[Federal Register Volume 76, Number 79 (Monday, April 25, 2011)]
[Rules and Regulations]
[Pages 23042-23076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9705]
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Vol. 76
Monday,
No. 79
April 25, 2011
Part III
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; Final Rule and Interim
Final Rule
Federal Register / Vol. 76 , No. 79 / Monday, April 25, 2011 / Rules
and Regulations
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 100923469-1211-02]
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: Final rule.
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SUMMARY: This final rule partially approves Framework Adjustment (FW)
45 to the NE Multispecies Fishery Management Plan (FMP) and implements
the approved measures. FW 45 was developed by the New England Fishery
Management Council (Council) to make adjustments necessary to ensure
that conservation and management objectives of the FMP, including
preventing overfishing, rebuilding overfished stocks, achieving optimum
yield (OY), and minimizing the economic impact of management measures
on affected vessels, are being met in accordance with the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Specifically, this action revises the biological reference points and
stock status for pollock, updates annual catch limits (ACLs) for
several stocks for fishing years (FYs) 2011-2012, adjusts the
rebuilding program for Georges Bank (GB) yellowtail flounder, increases
scallop vessel access to the Great South Channel Exemption Area,
approves five new sectors, modifies the existing dockside and at-sea
monitoring requirements, revises several sector administrative
provisions, establishes a Gulf of Maine (GOM) Cod Spawning Protection
Area, and refines measures affecting the operations of NE multispecies
vessels fishing with handgear. This action approves the Council's
proposed FY 2011 U.S./Canada Management Area total allowable catch
(TAC), acceptable biological catch (ABC), and ACL for GB yellowtail
flounder, but replaces them with new catch limits for this stock
through a parallel emergency action, included as part of this final
rule, based on the International Fisheries Agreement Clarification Act
(IFACA) that provides new flexibility in setting catch limits for this
stock. In addition, this action disapproves a measure to delay fishing
industry responsibility for paying for at-sea monitoring coverage costs
in FY 2012. This action is necessary to ensure that the fishery is
managed on the basis of the best available science, to comply with the
ABC control rules adopted in Amendment 16 to the FMP, and to enhance
the viability of the fishery.
DATES: This rule is effective at 0001 hr on May 1, 2011. The
specification of the GB yellowtail flounder ABC and ACL and their
distribution are effective May 1, 2011, through October 24, 2011.
ADDRESSES: Copies of FW 45, its Regulatory Impact Review (RIR), a draft
of the environmental assessment (EA) prepared for this action, and the
draft 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. A supplemental EA was also prepared for this
action that outlines analysis in support of increased FY 2011 GB
yellowtail flounder U.S./Canada Management Area TAC, ABC, and ACL
implemented by this action. Also, an errata sheet was prepared to
augment the FW 45 EA's analysis of the impacts of the proposed action
on distinct population segments of Atlantic sturgeon and loggerhead sea
turtles. The draft IRFA prepared by the Council was expanded upon in
the preamble to the proposed rule for this action. The Final Regulatory
Flexibility Act (FRFA) analysis consists of the IRFA, public comments
and responses, and the summary of impacts, and alternatives contained
in the Classification section of the preamble of this final rule and
applicable sections of Framework 45. Copies of the small entity
compliance guide, the errata sheet for the FW 45 EA, and the
supplemental EA associated with this action are available from Patricia
A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 55
Great Republic Drive, Gloucester, MA 01930-2298. The FW 45 EA/RIR/IRFA,
errata sheet, supplemental EA prepared for this action, and 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
Amendment 13 (April 27, 2004; 69 FR 22906) 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. In addition to revising existing days-at-sea
(DAS) measures and substantially expanding sector measures, Amendment
16 (April 9, 2010; 75 FR 18262) established a process for specifying
ABCs and ACLs and distributing available catch among components of the
fishery that catch regulated species and ocean pout, and also specified
accountability measures (AMs) necessary to prevent overfishing on these
stocks and address 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.
The Council developed FW 45 as part of the established framework
adjustment process to revise measures necessary to ensure consistency
with the FMP in order to prevent overfishing and rebuild overfished
stocks, while achieving OY in the fishery and minimizing economic
impact to the extent practicable. Updated stock assessments for pollock
and GB yellowtail flounder conducted in 2010 require the ACLs
originally established under FW 44 pursuant to the ABC/ACL process
established in Amendment 16 to be updated based upon revised stock
status for pollock and a revised rebuilding program for GB yellowtail
flounder. 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.
[[Page 23043]]
This rule also implements the parallel, but separate, emergency
action that replaces the FW 45 FY 2011 GB yellowtail flounder TAC, ABC,
and ACL based on the flexibility to increase catch limits provided by
the IFACA, which President Obama signed into law on January 4, 2011.
This Act provides authority to the Council and NMFS to increase the FY
2011 U.S./Canada Management Area TAC, ABC, and ACL for GB yellowtail
flounder originally proposed by the Council under FW 45 and approved by
this action. Specifically, the new statute recognizes the U.S./Canada
Resource Sharing Understanding (Understanding) as an international
agreement for the purposes of section 304(e)(4)(A)(ii) of the Magnuson-
Stevens Act. Based on this recognition, the IFACA provides for
additional flexibility regarding the range of catch levels that may be
considered for GB yellowtail flounder, and allows for a higher yearly
TAC and, therefore, ABC and ACL for this stock in FY 2011, provided
that overfishing is ended immediately and that the fishing mortality
rate (F) ensures rebuilding consistent with the Understanding. The
justification for implementing these increases through emergency
action, as provided for in section 305(c) of the Magnuson-Stevens Act,
is explained in the preamble to the proposed rule and is not repeated
here.
Following the passage of the IFACA, NMFS requested a special
meeting of the Transboundary Management Guidance Committee (TMGC), a
group that consists of NMFS, Council members and staff, and United
States fishing industry representatives and their counterparts in the
Department of Fisheries and Ocean of Canada (DFO) that makes
recommendations of the yearly TACs for stocks managed by the
Understanding, to reconsider the FY 2011 U.S./Canada Management Area
TAC for GB yellowtail flounder pursuant to the IFACA and the
Understanding. On February 9, 2011, the TMGC held a conference call to
consider revising the FY 2011 TAC for this stock, and concluded that
the original combined U.S./Canada Management Area TAC for GB yellowtail
flounder (1,900 mt) could be increased to 2,650 mt for FY 2011.
A proposed rule to implement measures proposed in FW 45 was
published on March 3, 2011 (76 FR 11858), with public comments accepted
through March 18, 2011. That proposed rule included a detailed
description of the proposed management measures, and other factors that
influenced the development of this action. Specifically, that rule
indicated that NMFS was considering disapproving the FY 2011 GB
yellowtail flounder U.S./Canada Management Area TAC adopted by the
Council under FW 45, and implementing the increased TAC for this stock
agreed to by the TMGC on February 9, 2011, through a parallel, but
separate emergency action pursuant to section 305(c) of the Magnuson-
Stevens Act. This parallel emergency action was proposed and justified
in the same Federal Register notice as the proposed rule for this
action, and is being promulgated as a final rule in this action as
well. NMFS also published, at the same time as and in conjunction with
the proposed rule for FW 45, a proposed rule to approve the FY 2011
operations plans and sector contracts for 19 sectors authorized by
Amendment 16 and FW 45 (February 28, 2011; 76 FR 10852). Public
comments on that rule were accepted through March 15, 2011. If
approved, that rule would also specify the annual catch entitlements
(ACEs, or sector quotas) for each stock allocated to each sector
pursuant to Amendment 16 and sector rosters submitted to NMFS on
December 1, 2010. This roster deadline was later extended to allow
vessels involved in an ownership change to either join a sector or
change its sector affiliation. A final rule implementing approved FY
2011 sector operations plans and ACE is expected to publish in
conjunction with this final rule and become effective on May 1, 2011.
Disapproved Measures
Delay in Industry Responsibility for At-Sea Monitoring Coverage
In Amendment 16, the Council established monitoring measures to
ensure that sector allocations of the ACLs for particular species could
be accurately monitored. These measures included the requirement for
sectors to develop and pay for an at-sea monitoring program beginning
in FY 2012 that meet a minimum level of coverage based on the precision
of bycatch estimates. In the development of these measures, the Council
noted that ``effective management of sectors requires that catch be
accurately known.'' Thus, the at-sea monitoring provisions were
developed to ensure that landings were accurately monitored for each
sector.
To reduce monitoring costs to industry, the Council proposed to
delay the requirement for the fishing industry to pay for at-sea
monitoring coverage in FW 45 by one year. However, without industry
funding, NMFS funding would be the sole source for any at-sea or
observer monitoring coverage during FY 2012. During the deliberation of
this measure, NMFS expressed continued concern about the Council's
reliance upon NMFS funding to fully support a provision required by the
FMP, particularly the specific at-sea monitoring coverage levels
outlined for sector-developed at-sea monitoring programs in Amendment
16 for FY 2012. 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 at-sea monitoring coverage requirements in the FMP. The NMFS
budget for FY 2012 has yet to be finalized. Accordingly, NMFS remains
uncertain whether sufficient funding will exist in FY 2012 to provide
sufficient coverage to accurately monitor sector catch, as required
under Amendment 16.
NMFS has determined, therefore, that the proposed delay of industry
funding for at-sea monitoring coverage in FY 2012 is inconsistent with
the FMP and the requirements of the Magnuson-Stevens Act. First, such a
delay, without sufficient federal funding for at-sea monitoring, would
likely fail to maintain conservation and management measures that are
necessary and appropriate for the conservation and management of the
fishery to prevent overfishing and rebuild overfished stocks, as
required by section 303(a)(1) of the Magnuson-Stevens Act. As noted
above, Amendment 16 indicated that sufficient at-sea monitoring
coverage is necessary to ensure that catch is accurately known. Without
the requirement for the industry to fund at sea monitoring in the
absence of sufficient federal funding, it would not likely be possible
to obtain sufficient accurate catch information, including information
on discards that is most reliably acquired through observer and at-sea
monitoring coverage. As a result, it would not likely be possible to
effectively estimate F, evaluate whether overfishing is occurring, and
develop ACLs and other measures that would prevent overfishing and
rebuild overfished stocks. Further, by reducing the likelihood that
sufficient funding will be available to provide adequate at-sea
monitoring coverage necessary to accurately monitor catch in the
fishery, the disapproved measure would have undermined measures in
Amendment 16 that helped to ensure that the standardized reporting
methodology is capable of assessing the amount and type of bycatch
occurring in the fishery, as required in section 303(a)(11).
Accordingly, NMFS has disapproved
[[Page 23044]]
the measure to delay making the industry responsible for the costs
associated with at-sea monitoring in FY 2012 to the extent that the
federal funds are not available. NMFS intends to pay for at least some
level of at-sea monitoring coverage in 2012, as it has done every year,
based on the amount of available funding, and will work toward trying
to secure the funds necessary to fully support such coverage in 2012.
However, industry shall be responsible for that balance of at-sea
monitoring coverage costs that are not covered by available Federal
funding starting in FY 2012.
Approved Measures
The following summarizes the approved FW 45 measures, 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 final
rule also includes, through authority granted to NMFS by section 305(d)
of the Magnuson-Stevens Act, revisions to regulations that are not
specifically identified in FW 45, but that are necessary to implement
measures to achieve, but not exceed the sub-ACLs available to the
common pool fishery during FY 2011 and to correct errors in, or
clarify, existing provisions, as described further below. A more
detailed explanation of the rationale for each approved measure can be
found in the proposed rule for this action.
Although NMFS proposed to disapprove the FY 2011 GB yellowtail
flounder U.S./Canada Management Area TAC, ABC, and ACL originally
adopted by the Council under FW 45, NMFS ultimately decided not to
disapprove these measures through this final rule, based upon further
review of the FW 45 measures and applicable law. Disapproval of the
TAC, ABC, and ACL proposed by FW 45 was not appropriate, because
disapproval of a measure is only permissible if it is inconsistent with
Magnuson-Stevens Act requirements and other applicable law. In the
context of FW 45, these catch limits are consistent with the FMP and
the Magnuson-Stevens Act requirements and other applicable law. These
catch limits comply with the Magnuson-Stevens Act requirements to end
overfishing and rebuild overfished stocks within 10 years. In addition,
the FW 45 catch limits comply with the advice of the Council's
Scientific and Statistical Committee in setting an ABC for this stock
using the ABC control rule specified in the FMP and the best available
scientific information. Further, the FW 45 ABC and ACL for GB
yellowtail flounder incorporate both scientific and management
uncertainty, consistent with the National Standard 1 guidelines. The
fact that these proposed specifications for GB yellowtail flounder
could be increased pursuant to IFACA does not undermine their
approvability in FW 45. Moreover, if the emergency rule increasing the
ACL expires before the Council has recommended a new ACL for FY 2012,
the approved Framework 45 measure could go into place automatically,
thereby avoiding a gap in TACs, ABCs and ACLs for this stock.
Accordingly, this final rule approves the FY 2011 GB yellowtail
flounder TAC, ABC, and ACL in FW 45, but temporarily replaces them,
through NMFS' emergency action authority provided in section 305(c) of
the Magnuson-Stevens Act, with the revised TAC, ABC, and ACL described
further below in Item 5 of this preamble.
This parallel emergency action increasing FW 45's specifications of
FY 2011 GB yellowtail flounder U.S./Canada Management Area TAC, ABC,
and ACL is justifed by, and based on, new legal authority stemming from
the January 4, 2011, enactment of the IFACA, as more fully explained in
the preamble to the proposed rule for this action. Pursuant to the
requirements of IFACA that any new catch levels still prevent
overfishing and are consistent with the U.S. Canada Understanding, NMFS
held a TMGC conference call. As noted in the preamble of the proposed
rule for this action, based on this TMGC conference call, a report was
generated that concluded that the higher FY 2011 TAC for this stock
specified in the proposed rule for this action and described further in
Item 5 of this preamble would still likely prevent overfishing (i.e.,
result in a F below F at maximum sustainable yield (FMSY, or
Fref, as listed in the Understanding)) and result in a 5
percent increase in median biomass from 2011 to 2012. Therefore, the
increased TAC is consistent with the provisions of the IFACA and
National Standards 1 and 8 of the Magnuson-Stevens Act because it
prevents overfishing, is consistent with the F outlined in the
Understanding, continues to rebuild this overfished stock, optimizes
OY, and minimizes adverse economic impacts to fishing communities
through higher catch limits and increased revenues, without
compromising conservation objectives of the FMP and applicable law.
Further, consistent with National Standard 9 of the Magnuson-Stevens
Act, an increased TAC reduces bycatch and associated bycatch mortality
in the fishery by increasing the amount of GB yellowtail flounder that
can be caught during FY 2011 and minimizing incentives to discard this
stock and others caught concurrently. However, this increase in catch
limits for GB yellowtail flounder is only valid for the duration of the
emergency and one extension (i.e., FY 2011). To justify comparable
increases in catch limits for future fishing years, the Council must
adjust the FMP to establish a new rebuilding program and timeline
consistent with IFACA as more fully discussed below in item 2.
1. Status Determination Criteria for Pollock
Based upon an updated peer-reviewed benchmark stock assessment
conducted in July 2010 (Stock Assessment Workshop, or SAW, 50), pollock
is not overfished or subject to overfishing. Thus, this species no
longer requires the rebuilding program established in Amendment 16. As
noted in the preamble of the proposed rule for this action, NMFS
implemented an emergency action on 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. These increased catch limits were renewed through July 17,
2011, or until replaced by another action through a notice published on
December 1, 2010 (75 FR 74661). Therefore, formally integrating the
results of the 2010 pollock stock assessment, updated status
determination criteria, ABC, and ACLs for this species into the FMP
through this final rule is necessary to replace the measures
implemented by the emergency action that would expire in July 2011.
Table 1 lists the 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 F threshold is the FMSY
proxy, or F40%MSP.
[[Page 23045]]
Table 1--Description of the Updated Pollock Status Determination Criteria
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Minimum biomass Maximum fishing
Species Biomass target (Btarget) threshold mortality threshold
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Pollock........................... SSBMSY: SSB/R (40%MSP) \1/2\ Btarget F40%MSP
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Table 2--Numerical Estimates for the Updated Pollock Status Determination Criteria
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Maximum
fishing
Biomass target mortality
Species (SSBMSY or threshold MSY in mt
proxy) in mt (FMSY or
proxy)
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Pollock......................................................... 91,000 0.41 16,200
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2. Rebuilding Program for GB Yellowtail Flounder
Recent estimates of the status of GB yellowtail flounder 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 report concludes that
it is not possible to rebuild this stock by 2014, the end of the eight-
year rebuilding period originally adopted in FW 42 (October 23, 2006;
71 FR 62156), with a 75 percent probability of success even at F = 0.
Accordingly, this action revises the GB yellowtail flounder rebuilding
program to rebuild the stock by 2016, with a 50-percent probability of
success. This revision extends the rebuilding program for this stock
out to a 10-year rebuilding period and lowers 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.
IFACA allows the Secretary and the Council to extend the rebuilding
period for stocks, or portions of stocks, managed by the Understanding.
However, because IFACA was enacted after FW 45 was developed and
approved by the Council, the extension of the rebuilding period for GB
yellowtail flounder was restricted to 10 years. To maintain increases
in GB yellowtail flounder catch comparable to the emergency increase
for FY 11 after the emergency increase for FY 2011 expires, the Council
would need to consider revising the FMP's rebuilding program and
timeline for this stock consistent with the flexibility provided by
IFACA. This would allow the Council to further mitigate the adverse
economic impacts of efforts to rebuild this stock beyond that which was
considered by the Council in the development of the revised GB
yellowtail flounder rebuilding program included in FW 45. Therefore,
NMFS recommends that the Council reevaluate the GB yellowtail flounder
rebuilding program approved under FW 45, and consider extending the
rebuilding program for this stock consistent with IFACA and
implementing, if justified, the higher catch limits for this stock for
future FYs.
3. Overfishing Levels and ABCs for Particular Stocks
This action revises the 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 on the flexibility afforded by
IFACA 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 TAC levels, as
further described in Item 5 of this preamble. Table 3 contains the OFLs
and ABCs for FYs 2011 and 2012 approved under FW 45, with the exception
of GB yellowtail flounder.
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 TMGC, pursuant to the Understanding and the flexibility afforded by
the IFACA. 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 that is available to the U.S.
fishery also represents the ABC for this stock. The revised ABC agreed
to by the TMGC is consistent with the provisions of IFACA and the
harvest strategy of the Understanding that requires overfishing to be
prevented and the facilitation of the rebuilding of overfished stocks.
NMFS is implementing the revised FY 2011 ABC 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, as further described in the proposed rule for this action. As
noted above, the duration of this proposed revision to the GB
yellowtail flounder ABC is limited by the Magnuson-Stevens Act to 180
days (i.e., through October 24, 2011), but may be extended to make the
revised ABC and ACL effective for the duration of FY 2011 (through
April 30, 2012).
[[Page 23046]]
Table 3--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 2011 FY 2012
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GB cod.......................................... 7,311 * 8,090 4,766 * 5,364
GB haddock...................................... 59,948 * 51,150 34,244 * 29,016
GB yellowtail flounder:
Proposed in FW 45........................... 3,495 * 4,335 ** 1,458 * 1,222
Emergency Action............................ 3,495 * 4,335 1,099 * 1,222
White hake...................................... 4,805 5,306 3,295 3,638
Pollock......................................... 21,853 19,887 16,900 15,400
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* Preliminary estimates that may be revised in 2012 based on TRAC and TMGC considerations.
** This value represents the flexibility afforded by IFACA and described further in Item 5 of this preamble that
supersedes the 1,099 mt FY 2011 GB yellowtail flounder U.S. ABC originally adopted by the Council in FW 45.
4. Revisions to ACLs
Similar to adjustments in the OFLs and ABCs described in Item 3 of
this preamble, this action revises the ACLs for several stocks,
including GB cod, GB haddock, GB yellowtail flounder, white hake, and
pollock. Pursuant to Magnuson-Stevens Act requirements and the process
specified in Amendment 16, the ACLs adopted in this action are lower
than the ABCs listed above for these stocks to account for management
uncertainty, as detailed in Appendix II of FW 45 (see ADDRESSES) and
summarized in the proposed rule for this action. For most stocks and
components of the fishery (ABC components), the default adjustment
(reduction) to the catch level for a fishery component to account for
management uncertainty 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. 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 allocation of yellowtail flounder to the scallop fishery is not
changed by this action. 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, with the allocation of SNE/MA
yellowtail flounder remaining at 82 and 127 mt, live weight, during FYs
2011 and 2012, respectively; 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, during FYs 2011 and 2012, respectively. No
specific allocation of Cape Cod (CC)/GOM yellowtail flounder is 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.
Current regulations set a cap on the amount of yellowtail flounder
that may be harvested from the scallop access areas in 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 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, as listed
in Table 11.
This action updates the existing allocation of 0.2 percent of the
U.S. ABC for GB and GOM haddock to the mid-water trawl fishery based on
changes to the GB haddock ABC described above. 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.
Tables 5 through 8 list the 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). 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 this action 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 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.
Table 5--Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mid-water State waters
Stock Total ACL Groundfish sub- Scallop trawl herring ACL sub- Other ACL sub-
ACL fishery fishery component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB cod.................................................. 4,540 4,301 0 0 48 191
[[Page 23047]]
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]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mid-water State waters
Stock Total ACL Groundfish sub- Scallop trawl herring ACL sub- Other ACL sub-
ACL fishery fishery 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 TRAC and TMGC considerations.
Table 7--Pollock Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2013
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mid-water State waters
Stock Total ACL Groundfish sub- Scallop trawl herring ACL sub- Other ACL sub-
ACL fishery fishery 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]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mid-water State waters
Stock Total ACL Groundfish sub- Scallop trawl herring ACL sub- Other ACL sub-
ACL fishery fishery 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/permit 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. 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 and can either join a sector or
change its sector affiliation based on an ownership change that
occurred after December 1, 2011. Therefore, it is possible that the FY
2011 sector sub-ACL listed in Table 9 and the final rule to approve the
FY 2011 sector operations plans will be changed at a later date. Based
on the final sector 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
----------------------------------------------------------------------------------------------------------------
GB cod.................................. 4,301 4,841 99 111 4,202 4,730
GB haddock.............................. 30,840 26,132 129 109 30,711 26,023
GB yellowtail flounder:
[[Page 23048]]
Proposed in FW 45 **................ 790.7 686.3 23.7 20.6 767 665.7
Emergency Action ***................ 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 based on updated sector rosters and TRAC and TMGC considerations.
** These values represent an increase from the ACLs adopted by the Council in FW 45, as described further in
Item 5 of this preamble.
*** These values represent an estimate of the ACLs adopted by the Council in FW 45 based upon preliminary sector
roster information and do not reflect updated rosters submitted to NMFS.
5. Annual Specifications for the U.S./Canada Management Area
Annual TACs for transboundary stocks jointly managed with Canada as
part of the Understanding (Eastern GB cod, Eastern GB haddock, and GB
yellowtail flounder) are determined through a process involving the
Council, the TMGC, and the U.S./Canada Steering Committee. The
recommended FY 2011 TACs for Eastern GB cod and Eastern GB haddock were
based on the most recent stock assessments (TRAC Status Reports for
2010), and the fishing mortality strategy shared by NMFS and the DFO.
The TMGC concluded that the most appropriate combined U.S./Canada TAC
for Eastern GB cod and Eastern GB haddock for FY 2011 is 1,050 mt and
22,000 mt, respectively. 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 an allocation
of 19 percent of the shared Eastern GB cod 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. Applying the same formula for Eastern GB haddock results
in an allocation 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 originally recommended, the
Council adopted, and NMFS approved under FW 45, a combined U.S./Canada
Management Area TAC of 1,900 mt, resulting in a FY 2011 quota of 1,045
mt for the U.S. and an 855 mt quota for Canada. However, the TMGC
agreed to a revised shared GB yellowtail flounder TAC for FY 2011 of
2,650 mt that is being implemented through a parallel emergency action,
based on the new flexibility provided by IFACA for FY 2011, as
discussed above in this preamble.
Table 10 lists the FY 2011 U.S./Canada Management Area TACs for all
stocks managed by the Understanding, with the FY 2011 GB yellowtail
flounder TAC reflecting the increased TAC recommended by the TMGC
following its February 9, 2011, conference call.
Table 10--2011 U.S./Canada TACs (Mt, Live Weight) and Percentage Shares
[In parentheses]
----------------------------------------------------------------------------------------------------------------
Eastern GB GB Yellowtail
Eastern GB cod haddock flounder
----------------------------------------------------------------------------------------------------------------
Proposed in FW 45..................... 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%)
Emergency Action...................... Total Shared TAC........ 1,050 22,000 2,650
U.S. TAC................ 200 (19%) 9,640 (43%) 1,458 (55%)
Canada TAC.............. 850 (81%) 12,540 (57%) 1,193 (45%)
----------------------------------------------------------------------------------------------------------------
Because the U.S./Canada Management Area represents the entire stock
area for GB yellowtail flounder, the U.S./Canada Management Area TAC
that is available to the U.S. fishery also represents the ABC for this
stock. After management uncertainty is deducted from the ABC, the
amount that is available to the U.S. fishery represents the ACL for
this stock. Thus, the revised GB yellowtail flounder TAC specified 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 revised GB yellowtail flounder ACL, sub-ACL, and ACL sub-
components are specified in Tables 11 and 12 for FYs 2011 and 2012,
respectively. The revised U.S./Canada TAC for GB yellowtail flounder
does not affect the sub-ACL for the scallop fishery specified by FW 45
as 200.8 mt.
Table 11--GB Yellowtail Flounder Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011
[Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mid-water State waters
Action Total ACL * Groundfish sub- Scallop trawl herring ACL sub- Other ACL sub-
ACL fishery fishery component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed in FW 45....................................... 1,045 790.7 200.8 0 0 53.5
[[Page 23049]]
Emergency Action........................................ 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 State waters
Action Total ACL Groundfish sub- Scallop trawl herring ACL sub- Other ACL sub-
ACL fishery fishery component components
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed in FW 45....................................... 1,045 686.3 307.5 0 0 51.2
Emergency Action........................................ 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
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 (i.e., special
access programs (SAPs) and the Regular B DAS Program), in order to
limit the amount of catch of these stocks caught under such programs.
The incidental catch TACs apply to catch (landings and discards) on
trips that end on a Category B DAS (either Regular or Reserve B DAS).
Catch of such stocks on trips that start under a Category B DAS and
then flip to a Category A DAS do not accrue toward incidental catch
TACs, but rather the overall common pool sub-ACL for that stock.
Because pollock is no longer considered overfished or subject to
overfishing, this action removes this species from the list of stocks
of concern, and eliminates the incidental catch TAC for this stock.
This final rule specifies incidental catch TACs applicable to the
NE multispecies special management programs for FYs 2011 and 2012,
based on the common pool sub-ACLs listed in Item 4 of this preamble
(see Tables 13-15). As noted above, FY 2011 sector rosters will not be
finalized until May 1, 2011. 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.
Table 13--Preliminary Common pool Incidental Catch TACs by Stock for FY 2011--2012
[Mt, live weight]
----------------------------------------------------------------------------------------------------------------
2011 2012
Stock Percentage of Incidental Incidental
sub-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
----------------------------------------------------------------------------------------------------------------
[[Page 23050]]
Table 14--Distribution of Incidental Catch TACs Among Special Management Programs
[Mt, live weight]
----------------------------------------------------------------------------------------------------------------
Closed area I Eastern U.S./
Regular B DAS hook gear Canada
Stock program haddock SAP haddock SAP
(%) (%)
----------------------------------------------------------------------------------------------------------------
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 Eastern U.S./Canada
------------------------ gear 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
----------------------------------------------------------------------------------------------------------------
In addition to the incidental catch TAC for GB cod, overall fishing
effort by both common pool and sector vessels in the Closed Area I Hook
Gear Haddock SAP is also controlled by an overall TAC for GB haddock,
the target species for this SAP. For FY 2011, the overall haddock TAC
for the Closed Area I Hook Gear Haddock SAP applicable to both common
pool and sector vessels participating in this SAP is 3157.5 mt
(6,961,096 lb or 3,157,553 kg) based on TACs specified in FW 44. Once
this overall haddock TAC is caught, the Closed Area I Hook Gear Haddock
SAP will be closed to all groundfish vessels for the remainder of FY
2011.
7. Great South Channel Exemption Area
This action eliminates the yellowtail flounder spawning closure
areas within the Great South Channel Exemption Area, and allows all
scallop vessels, including limited access general category (LAGC)
scallop vessels, to fish within this area throughout the entire year in
accordance with applicable scallop regulations. Since the August 31,
2006, rulemaking (71 FR 51779) that created the Great South Channel
Exemption Area and the associated yellowtail flounder spawning closure
areas, the general category scallop permits have become limited access
permits subject to an individual fishing quota (IFQ) that limit the
amount of scallops and, therefore, regulated species and ocean pout,
particularly yellowtail flounder, caught by these vessels. Thus, the
main justification for the spawning protection areas for LAGC scallop
vessels is no longer relevant.
8. GOM Cod Spawning Protection Area
To protect spawning aggregations of GOM cod and prevent fishing
from interfering with spawning activity, this final rule creates the
GOM Cod Spawning Protection Area. This area is rectangular in shape and
is located just south of the Isle of Shoals off the New Hampshire
coastline, with its long axis oriented in a northwest to southeast
direction. All commercial fishing vessels using gear capable of
catching groundfish are prohibited from fishing within the proposed
area from June 1 through June 30 of each year, while all recreational
vessels (private and charter/party vessels) are 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, are 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.
Therefore, because midwater trawl gear and purse seine gear is not
listed as exempted gear, vessels fishing with these gear types may not
fish in this area during June of each year. Only pelagic hook-and-line
gear, as defined in the current regulations, is allowed to be used in
the area by recreational vessels. The catch or possession of any
regulated species or ocean pout by vessels using the exempted gear from
April 1 through June 30 of each year is prohibited. Both recreational
and commercial vessels are allowed to transit the proposed area,
provided all gear is stowed according to existing regulations.
[[Page 23051]]
9. Handgear A and B Measures
Cod Trip Limit
Through this final rule, the cod trip limits applicable to NE
multispecies Handgear A (limited access) and B (open access) vessels
are revised to be specific to either the GOM or GB cod stock, including
any adjustments to such trip limits. Handgear A vessels are 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
will 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) per trip; however, under this example, the cod trip limit
for a Handgear A vessel fishing for GB cod south of the GOM Regulated
Mesh Area (RMA) (the GB cod stock area is considered the GB, SNE, and
MA RMAs) would be maintained at 300 lb (135 kg) per trip.
The initial Handgear B cod limit for both the GOM and GB stocks is
maintained at 75 lb (90.7 kg) per trip, but will 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 RMA would be maintained at 75 lb
(90.7 kg) per trip.
To fish for GB cod south of the GOM Regulated Mesh Area for a
particular period of time, the owner or operator of a Handgear A or B
vessel must obtain and retain on board a paper letter of authorization
(LOA) from the Regional Administrator (RA) to fish, unless otherwise
noted below. The minimum participation period for this LOA is 7
consecutive days to minimize the administrative burden of this
provision, consistent with existing practice for LOAs issued to DAS
vessels. Once a vessel owner or operator has obtained a paper LOA to
fish south of the GOM RMA, the owner or operator may not fish in the
GOM RMA for the duration of the LOA. This requirement is necessary to
more effectively enforce this measure. Alternatively, the owner or
operator of a Handgear A permitted vessel, who does not obtain the
paper LOA, but elects or is required to have a VMS may fish for GB cod
south of the GOM RMA by declaring an intent to fish for GB cod south of
the GOM RMA prior to each trip via a vessel monitoring system (VMS)
(i.e., when fishing in multiple broad stock areas on the same trip). If
a vessel declares via VMS instead of obtaining a paper LOA, this VMS
declaration is required on a trip-by-trip basis, and no minimum
participation period is necessary. These declarations enable at-sea
enforcement personnel to identify the applicable cod trip limits and
effectively enforce the appropriate regulations during boarding
operations.
Access to Seasonal Closure Areas
To ensure that handgear-permitted vessels are provided an
opportunity to fish during at least the early part of the FY, this
action exempts both Handgear A and B vessels from the GB Seasonal
Closure Area defined in Sec. 648.81(g), and allows 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 Areas, and 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.
10. Dockside/Roving Monitor Requirements
Delay in Requirement for Industry To Fund Dockside/Roving Monitors
To address concerns regarding the ability of the fishing industry
to pay for the costs of a dockside/roving monitoring program, as
originally implemented under Amendment 16 in 2010, this action delays
the industry's responsibility for paying for dockside/roving monitoring
coverage until FY 2013. None of the costs associated with dockside/
roving monitors during FYs 2011 and 2012 will be imposed upon the owner
or operator of a NE multispecies vessel. NMFS will attempt to provide
sufficient dockside/roving monitoring coverage to observe the offloads
of up to 100 percent of sector trips and, starting in FY 2012, common
pool trips as well, if funds are available. If funds are not available
for monitoring 100 percent of commercial groundfish trips, NMFS must
first provide dockside/roving monitor coverage to trips that do not
have an observer, at-sea monitor, or an approved electronic monitoring
program. To enable dockside/roving monitors to more easily identify
trips that are assigned an observer or at-sea monitor, vessels must
declare whether an observer or at-sea monitor has been assigned to that
trip via the trip-start hail report. For FY 2011, NMFS estimates that
it has sufficient funding to cover approximately 100 percent of sector
trips that are not assigned an observer or at-sea monitor. NMFS will
specify coverage levels for FY 2012 based upon available NMFS funding.
Dockside/Roving Monitoring Program Requirements Beginning in FY 2013
Starting in 2013, sectors must develop and pay for a dockside/
roving monitoring program as part of their annual operations plans,
common pool vessels will be subject to dockside/roving monitoring upon
the transition to a trimester TAC AM, vessels must comply with the
trip-start and trip-end hail reporting requirements associated with at-
sea and dockside monitoring programs, and dockside/roving monitoring
service providers must observe the landings of 20 percent of all common
pool and sector trips in a statistically random manner. To facilitate
administration and compliance with the dockside/roving monitoring
operational standards specified at Sec. 648.87(b)(5), this action
revises 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
[[Page 23052]]
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,
Handgear B, and Small Vessel category permit are exempt from any
dockside/roving monitoring requirements when operating in the common
pool. Given this exemption, it is not possible for dockside/roving
monitor service providers to provide statistically random coverage of
all common pool trips, as required under Amendment 16, because not all
common pool trips are subject to dockside/roving monitoring
requirements. Therefore, the dockside/roving monitoring coverage
regulations have been revised to accommodate this exemption, and
specify that service providers must provide random coverage of all
trips subject to the dockside/roving monitoring requirements.
Trip-End Hail Requirement
To facilitate dockside intercepts by both state and Federal
enforcement personnel, beginning in FY 2011, all sector vessels and
common pool vessels fishing under a DAS must submit a trip-end hail
report via VMS prior to returning to port on each trip. Vessels subject
to dockside monitoring (i.e., sector vessels starting in FY 2010 and
common pool vessels starting in FY 2012) are required to submit both a
trip-start and a trip-end hail report for that trip, consistent with
current practice. The trip-end hail report must contain the same
information as the trip-end hail report implemented by Amendment 16.
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, this action now requires that dockside monitors
inspect the fish holds for any trip that is assigned a dockside/roving
monitor beginning in FY 2011. This requirement will 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. If a permit had been cancelled after May 1, 2008, its historic
landings between FYs 1996-2006 have still been used to calculate the
total landings by eligible 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 permanently 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 all permits remaining in the fishery.
Beginning in FY 2011, the PSC of all valid permits, including those
held in CPH, that are eligible to participate in the fishery must be
recalculated as of June 1 of each year, unless another date is
specified by the RA, to redistribute the landings histories of
cancelled permits to all remaining eligible permits. To do so, the PSCs
for each stock calculated pursuant to the process specified in
Amendment 16 must be multiplied by a factor of ``1/PSC of the remaining
permits.'' These recalculated PSCs shall then be used to calculate ACEs
for each sector during the following FY. For FY 2012 and beyond, a PSC
that is calculated on June 1, shall affect sector ACE for the FY that
begins on May 1, of the following year.
This provision means 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 permits that were cancelled by June 1 of each
year. This will ensure that the yearly PSC calculations reflect
eligible permits at the beginning of each FY (May 1), and allow NMFS
time to process such renewals. On or about July 1 of each year, NMFS
will inform permit holders of updated PSCs through a permit holder
letter sent to owners of a valid limited access NE multispecies permit
or CPH.
The FW 45 proposed rule specified that the RA would recalculate FY
2011 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.
However, to ensure that permit owners had sufficient information to
make informed decisions about whether or not to participate in sectors
before the start of FY 2011 on May 1, 2011, the RA recalculated FY 2011
PSCs for each permit using valid permits as of February 11, 2011, to
reflect permits cancelled through that date. This information was sent
out to permit holders on February 11, 2011, to facilitate their
decision to join a sector based on measures proposed in FW 45. The RA
will recalculate PSCs for each permit as of June 1, 2011, to account
for permits cancelled through FY 2010 and determine the PSCs that will
be used to calculate FY 2012 sector ACE for each stock, consistent with
the procedures outlined above.
Operations Plan Requirements
Amendment 16 specified that sectors must submit final rosters,
proposed operations plans, including rosters 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. Based on industry input, this action increases the
flexibility of these deadlines by requiring sectors to submit
preliminary rosters and proposed operations plans to NMFS by September
1, and final rosters by December 1 of each year. Following further
industry input submitted during the public comment period for this
action and ongoing discussions with industry participants, NMFS will
allow for a limited opportunity for additional changes to FY 2011
sector rosters to accommodate changes in vessel ownership that occurred
after the submission of final sector rosters on
[[Page 23053]]
December 1, 2010. This window to reopen FY 2011 sector rosters began on
March 24, 2011, and will end on April 30, 2011. A sector is not
required to accept additional changes to sector rosters during this
window; each sector may decide whether or not a member may leave the
sector, and whether or not to accept new members. Reopening the rosters
is intended to provide additional flexibility to new permit holders
without disrupting the organization of sectors. An announcement of this
limited opportunity to reopen sector rosters was sent out to all sector
managers on March 16, 2011, and to all limited access NE multispecies
permit holders on March 23, 2011. In future years, a window for
additional sector roster changes would begin with the publication of
proposed measures for the common pool for the following year and end on
April 30, and would be limited to ownership changes occurring after the
December 1 roster deadline. These measures are designed to 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
To reduce dockside/roving monitoring costs, especially due to
infrequent landings of regulated species in more southerly ports, this
action allows sectors to request an exemption from the dockside/roving
monitoring requirements implemented under Amendment 16. Therefore,
because Amendment 16 specified that sectors cannot request an exemption
from the existing reporting requirements, this rule removes dockside/
roving monitoring requirements from the list of reporting requirements
at Sec. 648.87(c)(2)(i). This enables 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.
12. Authorization of New Sectors
This final rule authorizes the creation of five new sectors,
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, as described in Section 4.2.1 of the FW
45 EA. All operational aspects of these sectors are specified in their
annual operations plans, as submitted to NMFS. Details of these
operations plans were published in a parallel rulemaking, as noted
above. Vessels/permits participating in these sectors must comply with
the existing sector provisions, unless otherwise exempted by a future
action.
13. Measures for FY 2011 Under RA Authority
The FMP provides authority for the RA to implement certain types of
inseason management measures for the common pool fishery, the U.S./
Canada Management Area, and Special Management Programs, as described
further below. Although these measures were not proposed by the Council
for implementation through FW 45, this final rule makes the public
aware of measures implemented for FY 2011 by the RA. Once effective,
the RA may revise these measures, as necessary, to ensure that the
objectives of the FMP, including preventing the sub-ACLs from being
exceeded, are met during FY 2011. Any necessary adjustments will be
implemented through an inseason action consistent with the
Administrative Procedures Act and communicated to the affected public.
Initial FY 2011 Common Pool Trip Limits
The current regulations at Sec. 648.86(o) allow the RA to revise
trip limits applicable to common pool vessels if the RA projects that
the catch of any NE multispecies stock allocated to common pool vessels
will exceed the pertinent sub-ACL in order to prevent exceeding the
common pool sub-ACL. Table 16 summarizes the initial FY 2011 common
pool trip limits as adjusted by the RA. These initial trip limits were
developed after considering changes to the FY 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, public comment on proposed
trip limits, and other available information. Although the slow catch
rate of SNE/MA yellowtail flounder by common pool vessels in FY 2010
suggests that the trip limit could be increased substantially to
increase the catch of this stock in FY 2011, due to concerns that a
potential increased SNE/MA yellowtail flounder trip limit would
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 implemented at this time.
Table 16--Initial FY 2011 Trip Limits for the Common Pool
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stock Initial FY 2011 limit
--------------------------------------------------------------------------------------------------------------------------------------------------------
GOM cod....................................... 500 lb (226.8 kg) per DAS, up to 2,000 lb (907.2 kg) per trip.
GB cod........................................ 2,000 lb (907.2 kg) per DAS, up to 20,000 lb (9,072 kg) per trip.
GOM haddock................................... 1,000 lb (453.6 kg) per trip.
GB haddock.................................... 10,000 lb (4,535.9 kg) per trip.
GOM winter flounder........................... 250 lb (113.4 kg) per trip.
GB winter flounder............................ 1,000 lb (453.6 kg) per trip.
CC/GOM yellowtail flounder.................... 500 lb (226.8 kg) per DAS, up to 2,000 (907.2 kg) per trip.
GB yellowtail flounder........................ 1,500 (680.4 kg) per trip.
SNE/MA yellowtail flounder.................... 500 lb (226.8 kg), up to 2,000 (907.2 kg) per trip.
American plaice............................... unrestricted.
Pollock....................................... unrestricted.
Witch flounder................................ 250 lb (113.4 kg) per trip.
White hake.................................... 1,500 lb (680.4 kg) per trip.
Redfish....................................... unrestricted.
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[[Page 23054]]
Differential DAS Counting for Common Pool Vessels
Following the implementation of Amendment 16 measures, the FMP
requires that the RA implement a differential DAS counting rate for FY
2011 if the catch of the relevant stocks by common pool vessels is
projected to exceed the pertinent common pool groundfish sub-ACLs
during FY 2010. The differential DAS counting factor that will apply to
common pool vessels is based on the proportion of the sub-ACL projected
to be caught by common pool vessels during FY 2010, rounded to the
nearest tenth. If the RA projects that common pool catch will exceed
the sub-ACL for multiple regulated species within a particular area,
then the most restrictive differential DAS counting factor will apply.
Catch information available through March 19, 2011, indicates that
common pool catch of witch flounder during FY 2010 has exceeded the
witch flounder sub-ACL by 32 percent. As defined at Sec.
648.82(n)(1)(i), any differential DAS counting rate to address an
overage of the witch flounder sub-ACL shall be applied to Category A
DAS used in the Offshore GOM Differential DAS Area, the Offshore GB
Differential DAS Area, and the Inshore GB Differential DAS Area.
Therefore, beginning on May 1, 2011, any Category A DAS used by common
pool vessels in the Offshore GOM Differential DAS Area, the Offshore GB
Differential DAS Area, and the Inshore GB Differential DAS Area shall
be charged at a rate of 1.3:1, or 31 hours for each 24 hr fished (i.e.,
1.3 times 24-hr DAS counting), for the time spent fishing in the
applicable DAS counting areas specified above. Differential DAS shall
accrue 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. NMFS provides an
estimate of the status of the common pool catch throughout the year at
the following address: http://www.nero.noaa.gov/ro/fso/reports/common_pool/Common_Pool_Summary.html.
Delayed Opening of the Eastern U.S./Canada Area
The regulations at Sec. 648.85(a)(3)(iv)(D) provide the RA the
authority to adjust various measures in order to optimize the harvest
of the transboundary stocks managed under the Understanding. Pursuant
to this authority, NMFS is postponing the opening of the Eastern U.S./
Canada Area for common pool vessels fishing with trawl gear in FY 2011
from May 1, 2011, through July 31, 2011. This measure delays trawl
fishing in the Eastern U.S./Canada Area during the time when cod
bycatch is likely to be very high, and should 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.
Similar to restrictions implemented in FY 2009 and FY 2010, the
proposed rule for this action proposed to limit the amount of cod that
could be caught by common pool vessels fishing with non-trawl gear in
the Eastern U.S./Canada Area prior to August 1, 2011, to 5 percent of
the Eastern GB cod TAC available for common pool vessels. This was
intended to further constrain fishing mortality on GB cod and prolong
access to this area. The proposed rule for this action inaccurately
specified this cod bycatch limit as 10 mt, but, inadvertently, that was
based upon 5 percent of the Eastern GB cod TAC available to all
groundfish vessels, not just common pool vessels as intended. The
correct number for cod bycatch for just common pool vessels in FY 2011
is 477 lb (216.4 kg), based on a calculation of vessels that will be in
the common pool according to sector rosters submitted to NMFS as of
December 1, 2010. Because this bycatch amount is very low and difficult
to effectively monitor in a timely manner and because no common pool
vessels actually fished in the Eastern U.S./Canada Area during FY 2010,
NMFS has not implemented the proposed cod bycatch limitation for common
pool vessels fishing with non-trawl gear in the Eastern U.S./Canada
Area from May 1, 2011, through July 31, 2011.
Closed Area II Yellowtail Flounder/Haddock SAP
The current regulations provide the RA with the authority to
determine the total number of allowed trips by common pool vessels into
the Closed Area II Yellowtail Flounder/Haddock SAP to target yellowtail
flounder 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),
no trips to this SAP should be allocated if the available GB yellowtail
flounder catch, after considering the amount of catch of this stock
that would occur outside of the SAP, is insufficient to support at
least 150 trips with a 15,000-lb (6,804-kg) trip limit (i.e., 2,250,000
lb (1,020,600 kg)). The difference between the minimum level of GB
yellowtail flounder sub-ACL necessary to allow targeting of yellowtail
flounder within the Closed Area II Yellowtail Flounder/Haddock SAP and
the updated FY 2011 GB yellowtail flounder sub-ACL of 1,142 mt
(2,517,679 lb; or 1,142,019 kg) specified in Table 11 is only 267,679
lb (121,419 kg). Based on past fishing practices, it is likely that
catch rates outside of this SAP are more than adequate to fully harvest
the FY 2011 GB yellowtail flounder sub-ACL, leaving little, if any,
quota available to open this SAP to targeting GB yellowtail flounder.
Thus, the FY 2011 GB yellowtail flounder sub-ACL is considered
insufficient to warrant opening of this SAP to targeting yellowtail
flounder. Therefore, based on existing authority, no trips are
allocated by this final rule to target yellowtail flounder within the
Closed Area II Yellowtail Flounder/Haddock SAP for FY 2011. Further, as
required at Sec. 648.85(a)(3)(iii)(B) and (x)(A), this final rule
specifies that the SAP is open from August 1, 2011, through January 31,
2012, and prohibits the use of the flounder net by both common pool and
sector vessels in this SAP during FY 2011. All limited access NE
multispecies vessels can still fish in this SAP during FY 2011, but
must only fish with a haddock separator trawl, a Ruhle trawl, or hook
gear while in the SAP area.
14. Corrections and Clarifications
This final rule corrects or clarifies a number of inadvertent
errors, omissions, and provisions 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
in section 305(d) of the Magnuson-Stevens Act. The following measures
are listed in the order in which they appear in the regulations. The
proposed rule for this action discusses the reason why such corrections
are necessary.
Amendment 16 requires the owner or operator of any vessel issued a
limited access NE multispecies permit fishing on either a common pool
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 or interactive voice response (IVR) system
prior to leaving port at the start of a fishing trip and to submit a
VMS catch report detailing the amount of each species retained in each
BSA for trips that fish in more than one BSA per trip. To eliminate
duplicative reporting requirements, this final rule modifies
[[Page 23055]]
the timing requirements for the submission of the VMS catch report in
Sec. 648.10(k)(1) to require all limited access NE multispecies
vessels, regardless of the 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, this action adds 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.
To close a perceived loophole that could have allowed a vessel
carrying passengers for hire to possess and land fish smaller than the
minimum fish size specified for commercial vessels and to sell their
catch from such operations, this action revises the regulations at
Sec. 648.82(a)(2) to also state that, in addition to a vessel fishing
under a NE multispecies DAS, a vessel issued a NE multispecies limited
access permit may not fish under a sector trip or under the limited
access NE multispecies Small Vessel Category or Handgear A permits, if
such vessel carries passengers for hire for any portion of a fishing
trip.
This action modifies the phrase ``vessels participating in
sectors'' to read ``vessels/permits participating in sectors'' in the
regulations at Sec. Sec. 648.87(b)(1)(i)(A) and
648.90(a)(4)(iii)(E)(2) 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. To clarify how the ACE carry over provision
shall be applied, this action revises 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. This
provision limits the applicability of ACE carry over to only 10 percent
of the ACE allocated to a sector at the start of a FY and not 10
percent of the total ACE available to a sector at the end of the
fishing year, which may include any ACE acquired from another sector as
part of an ACE transfer. The preamble of the proposed rule for this
action included text that could be interpreted to mean that a sector
could not carry over any ACE if it had harvested more than 90 percent
of its original ACE allocation for that stock by the end of the FY.
This interpretation does not reflect the intent of NMFS in clarifying
the amount of ACE that can be carried over into the next FY. Consistent
with the proposed regulatory text, the intent of NMFS was to merely
clarify that the amount of ACE that can be carried over for each stock
shall be calculated based upon the amount of ACE originally allocated
to that sector. For example, if a sector was originally allocated 100
mt of GOM cod at the beginning of FY 2010, that sector would be allowed
to carry over up to 10 mt of GOM cod into FY 2011, even if it had
acquired an additional 50 mt from another sector through an ACE
transfer. Thus, the amount of ACE that could be carried over into FY
2011 would be based upon the 100 mt originally allocated to that sector
for FY 2010, not the 150 mt that the sector had ultimately acquired by
the end of FY 2010. Finally, NMFS clarifies that it interprets the term
``unused ACE'' in the context of the regulations at Sec.
648.87(b)(1)(i)(C) to mean any ACE that has not been fished by the
sector originally allocated that ACE, or leased to another sector
during that FY.
In addition to the revisions to the calculation of PSCs noted above
for cancelled permits, this final rule revises the regulatory text
describing the calculation of PSCs at Sec. 648.87(b)(1)(i)(E)(1) and
(b)(1)(i)(E)(2) to clarify and more accurately reflect the processes
that were, and continue to be, applied to implement such calculations.
Specifically, this rule clarifies 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 shall be used to calculate the PSCs for each valid permit
as of June 1 each year. In addition, these revisions include an example
of the landings of regulated species and ocean pout that may not be
used to calculate PSC; namely, any landings of yellowtail flounder by
scallop vessels operating under a scallop DAS. Finally, this rule
clarifies that the PSC that results from such a calculation is
considered the PSC for each stock.
The regulations at Sec. Sec. 648.87(b)(1)(iii)(C) and (viii) allow
sectors to transfer ACE for up to 2 weeks into the subsequent FY, and
provide NMFS with 61 days to process ACE transfers and determine
whether a sector has exceeded its ACE for the previous FY. Such
measures are dependent upon the completion of NMFS' evaluation of year-
end sector catch, including sector ACE overages, and may not fully
account for the timing of NMFS' year-end evaluation process. Therefore,
to allow for additional time to complete these tasks, 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.
Comments and Responses on Measures Proposed in the FW 45 Proposed Rule
Twenty-four comments were received during the comment period on the
proposed rule for this action from 13 individuals, 4 fishing industry
groups (the Northeast Hook Fisherman's Association (NEHFA), the
Associated Fisheries of Maine (AFM), the Northeast Seafood Coalition
(NSC), and the Northeast Sector Support Network (NSSN)), 4 conservation
groups (Center for Biological Diversity (CBD), Oceana, Food and Water
Watch (FWW), and PEW Environmental Trusts (PEW)), 1 dockside/roving
monitor service provider (AIS, Inc.), 1 community group (Penobscot East
Resource Center (PERC)), and the Council. Only comments that were
applicable to the proposed measures, including the analyses used to
support these measures, are addressed in this preamble. Comments on the
overarching sector measures implemented in 2010 by Amendment 16, or the
anticipated or realized impacts of those measures, are not addressed in
this preamble. Please note in considering the responses to comments
below that NMFS may only approve or disapprove measures proposed in a
fishery management plan, amendment, or framework adjustment and may not
change or substitute any measure in a substantive way, pursuant to
section 304(a)(3) of the Magnuson-Stevens Act.
General Comments
Comment 1: The CBD commented that the EAs prepared in support of
both FW 45 and the 2011 sector operations plans do not adequately
evaluate the impacts on a number of species proposed for listing under
the Endangered Species Act (ESA), particularly Atlantic sturgeon and
loggerhead sea turtles. The CBD noted that the GOM distinct population
segment (DPS) and the New York Bight and Chesapeake Bay DPSs of
Atlantic sturgeon were proposed to be listed as threatened and
endangered
[[Page 23056]]
under the ESA, respectively, by NMFS' Northeast Regional Office on
October 6, 2010 (75 FR 61872), while the Northwest Atlantic loggerhead
sea turtle DPS was proposed to be listed as endangered under the ESA on
March 16, 2010 (75 FR 12598). They contend that the FW 45 and FY 2011
sector operations plans EAs rely upon previous assessments of impacts
to protected species specified in the Amendment 16 EIS that was
completed on October 16, 2009. Therefore, they claimed that the
analysis for these actions is not appropriate, given the proposed
listings of Atlantic sturgeon and loggerhead sea turtles occurred after
previous analysis was completed. Further, they indicated that the FW 45
EA does not consider impacts of eliminating the yellowtail flounder
closure areas in the Great South Channel Exemption Area, noting that
sea turtles are present in this area at the time that the yellowtail
flounder spawning protection areas were in effect.
Response: NMFS agrees that the analysis originally included in the
FW 45 EA did not describe the impacts to DPS of Atlantic sturgeon and
loggerhead sea turtles. To meet the ESA requirements of Sec.
402.12(a), NMFS has updated the analysis supporting this action in an
addendum to the FW 45 EA to include analysis of FW 45 measures on the
DPS for these species in light of their proposed listings. This impacts
analysis concluded that the measures implemented under this final rule
are not likely to jeopardize the continued existence of Atlantic
sturgeon between now and the time a final listing determination will be
made, and concludes that there will be no significant impact on
Atlantic sturgeon or loggerhead sea turtles for the duration of this
regulation. It also concluded that a conference, per the ESA
regulations, for the proposed loggerhead sea turtle DPS is not required
based on the determinations and the incidental take statement in the
2010 Biological Opinion for the Multispecies FMP. For Atlantic
sturgeon, NMFS Sustainable Fisheries Division engaged in an informal
conference with NMFS Protected Resources per the ESA regulations, and
no additional measures were recommended by NMFS Protected Resources.
While it is possible that there may be interactions between Atlantic
sturgeon or loggerhead sea turtles on the one hand and, on the other,
gear used in the NE multispecies fishery, based on prior analyses and
current observer bycatch data for the groundfish fishery, the number of
interactions that will occur between now and the time a final listing
determination will be made is not likely to cause an appreciable
reduction in survival and recovery. A final listing determination for
the Atlantic sturgeon DPS is expected by October 6, 2011. With the
publication of a final listing rule, the existing Section 7
consultation for the NE multispecies fishery would need to be
reinitiated, consistent with the requirement to reinitiate formal
consultation where discretionary Federal agency involvement or control
of the action has been retained and a new species is listed that may be
affected by the action. During the reinitiation, the effects of the NE
multispecies fishery on the five DPS for Atlantic sturgeon would be
fully examined.
Comment 2: Oceana stated that there are no effective AMs for
several stocks managed by the FMP, and that FW 45 must include AMs for
all stocks managed under the FMP, including stocks not allocated to
sectors under Amendment 16 (SNE/MA winter flounder, ocean pout,
windowpane flounder, Atlantic halibut, and Atlantic wolffish). Oceana
cited the January 21, 2010, letter from NMFS to the Council informing
the Council that AMs for these stocks should be implemented as quickly
as possible through a future Council action, and stated that the FW 45
final rule is the first opportunity to implement such measures.
Response: Because of the timing needed to more fully account for
the bycatch of haddock in the Atlantic herring fishery before herring
fishing operations began to increase rapidly during the early fall, the
Council elected to develop FW 46 to revise the existing allocations of
portions of the GOM and GB haddock ACL to the herring fishery before
they worked on any other actions in 2011. Further, because the Council
intended to develop an action later on in 2011 that would implement NE
multispecies ACLs for FYs 2012-2014, the Council decided to address
outstanding issues associated with AMs for ocean pout, windowpane
flounder and Atlantic halibut through the next action, or FW 47.
Consistent with the Magnuson-Stevens Act, Amendment 16 implemented
AMs that would be sufficient to prevent overfishing of any stock
managed by the FMP in FYs 2010 and 2011. However, because Amendment 16
did not provide a specific allocation of Atlantic halibut, SNE/MA
winter flounder, ocean pout, windowpane flounder, or Atlantic wolffish
to sectors, these stocks are not subject to any sector-specific AMs,
which is acknowledged by NMFS in the letter cited in the comment. The
ACL available to the commercial NE multispecies fishery for each of
these stocks is allocated entirely to common pool vessels, and the only
specific AM established for these stocks during FYs 2011 and 2012 is
the differential DAS counting AM specified for common pool vessels at
Sec. 648.82(n). NMFS has determined there is no immediate need for FW
45 to implement AMs for these stocks, as overfishing is prevented
during FYs 2010 and 2011, and any overages of the FY 2010 or 2011 ACLs
would be addressed, at least partially, through differential DAS
counting applicable to common pool vessels in FY 2011 or 2012,
respectively (see Sec. 648.90(a)(5)(ii)). In making this
determination, NMFS points out that, pursuant to section 304(a)(3) of
the Magnuson-Stevens Act, it may only approve or disapprove measures
proposed in a fishery management plan, amendment, or framework action,
and may not change or substitute any measure in a substantive way.
Therefore, since FW 45 does not include any measure to disapprove
regarding AMs for these stocks, NMFS finds that it should approve the
measures that are consistent with the Magnuson-Stevens Act and other
applicable law for all of the other stocks with the understanding that
the Council has committed to address the lack of specific AMs for these
stocks in FW 47. This leads to the functional equivalence of
disapproving and remanding the entire framework to address the lack of
a required measure, but without sacrificing the implementation of those
measures that are needed to ensure conservation for all of the other
stocks.
Comment 3: Oceana suggested that FW 45 must include AMs for
yellowtail flounder caught by the Atlantic sea scallop fishery, based
on the premise that the FMP must include measures that account for all
catches of regulated species and ocean pout stocks by other fisheries.
Oceana acknowledged that the Council developed AMs to account for
yellowtail flounder catch in the scallop fishery as part of Amendment
15 to the Atlantic Sea Scallop FMP. However, they are concerned that
such AMs will not become effective until at least 6 months into FY 2011
for the scallop fishery (the scallop FY begins on March 1 of each year)
and may not be adequate to ensure that any overages of the FY 2010
yellowtail flounder sub-ACLs allocated to the scallop fishery are
addressed during FY 2011. Further, they claimed that it is unclear how
the proposed Amendment 15 yellowtail flounder AMs for the scallop
fishery
[[Page 23057]]
would be implemented in FY 2011, particularly if preliminary data
indicate that the yellowtail flounder sub-ACLs for the scallop fishery
may be exceeded. They suggested that NMFS should better explain how
such AMs would be implemented during FY 2011. In addition, Oceana
recommended that NMFS implement an inseason closure provision as an
interim measure to prevent excessive harvest of yellowtail flounder
until the Amendment 15 AMs become effective, pursuant to the National
Standard 1 Guidelines at Sec. 600.310(g)(2).
Response: The AMs applicable to the NE multispecies fishery are
consistent with the National Standard 1 Guidelines and sufficient to
prevent overfishing on each stock by all components of the fishery that
catch regulated species and ocean pout, including yellowtail flounder
catch by scallop vessels prior to the implementation of measures
proposed in Amendment 15 to the Atlantic Sea Scallop FMP. If these
components of the fishery exceed their allocations, and the overall ACL
for a particular stock is exceeded, the AMs applicable to the NE
multispecies fishery, including those specified for sectors and the
common pool, will be triggered to ensure that overfishing does not
occur on the stock as a whole (see Sec. 648.90(a)(5)(ii)).
The proposed rule for Amendment 15 to the Atlantic Sea Scallop FMP
published on April X, 2011 (76 FR XXXXX). This rule, and its associated
EIS, contains a complete description of the yellowtail flounder AMs for
the scallop fishery, including the closure of specific statistical
areas that have the highest bycatch of yellowtail flounder by the
scallop fishery if either the GB or SNE/MA yellowtail flounder sub-ACL
allocated to the scallop fishery is exceeded in the previous FY. This
rule also clarifies the Council proposal that any overage of either the
GB or SNE/MA yellowtail flounder sub-ACLs allocated to the scallop
fishery for FY 2010 shall have a resulting AM applied as soon as
Amendment 15 is implemented during FY 2011, but only if the FY 2010
overall ACL for SNE/MA yellowtail flounder is exceeded.
As explained in the response to Comment 2 above, pursuant to
section 304(a)(3) of the Magnuson-Stevens Act, NMFS may only approve or
disapprove measures proposed in a fishery management plan or amendment,
and may not change or substitute any measure in a substantive way.
Therefore, NMFS does not have the legal authority to implement AMs to
account for potentially excessive yellowtail flounder bycatch in the
scallop fishery through this final rule. Such AMs were not adopted by
the Council in FW 45, and the AMs in place for yellowtail flounder
stocks for FY 2011 are sufficient to address any excessive catch by the
scallop fishery until the AMs proposed in Amendment 15, if approved,
become effective. Finally, both the common pool and sector AMs
currently in place are adequate to ensure that overfishing does not
occur on yellowtail flounder, even if the implementation of Amendment
15 is delayed until later in FY 2011. As of March 22, 2011, available
data indicated that the scallop fishery caught 76,508 lb of GB
yellowtail flounder and 401,313 lb of SNE/MA yellowtail flounder during
FY 2010 in the scallop fishery (March 1, 2010, through February 28,
2011). This represents 24 percent of the GB yellowtail flounder and 135
percent of the SNE/MA yellowtail flounder allocated to the scallop
fishery in the FW 44 final rule. It is projected that the common pool
will only harvest 7.7 mt (16,976 lb) of its 75-mt (165,347-lb) sub-ACL
for SNE/MA yellowtail flounder, leaving 148,371 lb of SNE/MA yellowtail
flounder unharvested during FY 2010. In addition, all sectors have
cumulatively caught only 42.6 percent (100 mt, or 220, 462 lb) of the
overall sub-ACL of this stock allocated to sectors (234.7 mt, or
517,425 lb) through March 12, 2011. Therefore, even after incorporating
the 103,689 lb (47 mt) of SNE/MA yellowtail flounder caught by the
scallop fishery in excess of the allocation to that fishery during FY
2010, it is highly unlikely that the overall FY 2010 ACL for SNE/MA
yellowtail flounder will be exceeded, and that the implementation of
any AMs to prevent overfishing of this stock will be necessary. While
it is still too early to accurately predict future bycatch rates, based
upon available data, it is unlikely that the scallop fishery bycatch of
yellowtail flounder during FY 2011 will exceed allocated sub-ACLs
before Amendment 15 AMs, if approved, become effective. Thus, the
current lack of scallop-specific AMs is not a serious conservation or
management problem in the fishery.
Finally, Oceana's recommendation to establish an interim in-season
closure AM is not required by applicable law. Neither the Magnuson-
Stevens Act nor the National Standard 1 Guidelines mandate the use of
fishery closures or the use of in-season controls as AMs. Reactionary
AMs similar to the differential DAS counting AM may be used and can be
are just as valid as inseason AMs. Although an FMP can include in-
season closures, under the cited national standard guideline, neither
NMFS nor the Council is obligated to institute such closures. In-season
closures are merely one tool that may be used by the Council and NMFS
to prevent overfishing and ensure that ACLs are not exceeded. In any
event, short of a temporary emergency action or Secretarial amendment,
NMFS is not in a position to implement this kind of AM in deciding
whether to approve or disapprove FW 45. Accordingly, NMFS has not
implemented yellowtail flounder AMs for the scallop fishery through
this final rule.
Status Determination Criteria for Pollock
Comment 4: Both PEW and an industry group (NSC) supported revisions
to the status determination criteria for pollock and its associated
revisions to stock status and ABCs and ACLs. Both groups applauded the
rapid incorporation of updated scientific information into the FMP,
with the industry group stating that such measures ensure that
significant economic benefits of higher catch limits for this species
will continue in future FYs.
Response: NMFS agrees that it is appropriate to incorporate updated
scientific information into management measures as quickly as possible.
Therefore, the proposed revisions to the status determination criteria
for pollock and associated ABCs and ACLs are implemented through this
action.
Rebuilding Program for GB Yellowtail Flounder
Comment 5: PEW opposed the proposed reduction of the GB yellowtail
flounder rebuilding program from the existing 75-percent probability of
success to a 50-percent probability of success. PEW stated that a 50-
percent probability of success is not adequate because the chance of
failure is too high. They further stated that maximizing catch should
not be the highest priority when managing the rebuilding of an
overfished stock. They suggested that the existing rebuilding program
with a minimum 75-percent probability of success should be maintained,
noting that typical statistical analyses rely upon a 95-percent
probability of success.
Response: The decision to extend the GB yellowtail flounder
rebuilding program is based on a number of factors beyond simply
increasing catch over the short term. Updated stock assessment
conducted by the TRAC indicated that the strength of the 2005 year
class was much lower than originally estimated. Therefore, the stock is
no longer
[[Page 23058]]
expected to rebuild by 2014 with a 75-percent probability of success.
Although extending the rebuilding timeframe to 10 years reduces the
probability of success to 50 percent, the extension is still within the
probability limits recognized by courts which have reviewed challenged
FMPs. Although a rebuilding program with a higher probability of
success would be more likely to rebuild overfished stocks within
established rebuilding timeframes than one with a lower probability,
based on analysis supporting FW 45, the revised rebuilding program is
still capable of rebuilding the stock within the established rebuilding
period. Faced with this information, the Council elected, consistent
with National Standard 8, to revise the rebuilding program for this
stock in way to minimize the adverse economic impacts on fishing
communities to the extent practicable, without compromising the
conservation requirements of the FMP or the Magnuson-Stevens Act. NMFS
agrees with the Council that allowing for increased catch over the
short-term, while still ending overfishing and enabling the stock to
rebuild more effectively, balances the multiple and somewhat competing
objectives of the national standards of the Magnuson-Stevens Act.
Further, extending the rebuilding timeframe increases the capacity of
the Council to negotiate yearly TACs with Canadian representatives
through the TMGC process, as Canadian law does not have a requirement
for a defined rebuilding period. Maintaining successful collaborative
management with Canada is crucial to ensuring the effective management
of this transboundary stock by preventing overfishing and continuing to
rebuild this overfished stock. Therefore, NMFS approves and implements
the proposed revisions to the GB yellowtail flounder rebuilding
program.
ACLs
Comment 6: Oceana recommended that NMFS disapprove the proposed
allocation of yellowtail flounder to the scallop fishery because it
relies upon an outdated analysis of the expected catch of yellowtail
flounder by the scallop fishery and is inconsistent with the use of the
best available scientific information mandated by National Standard 2.
Instead, they recommend that NMFS implement allocations that are based
on updated estimates of actual anticipated yellowtail flounder catch by
the scallop fishery during FY 2011.
Response: NMFS recognizes that there are updated estimates of
anticipated catch of yellowtail flounder by the scallop fishery.
However, as noted in the FW 45 EA, there is uncertainty associated with
these estimates. For example, Table 113 of the FW 45 EA illustrates
that scallop catches of yellowtail flounder have not shown clear
trends, despite the increased abundance of yellowtail flounder in
recent years. If the updated estimates of yellowtail flounder bycatch
underestimate actual catch by the scallop fishery, as implied in
Oceana's comment, then the yellowtail flounder sub-ACLs allocated to
the scallop fishery are likely to be exceeded, which could result in
overfishing this stock. Overages of the yellowtail flounder sub-ACL, if
leading to the overage of the overall ACL for a stock, would trigger
AMs for the directed groundfish fishery to account for such an overage
and ensure that overfishing does not occur in the future. Any AMs that
may be triggered by exceeding this sub-ACL could redistribute either
common pool or sector fishing effort, resulting in adverse biological
impacts on a wider range of species compared to the existing
allocations. In addition, lowering the yellowtail flounder allocations
to the scallop fishery based upon this updated information puts much
more total revenue and optimum yield at risk than maintaining the
existing allocations, particularly if AMs are triggered and the
available scallop or yellowtail flounder catch is not fully harvested.
Although updated estimates of the expected yellowtail flounder bycatch
in the scallop fishery are less than the existing allocations,
maintaining the existing allocations to the scallop fishery, on
balance, will likely reduce the chance of a derby fishery in the
scallop fishery, better achieve the biological targets for both
scallops and yellowtail flounder, and place less revenue and optimum
yield at risk for both fisheries. Thus, there are potentially
substantial adverse economic and biological impacts associated with
revising these allocations using the updated bycatch estimates.
As noted above, NMFS may only approve or disapprove measures
proposed in a fishery management plan or amendment, and may not change
or substitute any measure in a substantive way. The yellowtail flounder
allocation to the scallop fishery is a continuation of the allocation
implemented by FW 44. NMFS cannot substitute another alternative for
this provision as part of this final rule. Even if NMFS could
disapprove the FW 45 yellowtail flounder allocation to the scallop
fishery, the yellowtail flounder allocation to the scallop fishery for
FY 2011 would revert to that implemented by FW 44 which is the same as
proposed in FW 45. Therefore, NMFS has not revised the FY 2011
yellowtail flounder allocations to the scallop fishery in this final
rule.
Annual Specifications for the U.S./Canada Management Area
Comment 7: One industry group (NSC) strongly supported the proposed
action to disapprove the FY 2011 GB yellowtail flounder U.S./Canada
Management Area TAC and associated ABC and ACLs, and to implement a
revised FY 2011 TAC, ABC, and ACL for this stock based upon revised
recommendations of the TMGC following the recent adoption of IFACA.
They noted that the adoption of IFACA represents new information and
unforeseen circumstances that justify the use of emergency Secretarial
authority to revise this TAC. They also group suggested that the
updated TAC prevents overfishing and rebuilds stock consistent with
broader goals of section 304(e) of the Magnuson-Stevens Act, provides
very important economic benefits to both the groundfish and scallop
fisheries, and results in an increased chance of achieving OY in these
fisheries.
Response: NMFS agrees with the substance of this comment, although,
as noted above in the background section of this preamble, instead of
disapproving the FW 45 TAC for this stock, NMFS has approved it,
because the originally proposed TAC is still consistent with the FMP
and applicable law. However, NMFS is replacing the FW 45 TAC for this
stock with the revised FY 2011 TAC, pursuant to emergency Secretarial
authority, for the reasons stated in the preamble of the proposed rule
for this action.
GOM Cod Spawning Protection Area
Comment 8: Four individual private recreational anglers opposed the
proposed GOM Cod Spawning Protection Area, while one environmental
group (PEW) and one community group (PERC) strongly supported the
implementation of this area. While one recreational angler was opposed
to closure areas in general, the other three anglers indicated that
such a closure unnecessarily and unfairly prevents small private
recreational vessels from accessing cod closer to shore. Two of these
respondents suggested that the GOM cod stock is improving and does not
warrant further action to protect spawning aggregations. They indicated
that, if further protection
[[Page 23059]]
for this stock is necessary, they would prefer alternative measures,
including possession or size limits. One respondent also claimed that
fishing with hook gear does not disturb spawning aggregations. In
contrast, both PEW and PERC supported this provision because it was
based on a careful analysis of available scientific information. They
recommended that the Council and NMFS should continue to identify and
protect additional key habitat areas for spawning fish. Further, PERC
advised that mid-water trawl gear should not be allowed in this area
because they claim that this gear catches large amounts of groundfish
stocks and would undermine efforts to rebuild overfished stocks.
Response: NMFS agrees that the GOM cod stock is recovering. The
latest stock assessment, the Groundfish Assessment Review Meeting
(GARM) III, indicates that the stock is nearly rebuilt (i.e., that SSB
is nearly at the level to sustain MSY), but notes that the success of
continued rebuilding relies upon the strength of recent year classes,
particularly the 2003 and 2005 year classes. Therefore, without
continuing high levels of recruitment, the stock may not be able to
achieve and maintain a high level of biomass.
Council efforts to specifically protect spawning aggregations of
GOM cod date back to the implementation of FW 26 in 1999 (January 15,
1999; 64 FR 2601). That action revised the existing GOM Rolling Closure
Areas established under FW 25 (March 31, 1998; 63 FR 15326), and
reclassified their designation as ``inshore `cod spawning' closures.''
The intended purpose of such measures under FW 26 was to protect cod
during the spawning season, because cod stocks are ``particularly
vulnerable to fishing pressure'' during spawning periods. Thus, since
1998, commercial fishing vessels have been excluded from areas in which
cod are likely to be spawning. However, private recreational and
charter/party vessels, including those fishing with gear capable of
catching groundfish, have been able to access these areas even during
the spawning season for GOM cod.
As noted in the FW 45 EA and the preamble to the proposed rule for
this action, the GOM Cod Spawning Protection Area is intended to
provide protection to spawning cod by limiting all fishing activities
using gear that may catch groundfish in a discrete area and during a
time in which cod spawning activity is documented to be occurring. The
area and season proposed in FW 45 was based on research conducted by
the University of New Hampshire in collaboration with the Northeast
Consortium. This research represents the first study in which western
Atlantic cod were examined on such a fine scale to determine both
temporal and spatial distribution of this species. According to this
research, cod spawning within the GOM Cod Spawning Protection Area
exhibit site fidelity, congregate in this specific area for the
duration of the spawning season, and return to this area each year to
spawn. These fish represent a ``discrete management unit'' that is
confirmed by genetic study, and constitute the largest distinctly
identified spawning group left in the western Atlantic Ocean. Further,
this research documents that trawl-caught fish are affected by fishing
activity, requiring several days to resume normal behavioral patterns
following capture. Finally, this study reiterated a concern expressed
by members of the fishing industry and state resource management
agencies that the recreational fishing fleet, particularly charter/
party vessels, that continue to be able to access spawning aggregations
of cod may decrease the rate at which the GOM cod stock rebuilds. Thus,
continued fishing pressure or disruption to spawning activity could
adversely affect cod recruitment within the GOM.
As proposed, the GOM Cod Spawning Protection Area prohibits both
commercial and recreational vessels fishing with gear considered to be
capable of catching groundfish from fishing in this area from April
through June of each year. Under this measure, all vessels are treated
equally, and neither group has access to this area during this time.
This is in contrast to the existing GOM Rolling Closure Areas in that
commercial vessels are prohibited from fishing for groundfish in these
areas, but recreational vessels can target groundfish in these areas
throughout the spawning season. Although the GOM Cod Spawning
Protection Area would essentially close some near-shore fishing grounds
to recreational vessels during the spawning season, this measure would
not eliminate small vessel access to available cod resources. This area
is relatively small (roughly 82 square miles, or 212 square km) and
represents the only area closure applicable to recreational vessels at
all, let alone during the spawning season. Therefore, recreational
vessels have access to available cod resources in other locations and
throughout the rest of the FY. Finally, while measures such as
possession or size limits are capable of affecting fishing mortality,
such measures cannot protect or improve recruitment in the same way
that area closures can. FW 45 does not propose to further reduce
fishing mortality on this stock. Instead, this provision is intended
specifically to reduce fishing activity on spawning aggregations and,
in turn, preserve opportunities for successful recruitment of this
stock in the future. Because the preservation of sufficient levels of
recruitment is critical for the continued success of efforts to rebuild
GOM cod, possession or size limits would not effectively achieve the
objectives for the GOM Cod Spawning Protection Area in FW 45. Existing
regulations, including the GOM Seasonal Rolling Closure Areas at Sec.
648.81(f) and the Sector Rolling Closure Areas at Sec.
648.81(f)(2)(vi), already prohibit vessels fishing on either a sector
or a common pool trip from targeting regulated species and ocean pout
in this area during April and May. For these reasons, NMFS has approved
the GOM Cod Spawning Protection Area, including the proposed
prohibition of midwater trawl gear fishing in this area during June of
each year.
Handgear A and B Measures
Comment 9: Two commercial fishermen strongly supported any measures
that would benefit small vessels fishing near shore with handgear. One
of these individuals indicated that fishing with handgear has no
detrimental effects to stock recovery or bycatch because all fish can
be released alive. Because they consider handgear to be a more
sustainable gear type, PERC further stated that NMFS should expand
opportunities for the use of handgear instead of restricting their trip
limits.
Response: NMFS believes the measures implemented by this final
rule, including revisions to handgear trip limits, exemption of
handgear vessels from common pool dockside monitoring requirements, and
access to seasonal closure areas encourage participation in the NE
multispecies fishery by handgear vessels, and minimize economic impacts
to such vessels, without compromising efforts to end overfishing and
rebuild overfished stocks.
Comment 10: The NEHFA and PERC suggested that handgear vessels
should be given a specific sub-ACL to avoid being adversely impacted by
potentially excessive catch by common pool vessels.
Response: The Council considered specifying a specific sub-ACL for
handgear vessels during the development of FW 45, but did not
ultimately adopt such a measure due to a concern that allocation
decisions
[[Page 23060]]
cannot be implemented through a FW action. The Council ultimately
concluded that such allocations must rather be implemented through an
amendment to the FMP because they are considered substantial revisions
to existing management measures and require additional public input.
NMFS agrees with this interpretation.
Comment 11: The NEHFA and one commercial fisherman supported the
proposed revisions to the cod trip limits applicable to handgear
vessels. They indicated that such revisions will provide relief from
the impacts of the ``race to fish'' during the early part of the FY in
the common pool.
Response: NMFS agrees, and has implemented these revisions through
this final rule.
Comment 12: One commercial fisherman, PERC, and the NEHFA expressed
support for the proposed requirement for handgear vessels to be issued
a LOA to fish south of the GOM RMA for GB cod. NEHFA recommended that
vessel owners could request a LOA annually when renewing their NE
multispecies permits, declare through the permit renewal application
that the vessel would be fishing south of the GOM RMA for the duration
of the FY and not have to request a LOA, or be issued a LOA
automatically through a Web site similar to the existing NMFS VTR Web
site. This group contends that these recommendations would help
minimize the burden on fishermen and NMFS. In addition, NEHFA was
concerned that the issuance of the LOA would adversely impact the
ability of vessel owners to participate in other fisheries.
Response: NMFS implements the requirement for handgear vessels
fishing south of the GOM RMA to either obtain a paper LOA or declare
their intent to fish south of the GOM via VMS through this final rule.
Under the LOA provisions implemented through this final rule and
existing protocols, a vessel owner could specify that he/she intends to
fish south of the GOM RMA for the entire year and be issued a LOA to
reflect that decision during the annual renewal of his/her NE
multispecies permit. Automated or web-based declaration and issuance of
this LOA would require further consideration by NMFS, including
ensuring that such declarations do not compromise the enforceability of
the LOA, would not unintentionally restrict the ability of vessel
operators to fish in the area of their choosing, and can be technically
administered. NMFS has the authority to revise the mechanism by which
such LOAs are issued to fishery participants and could implement the
recommendations offered by the public in the future if feasible. Any
changes to how LOAs are issued will be communicated to all affected
stakeholders through a permit holder letter, as appropriate.
Comment 13: The NEHFA supported the proposed exemption of vessels
issued a limited access NE multispecies Handgear A permit from the GB
Seasonal Closure Area and allowing such vessels to fish in the Sector
Rolling Closure Areas in the GOM. The NEHFA noted that Handgear A
vessels are currently precluded from fishing in the GOM until June or
July based on the existing GOM Rolling Closure Areas. This group stated
that, without exemptions, Handgear A vessels will not remain
economically viable due to competition with other gear types for
available common pool sub-ACLs. They contested that the proposed
exemptions would provide needed economic relief through increased
access to traditional fishing grounds that are within reach of the
small Handgear A vessels. Another commercial fisherman also supported
these measures, stating that they would help small vessels compete
against larger and more efficient vessels in the common pool. Both PEW
and PERC supported promoting the use of handgear through these proposed
measures, stating that handgear is the gear type with the least impacts
to habitat and the fishery.
Response: NMFS agrees with the comments, and this final rule
implements the proposed exemption.
Dockside/Roving Monitoring Requirements
Comment 14: The NSC questioned the utility of dockside/roving
monitoring requirements, suggesting that FW 45 should eliminate such
requirements completely. The NSC believes the current requirements to
be highly inefficient, representing an unsustainable and unjustified
cost to the fishing industry. Further, they suggested that NMFS should
allow sectors to use dockside monitoring data as a proxy for dealer
data in the weekly sector catch reports submitted to NMFS to increase
the utility of the dockside/roving monitoring program. Finally, NSC
indicated that roving monitors should not have to observe offloads to a
truck and also to a dealer, asserting that roving monitors should only
be required to observe offloads from the vessel to a truck, to increase
the efficiency and reduce costs associated with these provisions.
Response: The Council considered completely eliminating dockside/
roving monitoring requirements during the development of FW 45.
However, due to lingering concerns over the ability to enforce existing
provisions to monitor sector ACE and minimize incentives to misreport
catch, the Council retained dockside/roving monitoring requirements in
FW 45. NMFS may only approve or disapprove measures proposed in FW 45,
and may not change or substitute any measure in a substantive way.
Therefore, NMFS cannot eliminate dockside/roving monitoring
requirements through this final rule.
During the development of Amendment 16, it was anticipated that
sectors would rely upon dockside/roving monitor data to document sector
landings immediately following a vessel's offload until the official
dealer reports become available approximately a week later. This
practice has been discussed with sector managers through several sector
workshops held during 2009 and 2010. NMFS recognizes that dockside/
roving monitoring data cannot currently be reported as part of the
weekly sector catch reports submitted to NMFS based upon existing
guidance and database structures. To date, many dockside/roving
monitoring data are not systematically collected in a format that can
be easily transferred to a catch monitoring database. Instead, they are
often merely scanned images of a dockside/roving monitor report. NMFS
has the regulatory authority to accept dockside/roving monitoring data
in the future and may reconsider the acceptance of dockside/roving
monitoring data if such data become available in an acceptable
electronic format. Further, dealer landings, as documented through
official dealer reports, have been the standard by which landings are
monitored for many years, and were used as the basis for the
calculation of potential sector contributions and, therefore, sector
ACE. Accordingly, even if dockside/roving monitor data could be
considered as a proxy for dealer landings in weekly sector catch
report, dealer landings data would continue to be the official record
of species landed by each federally permitted vessel.
The Council required sectors to develop and implement an
independent third-party weighmaster system satisfactory to NMFS for
monitoring landings and utilization of ACE. The original intent of
dockside/roving monitoring coverage was to verify landings of a vessel
at the time it is weighed by a dealer to certify the landing weights
are accurate as reported on the official dealer report for compliance
purposes. Therefore, NMFS implemented regulations under
[[Page 23061]]
Amendment 16 that require that a roving monitor must observe the
offloads from a vessel to a truck and again from the truck to a dealer,
unless the vessel offloads directly to a dealer. These regulations were
based upon a pilot program and existing dockside/roving monitoring
programs developed in other regions and in Canada. During sector
implementation workshops conducted in 2009 and 2010, and ongoing
communications with sector managers, NMFS indicated that it would allow
a roving monitor to only observe offloads from a vessel to a truck,
provided a representative from the dealer ultimately receiving the fish
was present at the time of the offload, and that all fish were weighed
at the time of the offload. This ensures that the weight of fish
offloaded corresponds to the weight of the fish recorded in the
official dealer report, consistent with the intent of Amendment 16.
Thus, existing regulations and protocols already allow for the behavior
requested by the NSC in their comment.
Comment 15: The NEHFA, PERC, PEW, and one commercial fisherman
supported exempting vessels issued a limited access NE multispecies
Handgear A or a Small Vessel Exemption permit or an open access NE
multispecies Handgear B permit that is fishing in the common pool from
the existing dockside/roving monitoring requirements. They stated that
dockside/roving monitoring costs may be more than the value of fish
landed on a particular trip and would make the operation of such
permits economically unviable. The NEHFA also noted that many handgear
vessels are launched and retrieved at public boat ramps, thereby
creating logistical difficulties for waiting for the dockside/roving
monitor to arrive because a boat may be forced to move off of the dock
to accommodate the launching of other boats. This group also contended
that the current system of monitoring landings is sufficient for these
vessels due to the small amount of fish landed on each trip. Finally,
PERC suggested that handgear vessels fishing in sectors should also be
exempted from the dockside/roving monitoring requirements.
Response: NMFS agrees that the costs associated with the existing
dockside/roving monitoring requirements could make fishing with a
Handgear A, Handgear B, or Small Vessel Exemption permit uneconomical
for the reasons noted above and specified in FW 45. Therefore, NMFS
implements the proposed exemption from the common pool dockside/roving
monitoring requirements for these permit categories through this final
rule. Because the Council did not adopt a provision that would have
exempted sector vessels fishing with a handgear permit from the
dockside/roving monitoring requirements as part of FW 45, NMFS cannot
implement such a provision through this action.
Comment 16: Three commercial fishermen and two commercial fishing
industry groups (AFM and NSC) opposed the proposal to require dockside/
roving monitors to inspect the fish holds of vessels offloading
groundfish. AIS, Inc., a dockside/roving monitoring service provider,
also expressed concerns that the proposed requirement for dockside
monitors to inspect fish holds presents safety issues. All commenters
highlighted the risk of serious injury from having dockside/roving
monitors board vessels, climb down ladders into the fish holds, and
inspect the holds or other compartments for fish that have not been
offloaded. AIS noted that there are no standards in FW 45 that address
potentially dangerous conditions in inspecting holds, or requirements
for vessels to provide a standardized safe boarding system. AIS also
stated that there is no guidance as to how to inspect fish holds,
including whether dockside monitors must inspect piles of ice or look
for fish in other compartments, giving the impression that dockside/
roving monitors may be acting as enforcement personnel instead of data
collectors. Several commenters suggested that this potential risk will
force vessel owners to buy more insurance to ensure that they are
adequately covered for any potential liability lawsuits that might
result from this provision. In doing so, they contested that this would
contradict the FW 45 economic analysis that indicates that this measure
should not impact either vessel owners or service providers. They noted
that, even if the dockside/roving monitoring service providers had
sufficient insurance coverage, vessel owners might still be sued and
face financial liability from the injury claims of individual dockside/
roving monitors. Further, they claimed that the proposed rule does not
provide any rationale that enhanced enforceability is needed, or that
underreporting is occurring. They contested that the existing
provisions that require dockside/roving monitors to ask vessel
operators if all fish have been offloaded, and classify providing false
statements to dockside/roving monitors as a violation, should be
sufficient to enforce this provision. They recommended that NMFS Office
of Law Enforcement should inspect fish holds, instead of dockside/
roving monitors.
Response: As noted throughout the development of Amendment 16 and
FW 45 by both fishing industry representatives and NMFS, the transition
to expanded sector management and ACLs increases incentives to
misreport or under report catch and landings. Dockside/roving
monitoring programs established in other regions of the United States
and Canada that are managed by harvest quotas are considering, or have
required, dockside/roving monitors to inspect fish holds to ensure that
all fish are offloaded. The potential for dockside/roving monitors to
inspect fish holds was explicitly discussed throughout the development
of Amendment 16 as part of both the Council process and parallel
meetings to discuss the development of sector measures sponsored by the
Gulf of Maine Research Institute. Section 4.2.3.5.4 of the Amendment 16
FEIS documents this discussion and clearly indicates that to be
approved as a dockside/roving monitor, a dockside/roving monitor must
meet several criteria, including:
``Physical capacity for carrying out the responsibilities of a
dockside/roving monitor pursuant to standards established by NMFS
such as being certified by a physician to be physically fit to work
as a dockside/roving monitor. The physician must understand the
monitor's job and working conditions, including the possibility that
a monitor may be required to climb a ladder to inspect fish holds.''
Therefore, the general public, including both vessel owners and
dockside/roving monitoring service providers, were well aware of the
potential that dockside/roving monitors might be required to inspect
fish holds and the risks that such activity might incur. However, no
comments opposing this practice were raised to NMFS during the public
comment period on the Amendment 16 proposed rule.
The final rule implementing Amendment 16 measures did not require
dockside/roving monitors to inspect the fish holds based, in part, on a
pilot dockside/roving monitoring program conducted in the summer of
2009. Similar to comments received on this action, some safety concerns
were identified with inspecting fish holds during the pilot program,
even though fish holds were actually inspected as part of that pilot
program. As a result, in the Amendment 16 proposed (74 FR 69382;
December 31, 2009) and final rules, NMFS intentionally included
language in the dockside/roving monitoring program operational
[[Page 23062]]
standards at Sec. 648.87(b)(5)(ii)(B)(1) that allow individual
dockside/roving monitors or service providers to inspect fish holds if
they elect to do so.
Section 311 of the Magnuson-Stevens Act provides the Secretary of
Commerce with the general authority to enforce the provisions of the
Magnuson-Stevens Act. NMFS acknowledges that existing dockside/roving
monitoring provisions make it a violation for a vessel operator to
provide false statements to a dockside/roving monitor about whether all
catch is offloaded. However, that is just one of many ways to ensure
compliance with existing regulations. NMFS does not agree that such
measures are completely sufficient to ensure that all catch is
offloaded. The only way to validate statements made by a vessel
operator is to actually inspect fish holds. NMFS Office of Law
Enforcement personnel already have the authority to board and inspect
vessels. However, requiring dockside/roving monitors to also inspect
fish holds, as anticipated during the development of Amendment 16,
provides another means to ensure that vessel operators are complying
with existing requirements, and that all fish that are landed are
recorded in dealer databases or other data sources such as dockside/
roving monitor reports. Dockside/roving monitors are not enforcement
personnel, but their observations, including the reports summarizing
the offloads of individual trips, are available to law enforcement
personnel, as described in Section 4.2.3.5.4 of the Amendment 16 FEIS
and the existing regulations at Sec. 648.87(b)(4). The training
provided to dockside/roving monitors by NMFS explicitly states that it
is the dockside/roving monitor's responsibility to account for all
catch, whether or not it is properly weighed or recorded by other
parties. Monitors must record any species that is not weighed in their
incident report to facilitate compliance with existing requirements.
Therefore, based on the need to ensure that NMFS is accurately
monitoring the amount of fish landed, NMFS has retained the requirement
that dockside/roving monitors must inspect fish holds as part of this
final rule.
NMFS recognizes that dockside/roving monitors must proceed with
caution when conducting inspections of fish holds. As part of the
dockside/roving monitoring training curriculum and certification
process overseen by NMFS, individual dockside/roving monitors are
trained and tested for competency in safety procedures, including
slips, trips, and falls; electrical safety; climbing stairs and
ladders; overhead dangers; unstable items; and fire. In addition, NMFS
will likely require all previously certified dockside/roving monitors
to attend a refresher safety training session on issues specific to
boarding vessels and inspecting fish holds. Based on examples in other
U.S. and Canadian fisheries, NMFS is currently developing standardized
protocols that outline the major elements that dockside/roving monitors
must comply with when inspecting fish holds. These elements include,
but are not limited to, requesting permission from the vessel captain
to board a vessel, following the instructions of the vessel's captain
and crew to safely enter and exit the fish holds, and inspecting only
areas of the vessel that would normally be used to store fish. Such
standards will be integrated into the dockside/roving monitoring
training curriculum developed and conducted by the Northeast Fishery
Observer Program.
The dockside/roving monitor service provider approval standards
adopted in Amendment 16 explicitly included the requirement for service
providers to have adequate insurance to cover injury, liability, or
accidental death that might befall dockside/roving monitors. NMFS
recognizes that despite such coverage, individual dockside/roving
monitors still have the capacity to bring a lawsuit against vessel
owners for any injuries incurred while inspecting fish holds. NMFS
encourages sectors and dockside/roving monitor service providers to
seek agreement on how to best address the issues and problems raised by
the comment. As to whether FW 45 sufficiently considers possible
increases in cost for liability insurance for inspecting fish holds,
NMFS does not have sufficient information to do so. While NMFS has
information on the amount and type of insurance dockside/roving
monitoring service providers have purchased, it would be difficult for
NMFS to speculate on the costs of additional insurance for individual
vessels. However, NMFS is committed to reviewing the requirement to
inspect fish holds and the costs associated with it over time as more
information becomes available.
Comment 17: Two industry groups (AFM and NSC) supported the
proposal to delay the industry's responsibility for dockside and at-sea
monitoring costs until FY 2013. They stated that this accurately
reflects the fishing industry's inability to pay for the high costs of
such monitoring at this time. However, the NSC cautioned that the
economic viability of the fishing industry is not likely to improve
sufficiently to enable sectors to cover such monitoring costs in FY
2013. Accordingly, they recommended that the Council and NMFS should
consider further postponing industry responsibility for such costs
until the fishing industry is profitable again. In contrast, PEW
suggested that sectors should be in a better position to assume
monitoring costs in FY 2013. PEW offered that the proposed delay would
help ensure the success of the established sector program, arguing that
the long-term benefits of fishing under sectors outweigh any potential
impacts associated with reduced dockside monitoring in the short term.
Oceana opposed delaying industry responsibility for dockside and
at-sea monitoring costs, claiming that NMFS does not have the authority
to modify sector monitoring provisions in a FW action because such a
measure would be a fundamental change in the FMP and that implementing
this delay through a FW action would circumvent the public process.
Citing a recent court case (Oceana, Inc. v. Evans, 384 F. Supp. 2d 203,
255 (D.DC 2005)), they contended that such measures can only be
modified through an amendment, with an associated NEPA document. They
also suggested that the proposed delay would undermine the Magnuson-
Stevens Act requirements to monitor bycatch and implement measures to
ensure accountability for ACLs, especially considering the concerns
expressed by NMFS in a November 15, 2010, letter to the Council
highlighting concerns about the potential limitation of NMFS funding in
2012 to support dockside and at-sea monitoring. FWW echoed this
concern, noting that this might cause a ``gap in the necessary
enforcement required due to increased incentives for high-grading,
misreporting, and underreporting.'' They recommended that delaying or
removing monitoring costs should be based on vessel size/capacity, or
an individual business's revenue.
Response: NMFS recognizes that the costs of requiring the fishing
industry to pay for sufficient at-sea monitoring coverage could reduce
profitability. However, a FMP must continue to maintain measures that
prevent overfishing and promote the long-term health and stability of
the fishery, as required by section 303(a) of the Magnuson-Stevens Act.
As noted above, NMFS is concerned that relying exclusively on available
NMFS funding for at-sea monitoring coverage during FY 2012 may reduce
the amount of at-sea monitoring coverage available during that FY due
to the yet uncertain amount of available NMFS funding for FY 2012. NMFS
agrees that delaying industry responsibility for paying for at-
[[Page 23063]]
sea monitoring coverage may reduce the amount of at-sea monitoring
coverage during FY 2012 and undermine efforts to obtain accurate
information regarding catch in the fishery. Therefore, NMFS has
disapproved the proposed measure to delay industry responsibility for
the costs at-sea monitoring coverage during FY 2012. NMFS expects at
least some funding that will offset at least some of the at-sea
monitoring coverage costs during FY 2012. Accordingly, the fishing
industry would only be responsible for the costs of at-sea monitoring
coverage that is not accounted for by available Federal funding.
As noted in the FW 45 EA, delaying industry responsibility for
funding dockside/roving monitoring coverage in FYs 2011 and 2012 will
immediately reduce operational costs to industry, without reducing the
availability of landings information. This is because the dockside/
roving monitoring data are primarily used for enforcement purposes, not
catch monitoring. The trip-end hail report, in conjunction with the
requirement for dockside/roving monitors to inspect fish holds
implemented by this final rule, is intended to provide sufficient
information to ensure compliance with existing regulations. Moreover,
NMFS is expected to have sufficient funding in FY 2011 to continue the
levels of observer and at-sea monitoring coverage for both sector and
common pool trips implemented in FY 2010, and to augment that with
sufficient dockside/roving monitoring coverage for trips not monitored
by observers or at-sea monitors. Even if insufficient funding available
to NMFS results in a short-term reduction in dockside/roving monitoring
data, NMFS agrees that such reductions in data would likely be offset
by long-term benefits of fishing under sectors. Therefore, NMFS is
approving the delay in industry responsibility for dockside/roving
monitoring costs through this final rule. Further changes could be
considered by the Council through a future management action, but
because NMFS does not have the authority to revise measures adopted by
the Council in FW 45, NMFS cannot unilaterally postpone industry
responsibility for such costs beyond FY 2012 through this action.
NMFS disagrees that the proposed postponement of industry
responsibility for dockside/roving and at-sea monitoring costs
represents a fundamental revision of the FMP and would circumvent the
public process. First, the fundamental dockside/roving and at-sea
monitoring provisions implemented by Amendment 16 are retained. The
only aspect of these provisions that changes through FW 45 is the
entity paying for the costs of such monitoring. Although NMFS will pay
for at last some of the costs of dockside/roving and at-sea monitoring
coverage for FYs 2011 and 2012, and will endeavor to achieve the
coverage requirements specified in Amendment 16 for industry-funded
dockside/roving and at-sea monitoring coverage, these changes do not
constitute a fundamental change to the FMP requiring an amendment to
the FMP. Second, the Council fully anticipated that measures adopted
under Amendment 16 could be revised in the future through a FW action.
This is documented in the Amendment 16 FEIS's executive summary when it
states, ``The periodic adjustment process is modified so that all
measures adopted can be adjusted on a framework action'' (see page 10
of that document) and in Section 4.2.8. This was codified in the
regulations at Sec. 648.90(a)(2)(iii) and (c)(1)(i). Both the
Amendment 16 FEIS and the proposed regulations to implement Amendment
16 measures were made available for extensive public comment.
Therefore, because the fundamental aspects of the Amendment 16 sector
and common pool monitoring measures are not affected by the proposed
delay in responsibility for monitoring costs, and that the public was
afforded substantial opportunity to comment on the ability of the
Council and NMFS to revise existing management measures through a FW
action as part of the Amendment 16 proposed rule, NMFS has not remanded
this provision back to the Council for implementation through an
amendment to the FMP.
Sector Measures
Comment 18: FWW claimed that it was unfair to distribute the PSCs
of cancelled NE multispecies permits to all valid limited access NE
multispecies permits, suggesting that it was a poor use of available
and ``un-owned'' quota. Instead, they recommended that the PSC of
cancelled permits should be distributed to state-operated permit banks.
They contended that this would signify a return to the general public
for the use of its resources.
Response: NMFS disagrees that it is unfair to distribute the PSCs
of cancelled NE multispecies permits to all valid limited access NE
multispecies permits. The National Standard 4 Guidelines state that, if
it becomes necessary to allocate or assign fishing privileges among
U.S. fishermen, such allocations shall be ``fair and equitable to all
such fishermen.'' The proposed distribution to all valid limited access
permits is consistent with National Standard 4 because it treats all
permits equally and distributes PSCs associated with cancelled permits
among all permits that may participate in the NE multispecies fishery.
Therefore, NMFS implements this measure through this action.
Comment 19: An individual commercial fisherman recommended that
sector rosters should be reopened now that common pool trip limits are
proposed. He contended that there was not enough information about
potential common pool trip limits to make an informed decision whether
to join a sector by either the September or December sector roster
deadlines. The Council also suggested that NMFS consider reopening
sector rosters for the reasons noted above following public input at
the March 17, 2011, Groundfish Oversight Committee meeting.
Response: As highlighted in Item 11 of this preamble and in a March
23, 2011, letter to permit holders, based on industry input, NMFS is
allowing for a limited opportunity for additional changes to FY 2011
sector rosters to accommodate changes in vessel ownership that occurred
after the submission of final sector rosters on December 1, 2010. This
window to reopen FY 2011 sector rosters began on March 23, 2011, and
will end on April 30, 2011. In future years, a window for additional
sector roster changes would begin with the publication of proposed
measures for the common pool for the following year and end on April
30, and would be limited to ownership changes occurring after the
December 1 roster deadline. This is intended to provide vessel owners
with the information they need to make an informed decision about
whether to participate in sectors during the following FY, without
undermining public consideration of likely sector operations in the
following fishing year by substantially revising sector rosters
following an opportunity to comment on proposed sector operations
plans.
Comment 20: One industry group (NSSN) and the Council supported the
proposed delay of the existing 14-day window for sectors to complete
ACE transfers after the end of the FY to ensure that sectors had
sufficient time to consider and incorporate final NMFS evaluations of
sector catch before they sought to acquire additional ACE to rectify
any overages of sector ACE from the previous FY.
Response: NMFS agrees, and implements revisions to the existing
regulations at Sec. 648.87(b)(1)(iii)(C) and (b)(1)(viii) to allow for
additional time that might be necessary to determine
[[Page 23064]]
estimates of final sector catch and balance sector overages from the
previous FY through this action.
Comment 21: PEW expressed strong support for the approval of new
sectors, including state-operated permit banks. They suggested that
permit banks offer an important mechanism for preserving fishing
opportunities for small-scale fishermen operating out of small ports
and helping to protect against excessive consolidation in the fishery.
Response: NMFS agrees and approved the creation of new sectors,
including state-operated permit banks through this final rule.
Comment 22: FWW stated that there was some conflicting language
about the approval of new sectors as part of FW 45. In the preamble to
the FW 45 proposed rule, they state that language suggests that new
sectors have not been approved, yet language on page 39 of the FW 45 EA
states that they are already approved and will become effective on May
1, 2011. Overall, however, comments by FWW did not outright oppose the
implementation of new state-operated permit bank sectors, but rather
suggested that such permit banks are indicative of their underlying
concern with the privatization that occurs with catch shares. They
suggest an alternative approach that would allow catch shares to be
rented out to eligible entities. This would avoid the need to fund
permit banks with taxpayer dollars and allow the Federal government to
control pricing so that cost of fishing is always reasonable and can
facilitate participation of small vessels in the fishery, thereby
allowing managers to prioritize environmental, economic, and social
goals of the fishery.
Response: Five new sectors were adopted by the Council in FW 45.
However, to become effective, these sectors must still be approved by
the Secretary through proposed and final rulemaking. Therefore, the
language in the FW 45 EA incompletely described the process for
approving sectors and their operations on a yearly basis. The Council
adopted the creation these new sectors as part of FW 45, but they are
not officially approved until the Secretary approves measures contained
in FW 45 and the regulations implementing such provisions. Because the
creation of these sectors is consistent with the FMP and applicable
law, they are officially approved through FW 45 and implemented through
this final rule. However, to operate on a yearly basis, all sectors
must submit an operations plan and contract by specific deadlines.
These yearly operations plans must further be approved by the sector
through a separate rulemaking from the rulemaking to approve the
creation of such sectors.
In their comment, FWW suggested that rather than allocating fishing
privileges to fishing entities, fishery managers should require
eligible fishing entities to rent fishing rights. As noted above, NMFS
cannot substitute existing management measures with FWW's suggested
approach through this final rule. However, this approach could be
considered by the Council through a future management action.
Nevertheless, it should be noted that their proposal would likely
increase operational costs to all vessel owners that are interested in
actively participating in the NE multispecies fishery, as both small
and large vessels would be potentially obligated to purchase catch
shares at the beginning of each FY. Depending on other operational
costs associated with each particular vessel, it may not be feasible to
continue to participate in the fishery given such expenses. This could
lead to economic impacts to both these entities and supporting fishing
communities that would be beyond those associated with the current
management regime. Further, it may not be fair and equitable to impose
different costs on different vessels based on size alone. Accordingly,
FWW's proposal may not be consistent with National Standards 4 and 8 of
the Magnuson-Stevens Act, as summarized in FWW's comment.
Measures for FY 2011 Under RA Authority
Comment 23: One commercial fisherman expressed concern that the
proposed initial common pool trip limits for FY 2011 are insufficient
to allow vessels to cover operational expenses. He stated that he
prefers higher DAS counting rates and proportional increases in trip
limits to allow vessel owners/operators to cover expenses and decrease
bycatch by turning discards into landings. The Council also suggested
that NMFS consider increasing trip limits and DAS counting so common
pool trips are profitable and ACLs are not exceeded during FY 2011,
following public input at the March 17, 2011, Groundfish Oversight
Committee meeting.
Response: Because the realized fishing activity and associated
expenses for each vessel may be very different, as documented in the
Amendment 16 FEIS, it is very difficult to determine the appropriate
combination of trip limits and DAS counting rates that would ensure
that all common pool trips are profitable. Some vessel owners/operators
may elect to target some species early in the FY based on historic
operations and operator knowledge, while others may prefer to operate
later in the FY to target other species and capitalize on the generally
higher prices during the winter when fish supply is lower. Therefore,
any combination of trip limits and DAS rates would likely benefit some,
but not all vessels operating in the common pool.
The RA has the authority to revise trip limits and DAS rates to
ensure that the common pool achieves, but does not exceed allocated
sub-ACLs throughout the FY. Generally, NMFS has endeavored to ensure
that the fishery remains open throughout the FY to provide the most
flexibility in fishing operations to accommodate seasonal distribution
of fish, fluctuations in market price, and operational preferences of
vessel owners/operators. This was the approach employed in proposing
initial FY 2011 common pool trip limits in the proposed rule for this
action. The proposed FY 2011 DAS counting rate was based on a formulaic
rate necessary to account for projected overages of specific sub-ACLs
by the common pool during FY 2010. Because NMFS has the flexibility to
adjust trip limits and DAS counting rates throughout the year, NMFS can
adapt to fishing behavior to either increase or decrease trip limits
and, to some degree, DAS counting rates. Therefore, NMFS implements the
common pool trip limits and DAS counting rates outlined in Item 13 of
this preamble for FY 2011. For some stocks, these trip limits reflect
the highest trip limit from the range of trip limits considered in
Table 16 of the proposed rule for this action to increase the
profitability of common pool trips without compromising efforts to
ensure that the common pool sub-ACLs are not exceeded during FY 2011.
NMFS will continue to monitor catch rates and will adjust such measures
as necessary to achieve the goals of the FMP, including increasing the
profitability of individual trips, if available data suggest that such
an action is warranted.
Corrections and Clarifications
Comment 24: The NEHFA and one commercial fisherman expressed
support for the clarification of PSC text to specifically clarify how
PSCs will be calculated for handgear permits using landings histories
of handgear permits during FYs 1996-2006.
Response: As outlined in the preamble of the proposed rule for this
action, NMFS believes these changes are necessary to accurately reflect
the intent of the Council in Amendment 16 and the manner in which PSC
are actually
[[Page 23065]]
calculated by NMFS starting in FY 2011. Therefore, these changes have
been implemented through this final rule.
Comment 25: One sector manager, commenting on the proposed rule to
approve FY 2011 sector operation plans, commented in support of
delaying the opening of the Eastern U.S./Canada Area only to common
pool vessels until August 1, 2011, and allowing sector vessels to
access this area on May 1, 2011. He noted that all sector vessels fish
under a hard TAC in all areas, including the Eastern and Western U.S./
Canada Areas. He suggested that access to these offshore fishing areas
when the weather is better during the summer months is very important
for smaller trawl vessels that are not suitable for fishing in offshore
waters during the winter.
Response: As outlined in the preamble of the proposed rule for this
action, NMFS proposed applying the delayed opening of the Eastern U.S./
Canada Area only to common pool vessels during FY 2011 for the reasons
offered by the sector manager. Therefore, NMFS implements the measures
originally proposed in the proposed rule for this action through this
final rule.
Comment 26: The NSC expressed support for the proposed change to
the regulations at Sec. 648.87(b)(1)(i)(C) to clarify that any sector
ACE carried over into the next FY would be calculated based on 10
percent of the ACE originally allocated to the sector at the start of
the previous FY. However, the NSC disagreed with the characterization
of that proposed change in the preamble of the proposed rule for this
action that states ``a NE multispecies sector may carry-over up to 10
percent of its allocated ACE for each stock * * * into the following
FY, provided the sector has not harvested more than 90 percent of its
original allocation for that stock by the end of the FY.'' They contend
that the preamble text suggests that if a sector leases in ACE from
another and used more than 90 percent of its allocation, then it would
not be able to carry over any ACE into the next FY. In doing so, this
interpretation would destroy the utility of carry over provisions and
distorts ACE trading system. They recommend that NMFS remove the
contested preamble text from the final rule, as it could be used to
interpret any ambiguities in the implementation of this provision in
the future.
Response: NMFS recognizes that the preamble text referenced in
NSC's comment could be interpreted in a way that is counter to the
intent of NMFS in proposing this correction. Consistent with the
proposed regulatory text, the intent of NMFS was to merely clarify that
the amount of ACE that can be carried over for each stock shall be
calculated based upon the amount of ACE originally allocated to that
sector. To more accurately reflect the intent of NMFS and the Council
in originally adopting the original ACE carry-over provision in
Amendment 16, NMFS has removed the disputed preamble text and inserted
an example clarifying how NMFS will calculate ACE that can be carried
over into the next FY into the preamble text for this final rule.
Changes From the Proposed Rule
NMFS has made two changes to the proposed rule, including changes
as a result of public comment and the disapproval of the proposed
measure to delay industry responsibility for at-sea monitoring costs
during FY 2012. In Sec. 648.87(b)(5)(i)(A)(1), the phrase ``As
instructed by the Regional Administrator'' was added to the trip-start
hail reporting requirements to enable the Regional Administrator to
augment the data elements contained in this report to more effectively
administer this provision and the associated dockside/roving monitor
coverage levels on a yearly basis. This change allows the Regional
Administrator to require that vessel operators declare whether an
observer or at-sea monitor is assigned for a particular trip to
facilitate the appropriate deployment of dockside/roving monitors in
FYs 2011 and 2012 and achieve the desired coverage levels based on
available funding, as described in Item 10 above. In addition, the
regulations at Sec. 648.87(b)(1)(v)(B)(2) were revised to reflect that
the fishing industry was responsible for developing and paying for any
at-sea monitoring program developed starting in FY 2012.
Classification
The Administrator, Northeast Region, NMFS, determined that FW 45 is
necessary for the conservation and management of the NE multispecies
fishery and that it is consistent with the Magnuson-Stevens Fishery
Conservation and Management Act and other applicable laws.
There is good cause under 5 U.S.C. 553(d)(3) to establish an
effective date less than 30 days after the date of publication for the
measures implemented by this final rule. The effective date of this
action affects a parallel rulemaking to approve sector operations plans
for the start of FY 2011 on May 1, 2011. Therefore, these actions must
be in effect at the beginning of FY 2011 to fully capture their
environmental and economic benefits of FW 45 measures as well as the FY
2011 sector operations plans. The time available for FW 45 was
constrained by multiple factors, preventing such actions from being
completed sufficiently in advance of May 1, 2011, to facilitate the 30-
day cooling off period. These factors included additional time
necessary to fully analyze measures included in this action following
revisions to draft measures when the Council adopted final FW 45
measures at its November 2010 meeting, and coordinate a special meeting
of the TMGC to evaluate the impacts of the approval of IFACA in January
2011 on measures included in FW 45. Due to these constraints and
rationale, this rulemaking could not be completed further in advance of
May 1, 2011. Therefore, in order to have this action effective at the
beginning of FY 2011, it is necessary to waive a portion of [retain as
necessary] the 30-day delay period for this rule.
The waiver of a portion of [retain as necessary] the 30-day delayed
effectiveness for this final rule is in the public interest because it
is necessary to implement a number of measures by the start of FY 2011
that would benefit the NE multispecies fishery at large. Specifically,
this action incorporates the best available scientific information for
both pollock and GB yellowtail flounder, specifies and distributes
revised ACLs for several stocks, implements a spawning closure area to
protect spawning cod in the GOM, delays industry responsibility for
costs associated with catch monitoring, increases access to near-shore
seasonal closure areas by smaller Handgear-permitted vessels, increases
LAGC vessel access to the Great South Channel Exemption Area, and
approves the creation of five new sectors, among other measures. This
final rule also includes measures that would control fishing effort by
common pool vessels to help prevent the premature or excessive harvest
of sub-ACLs allocated to the common pool during FY 2011. A May 1, 2011,
effective date is necessary in order to specify catch levels and
implement management measures necessary to eliminate overfishing and
continue stock rebuilding, help mitigate the adverse economic impacts
resulting from continued efforts to end overfishing and rebuild
overfished stocks, increase the economic efficiency of vessel
operations, and prevent industry confusion. Failure to waive the 30-day
delay in effectiveness would prevent such measures from being
implemented on May 1, 2011, and could
[[Page 23066]]
result in short-term adverse economic impacts to NE multispecies
vessels and associated fishing communities that were neither
anticipated by the Council and industry participants, nor analyzed in
the FW 45 EA and the associated FY 2011 sector operations plans EA. In
particular, access to available fishery resources would be
unnecessarily delayed for scallop and Handgear-permitted vessels, and
commercial vessels would not be able to benefit from the substantially
increased FY 2011 GB yellowtail flounder ACL. This could result in
additional economic impacts and reduce the economic efficiency of the
fleet until such measures become effective. Without the timely
implementation of measures specified in this rule, the risk of
excessive catch by common pool vessels would be increased, along with
potential that the common pool will once again exceed its sub-ACL for
specific stocks. In addition, allowing for a full 30-day delayed
effectiveness period would delay the implementation of the GOM Cod
Spawning Protection Area for up to an additional 30 days during which
cod will continue to spawn. Thus, this delay could potentially
jeopardize existing efforts to end overfishing and rebuild overfished
stocks. This would be contrary to not only the interest of the fishing
communities, but to the public at large, as overfishing and overfished
stocks decreases the ability of the public to enjoy that stock for
commercial, recreational, aesthetic, or other reasons, and reduces the
availability of seafood to the nation. Therefore, delayed
implementation of these measures beyond May 1, 2011, is impracticable
and contrary to the public interest, and the requirement to delay
implementation of this rule for a period of 30 days is hereby waived.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
This final rule does not contain policies with federalism or
``takings'' implications, as those terms are defined in E.O. 13132 and
E.O. 12630, respectively.
A FRFA was prepared for this action. The FRFA incorporates the
IRFA, a summary of the significant issues raised by the public comments
in response to the IRFA, NMFS responses to those comments, a summary of
the analyses completed in the FW 45 EA and any supplements thereto to
support the action, and this portion of the preamble. A summary of the
IRFA was published in the proposed rule for this action and is not
repeated here. A description of why this action was considered, the
objectives of, and the legal basis for this rule is contained in FW 45
and in the preamble to the proposed and this final rule, and is not
repeated here. All of the documents that constitute the FRFA are
available from NMFS (see ADDRESSES). In the FRFA, 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 FRFA refer to those
contained in the EA developed for FW 45. A copy of FW 45 is available
from the Council (see ADDRESSES).
A supplemental EA was developed to analyze the impacts of the
emergency action to increase the FY 2011 GB yellowtail flounder TAC for
the U.S./Canada Management Area and the associated ABC and ACL for this
stock. The economic impact on affected entities resulting from
increasing the FY 2011 GB yellowtail flounder TAC, ABC, and ACL is
expected to be positive, because it will provide additional fishing
opportunity and fishing revenue for vessels participating in NE
multispecies fishery and the scallop fishery during FY 2011. Based on
historic information, the groundfish fishery is able to land close to
the full amount of GB yellowtail flounder allowed. The estimated
revenue from the sale of GB yellowtail flounder under the increased
catch limits is approximately $2 million, compared with $1.4 million if
the original FY 2011 TAC, ABC, and ACL adopted in FW 45 were to be
implemented instead. Based on a conservative estimate using FY 2010
data, for every dollar of yellowtail flounder revenue, there is at
least $10 of revenue from other species. The additional revenue due to
the catch of other species could be worth approximately ten times the
difference between the GB yellowtail flounder revenue under the
original catch limits and the increased catch limits implemented by
this action (10 x $641,272), or approximately $6.4 million (if the
total GB yellowtail flounder TAC is caught, and fishing effort on GB
ceases consistent with existing regulations).
With respect to the scallop fishery, the increased catch limit
implemented by this action will result in a larger cap on the amount of
GB yellowtail flounder than can be caught in the scallop access areas.
A larger cap may indirectly enable greater scallop revenue for the
scallop fishery, particularly if the GB yellowtail flounder cap becomes
limiting to the scallop fishery in the Closed Area II Scallop Access
Area. It is difficult to predict the amount of GB yellowtail flounder
that will be caught in the Closed Area II Scallop Access Area in FY
2011 due to the variability of scallop fishing effort, as well as
scallop and yellowtail flounder catch rates. However, a larger cap on
the amount of GB yellowtail flounder that can be caught in the scallop
access areas enhances the ability of the scallop industry to plan
fishing operations, and will minimize disruption to fishing activities.
Summary of the Significant Issues Raised by Public Comments in Response
to the IRFA. A Summary of the Assessment of the Agency of Such Issues,
and a Statement of Any Changes Made From the Proposed Rule as a Result
of Such Comments
Comment A: As noted above in Comment 16, several commenters
suggested that the proposed requirement for dockside/roving monitors to
inspect fish holds will expose vessel owners to a risk of a lawsuit
stemming from any potential injury to such monitors when boarding the
vessel or inspecting fish holds even if the dockside/roving monitoring
service providers had sufficient insurance coverage. These commenters
asserted that this potential risk will force vessel owners to buy more
insurance to ensure that they are adequately covered for any potential
liability lawsuits that might result from this provision. In doing so,
they contest that this would contradict the FW 45 economic analysis
that indicates that this measure should not impact either vessel owners
or service providers.
Response: The existing regulations require dockside/roving monitor
service providers to have adequate insurance to cover injury,
liability, or accidental death that might befall dockside/roving
monitors in the conduct of their duties. However, NMFS recognizes that
despite such coverage, individual dockside/roving monitors still have
the capacity to file a lawsuit against vessel owners for any injuries
incurred while inspecting fish holds. As noted in the response to
Comment 16 above, NMFS encourages sectors and dockside/roving monitor
service providers to seek agreement on how to best address the issues
and problems raised by the comment. NMFS does not have sufficient
information to evaluate the potential increase in costs associated with
any additional insurance coverage that vessel owners may be inclined to
purchase to protect them from any liability associated with dockside/
roving monitors inspecting fish holds. The risks associated with the
liability for injuries to dockside/roving monitors inspecting fish
holds appear to be
[[Page 23067]]
somewhat similar to those associated with having to accommodate an
observer and, therefore, may be instructive on how to consider
insurance costs for dockside monitoring. NMFS is committed to reviewing
the requirement to inspect fish holds and the costs associated with it
over time as more information becomes available.
Description of and Estimate of the Number of Small Entities to Which
the Final Rule Will Apply
The measures implemented by this action 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 affects the dockside/roving and at-sea or electronic
monitoring program requirements and require dockside monitors to
inspect fish holds, this action also affects 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 is 3,935 entities. These 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 Hangear B (Handgear
B) permit holders; 824 open access NE multispecies charter/party
permits; and 667 Atlantic sea scallop LAGC permits. 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,
according to that analysis, only 18 entities conducted party/charter
operations in the GOM Cod Spawning Protection Area implemented by this
action. It is difficult to estimate the number of private recreational
anglers that may be affected by this action, as the GOM Cod Spawning
Protection Area implemented by this action is too small to accurately
determine the number of anglers that fish in this area based on
available data. Finally, 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. As of March 28, 2011, four of these
entities have submitted an application to provide dockside/roving
monitoring services for FY 2011.
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. As of December 1, 2010, 836 permits had
elected to join a sector during FY 2011, as determined through the
submission of sector rosters to NMFS, indicating that 452 permits would
be enrolled in the common pool during FY 2011. However, vessels may
withdraw from sectors through April 30, 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. The vessels in the Atlantic
sea scallop fishery are considered small business entities because all
of them grossed less than $3 million according to the dealer's data for
FYs 1994 to 2009, consistent with analyses under the RFA for recent
scallop actions. 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 final rule.
Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Final Rule
The only reporting and recordkeeping requirements affected by this
final rule are the request for a LOA to fish south of the GOM RMA 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 does not impose any new reporting or
recordkeeping requirements that have not already been in existence.
However, it requires additional vessels (handgear-permitted vessels) to
comply with the LOA requirements and mandates that common pool vessels
submit trip-end hail reports earlier than expected when originally
implemented under Amendment 16. 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 implemented by this action are
detailed in the Paperwork Reduction Act (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 RMA 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 to be $0.50 per submission.
For the trip-end hail reports, the yearly cost to each vessel is
estimated to be approximately $17, assuming that such reports were made
via VMS. Costs would likely be lower if such reports were submitted via
another medium. Costs to vessels receiving dockside/roving monitoring
services implemented 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 are estimated to cost approximately $4,225
per service provider annually, while submitting dockside monitoring
data to NMFS is likely to 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
[[Page 23068]]
($3,125 per year) and to submit at-sea or electronic monitoring data to
NMFS ($36,000 per year).
This final 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).
These estimates include the time required for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding these burden
estimates or any other aspect of this 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.
Description of Steps the Agency Has Taken To Minimize the Significant
Economic Impact on Small Entities Consistent With the Stated Objectives
of Applicable Statues
During the development of Framework 45, NMFS and the Council
[[Page 23069]]
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). The
measures implemented by this final rule, in conjunction with the final
rule to approve FY 2011 sector operations plans, minimize the long-term
economic impacts on small entities to the extent practicable. Overall,
long-term impacts of this final rule, as well as the related actions of
the FMP, are minimized by ensuring that management measures and catch
levels result in fishing mortality rates are sustainable and contribute
to rebuilding stocks and, therefore, maximizing yield, as well as
providing additional flexibility for fishing operations in the short
term. In particular, this final rule implements several measures that
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
include formal recognizing the rebuilt status of pollock; extending the
rebuilding period for GB yellowtail flounder; increasing the FY 2011 GB
yellowtail flounder U.S./Canada Management Area TAC; maintaining
existing yellowtail flounder allocations to the scallop fishery;
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 and exempting vessels issued these
permits and limited access Small Vessel Exemption permits from existing
dockside/roving monitoring requirements; delaying requiring sectors and
common pool vessels to pay for dockside/roving and at-sea or electronic
monitoring; 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. A
complete description of why each measure was selected can be found in
the Section 4.0 of the FW 45 EA (see ADDRESSES).
The specification of ACLs for components of the groundfish and non-
groundfish fisheries, as well as additional management measures to
ensure that such catch levels are not exceeded, increase the likelihood
that the biological objectives of the FMP will be met, resulting
greater sustainable revenue over the long term. Specifically, this
action formally recognizes that pollock is rebuilt, incorporates
updated biological reference points, and specifies higher ACLs for this
stock based upon updated stock assessment data first implemented on a
temporary basis through a July 20, 2010, emergency action (75 FR
41996). This action also extends the rebuilding program for GB
yellowtail flounder and indirectly reduces 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. Further, this action substantially
increases the FY 2011 GB yellowtail flounder U.S./Canada Management
Area TAC and the associated ABC and ACL available to commercial vessels
based on the flexibility provided by IFACA. Such increases in available
ACL and associated vessel revenue would not be realized if this action
was not implemented, as the increased pollock ACL implemented by the
July 20, 2010, emergency rule would expire on July 17, 2011, and the GB
yellowtail flounder U.S./Canada Management Area TAC and the associated
ABC and ACL would expire on April 30, 2011, because this TAC is
approved on a yearly basis following annual recommendations by the
TMGC. Finally, this action maintains the actual yellowtail flounder
allocations to the scallop fishery that were implemented by the FW 44
final rule for FY 2010, instead of updating those allocations to
reflect revised estimates of the amount of yellowtail flounder bycatch
expected in the scallop fishery during FY 2011. Updated estimates would
have lowered the yellowtail allocations to the scallop fishery for FY
2011 and potentially resulted in reduced fishing revenue for the
scallop fishery. Together, these provisions increase the amount of
these stocks available to commercial vessels without compromising the
conservation of objectives of the FMP to prevent overfishing and
rebuild overfished stocks, thereby likely increasing vessel revenues
from landing these and other stocks by reducing the likelihood that low
ACLs for these stocks will unnecessarily restrict vessel operations in
FY 2011 and mitigating adverse economic impacts of recent effort
controls in the fishery.
This final rule mitigates economic impacts to LAGC scallop vessels
by eliminating the yellowtail flounder peak spawning closure areas in
the Great South Channel Exemption Area and enabling 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. Not implementing this
measure would likely cause fishing operations by LAGC scallop vessels
to be less efficient, increasing operational costs by requiring such
vessels to steam farther to open fishing grounds. This action does not
compromise efforts to protect overfished stocks of yellowtail flounder,
as the yellowtail flounder spawning closure areas were first
implemented at a time when LAGC scallop vessels were not as restricted
in the amount scallop trips that they could take as they are now.
Therefore, these closures were necessary to prevent the excessive
harvest of yellowtail flounder as bycatch by LAGC scallop vessels, but
are now no longer required following the implementation of more
restrictive measures to control scallop catch by these vessels in the
form of an individual fishing quota system as part of Amendment 11 to
the Atlantic Sea Scallop FMP (April 14, 2008; 72 FR 20090).
This action implements several measures that reduce operational
costs to vessels, on both a temporary and indefinite basis.
Specifically, this action indefinitely exempts NE multispecies Handgear
A, Handgear B, and Small Vessel Exemption Category permits from
dockside/roving monitoring requirements, delays industry responsibility
for paying for dockside/roving monitoring coverage until FY 2013, and
delays industry responsibility for paying for a sector at-sea
monitoring program until FY 2013. 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). Such cost savings would not be realized if such measures are
not implemented. Therefore, this action attempts to minimize
operational costs to affected vessels as the fishery continues to adapt
to substantial changes to management measures, including ACLs, AMs, and
an expansion of sector measures, and overfished stocks continue to
rebuild.
Allowing vessels with handgear permits access to at least some of
the seasonal closure areas is likely to increase the chance that such
permits could increase their catch of regulated species, particularly
during the early months of the fishing season before trip
[[Page 23070]]
limits may be reduced to prevent the overall ACLs from being exceeded.
In addition to increasing the operational efficiency of such vessels by
increasing catch rates and reducing operational costs (fuel,
primarily), because these vessels are small and use relatively
inefficient gear to catch fish, these measures allow vessels to fish
closer to shore during periods of better weather instead of forcing
them to fish farther offshore in areas that are not subject to seasonal
closures. Such benefits would not be realized if this action is not
implemented.
This action recalculates the PSC for each stock on a yearly basis
to reflect the elimination of landings histories from cancelled
permits, and redistributes such landings histories to all valid limited
access NE multispecies permits. This replaces the previous practice of
using the landing histories of cancelled permits to contribute to the
sub-ACL specified for the common pool based on the interpretation that
if a permit has not signed up to join a sector it is, by default, in
the common pool. The magnitude of the impact from this provision is
likely to 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 is 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
provides 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.
As noted in the proposed rule for this action, the approval of new
sectors, including state permit banks and a lease-only sector, as part
of this action is likely to 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.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a letter to permit holders that also serves as
small entity compliance guide (the guide) was prepared. Copies of this
final rule are available from the Northeast Regional Office, and the
guide (i.e., permit holder letter) will be sent to all holders of
permits for the fishery. The guide and this final rule will be
available upon request.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: April 18, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons stated in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
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.
* * * * *
0
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),
[[Page 23071]]
(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).
* * * * *
0
4. In Sec. 648.80, revise the introductory text to paragraph (a)(18),
and remove paragraphs (a)(18)(ii)(C) and (D).
The revision reads 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.
* * * * *
0
5. In Sec. 648.81:
0
a. Revise the introductory text of paragraph (f)(2)(vi);
0
b. Add paragraph (g)(2)(vi);
0
c. Revise paragraph (i); and
0
d. Add paragraph (o).
The revisions and additions 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:
* * * * *
(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.
0
6. In Sec. 648.82:
0
a. Revise paragraphs (a)(2) and the introductory text of paragraph
(b)(6);
0
b. Add paragraph (b)(6)(iv); and
0
c. Revise paragraph (n)(2)(iv).
The revisions and addition 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
[[Page 23072]]
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 (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 (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 an 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, or elects, 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 an 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), 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 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).
* * * * *
0
7. In Sec. 648.87:
0
a. Revise paragraphs (b)(1)(i)(A), (b)(1)(i)(C), (b)(1)(i)(E)
introductory text, (b)(1)(i)(E)(1), (b)(1)(i)(E)(2)(i) and (ii),
(b)(1)(iii)(C), (b)(1)(v)(B) introductory text, (b)(1)(v)(B)(1),
(b)(1)(v)(B)(3) introductory text, (b)(1)(v)(B)(3)(i), (b)(1)(v)(B)(4)
and (5), (b)(1)(viii) introductory text, and (b)(1)(viii)(C);
0
b. Revise paragraph (b)(2) introductory text;
0
c. Revise paragraphs (b)(5) introductory text and (b)(5)(i)(A)(1);
0
d. Add paragraph (b)(5)(ii)(E);
0
e. Revise paragraph (c)(2)(i); and
0
f. Add paragraphs (d)(20) through (24).
[[Page 23073]]
The revisions and additions 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, 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
[[Page 23074]]
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, implement,
and pay for, to the extent not funded by NMFS, 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 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 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 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 (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).
* * * * *
(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.
* * * * *
(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 (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
[[Page 23075]]
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 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:
(i) * * *
(A) * * *
(1) Trip-start hail report. As instructed by the Regional
Administrator, the vessel operator must submit a trip-start hail report
prior to departing port at the beginning of each trip notifying the
sector manager and/or dockside/roving monitor service provider of the
vessel permit number; trip ID number in the form of the VTR serial
number of the first VTR page for that trip, or another trip identifier
specified by NMFS; and an estimate of the date and time of arrival to
port. Trip-start hail reports by vessels operating less than 6 hours or
within 6 hours of port must also include estimated date and time of
offload. If the vessel operator does not receive confirmation of the
receipt of the trip-start hail report from the dockside/roving monitor
service provider within 10 minutes of sending the original trip-start
hail report, the operator must contact the service provider to confirm
the trip-start hail report via an independent back-up system developed
by the service provider.
* * * * *
(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.
0
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
[[Page 23076]]
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 an 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).
* * * * *
0
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), 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).
* * * * *
0
10. In Sec. 648.90, revise paragraph (a)(4)(iii)(E)(2) to read as
follows:
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. 2011-9705 Filed 4-19-11; 4:15 pm]
BILLING CODE 3510-22-P