intends to fish for GB cod would commit to fishing south of the
GOM Regulated Mesh Area. Consistent with the existing cod LOA for DAS
vessels, this action proposes to restrict vessels issued the cod LOA
described above to fishing south of the GOM Regulated Mesh Area for the
duration of the LOA to more effectively enforce this measure. NMFS is
particularly interested in soliciting public comment regarding this
restriction, as neither FW 45, nor Council or Groundfish Oversight
Committee discussion of this measure explicitly considered this
restriction.
Access to Seasonal Closure Areas
The catch of regulated species and ocean pout by vessels issued
either a Handgear A or B permit participating in the common pool is
limited not only by the cod trip limits described above, but also by
seasonal closure areas, and the common pool sub-ACL for each stock. The
current seasonal closure areas in the GOM and on GB run from March
through June, and October and November, and include large portions of
inshore waters most frequently fished by the predominantly smaller
handgear vessels. Accordingly, many of these vessels are unable to fish
during these months, because it would be unsafe for them to venture
farther offshore and fish in open areas.
Existing regulations implementing FW 44 allow the RA to adjust the
trip limits applicable to common pool vessels, including those issued a
Handgear A or B permit, to ensure the common pool sub-ACLs are not
exceeded before the end of the FY. This authority was utilized during
FY 2010 to reduce trip limits for stocks caught by Handgear A and B
vessels, including cod and haddock, as early as May 27, 2010 (75 FR
29678). Thus, handgear vessels are competing against often larger
trawl, gillnet, and hook vessels to catch the available sub-ACL of each
stock. However, due to the operational limitations caused by the
seasonal closure areas, handgear vessels are often precluded from
fishing, particularly in the GOM, until June or July of each year. If
common pool trip limits are reduced before June to prevent a sub-ACL
from being exceeded, the trip limits might be reduced so low as to make
it economically unviable for handgear vessels to fish at all during a
particular FY.
To ensure that handgear vessels are provided an opportunity to fish
during at least the early part of the FY, FW 45 proposes to exempt both
Handgear A and B vessels from the GB Seasonal Closure Area defined in
Sec. 648.81(g), and to allow Handgear A vessels to also fish in the
Sector Rolling Closure Areas defined in Sec. 648.81(f)(2)(vi)(A)
through (C), and depicted in section 4.3.3 of FW 45. These latter areas
represent smaller portions of the GOM Rolling Closure
[[Page 11869]]
Areas, and would enable Handgear A vessels fishing in the GOM a greater
chance at catching some of the available sub-ACLs for cod and haddock
during a particular FY before such trip limits are reduced to prevent
the ACL from being exceeded. It is unlikely that this measure would
increase F or jeopardize rebuilding requirements for overfished stocks,
as the sub-ACLs and associated AMs established for the common pool are
sufficient to prevent overfishing and to continue to rebuild overfished
stocks.
10. Dockside/Roving Monitor Requirements
FW 45 proposes several revisions to the existing dockside/roving
monitor requirements originally established in 2010 under Amendment 16.
Each of these revisions is considered a separate provision and is
discussed in further detail below.
Delay in Requirement for Industry To Fund Dockside/Roving Monitors
One of the primary objections to the dockside/roving monitoring
program expressed by the public during the development and
implementation of Amendment 16 and the development of FW 45 was the
high cost of providing sufficient coverage to monitor offloads. As a
result, NMFS made sufficient funding available to pay for 100 percent
of the costs associated with dockside/roving monitoring coverage in FY
2010, and pledged to do the same in FY 2011 to help alleviate the
economic impacts of monitoring costs and smooth the transition to a
quota-based management regime in the FMP.
To address lingering concerns regarding the ability of the fishing
industry to pay for future costs of a dockside/roving monitoring
program, particularly while stocks continue to rebuild, NFMS proposes
to delay the industry's responsibility for paying for dockside/roving
monitoring coverage until FY 2013. Instead, NMFS would specify coverage
levels during FYs 2011 and 2012 based upon available NMFS funding. None
of the costs associated with dockside/roving monitors during FYs 2011
and 2012 would be imposed upon the owner or operator of a NE
multispecies vessel. NMFS would endeavor to provide dockside/roving
monitoring coverage to observe the offloads of up to 100 percent of
sector and, for FY 2012, common pool trips, if funds are available. If
funds are not available for monitoring 100 percent of groundfish trips,
NMFS would first provide dockside/roving monitor coverage to trips that
do not have an observer, at-sea monitor, or approved electronic
monitoring equipment.
Dockside/Roving Monitoring Program Requirements Beginning in FY 2013
Neither the Council motion approving the delayed industry funding
of dockside/roving monitor coverage discussed above, nor FW 45
explicitly describes the Council's intent regarding dockside/roving
monitoring requirements beginning in FY 2013. Amendment 16 clearly
indicated the Council's intention to monitor landings of regulated
species and ocean pout by all limited access NE multispecies vessels
beginning in FY 2012, and that the industry would eventually be
responsible for the costs of dockside/roving monitoring requirements.
Based upon the intention expressed in Amendment 16, NMFS interprets the
language describing the measures in the FW 45 EA to reinstate the
dockside/roving monitoring requirements originally implemented under
Amendment 16 beginning in FY 2013. Thus, proposed regulations to
implement FW 45 that were submitted by the RA to the Council for
deeming included, starting again in 2013, the requirement for sectors
to develop and pay for a dockside/roving monitoring program as part of
their annual operations plans, the requirement for common pool vessels
to be subject to dockside/roving monitoring upon the transition to a
trimester TAC AM, the trip-start and trip-end hail reporting
requirements associated with such provisions, and the requirement for
dockside/roving monitors to observe the landings of 20 percent of all
common pool and sector trips determined in a statistically random
manner. These regulations were deemed consistent with FW 45 and the FMP
by the Council Chairman through a letter dated January 11, 2011.
Accordingly, NMFS considers the proposed regulations to be consistent
with Council intent for FW 45.
As noted above, the regulations implementing Amendment 16 currently
require common pool vessels to comply with dockside/roving monitoring
requirements beginning in FY 2012. To facilitate administration and
compliance with the dockside/roving monitoring operational standards
specified at Sec. 648.87(b)(5), the regulations at Sec.
648.82(n)(2)(iv) indicate that such vessels may only use one dockside/
roving monitor service provider per FY. Further clarification of this
requirement was provided in the March 30, 2010, permit holder letter
explaining the Amendment 16 regulations. That letter indicated that the
owner of each common pool vessel must contract with a dockside/roving
monitoring service provider approved by NMFS beginning in FY 2012.
Because this action proposes to require most common pool vessels to
comply with the dockside/roving monitoring provisions originally
implemented under Amendment 16 beginning in FY 2013, this action would
revise the regulations at Sec. 648.82(n)(2)(iv) to clearly state that
the owner or operator of each common pool vessel subject to dockside/
roving monitoring requirements must contract for such services with a
service provider approved by NMFS by 2013. The need for vessel owners
to contract with a specific service provider is necessary in the
absence of any NMFS-controlled dockside/roving monitoring program in
which NMFS can act as a mediator between the fishing industry and
approved service providers. Further, because each individual permit is
considered a separate legal entity, NMFS is not inclined to mandate
that common pool vessels use a particular service provider in a
particular FY in order to increase competition among service providers
and potentially decrease costs to the affected vessel owners. Groups of
vessel owners, however, may elect to contract with the same service
provider to help lower the costs associated with such requirements.
Exemption of the Dockside/Roving Monitor Requirements for Certain
Permit Categories
Vessels issued a limited access NE multispecies Handgear A or Small
Vessel Category permit, and vessels issued an open access NE
multispecies Handgear B permit, land very small amounts of regulated
species and ocean pout compared to vessels issued limited access NE
multispecies DAS permits. Thus, dockside/roving monitoring costs would
represent a greater proportion of their operational costs compared to
NE multispecies vessels operating under a NE multispecies DAS. Based on
public input, there is the potential that such costs would be more than
the value of fish landed on a particular trip. Accordingly, FW 45
proposes to exempt Handgear A, Handgear B, and Small Vessel category
permits from any dockside/roving monitoring requirements when operating
in the common pool. Under such an exemption, it would not be possible
for dockside/roving monitor service providers to provide statistically
random coverage of all common pool trips, as required under Amendment
16. Therefore, the proposed regulations would also revise the Amendment
16 dockside/roving monitoring coverage provisions to accommodate this
[[Page 11870]]
exemption, and specify that service providers must provide random
coverage of all trips subject to the dockside/roving monitoring
requirements.
Trip-End Hail Requirement
Based upon a pilot dockside/roving monitoring program, the
dockside/roving monitor provisions implemented under Amendment 16
currently require that vessels submit both a trip-start and trip-end
hail report. The trip-start hail report was intended to provide the
basic trip information necessary for dockside/roving service providers
to coordinate the deployment of dockside/roving monitors, including the
date, time, and port of intended landing and offloading. The trip-end
hail report provides more detailed information that confirmed or
revised information submitted in the trip-start hail report. This
latter report is also used by both State and Federal enforcement
personnel to facilitate dockside intercepts.
As described above, the Council considered, but did not approve, a
motion that would have eliminated the dockside/roving monitoring
requirements of Amendment 16. Instead, in FW 45, NMFS proposes to rely
upon its available funding to determine the amount of dockside/roving
monitoring coverage in FYs 2011 and 2012. If the Council had elected to
eliminate completely the dockside/roving monitor requirements, the
trip-end hail report would have also been eliminated. Because the
recent transition to quota-based management under ACLs and AMs
increases incentives to misreport or underreport landings of regulated
species and ocean pout, the Council considered it important to ensure
that the trip-end hail report in FW 45 was retained, even if there was
insufficient NMFS funding to support dockside/roving monitoring
coverage in FYs 2011 or 2012. This measure is expected to increase the
chances that a particular trip would be subject to dockside inspection
by enforcement personnel and may, in turn, increase compliance with
applicable measures and the accuracy of landings data used to monitor
the fishery.
Beginning in FY 2011, if implemented, FW 45 would require all
sector vessels and common pool vessels fishing under a DAS to submit
trip-hail report via VMS prior to returning to port. If there is
sufficient NMFS funding to provide for some level of dockside/roving
monitor coverage, vessels assigned a dockside/roving monitor for a
particular trip would be required to submit both a trip-start and a
trip-end hail report for that trip, however, consistent with current
practice. The trip-end hail report would contain the same information
as the trip-end hail report implemented by Amendment 16, including the
vessel permit number; vessel trip report (VTR) serial number of the
first VTR page for that trip; intended offloading location(s),
including the dealer name/offload location, port/harbor, and State for
the first dealer/facility where the vessel intends to offload catch and
the port/harbor and State for the second dealer/facility where the
vessel intends to offload catch; estimated date/time of arrival;
estimated date/time of offload; and the estimated total amount of all
species retained, including species managed by other FMPs (in pounds,
landed weight) on board at the time the vessel first offloads its catch
from a particular trip. This report, if submitted when there is
insufficient funding to provide for a NMFS-controlled dockside/roving
monitoring program, would only be submitted to NMFS' Office of Law
Enforcement rather than also to a dockside/roving monitor service
provider.
Inspection of Fish Holds
Amendment 16 established approval requirements for entities
providing dockside/roving monitoring services. These standards included
hiring individual dockside monitors that were capable of climbing
ladders and inspecting fish holds. For FY 2010, NMFS developed
operational standards necessary to implement the Amendment 16 dockside
monitoring provisions, based on a pilot dockside/roving monitoring
program conducted during the summer of 2009. These standards did not
require dockside monitors to inspect fish holds for FY 2010. However,
based on further evaluation of the performance of the dockside
monitoring program and consideration of concerns expressed by
enforcement personnel, NMFS is proposing to require dockside monitors
to inspect the fish holds for any trip that is assigned a dockside/
roving monitor beginning in FY 2011. This requirement would enhance the
enforceability of existing provisions and minimize the incentives to
under-report/misreport the amount of regulated species landed.
11. Sector Measures
Distribution of the PSC From Cancelled Permits
As described in Amendment 16, a PSC represents an individual
permit's portion of the total historical landings of each regulated
species or ocean pout stock during FYs 1996-2006 by all permits,
including those in confirmation of permit history (CPH), that were
eligible to participate in the NE multispecies fishery as of May 1,
2008. This date was selected to provide a recent baseline of eligible
permits so that the PSCs of each permit could be calculated only once,
and then become fixed. Accordingly, if a permit is cancelled after May
1, 2008, its historic landings between FYs 1996-2006 are still used to
calculate the total landings by eligible permits, and continue to
effectively reduce the PSC of all remaining permits.
As noted above, the current regulations calculate the ACL available
to sector and common pool vessels based on the cumulative PSCs of each
permit participating in each sector. By default, if the owner of a
particular permit has not elected to participate in a sector, that
permit is considered to be participating in the common pool, and its
PSC contributes to the sub-ACL available to the common pool at large.
Similarly, if a permit or CPH is cancelled for any reason, that permit
or CPH cannot participate in sectors, or any fishery, and the PSC is
used to contribute to the sub-ACL available to the common pool. Thus,
the PSCs of cancelled permits artificially inflate the PSCs of those
permits operating in the common pool and are not equitably distributed
among the permits remaining in the fishery.
Under FW 45, the PSC calculations adopted under Amendment 16 would
be performed yearly based upon valid permits, including those held in
CPH, that are eligible to participate in the fishery as of a certain
date. To do so, the PSCs for each stock calculated pursuant to the
process specified in Amendment 16 would be multiplied by a factor of
``1/PSC of the remaining permits.'' The Council provided NMFS with the
authority to specify the date on which PSCs are calculated each year.
To reflect permits that are renewed by the beginning of each FY (May
1), and allow NMFS time to process such renewals, this action proposes
to recalculate PSCs on June 1 of each year, unless another date is
specified by the RA. These recalculated PSCs would be used to calculate
ACEs for each sector during the following FY. For example, if a PSC is
calculated on June 1, 2011, that PSC will affect sector ACE for the
2012 FY that begins on May 1, 2012. This provision would mean that each
permit's PSC may increase on a yearly basis to reflect its higher
portion of the historic landings of each regulated species and ocean
pout stock due to the removal of the landings histories of any
[[Page 11871]]
permits that were cancelled by June 1 of each year. On or about July 1
of each year, NMFS would inform permit holders of updated PSCs. If this
measure is approved, the RA would recalculate PSCs for each permit
using valid permits as of May 1, 2011, to update PSCs for FY 2011 and
reflect permits cancelled through FY 2010.
Operations Plan Requirements
Amendment 16 specified that sectors must submit final rosters,
proposed operations plans, and associated environmental analyses by
September 1, so that NMFS could review such documents as part of the
process to approve sector operations for the following FY. NMFS
extended this deadline in 2009 to provide more time for vessel owners
to decide whether to join sectors for FY 2010. Based on industry input,
NMFS requested that the Council formally integrate such flexibility
into the current regulations as part of FW 45. Thus, NMFS proposes to
require sectors to provide preliminary rosters and proposed operations
plans by September 1, but to submit final rosters by December 1. Draft
rosters by September 1, and final rosters by December 1, provide NMFS
with the information it needs to review or conduct environmental
analyses associated with draft sector operations plans, while allowing
vessel owners additional time to decide whether to participate in
sectors, or which sector to join during the following FY.
Sector Exemptions
Amendment 16 defined several measures for which sectors cannot
request an exemption. These include year-round closure areas,
permitting restrictions, gear restrictions designed to reduce impacts
to habitat, and reporting requirements. Amendment 16 specifically noted
that sectors could request an exemption from the DAS reporting
requirements, as sectors were universally exempted from the NE
multispecies DAS restrictions. As part of public comments received on
the proposed rule to implement Amendment 16 (December 31, 2009; 74 FR
69382), several members of the public requested that NMFS exempt sector
vessels operating west of 72[deg] 30' W. long. (i.e., Shinnecock Inlet,
NY) and using larger mesh in the monkfish fishery from the Amendment 16
dockside/roving monitoring requirements. This requirement was based on
the argument that regulated species are rarely encountered in waters
south of New York, particularly when using the large mesh required in
the monkfish fishery. NMFS disapproved this request based on the
Amendment 16 requirements to monitor all sector trips.
Similar concerns were raised during the final meeting to approve
measures for FW 45. To reduce dockside/roving monitoring costs,
especially due to infrequent landings of regulated species in more
southerly ports, some individuals sought to limit the geographic scope
of dockside/roving monitoring requirements, or exempt vessels landing
in particular ports from the dockside/roving monitoring requirements.
FW 45 proposes to address these concerns by specifically removing
dockside/roving monitoring requirements from the list of reporting
requirements at Sec. 648.87(c)(2)(i). This would enable sectors to
request exemptions, or at least partial exemptions, from the dockside/
roving monitoring requirements to minimize monitoring costs for sector
trips targeting monkfish in southern waters, for example.
At-Sea or Electronic Monitoring Requirements
Amendment 16 currently requires that sectors develop and pay for an
at-sea or electronic monitoring program starting in FY 2012. This
requirement was intended to provide sufficient information to
accurately monitor landings and discards of regulated species and ocean
pout by sector vessels, while allowing sectors 2 years to develop such
a program on their own. As noted above, members of the fishing industry
and the Council are concerned about the high cost of at-sea and
electronic monitoring requirements. Because of the costs associated
with sectors, including costs to join a sector, the Council was
concerned that imposing additional monitoring costs on the industry,
particular shortly after the transition to sector management and before
many of the currently overfished stocks rebuild enable higher ACLs to
be specified, would reduce profitability and result in making the
sector system an economic failure. Therefore, FW 45 would delay the
industry's responsibility for developing and paying for an at-sea or
electronic monitoring program by 1 year. Unless the Council further
revises this provision, sectors would be responsible for developing and
paying for such a program beginning in FY 2013.
During the deliberation of this provision, NMFS expressed concern
about the Council's reliance upon NMFS funding to fully support a
provision required by the FMP, particularly the specific at-sea or
electronic monitoring coverage levels in Amendment 16. Because NMFS'
funding is not guaranteed, and depends upon Congressional
appropriations, it is likely that funding levels will fluctuate on a
yearly basis and may not be sufficient to fully fund the dockside/
roving monitoring coverage requirements in the FMP. Thus, NMFS
indicated that this measure may not be approvable as part of FW 45.
12. Authorization of New Sectors
FW 45 would authorize five new sectors. These sectors are described
in Section 4.2.1 of the FW 45 EA, and include the State of Maine Permit
Banking Sector, the State of Rhode Island Permit Bank Sector, the State
of New Hampshire Permit Bank Sector, the Commonwealth of Massachusetts
Permit Bank Sector, and the Sustainable Harvest Sector III. All
operational aspects of these sectors would be specified in their annual
operations plans, as submitted to NMFS. Most of these sectors are
proposed to be used for the primary purpose of leasing ACE to other
sectors. Details of these operations plans are expected to be proposed
in a parallel rulemaking to be published in the Federal Register soon,
as noted above. If approved, each of these sectors must comply with the
existing sector provisions, unless otherwise exempted by a future
action. The Council is currently considering specifically exempting
State-funded and -operated permit banks from several of the existing
sector provisions, including the minimum size requirement for sectors
originally established under Amendment 16, through a separate
rulemaking being developed by the Council. Public comment will be
solicited separately on that action.
13. Measures for FY 2011 Under RA Authority
The FMP provides authority for the RA to implement certain types of
management measures for the common pool fishery, the U.S./Canada
Management Area, and Special Management Programs, as described further
below. This proposed rule includes a description of measures that may
be considered by the RA for implementation in FY 2011 for these
components of the groundfish fishery, in order to provide an
opportunity for the public to comment on whether such measures are
appropriate. Although these measures are not proposed by the Council
for implementation through FW 45, this proposed rule makes the public
aware of measures under consideration by the RA, under the authority of
the FMP. It also enables the public to comment on such measures in the
[[Page 11872]]
context of the measures proposed in FW 45, that, if approved, would
also be implemented for FY 2011. The RA may implement measures that
differ from the measures described below if, based on current
information, such measures are necessary to conform to the requirements
of the FMP. However, NMFS does not anticipate the measures that would
be implemented will be substantially different than those described
below. The measures implemented through RA authority for FY 2011 will
be implemented through the FW 45 final rule, or through a separate
final rule, if necessary, due to the availability of relevant data or
the timing of FW 45.
The FW 44 final rule implemented RA authority to alter common pool
trip limits at Sec. 648.86(o). If the RA projects that the catch of
any NE multispecies stock allocated to common pool vessels will exceed
the pertinent sub-ACL, NMFS may implement or adjust possession and trip
limits in order to prevent exceeding the common pool sub-ACL. Table 16
provides a summary of the trip limits that are the default trip limits
in effect if the RA takes no action to modify such limits, as well as a
summary of trip limit modifications that occurred during FY 2010, and
potential starting trip limits that would be in effect for FY 2011.
These potential trip limits were developed after considering changes to
the 2011 common pool sub-ACLs and sector rosters, catch rates of these
stocks during FY 2010, price of fish during FY 2010, bycatch
considerations, the potential for differential DAS counting during FY
2011, and other available information. Specifically, compared to the FY
2010 sub-ACLs, FY 2011 sub-ACLs (see Table 5) would increase for SNE/MA
yellowtail flounder (69 percent), GB cod (25 percent), CC/GOM
yellowtail flounder (21 percent), white hake (16 percent), GOM cod (6
percent), American plaice (9 percent), witch flounder (45 percent), GB
winter flounder (8 percent), redfish (10 percent), and Atlantic halibut
(10 percent). Decreased catch limits compared to FY 2010 are expected
for GB haddock (-24 percent), GB yellowtail flounder (-18 percent),
pollock (-16 percent), and GOM haddock (-5 percent). Although the slow
catch rate of SNE/MA yellowtail flounder by common pool vessels in FY
2010 suggests that trip limits could be increased substantially to
increase the catch of this stock in FY 2011, due to concerns over the
potential of increased SNE/MA yellowtail flounder trip limits to
increase the bycatch and discard of SNE/MA winter flounder (a stock
that cannot be possessed by any vessel to help ensure this stock
rebuilds according to the approved rebuilding program), only a small
increase in the trip limit for this stock is proposed at this time. For
stocks that include a range of potential trip limits in Table 16, a
final trip limit would be specified in the final rule for this action
based upon public comment. NMFS is requesting public input on common
pool trip limits for FY 2011.
Table 16--Default, FY 2010, and Potential FY 2011 Trip Limits for the Common Pool
----------------------------------------------------------------------------------------------------------------
Default limit in FY 2010 limit
Stock regulations implemented Potential FY 2011 limit
----------------------------------------------------------------------------------------------------------------
GOM cod.......................... 800 lb (362.9 kg) per 200 lb (90.7 kg) per 500 lb (226.8 kg) per
DAS, up to 4,000 lb DAS, up to 1,000 lb DAS, up to 2,000 lb
(1,818.2 kg) per trip. (453.6 kg) per trip; (907.2 kg) per trip.
reduced to 100 lb (45.4
kg) per DAS, up to
1,000 lb (453.6 kg) per
trip.
GB cod........................... 2,000 lb (907.2 kg) per no change to default 2,000 lb (907.2 kg) per
DAS, up to 20,000 lb limit. DAS, up to 20,000 lb
(9,072 kg) per trip. (9,072 kg) per trip.
GOM haddock...................... unrestricted............. 1,000 lb (453.6 kg) per 750 lb (340.2 kg)--1,000
trip. lb (453.6 kg) per trip.
GB haddock....................... unrestricted............. 10,000 lb (4,535.9 kg) 7,500 lb (3,402 kg)--
per trip. 10,000 lb (4,535.9 kg)
per trip.
GOM winter flounder.............. unrestricted............. 250 lb (113.4 kg) per 250 lb (113.4 kg) per
trip. trip.
GB winter flounder............... unrestricted............. started at 5,000 lb 1,000 lb (453.6 kg) per
(2,268 kg); reduced to trip.
1,000 lb (453.6 kg) per
trip.
CC/GOM yellowtail flounder....... 250 lb (113.4 kg) per 250 lb (113.4 kg) per 250 lb (113.4 kg) per
DAS, up to 1,500 (680.4 DAS, up to 1,500 (680.4 DAS, up to 1,500 (680.4
kg) per trip. kg) per trip. kg) per trip.
GB yellowtail flounder........... unrestricted............. started at 2,500 lb 1,000 (453.6 kg)--1,500
(1,134 kg) per trip; (680.4 kg) per trip.
reduced to 1,000 lb
(453.6 kg) per trip;
reduced again to 100 lb
(45.4 kg) per trip.
SNE/MA yellowtail flounder....... 250 lb (113.4 kg) per 250 lb (113.4 kg) per 250 lb (113.4 kg) per
DAS, up to 1,500 (680.4 DAS, up to 1,500 (680.4 DAS, up to 1,500 (680.4
kg) per trip. kg) per trip. kg) per trip--500 lb
(226.8 kg), up to 2,000
(907.2 kg) per trip.
American plaice.................. unrestricted............. unrestricted............ unrestricted.
Pollock.......................... 1,000 lb (450 kg) per unrestricted............ unrestricted.
DAS; up to 10,000 lb
(4,500 kg) per trip.
Witch flounder................... unrestricted............. 130 lb (59 kg) per trip; 250 lb (113.4 kg) per
reduced to possession trip.
prohibition.
White hake....................... unrestricted............. Started at 2,000 lb 1,000 lb (453.6 kg)--
(907.2 kg) per DAS; up 1,500 lb (680.4 kg) per
to 10,000 lb (4,500 kg) trip.
per trip; reduced to
100 lb (45.4 kg) per
DAS; up to 500 lb
(226.8 kg) per trip.
Redfish.......................... unrestricted............. unrestricted............ unrestricted.
----------------------------------------------------------------------------------------------------------------
Amendment 16 implemented a provision that AMs for the common pool
fishery will be triggered for FY 2011 if the catch in FY 2010 exceeds
the pertinent common pool sub-ACL (Sec. Sec. 648.90(a)(5)(i)(A) and
648.82(n)). Specifically, the FMP requires that the DAS counting rate
during FY 2011 be adjusted if the catch of the relevant stocks by
common pool vessels exceeds the pertinent common pool groundfish sub-
ACLs during FY 2010. Based on current information, the common pool
catch of witch flounder during FY 2010 will exceed the witch flounder
sub-ACL
[[Page 11873]]
specified for the common pool (25 mt) by 20 percent or more. As an
example, if the percent of the common pool sub-ACL for witch flounder
caught at the end of FY 2010 is determined to be 124 percent, the
required differential DAS rate would be 1.2 where historically witch
flounder are caught. The geographic areas for which the differential
DAS rate would apply are defined for witch flounder by the FMP as the
Offshore GOM Differential DAS Area, the Offshore GB Differential DAS
Area, and the Inshore GB Differential DAS Area, with coordinates
specified at Sec. 648.82(n)(1)(i). The differential DAS rate would not
apply to the Inshore GOM Differential DAS Area or the SNE/MA
Differential DAS Area, provided only the witch flounder ACL is
exceeded, and AMs are not required for a stock with predominantly
inshore catch. The differential DAS would apply to all Category A trips
taken by common pool vessels in the applicable areas. Category A DAS
would be charged at a rate of 28.8 hr for every 24 hr fished (1.2 times
24-hr DAS counting), for the time spent fishing in the applicable DAS
counting area (noted above) based upon the first VMS position into the
applicable differential DAS counting area, and the first VMS position
outside of the applicable differential DAS counting area. If the catch
of other stocks such as GOM cod exceed their respective sub-ACLs,
additional differential DAS restrictions or an adjustment to the DAS
allocation may be required. NMFS provides an estimate of the status of
the common pool catch to the public through the following Internet
address: http://www.nero.noaa.gov/ro/fso/reports/common_pool/Common_Pool_Summary.html.
Under authority granted by the FMP (Sec. 648.85(a)(3)(iv)(D)), the
RA may implement rules to optimize the harvest of the transboundary
stocks managed under the Understanding. Pursuant to this authority,
NMFS is considering postponing the opening of the Eastern U.S./Canada
Area for non-sector (common pool) vessels fishing with trawl gear in FY
2011 from May 1, 2011, to August 1, 2011. This action would prevent
trawl fishing in the Eastern U.S./Canada Area during the time when cod
bycatch is likely to be very high, and prolong access to this area in
order to maximize the catch of available cod, haddock, and yellowtail
flounder, as well as other valuable stocks such as winter flounder.
This action would not affect valid members of sectors fishing with
trawl gear in the Eastern U.S./Canada Area, because such vessels are
subject to additional restrictions on catch as members of a sector.
Industry members believe that sector restrictions provide sufficient
incentives for vessels to fish in a manner that optimizes catch, and
that such incentives are not existent under common pool regulations. To
further constrain fishing mortality on GB cod, NMFS may limit the
common pool vessels fishing with non-trawl gear in the Eastern U.S./
Canada Area prior to August 1, 2011, to a cod catch of 5 percent of the
Eastern GB cod TAC, or 10 mt of cod.
The RA has the authority to determine the allocation of the total
number of trips into the Closed Area II Yellowtail Flounder/Haddock SAP
based on several criteria, including the GB yellowtail flounder TAC and
the amount of GB yellowtail flounder caught outside of the SAP. As
implemented in 2005 by FW 40B (June 1, 2005; 70 FR 31323), zero trips
to this SAP should be allocated if the available GB yellowtail flounder
catch is insufficient to support at least 150 trips with a 15,000-lb
(6,804-kg) trip limit (i.e., 150 trips of 15,000 lb (6,804 kg)/trip, or
2,250,000 lb (1,020,600 kg) total. This calculation takes into account
the projected catch from the area outside the SAP. Based on the
groundfish sub-ACL of 2,125,256 lb (964,016 kg), even if the projected
catch from outside the SAP area is zero, there is still insufficient GB
yellowtail flounder available to allow the SAP to proceed (i.e.,
2,125,256 lb (964,016 kg) available < 2,250,000 (1,020,600 kg) needed).
Therefore, based on existing authority, this proposed rule would
allocate zero trips to the CA II Yellowtail Flounder SAP for FY 2010,
based on a determination that the available TAC of GB yellowtail
flounder is insufficient to support a minimum level of fishing activity
within the Closed Area II Yellowtail Flounder/Haddock SAP. This means
that vessels could fish in this SAP, but would not be allowed to fish
any trips using flounder nets, as defined in the regulations at Sec.
648.85(a)(3)(iii)(B), and would instead need to fish with a haddock
separator trawl, a Ruhle trawl, or hook gear.
14. Corrections and Clarifications
This proposed rule would also correct a number of inadvertent
errors, omissions, and ambiguities in existing regulations in order to
ensure consistency with, and accurately reflect the intent of previous
actions under the FMP, or to more effectively administer and enforce
existing provisions pursuant to the authority provided to the Secretary
of Commerce in section 305(d) of the Magnuson-Stevens Act. The
following proposed measures are listed in the order in which they
appear in the regulations, and indicate the genesis of the regulation
and/or the cause of the regulatory error.
Amendment 16 requires the owner or operator of any vessel issued a
limited access NE multispecies permit fishing on either a common pool
(i.e., non-sector) or a sector trip to declare its intent to fish
within one or more of the NE multispecies broad stock areas (BSAs) and
provide the vessel trip report (VTR) serial number for the first page
of the VTR for that particular trip via VMS prior to leaving port at
the start of a fishing trip. In addition, a vessel fishing in more than
one BSA per trip must submit a VMS catch report detailing the amount of
each species retained from each BSA fished prior to crossing the VMS
demarcation line upon its return to port. Because the VTR serial number
can only be submitted by a VMS catch report, for trips into more than
one BSA, these regulations require duplicative reporting requirements.
This action would modify the timing requirements for the submission of
the VMS catch report in Sec. 648.10(k)(1) to require all NE
multispecies limited access vessels, regardless number of broad stock
areas fished, to submit the VMS catch report listing the VTR serial
number applicable for that trip prior to crossing the VMS demarcation
line upon its return to port following each fishing trip on which
regulated species were caught.
To further clarify the administration and enforcement of dockside/
roving monitoring provisions originally implemented under Amendment 16
and revised by this action, NMFS is proposing to add a prohibition at
Sec. 648.14(k)(18)(i)(D) to state that, if the offloads of a
particular trip are assigned to be monitored by a dockside/roving
monitor, the vessel cannot offload its catch until the assigned
dockside/roving monitor arrives at the designated offloading site
specified by the vessel owner or operator.
The regulations at Sec. 648.82(a)(2) currently state that a vessel
issued a NE multispecies limited access permit may not call into the
DAS program or fish under a DAS, if such vessel carries passengers for
hire for any portion of a fishing trip. This provision was first
implemented under FW 33 (April 24, 2000; 65 FR 21658) to close a
perceived loophole that could have allowed a vessel fishing under a NE
multispecies DAS to possess and land fish smaller than the minimum fish
size specified for commercial vessels and to sell their catch from such
operations. In a similar manner, this action proposes to expand
[[Page 11874]]
this provision to apply to vessels fishing on a sector trip or under
the limited access NE multispecies Small Vessel Category or Handgear A
permits.
In Sec. Sec. 648.87(b)(1)(i)(A) and 648.90(a)(4)(iii)(E)(2), the
proposed regulations would add the term ``permits'' to the phrase
``vessels participating in sectors'' to reflect that vessels issued
permits, including those held in CPH, can participate in sectors.
To provide more flexibility to sectors, Amendment 16 allowed the
transfer of ACE between sectors, and also permitted carrying over ACE
from one FY to the next. With the exception of GB yellowtail flounder,
a sector may carry-over up to 10 percent of its unused ACE for each
stock into the following FY. The final rule implementing Amendment 16
did not specify whether the 10 percent carry-over for each stock is to
be derived from the unused portion of a sector's total available ACE,
including ACE acquired from another sector through an ACE transfer, or
from the unused amount of the sector's originally allocated ACE based
upon the PSCs of vessels participating in that sector.
The Council did not intend these provisions to allow a sector to
exceed its ACE. To clarify how the ACE carry-over provision will be
applied, this action proposes to refine the regulations at Sec.
648.87(b)(1)(i)(C) to state that a NE multispecies sector may carry-
over up to 10 percent of its allocated ACE for each stock, with the
exception of GB yellowtail flounder, into the following FY, provided
the sector has not harvested more than 90 percent of its original ACE
allocation for that stock by the end of the FY. This provision is
intended to limit the applicability of ACE carry-over to only the ACE
allocated to a sector and not the ACE acquired from another sector, as
part of an ACE transfer. Because the Council did not specifically state
whether the ACE carry-over provision applies to allocated or total
available ACE, NMFS is specifically seeking public input on this
measure.
In addition to the proposed revisions to the calculation of PSCs
noted above, this proposed rule would revise the regulatory text
describing the calculation of PSCs at Sec. 648.87(b)(1)(i)(E)(1) and
(b)(1)(i)(E)(2). These revisions would not revise the manner in which
the PSCs are calculated, as adopted in Amendment 16, but rather they
would clarify and more accurately reflect the processes that were, and
continue to be, applied to implement such calculations. Specifically,
this rule would clarify that the landings histories of any limited
access NE multispecies permit, including those that were put into CPH,
and those of an open access NE multispecies handgear permit that
eventually qualified for, and resulted in, the issuance of a limited
access NE multispecies Handgear A permit during FYs 1996 through 2006
would be used to calculate the PSCs for each valid permit as of June 1
each year. In addition, these revisions would provide an example of the
landings of regulated species and ocean pout that would not be used to
calculate PSC; namely, any landings of yellowtail flounder by scallop
vessels operating under a scallop DAS. Finally, the PSC that results
from such a calculation would be specified as the PSC for each stock.
This proposed rule includes revisions to the regulatory text at
Sec. Sec. 648.87(b)(1)(iii)(C) and (viii) that provide for the
transfer of a sector's ACE for up to 2 weeks into the subsequent FY,
and the processing of such ACE transfers by NMFS for up to 61 days.
These provisions were originally included in Amendment 16 to provide an
opportunity for sectors to participate in the ACE Transfer Program to
cover any ACE overages that the sector accrued at the end of the FY.
These regulatory provisions are dependent upon the completion of NMFS'
evaluation of year-end sector catch, including sector ACE overages, and
may not account for the timing of NMFS' year-end evaluation process.
Therefore, to account for additional time for this process, if
necessary, the phrase ``unless otherwise instructed by NMFS'' is being
added to reference to the 2-week and 61-day deadlines in the regulatory
text.
Request for Comments
The public is invited to comment on any of the measures proposed in
this rule. NMFS is especially interested in receiving comments on
several proposed measures for which the agency has concern,
particularly the proposed measure to restrict vessels issued either a
Handgear A or Handgear B permit that are issued a LOA to fish south of
the GOM Regulated Mesh Area from fishing within the GOM Regulated Mesh
Area for the duration of the LOA; the proposed August 1, 2011, delayed
opening of the Eastern U.S./Canada Area for common pool vessels fishing
with trawl gear; and the proposed initial FY 2011 common pool trip
limits for certain stocks.
Classification
Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed rule is
consistent with FW 45 to the FMP, other provisions of the Magnuson-
Stevens Act, and other applicable law, subject to further consideration
after public comment. Further, pursuant to section 303(c) of the
Magnuson-Stevens Act, the Council has deemed this proposed rule as
necessary and appropriate to implement FW 45.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
An IRFA, consistent with the Regulatory Flexibility Act (RFA)
analysis contained in FW 45 and the preamble to this proposed rule, has
been prepared, as required by section 603 of the RFA. The IRFA
describes the economic impact this proposed rule, if adopted, would
have on small entities. A description of the action, why it is being
considered, and the legal basis for this action are contained in FW 45,
and in the preamble to this rule. A summary of the analysis contained
in FW 45 follows. In this analysis, the baseline (no-action
alternative) is the set of measures that were in place during FY 2010
(i.e., the measures implemented under Amendment 16 and FW 44). Tables
and sections that are referenced in this IRFA refer to those contained
in the EA developed for FW 45. A copy of FW 45 is available from the
Council (see ADDRESSES).
Description of and Estimate of the Number of Small Entities to Which
the Proposed Rule Will Apply
The measures proposed in FW 45 would affect recreational anglers
and any vessel issued a limited access NE multispecies permit, an open
access NE multispecies Handgear B permit (Handgear B permit) or
charter/party permit, or a LAGC scallop permit. In addition, because
this action would affect the dockside/roving and at-sea or electronic
monitoring program requirements and require dockside monitors to
inspect fish holds, this action would also affect any entity intending
to provide dockside/roving or at-sea or electronic monitoring services.
As of December 20, 2010, the maximum number of small fishing entities
(as defined by the Small Business Administration (SBA)) that may be
affected by this action would be 3,935 entities. The potentially
affected entities include 1,144 limited access NE multispecies DAS
permit holders; 133 limited access NE multispecies Handgear A (Handgear
A) permit holders; 11 limited access NE multispecies Small Vessel
Exemption (Category C) permit holders; 1,156 open access NE
multispecies Handgear B (Handgear B) permit holders; 824 open
[[Page 11875]]
access NE multispecies charter/party permits; and 667 Atlantic sea
scallop LAGC permits. In addition, it is expected that the five
entities currently providing dockside/roving monitoring and at-sea or
electronic monitoring services would continue to do so in FYs 2011 and
2012, and would be affected by this action. It is likely that the
actual number of small fishing entities affected by this action would
be much smaller. For instance, information contained in Section 10.11.2
of the FW 45 EA indicates that only 397 vessels had reported any sales
of regulated species and ocean pout as of December 2010, including 18
Handgear A vessels, 50 Handgear B vessels, and 329 other vessels issued
limited access NE multispecies DAS permits. Further, only 18 entities
conducted party/charter operations in the proposed GOM Cod Spawning
Protection Area proposed in this action, according to that analysis.
Finally, it is difficult to estimate the number of private recreational
anglers that may be affected by this action, as the proposed GOM Cod
Spawning Protection Area is too small to accurately determine the
number of anglers that fish in this area based on available data.
It is important to note that past fishing activity and enrollment
in sectors may not be an accurate predictor of future fishing activity.
In particular, it is possible that revisions to measures affecting both
the Handgear A and Handgear B fisheries may increase participation by
vessels issued such permits. In addition, as of December 1, 2010, 835
permits had elected to join a sector during FY 2011, as determined
through the submission of sector rosters to NMFS, indicating that 453
permits would be enrolled in the common pool. However, vessels may
withdraw from sectors until the beginning of FY 2011 on May 1, 2011.
Therefore, because participation in sectors is voluntary, the number of
vessels that will actually participate in sectors during FY 2011 and
future years is likely to fluctuate based upon whether joining a sector
or fishing under common pool measures offers the greater economic
advantage to each individual vessel.
The SBA considers commercial fishing entities (NAICS code 114111)
to be small entities if they have no more than $4 million in annual
sales, while the size standard for charter/party operators (part of
NAICS cod 487210) is $7 million in sales. Based on 2005-2007 average
conditions, median gross sales by commercial fishing vessels were just
over $200,000, and no single fishing entity earned more than $2
million. For regulated charter/party operators, the median value of
gross receipts from passengers was just over $9,000, and did not exceed
$500,000 in any year during 2001 to 2007. Although multiple vessels may
be owned by a single owner, available tracking of ownership is not
readily available to reliably ascertain affiliated entities. Therefore,
for the purposes of this analysis, each permitted vessel is treated as
a single small entity and is determined to be a small entity under the
RFA. Accordingly, there are no differential impacts between large and
small entities under this proposed rule.
Economic Impacts of the Proposed Action
The economic impacts of each proposed measure is discussed in more
detail in Sections 8.4, 9.4, and 10.11 of the FW 45 EA. The following
summarizes the economic impacts contained in those sections for each
proposed measure.
Revised Status Determination Criteria and Rebuilding Programs
Economic impacts resulting from the proposed revisions to status
determination criteria for pollock and the rebuilding period for GB
yellowtail flounder are primarily reflected in the ACLs specified for
these stocks during future years, as discussed further below. However,
an estimate of the present value of the potential revenues of each
rebuilding strategy considered for GB yellowtail flounder under FW 45
was developed. This analysis indicates that the proposed rebuilding
strategy would result in a U.S. catch that is expected to achieve a
present value of about $70.8 million, assuming a 5-percent yearly
discount rate over the course of a 10-year period (i.e., through 2020).
ACLs
The total potential revenue of the proposed FY 2011 and 2012 ACLs
was estimated to be approximately $187.8 million and $181 million using
FY 2010 prices, respectively. However, this estimate assumes that the
entire ACL for each stock will be caught, meaning there are no discards
and the fishery is using gear that is perfectly selective. To more
accurately evaluate the expected economic impacts of ACLs proposed in
this action, the catch rate for each stock as of October 16, 2010, was
calculated and projected forward for the rest of the FY (i.e., through
April 30, 2011) and through FY 2012. Resulting revenues were
calculated, after first deducting an estimate of discards. This
estimate produced expected commercial revenues of $79.8 million in FY
2011 and $72.5 million in FY 2012. Compared to the no action
alternative (i.e., maintaining the FY 2011 and 2012 ACLs implemented
under FW 44), the proposed ACLs would reduce revenues by $0.4 million
in FY 2011 and by $9.4 million in FY 2012. Assuming the current trend
in fishing revenues observed during the first half of FY 2010
continues, expected groundfish revenues would be about $83.7 million in
FY 2010. Therefore, the proposed FY 2011 revenues would be about $4
million lower than projected FY 2010 revenues (about 5 percent of
groundfish sales, or $12,000 per vessel), while proposed FY 2012 ACLs
would produce revenues that are about $11.2 million lower than those
expected in FY 2010. These estimates suggest that sectors may be able
to obtain higher use rates and, therefore, landings of several stocks
compared to landings from previous FYs.
This evaluation incorporates the potential impacts associated with
the U.S./Canada Management Area TACs, incidental catch TACs, and the
proposed allocation of yellowtail flounder to the scallop fishery, as
each of these components is part of the available ACL for applicable
stocks. As a result, no additional impacts beyond those described above
are expected for these provisions. However, separate analysis was
conducted to provide more detailed information regarding the potential
specific impacts of these provisions, as detailed further below.
The primary reason for the difference in the expected revenue under
this proposed action and the no action alternative or the expected FY
2010 revenues is the lower ACLs of GB haddock and GB yellowtail that
result from the aging of the very large 2003 year class of GB haddock
and the reduced ACL for GB yellowtail flounder that is necessary to
rebuild this stock under the proposed rebuilding program. These reduced
ACLs are sufficient to overcome any gains resulting from the updated
status and associated increased ACLs for pollock proposed under this
action. However, because the FW 45 EA applied the 2010 catch rates to
the lower FY 2011 and 2012 sub-ACL for GB haddock, it is possible that
the adverse economic impacts specified in the FW 45 EA were
overestimated. Rather than assuming that the 2010 catch rate for this
stock would continue into future FYs, as was done in the FW 45 EA, it
is reasonable to assume that the fishery is capable of catching the
same amount of GB haddock in future FYs. If the same amount of GB
haddock is caught in FYs 2011 and 2012 as is projected based on
observed catch rates so far in FY 2010, then the realized adverse
economic
[[Page 11876]]
impacts of the ACLs proposed in this action would be less than those
estimated in the FW 45 EA. Given that GB haddock, pollock, and redfish
(another rebuilt stock) comprise nearly 70 percent of the aggregate
groundfish ACL (41, 18.5, and 10 percent, respectively), improvements
in fishing selectivity, particularly while fishing for these stocks,
could lead to substantially higher revenues for the fishery.
Because NMFS is also proposing to implement a higher FY 2011 GB
yellowtail flounder ACL than that adopted by the Council in FW 45 based
on the flexibility afforded by the International Fisheries Agreement
Clarification Act, it is likely that fishing revenues will be slightly
higher in FY 2011 than that analyzed under FW 45 and described above.
The revised FY 2011 GB yellowtail flounder sub-ACL available to the NE
multispecies species based upon the TAC approved by the TMGC in its
February 9, 2011, conference call is 358 mt (789,255 lb) higher than
the ACL adopted in FW 45. At $1.34 per pound ($2.95 per kg), this
revised ACL could increase fishing revenues by $1,057,602 in FY 2011.
Because GB yellowtail flounder are also caught in conjunction with
other regulated species, it is likely that revenues will be even higher
based upon additional revenues from landing these other species.
Economic impacts of these ACLs on the fishery at large may not be
representative of impacts to individual vessels. Over the past decade,
there has been a significant amount of consolidation in this fishery in
response to the severely depleted state of the majority of the
groundfish stocks and to changes in management measures. In particular,
the recent implementation of ACLs, AMs, and an expanded use of sectors
under Amendment 16 has affected fishing patterns in ways that are not
yet determined. For example, sector measures were intended to provide a
mechanism for vessels to increase the economic efficiency of fishing
operations. Reasons why fewer vessels have fished thus far may be
related to owners with multiple vessels fishing fewer vessels, or
vessel owners or sectors using quota differently and waiting to fish
later in the fishing year to maximize revenue in response to some of
the efficiencies gained through the implementation of sector measures
in 2010. It is also likely that some vessels that have not landed
groundfish have received revenue from leasing their groundfish
allocation or have been fishing in other fisheries. Thus, fewer vessels
are actively fishing for and landing regulated species and ocean pout
stocks, with 10 percent of the fishing vessels earning more than half
of the revenues from such stocks since 2005, leading to a seemingly
continuing trend of consolidation in the fishery. However, as alluded
to above, this trend began before the implementation and expansion of
the sector program, and based on limited data available to date, the
trend is not significantly out of proportion to fishing years prior to
the implementation of Amendment 16. Based upon concerns over
consolidation raised by the public during the development of Amendment
16, the Council is currently working on a white paper regarding fleet
diversity and accumulation limits, and has agreed to develop an
amendment to the FMP to address concerns identified.
U.S./Canada Management Area TACs
The economic impacts to the groundfish fishery of specification of
the U.S./Canada Management Area TACs are difficult to predict due to
the many factors that may affect the level of catch. This includes the
potential that inseason actions necessary to ensure that the U.S./
Canada Management Area TACs for Eastern GB cod, Eastern GB haddock, and
GB yellowtail flounder are not exceeded, including area closures, trip
limit adjustments, and gear restrictions, may affect the catch of other
stocks caught in this area and the timing of when such catch can be
landed. The amount of fish landed and sold would not be equal to the
sum of the proposed TACs for these stocks, but would be reduced as a
result of discards (for the common pool), and may be further reduced by
limitations on access to stocks that may result from the associated
fishing rules. Reductions to the value of the fish may result from
landing large amounts of fish in a short duration following the start
of the FY, and the resulting potential impact on markets. It is likely
that, because the proposed FY 2011 TACs for these stocks are
substantially lower compared to the TACs for FY 2010, the proposed
action would result in reduced overall revenue from the U.S./Canada
Management Area. Some of this reduction in revenue could be mitigated
if the selectivity of the fishery increases such that vessels can
minimize the catch of Eastern GB cod and increase catch of abundant
resources of Eastern GB haddock.
An evaluation of the specific impacts of the proposed FY 2011 TACs
was conducted using FY 2009 prices and discard ratios. It is important
to note that this evaluation is not directly comparable to the
evaluation of the impacts of proposed ACLs discussed above, due to the
use of lower market prices observed during FY 2009 and the likely
higher discard rates recorded compared to preliminary estimates from FY
2010 to date. In addition, these impacts are not cumulative, and should
not be added to the impacts estimated for the proposed ACLs, as noted
above. Nonetheless, this analysis suggests that the proposed FY 2011
U.S./Canada Management Area TACs may result in revenue that is between
48 to 67 percent less than that recorded for FY 2009. Because this
analysis used conservative prices from FY 2009, the expected reduction
in revenue would likely be less than reported here. In addition,
because NMFS is proposing a higher FY 2011 GB yellowtail flounder ACL
than that adopted by the Council in FW 45, the resulting reduction in
fishing revenue is expected to be less than that analyzed in FW 45, as
discussed above. Overall, the primary cause for reduced revenue is the
substantially lower proposed FY 2011 TACs compared to those specified
for FY 2010 (41 percent lower for Eastern GB cod and 20 percent lower
for Eastern GB haddock). The amount of haddock that has been harvested
from the U.S./Canada Management Area has been increasing, but it is
unknown whether this trend will continue. The delayed opening of the
Eastern U.S./Canada Area for common pool vessels using trawl gear that
is proposed in this action and described below would likely result in
increased revenue from the Eastern U.S./Canada Area, because it is
likely to prolong the time period during which the area is open and
enable a higher overall catch of all species, particularly GB haddock.
Similarly, the proposed closure of the CA II Yellowtail Flounder/
Haddock SAP to targeting yellowtail flounder and the associated
prohibition of the use of flounder nets in this SAP should reduce the
bycatch of these stocks and increase the harvest of the available
Eastern GB haddock TAC, prolong the opening of the Eastern U.S./Canada
Area, and result in greater overall revenue.
Different impacts would likely be realized by common pool and
sector vessels due to the nature of the operations of such groups and
applicable regulations. Unlike vessels operating within the same
sector, the common pool is unable to actively coordinate fishing
operations to maximize fishing revenue based upon resource availability
and market price. Therefore, impacts on common pool vessels will be
dependent upon the overall rate at which available TACs are caught, and
whether any responsive measures necessary to prevent such
[[Page 11877]]
TACs from being exceeded are triggered. Further, once the available ACE
for a particular stock is caught, sectors must cease fishing operations
in the entire stock area. In contrast, while common pool vessels may be
subject to more restrictive DAS or trip limits in a particular area,
they could continue to fish in the Western U.S./Canada Area even after
the GB yellowtail flounder TAC is caught, provided they do not retain
any GB yellowtail flounder.
Yellowtail Flounder Allocations to the Scallop Fishery
FW 45 would maintain the yellowtail flounder allocations to the
scallop fishery originally implemented under FW 44. This allocation to
the scallop fishery recognizes the importance of yellowtail flounder to
the prosecution of the scallop fishery and allocates most of the
yellowtail flounder that the fishery is expected to catch if it
harvests the available scallop yield. It also creates an incentive for
scallop fishermen to reduce bycatch of yellowtail flounder in order to
maximize scallop yield. The allocation of yellowtail flounder to the
scallop fishery in FYs 2011 and FY 2012 would likely have fewer
economic impacts on the scallop fishery than those originally estimated
in FW 44, because, with the exception of the allocation of GB
yellowtail flounder to the scallop fishery in FY 2012 (the proposed
action would provide 93 percent of expected yellowtail flounder bycatch
by the scallop fishery), that allocation would not constrain scallop
catch based on updated estimates of the amount of yellowtail flounder
necessary to fully harvest available scallop resources. However, these
updated projections of expected yellowtail flounder bycatch by the
scallop fishery are based upon data from FY 2009 that are considered to
be overly optimistic due to the substantially lower bycatch of
yellowtail flounder, particularly from the Nantucket Lightship Closure
Area, compared to that observed during previous FYs. In addition, these
projections are subject to a high degree of uncertainty, including
uncertainty associated with the size of the yellowtail flounder stock.
Additional detail regarding the evaluation of the likely economic
impacts to the scallop fishery, including those resulting from the
proposed yellowtail flounder allocation to the scallop fishery and
expected scallop catch and the AMs proposed in that fishery as part of
Amendment 15 and FW 22 to the Atlantic Sea Scallop FMP, are contained
in the supporting EIS and EA developed for those actions, respectively.
Overall, however, it is expected that the allocation of yellowtail
flounder to the scallop fishery represents the greatest overall benefit
to the nation consistent with the Magnuson-Stevens Act, because it
would reduce the likelihood that scallop AMs would be triggered due to
excessive catch of yellowtail flounder in FYs 2011 and 2012 and,
therefore, put far less fishing revenue at risk compared to other
allocation alternatives considered in FW 45. The economic impacts of
other alternatives considered for this measure are discussed further
below.
The economic impact of this action on the NE multispecies fishery
in FY 2011 has two components: (1) The primary revenue reduction due to
the forgone sale of yellowtail flounder, and (2) secondary revenue
reduction as a result of reduced access to a particular yellowtail
flounder stock area. Secondary revenue reduction occurs once a sector's
yellowtail flounder ACE is caught and that sector is required to cease
fishing in that stock area, or when the GB yellowtail flounder TAC for
common pool vessels is caught and the Eastern U.S./Canada Area is
closed to such vessels. At a market price of $1.34 per lb ($2.95 per
kg), the primary revenue reduction in the NE multispecies fishery
associated with the allocations of GB yellowtail flounder to the
scallop fishery is estimated at $593,787 and $906,928 for FYs 2011 and
2012, respectively. For SNE/MA yellowtail flounder allocations to the
scallop fishery, the primary revenue reduction in the NE multispecies
fishery is estimated at $242,241 and $375,179 for FYs 2011 and 2012,
respectively.
The secondary revenue reduction in the groundfish fishery from
yellowtail flounder allocations to the scallop fishery were estimated
using the ratio of the value of catch of all species to yellowtail
flounder. In FY 2010, that ratio was approximately 19 to 1 for GB
yellowtail flounder. At a market price of $1.34 per lb ($2.95 per kg),
the value of each metric ton of GB yellowtail flounder to the NE
multispecies fishery is estimated to be $2,954. Accordingly, for each
metric ton of GB yellowtail flounder that cannot be caught,
approximately $56,130 of revenue from other species would also be lost
due to the reduction of catch of other species caught in association
with each ton of GB yellowtail flounder caught. Similar to the
discussion of the economic impact of the proposed U.S./Canada
Management Area TACs, it is important to remember that these impacts
are not cumulative, and should not be added to the impacts estimated
for the proposed ACLs discussed above. Instead, this discussion
provides additional information that clarifies the potential impact of
this particular component of the proposed suite of measures that is
estimated to be captured by the discussion of the impact of the
proposed ACLs on the NE multispecies fishery. It is also not
appropriate to consider all of the yellowtail flounder allocated to the
scallop fishery as a ``loss'' to the groundfish fishery because the
groundfish fishery does not ``own'' the yellowtail flounder. Rather, it
is more accurate to consider the allocations as a transfer between the
two fisheries, particularly given the long and documented history of
bycatch of yellowtail flounder in the scallop fishery and the current
requirement that scallop vessels must land all legal-size yellowtail
flounder.
U.S./Canada Area Measures
This proposed rule would allocate zero trips to target yellowtail
flounder in the CA II Yellowtail Flounder/Haddock SAP. This measure
would prevent vessels from accessing the SAP to target yellowtail
flounder with flounder nets, as defined in the current regulations, but
would not reduce the potential revenue from the available ACL of stocks
that are caught in this area for several reasons. First, the measures
implemented under Amendment 16 allow vessels to access the same SAP
area to target GB haddock, a rebuilt stock whose ACL has not been fully
harvested in recent years, using hook gear and selective trawl gear
such as the haddock separator trawl and Ruhle trawl. Secondly,
available ACL of GB yellowtail flounder can also be caught outside this
SAP in either the Eastern U.S./Canada Area or the Western U.S./Canada
Area. Thus, this measure would not represent a decrease in opportunity
or revenue from recent years, because the SAP has not been opened since
FY 2004 due to the status of the GB yellowtail flounder stock.
This action would also delay the opening of the Eastern U.S./Canada
Area to common pool trawl vessels until August 1, 2011. This delay has
been requested by the Council and implemented by NMFS for the past
several FYs to reduce the bycatch of Eastern GB cod during the summer
months and prolong access to the Eastern U.S./Canada Area. This measure
attempts to maximize fishing revenues by increasing the chances that a
greater portion of the available Eastern GB haddock TAC can be caught
without triggering the premature closure of the Eastern U.S./Canada
Area to avoid exceeding the common pool TAC of Eastern GB cod before
the end of FY 2011 on April 30, 2012. As noted above
[[Page 11878]]
in the description of the economic impacts of the proposed U.S./Canada
Management Area TACs, the expected benefits of this measure depend upon
the selectivity of the fishery and other factors that are difficult to
predict, but will still likely be reduced compared to those observed
during FY 2010 due to the reduced TAC of Eastern GB cod. The potential
2011 common pool trip limits listed in Table 14 should increase the
likelihood that the fishery will fully harvest, but not exceed, the
2011 common pool sub-ACLs and minimize the need for further revisions
to trip limits or differential DAS counting rates. Thus, these trip
limits should not result in any different economic impacts than those
identified for the proposed 2011 ACLs discussed above.
Great South Channel Exemption Area
This measure would remove the existing yellowtail flounder peak
spawning closures and allow LAGC scallop vessels to fish for scallops
in the Great South Channel Exemption Area through the year. It is
expected that this measure would allow such vessels to harvest
individual allocations of scallops in a more cost-effective manner. In
doing so, vessel profitability would improve and increase IFQ share
values compared to the no action alternative. However, the potential
benefit cannot be reliably quantified. If it is later found that
fishing with scallop dredge gear during yellowtail flounder peak
spawning seasons interferes with yellowtail flounder spawning success,
the proposed elimination of the spawning closures may reduce the
likelihood that yellowtail flounder stocks will rebuild and could lead
to further economic impacts in the future to ensure that the rebuilding
requirements of the FMP are achieved.
GOM Cod Spawning Protection Area
FW 45 would create a GOM Cod Spawning Protection Area and prohibit
commercial and recreational vessels from fishing in this area with gear
capable of catching regulated species and ocean pout from April 1
through June 30 of each year. The proposed measure would affect private
recreational anglers and vessels issued a NE multispecies charter/party
permit and the value such anglers derive from taking a trip into the
proposed protection area. Recreational fishing values are typically
measured by the economic surplus beyond what anglers have to pay to
take a trip, using specialized surveys that are not available for the
recreational groundfish fishery at this time. It can be expected that
the proposed action would reduce the economic surplus to anglers that
fish in this area, as they would not be allowed to fish for groundfish
in their preferred area from April to June of each year. Even if trips
could be taken in a different area during these months, the reduction
in economic surplus would still impact affected entities.
An estimate of the impact of the proposed measures on charter/party
vessels was derived by measuring the loss in passenger revenues if
trips are not taken in this area and the vessel cannot fish in another
area. During FYs 2007 through 2009, up to 2 percent of charter/party
trips taken in the GOM between April and June occurred in the proposed
protection area. However, only about 10 vessels are considered likely
to be affected by this action based upon their more recent activity
within this area. For trips taken in these areas during FYs 2008 and
2009, gross sales were up to $112,000 per year. For vessels that took
multiple trips into this area, annual gross sales would be reduced by
about 6 to 7 percent, or about $10,000 per vessel (the impacts ranged
from less than $1,000 to just over $42,000 per vessel, depending on the
FY). Overall, the proposed action would reduce the annual gross sales
of the entire charter/party fishery operating in the GOM by between 1.9
to 3 percent. These impacts likely represent a maximum impact, as this
analysis did not consider the sales from fishing in alternative
locations. If charter/party vessels are able to attract passengers
willing to fish in other areas, these impacts would be mitigated, at
least to some degree.
Handgear A and Handgear B Measures
If implemented, FW 45 would specify stock-specific cod trip limits
and trip limit adjustments (i.e., different trip limits and trip limit
adjustments for GOM and GB cod stocks) for vessels issued a limited
access NE multispecies Handgear A or an open access NE multispecies
Handgear B permit, as described above. In addition, this action would
allow Handgear A and Handgear B vessels to access the existing GB
Seasonal Closure Area, and Handgear A vessels to access the existing
Sector Rolling Closure Areas. Finally, this action would exempt
Handgear A and Handgear B vessels from the dockside/roving monitoring
requirements, as described further below.
Compared to the no action alternative, the proposed measures are
expected to improve the economic opportunity available to such vessels.
Although the realized economic impacts of these measures are uncertain
as far as the number of vessels that would benefit from these measures
based on historic fishing patterns and the degree by which landings by
such vessels would change, they are expected to be positive. In
particular, specifying stock-specific trip limits and adjustments means
that handgear vessels fishing for GB cod would not be subject to lower
cod limits if high catch rates of GOM cod by common pool vessels
necessitates lower trip limits to prevent the common pool sub-ACL for
that stock from being exceeded prior to the end of the FY. Thus, the
economic impacts caused by unnecessarily reducing the cod limit for
handgear vessels fishing in the GB cod stock area would be avoided.
Further, increasing access to seasonal closure areas would provide
handgear vessels operating in the common pool a greater chance of
landing the allowable cod limit early in the FY before common pool cod
trip limits would need to be reduced to ensure the sub-ACL is not
exceeded. Further, by maintaining the Handgear A cod trip limit at 300
lb (135 kg) per trip until the applicable cod trip limit for vessels
operating under a NE multispecies DAS drops below 300 lb (135 kg) per
DAS, such vessels would be better able to land larger amounts of cod
and increase fishing revenue compared to the no action alternative.
Dockside/Roving and At-Sea Monitor Requirements
This action would make several changes to the current dockside/
roving monitoring requirements, including delaying the requirement for
the fishing industry to pay for dockside/roving and at-sea monitoring
coverage until FY 2013, exempting vessels issued a NE multispecies
Handgear A or B and Small Vessel Category permits operating in the
common pool from the dockside/roving monitoring requirements,
maintaining the trip-end hail reports in the absence of any dockside/
roving monitoring requirements for a particular FY, and requiring
dockside monitors to inspect the fish holds. Delaying the fishing
industry's responsibility to pay for dockside/roving monitors and
exempting handgear and Small Vessel category permits from the dockside/
roving monitoring requirements would save approximately $281,000 per
year (assuming 20 percent of trips would be covered), while delaying
the responsibility for paying for at-sea monitoring would save industry
about $5 million per year (assuming 30 percent of trips would be
covered). If the level of NMFS funding prevents the Agency from
providing sufficient at-sea monitoring coverage through FY 2013, then
uncertainty in catch accounting may necessitate the adoption of higher
[[Page 11879]]
buffers between the ABC and ACL for each stock in future FYs to account
for this increased management uncertainty. Higher buffers would result
in decreased ACLs and lower fishing revenues, if adopted in a future
action. Maintaining the trip-end hail reports in the absence of any
dockside/roving monitoring program for a particular FY would maintain
the costs anticipated for such reports, as implemented under Amendment
16. These costs were estimated to be $24,750 ($0.90 per hail report)
based on 25,000 trips per year. However, based on fishing patterns
during FY 2010, it is likely that the number of trips will be lower in
future years, with about 13,000 trips expected during FY 2010. If this
trend continues, trip-end hail reports would cost about $12,870 per
year. Inspection of fish holds is an administrative measure that would
not affect the costs or revenues of fishing operations. Because
dockside monitoring service providers are required to have sufficient
insurance to cover liability associated with dockside monitor injury,
this should result in no impact to either inspected vessels or service
providers.
Exempting Handgear A, Handgear B, and vessels issued a Small Vessel
Category permit from these regulations would reduce operational costs
to such vessels. Assuming dockside/roving monitoring costs remain the
same as they are during FY 2010, the estimated costs of dockside/roving
monitoring would be a fixed rate of $33 per trip, and an additional $27
for a trip in which a roving monitor is required, with an additional
$0.015 per lb ($0.033 per kg) of regulated species landed for 20
percent of trips taken. These costs would represent 5.2 percent of the
total regulated species landed by Small Vessel Category permits, and
2.3 percent and 3.7 percent of the regulated species landed by Handgear
A and Handgear B permits, respectively. This action would reduce such
costs, amounting to an aggregate annual savings of $9,841.
Sector Measures
If implemented, FW 45 would recalculate the PSC for each stock on a
yearly basis to reflect the elimination of landings histories from
cancelled permits and allow sectors to request an exemption from the
dockside/roving monitoring requirements as part of their annual
operations plans. Assuming equivalent PSC utilization rates and cost of
fishing, the economic value derived from available ACL would be
unchanged whether the PSC from cancelled permits is allocated to the
common pool under the no action alternative, or equally distributed to
all permits as proposed in this action. If, on average, vessels that
fish in the common pool are less profitable than sector vessels, then
this action would result in an improvement in these vessels' economic
efficiency as compared to taking no action. The magnitude of the impact
from this provision would likely be small, as few permits have been
cancelled since the PSCs were calculated using permits valid as of May
1, 2008. Cancelled permits represent only about 72,000 lb (32,659 kg)
of all species combined that would be divided among the 1,288 valid
limited access NE multispecies permits based on each permit's
individual fishing history. Thus, this measure, in itself, is unlikely
to make an unprofitable fishing operation marginally profitable.
Nevertheless, this action would provide some positive benefit and
increased economic opportunity to all remaining permit holders, and may
increase the amount of ACE available on the market to lease. Allowing
sectors to request an exemption from the dockside/roving monitoring
requirements would likely result in cost savings to applicable sectors
that are difficult to quantify. It is expected that some sectors would
request an exemption from the dockside/roving monitoring requirements,
particularly for trips in southern waters targeting monkfish with large
mesh. These trips rarely encounter regulated species and ocean pout,
suggesting that the dockside/roving monitoring requirements offer
little benefit to increasing the accuracy of monitoring data or the
enforceability of sector provisions. Thus, such an exemption, if
justified, could result in reducing operational costs and increasing
the economic efficiency of sector operations. The environmental
analysis developed to support a sector operations plan that includes
such an exemption request, not FW 45, would include a discussion of any
anticipated economic impacts of such a request.
This action would also approve five new sectors, including four
State permit banks and an additional lease-only sector. The approval of
these new sectors may affect the market price of both permits or
available DAS and ACE on the leasing market. There is a concern that
the presence of large institutions such as State governments that have
less emphasis on achieving a return on investment, and the potential
for such institutions to acquire permits in a short contracting window,
would raise the price of available permits for sale. This increase
could place a private entity at a competitive disadvantage in relation
to the permit market, particularly if access to capital for investment
in additional permits by such private entities is limited or already
maximized. For these same reasons, State permit banks may also serve to
lower the price of DAS or ACE available on the leasing market. The
lowering the price of DAS or ACE available on the leasing market by
State-operated permit banks, along with the approval of another lease-
only sector, may benefit some vessels by providing additional fishing
opportunities at a lower market price, especially considering reports
that the ACE leasing market that has developed so far during FY 2010
has resulted in higher leasing rates, and a restricted supply of
available ACE.
Overall, however, the presence of additional permit banks and
lease-only sectors would facilitate price discovery, leading to more
efficient markets, the establishment of competitive prices, and a
limitation on the ability of market participants to exert some form of
monopoly power. Finally, the approval of the lease-only sector may
provide some benefits to participating vessels in that it could,
depending on the fee structure developed by that sector, reduce or
eliminate the need for participating vessels to pay fees associated
with dockside/roving and at-sea or electronic monitoring and require
participating vessels to only pay a processing fee for any ACE or DAS
transactions in which it participates.
Based on funding provided to such permit banks to date, it is
unlikely that the amount of permits and associated DAS and ACE that
would be able to be purchased by State permit banks would be sufficient
to fully meet the demand for available ACE, as a rough estimate
suggests that available funding would only able to procure about 1,300
mt of ACE of all stocks, if permits are available to purchase. This
benefit is likely to accrue only to a subset of vessels, at least
initially, as State permit banks would only be able to lease ACE to
vessels that are 45 feet (13.7 m) or shorter and are associated with
communities of less than 30,000 residents, based on funding agreements
with NMFS. While State permit banks may be able to lower the price of
available DAS and ACE, if they elect to offer DAS or ACE at below the
prevailing market price, this would affect the returns to private
entities in the leasing market that also offer DAS or ACE to lease to
other entities.
Any estimate of the magnitude of the possible impacts of the
proposed approval of State permit banks or the lease-only sector is
speculative. This action would only approve the concept
[[Page 11880]]
of such additional sectors, and would not actually approve the annual
operations of these sectors. That approval is occurring through a
parallel rulemaking to this proposed action.
Corrections
There are several corrections proposed in this rule that are
considered to be mostly administrative in nature and do not affect
vessel operations that would result in any economic impact to regulated
entities. These corrections would include inserting text that would
apply a long-standing prohibition on the sale of fish while carrying
passengers for hire to vessels fishing on a sector trip and those
fishing under the Small Vessel Category and Handgear A permit
restrictions, inserting a prohibition to prevent offloading fish prior
to the arrival of an assigned dockside/roving monitor, clarifying that
sectors can only carry over up to 10 percent of allocated ACE for each
stock except for GB yellowtail flounder into the next FY, clarifying
that permits in CPH can participate in sectors to reflect the intent of
Amendment 16, and revising the text describing how PSCs are calculated
to more precisely describe the process outlined in Amendment 16 and
implemented by NMFS.
Measures Proposed To Mitigate Adverse Economic Impacts of the Proposed
Action
The proposed action contains several measures that would directly
or indirectly provide small entities with some ability to offset at
least some portion of the estimated economic impacts associated with
proposed measures. The major mitigating measures would include allowing
LAGC scallop vessels greater access to the Great South Channel
Exemption area; increasing access to the seasonal closure areas for
Handgear A and Handgear B permits; exempting the existing dockside/
roving monitoring requirements; delaying requiring sectors and common
pool vessels to pay for dockside/roving and at-sea or electronic
monitoring; extending rebuilding period for GB yellowtail flounder and
formal recognition of the rebuilt status of pollock; redistributing PSC
from cancelled permits to all remaining valid limited access NE
multispecies permits; and approving new sectors, including State permit
banks and a lease-only sector. During the development of Framework 45,
NMFS and the Council considered ways to reduce the regulatory burden on
and provide flexibility to the regulated community. The approach taken
is consistent with the recent Presidential Memorandum on Regulatory
Flexibility, Small Business, and Job Creation (January 18, 2011).
Proposed actions and alternatives are described in detail in Framework
45, which includes an Environmental Assessment, Regulatory Impact
Review, and Initial Regulatory Flexibility Analysis (available at
ADDRESSES).
Eliminating the yellowtail flounder peak spawning closure areas in
the Great South Channel Exemption Area would enable LAGC scallop
vessels greater access to this area. If this measure reduces
operational costs by allowing vessels to operate in a more efficient
manner, it could increase the economic efficiency of vessel operations
and increase the value of the IFQ permits.
Exempting Handgear A, Handgear B, and Small Vessel Category permits
from dockside/roving monitoring requirements, delaying industry
responsibility for paying for dockside/roving monitoring coverage until
FY 2013, and delaying industry responsibility for paying for a sector
at-sea monitoring program until FY 2013 would explicitly reduce
monitoring costs to affected entities, saving such entities
approximately $5.28 million each year compared to the no action
alternative.
Allowing vessels with handgear permits access to at least some of
the seasonal closure areas would increase the chance that such permits
could increase their catch of regulated species, particularly during
the early months of the fishing season before trip limits may be
reduced to prevent the overall ACLs from being exceeded. Similar
benefits would be expected from specifications of stock-specific trip
limits and trip limit adjustments for cod for these vessels.
Extending the rebuilding program for GB yellowtail flounder would
indirectly reduce economic impacts on NE multispecies vessels by
allowing higher ACLs to be specified for the remainder of the
rebuilding program compared to the existing rebuilding program adopted
for this stock. The adoption of updated biological reference points for
pollock would formally end the rebuilding program implemented for this
stock under Amendment 16, and enable the specification of higher ACLs
on an indefinite basis that would have otherwise expired on April 30,
2011, following the extension of the July 20, 2010, emergency rule.
As noted above, the approval of new sectors, including State permit
banks and a lease-only sector, would help to reduce vessel operational
costs by increasing the amount of DAS and ACE available on the leasing
market, reducing market price for such additional fishing
opportunities, and increasing competition in the leasing market by
providing alternative means to acquire the ACE necessary for to help
vessels remain financially solvent. In addition, it is possible that
the lease-only sector could reduce sector monitoring fees due to the
presumption that participating vessels would not be actively fishing,
but rather exist for the sole purpose of providing PSC that the sector
may use to enable other sectors to continue fishing.
Economic Impacts of Alternatives to the Proposed Action
Under the no action alternative, updated status determination
criteria would not be adopted for pollock. These updated criteria were
adopted in the July 20, 2010, emergency action, but would expire on
April 30, 2011, if not formally integrated into the FMP under this
action. The expiration of the emergency action would mean that the
rebuilding program implemented under Amendment 16 would be reinstated,
and that the fishery would not be able to benefit from the harvest the
additional pollock based upon its status as a rebuilt stock. The
implications of this alternative are transmitted through lower ACLs
described in further detail below.
Because FW 45 is a discrete adjustment in a long line of frameworks
and amendments, a number and scope of alternatives have either already
been considered in earlier actions or are not appropriate in the
context of this action. FW 45 considered five alternatives to revising
the GB yellowtail flounder rebuilding strategy. These five alternatives
included: (1) The no action alternative that would maintain the current
FW 42 rebuilding period that would rebuild the GB yellowtail flounder
stock by FY 2014 with a 75 percent probability of success; (2) Sub-
option A (the proposed action) that would rebuild this stock by 2016
with a 50 percent probability of success; (3) Sub-option B that would
rebuild this stock by 2016 with a 60 percent probability of success;
(4) Sub-option C that would rebuild this stock by 2016 with a 75
percent probability of success; and (5) Sub-option D that would rebuild
this stock by 2019 with a 60 percent probability of success. The
present values of a stream of potential revenues over a 10-year period
for each of these alternatives are presented in Section 9.4.1 of the FW
45 EA using several discount rates. Discards were not incorporated into
this analysis; however, because discard rates are not expected to
differ among the
[[Page 11881]]
alternatives, this was not expected to affect the ranking of these
alternatives.
According to this analysis, sub-option D (rebuilding this stock by
2019 with a 60-percent probability of success) would result in the
highest median present values among all alternatives considered,
followed by sub-option A (the proposed action), sub-option B, the no
action alternative, and sub-option C. This pattern was repeated,
regardless of the discount rate applied. Sub-option D would result in
U.S. catches with a median present value of $74.7 million through 2020,
while the proposed action is expected to yield $70.8 million over the
same period, using a 5-percent discount rate. Therefore, sub-option D
would result in about $4 million of additional revenue, compared to the
proposed action, over the course of 10 years. However, as noted earlier
in this preamble, because sub-option D would extend the rebuilding
period though FY 2019, the rebuilding period would run 13 years, or 3
years beyond the maximum rebuilding period allowed under the Magnuson-
Stevens Act. Therefore, that alternative is not consistent with
applicable law. The proposed action, in contrast, is consistent with
applicable law and would result in the next highest median present
value among the alternatives considered. Thus, the proposed action
represents the alternative with the least economic impact of the
alternatives that were considered that are also consistent with
applicable law.
Under the no action alternative, the ACLs implemented under FW 44
would be retained for FYs 2011 and 2012. Those ACLs do not reflect the
updated status of pollock, or the extended rebuilding period for GB
yellowtail flounder proposed in this action. This alternative would
result in foregone income for NE multispecies vessels, as they would
not be able to capitalize on increased ACLs for these stocks under this
proposed action. The economic impact of the no action alternative was
measured by estimating the revenue associated with landing the full
amount of available ACL for each stock using prices as of September 30,
2010. This analysis suggests that the potential value of FY 2011 and
2012 ACLs under the no action alternative would be $191.3 million and
$184.6 million, respectively. These estimates are lower than that
specified under FW 44 ($205 million and $196 million, respectively) due
to changes in prices used. The proposed action would result in a value
of between $185.4 million and $187.8 million, depending on the GB
yellowtail flounder rebuilding alternative analyzed, or between nearly
$3.5 million and $6 million less value than the no action alternative.
However, because the no action alternative and GB yellowtail flounder
rebuilding sub-option C would specify an ACL of zero for that stock,
the potential realized revenues associated with those options would be
much lower, since revenues associated with any other stock caught with
GB yellowtail flounder would be reduced as well. This factor is
particularly important for sectors, as sectors are not allowed to
operate in the GB yellowtail flounder stock area since they would not
be allocated any GB yellowtail flounder ACE during FYs 2011 and 2012
based on existing regulations.
A more realistic estimate projected FY 2011 landings based upon the
ACL utilization rate as of October 16, 2010, and a consideration of
discards. This analysis suggests that potential revenues from the no
action alternative would be $80.2 million during FY 2011 and $81.9
million during FY 2012, with estimated sector revenues of $71.1 million
and $73 million for those FYs, respectively. Compared to the proposed
action, the no action alternative would produce about $0.4 million more
revenue in FY 2011 and $9.4 million revenue in FY 2012. Once again,
this amount does not factor in potential revenue loss from the
specification of zero GB yellowtail ACL. Because the no action
alternative for ACLs is affected by the integration of updates to the
status determination criteria for pollock and the updated rebuilding
program for GB yellowtail flounder, the no action alternative for
specifying ACLs would not incorporate the best available scientific
information and would be, therefore, inconsistent with the Magnuson-
Stevens Act.
Failure to specify FY 2011 U.S./Canada Management Area TACs under
the no action alternative would result in increased revenue compared to
the proposed action. Vessels would be able to harvest the available ACL
for GB cod, GB haddock, and GB yellowtail flounder throughout GB,
including in the Eastern U.S./Canada Area, but overall catches would
still be limited by ACLs specified under this action. Revenue from the
catch of other stocks caught in conjunction with these stocks would
also be higher under the no action alternative. However, because the no
action alternative would ignore the joint efforts to manage
transboundary stocks, it would likely set F on such stocks higher in FY
2011 than they actually are (or would be), and perhaps at unsustainable
levels. In contrast to the proposed action, the no action alternative
may result in long-term negative economic impacts if such fishing would
undermine efforts to prevent overfishing and rebuild overfished stocks
of GB cod and GB yellowtail flounder and necessitate further action in
the future to ensure the FMP's conservation objectives are achieved.
The Council considered one alternative allocation of GB and SNE/MA
yellowtail flounder to the Atlantic sea scallop fishery to the
allocations proposed in this action based upon the management measures
adopted in the scallop fishery as part of FW 22 to the Atlantic Sea
Scallop FMP. The Council opted to retain the existing allocations of
yellowtail flounder implemented under FW 44, even though it also
analyzed additional alternatives as part of FW 22 to the Atlantic Sea
Scallop FMP. This allocation to the scallop fishery recognizes the
importance of yellowtail flounder to the prosecution of the scallop
fishery and allocates most of the yellowtail flounder that the fishery
is expected to catch if it harvests the available scallop yield. It
also creates an incentive for scallop fishermen to reduce bycatch of
yellowtail flounder in order to maximize scallop yield. It is expected
that the allocation of yellowtail flounder to the scallop fishery will
represent the greatest net benefit to the nation, as it will enable the
continuation of one of the nation's most profitable fisheries by
reducing the chance that the catch of scallops will be limited by the
available bycatch of yellowtail flounder, as described in further
detail in FW 45 and the analysis of FW 22 to the Atlantic Sea Scallop
FMP.
A possible impact from allocating yellowtail flounder to the
scallop fishery is that it may limit opportunities for groundfish
fishermen to target other stocks. The FW 45 analysis characterizes this
potential impact as secondary revenue at risk. The proposed action to
allocate yellowtail flounder to the scallop fishery would place far
less fishing revenue at risk compared to the other option considered.
For example, based upon the ratio of yellowtail flounder revenues to
total groundfish revenues, the amount of fishing revenue at risk in the
groundfish fishery (i.e., the amount of groundfish revenue reduction
that would be expected if the groundfish fishery was not able to
harvest allocated 100 percent of the available yellowtail flounder
based on the proposed allocations) is estimated to be $11.2 million in
FY 2011 and $17.2 million in FY 2012 for GB yellowtail flounder, and
$1.8 million in FY 2011 and $2.8 million in FY 2012 for SNE/MA
yellowtail flounder, or a combined $32,560,387 at a discount rate of 3
[[Page 11882]]
percent. The amount of fishing revenue at risk in the scallop fishery
(i.e., the amount of scallop revenue reduction that would be expected
if the groundfish fishery was not able to harvest allocated 100 percent
of the available yellowtail flounder based on the proposed allocations)
is estimated to be about $4,228,222 in FY 2011 using a discount rate of
3 percent, because the GB yellowtail flounder sub-ACL to the scallop
fishery is 93 percent of the amount of yellowtail flounder the scallop
fishery is expected to catch in FY 2012, indicating that 7 percent of
the scallop revenues from this stock are at risk in FY 2013 based on
the AMs implemented in FW 22 to the Atlantic Sea Scallop FMP that would
be implemented the year after an overage. Therefore, the total fishing
revenue at risk for the proposed allocation is $36.8 million in FY
2011, using a 3 percent discount rate. In contrast, under the other
allocation alternative considered (Option 2) that would have only
allocated 90 percent of the estimated yellowtail flounder catch by the
scallop fishery based upon updated projections, the revenue at risk
would be $91,063,372 ($27,042,096 revenue at risk in the groundfish
fishery plus $64,021,277 revenue at risk in the scallop fishery) in FY
2011 using a 3 percent discount rate, or $54,274,763 more revenue at
risk than the proposed action. Thus, the proposed action put far less
fishing revenue at risk. In addition, the proposed action may also
result in less adverse biological effects on a wide range of species
compared to Option 2, because the proposed action would reduce the
likelihood that the scallop bycatch of yellowtail flounder would exceed
sub-ACLs and, therefore, the overall yellowtail flounder ABC, and
trigger AMs that would alter the distribution of scallop fishing effort
and the resulting impacts to other species.
The only other alternative considered to the proposed approval of
five new sectors is the no action alternative. The no action
alternative for this measure would not approve any new sectors for FY
2011. This may have a small adverse economic impact on permit holders
intending to participate in the Sustainable Harvest Sector III.
However, permit holders may be able to remain in or join the
Sustainable Harvest Sector that was approved under Amendment 16. If the
operations plan for the Sustainable Harvest Sector III offered reduced
operational costs to participating vessels due to the intended lease-
only status of that sector, those costs savings may not be realized
under the no action alternative.
Additional sectors were considered for approval under FW 45, but
the Council chose not to approve them because they did not submit an
operations plan to NMFS by the existing deadline of September 1.
Approval of these other sectors, the Northeast Fisheries Sector XIV and
the Sustainable Harvest Sector II, may have resulted in a small
positive economic impact since permit holders would have had more
options for which sectors to join. However, permit holders were able to
join other sectors following the Council's decision, so any impacts to
such permit holders would be minimal.
Under the no action alternative, the dockside monitoring
requirements originally implemented under Amendment 16 would be
maintained. These requirements would make sector vessels responsible
for developing and paying for a dockside/roving monitoring program
beginning in FY 2010, and an at-sea or electronic monitoring program
beginning in FY 2012, while all common pool vessels would be subject to
dockside/roving monitoring beginning in FY 2012. The no action
alternative would have resulted in an estimated annual cost of $9,841
per vessel to Handgear A, Handgear B, and Small Vessel Category
vessels. Further, the estimated $280,000 cost of dockside monitoring to
the remainder of the fishery would have been imposed on the fleet, as
well as the $5 million cost associated with at-sea monitoring during
FYs 2011 and 2012, respectively.
Failing to redistribute PSC from cancelled permits to all valid
limited access NE multispecies as of a certain date each year as part
of the no action alternative would result in continued allocation of
such PSC to the common pool. This allocation would provide some
marginal benefit to the common pool that would be redistributed to the
entire fishery under the proposed action. However, because the amount
of PSCs that have been cancelled to date represent a small amount of
fish (72,000 lb (32,659 kg) of all regulated species and ocean pout
stocks combined), the benefits are not expected to materially affect
the operations of the common pool under the no action alternative,
particularly because a majority of this PSC is pollock, a species that
has not been constraining to the operations by the common pool so far
during FY 2010.
The no action alternative would not specify stock-specific cod
limits for handgear vessels, allow such vessels increased access to the
existing seasonal closure areas, or allow LAGC vessels to fish in the
Great South Channel Exemption Area during peak yellowtail flounder
spawning periods. It would maintain the existing value of such permits,
and not improve the economic opportunity provided to these vessels as
part of the proposed action. Such an action would reduce the economic
efficiency of such vessels.
The no action alternative would also maintain the existing
recreational measures and would not implement the proposed GOM Cod
Spawning Protection Area. Since FY 2007, the number of trips taken by
charter/party vessels in the GOM has steadily declined, with gross
receipts declining by almost $2 million based on an average ticket
price of $60 per person. Thus, the no action alternative is not likely
to alter what appears to be a continuing downward trend in
participation in the charter/party fishery in the GOM in recent years.
Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule
Reporting and Recordkeeping Requirements
The only reporting and recordkeeping requirements affected by this
proposed rule are the request for a LOA to fish south of the GOM
Regulated Mesh Area by Handgear A and Handgear B vessels, or a similar
declaration via VMS prior to each trip by Handgear A vessels required
to use VMS under the existing regulations, and the trip-end hail report
already approved as part of Amendment 16. This action would not impose
any new reporting or recordkeeping requirements that have not already
been in existence. However, it would require additional vessels
(handgear vessels) to comply with the LOA requirements. Existing
reporting and recordkeeping requirements for the dockside/roving and
at-sea or electronic monitoring programs approved under Amendment 16
have been included below for reference.
The costs associated with the reporting and recordkeeping
requirements supporting measures proposed in this action are detailed
in the PRA analysis associated with Amendment 16 and the permit family
of forms for the Northeast Region of NMFS. The time burden associated
with a telephone call to request for a LOA to fish south of the GOM
Regulated Mesh Area is estimated at 5 minutes, with no costs to vessels
requesting such a LOA. The cost associated with a similar declaration
via VMS is estimated at $0.50 per submission. For the trip-end hail
reports, the yearly cost to each vessel would be approximately $17,
assuming that such reports were made via VMS. Costs to vessels
receiving
[[Page 11883]]
dockside/roving monitoring services proposed under Amendment 16 include
$10 per year for confirming pre-trip hail reports and $13 per year to
confirm trip-end hail reports and specify whether a particular trip
would be observed by a dockside monitor. Requirements to maintain and
enter data into a dockside monitoring database would cost approximately
$4,225 per service provider annually, while submitting dockside
monitoring data to NMFS would cost each service provider approximately
$36,000 per year. Similar costs to service providers are expected to
notify sector vessels of selection for at-sea/electronic monitoring
coverage ($3,125 per year) and to submit at-sea or electronic
monitoring data to NMFS ($36,000 per year).
Other Compliance Requirements
This proposed rule contains a collection-of-information requirement
subject to the PRA and which has been approved by OMB under the various
OMB control numbers listed below. Public reporting burden for these
collections of information are estimated to average, as follows:
1. VTR submissions, OMB 0648-0605, (5 min/response);
2. Sector operations plan and associated NEPA analysis,
OMB 0648-0605, (640 hr/response);
3. Dockside/at-sea monitoring service provider application,
OMB 0648-0605, (10 hr/response);
4. Dockside/at-sea monitoring service provider response to
application disapproval, OMB 0648-0605, (10 hr/response);
5. Data entry for sector discard monitoring system, OMB
0648-0605, (3 min/response);
6. Sector weekly catch report, OMB 0648-0605, (4 hr/
response);
7. Sector annual report, OMB 0648-0605, (12 hr/response);
8. Notification of expulsion from a sector, OMB 0648-0605,
(30 min/response);
9. Request to transfer ACE, OMB 0648-0605, (5 min/
response);
10. VMS certification form, OMB 0648-0605, (10 min/
response);
11. VMS confirmation call, OMB 0648-0605, (5 min/
response);
12. VMS area and DAS declaration, OMB 0648-0605, (5 min/
response);
13. VMS trip-level catch reports, OMB 0648-0605, (15 min/
response);
14. Request for a LOA to participate in the GOM Haddock Gillnet
Pilot Program, OMB 0648-0605, (5 min/response);
15. Request for a LOA to fish in a NE multispecies RGA,
OMB 0648-0605, (5 min/response);
16. VMS declaration to fish in a NE multispecies RGA, OMB
0648-0605, (5 min/response);
17. Pre-trip hail report to a dockside monitoring service provider,
OMB 0648-0605, (2 min/response);
18. Trip-end hail report to a dockside monitoring service provider,
OMB 0648-0605, (15 min/response);
19. Confirmation of dockside monitoring trip-end hail report,
OMB 0648-0605, (2 min/response);
20. Dockside/roving service provider data entry, OMB 0648-
0605, (3 min/response);
21. Dockside/roving or at-sea monitor deployment report,
OMB 0648-0605, (10 min/response);
22. Dockside/roving or at-sea monitoring service provider catch
report to NMFS upon request, OMB 0648-0605, (5 min/response);
23. Dockside/roving or at-sea monitor report of harassment and
other issues, OMB 0648-0605, (30 min/response);
24. OLE debriefing of dockside/roving or at-sea monitors,
OMB 0648-0605, (2 hr/response);
25. Copy of dockside/roving or at-sea monitoring service provider
contract upon request, OMB 0648-0605, (30 min/response);
26. Copy of dockside/roving or at-sea monitoring service provider
information materials upon request, OMB 0648-0605, (30 min/
response);
27. Observer program pre-trip notification, OMB 0648-0605,
(2 min/response);
28. Daily VMS catch reports when fishing in the U.S./Canada
Management Area and CA II SAPs, OMB 0648-0605, (15 min/
response);
29. Daily VMS catch reports when fishing in the CA I Hook Gear
Haddock SAP, OMB 0648-0605, (15 min/response);
30. Daily VMS catch reports when fishing in the Regular B DAS
Program, OMB 0648-0605, (15 min/response);
31. Copy of the dealer weigh-out slip or dealer signature of the
dockside monitor report, OMB 0648-0605, (2 min/response);
32. Forward trip start/end hails to NMFS, OMB 0648-0605 (2
min/response);
33. Notification to vessel/sector/NMFS of monitor emergency,
OMB 0648-0605 (5 min/response);
34. Initial vessel application for a limited access Handgear A
permit, OMB Control Number 0648-0202, (10 min/response);
35. DAS Transfer Program application, OMB Control Number 0648-0202,
(5 min/response);
36. VMS purchase and installation, OMB Control Number 0648-0202, (1
hr/response);
37. Automated VMS polling of vessel position twice per hour while
fishing within the U.S./Canada Area, OMB Control Number 0648-0202, (5
sec/response);
38. VMS proof of installation, OMB Control Number 0648-0202, (5
min/response);
39. Expedited submission of a proposed SAP, OMB Control Number
0648-0202, (20 hr/response);
40. Request to power down VMS for at least 1 month, OMB Control
Number 0648-0202, (5 min/response);
41. Request for an LOA to participate in the GOM Cod Landing
Exemption, OMB Control Number 0648-0202, (5 min/response);
42. Request for an LOA to participate in the Skate Bait-only
Possession Limit Exemption, OMB Control Number 0648-0202, (5 min/
response);
43. Submission of a sector allocation proposal, OMB Control Number
0648-0202, (50 hr/response);
44. DAS ``flip'' notification via VMS for the Regular B DAS pilot
program, OMB 0648-0202 (5 min/response);
45. DAS ``flip'' notification via VMS for the Eastern U.S./Canada
Haddock SAP Pilot Program, OMB 0648-0202 (5 min/response);
46. NMFS Office of Law Enforcement landings notice requirement for
Category 1 herring vessels operating with an observer waiver,
OMB 0648-0521, (5 min/response);
47. Notification and Communication with USCG and Center for Coastal
Studies, OMB 0648-0521, (10 min/response);
48. Written requests to receive a DAS credit for standing by an
entangled whale, OMB 0648-0521, (30 min/response);
49. Vessel baseline downgrade request for the DAS Leasing Program,
OMB 0648-0475, (1 hr/response);
50. Spawning block declaration, OMB 0648-0202 (2 min/
response);
51. Sector Manager daily reports for CA I Hook Gear Haddock SAP,
OMB 0648-0212 (2 hr/response);
52. DAS Leasing Program application, OMB 0648-0475 (10
min/response); and
53. Declaration of intent to fish inside and outside of the Eastern
U.S./Canada Area on the same trip, OMB 0648-0202 (5 min/
response).
Public reporting burden for these requirements includes the time
for reviewing instructions, searching existing data sources, gathering
and maintaining the data needed, andcompleting and reviewing the
collection of information. Send comments regarding these burden
estimates, or any other aspect of this
[[Page 11884]]
data collection, including suggestions for reducing the burden, to NMFS
(see ADDRESSES) and by e-mail to [email protected], or fax
to 202-395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: February 22, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons stated in the preamble, 50 CFR part 648 is proposed
to be 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.
2. In Sec. 648.10, revise paragraph (k)(1) to read as follows:
Sec. 648.10 VMS and DAS requirements for vessel owners/operators.
* * * * *
(k) * * *
(1) Reporting requirements for all limited access NE multispecies
vessel owners or operators. In addition to any other reporting
requirements specified in this part, the owner or operator of any
vessel issued a limited access NE multispecies permit on either a
common pool or sector trip must declare the following information via
VMS or IVR, as instructed by the Regional Administrator:
(i) Broad stock area(s) to be fished. To fish in any of the broad
stock areas, the vessel owner or operator must declare his/her intent
to fish within one or more of the NE multispecies broad stock areas, as
defined in paragraph (k)(3) of this section, prior to leaving port at
the start of a fishing trip;
(ii) VTR serial number. On its return to port, prior to crossing
the VMS demarcation line, as defined at Sec. 648.10, the vessel owner
or operator must provide the VTR serial number for the first page of
the VTR for that particular trip, or other applicable trip ID specified
by NMFS; and
(iii) Trip-end hail report. Unless otherwise required to comply
with both the dockside/roving monitoring trip-start and trip-end hail
reports pursuant to Sec. 648.87(b)(5), beginning in fishing year 2011
(May 1, 2011), upon its return to port and prior to crossing the VMS
demarcation line as defined in Sec. 648.10, the owner or operator of
any vessel issued a limited access NE multispecies permit that is
subject to the VMS requirements specified in paragraph (b)(4) of this
section must submit a trip-end hail report to NMFS via VMS, as
instructed by the Regional Administrator. The trip-end hail report must
include at least the following information, as instructed by the
Regional Administrator: The vessel permit number; VTR serial number, or
other applicable trip ID specified by NMFS; intended offloading
location(s), including the dealer name/offload location, port/harbor,
and State for the first dealer/facility where the vessel intends to
offload catch and the port/harbor, and State for the second dealer/
facility where the vessel intends to offload catch; estimated date/time
of arrival; estimated date/time of offload; and the estimated total
amount of all species retained, including species managed by other FMPs
(in pounds, landed weight), on board at the time the vessel first
offloads its catch from a particular trip. The trip-end hail report
must be submitted at least 6 hr in advance of landing for all trips of
at least 6 hr in duration or occurring more than 6 hr from port. For
shorter trips, the trip-end hail reports must be submitted upon the
completion of the last tow or hauling of gear, as instructed by the
Regional Administrator.
* * * * *
3. In Sec. 648.14, revise paragraph (k)(7)(i)(B); and add
paragraphs (k)(9)(i), (k)(15)(ii)(A)(5), and (k)(18)(i)(D) to read as
follows:
Sec. 648.14 Prohibitions.
* * * * *
(k) * * *
(7) * * *
(i) * * *
(B) Fish for, harvest, possess, or land regulated species in or
from the closed areas specified in Sec. 648.81(a) through (f) and (o),
unless otherwise specified in Sec. 648.81(c)(2)(iii), (f)(2)(i),
(f)(2)(iii), (f)(2)(vi), (i), (o)(2)(i), or as authorized under Sec.
648.85.
* * * * *
(9) * * *
(i) If operating under the provisions of a limited access NE
multispecies Handgear A permit south of the GOM Regulated Mesh Area, as
defined at Sec. 648.80(a)(1), fail to declare the vessel operator's
intent to fish in this area via VMS or fail to obtain or retain on
board a letter of authorization from the Regional Administrator, as
required by Sec. 648.82(b)(6)(iv).
* * * * *
(15) * * *
(ii) * * *
(A) * * *
(5) If operating under the provisions of a limited access NE
multispecies Handgear B permit south of the GOM Regulated Mesh Area, as
defined at Sec. 648.80(a)(1), fail to obtain or retain on board a
letter of authorization from the Regional Administrator, as required by
Sec. 648.88(a)(2)(iv).
* * * * *
(18) * * *
(i) * * *
(D) Offload fish before a dockside/roving monitor arrives, if
selected to have its offloading events observed by a dockside/roving
monitor, as specified by Sec. 648.87(b)(1)(v)(B)(1) and (b)(5)(i)(C).
* * * * *
4. In Sec. 648.80, revise the introductory text to paragraph
(a)(18), and remove paragraphs (a)(18)(ii)(C) and (D) to read as
follows:
Sec. 648.80 NE Multispecies regulated mesh areas and restrictions on
gear and methods of fishing.
(a) * * *
(18) Great South Channel Scallop Dredge Exemption Area. Vessels
issued a LAGC scallop permit, including limited access scallop permits
that have used up their DAS allocations, may fish in the Great South
Channel Scallop Dredge Exemption Area, as defined under paragraph
(a)(18)(i) of this section, when not under a NE multispecies or scallop
DAS or on a sector trip, provided the vessel complies with the
requirements specified in paragraph (a)(18)(ii) of this section and
applicable scallop regulations in subpart D of this chapter.
* * * * *
5. In Sec. 648.81, revise paragraphs (f)(2)(vi) and (i); and add
paragraphs (g)(2)(vi) and (o) to read as follows:
Sec. 648.81 NE multispecies closed areas and measures to protect EFH.
* * * * *
(f) * * *
(2) * * *
(vi) That are fishing on a sector trip, or under the provisions of
a Northeast multispecies Handgear A permit, as specified at Sec.
648.82(b)(6), provided such vessels comply with the following
restricted areas referred to as the Sector Rolling Closure Areas:
* * * * *
[[Page 11885]]
(g) * * *
(2) * * *
(vi) That are fishing under the provisions of a Northeast
multispecies Handgear A permit, as specified at Sec. 648.82(b)(6), or
the provisions of a Northeast multispecies Handgear B permit, as
specified at Sec. 648.88(a).
* * * * *
(i) Transiting. Unless otherwise restricted or specified in this
paragraph (i), a vessel may transit CA I, the Nantucket Lightship
Closed Area, the Cashes Ledge Closed Area, the Western GOM Closure
Area, the GOM Rolling Closure Areas, the GB Seasonal Closure Area, the
EFH Closure Areas, and the GOM Cod Spawning Protection Area, as defined
in paragraphs (a)(1), (c)(1), (d)(1), (e)(1), (f)(1), (g)(1), (h)(1),
and (o)(1), of this section, respectively, provided that its gear is
stowed in accordance with the provisions of Sec. 648.23(b). A vessel
may transit CA II, as defined in paragraph (b)(1) of this section, in
accordance with paragraph (b)(2)(iv) of this section. Private
recreational or charter/party vessels fishing under the Northeast
multispecies provisions specified at Sec. 648.89 may transit the GOM
Cod Spawning Protection Area, as defined in paragraph (o)(1) of this
section, provided all bait and hooks are removed from fishing rods, and
any regulated species on board have been caught outside the GOM Cod
Spawning Protection Area and has been gutted and stored.
* * * * *
(o) GOM Cod Spawning Protection Area. (1) Except as specified in
paragraph (o)(2) of this section, from April through June of each year,
no fishing vessel or person on a fishing vessel may enter, fish in, or
be in; and no fishing gear capable of catching NE multispecies may be
used, on, or be on board, a vessel in the GOM Cod Spawning Protection
Area, as defined by straight lines connecting the following points in
the order stated (a chart depicting this area is available from the
Regional Administrator upon request):
GOM Cod Spawning Protection Area
------------------------------------------------------------------------
Point N. latitude W. longitude
------------------------------------------------------------------------
CSPA1........................... 42[deg]50.95' 70[deg]32.22'
CSPA2........................... 42[deg]47.65' 70[deg]35.64'
CSPA3........................... 42[deg]54.91' 70[deg]41.88'
CSPA4........................... 42[deg]58.27' 70[deg]38.64'
CSPA1........................... 42[deg]50.95' 70[deg]32.22'
------------------------------------------------------------------------
(2) Paragraph (o)(1) of this section does not apply to persons on
a fishing vessel or fishing vessels:
(i) That have not been issued a NE multispecies permit and that are
fishing exclusively in State waters;
(ii) That are fishing with or using exempted gear as defined under
this part, excluding pelagic gillnet gear capable of catching NE
multispecies, except for vessels fishing with a single pelagic gillnet
not longer than 300 ft (91.4 m) and not greater than 6 ft (1.83 m)
deep, with a maximum mesh size of 3 inches (7.6 cm), provided:
(A) The net is attached to the boat and fished in the upper two-
thirds of the water column;
(B) The net is marked with the vessel owner's name and vessel
identification number;
(C) There is no retention of regulated species or ocean pout; and
(D) There is no other gear on board capable of catching NE
multispecies;
(iii) That are fishing as a charter/party or recreational fishing
vessel, provided that:
(A) With the exception of tuna, fish harvested or possessed by the
vessel are not sold or intended for trade, barter, or sale, regardless
where the species are caught;
(B) The vessel has no gear other than pelagic hook and line gear,
as defined in this part, on board unless that gear is properly stowed
pursuant to Sec. 648.23(b); and
(C) There is no retention of regulated species, or ocean pout; and
(iv) That are transiting pursuant to paragraph (i) of this section.
* * * * *
6. In Sec. 648.82, revise paragraphs (a)(2), the introductory text
of paragraph (b)(6), and (n)(2)(iv), and add paragraph (b)(6)(iv) to
read as follows:
Sec. 648.82 Effort-control program for NE multispecies limited access
vessels.
(a) * * *
(2) Notwithstanding any other provision of this part, any vessel
issued a NE multispecies limited access permit may not call into the
DAS program and fish under a DAS, fish on a sector trip, or fish under
the provisions of a limited access Small Vessel Category or Handgear A
permits pursuant to paragraphs (b)(5) and (b)(6) of this section,
respectively, if such vessel carries passengers for hire for any
portion of a fishing trip.
(b) * * *
(6) Handgear A category. A vessel qualified and electing to fish
under the Handgear A category, as described in Sec. 648.4(a)(1)(i)(A),
may retain, per trip, up to 300 lb (135 kg) of cod, one Atlantic
halibut, and the daily possession limit for other regulated species and
ocean pout, as specified under Sec. 648.86. If either the GOM or GB
cod trip limit applicable to a vessel fishing under a NE multispecies
DAS permit, as specified in Sec. 648.86(b)(1) and (b)(2),
respectively, is reduced below 300 lb (135 kg) per DAS by NMFS, the cod
trip limit specified in this paragraph (b)(6) shall be adjusted to be
the same as the applicable cod trip limit specified for NE multispecies
DAS permits. For example, if the GOM cod trip limit for NE multispecies
DAS vessels was reduced to 250 lb (113.4 kg) per DAS, then the cod trip
limit for a vessel issued a Handgear A category permit that is fishing
in the GOM Regulated Mesh Area would also be reduced to 250 lb (113.4
kg). Qualified vessels electing to fish under the Handgear A category
are subject to the following restrictions:
* * * * *
(iv) Declaration. For any such vessel that is not required to use
VMS pursuant to Sec. 648.10(b)(4), to fish for GB cod south of the GOM
Regulated Mesh Area, as defined at Sec. 648.80(a)(1), a vessel owner
or operator must obtain, and retain on board, a letter of authorization
from the Regional Administrator stating his or her intent to fish south
of the GOM Regulated Mesh Area and may not fish in any other area for a
minimum of 7 consecutive days from the effective date of the letter of
authorization. For any such vessel that is required to use VMS pursuant
to Sec. 648.10(b)(4), to fish for GB cod south of the GOM Regulated
Mesh Area, as defined at Sec. 648.80(a)(1), a vessel owner or operator
must declare his or her intent to fish south of the GOM Regulated Mesh
Area on each trip through the VMS prior to leaving port, in accordance
with instructions provided by the Regional Administrator. Such vessels
may transit the GOM Regulated Mesh Area, as defined at Sec.
648.80(a)(1), provided that their gear is stowed in accordance with the
provisions at Sec. 648.23(b).
* * * * *
(n) * * *
(2) * * *
(iv) Monitoring requirements. Except as specified in paragraph
(n)(2)(iv)(C) of this section, starting in fishing year 2012 (May 1,
2012), landings of regulated species or ocean pout by common pool
vessels shall be monitored at the point of offload by independent,
third-party service providers approved to provide such services by
NMFS, as specified in paragraphs (n)(2)(iv)(A) and (B) of this section.
Unless otherwise instructed by
[[Page 11886]]
NMFS, these service providers shall deploy dockside monitors to monitor
the offload of catch directly to a dealer, and roving monitors to
monitor the offload of catch onto a truck for subsequent shipment to a
dealer. For fishing year 2012 only, common pool vessels must comply
with any dockside/roving monitoring program specified by NMFS pursuant
to Sec. 648.87(b)(1)(v)(B)(1). None of the costs associated with
dockside/roving monitors during fishing year 2012 shall be paid by the
owner or operator of a vessel subject to these requirements. Starting
in fishing year 2013 and thereafter, the costs associated with
monitoring vessel offloads shall be the responsibility of individual
vessels, unless otherwise instructed by NMFS. An individual vessel
owner or operator may only use one dockside/roving monitoring service
provider per fishing year beginning in fishing year 2013, and must
contract for such services with a service provider approved by NMFS
pursuant to Sec. 648.87(b)(4), as instructed by the Regional
Administrator. Both common pool vessels and service providers providing
offloading monitoring services will be subject to the requirements
specified in Sec. 648.87(b)(5).
(A) Coverage levels. For fishing year 2012, dockside/roving
monitoring coverage levels shall be determined by NMFS based on
available funding. If NMFS does not require 100-percent coverage of all
common pool trips, NMFS shall first provide dockside/roving monitoring
for trips that are not also assigned an observer or at-sea monitor
pursuant to Sec. 648.11. Starting in fishing year 2013, at least 20
percent of the trips taken by vessels operating under the provisions of
the common pool shall be monitored. To ensure that these levels of
coverage are achieved, if a trip has been selected to be observed by a
dockside/roving monitor, all offloading events associated with that
trip must be monitored by a dockside/roving monitor, as specified in
paragraph (n)(2) of this section, and a vessel may not offload any of
its catch until the dockside/roving monitor arrives. For example, a
vessel offloading at more than one dealer or facility must have a
dockside/roving monitor present during offload at each location. All
landing events at remote ports that are selected to be observed by a
dockside/roving monitor must have a roving monitor present to witness
offload activities to the truck, as well as a dockside monitor present
at each dealer to certify weigh-out of all landings. Except as provided
in this paragraph (n)(2)(iv)(A) or paragraph (n)(2)(iv)(C) of this
section, or as instructed by the Regional Administrator, any service
provider providing dockside/monitoring services required under this
paragraph (n)(2)(iv) must ensure that coverage is randomly distributed
among all such trips, and that the landing events monitored are
representative of fishing operations by common pool vessels throughout
the fishing year.
(B) Dockside/roving monitor service provider standards. Starting in
fishing year 2013, a common pool vessel must employ a service provider
approved by NMFS to provide dockside/roving monitor services, as
identified by the Regional Administrator. To be approved to provide the
services specified in paragraph (n)(2) of this section, dockside/roving
monitor service providers must meet the standards in Sec.
648.87(b)(4).
(C) Exemption. Common pool vessels operating under the provisions
of either a limited access Northeast multispecies Small Vessel Category
permit or Handgear A permit, as specified at Sec. Sec. 648.82(b)(5)
and (6), respectively, or an open access Northeast multispecies
Handgear B permit, as specified at Sec. 648.88(a), are exempt from the
dockside/roving monitoring requirements specified in this paragraph
(n)(2)(iv).
* * * * *
7. In Sec. 648.87, revise the introductory text of paragraphs
(b)(1)(i)(E), (b)(1)(viii), (b)(2), and (b)(5); revise paragraphs
(b)(1)(i)(A), (b)(1)(i)(C), (b)(1)(i)(E)(1), (b)(1)(i)(E)(2)(i) and
(ii), (b)(1)(iii)(C), (b)(1)(v)(B), (b)(1)(viii)(C), and (c)(2)(i); and
add paragraphs (b)(5)(ii)(E) and (d)(20) through (24) to read as
follows:
Sec. 648.87 Sector allocation.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(A) Allocated stocks. Each sector shall be allocated a TAC in the
form of an ACE for each NE multispecies stock, with the exception of
Atlantic halibut, SNE/MA winter flounder, ocean pout, windowpane
flounder (both the GOM/GB and the SNE/MA stocks), and Atlantic wolffish
based upon the cumulative PSCs of vessels/permits participating in each
sector during a particular fishing year, as described in paragraph
(b)(1)(i)(E) of this section. In the event that a future allocation of
SNE/MA winter flounder can be made available pursuant to the biennial
adjustment or framework process specified in Sec. 648.90(a)(2), an ACE
for this stock will be specified pursuant to paragraph (b)(1)(i)(E)(1)
of this section.
* * * * *
(C) Carry-over. With the exception of GB yellowtail flounder, a
sector may carry over an amount of ACE equal to up to 10 percent of its
original ACE allocation for each stock that is unused at the end of one
fishing year into the following fishing year. Any unused ACE allocated
for Eastern GB stocks pursuant to paragraph (b)(1)(i)(B) of this
section will contribute to the 10-percent carry-over allowance for each
stock, as specified in this paragraph (b)(1)(i)(C), but will not
increase an individual sector's allocation of Eastern GB stocks during
the following year. This carry-over ACE remains effective during the
subsequent fishing year even if vessels that contributed to the sector
allocation during the previous fishing year are no longer participating
in the same sector for the subsequent fishing year.
* * * * *
(E) Potential sector contribution (PSC). For the purposes of
allocating a share of the available ACL for each NE multispecies stock
to approved sectors pursuant to Sec. 648.90(a)(4), the landings
history of all limited access NE multispecies permits shall be
evaluated to determine each permit's share of the overall landings for
each NE multispecies stock as specified in paragraphs (b)(1)(i)(E)(1)
and (2) of this section. When calculating an individual permit's share
of the overall landings for a particular regulated species or ocean
pout stock, landed weight shall be converted to live weight to maintain
consistency with the way ACLs are calculated pursuant to Sec.
648.90(a)(4) and the way ACEs are allocated to sectors pursuant to this
paragraph (b)(1)(i). This calculation shall be performed on July 1 of
each year, unless another date is specified by the Regional
Administrator, to redistribute the landings history associated with
permits that have been voluntarily relinquished or otherwise canceled
among all remaining valid limited access NE multispecies permits as of
that date during the following fishing year. The PSC calculated
pursuant to this paragraph (b)(1)(i)(E) shall remain with the permit
indefinitely, but may be permanently reduced or eliminated due to a
permit sanction or other enforcement action.
(1) Calculation of PSC for all NE multispecies stocks except GB
cod. Unless otherwise specified in paragraph (b)(1)(i)(E)(2) of this
section, for each valid limited access NE multispecies permit,
including limited access NE multispecies Handgear A permits,
[[Page 11887]]
landings recorded in the NMFS dealer database of each stock of NE
multispecies determined by NMFS to be the landings history associated
with that permit while subject to the NE multispecies regulations based
on whether the vessel fishing under that permit was issued a limited
access NE multispecies permit or subsequently qualified for a limited
access NE multispecies permit pursuant to Sec. 648.4(a)(1)(i),
including regulated species or ocean pout caught under a NE
multispecies DAS when participating in the skate or monkfish fisheries,
but excluding, for example, landings by scallop vessels operating under
a scallop DAS, shall be summed for fishing years 1996 through 2006.
This sum shall then be divided by the total landings of each NE
multispecies stock during the same period by all permits eligible to
join sectors as of May 1, 2008. The resulting figure shall then be
multiplied by a factor of 1/PSC of remaining permits as of June 1 of
each year, unless another date is specified by the Regional
Administrator, to calculate the PSC for each individual valid limited
access NE multispecies permit for each regulated species or ocean pout
stock allocated to sectors in the NE multispecies fishery for the
following fishing year pursuant to this paragraph (b)(1)(i)(E)(1).
(2) * * *
(i) GB cod PSC for permits committed to participate in the GB Cod
Hook Gear Sector or GB Cod Fixed Gear Sector. For each owner of a valid
NE multispecies permit, or CPH, that committed to participate in either
the GB Cod Hook Gear Sector or the GB Cod Fixed Gear Sector as
evidenced by a valid authorized signature executed on or before March
1, 2008, on a preliminary roster for either of these sectors, the PSC
for GB cod shall be equal to the sum of dealer landings of GB cod for
fishing years 1996 through 2001, divided by the total landings of GB
cod by permits eligible to join sectors as of May 1, 2008, during that
period. The PSC for all other regulated species or ocean pout stocks
specified for these permits shall be calculated pursuant to paragraph
(b)(1)(i)(E)(1) of this section. The PSC calculated pursuant to this
paragraph (b)(1)(i)(E)(2)(i) shall then be multiplied by a factor of 1/
PSC of remaining permits as of June 1 of each year, unless another date
is specified by the Regional Administrator, to calculate the GB cod PSC
for each permit for the following fishing year.
(ii) GB cod PSC for all other permits. For each owner of a valid NE
multispecies permit or CPH that has not committed to participate in
either the GB Cod Hook Gear Sector or GB Cod Fixed Gear Sector, as
specified in paragraph (b)(1)(i)(E)(2)(i) of this section, the GB cod
PSC for each such permit or CPH shall be based upon the GB cod PSC
available after accounting for the GB cod PSC calculated pursuant to
paragraph (b)(1)(i)(E)(2)(i) of this section. To determine the GB cod
PSC for each of these permits, the sum of the individual permit's
landings of GB cod available in the NMFS dealer database for fishing
years 1996 through 2006 shall be divided by the total landings of GB
cod during that period by the total landings of GB cod by permits
eligible to join sectors as of May 1, 2008, during that period, after
subtracting the total landings of GB cod by permits that committed to
participate in either the GB Cod Hook Sector or GB Cod Fixed Gear
Sector as of March 1, 2008. This individual share shall then be
multiplied by the available GB cod PSC calculated by subtracting the GB
cod PSC allocated pursuant to paragraph (b)(1)(i)(E)(2)(i) of this
section from one. The PSC calculated pursuant to this paragraph
(b)(1)(i)(E)(2)(ii) shall then be multiplied by a factor of 1/PSC of
remaining permits as of July 1 of each year, unless another date is
specified by the Regional Administrator, to calculate the GB cod PSC
for each permit.
* * * * *
(iii) * * *
(C) ACE buffer. At the beginning of each fishing year, NMFS shall
withhold 20 percent of a sector's ACE for each stock for a period of up
to 61 days (i.e., through June 30), unless otherwise specified by NMFS,
to allow time to process any ACE transfers submitted at the end of the
fishing year pursuant to paragraph (b)(1)(viii) of this section and to
determine whether the ACE allocated to any sector needs to be reduced,
or any overage penalties need to be applied to individual permits/
vessels in the current fishing year to accommodate an ACE overage by
that sector during the previous fishing year, as specified in paragraph
(b)(1)(iii) of this section.
* * * * *
(v) * * *
(B) Independent third-party monitoring program. A sector must
comply with any dockside/roving monitoring program specified by NMFS
for fishing years 2011 and 2012, pursuant to paragraph (b)(1)(v)(B)(1)
of this section, including the dockside/roving monitoring operational
standards specified in paragraph (b)(5) of this section, and develop
and implement an independent third-party dockside/roving monitoring
program by fishing year 2013. A sector must also develop and implement
an at-sea or electronic monitoring program by fishing year 2012 (May 1,
2012) consistent with paragraph (b)(1)(v)(B)(2) of this section. Both
the dockside/roving and at-sea or electronic monitoring program
developed by sectors must be approved by NMFS for monitoring landings
and utilization of sector ACE, as specified in this paragraph
(b)(1)(v)(B). Any service provider providing dockside/roving and at-sea
or electronic monitoring services pursuant to this paragraph
(b)(1)(v)(B) must meet the service provider standards specified in
paragraph (b)(4) of this section, and any dockside/roving and at-sea or
electronic monitoring program proposed by sectors must meet the
operational standards specified in paragraphs (b)(5) and (b)(6) of this
section, respectively, and be approved by NMFS in a manner consistent
with the Administrative Procedure Act. None of the costs associated
with any dockside/roving monitor or at-sea or electronic monitoring
requirements shall be paid by the owner or operator of a vessel subject
to these requirements during fishing years 2011 and 2012. Starting in
fishing year 2013, sectors shall be responsible for paying the costs
associated with dockside/roving and at-sea or electronic monitoring
coverage, unless otherwise instructed by NMFS.
(1) Dockside/roving monitoring program. Dockside/roving monitors
shall monitor landings of regulated species and ocean pout at every
offload for which a trip has been selected to be observed by a
dockside/roving monitor, whether directly to a Federally permitted
dealer or to a truck for transfer to a Federally permitted dealer, to
verify such landings at the time the landings are weighed by a
Federally permitted dealer and to certify the landing weights are
accurate as reported on the dealer report. Unless otherwise specified
in this part, the level of coverage for landings is specified in
paragraph (b)(1)(v)(B)(3) of this section. To ensure that these levels
of coverage are achieved, if a trip has been selected to be observed by
a dockside/roving monitor, all offloading events associated with that
trip, regardless of how many or the location of offloading events, must
be monitored, and a vessel may not offload any of its catch until the
dockside/roving monitor arrives. For example, if a trip is selected to
be observed by a dockside/roving monitor, a vessel offloading at more
than one dealer or facility must have a dockside/roving monitor present
during the offload at each location. All landing events at remote ports
that are selected to be observed by a dockside/roving
[[Page 11888]]
monitor must have a roving monitor present to witness offload
activities to the truck, as well as a dockside monitor present at each
dealer to certify weigh-out of all landings. Any service provider
providing dockside/roving monitoring services pursuant to this
paragraph (b)(1)(v)(B)(1) must meet the service provider standards
specified in paragraph (b)(4) of this section. The details of the
dockside/roving monitoring program used by each sector starting in
fishing year 2013 pursuant to paragraph (b)(1)(v)(B) of this section
must be specified in the sector's operations plan, and must be
consistent with the operational standards specified in paragraph (b)(5)
of this section. The Regional Administrator shall review the dockside/
roving monitoring program and approve/disapprove it as part of the
yearly operations plan in a manner consistent with the Administrative
Procedure Act. Common pool vessels operating under the provisions of
the either a limited access Northeast multispecies Small Vessel
Category permit or Handgear A permit, as specified at Sec. Sec.
648.82(b)(5) and (b)(6), respectively, or an open access Northeast
multispecies Handgear B permit, as specified at Sec. 648.88(a), are
exempt from the dockside/roving monitoring requirements specified in
this paragraph (b)(1)(v)(B)(1). Except as provided in this paragraph
(b)(1)(v)(B)(1), all common pool and sector vessels, along with service
providers providing dockside monitoring services, will be subject to
the dockside monitoring operational requirements specified at Sec.
648.87(b)(5).
(2) At-sea or electronic monitoring program. Beginning in fishing
year 2012, in addition to any dockside/roving monitoring requirement
implemented pursuant to paragraph (b)(1)(v)(B)(1) of this section, an
at-sea or electronic monitoring program must be implemented by each
sector to verify area fished, as well as catch and discards by species
and gear type. A sector may elect to develop an at-sea or electronic
monitoring program before fishing year 2012 and specify the details of
such a program in its operations plan. Electronic monitoring may be
used in place of actual observers if the technology is deemed
sufficient by NMFS for a specific trip type based on gear type and area
fished, in a manner consistent with the Administrative Procedure Act.
No electronic monitoring technology may be used in place of an at-sea
monitor, unless approved by NMFS as part of the sector's annual
operations plan. If either an at-sea monitor or electronic monitoring
is assigned to a particular trip, a vessel may not leave port without
the appropriate at-sea monitor or electronic monitoring equipment on
board. The at-sea or electronic monitoring program developed and
implemented by each sector must be consistent with the operational
standards specified in paragraph (b)(6) of this section, with details
of the program specified in the sector's annual operations plan. The
Regional Administrator shall review the at-sea or electronic monitoring
program and approve/disapprove it as part of the annual operations plan
in a manner consistent with the Administrative Procedure Act. The level
of coverage for operations by sector vessels is specified in paragraph
(b)(1)(v)(B)(3) of this section.
(3) Coverage levels. Except as specified in paragraph
(b)(1)(v)(B)(3)(i), any service provider providing dockside/roving or
at-sea or electronic monitoring services required under this paragraph
(b)(1)(v)(B)(3) must provide coverage that is fair and equitable, and
distributed in a statistically random manner among all trips such that
coverage is representative of fishing activities by all vessels within
the common pool or each sector, and by all operations of common pool
vessels or vessels operating in each sector throughout the fishing
year.
(i) Dockside/roving monitoring. For fishing years 2011 and 2012,
NMFS shall determine the level of coverage for any NMFS-sponsored
dockside/roving monitoring program specified pursuant to paragraph
(b)(1)(v)(B)(1) of this section based on available funding. If 100-
percent coverage of all sector and common pool trips is not possible,
NMFS shall first provide coverage to trips without an observer or at-
sea monitor assigned pursuant to Sec. 648.11(k), or approved
electronic monitoring equipment assigned pursuant to paragraph
(b)(1)(v)(B) of this section for sector vessels. Starting in fishing
year 2013, at least 20 percent of all sector and common pool trips
shall be monitored by dockside/roving monitors.
(ii) At-sea or electronic monitoring. For fishing year 2012,
coverage levels for an at-sea or electronic monitoring program
developed by a sector shall be specified by NMFS based upon the amount
of funding available to support sector at-sea or electronic monitoring
programs for that fishing year. Starting in fishing year 2013, coverage
levels for an at-sea or electronic monitoring program shall be
specified by NMFS, but shall be less than 100 percent of all sector
trips. Such coverage levels must be sufficient to at least meet the
Standardized Bycatch Reporting Methodology and accurately monitor
sector operations. In the event that a NMFS-sponsored observer and a
third-party at-sea monitor are assigned to the same trip, only the NMFS
observer is required to observe that trip.
(4) Hail reports. For the purposes of the dockside/roving and at-
sea monitoring requirements specified in this paragraph (b)(1)(v)(B),
sector vessels must submit all hail reports for a sector trip in which
the NE multispecies catch applies against the ACE allocated to a
sector, as specified in this part, to service providers offering
dockside/roving and at-sea monitoring services pursuant to this
paragraph (b)(1)(v)(B). The mechanism and timing of the transmission of
such hail reports must be consistent with instructions provided by the
Regional Administrator for any dockside/roving monitoring program
required by paragraph (b)(1)(v)(B)(1) of this section, or specified in
the annual sector operations plan, consistent with paragraphs (b)(5)
and (b)(6) of this section.
(5) Notification of service provider change. If for any reason a
sector decides to change approved service providers used to provide
dockside/roving or at-sea or electronic monitoring services required in
this paragraph (b)(1)(v), the sector manager must first inform NMFS in
writing in advance of the effective date of the change in approved
service providers in conjunction with the submission of the next weekly
sector catch report specified in paragraph (b)(1)(vi)(B) of this
section. A sector may employ more than one service provider at any
time, provided any service provider employed by a sector meets the
standards specified in paragraph (b)(4) of this section.
* * * * *
(viii) ACE transfers. All or a portion of a sector's ACE for any NE
multispecies stock may be transferred to another sector at any time
during the fishing year and up to 2 weeks into the following fishing
year (i.e., through May 14), unless otherwise instructed by NMFS, to
cover any overages during the previous fishing year. A sector is not
required to transfer ACE to another sector. An ACE transfer only
becomes effective upon approval by NMFS, as specified in paragraph
(b)(1)(viii)(B) of this section.
* * * * *
(C) Duration of transfer. Notwithstanding ACE carried over into the
next fishing year pursuant to paragraph (b)(1)(i)(C) of this section,
ACE transferred pursuant to this
[[Page 11889]]
paragraph (b)(1)(viii) is only valid for the fishing year in which the
transfer is approved, with the exception of ACE transfer requests that
are submitted up to 2 weeks into the subsequent fishing year to address
any potential ACE overages from the previous fishing year, as provided
in paragraph (b)(1)(iii) of this section, unless otherwise instructed
by NMFS.
* * * * *
(2) Operations plan and sector contract. To be approved to operate,
each sector must submit an operations plan and preliminary sector
contract to the Regional Administrator no later than September 1 prior
to the fishing year in which the sector intends to begin operations,
unless otherwise instructed by NMFS. A final roster, sector contract,
and list of Federal and State permits held by participating vessels for
each sector must be submitted by December 1 prior to the fishing year
in which the sector intends to begin operations, unless otherwise
instructed by NMFS. The operations plan may cover a 1- or 2-year
period, provided the analysis required in paragraph (b)(3) of this
section is sufficient to assess the impacts of sector operations during
the 2-year period and that sector membership, or any other parameter
that may affect sector operations during the second year of the
approved operations plan, does not differ to the point where the
impacts analyzed by the supporting NEPA document are compromised. Each
vessel and vessel operator and/or vessel owner participating in a
sector must agree to and comply with all applicable requirements and
conditions of the operations plan specified in this paragraph (b)(2)
and the letter of authorization issued pursuant to paragraph (c)(2) of
this section. It shall be unlawful to violate any such conditions and
requirements unless such conditions or restrictions are identified in
an approved operations plan as administrative only. If a proposed
sector does not comply with the requirements of this paragraph (b)(2),
NMFS may decline to propose for approval such sector operations plans,
even if the Council has approved such sector. At least the following
elements must be contained in either the final operations plan or
sector contract submitted to NMFS:
* * * * *
(5) Dockside monitoring operational standards. In addition to the
independent third-party monitoring provider standards specified in
paragraph (b)(4) of this section, any dockside monitoring program
developed by NMFS pursuant to paragraph (b)(1)(v)(B)(1) of this section
must meet the following operational standards to be approved by NMFS:
(ii) * * *
(E) Inspection of fish holds. A dockside/roving monitor assigned to
observe the offloading of fish from a particular trip shall inspect the
fish holds, or any other areas of the vessel in which fish are stored,
to determine if all fish are offloaded for that particular trip.
* * * * *
(c) * * *
(2) * * *
(i) Regulations that may not be exempted for sector participants.
The Regional Administrator may not exempt participants in a sector from
the following Federal fishing regulations: NE multispecies year-round
closure areas; permitting restrictions (e.g., vessel upgrades, etc.);
gear restrictions designed to minimize habitat impacts (e.g., roller
gear restrictions, etc.); and reporting requirements. For the purposes
of this paragraph (c)(2)(i), the DAS reporting requirements specified
at Sec. 648.82; the SAP-specific reporting requirements specified at
Sec. 648.85; and the reporting requirements associated with a dockside
monitoring program specified in paragraph (b)(5)(i) of this section are
not considered reporting requirements, and the Regional Administrator
may exempt sector participants from these requirements as part of the
approval of yearly operations plans. This list may be modified through
a framework adjustment, as specified in Sec. 648.90.
* * * * *
(d) * * *
(20) State of Maine Permit Banking Sector.
(21) State of Rhode Island Permit Bank sector.
(22) State of New Hampshire Permit Bank Sector.
(23) State of Massachusetts Permit Bank Sector.
(24) Sustainable Harvest Sector III.
8. In Sec. 648.88, revise paragraph (a)(1), and add paragraph
(a)(2)(iv) to read as follows:
Sec. 648.88 Multispecies open access permit restrictions.
(a) * * *
(1) The vessel may possess and land up to 75 lb (90.7 kg) of cod,
and up to the landing and possession limit restrictions for other NE
multispecies specified in Sec. 648.86, provided the vessel complies
with the restrictions specified in paragraph (a)(2) of this section. If
either the GOM or GB cod trip limit applicable to a vessel fishing
under a NE multispecies DAS permit, as specified in Sec. 648.86(b)(1)
and (2), respectively, is adjusted by NMFS, the cod trip limit
specified in this paragraph (a)(1) shall be adjusted proportionally
(rounded up to the nearest 25 lb (11.3 kg)). For example, if the GOM
cod trip limit specified at Sec. 648.86(b)(1) doubled, then the cod
trip limit for the Handgear B category fishing in the GOM Regulated
Mesh Area would also double to 150 lb (68 kg).
(2) * * *
(iv) Declaration. To fish for GB cod south of the GOM Regulated
Mesh Area, as defined at Sec. 648.80(a)(1), a vessel owner or operator
must obtain, and retain on board, a letter of authorization from the
Regional Administrator declaring his or her intent to fish south of the
GOM Regulated Mesh Area, and may not fish in any other area for a
minimum of 7 consecutive days from the effective date of the letter of
authorization. Such a vessel may transit the GOM Regulated Mesh Area,
provided that their gear is stowed in accordance with the provisions at
Sec. 648.23(b).
* * * * *
9. In Sec. 648.89, revise paragraph (e)(1) to read as follows:
Sec. 648.89 Recreational and charter/party vessel restrictions.
* * * * *
(e) * * *
(1) GOM Closed Areas. Unless otherwise specified in this paragraph
(e)(1) of this section, a vessel fishing under charter/party
regulations may not fish in the GOM closed areas specified at Sec.
648.81(d)(1) through (f)(1) during the time periods specified in those
paragraphs, unless the vessel has on board a valid letter of
authorization issued by the Regional Administrator pursuant to Sec.
648.81(f)(2)(iii) and paragraph (e)(3) of this section. The conditions
and restrictions of the letter of authorization must be complied with
for a minimum of 3 months if the vessel fishes or intends to fish in
the seasonal GOM closure areas; or for the rest of the fishing year,
beginning with the start of the participation period of the letter of
authorization, if the vessel fishes or intends to fish in the year-
round GOM closure areas. A vessel fishing under charter/party
regulations may not fish in the GOM Cod Spawning Protection Area
specified at Sec. 648.81(o)(1) during the time period specified in
that paragraph, unless the vessel complies with the requirements
specified at Sec. 648.81(o)(2)(iii).
* * * * *
10. In Sec. 648.90, revise paragraph (a)(4)(iii)(E)(2) to read as
follows:
[[Page 11890]]
Sec. 648.90 NE multispecies assessment, framework procedures and
specifications, and flexible area action system.
(a) * * *
(4) * * *
(iii) * * *
(E) * * *
(2) Commercial allocation. The ABC/ACL for regulated species or
ocean pout stocks available to the commercial NE multispecies fishery,
after consideration of the recreational allocation pursuant to
paragraph (a)(4)(iii)(E)(1) of this section, shall be divided between
sectors operating under an approved sector operations plan, as
described at Sec. 648.87(c), and vessels operating under the
provisions of the common pool, as defined in this part, based upon the
cumulative PSCs of vessels/permits participating in sectors calculated
pursuant to Sec. 648.87(b)(1)(i)(E). Unless otherwise specified in
paragraph (a)(5) of this section, regulated species or ocean pout catch
by common pool and sector vessels shall be deducted from the sub-ACL/
ACE allocated pursuant to this paragraph (a)(4)(iii)(E)(2) for the
purposes of determining whether adjustments to common pool measures are
necessary, pursuant to the common pool AMs specified in Sec.
648.82(n), or whether sector ACE overages must be deducted, pursuant to
Sec. 648.87(b)(1)(iii).
* * * * *
[FR Doc. 2011-4395 Filed 2-28-11; 11:15 am]
BILLING CODE 3510-22-P