Magnuson–Stevens Fishery Conservation and Management Act Provisions:
Federal Register: March 3, 2011 (Volume 76, Number 42)
Proposed Rules
Page 11857-11890
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr03mr11-18
Page 11857
Vol. 76
Thursday,
No. 42
March 3, 2011
Part II
Department of Commerce
National Oceanic and Atmospheric Administration
50 CFR Part 648
Magnuson-Stevens Fishery Conservation and Management Act Provisions;
Fisheries of the Northeastern United States; Northeast (NE)
Multispecies Fishery; Framework Adjustment 45; Proposed Rule
Page 11858
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration 50 CFR Part 648
Docket No. 100923469-1002-02
RIN 0648-BA27
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Northeast (NE)
Multispecies Fishery; Framework Adjustment 45
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
SUMMARY: NMFS proposes regulations to implement measures in Framework
Adjustment (FW) 45 to the NE Multispecies Fishery Management Plan
(FMP). FW 45 was developed by the New England Fishery Management
Council (Council) to prevent overfishing, rebuild overfished stocks, achieve optimum yield (OY), and minimize the economic impact of management measures on affected vessels, pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
This action would revise the biological reference points and stock status for pollock, update annual catch limits (ACLs) for several stocks for fishing years (FYs) 2011-2012, adjust the rebuilding program for Georges Bank (GB) yellowtail flounder, increase scallop vessel access to the Great South Channel Exemption Area, approve five new sectors, modify the existing dockside and at-sea monitoring requirements, revise several sector administrative provisions, establish a Gulf of Maine (GOM) Cod Spawning Protection Area, and refine measures affecting the catch of limited access NE multispecies
Handgear A vessels. This action would disapprove the Council's proposed catch limits for GB yellowtail flounder for FY 2011, and instead propose new catch limits for this stock through emergency action authority based on new flexibility provided by the International
Fisheries Agreement Clarification Act. This action is necessary to ensure that the fishery is managed on the basis of the best available science, to comply with the acceptable biological catch (ABC) control rules adopted in Amendment 16 to the FMP, and to enhance the viability of the fishery following the transition to sector management in 2010.
DATES: Comments must be received by March 18, 2011.
ADDRESSES: You may submit comments, identified by 0648-BA27, by any of the following methods:
Electronic submissions: Submit all electronic public comments via the Federal eRulemaking Portal: http:// www.regulations.gov.
Fax: (978) 281-9135, Attn: Douglas Christel.
Mail: Paper, disk, or CD-ROM comments should be sent to
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries
Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, ``Comments on the Proposed Rule for NE
Multispecies Framework Adjustment 45.''
Instructions: All comments received are a part of the public record and will generally be posted to http://regulations.gov without change.
All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel,
WordPerfect, or Adobe PDF file formats only.
Copies of FW 45, its Regulatory Impact Review (RIR), a draft of the environmental assessment (EA) prepared for this action, and the Initial
Regulatory Flexibility Act (IRFA) analysis prepared by the Council are available from Paul J. Howard, Executive Director, New England Fishery
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The
IRFA analysis assessing the impacts of the proposed measures on small entities and describing steps taken to minimize any significant economic impact on such entities is summarized in the Classification section of this proposed rule. The FW 45 EA/RIR/IRFA, as well as the relevant analyses for Amendment 16 and other recent actions, are also accessible via the Internet at http://www.nefmc.org/nemulti/index.html or http://www.nero.noaa.gov. Copies of recent stock assessments for stocks managed by the FMP are also accessible via the Internet at http://www.nefsc.noaa.gov/groundfish.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule should be submitted to the Regional Administrator at the address above and to the Office of Management and Budget (OMB) by e-mail at
OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Douglas W. Christel, Fishery Policy
Analyst, phone: 978-281-9141, fax: 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
The FMP specifies management measures for 16 species in Federal waters off the New England and Mid-Atlantic coasts, including both large-mesh and small-mesh species. Small-mesh species include silver hake (whiting), red hake, offshore hake, and ocean pout; while large- mesh species include Atlantic cod, haddock, yellowtail flounder, pollock, American plaice, witch flounder, white hake, windowpane flounder, Atlantic halibut, winter flounder, redfish, and Atlantic wolffish. Large-mesh species are further divided into 19 individual stocks and are referred to as ``regulated species,'' that, along with ocean pout, are collectively referred to as groundfish.
A major overhaul of the FMP occurred in 2004 with implementation of
Amendment 13 on May 1, 2004 (April 27, 2004; 69 FR 22906), which included the establishment of rebuilding programs for stocks managed by the FMP and measures necessary to end overfishing, rebuild overfished stocks, and help mitigate the economic impacts of effort reductions in the fishery to the extent practicable. Amendment 13 also established a biennial adjustment process intended to update status determination criteria, adopt and update rebuilding programs, and revise management measures necessary to achieve the objectives of the FMP and the mandates of applicable law. A second substantial revision to the FMP came in 2010, with the implementation of Amendment 16 (April 9, 2010; 75 FR 18262). Amendment 16 updated status determination criteria for all regulated NE multispecies and ocean pout stocks based upon revised assessments for all stocks; adopted rebuilding programs for stocks newly classified as being overfished and subject to overfishing; and revised management measures to achieve the conservation objectives of the FMP and to minimize the economic impacts of such measures, including significant revisions to the sector management measures, reporting requirements, trip limits, and days-at-
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sea (DAS) measures. Amendment 16 not only established a process for specifying ABCs and ACLs and distributing available catch among components of the fishery that catch regulated species and ocean pout, but it also specified accountability measures (AMs) necessary to prevent overfishing on these stocks and addressed overages of ACLs, as required by the Magnuson-Stevens Act. 16 U.S.C. 1801 et seq. In another action, FW 44 (April 9, 2010; 75 FR 18356), NMFS set the ACLs for FYs 2010 through 2012, and distributed such allocations among the various components of the fishery that catch these stocks. An April 9, 2010, final rule (75 FR 18113) implemented the approval of 17 new sectors in
FY 2010, and specified their respective annual catch entitlements
(ACEs, or sector quotas) for each stock allocated to sectors pursuant to Amendment 16.
The Council developed FW 45 as part of the established framework and biennial adjustment process to revise measures necessary to prevent overfishing and rebuild overfished stocks, while achieving OY in the fishery and minimizing economic impact to the extent practicable.
Pursuant to the Magnuson-Stevens Act, the Council has proposed FW 45 to
NMFS, which has reviewed the proposal and is presenting it for public review. If implemented, FW 45 would set and update ACLs for several stocks pursuant to the process established by Amendment 16 and FW 44.
Updated stock assessments for pollock and GB yellowtail flounder conducted in 2010 require the ACLs originally established under FW 44 to be updated based upon revised stock status for pollock and a revised rebuilding program for GB yellowtail flounder proposed in FW 45.
Further, following the transition to sectors under Amendment 16, the
Council realized that several changes to existing measures are necessary to make the Amendment 16 measures work more effectively, as described below.
Proposed Measures
The following summarizes the measures proposed by the Council in FW 45, based on the order in which applicable provisions appear in the regulations at 50 CFR part 648. These measures build upon the provisions implemented by previous management actions, and are intended to either supplement or replace existing regulations, as described for each measure. This proposed rule also includes revisions to regulations that are not specifically identified in FW 45, but that are necessary to correct errors in, or clarify, existing provisions, as described further below. The proposed regulations implementing measures in FW 45 were deemed by the Council to be consistent with FW 45, and necessary to implement such provisions pursuant to section 303(c) of the
Magnuson-Stevens Act through a January 11, 2011, letter from the
Council Chairman to the Regional Administrator (RA). 1. Status Determination Criteria for Pollock
Amendment 16 updated the status determination criteria for existing
NE multispecies regulated species and ocean pout stocks based upon the best available scientific information regarding stock status resulting from the Groundfish Assessment Review Meeting (GARM III), a comprehensive stock assessment for all species managed by the FMP, conducted in August 2008. GARM III originally characterized pollock as overfished and subject to overfishing. However, due to the high uncertainty of the determination of pollock stock status, as noted in the GARM III stock assessment conclusions, and on the advice from the
Council's Scientific and Statistical Committee (SSC), the body charged by the Magnuson-Stevens Act with recommending an ABC to the Council for each stock, an updated pollock stock assessment was conducted in 2010.
The pollock peer-reviewed benchmark stock assessment review (Stock
Assessment Workshop, or SAW, 50) was completed in June 2010, with the final summary report completed on July 14, 2010. This assessment determined that pollock is not overfished or subject to overfishing.
Thus, this species no longer requires the rebuilding program established in Amendment 16. Based upon this updated assessment, NMFS implemented an emergency action (July 20, 2010; 75 FR 41996) to incorporate the results of this assessment and update the status determination criteria and the associated FY 2010 ABC and ACL for this species. On December 1, 2010 (75 FR 74661), this emergency action was continued through the end of FY 2010 (April 30, 2011).
In FW 45, NMFS proposes to integrate the results of the 2010 pollock stock assessment into the FMP. Table 1 lists the proposed revised status determination criteria, with numerical estimates of these parameters listed in Table 2. The revised biomass target parameter for pollock, where spawning stock biomass is at maximum sustainable yield (SSBMSY) or its proxy, is SSB at 40 percent maximum spawning potential (MSP). The maximum fishing mortality rate (F) threshold is the FMSYproxy, or
F40MSP.
Table 1--Description of the Proposed Pollock Status Determination Criteria
Biomass target
Minimum biomass
Maximum fishing mortality
Species
(Btarget)
threshold
threshold
Pollock............................ SSBMSY: SSB/R (40%MSP) \1/2\ Btarget......... F40MSP
Table 2--Numerical Estimates for the Proposed Pollock Status Determination Criteria
Biomass target
Maximum fishing
Species
(SSBMSY or proxy) in
mortality threshold
MSY in mt mt
(FMSY or proxy)
Pollock............................ 91,000................ 0.41.................. 16,200
-
Rebuilding Program for GB Yellowtail Flounder
In 2004, GARM II concluded that the GB yellowtail flounder stock was overfished and subject to overfishing. In response, the Council developed a rebuilding program for this stock in FW 42 (October 23, 2006; 71 FR 62156). That rebuilding program incorporated an adaptive rebuilding strategy that was expected to rebuild the stock by 2014 with a 75-percent probability of success, and was anticipated to rebuild this stock in 8 years, 2 years ahead of the
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maximum rebuilding period allowed by section 304(e)(4) of the Magnuson-
Stevens Act. The intent of that rebuilding program was to rebuild the stock as quickly as possible, consistent with efforts to jointly manage this stock with Canada as part of the U.S./Canada Resource Sharing
Understanding (Understanding).
More recent estimates of the status of this stock conducted by the
Transboundary Resource Assessment Committee (TRAC) in July 2010 indicate that overfishing is not occurring, but that the stock is still in an overfished condition (TRAC 2010/05). This estimate is affected by updated estimates of the 2005 year class that suggest this year class is much smaller than previously thought. This report concludes that it is not possible to rebuild this stock by 2014, even at F = 0.
Accordingly, as part of FW 45, the Council proposes to revise the GB yellowtail flounder rebuilding program to rebuild the stock by 2016, with a 50-percent probability of success to extend the rebuilding program to the maximum extent allowed by applicable law. This revision would extend the rebuilding program for this stock out to the maximum 10-year rebuilding period allowed by the Magnuson-Stevens Act and lower the probability of success from 75 percent to 50 percent in order to maximize the amount of GB yellowtail flounder that could be caught while the stock rebuilds. 3. Overfishing Levels and ABCs for Particular Stocks
NMFS also proposes in FW 45 to revise the overfishing levels (OFLs) and ABCs of particular stocks, including GB cod, GB haddock, GB yellowtail flounder, and pollock for FYs 2011 and 2012. Revisions to the OFLs and ABCs for pollock and GB yellowtail flounder are based upon the updated assessments and revised rebuilding strategies for these stocks, as described in Items 1 and 2 of this preamble, respectively, and by the 2010 International Fisheries Agreement Clarification Act for
GB yellowtail flounder, as described in Item 5 of this preamble.
Revisions to the OFLs and ABCs for the GB cod and GB haddock stocks are based upon updated TRAC assessments of the eastern components of the stock. It is anticipated that the FY 2012 values of the ABCs for GB cod, GB haddock, and GB yellowtail flounder will be revised during 2011, based on new transboundary stock assessments conducted by the
TRAC, and will likely be specified again in conjunction with the FY 2012 U.S./Canada Management Area total allowable catch (TAC) levels, as further described in Item 5 of this preamble. Table 3 contains the OFLs and ABCs for FYs 2011 and 2012 proposed under FW 45 with the exception of GB yellowtail flounder, as noted below. The expected economic impacts of the proposed ABCs are summarized below.
For GB yellowtail flounder, the FY 2011 U.S. ABC shown in Table 3 represents a revised shared U.S./Canada Management Area TAC based upon, and consistent with, determinations and decisions about this stock by the Transboundary Management Guidance Committee (TMGC), pursuant to the
Understanding in a February 9, 2011, conference call. This meeting of the TMGC was precipitated based on provisions of the recently enacted
International Fisheries Agreement Clarification Act which provides increased flexibility to NMFS and the Council in setting higher fishing limits for those portions of stocks subject to the Understanding. This
Act states that decisions made under that Understanding should be considered as ``management measures under an international agreement'' that ``dictate otherwise'' for purposes of section 304(e)(4)(A)(ii) of the Act (16 U.S.C. 1854(e)(4)(A)(ii)) and that the Council and the
Secretary of Commerce may ``establish catch levels for those portions of fish stocks within their respective geographic areas covered by the
Understanding on the date of enactment of this Act that exceed the catch levels otherwise required under the Northeast Multispecies
Fishery Management Plan if * * * overfishing is ended immediately.''
(Sec. 202(2) and (3) of the International Fisheries Agreement Act).
Because the U.S./Canada Management Area represents the entire stock area for GB yellowtail flounder, the shared U.S./Canada Management Area
TAC for this stock also represents the ABC for this stock. The revised
ABC agreed to by the TMGC is being proposed consistent with the provisions of the International Fisheries Agreement Clarification Act and the harvest strategy of the Understanding that requires overfishing to be prevented and the facilitation of the rebuilding of overfished stocks.
The revised ABC recommended by the TMGC is higher than that approved by the Council's SSC and adopted by the Council in FW 45
(i.e., a U.S. ABC of 1,099 mt for FY 2011 and 1,222 mt for FY 2012).
Because this revised ABC was not considered by the Council in FW 45,
NMFS proposes to implement the revised FY 2011 ABC and ACL for this stock as a separate but parallel action to FW 45 pursuant to its emergency action authority specified in section 305(c) of the Magnuson-
Stevens Act. NMFS has determined that the adoption of the International
Fisheries Agreement Clarification Act meets the criteria for proposing this emergency action, as explained further in Item 5 of this preamble.
Because this proposed revision would be made under the authority to implement a Secretarial emergency action pursuant to section 305(c) of the Magnuson-Stevens Act instead of a Council action, the involvement of the SSC in the specification of the ABC for this stock is not specifically required, although the emergency rule must still be consistent with the best scientific information available. Although
NMFS could wait for the SSC to consider the new assessment, the time necessary to complete such a process would unduly delay the possibility of increasing the TAC for this stock as quickly as possible and addressing the emergency exigencies of this matter. NMFS has determined that revising the ABC and ACL through this proposed emergency action is consistent with best scientific information available. The duration of this proposed revision to the GB yellowtail flounder ABC is limited by the Magnuson-Stevens Act to 180 days, but may be extended to make the revised ABC and ACL effective for the duration of FY 2011 (through
April 30, 2012), consistent with the authority in the Magnuson-Stevens
Act to extend emergency actions for up to an additional 186 days.
For FYs 2010-2012, the SSC recommended that the ABC for GOM winter flounder be specified based on 75 percent of recent catches of this stock as part of FW 44. For FY 2011, the Council tasked the SSC with reviewing the GOM winter flounder catches for FY 2009 and any additional survey information collected since GARM III to determine whether revisions to the FY 2011 and 2012 ABCs are necessary for this stock. The SSC considered available information at its August 2010 meeting, as well as an alternative approach to determine the ABC for
GOM winter flounder by the Groundfish Plan Development Team (PDT) that utilized an area-swept survey approach to determine the ABC for this stock. However, the SSC was concerned that increased catch resulting from the PDT's alternative approach to specifying ABC for this stock could compromise stock status or rebuilding, given lingering uncertainty regarding the information necessary to evaluate the risks of jeopardizing stock status. Therefore, the SSC did not recommend any changes to the ABC for this stock, and the FW 44
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values for FY 2011 and FY 2012 are maintained.
The OFL value for a stock is calculated using the estimated stock size for a particular year, and represents the amount of catch associated with FMSY, i.e., the F that, if applied over the long term, would result in MSY. The ABCs are those recommended to the
Council's SSC following the SSC's August 25-26, 2010, meeting and its reports to the Council at the Council's September and November 2010 meetings. The ABCs recommended by the SSC are lower than the OFLs in order to take into account scientific uncertainty in setting catch limits. The ABC value for a stock is calculated using the estimated stock size for a particular year based upon the ABC control rules established by Amendment 16. The ABC represents the amount of catch associated with 75 percent of FMSY, or the F rate required to rebuild the stock within the defined rebuilding time period
(Frebuild), whichever is lower, with the exception of GOM and Southern New England (SNE)/Mid-Atlantic (MA) winter flounder. For
SNE/MA winter flounder, the ABC recommendations are based on estimates of discards that result from recent management measures. For GOM winter flounder, the ABC recommendation is based on 75 percent of recent catches.
Table 3--Proposed Revisions to Overfishing Levels and Acceptable Biological Catches
OFL (mt, live weight)
U.S. ABC (mt, live weight)
Stock
-------------------------------------------------------------------------------------------------------
FY 2011
FY 2012
FY 2013
FY 2014
FY 2011
FY 2012
FY 2013
FY 2014
Georges Bank cod................................
7,311
* 8,090
NA
NA
4,766
* 5,364
NA
NA
Georges Bank haddock............................
59,948
* 51,150
NA
NA
34,244
* 29,016
NA
NA
Georges Bank yellowtail flounder................
3,495
* 4,335
NA
NA
** 1,458
NA
NA
NA
White hake......................................
4,805
5,306
NA
NA
3,295
3,638
NA
NA
Pollock.........................................
21,853
19,887
20,060
20,554
16,900
15,400
15,600
16,000
* Preliminary estimates that may be revised in 2012 based on TRAC and TMGC considerations.
** This value represents an increase from the U.S. ABC adopted by the Council in FW 45 based on the flexibility afforded by the International Fisheries
Agreement Clarification Act and described further in Item 5 of this preamble. 4. ACLs
Similar to adjustments in the OFLs and ABCs described in Item 3 of this preamble, FW 45 proposes revisions to the ACLs for several stocks, including GB cod, GB haddock, GB yellowtail flounder, white hake, and pollock. Pursuant to Magnuson-Stevens Act requirements and Amendment 16, the Council recommended ACLs that are lower than the ABCs, in order to account for management uncertainty. The total ACL for a stock represents the catch limit for a particular FY, considering both biological and management uncertainty, and the limit includes all sources of catch (landed and discards) and all fisheries (commercial and recreational groundfish fishery, State-waters catch, and non- groundfish fisheries). The division of a single ABC value for each stock (for a particular FY) into sub-ACLs, and ACL-subcomponents, accomplishes three objectives: (1) The ABC is sub-divided to account for all components of the fishery and sources of fishing mortality; (2) allocations are made for certain fisheries; and (3) management uncertainty is taken into account, as described in Appendix II of FW 45.
For FW 45 the ABC was sub-divided into fishery components on a stock-specific manner, prior to the consideration of management uncertainty. The following components of the fishery are reflected in the total ABC: Canadian share/allowance (expected Canadian catch); U.S.
ABC (available to the U.S. fishery after accounting for Canadian catch); State waters (portion of ABC expected to be caught from State waters outside Federal management); other sub-components (expected catch by other non-groundfish fisheries such as exempted fisheries); scallop fishery; mid-water trawl fishery; commercial groundfish fishery; and recreational groundfish fishery. The percentage of the ABC deducted for anticipated catch from State waters is between 1 and 10 percent for most stocks, but for Atlantic halibut and GOM winter flounder, 50 percent and 25 percent of the ABC of each stock is set aside for State waters catch, respectively. The amount deducted for anticipated catch of other regulated species and ocean pout in other sub-components of the fishery is between 4 to 6 percent of the ABC for each stock, with the exception of windowpane flounder stocks, in which 29 percent is set aside for such catch.
The allocation of yellowtail flounder to the scallop fishery is not changed by this framework. Under FW 44, the Council elected to allocate 100 percent of the estimated GB and SNE/MA yellowtail flounder bycatch associated with the projected scallop catch in FY 2010, and 90 percent of the yellowtail flounder bycatch projected for the scallop fishery in
FYs 2011 and 2012. Based on doubts about accurately estimating expected bycatch in the scallop fishery and not wanting to unnecessarily constrain the scallop fishery, the Council voted to maintain the specific FW 44 allocations of yellowtail flounder to the scallop fishery under FW 45, rather than base yellowtail flounder allocations on current information about anticipated bycatch amounts in the scallop fishery. Thus, the SNE/MA yellowtail flounder allocations to the scallop fishery listed in Tables 5 and 6 are the same amounts implemented under FW 44 in 2010 (the allocation of SNE/MA yellowtail flounder remain at 82 and 127 mt, live weight, respectively during FYs 2011 and 2012), while the GB yellowtail flounder allocations to the scallop fishery listed in Tables 11 and 12 remain at 200.8 and 307.5 mt, live weight, respectively, during FYs 2011 and 2012. No specific allocation of Cape Cod (CC)/GOM yellowtail flounder would be made to the scallop fishery, because the incidental catches of this stock by the scallop fishery are relatively low. Catches of this stock will be considered part of the ``other sub-component'' of the ACL.
The FY 2011 and 2012 yellowtail flounder allocations to the scallop fishery are characterized as sub-ACLs to reflect the fact that the
Council adopted AMs for the scallop fishery that would be responsive to yellowtail flounder catches in excess of these sub-ACLs, as part of
Amendment 15 to the Atlantic Sea Scallop FMP at its November 2010 meeting. A proposed rule soliciting comment on that action is expected to
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be published shortly, with a final decision to approve, partially approve, or disapprove such measures expected in spring 2011. Current regulations set a cap on the amount of yellowtail flounder that may be harvested from the scallop access areas from the SNE/MA and GB yellowtail flounder stock areas. Specifically, current regulations cap yellowtail flounder harvest from scallop access areas at 10 percent of the ``total TAC'' for each of the stock areas. In light of the proposed
ACL components, ``total TAC'' means ``total ACL.'' For FY 2011, this means 10 percent of 1,416 mt (141.6 mt) for GB yellowtail flounder, based on the proposed total ACL listed in Table 11 proposed based on the flexibility afforded by the International Fisheries Agreement
Clarification Act, as further described in Item 4 of this preamble below. Because the U.S./Canada Management Area represents the entire stock area for GB yellowtail flounder, the U.S./Canada Management Area
TAC for this stock that is available to the U.S. fishery also represents the ACL for this stock. The specification and distribution of the GB yellowtail flounder ACL is discussed further in Item 5 of this preamble and shown in Tables 11 and 12.
Under this action, the mid-water trawl fishery would be allocated 0.2 percent of the U.S. ABC for GB and GOM haddock. The values for the allocations to the mid-water trawl fishery listed in Table 5 are slightly less than 0.2 percent, due to the 7-percent reduction of these allocations to account for management uncertainty for this stock. For example, the FY 2011 ABC of 32,244 mt was multiplied by 0.002 (32,244 mt x .002 = 68.5 mt), and then reduced by 4.79 mt (68.5 mt x 0.07 = 4.79 mt) to arrive at the proposed allocation of 64 mt. Because the herring fishery already has AMs associated with this allocation that were developed as part of FW 43 (August 15, 2006; 71 FR 46871), all of the haddock allocations to the mid-water trawl fishery are characterized as sub-ACLs.
The concept of management uncertainty for the purpose of developing
ACLs, as outlined in the process specified in Amendment 16 and described in detail in FW 44, was characterized as the likelihood that management measures will result in a level of catch that is greater than the catch objective. Consistent with that process, management uncertainty was evaluated for each stock, considering the following elements of the fishery and the FMP: Enforceability; monitoring adequacy; precision of management tools; latent effort; and catch of groundfish in non-groundfish fisheries. For most stocks and components of the fishery (ABC components), the default adjustment (reduction) to the catch level for a fishery component was 5 percent. For stocks with less management uncertainty, the adjustment was 3 percent, and for those stocks or components with more management uncertainty, the adjustment was 7 percent.
Tables 5 through 8 list the proposed distribution of the total ACL for stocks affected by measures in FW 45 to the groundfish fishery, the scallop fishery, the mid-water trawl herring fishery, State waters fisheries, and other fishery sub-components, such as exempted fisheries. A full list of the FY 2011 ACLs will be sent to NE multispecies permit holders and posted on the NMFS Northeast Regional
Office Web site (http://www.nero.noaa.gov) once finalized. As noted in the FW 44 final rule, while ACLs are specified through FY 2012 for most stocks, it is likely that the Council will adopt ACLs for FYs 2012 through 2014 though a future Council action. Therefore, ACLs specified through FY 2012 in FW 44 and proposed in this action for FW 45 will only be implemented if the anticipated Council action is delayed. In contrast, the pollock ACLs are not expected to be revisited until FY 2013, with any changes effective for FY 2014. The proposed ACL listed in Table 5 for white hake corrects an error published in Table 4 of both the FW 44 proposed (February 1, 2010; 75 FR 5021) and final rules, respectively, that listed the commercial sub-ACL for white hake for FY 2011 as 2,566 mt (the FY 2010 value) instead of the correct value of 2,974 mt. For a detailed description of the process used to estimate management uncertainty and calculate ACLs as part of FW 45, refer to
Appendix II of the FW 45 EA (see ADDRESSES).
Table 5--Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011
Mt, live weight
Groundfish sub-
Mid-water trawl State waters ACL Other ACL sub-
Stock
Total ACL
ACL
Scallop fishery herring fishery sub-component
components
GB cod......................................
4,540
4,301
0
0
48
191
GB haddock..................................
32,616
30,840
0
64
342
1,370
SNE/MA yellowtail flounder..................
641
524
82
0
0
27
White hake..................................
3,138
2,974
0
0
33
132
Pollock.....................................
16,166
13,952
0
0
769
1,445
Table 6--Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2012
Mt, live weight
Groundfish sub-
Mid-water trawl State waters ACL Other ACL sub-
Stock
Total ACL
ACL
Scallop fishery herring fishery sub-component
components
GB cod *....................................
5,109
4,841
0
0
54
215
GB haddock *................................
27,637
26,132
0
54
290
1,161
SNE/MA Yellowtail flounder..................
936
759
127
0
0
40
White hake..................................
3,465
3,283
0
0
36
146
Pollock.....................................
14,736
12,612
0
0
754
1,370
* Preliminary estimate that may be revised in 2012 based on Transboundary Resource Assessment Committee and Transboundary Resource Management Committee considerations.
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Table 7--Pollock Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2013
Mt, live weight
Groundfish sub-
Mid-water trawl State waters ACL Other ACL sub-
Stock
Total ACL
ACL
Scallop fishery herring fishery sub-component
components
Pollock.....................................
14,927
12,791
0
0
756
1,380
Table 8--Pollock Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2014
Mt, live weight
Groundfish sub-
Mid-water trawl State waters ACL Other ACL sub-
Stock
Total ACL
ACL
Scallop fishery herring fishery sub-component
components
Pollock.....................................
15,308
13,148
0
0
760
1,400
The commercial groundfish sub-ACL is further divided into the non- sector (common pool vessels) sub-ACL and the sector sub-ACL, based on the total vessel enrollment in all sectors and the cumulative Potential
Sector Contributions (PSCs) associated with those sectors. Table 9 lists the preliminary distribution of the groundfish sub-ACL between common pool and sectors based on rosters submitted to NMFS as of
December 1, 2010. This distribution is different from the common pool and sector sub-ACLs listed in the EA for FW 45, as those were based upon preliminary sector roster information and do not reflect updated rosters submitted to NMFS. However, this distribution is the same as the sector sub-ACLs and ACE specified for each sector listed in the proposed rule to approve sector operations plans for FY 2011. That rule uses sector rosters submitted to NMFS as of December 1, 2010, to calculate each individual sector's ACE for FY 2011, and which are expected to publish soon. FY 2011 sector rosters will not be finalized until May 1, 2011, because the owners of individual permits signed up to participate in sectors have until April 30, 2011, to drop out of a sector and fish in the common pool. Therefore, it is possible that the
FY 2011 sector sub-ACL listed in Table 9 and the proposed rule to approve the FY 2011 sector operations plans will be reduced at a later date, and the common pool sub-ACL will increase, due to vessels leaving sectors and entering the common pool after publication of the FW 45 final rule and specification of ACLs for FY 2011.
Despite such changes, the proposed groundfish sub-ACL (common pool sub-ACL plus the sector sub-ACL) listed in Tables 5 through 8 would not likely change. Based on the final rosters, NMFS intends to publish a rule in early May 2011 to modify these sub-ACLs, and notify the public if these numbers change. In addition, it is almost certain that all of the FY 2012 sub-ACLs for the common pool and sectors will change and be re-specified prior to FY 2012 due to annual changes to the sector rosters and changes to the ABCs for GB cod, GB haddock, and GB yellowtail flounder based on the specification of Canadian TACs for these stocks, as described above in Item 5 of this preamble.
Table 9--Preliminary Distribution of Groundfish Sub-ACL Between Common Pool and Sector Vessels
Mt, live weight
Groundfish sub-ACL
Common pool sub-ACL
Sector sub-ACL
Stock
-----------------------------------------------------------------------------
FY 2011
FY 2012 *
FY 2011
FY 2012 *
FY 2011
FY 2012 *
Georges Bank cod..................
4,301
4,841
99
111
4,202
4,730
Georges Bank haddock..............
30,840
26,132
129
109
30,711
26,023
Georges Bank yellowtail flounder
1,142
1,142
17.4
17.4
1,124.6
1,124.6
**...............................
White hake........................
2,974
3,283
35
39
2,939
3,244
Pollock...........................
13,952
12,612
138
125
13,814
12,487
* Preliminary estimate that may be revised in 2012 based on updated sector rosters and Transboundary Resource
Assessment Committee and Transboundary Resource Management Committee considerations.
** These values represent an increase from the ACLs adopted by the Council in FW 45 based on the flexibility afforded by the International Fisheries Agreement Clarification Act and described further in Item 5 of this preamble. 5. Annual Specifications for the U.S./Canada Management Area
The FMP specifies a procedure for setting annual hard TAC levels
(i.e., TACs that, when reached, will trigger a regulatory response in the form of area closures or other restrictions) for Eastern GB cod,
Eastern GB haddock, and GB yellowtail flounder in the U.S./Canada
Management Area. The regulations governing the annual development of
TACs were authorized by Amendment 13 to the FMP in order to be consistent with the Understanding, an informal agreement between the
Northeast Region of NMFS and the Maritimes Region of the Department of
Fisheries and Ocean of Canada (DFO) that outlines a process for the management of the shared GB groundfish resources. The Understanding specifies an allocation of TAC for these three stocks for each country, based on a formula that considers historical catch percentages and current resource distribution.
Annual TACs for these stocks are determined through a process involving the Council, the TMGC, and the U.S./Canada Transboundary
Resources Steering Committee. In August 2010, the TMGC approved the 2010 Guidance
Page 11864
Documents for Eastern GB cod and Eastern GB haddock, which included recommended U.S. TACs for these stocks. The recommended FY 2011 TACs were based on the most recent stock assessments (TRAC Status Reports for 2010), and the fishing mortality strategy shared by NMFS, the
Department of Fisheries and DFO. The shared strategy has two parts: (1)
To maintain a low to neutral (less than 50-percent) risk of exceeding the F limit reference (Fref = 0.18, 0.26, and 0.25 for cod, haddock, and yellowtail flounder, respectively); and (2) when stock conditions are poor, F should be further reduced to promote rebuilding. The
Council reviewed the recommendations of the TMGC and approved those recommendations at its September 2010 meeting, as detailed further below.
The TMGC concluded that the most appropriate combined U.S./Canada
TAC for Eastern GB cod for FY 2011 is 1,050 mt. This TAC corresponds to the average of the pertinent two models for a low risk (less than 25- percent) of exceeding the Fref of 0.18 (i.e., FMSY) in FY 2011, and a greater than neutral probability of biomass growth of up to 10 percent. The annual allocation shares between countries for FY 2011 are based on a combination of historical catches (10-percent weighting) and resource distribution based on trawl surveys (90-percent weighting). Applying this formula results in the proposed allocations of 19 percent of the shared TAC to the U.S. and 81 percent for Canada, or a FY 2011 quota of 200 mt for the U.S. and 850 mt for Canada.
For Eastern GB haddock, the TMGC concluded that the most appropriate combined U.S./Canada Management Area TAC for FY 2011 is 22,000 mt. This corresponds to a 50-percent risk of exceeding Fref
(i.e., FMSY) of 0.26, assuming the entire TAC will be caught in FY 2010. In reality, this TAC level represents a low risk level, because the anticipated catch in FY 2010 will likely be less than the
FY 2010 TAC. The annual allocation share recommendations between countries for FY 2010 are based on a combination of historical catches
(10-percent weighting) and resource distribution based on trawl surveys
(90-percent weighting). Applying this formula results in proposed allocations of 43 percent of the shared TAC to the U.S. and 57 percent to Canada, or a FY 2011 quota of 9,640 mt for the U.S. and 12,540 mt for Canada.
For GB yellowtail flounder, the TMGC concluded that the most appropriate combined U.S./Canada Management Area TAC for FY 2011 is 1,900 mt. This TAC corresponds to a low probability (ref(i.e., FMSY) of 0.25, and an expected 10-percent increase in median biomass from 2011 to 2012. The
TMGC noted that F was below 0.15 in 2008 and 2009. The annual allocation share recommendations between countries for FY 2011 are based on a combination of historical catches (10-percent weighting) and resource distribution based on trawl surveys (90-percent weighting).
This weighting results in proposed allocations of 55 percent of the shared TAC to the United States and 45 percent to Canada, or a FY 2011 quota of 1,045 mt for the United States and 855 mt for Canada.
Table 10--2011 U.S./Canada TACs (Mt, Live Weight) and Percentage Shares (In Parentheses)
Eastern GB
GB yellowtail
Eastern GB cod
haddock
flounder
Total Shared TAC.......................................
1,050
22,000
1,900
U.S. TAC...............................................
200 (19%)
9,640 (43%)
1,045 (55%)
Canada TAC.............................................
850 (81%)
12,540 (57%)
855 (45%)
This proposed rule notifies the public that a recent statute, the
International Fisheries Agreement Clarification Act, signed by
President Obama on January 4, 2011, affects the proposed FY 2011 U.S./
Canada Management Area TAC and ACL for GB yellowtail flounder.
Specifically, the new statute allows for additional flexibility under the Understanding regarding the range of catch levels that may be considered for GB yellowtail flounder, which allows for a higher yearly
TAC for this species.
As described in Item 4 of this preamble, the catch limits for GB yellowtail flounder result from the annual recommendation of the TMGC, a group that consists of NMFS and United States fishing industry representatives and their counterparts in the DFO and the Canadian fishing industry. Based on the new flexibility provided by the
International Fisheries Clarification Act, the TMGC held a conference call on February 9, 2011, to reconsider the FY 2011 shared GB yellowtail flounder TAC. During this conference call, the TMGC agreed to a revised shared GB yellowtail flounder TAC for FY 2011 of 2,650 mt
(documentation of this call is available from NMFS, see ADDRESSES).
This revised TAC represents a 39 percent increase compared to the FY 2011 TAC (i.e., 1,900 mt) originally adopted by the Council as part of
FW 45, and would increase the amount of GB yellowtail flounder allocated to the directed NE multispecies fishery (1,142 mt) by 44 percent compared to the amount of this stock originally allocated to this fishery under FW 45 (790.7 mt). NMFS is considering implementing this revised U.S./Canada Management Area TAC for this stock based upon
Secretarial emergency authority specified in section 305(c) of the
Magnuson-Stevens Act through the final rule that would implement approved measures under FW 45. To put this in the context of the
Magnuson-Stevens Act, NMFS is proposing to disapprove the ABC, ACL, and
U.S./Canada Management Area TAC for GB yellowtail flounder adopted by the Council in FW 45, and to replace them, through its emergency authority, with the revised ABC, ACL, and U.S./Canada Management Area
TAC for this stock recommended by the TMGC following its February 9, 2011 conference call.
NMFS policy guidelines for the use of emergency rules (August 21, 1997; 62 FR 44421) specify the following three criteria that define what an emergency situation is, and justification for final rulemaking:
(1) The emergency results from recent, unforeseen events or recently discovered circumstances; (2) the emergency presents serious conservation or management problems in the fishery; and (3) if the emergency action is being implemented without prior public comment, the emergency can be addressed through emergency regulations for which the immediate benefits outweigh the value of advance notice, public comment, and deliberative consideration of the impacts on participants to the same extent as would be expected under the normal rulemaking process. In this case, the third prong of these criteria is not directly involved because NMFS is providing opportunity for prior public comment. NMFS policy guidelines further provide that emergency action is justified for certain situations where
Page 11865
emergency action would prevent significant direct economic loss, or to preserve a significant economic opportunity that otherwise might be foregone. The 2010 International Fisheries Agreement Act, signed into law by President Obama on January 4, 2011, is considered to be a
``recently discovered circumstance,'' because the Council was not aware if or when the legislation would be considered by Congress when it adopted final measures under FW 45 at its November 2010 meeting. The emergency presents serious management concerns because the low catch limits for GB yellowtail flounder dictated by Magnuson-Stevens Act requirements in force before the International Fisheries Agreement Act was enacted could result in substantially reduced fishing effort and decreased catch and revenue compared to the higher catch limits that would be available if action is taken pursuant to the International
Fisheries Agreement Act. For the common pool fishery, when the projected catch of GB yellowtail flounder is equal to the common pool
GB yellowtail flounder sub-ACL, such vessels may no longer fish in the
Eastern U.S./Canada Area, and may not possess yellowtail flounder caught in the Western U.S./Canada Area. For vessels fishing in sectors, when an individual sector's GB yellowtail flounder ACE is caught, participating vessels may no longer fish in the U.S./Canada Management
Area. As a result of the loss of access to the Eastern U.S./Canada Area
(for common pool vessels) or the whole U.S./Canada Management Area (for sector vessels), not only do vessels lose revenue associated with GB yellowtail flounder, but they lose revenue associated with multiple other stocks that are caught concurrently, such as GB winter flounder.
Emergency action to increase the GB yellowtail flounder ACL and U.S./
Canada Management Area TAC would enable additional economic opportunity that could otherwise be forgone and, therefore, likely avoid economic impacts from an unnecessarily low ACL for this stock, based upon applicable law. Therefore, NMFS has determined that the current situation meets the criteria for emergency action.
Because the U.S./Canada Management Area represents the entire stock area for GB yellowtail flounder, the U.S./Canada Management Area TAC for this stock that is available to the U.S. fishery also represents the ACL for this stock. Thus, the revised GB yellowtail flounder TAC proposed in this action also requires applicable changes to the ACL, and how the ACL for this stock is distributed to the various components of the fishery that catch this stock, that were adopted by the Council in FW 45. The proposed revised GB yellowtail flounder ACL, sub-ACL, and
ACL sub-components are specified in Tables 11 and 12 for FYs 2011 and 2012, respectively. A revised U.S./Canada TAC for GB yellowtail flounder would not affect the sub-ACL for the scallop fishery, specified by FW 45 as 200.8 mt.
Table 11--Revised GB Yellowtail Flounder Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011
Mt, live weight
Mid-Water trawl herring State waters ACL sub-
Other ACL sub-
Total ACL
Groundfish sub-ACL
Scallop fishery
fishery
component
components
1,416
1,142
200.8
0
0
73
Table 12--Revised GB Yellowtail Flounder Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2012
Mt, live weight
Mid-water trawl herring State waters ACL sub-
Other ACL sub-
Total ACL*
Groundfish sub-ACL
Scallop fishery
fishery
component
components
1,426
1,046
307.5
0
0
77
* Preliminary estimate that may be revised in 2011 based on TRAC and TMGC considerations.
The regulations related to the Understanding, promulgated by the final rule implementing Amendment 13, state that ``any overages of the
GB cod, haddock, or yellowtail flounder TACs that occur in a given fishing year will be subtracted from the respective TAC in the following fishing year.'' Therefore, if an analysis of the catch of the shared stocks by U.S. vessels indicates that an over-harvest occurred during FY 2010, the pertinent components of the ACL would be adjusted downward in order to be consistent with the FMP and Understanding. If an adjustment to one of the FY 2011 TACs of cod, haddock, or yellowtail flounder is necessary, it will be done consistent with the
Administrative Procedure Act, and the fishing industry will also be notified. 6. Incidental Catch TACs and Allocations to Special Management Programs
This proposed rule specifies incidental catch TACs applicable to the NE multispecies special management programs (i.e., special access programs (SAPs) and the Regular B DAS Program) for FYs 2011 and 2012, based on the proposed common pool sub-ACLs listed in Item 4 of this preamble. As noted above, FY 2011 sector rosters will not be finalized until May 1, 2011, because permits currently enrolled in sectors have until April 30, 2011, to drop out of a sector and fish in the common pool. Therefore, the amount of the common pool sub-ACL may change based upon changes to the number of vessels participating in the common pool during FY 2011. Based on the final rosters, NMFS will publish a rule in early May 2011 to modify these sub-ACLs, and notify the public if these numbers change.
Incidental catch TACs are specified for certain stocks of concern
(i.e., stocks that are overfished or subject to overfishing) for common pool vessels fishing in the special management programs, in order to limit the amount of catch of stocks of concern that can be caught under such programs. The Incidental Catch TACs proposed below are consistent with the allocation of incidental catch TACs among special management programs in the FMP. However, because pollock is no longer considered overfished or subject to overfishing, FW 45 proposes to remove this species from the list of stocks of concern, and eliminate the incidental catch TAC for this stock.
Page 11866
The incidental catch TACs apply to catch (landings and discards) that end on a Category B DAS (either Regular or Reserve B DAS). The catch of stocks for which incidental catch TACs are specified on trips that start under a Category B DAS and then flip to a Category A DAS do not accrue toward such TACs, but rather the overall common pool sub-ACL for that stock. The incidental catch TACs by stock based on the common pool sub-ACL are shown in Table 13, while Tables 14 and 15 list the distribution of these TACs among existing special management programs.
Table 13--Preliminary Common Pool Incidental Catch TACs by Stock for FY 2011-2012
Mt, live weight
Percentage of sub- 2011 Incidental 2012 Incidental
Stock
ACL
catch TAC
catch TAC
GB cod.................................................
2
2.0
2.2
GOM cod................................................
1
1.3
1.3
GB yellowtail flounder.................................
2
0.3
0.3
CC/GOM yellowtail flounder.............................
1
0.3
0.4
SNE/MA yellowtail flounder.............................
1
1.1
1.7
American plaice........................................
5
3.9
4.1
Witch flounder.........................................
5
1.2
1.2
SNE/MA winter flounder.................................
1
7.3
7.6
GB winter flounder.....................................
2
0.3
0.3
White hake.............................................
2
0.7
0.8
Table 14--Distribution of Incidental Catch TACs Among Special Management Programs
Mt, live weight
Closed area I
Regular B DAS
hook gear
Eastern U.S./
Stock
program (percent)
haddock SAP
Canada haddock
(percent)
SAP (percent)
GB cod.................................................
50
16
34
GOM cod................................................
100
na
na
GB yellowtail flounder.................................
50
na
50
CC/GOM yellowtail flounder.............................
100
na
na
SNE/MA yellowtail flounder.............................
100
na
na
Plaice.................................................
100
na
na
Witch flounder.........................................
100
na
na
SNE/MA winter flounder.................................
100
na
na
GB winter flounder.....................................
50
na
50
White hake.............................................
100
na
na
Pollock................................................
50
16
34
Table 15--Incidental Catch TACs for Special Management Programs by Stock for FY 2011-2012
Mt, live weight
Regular B DAS program
Closed area I hook gear
Eastern U.S./Canada
haddock SAP
haddock SAP
Stock
---------------------------------------------------
FY 2011
FY 2012
FY 2011
FY 2012
FY 2011
FY 2012
GB cod............................
1.0
1.1
0.3
0.4
0.7
0.8
GOM cod...........................
1.3
1.3
na
na
na
na
GB yellowtail flounder............
0.15
0.15
na
na
0.1
0.1
CC/GOM yellowtail flounder........
0.3
0.4
na
na
na
na
SNE/MA yellowtail flounder........
1.1
1.7
na
na
na
na
American plaice...................
3.9
4.1
na
na
na
na
Witch flounder....................
1.2
1.2
na
na
na
na
SNE/MA winter flounder............
7.3
7.6
na
na
na
na
GB winter flounder................
0.1
0.2
na
na
0.1
0.2
White hake........................
0.7
0.8
na
na
na
na
-
Great South Channel Exemption Area
The current regulations at Sec. 648.80 state that a vessel may not fish in either the GOM or GB Exemption Areas unless it is fishing under a NE multispecies or a scallop DAS, is fishing with exempted gear, or is fishing in an exempted fishery, among other restrictions. Several exempted fisheries were created by previous adjustments to the FMP based on a procedure for adding, modifying, or deleting fisheries from the list of exempted fisheries originally established by FW 9 to the
FMP on April 15, 1995 (60 FR 19364), and expanded in Amendment 7 on May 31, 1996 (61 FR 27710). A fishery may be exempted by the NMFS NE RA after consultation with the Council, if the RA determines, based on available data or information, that the bycatch of
Page 11867
regulated species of groundfish is, or can be reduced to, less than 5 percent by weight of the total catch, and that such exemption will not jeopardize the fishing mortality objectives of the FMP.
On October 25, 2005, a request was submitted on behalf of the
General Category scallop fleet to establish an additional exempted scallop dredge fishery in the GOM/GB Exemption Area, in the vicinity of traditional scalloping grounds within the area known as the Great South
Channel, off Cape Cod, MA. This request was approved, and the Great
South Channel Exemption Area was created, on August 31, 2006 (71 FR 51779). That rule allowed vessels issued a general category scallop permit, then an open access permit, and vessels with limited access scallop permits not fishing under a scallop DAS allocation, to use small dredges with a combined width not greater than 10.5 ft (3.2 m) in portions of the Great South Channel. Two large portions of the exemption area were closed seasonally to General Category scallop vessels to protect spawning populations of yellowtail flounder during peak spawning periods, including a southern closure from April 1 through June 30 of each year, and a northern closure from June 1 through June 30. However, limited access scallop vessels fishing under a scallop DAS could still fish within the Great South Channel Exemption
Area during those peak spawning periods because their catch of scallops, and, therefore, yellowtail flounder, was limited by the DAS effort controls in the scallop fishery.
Since the 2006 rulemaking that created the Great South Channel
Exemption Area, the general category scallop permits have become limited access permits subject to an individual fishing quota (IFQ) system under Amendment 11 to the Atlantic Sea Scallop FMP (April 14, 2008; 72 FR 20090). Amendment 11 redefined the general category permits as ``limited access general category,'' or ``LAGC'' permits, and imposed limits on the amount of scallop catch from each LAGC IFQ vessels. Because of the catch limits of the IFQs, the amount of regulated species and ocean pout, particularly yellowtail flounder, caught by these vessels is also limited. Thus, the main justification for the spawning protection areas for general category scallop vessels--to minimize the impact on spawning yellowtail flounder--has been significantly mitigated through these catch limits. Further evaluation of the catch of limited access scallop vessels fishing on a
DAS during these spawning periods reveals that the bycatch of yellowtail flounder in these areas during the peak spawning periods is below the 5-percent bycatch threshold established for exempted fisheries under Amendment 7. Therefore, based upon an industry request to reevaluate the necessity of these spawning closures, FW 45 proposes to eliminate the yellowtail spawning closure areas within the Great
South Channel Exemption Area and allow all scallop vessels, including
LAGC scallop vessels, to fish within this area throughout the entire year in accordance with applicable scallop regulations. To clarify that scallop vessels operating in the Great South Channel Exemption Area are still subject to the applicable scallop regulations, a reference to the scallop regulations at subpart D of 50 CFR part 648 was included in the proposed regulations. 8. GOM Cod Spawning Protection Area
During the solicitation of public comment on measures proposed under Amendment 16, several individuals expressed concern regarding the impact of fishing activity on known spawning aggregations of GOM cod.
Similar concerns were identified by the Massachusetts Division of
Marine Fisheries during the early development of FW 45. In response, FW 45 proposes to create a GOM Cod Spawning Protection Area that would be effective from April through June of each year to protect spawning aggregations of GOM cod.
The proposed GOM Cod Spawning Protection Area is rectangular in shape and would be located just south of the Isle of Shoals off the New
Hampshire coastline, with its long axis oriented in a northwest to southeast direction. The exact coordinates for this proposed area are specified in section 4.3.2 of FW 45 and in this proposed rule. This area was identified by researchers at the University of New Hampshire, working in conjunction with several commercial fishing vessels, and corresponds to areas and times when large spawning cod congregate during peak spawning months. The proposed area is intended to prevent fishing from interfering with spawning activity and reducing future recruitment in the fishery.
As proposed, all commercial fishing vessels using gear capable of catching groundfish would be prohibited from fishing within the proposed area from June 1 through June 30 of each year, while all recreational vessels would be prohibited from using gear capable of catching groundfish in the area from April 1 through June 30 of each year. For commercial vessels, only vessels fishing with ``exempted gear,'' as defined in the current regulations, would be allowed into this area during the closure periods. Exempted gear includes pelagic hook and line gear, pelagic longline gear, spears, rakes, diving gear, cast nets, tongs, harpoons, weirs, dipnets, stop nets, pound nets, pelagic gillnets, pots and traps, shrimp trawls with a properly configured grate, and surfclam and ocean quahog dredges. Pelagic gillnet gear is currently further defined as a single pelagic gillnet not longer than 300 ft (91.4 m) and not greater than 6 ft (1.83 m) deep, with a maximum mesh size of 3 inches (7.6 cm), that is attached to the boat and fished in the upper two-thirds of the water column.
Only pelagic hook-and-line gear, as defined in the current regulations, would be allowed to be used in the area by recreational vessels. For both recreational and commercial vessels, ``pelagic hook and line gear'' is defined as handline or rod and reel gear that is designed to fish for, or that is being used to fish for, pelagic species, no portion of which is designed to be or is operated in contact with the bottom at any time. The catch or possession of any regulated species or ocean pout by vessels using the exempted gear described above from
April 1 through June 30 of each year would be prohibited. Both recreational and commercial vessels would be allowed to transit the proposed area, provided all gear is stowed according to existing regulations.
During the development of FW 45, draft measures and discussions at
Council and Groundfish Oversight Committee meetings made it clear that the Council did not intend to allow vessels using midwater trawl gear to fish in the proposed GOM Cod Spawning Protection Area from April 1 through June 30. However, it is less clear whether the Council intended this prohibition to also apply to vessels employing purse seine gear.
The proposed regulations to implement FW 45 that were submitted by the
RA to the Council for deeming consistent with section 303(c) the
Magnuson-Stevens Act reflected the current text in the FW 45 document, as described above. Therefore, because midwater trawl gear and purse seine gear are not included in the current list of exempted gear, this action would not allow commercial vessels fishing with either midwater trawl gear or purse seines into this area during June of each year.
These regulations were deemed consistent with FW 45 and the FMP by the
Council Chairman through a letter dated January 11, 2011. Accordingly,
NMFS considers the proposed regulations to be consistent with Council intent for FW 45.
Page 11868
-
Handgear A and B Measures
Cod Trip Limit
Amendment 13 originally created the limited access NE multispecies
Handgear A permit and open access NE multispecies Handgear B permit, and specified the existing effort controls for such permits, including trip limits. The cod trip limit for Handgear A and B vessels implemented under Amendment 13 was set at 300 lb (135 kg) and 75 lb
(90.7 kg) per trip, respectively, and did not differentiate between the
GOM and GB cod stocks. In addition, Amendment 13 implemented measures that adjusted these cod trip limits proportionally to any changes to the GOM cod limit specified for NE multispecies DAS vessels in Sec. 648.86(b), rounded up to the nearest 50 lb (22.7 kg) for Handgear A vessels and 25 lb (11.3 kg) for Handgear B vessels. Further, Amendment 13 did not differentiate between the GOM and GB cod stocks regarding adjustments to the cod trip limits. Thus, under Amendment 13, if the
GOM cod limit specified for DAS vessels was reduced, the cod limit for
Handgear A and B vessels would be reduced as well, regardless of whether such vessels fished in either the GOM or GB cod stock area, as demonstrated in an adjustment to such trip limits on July 30, 2010 (75
FR 44924).
FW 45 proposes to rectify these two issues by clarifying that the cod trip limits applicable to Handgear A and B vessels are stock- specific to the GOM or GB cod stock, including any adjustments to such trip limits. Handgear A vessels would be subject to an initial cod limit of 300 lb (135 kg) per trip for both the GOM and GB cod stocks, until NMFS adjusts the cod trip limit applicable to common pool vessels fishing under a NE multispecies DAS for either of these stocks below 300 lb (135 kg) per trip. Once either the GOM or the GB cod trip limit for common pool DAS vessels is reduced below 300 lb (135 kg) per DAS, the applicable cod trip limit for Handgear A vessels would be adjusted to be the same as the daily limit for common pool DAS vessels. For example, if only the GOM cod trip limit for NE multispecies DAS vessels was reduced to 250 lb (113.4 kg) per DAS, then the cod trip limit for a vessel issued a Handgear A category permit that is fishing in the GOM
Regulated Mesh Area (i.e., the area specified for the GOM cod trip limit) would also be reduced to 250 lb (113.4 kg); however, the cod trip limit for a Handgear A vessel fishing for GB cod south of the GOM
Regulated Mesh Area (the GB cod stock area is considered the GB, SNE, and MA Regulated Mesh Areas) would be maintained at 300 lb (135 kg) per trip. The initial Handgear B cod limit for both the GOM and GB stocks would be maintained at 75 lb (90.7 kg) per trip, but would be adjusted proportional (rounded up to the nearest 25 lb (11.4 kg)) to any changes in the daily GOM or GB cod trip limits for DAS vessels in the future, as necessary. For example, if the GOM cod trip limit was reduced by 50 percent from 800 lb (362.9 kg) per DAS to 400 lb (181.4 kg) per DAS, then the cod trip limit for a Handgear B vessel fishing in the GOM
Regulated Mesh Area would also be reduced by 50 percent to 37.5 lb (17 kg), rounded to the nearest 25 lb (11.3 kg), or 50 lb (22.7 kg) per trip. In this example, the cod trip limit for a Handgear B vessel fishing for GB cod south of the GOM Regulated Mesh Area would be maintained at 75 lb (90.7 kg) per trip.
FW 45 explicitly provides NMFS with the ability to propose administrative measures necessary to implement the stock-specific cod trip limits, including a letter of authorization (LOA) to fish in defined stock areas. Consistent with existing provisions to administer different cod trip limits for DAS vessels that were first established by FW 20 (April 1, 1997; 62 FR 15381), NMFS proposes to require the owner or operator of a Handgear A or B vessel to declare his or her intent to fish for GB cod by obtaining and retaining on board a paper
LOA from the RA. Alternatively, the owner or operator of a Handgear A permitted vessel may declare his or her intent to fish for GB cod south of the GOM Regulated Mesh Area prior to each trip via a vessel monitoring system (VMS), if the vessel elects, or is required (i.e., when fishing in multiple broad stock areas on the same trip), to use
VMS under the current regulations. These declarations enable at-sea enforcement personnel to identify the applicable cod trip limits and effectively enforce the appropriate regulations during boarding operations. The minimum participation period for this LOA would be 7 consecutive days to minimize the administrative burden of this provision, consistent with existing practice for LOAs issued to DAS vessels. If a vessel declares via VMS, this would be required on a trip-by-trip basis, and no minimum participation period is necessary.
Because the current cod trip limits are based upon Regulated Mesh
Area, not stock area, the owner or operator of a Handgear A or B vessel that intends to fish for GB cod would commit to fishing south of the
GOM Regulated Mesh Area. Consistent with the existing cod LOA for DAS vessels, this action proposes to restrict vessels issued the cod LOA described above to fishing south of the GOM Regulated Mesh Area for the duration of the LOA to more effectively enforce this measure. NMFS is particularly interested in soliciting public comment regarding this restriction, as neither FW 45, nor Council or Groundfish Oversight
Committee discussion of this measure explicitly considered this restriction.
Access to Seasonal Closure Areas
The catch of regulated species and ocean pout by vessels issued either a Handgear A or B permit participating in the common pool is limited not only by the cod trip limits described above, but also by seasonal closure areas, and the common pool sub-ACL for each stock. The current seasonal closure areas in the GOM and on GB run from March through June, and October and November, and include large portions of inshore waters most frequently fished by the predominantly smaller handgear vessels. Accordingly, many of these vessels are unable to fish during these months, because it would be unsafe for them to venture farther offshore and fish in open areas.
Existing regulations implementing FW 44 allow the RA to adjust the trip limits applicable to common pool vessels, including those issued a
Handgear A or B permit, to ensure the common pool sub-ACLs are not exceeded before the end of the FY. This authority was utilized during
FY 2010 to reduce trip limits for stocks caught by Handgear A and B vessels, including cod and haddock, as early as May 27, 2010 (75 FR 29678). Thus, handgear vessels are competing against often larger trawl, gillnet, and hook vessels to catch the available sub-ACL of each stock. However, due to the operational limitations caused by the seasonal closure areas, handgear vessels are often precluded from fishing, particularly in the GOM, until June or July of each year. If common pool trip limits are reduced before June to prevent a sub-ACL from being exceeded, the trip limits might be reduced so low as to make it economically unviable for handgear vessels to fish at all during a particular FY.
To ensure that handgear vessels are provided an opportunity to fish during at least the early part of the FY, FW 45 proposes to exempt both
Handgear A and B vessels from the GB Seasonal Closure Area defined in
Sec. 648.81(g), and to allow Handgear A vessels to also fish in the
Sector Rolling Closure Areas defined in Sec. 648.81(f)(2)(vi)(A) through (C), and depicted in section 4.3.3 of FW 45. These latter areas represent smaller portions of the GOM Rolling Closure
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Areas, and would enable Handgear A vessels fishing in the GOM a greater chance at catching some of the available sub-ACLs for cod and haddock during a particular FY before such trip limits are reduced to prevent the ACL from being exceeded. It is unlikely that this measure would increase F or jeopardize rebuilding requirements for overfished stocks, as the sub-ACLs and associated AMs established for the common pool are sufficient to prevent overfishing and to continue to rebuild overfished stocks. 10. Dockside/Roving Monitor Requirements
FW 45 proposes several revisions to the existing dockside/roving monitor requirements originally established in 2010 under Amendment 16.
Each of these revisions is considered a separate provision and is discussed in further detail below.
Delay in Requirement for Industry To Fund Dockside/Roving Monitors
One of the primary objections to the dockside/roving monitoring program expressed by the public during the development and implementation of Amendment 16 and the development of FW 45 was the high cost of providing sufficient coverage to monitor offloads. As a result, NMFS made sufficient funding available to pay for 100 percent of the costs associated with dockside/roving monitoring coverage in FY 2010, and pledged to do the same in FY 2011 to help alleviate the economic impacts of monitoring costs and smooth the transition to a quota-based management regime in the FMP.
To address lingering concerns regarding the ability of the fishing industry to pay for future costs of a dockside/roving monitoring program, particularly while stocks continue to rebuild, NFMS proposes to delay the industry's responsibility for paying for dockside/roving monitoring coverage until FY 2013. Instead, NMFS would specify coverage levels during FYs 2011 and 2012 based upon available NMFS funding. None of the costs associated with dockside/roving monitors during FYs 2011 and 2012 would be imposed upon the owner or operator of a NE multispecies vessel. NMFS would endeavor to provide dockside/roving monitoring coverage to observe the offloads of up to 100 percent of sector and, for FY 2012, common pool trips, if funds are available. If funds are not available for monitoring 100 percent of groundfish trips,
NMFS would first provide dockside/roving monitor coverage to trips that do not have an observer, at-sea monitor, or approved electronic monitoring equipment.
Dockside/Roving Monitoring Program Requirements Beginning in FY 2013
Neither the Council motion approving the delayed industry funding of dockside/roving monitor coverage discussed above, nor FW 45 explicitly describes the Council's intent regarding dockside/roving monitoring requirements beginning in FY 2013. Amendment 16 clearly indicated the Council's intention to monitor landings of regulated species and ocean pout by all limited access NE multispecies vessels beginning in FY 2012, and that the industry would eventually be responsible for the costs of dockside/roving monitoring requirements.
Based upon the intention expressed in Amendment 16, NMFS interprets the language describing the measures in the FW 45 EA to reinstate the dockside/roving monitoring requirements originally implemented under
Amendment 16 beginning in FY 2013. Thus, proposed regulations to implement FW 45 that were submitted by the RA to the Council for deeming included, starting again in 2013, the requirement for sectors to develop and pay for a dockside/roving monitoring program as part of their annual operations plans, the requirement for common pool vessels to be subject to dockside/roving monitoring upon the transition to a trimester TAC AM, the trip-start and trip-end hail reporting requirements associated with such provisions, and the requirement for dockside/roving monitors to observe the landings of 20 percent of all common pool and sector trips determined in a statistically random manner. These regulations were deemed consistent with FW 45 and the FMP by the Council Chairman through a letter dated January 11, 2011.
Accordingly, NMFS considers the proposed regulations to be consistent with Council intent for FW 45.
As noted above, the regulations implementing Amendment 16 currently require common pool vessels to comply with dockside/roving monitoring requirements beginning in FY 2012. To facilitate administration and compliance with the dockside/roving monitoring operational standards specified at Sec. 648.87(b)(5), the regulations at Sec. 648.82(n)(2)(iv) indicate that such vessels may only use one dockside/ roving monitor service provider per FY. Further clarification of this requirement was provided in the March 30, 2010, permit holder letter explaining the Amendment 16 regulations. That letter indicated that the owner of each common pool vessel must contract with a dockside/roving monitoring service provider approved by NMFS beginning in FY 2012.
Because this action proposes to require most common pool vessels to comply with the dockside/roving monitoring provisions originally implemented under Amendment 16 beginning in FY 2013, this action would revise the regulations at Sec. 648.82(n)(2)(iv) to clearly state that the owner or operator of each common pool vessel subject to dockside/ roving monitoring requirements must contract for such services with a service provider approved by NMFS by 2013. The need for vessel owners to contract with a specific service provider is necessary in the absence of any NMFS-controlled dockside/roving monitoring program in which NMFS can act as a mediator between the fishing industry and approved service providers. Further, because each individual permit is considered a separate legal entity, NMFS is not inclined to mandate that common pool vessels use a particular service provider in a particular FY in order to increase competition among service providers and potentially decrease costs to the affected vessel owners. Groups of vessel owners, however, may elect to contract with the same service provider to help lower the costs associated with such requirements.
Exemption of the Dockside/Roving Monitor Requirements for Certain
Permit Categories
Vessels issued a limited access NE multispecies Handgear A or Small
Vessel Category permit, and vessels issued an open access NE multispecies Handgear B permit, land very small amounts of regulated species and ocean pout compared to vessels issued limited access NE multispecies DAS permits. Thus, dockside/roving monitoring costs would represent a greater proportion of their operational costs compared to
NE multispecies vessels operating under a NE multispecies DAS. Based on public input, there is the potential that such costs would be more than the value of fish landed on a particular trip. Accordingly, FW 45 proposes to exempt Handgear A, Handgear B, and Small Vessel category permits from any dockside/roving monitoring requirements when operating in the common pool. Under such an exemption, it would not be possible for dockside/roving monitor service providers to provide statistically random coverage of all common pool trips, as required under Amendment 16. Therefore, the proposed regulations would also revise the Amendment 16 dockside/roving monitoring coverage provisions to accommodate this
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exemption, and specify that service providers must provide random coverage of all trips subject to the dockside/roving monitoring requirements.
Trip-End Hail Requirement
Based upon a pilot dockside/roving monitoring program, the dockside/roving monitor provisions implemented under Amendment 16 currently require that vessels submit both a trip-start and trip-end hail report. The trip-start hail report was intended to provide the basic trip information necessary for dockside/roving service providers to coordinate the deployment of dockside/roving monitors, including the date, time, and port of intended landing and offloading. The trip-end hail report provides more detailed information that confirmed or revised information submitted in the trip-start hail report. This latter report is also used by both State and Federal enforcement personnel to facilitate dockside intercepts.
As described above, the Council considered, but did not approve, a motion that would have eliminated the dockside/roving monitoring requirements of Amendment 16. Instead, in FW 45, NMFS proposes to rely upon its available funding to determine the amount of dockside/roving monitoring coverage in FYs 2011 and 2012. If the Council had elected to eliminate completely the dockside/roving monitor requirements, the trip-end hail report would have also been eliminated. Because the recent transition to quota-based management under ACLs and AMs increases incentives to misreport or underreport landings of regulated species and ocean pout, the Council considered it important to ensure that the trip-end hail report in FW 45 was retained, even if there was insufficient NMFS funding to support dockside/roving monitoring coverage in FYs 2011 or 2012. This measure is expected to increase the chances that a particular trip would be subject to dockside inspection by enforcement personnel and may, in turn, increase compliance with applicable measures and the accuracy of landings data used to monitor the fishery.
Beginning in FY 2011, if implemented, FW 45 would require all sector vessels and common pool vessels fishing under a DAS to submit trip-hail report via VMS prior to returning to port. If there is sufficient NMFS funding to provide for some level of dockside/roving monitor coverage, vessels assigned a dockside/roving monitor for a particular trip would be required to submit both a trip-start and a trip-end hail report for that trip, however, consistent with current practice. The trip-end hail report would contain the same information as the trip-end hail report implemented by Amendment 16, including the vessel permit number; vessel trip report (VTR) serial number of the first VTR page for that trip; intended offloading location(s), including the dealer name/offload location, port/harbor, and State for the first dealer/facility where the vessel intends to offload catch and the port/harbor and State for the second dealer/facility where the vessel intends to offload catch; estimated date/time of arrival; estimated date/time of offload; and the estimated total amount of all species retained, including species managed by other FMPs (in pounds, landed weight) on board at the time the vessel first offloads its catch from a particular trip. This report, if submitted when there is insufficient funding to provide for a NMFS-controlled dockside/roving monitoring program, would only be submitted to NMFS' Office of Law
Enforcement rather than also to a dockside/roving monitor service provider.
Inspection of Fish Holds
Amendment 16 established approval requirements for entities providing dockside/roving monitoring services. These standards included hiring individual dockside monitors that were capable of climbing ladders and inspecting fish holds. For FY 2010, NMFS developed operational standards necessary to implement the Amendment 16 dockside monitoring provisions, based on a pilot dockside/roving monitoring program conducted during the summer of 2009. These standards did not require dockside monitors to inspect fish holds for FY 2010. However, based on further evaluation of the performance of the dockside monitoring program and consideration of concerns expressed by enforcement personnel, NMFS is proposing to require dockside monitors to inspect the fish holds for any trip that is assigned a dockside/ roving monitor beginning in FY 2011. This requirement would enhance the enforceability of existing provisions and minimize the incentives to under-report/misreport the amount of regulated species landed. 11. Sector Measures
Distribution of the PSC From Cancelled Permits
As described in Amendment 16, a PSC represents an individual permit's portion of the total historical landings of each regulated species or ocean pout stock during FYs 1996-2006 by all permits, including those in confirmation of permit history (CPH), that were eligible to participate in the NE multispecies fishery as of May 1, 2008. This date was selected to provide a recent baseline of eligible permits so that the PSCs of each permit could be calculated only once, and then become fixed. Accordingly, if a permit is cancelled after May 1, 2008, its historic landings between FYs 1996-2006 are still used to calculate the total landings by eligible permits, and continue to effectively reduce the PSC of all remaining permits.
As noted above, the current regulations calculate the ACL available to sector and common pool vessels based on the cumulative PSCs of each permit participating in each sector. By default, if the owner of a particular permit has not elected to participate in a sector, that permit is considered to be participating in the common pool, and its
PSC contributes to the sub-ACL available to the common pool at large.
Similarly, if a permit or CPH is cancelled for any reason, that permit or CPH cannot participate in sectors, or any fishery, and the PSC is used to contribute to the sub-ACL available to the common pool. Thus, the PSCs of cancelled permits artificially inflate the PSCs of those permits operating in the common pool and are not equitably distributed among the permits remaining in the fishery.
Under FW 45, the PSC calculations adopted under Amendment 16 would be performed yearly based upon valid permits, including those held in
CPH, that are eligible to participate in the fishery as of a certain date. To do so, the PSCs for each stock calculated pursuant to the process specified in Amendment 16 would be multiplied by a factor of
``1/PSC of the remaining permits.'' The Council provided NMFS with the authority to specify the date on which PSCs are calculated each year.
To reflect permits that are renewed by the beginning of each FY (May 1), and allow NMFS time to process such renewals, this action proposes to recalculate PSCs on June 1 of each year, unless another date is specified by the RA. These recalculated PSCs would be used to calculate
ACEs for each sector during the following FY. For example, if a PSC is calculated on June 1, 2011, that PSC will affect sector ACE for the 2012 FY that begins on May 1, 2012. This provision would mean that each permit's PSC may increase on a yearly basis to reflect its higher portion of the historic landings of each regulated species and ocean pout stock due to the removal of the landings histories of any
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permits that were cancelled by June 1 of each year. On or about July 1 of each year, NMFS would inform permit holders of updated PSCs. If this measure is approved, the RA would recalculate PSCs for each permit using valid permits as of May 1, 2011, to update PSCs for FY 2011 and reflect permits cancelled through FY 2010.
Operations Plan Requirements
Amendment 16 specified that sectors must submit final rosters, proposed operations plans, and associated environmental analyses by
September 1, so that NMFS could review such documents as part of the process to approve sector operations for the following FY. NMFS extended this deadline in 2009 to provide more time for vessel owners to decide whether to join sectors for FY 2010. Based on industry input,
NMFS requested that the Council formally integrate such flexibility into the current regulations as part of FW 45. Thus, NMFS proposes to require sectors to provide preliminary rosters and proposed operations plans by September 1, but to submit final rosters by December 1. Draft rosters by September 1, and final rosters by December 1, provide NMFS with the information it needs to review or conduct environmental analyses associated with draft sector operations plans, while allowing vessel owners additional time to decide whether to participate in sectors, or which sector to join during the following FY.
Sector Exemptions
Amendment 16 defined several measures for which sectors cannot request an exemption. These include year-round closure areas, permitting restrictions, gear restrictions designed to reduce impacts to habitat, and reporting requirements. Amendment 16 specifically noted that sectors could request an exemption from the DAS reporting requirements, as sectors were universally exempted from the NE multispecies DAS restrictions. As part of public comments received on the proposed rule to implement Amendment 16 (December 31, 2009; 74 FR 69382), several members of the public requested that NMFS exempt sector vessels operating west of 72[deg] 30' W. long. (i.e., Shinnecock Inlet,
NY) and using larger mesh in the monkfish fishery from the Amendment 16 dockside/roving monitoring requirements. This requirement was based on the argument that regulated species are rarely encountered in waters south of New York, particularly when using the large mesh required in the monkfish fishery. NMFS disapproved this request based on the
Amendment 16 requirements to monitor all sector trips.
Similar concerns were raised during the final meeting to approve measures for FW 45. To reduce dockside/roving monitoring costs, especially due to infrequent landings of regulated species in more southerly ports, some individuals sought to limit the geographic scope of dockside/roving monitoring requirements, or exempt vessels landing in particular ports from the dockside/roving monitoring requirements.
FW 45 proposes to address these concerns by specifically removing dockside/roving monitoring requirements from the list of reporting requirements at Sec. 648.87(c)(2)(i). This would enable sectors to request exemptions, or at least partial exemptions, from the dockside/ roving monitoring requirements to minimize monitoring costs for sector trips targeting monkfish in southern waters, for example.
At-Sea or Electronic Monitoring Requirements
Amendment 16 currently requires that sectors develop and pay for an at-sea or electronic monitoring program starting in FY 2012. This requirement was intended to provide sufficient information to accurately monitor landings and discards of regulated species and ocean pout by sector vessels, while allowing sectors 2 years to develop such a program on their own. As noted above, members of the fishing industry and the Council are concerned about the high cost of at-sea and electronic monitoring requirements. Because of the costs associated with sectors, including costs to join a sector, the Council was concerned that imposing additional monitoring costs on the industry, particular shortly after the transition to sector management and before many of the currently overfished stocks rebuild enable higher ACLs to be specified, would reduce profitability and result in making the sector system an economic failure. Therefore, FW 45 would delay the industry's responsibility for developing and paying for an at-sea or electronic monitoring program by 1 year. Unless the Council further revises this provision, sectors would be responsible for developing and paying for such a program beginning in FY 2013.
During the deliberation of this provision, NMFS expressed concern about the Council's reliance upon NMFS funding to fully support a provision required by the FMP, particularly the specific at-sea or electronic monitoring coverage levels in Amendment 16. Because NMFS' funding is not guaranteed, and depends upon Congressional appropriations, it is likely that funding levels will fluctuate on a yearly basis and may not be sufficient to fully fund the dockside/ roving monitoring coverage requirements in the FMP. Thus, NMFS indicated that this measure may not be approvable as part of FW 45. 12. Authorization of New Sectors
FW 45 would authorize five new sectors. These sectors are described in Section 4.2.1 of the FW 45 EA, and include the State of Maine Permit
Banking Sector, the State of Rhode Island Permit Bank Sector, the State of New Hampshire Permit Bank Sector, the Commonwealth of Massachusetts
Permit Bank Sector, and the Sustainable Harvest Sector III. All operational aspects of these sectors would be specified in their annual operations plans, as submitted to NMFS. Most of these sectors are proposed to be used for the primary purpose of leasing ACE to other sectors. Details of these operations plans are expected to be proposed in a parallel rulemaking to be published in the Federal Register soon, as noted above. If approved, each of these sectors must comply with the existing sector provisions, unless otherwise exempted by a future action. The Council is currently considering specifically exempting
State-funded and -operated permit banks from several of the existing sector provisions, including the minimum size requirement for sectors originally established under Amendment 16, through a separate rulemaking being developed by the Council. Public comment will be solicited separately on that action. 13. Measures for FY 2011 Under RA Authority
The FMP provides authority for the RA to implement certain types of management measures for the common pool fishery, the U.S./Canada
Management Area, and Special Management Programs, as described further below. This proposed rule includes a description of measures that may be considered by the RA for implementation in FY 2011 for these components of the groundfish fishery, in order to provide an opportunity for the public to comment on whether such measures are appropriate. Although these measures are not proposed by the Council for implementation through FW 45, this proposed rule makes the public aware of measures under consideration by the RA, under the authority of the FMP. It also enables the public to comment on such measures in the
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context of the measures proposed in FW 45, that, if approved, would also be implemented for FY 2011. The RA may implement measures that differ from the measures described below if, based on current information, such measures are necessary to conform to the requirements of the FMP. However, NMFS does not anticipate the measures that would be implemented will be substantially different than those described below. The measures implemented through RA authority for FY 2011 will be implemented through the FW 45 final rule, or through a separate final rule, if necessary, due to the availability of relevant data or the timing of FW 45.
The FW 44 final rule implemented RA authority to alter common pool trip limits at Sec. 648.86(o). If the RA projects that the catch of any NE multispecies stock allocated to common pool vessels will exceed the pertinent sub-ACL, NMFS may implement or adjust possession and trip limits in order to prevent exceeding the common pool sub-ACL. Table 16 provides a summary of the trip limits that are the default trip limits in effect if the RA takes no action to modify such limits, as well as a summary of trip limit modifications that occurred during FY 2010, and potential starting trip limits that would be in effect for FY 2011.
These potential trip limits were developed after considering changes to the 2011 common pool sub-ACLs and sector rosters, catch rates of these stocks during FY 2010, price of fish during FY 2010, bycatch considerations, the potential for differential DAS counting during FY 2011, and other available information. Specifically, compared to the FY 2010 sub-ACLs, FY 2011 sub-ACLs (see Table 5) would increase for SNE/MA yellowtail flounder (69 percent), GB cod (25 percent), CC/GOM yellowtail flounder (21 percent), white hake (16 percent), GOM cod (6 percent), American plaice (9 percent), witch flounder (45 percent), GB winter flounder (8 percent), redfish (10 percent), and Atlantic halibut
(10 percent). Decreased catch limits compared to FY 2010 are expected for GB haddock (-24 percent), GB yellowtail flounder (-18 percent), pollock (-16 percent), and GOM haddock (-5 percent). Although the slow catch rate of SNE/MA yellowtail flounder by common pool vessels in FY 2010 suggests that trip limits could be increased substantially to increase the catch of this stock in FY 2011, due to concerns over the potential of increased SNE/MA yellowtail flounder trip limits to increase the bycatch and discard of SNE/MA winter flounder (a stock that cannot be possessed by any vessel to help ensure this stock rebuilds according to the approved rebuilding program), only a small increase in the trip limit for this stock is proposed at this time. For stocks that include a range of potential trip limits in Table 16, a final trip limit would be specified in the final rule for this action based upon public comment. NMFS is requesting public input on common pool trip limits for FY 2011.
Table 16--Default, FY 2010, and Potential FY 2011 Trip Limits for the Common Pool
Default limit in
FY 2010 limit
Stock
regulations
implemented
Potential FY 2011 limit
GOM cod.......................... 800 lb (362.9 kg) per
200 lb (90.7 kg) per
500 lb (226.8 kg) per
DAS, up to 4,000 lb
DAS, up to 1,000 lb
DAS, up to 2,000 lb
(1,818.2 kg) per trip.
(453.6 kg) per trip;
(907.2 kg) per trip. reduced to 100 lb (45.4 kg) per DAS, up to 1,000 lb (453.6 kg) per trip.
GB cod........................... 2,000 lb (907.2 kg) per no change to default
2,000 lb (907.2 kg) per
DAS, up to 20,000 lb
limit.
DAS, up to 20,000 lb
(9,072 kg) per trip.
(9,072 kg) per trip.
GOM haddock...................... unrestricted............. 1,000 lb (453.6 kg) per 750 lb (340.2 kg)--1,000 trip.
lb (453.6 kg) per trip.
GB haddock....................... unrestricted............. 10,000 lb (4,535.9 kg) 7,500 lb (3,402 kg)-- per trip.
10,000 lb (4,535.9 kg) per trip.
GOM winter flounder.............. unrestricted............. 250 lb (113.4 kg) per
250 lb (113.4 kg) per trip.
trip.
GB winter flounder............... unrestricted............. started at 5,000 lb
1,000 lb (453.6 kg) per
(2,268 kg); reduced to trip. 1,000 lb (453.6 kg) per trip.
CC/GOM yellowtail flounder....... 250 lb (113.4 kg) per
250 lb (113.4 kg) per
250 lb (113.4 kg) per
DAS, up to 1,500 (680.4
DAS, up to 1,500 (680.4 DAS, up to 1,500 (680.4 kg) per trip.
kg) per trip.
kg) per trip.
GB yellowtail flounder........... unrestricted............. started at 2,500 lb
1,000 (453.6 kg)--1,500
(1,134 kg) per trip;
(680.4 kg) per trip. reduced to 1,000 lb
(453.6 kg) per trip; reduced again to 100 lb
(45.4 kg) per trip.
SNE/MA yellowtail flounder....... 250 lb (113.4 kg) per
250 lb (113.4 kg) per
250 lb (113.4 kg) per
DAS, up to 1,500 (680.4
DAS, up to 1,500 (680.4 DAS, up to 1,500 (680.4 kg) per trip.
kg) per trip.
kg) per trip--500 lb
(226.8 kg), up to 2,000
(907.2 kg) per trip.
American plaice.................. unrestricted............. unrestricted............ unrestricted.
Pollock.......................... 1,000 lb (450 kg) per
unrestricted............ unrestricted.
DAS; up to 10,000 lb
(4,500 kg) per trip.
Witch flounder................... unrestricted............. 130 lb (59 kg) per trip; 250 lb (113.4 kg) per reduced to possession
trip. prohibition.
White hake....................... unrestricted............. Started at 2,000 lb
1,000 lb (453.6 kg)--
(907.2 kg) per DAS; up 1,500 lb (680.4 kg) per to 10,000 lb (4,500 kg) trip. per trip; reduced to 100 lb (45.4 kg) per
DAS; up to 500 lb
(226.8 kg) per trip.
Redfish.......................... unrestricted............. unrestricted............ unrestricted.
Amendment 16 implemented a provision that AMs for the common pool fishery will be triggered for FY 2011 if the catch in FY 2010 exceeds the pertinent common pool sub-ACL (Sec. Sec. 648.90(a)(5)(i)(A) and 648.82(n)). Specifically, the FMP requires that the DAS counting rate during FY 2011 be adjusted if the catch of the relevant stocks by common pool vessels exceeds the pertinent common pool groundfish sub-
ACLs during FY 2010. Based on current information, the common pool catch of witch flounder during FY 2010 will exceed the witch flounder sub-ACL
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specified for the common pool (25 mt) by 20 percent or more. As an example, if the percent of the common pool sub-ACL for witch flounder caught at the end of FY 2010 is determined to be 124 percent, the required differential DAS rate would be 1.2 where historically witch flounder are caught. The geographic areas for which the differential
DAS rate would apply are defined for witch flounder by the FMP as the
Offshore GOM Differential DAS Area, the Offshore GB Differential DAS
Area, and the Inshore GB Differential DAS Area, with coordinates specified at Sec. 648.82(n)(1)(i). The differential DAS rate would not apply to the Inshore GOM Differential DAS Area or the SNE/MA
Differential DAS Area, provided only the witch flounder ACL is exceeded, and AMs are not required for a stock with predominantly inshore catch. The differential DAS would apply to all Category A trips taken by common pool vessels in the applicable areas. Category A DAS would be charged at a rate of 28.8 hr for every 24 hr fished (1.2 times 24-hr DAS counting), for the time spent fishing in the applicable DAS counting area (noted above) based upon the first VMS position into the applicable differential DAS counting area, and the first VMS position outside of the applicable differential DAS counting area. If the catch of other stocks such as GOM cod exceed their respective sub-ACLs, additional differential DAS restrictions or an adjustment to the DAS allocation may be required. NMFS provides an estimate of the status of the common pool catch to the public through the following Internet address: http://www.nero.noaa.gov/ro/fso/reports/common_pool/Common_
Pool_Summary.html.
Under authority granted by the FMP (Sec. 648.85(a)(3)(iv)(D)), the
RA may implement rules to optimize the harvest of the transboundary stocks managed under the Understanding. Pursuant to this authority,
NMFS is considering postponing the opening of the Eastern U.S./Canada
Area for non-sector (common pool) vessels fishing with trawl gear in FY 2011 from May 1, 2011, to August 1, 2011. This action would prevent trawl fishing in the Eastern U.S./Canada Area during the time when cod bycatch is likely to be very high, and prolong access to this area in order to maximize the catch of available cod, haddock, and yellowtail flounder, as well as other valuable stocks such as winter flounder.
This action would not affect valid members of sectors fishing with trawl gear in the Eastern U.S./Canada Area, because such vessels are subject to additional restrictions on catch as members of a sector.
Industry members believe that sector restrictions provide sufficient incentives for vessels to fish in a manner that optimizes catch, and that such incentives are not existent under common pool regulations. To further constrain fishing mortality on GB cod, NMFS may limit the common pool vessels fishing with non-trawl gear in the Eastern U.S./
Canada Area prior to August 1, 2011, to a cod catch of 5 percent of the
Eastern GB cod TAC, or 10 mt of cod.
The RA has the authority to determine the allocation of the total number of trips into the Closed Area II Yellowtail Flounder/Haddock SAP based on several criteria, including the GB yellowtail flounder TAC and the amount of GB yellowtail flounder caught outside of the SAP. As implemented in 2005 by FW 40B (June 1, 2005; 70 FR 31323), zero trips to this SAP should be allocated if the available GB yellowtail flounder catch is insufficient to support at least 150 trips with a 15,000-lb
(6,804-kg) trip limit (i.e., 150 trips of 15,000 lb (6,804 kg)/trip, or 2,250,000 lb (1,020,600 kg) total. This calculation takes into account the projected catch from the area outside the SAP. Based on the groundfish sub-ACL of 2,125,256 lb (964,016 kg), even if the projected catch from outside the SAP area is zero, there is still insufficient GB yellowtail flounder available to allow the SAP to proceed (i.e., 2,125,256 lb (964,016 kg) available 0648-0605, (5 min/response); 2. Sector operations plan and associated NEPA analysis,
OMB0648-0605, (640 hr/response); 3. Dockside/at-sea monitoring service provider application,
OMB0648-0605, (10 hr/response); 4. Dockside/at-sea monitoring service provider response to application disapproval, OMB0648-0605, (10 hr/response); 5. Data entry for sector discard monitoring system, OMB 0648-0605, (3 min/response); 6. Sector weekly catch report, OMB0648-0605, (4 hr/ response); 7. Sector annual report, OMB0648-0605, (12 hr/response); 8. Notification of expulsion from a sector, OMB0648-0605,
(30 min/response); 9. Request to transfer ACE, OMB0648-0605, (5 min/ response); 10. VMS certification form, OMB0648-0605, (10 min/ response); 11. VMS confirmation call, OMB0648-0605, (5 min/ response); 12. VMS area and DAS declaration, OMB0648-0605, (5 min/ response); 13. VMS trip-level catch reports, OMB0648-0605, (15 min/ response); 14. Request for a LOA to participate in the GOM Haddock Gillnet
Pilot Program, OMB0648-0605, (5 min/response); 15. Request for a LOA to fish in a NE multispecies RGA,
OMB0648-0605, (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,
OMB0648-0605, (2 min/response); 18. Trip-end hail report to a dockside monitoring service provider,
OMB0648-0605, (15 min/response); 19. Confirmation of dockside monitoring trip-end hail report,
OMB0648-0605, (2 min/response); 20. Dockside/roving service provider data entry, OMB0648- 0605, (3 min/response); 21. Dockside/roving or at-sea monitor deployment report,
OMB0648-0605, (10 min/response); 22. Dockside/roving or at-sea monitoring service provider catch report to NMFS upon request, OMB0648-0605, (5 min/response); 23. Dockside/roving or at-sea monitor report of harassment and other issues, OMB0648-0605, (30 min/response); 24. OLE debriefing of dockside/roving or at-sea monitors,
OMB0648-0605, (2 hr/response); 25. Copy of dockside/roving or at-sea monitoring service provider contract upon request, OMB0648-0605, (30 min/response); 26. Copy of dockside/roving or at-sea monitoring service provider information materials upon request, OMB0648-0605, (30 min/ response); 27. Observer program pre-trip notification, OMB0648-0605,
(2 min/response); 28. Daily VMS catch reports when fishing in the U.S./Canada
Management Area and CA II SAPs, OMB0648-0605, (15 min/ response); 29. Daily VMS catch reports when fishing in the CA I Hook Gear
Haddock SAP, OMB0648-0605, (15 min/response); 30. Daily VMS catch reports when fishing in the Regular B DAS
Program, OMB0648-0605, (15 min/response); 31. Copy of the dealer weigh-out slip or dealer signature of the dockside monitor report, OMB0648-0605, (2 min/response); 32. Forward trip start/end hails to NMFS, OMB0648-0605 (2 min/response); 33. Notification to vessel/sector/NMFS of monitor emergency,
OMB0648-0605 (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,
OMB0648-0521, (5 min/response); 47. Notification and Communication with USCG and Center for Coastal
Studies, OMB0648-0521, (10 min/response); 48. Written requests to receive a DAS credit for standing by an entangled whale, OMB0648-0521, (30 min/response); 49. Vessel baseline downgrade request for the DAS Leasing Program,
OMB0648-0475, (1 hr/response); 50. Spawning block declaration, OMB0648-0202 (2 min/ response); 51. Sector Manager daily reports for CA I Hook Gear Haddock SAP,
OMB0648-0212 (2 hr/response); 52. DAS Leasing Program application, OMB0648-0475 (10 min/response); and 53. Declaration of intent to fish inside and outside of the Eastern
U.S./Canada Area on the same trip, OMB0648-0202 (5 min/ response).
Public reporting burden for these requirements includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, andcompleting and reviewing the collection of information. Send comments regarding these burden estimates, or any other aspect of this
Page 11884
data collection, including suggestions for reducing the burden, to NMFS
(see ADDRESSES) and by e-mail to OIRA_Submission@omb.eop.gov, or fax to 202-395-7285.
Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: February 22, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons stated in the preamble, 50 CFR part 648 is proposed to be amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq. 2. In Sec. 648.10, revise paragraph (k)(1) to read as follows:
Sec. 648.10 VMS and DAS requirements for vessel owners/operators.
* * * * *
(k) * * *
(1) Reporting requirements for all limited access NE multispecies vessel owners or operators. In addition to any other reporting requirements specified in this part, the owner or operator of any vessel issued a limited access NE multispecies permit on either a common pool or sector trip must declare the following information via
VMS or IVR, as instructed by the Regional Administrator:
(i) Broad stock area(s) to be fished. To fish in any of the broad stock areas, the vessel owner or operator must declare his/her intent to fish within one or more of the NE multispecies broad stock areas, as defined in paragraph (k)(3) of this section, prior to leaving port at the start of a fishing trip;
(ii) VTR serial number. On its return to port, prior to crossing the VMS demarcation line, as defined at Sec. 648.10, the vessel owner or operator must provide the VTR serial number for the first page of the VTR for that particular trip, or other applicable trip ID specified by NMFS; and
(iii) Trip-end hail report. Unless otherwise required to comply with both the dockside/roving monitoring trip-start and trip-end hail reports pursuant to Sec. 648.87(b)(5), beginning in fishing year 2011
(May 1, 2011), upon its return to port and prior to crossing the VMS demarcation line as defined in Sec. 648.10, the owner or operator of any vessel issued a limited access NE multispecies permit that is subject to the VMS requirements specified in paragraph (b)(4) of this section must submit a trip-end hail report to NMFS via VMS, as instructed by the Regional Administrator. The trip-end hail report must include at least the following information, as instructed by the
Regional Administrator: The vessel permit number; VTR serial number, or other applicable trip ID specified by NMFS; intended offloading location(s), including the dealer name/offload location, port/harbor, and State for the first dealer/facility where the vessel intends to offload catch and the port/harbor, and State for the second dealer/ facility where the vessel intends to offload catch; estimated date/time of arrival; estimated date/time of offload; and the estimated total amount of all species retained, including species managed by other FMPs
(in pounds, landed weight), on board at the time the vessel first offloads its catch from a particular trip. The trip-end hail report must be submitted at least 6 hr in advance of landing for all trips of at least 6 hr in duration or occurring more than 6 hr from port. For shorter trips, the trip-end hail reports must be submitted upon the completion of the last tow or hauling of gear, as instructed by the
Regional Administrator.
* * * * * 3. In Sec. 648.14, revise paragraph (k)(7)(i)(B); and add paragraphs (k)(9)(i), (k)(15)(ii)(A)(5), and (k)(18)(i)(D) to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(k) * * *
(7) * * *
(i) * * *
(B) Fish for, harvest, possess, or land regulated species in or from the closed areas specified in Sec. 648.81(a) through (f) and (o), unless otherwise specified in Sec. 648.81(c)(2)(iii), (f)(2)(i),
(f)(2)(iii), (f)(2)(vi), (i), (o)(2)(i), or as authorized under Sec. 648.85.
* * * * *
(9) * * *
(i) If operating under the provisions of a limited access NE multispecies Handgear A permit south of the GOM Regulated Mesh Area, as defined at Sec. 648.80(a)(1), fail to declare the vessel operator's intent to fish in this area via VMS or fail to obtain or retain on board a letter of authorization from the Regional Administrator, as required by Sec. 648.82(b)(6)(iv).
* * * * *
(15) * * *
(ii) * * *
(A) * * *
(5) If operating under the provisions of a limited access NE multispecies Handgear B permit south of the GOM Regulated Mesh Area, as defined at Sec. 648.80(a)(1), fail to obtain or retain on board a letter of authorization from the Regional Administrator, as required by
Sec. 648.88(a)(2)(iv).
* * * * *
(18) * * *
(i) * * *
(D) Offload fish before a dockside/roving monitor arrives, if selected to have its offloading events observed by a dockside/roving monitor, as specified by Sec. 648.87(b)(1)(v)(B)(1) and (b)(5)(i)(C).
* * * * * 4. In Sec. 648.80, revise the introductory text to paragraph
(a)(18), and remove paragraphs (a)(18)(ii)(C) and (D) to read as follows:
Sec. 648.80 NE Multispecies regulated mesh areas and restrictions on gear and methods of fishing.
(a) * * *
(18) Great South Channel Scallop Dredge Exemption Area. Vessels issued a LAGC scallop permit, including limited access scallop permits that have used up their DAS allocations, may fish in the Great South
Channel Scallop Dredge Exemption Area, as defined under paragraph
(a)(18)(i) of this section, when not under a NE multispecies or scallop
DAS or on a sector trip, provided the vessel complies with the requirements specified in paragraph (a)(18)(ii) of this section and applicable scallop regulations in subpart D of this chapter.
* * * * * 5. In Sec. 648.81, revise paragraphs (f)(2)(vi) and (i); and add paragraphs (g)(2)(vi) and (o) to read as follows:
Sec. 648.81 NE multispecies closed areas and measures to protect EFH.
* * * * *
(f) * * *
(2) * * *
(vi) That are fishing on a sector trip, or under the provisions of a Northeast multispecies Handgear A permit, as specified at Sec. 648.82(b)(6), provided such vessels comply with the following restricted areas referred to as the Sector Rolling Closure Areas:
* * * * *
Page 11885
(g) * * *
(2) * * *
(vi) That are fishing under the provisions of a Northeast multispecies Handgear A permit, as specified at Sec. 648.82(b)(6), or the provisions of a Northeast multispecies Handgear B permit, as specified at Sec. 648.88(a).
* * * * *
(i) Transiting. Unless otherwise restricted or specified in this paragraph (i), a vessel may transit CA I, the Nantucket Lightship
Closed Area, the Cashes Ledge Closed Area, the Western GOM Closure
Area, the GOM Rolling Closure Areas, the GB Seasonal Closure Area, the
EFH Closure Areas, and the GOM Cod Spawning Protection Area, as defined in paragraphs (a)(1), (c)(1), (d)(1), (e)(1), (f)(1), (g)(1), (h)(1), and (o)(1), of this section, respectively, provided that its gear is stowed in accordance with the provisions of Sec. 648.23(b). A vessel may transit CA II, as defined in paragraph (b)(1) of this section, in accordance with paragraph (b)(2)(iv) of this section. Private recreational or charter/party vessels fishing under the Northeast multispecies provisions specified at Sec. 648.89 may transit the GOM
Cod Spawning Protection Area, as defined in paragraph (o)(1) of this section, provided all bait and hooks are removed from fishing rods, and any regulated species on board have been caught outside the GOM Cod
Spawning Protection Area and has been gutted and stored.
* * * * *
(o) GOM Cod Spawning Protection Area. (1) Except as specified in paragraph (o)(2) of this section, from April through June of each year, no fishing vessel or person on a fishing vessel may enter, fish in, or be in; and no fishing gear capable of catching NE multispecies may be used, on, or be on board, a vessel in the GOM Cod Spawning Protection
Area, as defined by straight lines connecting the following points in the order stated (a chart depicting this area is available from the
Regional Administrator upon request):
GOM Cod Spawning Protection Area
Point
N. latitude
W. longitude
CSPA1........................... 42[deg]50.95'
70[deg]32.22'
CSPA2........................... 42[deg]47.65'
70[deg]35.64'
CSPA3........................... 42[deg]54.91'
70[deg]41.88'
CSPA4........................... 42[deg]58.27'
70[deg]38.64'
CSPA1........................... 42[deg]50.95'
70[deg]32.22'
(2) Paragraph (o)(1) of this section does not apply to persons on a fishing vessel or fishing vessels:
(i) That have not been issued a NE multispecies permit and that are fishing exclusively in State waters;
(ii) That are fishing with or using exempted gear as defined under this part, excluding pelagic gillnet gear capable of catching NE multispecies, except for vessels fishing with a single pelagic gillnet not longer than 300 ft (91.4 m) and not greater than 6 ft (1.83 m) deep, with a maximum mesh size of 3 inches (7.6 cm), provided:
(A) The net is attached to the boat and fished in the upper two- thirds of the water column;
(B) The net is marked with the vessel owner's name and vessel identification number;
(C) There is no retention of regulated species or ocean pout; and
(D) There is no other gear on board capable of catching NE multispecies;
(iii) That are fishing as a charter/party or recreational fishing vessel, provided that:
(A) With the exception of tuna, fish harvested or possessed by the vessel are not sold or intended for trade, barter, or sale, regardless where the species are caught;
(B) The vessel has no gear other than pelagic hook and line gear, as defined in this part, on board unless that gear is properly stowed pursuant to Sec. 648.23(b); and
(C) There is no retention of regulated species, or ocean pout; and
(iv) That are transiting pursuant to paragraph (i) of this section.
* * * * * 6. In Sec. 648.82, revise paragraphs (a)(2), the introductory text of paragraph (b)(6), and (n)(2)(iv), and add paragraph (b)(6)(iv) to read as follows:
Sec. 648.82 Effort-control program for NE multispecies limited access vessels.
(a) * * *
(2) Notwithstanding any other provision of this part, any vessel issued a NE multispecies limited access permit may not call into the
DAS program and fish under a DAS, fish on a sector trip, or fish under the provisions of a limited access Small Vessel Category or Handgear A permits pursuant to paragraphs (b)(5) and (b)(6) of this section, respectively, if such vessel carries passengers for hire for any portion of a fishing trip.
(b) * * *
(6) Handgear A category. A vessel qualified and electing to fish under the Handgear A category, as described in Sec. 648.4(a)(1)(i)(A), may retain, per trip, up to 300 lb (135 kg) of cod, one Atlantic halibut, and the daily possession limit for other regulated species and ocean pout, as specified under Sec. 648.86. If either the GOM or GB cod trip limit applicable to a vessel fishing under a NE multispecies
DAS permit, as specified in Sec. 648.86(b)(1) and (b)(2), respectively, is reduced below 300 lb (135 kg) per DAS by NMFS, the cod trip limit specified in this paragraph (b)(6) shall be adjusted to be the same as the applicable cod trip limit specified for NE multispecies
DAS permits. For example, if the GOM cod trip limit for NE multispecies
DAS vessels was reduced to 250 lb (113.4 kg) per DAS, then the cod trip limit for a vessel issued a Handgear A category permit that is fishing in the GOM Regulated Mesh Area would also be reduced to 250 lb (113.4 kg). Qualified vessels electing to fish under the Handgear A category are subject to the following restrictions:
* * * * *
(iv) Declaration. For any such vessel that is not required to use
VMS pursuant to Sec. 648.10(b)(4), to fish for GB cod south of the GOM
Regulated Mesh Area, as defined at Sec. 648.80(a)(1), a vessel owner or operator must obtain, and retain on board, a letter of authorization from the Regional Administrator stating his or her intent to fish south of the GOM Regulated Mesh Area and may not fish in any other area for a minimum of 7 consecutive days from the effective date of the letter of authorization. For any such vessel that is required to use VMS pursuant to Sec. 648.10(b)(4), to fish for GB cod south of the GOM Regulated
Mesh Area, as defined at Sec. 648.80(a)(1), a vessel owner or operator must declare his or her intent to fish south of the GOM Regulated Mesh
Area on each trip through the VMS prior to leaving port, in accordance with instructions provided by the Regional Administrator. Such vessels may transit the GOM Regulated Mesh Area, as defined at Sec. 648.80(a)(1), provided that their gear is stowed in accordance with the provisions at Sec. 648.23(b).
* * * * *
(n) * * *
(2) * * *
(iv) Monitoring requirements. Except as specified in paragraph
(n)(2)(iv)(C) of this section, starting in fishing year 2012 (May 1, 2012), landings of regulated species or ocean pout by common pool vessels shall be monitored at the point of offload by independent, third-party service providers approved to provide such services by
NMFS, as specified in paragraphs (n)(2)(iv)(A) and (B) of this section.
Unless otherwise instructed by
Page 11886
NMFS, these service providers shall deploy dockside monitors to monitor the offload of catch directly to a dealer, and roving monitors to monitor the offload of catch onto a truck for subsequent shipment to a dealer. For fishing year 2012 only, common pool vessels must comply with any dockside/roving monitoring program specified by NMFS pursuant to Sec. 648.87(b)(1)(v)(B)(1). None of the costs associated with dockside/roving monitors during fishing year 2012 shall be paid by the owner or operator of a vessel subject to these requirements. Starting in fishing year 2013 and thereafter, the costs associated with monitoring vessel offloads shall be the responsibility of individual vessels, unless otherwise instructed by NMFS. An individual vessel owner or operator may only use one dockside/roving monitoring service provider per fishing year beginning in fishing year 2013, and must contract for such services with a service provider approved by NMFS pursuant to Sec. 648.87(b)(4), as instructed by the Regional
Administrator. Both common pool vessels and service providers providing offloading monitoring services will be subject to the requirements specified in Sec. 648.87(b)(5).
(A) Coverage levels. For fishing year 2012, dockside/roving monitoring coverage levels shall be determined by NMFS based on available funding. If NMFS does not require 100-percent coverage of all common pool trips, NMFS shall first provide dockside/roving monitoring for trips that are not also assigned an observer or at-sea monitor pursuant to Sec. 648.11. Starting in fishing year 2013, at least 20 percent of the trips taken by vessels operating under the provisions of the common pool shall be monitored. To ensure that these levels of coverage are achieved, if a trip has been selected to be observed by a dockside/roving monitor, all offloading events associated with that trip must be monitored by a dockside/roving monitor, as specified in paragraph (n)(2) of this section, and a vessel may not offload any of its catch until the dockside/roving monitor arrives. For example, a vessel offloading at more than one dealer or facility must have a dockside/roving monitor present during offload at each location. All landing events at remote ports that are selected to be observed by a dockside/roving monitor must have a roving monitor present to witness offload activities to the truck, as well as a dockside monitor present at each dealer to certify weigh-out of all landings. Except as provided in this paragraph (n)(2)(iv)(A) or paragraph (n)(2)(iv)(C) of this section, or as instructed by the Regional Administrator, any service provider providing dockside/monitoring services required under this paragraph (n)(2)(iv) must ensure that coverage is randomly distributed among all such trips, and that the landing events monitored are representative of fishing operations by common pool vessels throughout the fishing year.
(B) Dockside/roving monitor service provider standards. Starting in fishing year 2013, a common pool vessel must employ a service provider approved by NMFS to provide dockside/roving monitor services, as identified by the Regional Administrator. To be approved to provide the services specified in paragraph (n)(2) of this section, dockside/roving monitor service providers must meet the standards in Sec. 648.87(b)(4).
(C) Exemption. Common pool vessels operating under the provisions of either a limited access Northeast multispecies Small Vessel Category permit or Handgear A permit, as specified at Sec. Sec. 648.82(b)(5) and (6), respectively, or an open access Northeast multispecies
Handgear B permit, as specified at Sec. 648.88(a), are exempt from the dockside/roving monitoring requirements specified in this paragraph
(n)(2)(iv).
* * * * * 7. In Sec. 648.87, revise the introductory text of paragraphs
(b)(1)(i)(E), (b)(1)(viii), (b)(2), and (b)(5); revise paragraphs
(b)(1)(i)(A), (b)(1)(i)(C), (b)(1)(i)(E)(1), (b)(1)(i)(E)(2)(i) and
(ii), (b)(1)(iii)(C), (b)(1)(v)(B), (b)(1)(viii)(C), and (c)(2)(i); and add paragraphs (b)(5)(ii)(E) and (d)(20) through (24) to read as follows:
Sec. 648.87 Sector allocation.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(A) Allocated stocks. Each sector shall be allocated a TAC in the form of an ACE for each NE multispecies stock, with the exception of
Atlantic halibut, SNE/MA winter flounder, ocean pout, windowpane flounder (both the GOM/GB and the SNE/MA stocks), and Atlantic wolffish based upon the cumulative PSCs of vessels/permits participating in each sector during a particular fishing year, as described in paragraph
(b)(1)(i)(E) of this section. In the event that a future allocation of
SNE/MA winter flounder can be made available pursuant to the biennial adjustment or framework process specified in Sec. 648.90(a)(2), an ACE for this stock will be specified pursuant to paragraph (b)(1)(i)(E)(1) of this section.
* * * * *
(C) Carry-over. With the exception of GB yellowtail flounder, a sector may carry over an amount of ACE equal to up to 10 percent of its original ACE allocation for each stock that is unused at the end of one fishing year into the following fishing year. Any unused ACE allocated for Eastern GB stocks pursuant to paragraph (b)(1)(i)(B) of this section will contribute to the 10-percent carry-over allowance for each stock, as specified in this paragraph (b)(1)(i)(C), but will not increase an individual sector's allocation of Eastern GB stocks during the following year. This carry-over ACE remains effective during the subsequent fishing year even if vessels that contributed to the sector allocation during the previous fishing year are no longer participating in the same sector for the subsequent fishing year.
* * * * *
(E) Potential sector contribution (PSC). For the purposes of allocating a share of the available ACL for each NE multispecies stock to approved sectors pursuant to Sec. 648.90(a)(4), the landings history of all limited access NE multispecies permits shall be evaluated to determine each permit's share of the overall landings for each NE multispecies stock as specified in paragraphs (b)(1)(i)(E)(1) and (2) of this section. When calculating an individual permit's share of the overall landings for a particular regulated species or ocean pout stock, landed weight shall be converted to live weight to maintain consistency with the way ACLs are calculated pursuant to Sec. 648.90(a)(4) and the way ACEs are allocated to sectors pursuant to this paragraph (b)(1)(i). This calculation shall be performed on July 1 of each year, unless another date is specified by the Regional
Administrator, to redistribute the landings history associated with permits that have been voluntarily relinquished or otherwise canceled among all remaining valid limited access NE multispecies permits as of that date during the following fishing year. The PSC calculated pursuant to this paragraph (b)(1)(i)(E) shall remain with the permit indefinitely, but may be permanently reduced or eliminated due to a permit sanction or other enforcement action.
(1) Calculation of PSC for all NE multispecies stocks except GB cod. Unless otherwise specified in paragraph (b)(1)(i)(E)(2) of this section, for each valid limited access NE multispecies permit, including limited access NE multispecies Handgear A permits,
Page 11887
landings recorded in the NMFS dealer database of each stock of NE multispecies determined by NMFS to be the landings history associated with that permit while subject to the NE multispecies regulations based on whether the vessel fishing under that permit was issued a limited access NE multispecies permit or subsequently qualified for a limited access NE multispecies permit pursuant to Sec. 648.4(a)(1)(i), including regulated species or ocean pout caught under a NE multispecies DAS when participating in the skate or monkfish fisheries, but excluding, for example, landings by scallop vessels operating under a scallop DAS, shall be summed for fishing years 1996 through 2006.
This sum shall then be divided by the total landings of each NE multispecies stock during the same period by all permits eligible to join sectors as of May 1, 2008. The resulting figure shall then be multiplied by a factor of 1/PSC of remaining permits as of June 1 of each year, unless another date is specified by the Regional
Administrator, to calculate the PSC for each individual valid limited access NE multispecies permit for each regulated species or ocean pout stock allocated to sectors in the NE multispecies fishery for the following fishing year pursuant to this paragraph (b)(1)(i)(E)(1).
(2) * * *
(i) GB cod PSC for permits committed to participate in the GB Cod
Hook Gear Sector or GB Cod Fixed Gear Sector. For each owner of a valid
NE multispecies permit, or CPH, that committed to participate in either the GB Cod Hook Gear Sector or the GB Cod Fixed Gear Sector as evidenced by a valid authorized signature executed on or before March 1, 2008, on a preliminary roster for either of these sectors, the PSC for GB cod shall be equal to the sum of dealer landings of GB cod for fishing years 1996 through 2001, divided by the total landings of GB cod by permits eligible to join sectors as of May 1, 2008, during that period. The PSC for all other regulated species or ocean pout stocks specified for these permits shall be calculated pursuant to paragraph
(b)(1)(i)(E)(1) of this section. The PSC calculated pursuant to this paragraph (b)(1)(i)(E)(2)(i) shall then be multiplied by a factor of 1/
PSC of remaining permits as of June 1 of each year, unless another date is specified by the Regional Administrator, to calculate the GB cod PSC for each permit for the following fishing year.
(ii) GB cod PSC for all other permits. For each owner of a valid NE multispecies permit or CPH that has not committed to participate in either the GB Cod Hook Gear Sector or GB Cod Fixed Gear Sector, as specified in paragraph (b)(1)(i)(E)(2)(i) of this section, the GB cod
PSC for each such permit or CPH shall be based upon the GB cod PSC available after accounting for the GB cod PSC calculated pursuant to paragraph (b)(1)(i)(E)(2)(i) of this section. To determine the GB cod
PSC for each of these permits, the sum of the individual permit's landings of GB cod available in the NMFS dealer database for fishing years 1996 through 2006 shall be divided by the total landings of GB cod during that period by the total landings of GB cod by permits eligible to join sectors as of May 1, 2008, during that period, after subtracting the total landings of GB cod by permits that committed to participate in either the GB Cod Hook Sector or GB Cod Fixed Gear
Sector as of March 1, 2008. This individual share shall then be multiplied by the available GB cod PSC calculated by subtracting the GB cod PSC allocated pursuant to paragraph (b)(1)(i)(E)(2)(i) of this section from one. The PSC calculated pursuant to this paragraph
(b)(1)(i)(E)(2)(ii) shall then be multiplied by a factor of 1/PSC of remaining permits as of July 1 of each year, unless another date is specified by the Regional Administrator, to calculate the GB cod PSC for each permit.
* * * * *
(iii) * * *
(C) ACE buffer. At the beginning of each fishing year, NMFS shall withhold 20 percent of a sector's ACE for each stock for a period of up to 61 days (i.e., through June 30), unless otherwise specified by NMFS, to allow time to process any ACE transfers submitted at the end of the fishing year pursuant to paragraph (b)(1)(viii) of this section and to determine whether the ACE allocated to any sector needs to be reduced, or any overage penalties need to be applied to individual permits/ vessels in the current fishing year to accommodate an ACE overage by that sector during the previous fishing year, as specified in paragraph
(b)(1)(iii) of this section.
* * * * *
(v) * * *
(B) Independent third-party monitoring program. A sector must comply with any dockside/roving monitoring program specified by NMFS for fishing years 2011 and 2012, pursuant to paragraph (b)(1)(v)(B)(1) of this section, including the dockside/roving monitoring operational standards specified in paragraph (b)(5) of this section, and develop and implement an independent third-party dockside/roving monitoring program by fishing year 2013. A sector must also develop and implement an at-sea or electronic monitoring program by fishing year 2012 (May 1, 2012) consistent with paragraph (b)(1)(v)(B)(2) of this section. Both the dockside/roving and at-sea or electronic monitoring program developed by sectors must be approved by NMFS for monitoring landings and utilization of sector ACE, as specified in this paragraph
(b)(1)(v)(B). Any service provider providing dockside/roving and at-sea or electronic monitoring services pursuant to this paragraph
(b)(1)(v)(B) must meet the service provider standards specified in paragraph (b)(4) of this section, and any dockside/roving and at-sea or electronic monitoring program proposed by sectors must meet the operational standards specified in paragraphs (b)(5) and (b)(6) of this section, respectively, and be approved by NMFS in a manner consistent with the Administrative Procedure Act. None of the costs associated with any dockside/roving monitor or at-sea or electronic monitoring requirements shall be paid by the owner or operator of a vessel subject to these requirements during fishing years 2011 and 2012. Starting in fishing year 2013, sectors shall be responsible for paying the costs associated with dockside/roving and at-sea or electronic monitoring coverage, unless otherwise instructed by NMFS.
(1) Dockside/roving monitoring program. Dockside/roving monitors shall monitor landings of regulated species and ocean pout at every offload for which a trip has been selected to be observed by a dockside/roving monitor, whether directly to a Federally permitted dealer or to a truck for transfer to a Federally permitted dealer, to verify such landings at the time the landings are weighed by a
Federally permitted dealer and to certify the landing weights are accurate as reported on the dealer report. Unless otherwise specified in this part, the level of coverage for landings is specified in paragraph (b)(1)(v)(B)(3) of this section. To ensure that these levels of coverage are achieved, if a trip has been selected to be observed by a dockside/roving monitor, all offloading events associated with that trip, regardless of how many or the location of offloading events, must be monitored, and a vessel may not offload any of its catch until the dockside/roving monitor arrives. For example, if a trip is selected to be observed by a dockside/roving monitor, a vessel offloading at more than one dealer or facility must have a dockside/roving monitor present during the offload at each location. All landing events at remote ports that are selected to be observed by a dockside/roving
Page 11888
monitor must have a roving monitor present to witness offload activities to the truck, as well as a dockside monitor present at each dealer to certify weigh-out of all landings. Any service provider providing dockside/roving monitoring services pursuant to this paragraph (b)(1)(v)(B)(1) must meet the service provider standards specified in paragraph (b)(4) of this section. The details of the dockside/roving monitoring program used by each sector starting in fishing year 2013 pursuant to paragraph (b)(1)(v)(B) of this section must be specified in the sector's operations plan, and must be consistent with the operational standards specified in paragraph (b)(5) of this section. The Regional Administrator shall review the dockside/ roving monitoring program and approve/disapprove it as part of the yearly operations plan in a manner consistent with the Administrative
Procedure Act. Common pool vessels operating under the provisions of the either a limited access Northeast multispecies Small Vessel
Category permit or Handgear A permit, as specified at Sec. Sec. 648.82(b)(5) and (b)(6), respectively, or an open access Northeast multispecies Handgear B permit, as specified at Sec. 648.88(a), are exempt from the dockside/roving monitoring requirements specified in this paragraph (b)(1)(v)(B)(1). Except as provided in this paragraph
(b)(1)(v)(B)(1), all common pool and sector vessels, along with service providers providing dockside monitoring services, will be subject to the dockside monitoring operational requirements specified at Sec. 648.87(b)(5).
(2) At-sea or electronic monitoring program. Beginning in fishing year 2012, in addition to any dockside/roving monitoring requirement implemented pursuant to paragraph (b)(1)(v)(B)(1) of this section, an at-sea or electronic monitoring program must be implemented by each sector to verify area fished, as well as catch and discards by species and gear type. A sector may elect to develop an at-sea or electronic monitoring program before fishing year 2012 and specify the details of such a program in its operations plan. Electronic monitoring may be used in place of actual observers if the technology is deemed sufficient by NMFS for a specific trip type based on gear type and area fished, in a manner consistent with the Administrative Procedure Act.
No electronic monitoring technology may be used in place of an at-sea monitor, unless approved by NMFS as part of the sector's annual operations plan. If either an at-sea monitor or electronic monitoring is assigned to a particular trip, a vessel may not leave port without the appropriate at-sea monitor or electronic monitoring equipment on board. The at-sea or electronic monitoring program developed and implemented by each sector must be consistent with the operational standards specified in paragraph (b)(6) of this section, with details of the program specified in the sector's annual operations plan. The
Regional Administrator shall review the at-sea or electronic monitoring program and approve/disapprove it as part of the annual operations plan in a manner consistent with the Administrative Procedure Act. The level of coverage for operations by sector vessels is specified in paragraph
(b)(1)(v)(B)(3) of this section.
(3) Coverage levels. Except as specified in paragraph
(b)(1)(v)(B)(3)(i), any service provider providing dockside/roving or at-sea or electronic monitoring services required under this paragraph
(b)(1)(v)(B)(3) must provide coverage that is fair and equitable, and distributed in a statistically random manner among all trips such that coverage is representative of fishing activities by all vessels within the common pool or each sector, and by all operations of common pool vessels or vessels operating in each sector throughout the fishing year.
(i) Dockside/roving monitoring. For fishing years 2011 and 2012,
NMFS shall determine the level of coverage for any NMFS-sponsored dockside/roving monitoring program specified pursuant to paragraph
(b)(1)(v)(B)(1) of this section based on available funding. If 100- percent coverage of all sector and common pool trips is not possible,
NMFS shall first provide coverage to trips without an observer or at- sea monitor assigned pursuant to Sec. 648.11(k), or approved electronic monitoring equipment assigned pursuant to paragraph
(b)(1)(v)(B) of this section for sector vessels. Starting in fishing year 2013, at least 20 percent of all sector and common pool trips shall be monitored by dockside/roving monitors.
(ii) At-sea or electronic monitoring. For fishing year 2012, coverage levels for an at-sea or electronic monitoring program developed by a sector shall be specified by NMFS based upon the amount of funding available to support sector at-sea or electronic monitoring programs for that fishing year. Starting in fishing year 2013, coverage levels for an at-sea or electronic monitoring program shall be specified by NMFS, but shall be less than 100 percent of all sector trips. Such coverage levels must be sufficient to at least meet the
Standardized Bycatch Reporting Methodology and accurately monitor sector operations. In the event that a NMFS-sponsored observer and a third-party at-sea monitor are assigned to the same trip, only the NMFS observer is required to observe that trip.
(4) Hail reports. For the purposes of the dockside/roving and at- sea monitoring requirements specified in this paragraph (b)(1)(v)(B), sector vessels must submit all hail reports for a sector trip in which the NE multispecies catch applies against the ACE allocated to a sector, as specified in this part, to service providers offering dockside/roving and at-sea monitoring services pursuant to this paragraph (b)(1)(v)(B). The mechanism and timing of the transmission of such hail reports must be consistent with instructions provided by the
Regional Administrator for any dockside/roving monitoring program required by paragraph (b)(1)(v)(B)(1) of this section, or specified in the annual sector operations plan, consistent with paragraphs (b)(5) and (b)(6) of this section.
(5) Notification of service provider change. If for any reason a sector decides to change approved service providers used to provide dockside/roving or at-sea or electronic monitoring services required in this paragraph (b)(1)(v), the sector manager must first inform NMFS in writing in advance of the effective date of the change in approved service providers in conjunction with the submission of the next weekly sector catch report specified in paragraph (b)(1)(vi)(B) of this section. A sector may employ more than one service provider at any time, provided any service provider employed by a sector meets the standards specified in paragraph (b)(4) of this section.
* * * * *
(viii) ACE transfers. All or a portion of a sector's ACE for any NE multispecies stock may be transferred to another sector at any time during the fishing year and up to 2 weeks into the following fishing year (i.e., through May 14), unless otherwise instructed by NMFS, to cover any overages during the previous fishing year. A sector is not required to transfer ACE to another sector. An ACE transfer only becomes effective upon approval by NMFS, as specified in paragraph
(b)(1)(viii)(B) of this section.
* * * * *
(C) Duration of transfer. Notwithstanding ACE carried over into the next fishing year pursuant to paragraph (b)(1)(i)(C) of this section,
ACE transferred pursuant to this
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paragraph (b)(1)(viii) is only valid for the fishing year in which the transfer is approved, with the exception of ACE transfer requests that are submitted up to 2 weeks into the subsequent fishing year to address any potential ACE overages from the previous fishing year, as provided in paragraph (b)(1)(iii) of this section, unless otherwise instructed by NMFS.
* * * * *
(2) Operations plan and sector contract. To be approved to operate, each sector must submit an operations plan and preliminary sector contract to the Regional Administrator no later than September 1 prior to the fishing year in which the sector intends to begin operations, unless otherwise instructed by NMFS. A final roster, sector contract, and list of Federal and State permits held by participating vessels for each sector must be submitted by December 1 prior to the fishing year in which the sector intends to begin operations, unless otherwise instructed by NMFS. The operations plan may cover a 1- or 2-year period, provided the analysis required in paragraph (b)(3) of this section is sufficient to assess the impacts of sector operations during the 2-year period and that sector membership, or any other parameter that may affect sector operations during the second year of the approved operations plan, does not differ to the point where the impacts analyzed by the supporting NEPA document are compromised. Each vessel and vessel operator and/or vessel owner participating in a sector must agree to and comply with all applicable requirements and conditions of the operations plan specified in this paragraph (b)(2) and the letter of authorization issued pursuant to paragraph (c)(2) of this section. It shall be unlawful to violate any such conditions and requirements unless such conditions or restrictions are identified in an approved operations plan as administrative only. If a proposed sector does not comply with the requirements of this paragraph (b)(2),
NMFS may decline to propose for approval such sector operations plans, even if the Council has approved such sector. At least the following elements must be contained in either the final operations plan or sector contract submitted to NMFS:
* * * * *
(5) Dockside monitoring operational standards. In addition to the independent third-party monitoring provider standards specified in paragraph (b)(4) of this section, any dockside monitoring program developed by NMFS pursuant to paragraph (b)(1)(v)(B)(1) of this section must meet the following operational standards to be approved by NMFS:
(ii) * * *
(E) Inspection of fish holds. A dockside/roving monitor assigned to observe the offloading of fish from a particular trip shall inspect the fish holds, or any other areas of the vessel in which fish are stored, to determine if all fish are offloaded for that particular trip.
* * * * *
(c) * * *
(2) * * *
(i) Regulations that may not be exempted for sector participants.
The Regional Administrator may not exempt participants in a sector from the following Federal fishing regulations: NE multispecies year-round closure areas; permitting restrictions (e.g., vessel upgrades, etc.); gear restrictions designed to minimize habitat impacts (e.g., roller gear restrictions, etc.); and reporting requirements. For the purposes of this paragraph (c)(2)(i), the DAS reporting requirements specified at Sec. 648.82; the SAP-specific reporting requirements specified at
Sec. 648.85; and the reporting requirements associated with a dockside monitoring program specified in paragraph (b)(5)(i) of this section are not considered reporting requirements, and the Regional Administrator may exempt sector participants from these requirements as part of the approval of yearly operations plans. This list may be modified through a framework adjustment, as specified in Sec. 648.90.
* * * * *
(d) * * *
(20) State of Maine Permit Banking Sector.
(21) State of Rhode Island Permit Bank sector.
(22) State of New Hampshire Permit Bank Sector.
(23) State of Massachusetts Permit Bank Sector.
(24) Sustainable Harvest Sector III. 8. In Sec. 648.88, revise paragraph (a)(1), and add paragraph
(a)(2)(iv) to read as follows:
Sec. 648.88 Multispecies open access permit restrictions.
(a) * * *
(1) The vessel may possess and land up to 75 lb (90.7 kg) of cod, and up to the landing and possession limit restrictions for other NE multispecies specified in Sec. 648.86, provided the vessel complies with the restrictions specified in paragraph (a)(2) of this section. If either the GOM or GB cod trip limit applicable to a vessel fishing under a NE multispecies DAS permit, as specified in Sec. 648.86(b)(1) and (2), respectively, is adjusted by NMFS, the cod trip limit specified in this paragraph (a)(1) shall be adjusted proportionally
(rounded up to the nearest 25 lb (11.3 kg)). For example, if the GOM cod trip limit specified at Sec. 648.86(b)(1) doubled, then the cod trip limit for the Handgear B category fishing in the GOM Regulated
Mesh Area would also double to 150 lb (68 kg).
(2) * * *
(iv) Declaration. To fish for GB cod south of the GOM Regulated
Mesh Area, as defined at Sec. 648.80(a)(1), a vessel owner or operator must obtain, and retain on board, a letter of authorization from the
Regional Administrator declaring his or her intent to fish south of the
GOM Regulated Mesh Area, and may not fish in any other area for a minimum of 7 consecutive days from the effective date of the letter of authorization. Such a vessel may transit the GOM Regulated Mesh Area, provided that their gear is stowed in accordance with the provisions at
Sec. 648.23(b).
* * * * * 9. In Sec. 648.89, revise paragraph (e)(1) to read as follows:
Sec. 648.89 Recreational and charter/party vessel restrictions.
* * * * *
(e) * * *
(1) GOM Closed Areas. Unless otherwise specified in this paragraph
(e)(1) of this section, a vessel fishing under charter/party regulations may not fish in the GOM closed areas specified at Sec. 648.81(d)(1) through (f)(1) during the time periods specified in those paragraphs, unless the vessel has on board a valid letter of authorization issued by the Regional Administrator pursuant to Sec. 648.81(f)(2)(iii) and paragraph (e)(3) of this section. The conditions and restrictions of the letter of authorization must be complied with for a minimum of 3 months if the vessel fishes or intends to fish in the seasonal GOM closure areas; or for the rest of the fishing year, beginning with the start of the participation period of the letter of authorization, if the vessel fishes or intends to fish in the year- round GOM closure areas. A vessel fishing under charter/party regulations may not fish in the GOM Cod Spawning Protection Area specified at Sec. 648.81(o)(1) during the time period specified in that paragraph, unless the vessel complies with the requirements specified at Sec. 648.81(o)(2)(iii).
* * * * * 10. In Sec. 648.90, revise paragraph (a)(4)(iii)(E)(2) to read as follows:
Page 11890
Sec. 648.90 NE multispecies assessment, framework procedures and specifications, and flexible area action system.
(a) * * *
(4) * * *
(iii) * * *
(E) * * *
(2) Commercial allocation. The ABC/ACL for regulated species or ocean pout stocks available to the commercial NE multispecies fishery, after consideration of the recreational allocation pursuant to paragraph (a)(4)(iii)(E)(1) of this section, shall be divided between sectors operating under an approved sector operations plan, as described at Sec. 648.87(c), and vessels operating under the provisions of the common pool, as defined in this part, based upon the cumulative PSCs of vessels/permits participating in sectors calculated pursuant to Sec. 648.87(b)(1)(i)(E). Unless otherwise specified in paragraph (a)(5) of this section, regulated species or ocean pout catch by common pool and sector vessels shall be deducted from the sub-ACL/
ACE allocated pursuant to this paragraph (a)(4)(iii)(E)(2) for the purposes of determining whether adjustments to common pool measures are necessary, pursuant to the common pool AMs specified in Sec. 648.82(n), or whether sector ACE overages must be deducted, pursuant to
Sec. 648.87(b)(1)(iii).
* * * * *
FR Doc. 2011-4395 Filed 2-28-11; 11:15 am
BILLING CODE 3510-22-P
