[Federal Register Volume 73, Number 18 (Monday, January 28, 2008)]
[Rules and Regulations]
[Pages 4736-4758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1436]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070627217-7523-02]
RIN 0648-AV70


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Region Standardized Bycatch Reporting Methodology Omnibus Amendment

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS is implementing approved management measures contained in 
the Standardized Bycatch Reporting Methodology (SBRM) Omnibus Amendment 
(SBRM Amendment) to the Fishery Management Plans (FMPs) of the 
Northeast Region, developed by the Mid-Atlantic and New England Fishery 
Management Councils (Councils). The SBRM Amendment establishes an SBRM 
for all 13 Northeast Region FMPs, as required under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). 
The measures include: Bycatch reporting and monitoring mechanisms; 
analytical techniques and allocation of at-sea fisheries observers; an 
SBRM performance standard; a review and reporting process; framework 
adjustment and annual specifications provisions; a prioritization 
process; and provisions for industry-funded observers and observer set-
aside programs.

DATES: This final rule is effective February 27, 2008.

[[Page 4737]]


ADDRESSES: Copies of the SBRM Amendment, and of the Environmental 
Assessment (EA), with its associated Finding of No Significant Impact 
(FONSI), and the Regulatory Impact Review (RIR), are available from 
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management 
Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 
19901-6790; and from Paul J. Howard, Executive Director, New England 
Fishery Management Council, 50 Water Street, Newburyport, MA 01950. The 
EA/FONSI/RIR is also accessible via the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Michael Pentony, Senior Fishery Policy 
Analyst, 978-281-9283.

SUPPLEMENTARY INFORMATION:

Background

    This final rule implements approved management measures contained 
in the Northeast Region Omnibus SBRM Amendment, which was approved by 
NMFS on behalf of the Secretary of Commerce (Secretary) on October 22, 
2007. A proposed rule for this action was published on August 21, 2007 
(72 FR 46588), with public comments accepted through September 20, 
2007. A subsequent publication extended this comment period through 
September 24, 2007 (72 FR 53751).
    Section 303(a)(11) of the Magnuson-Stevens Act requires that all 
FMPs ``establish a standardized reporting methodology to assess the 
amount and type of bycatch occurring in the fishery.'' In 2004, several 
conservation organizations challenged the approval of two major 
amendments to Northeast Region FMPs. In ruling on these suits, the U.S. 
District Court for the District of Columbia found that the FMPs did not 
clearly establish an SBRM as required under the relevant section of the 
Magnuson-Stevens Act and remanded the amendments back to the agency to 
fully develop and establish the required SBRM [See, Oceana, Inc., v. 
Evans, 2005, WL 555416 (D.D.C. Mar 9, 2005)(Oceana I); and Oceana, 
Inc., v. Evans, 384 F. Supp 2d 203 (D.D.C. 2005)(Oceana II)]. In 
particular, the Court found that the amendments (1) failed to fully 
evaluate reporting methodologies to assess bycatch, (2) did not mandate 
an SBRM, and (3) failed to respond to potentially important scientific 
evidence.
    In response, the Councils, working closely with NMFS, undertook 
development of a remedy that would address all Northeast Region FMPs. 
In January 2006, development began on the Northeast Region Omnibus SBRM 
Amendment. This amendment covers 13 FMPs, 39 managed species, and 14 
types of fishing gear. The purpose of the amendment is to: Explain the 
methods and processes by which bycatch is currently monitored and 
assessed for Northeast Region fisheries; determine whether these 
methods and processes need to be modified and/or supplemented; 
establish standards of precision for bycatch estimation for all 
Northeast Region fisheries; and, thereby, document the SBRM established 
for all fisheries managed through the FMPs of the Northeast Region. The 
amendment also responds to the ``potentially important scientific 
evidence'' cited by the Court in the two decisions referenced above.
    The Northeast Region SBRM Amendment establishes an SBRM comprised 
of seven elements: (1) The methods by which data and information on 
discards are collected and obtained; (2) the methods by which the data 
obtained through the mechanisms identified in element 1 are analyzed 
and utilized to determine the appropriate allocation of at-sea 
observers; (3) a performance measure by which the effectiveness of the 
Northeast Region SBRM can be measured, tracked, and utilized to 
effectively allocate the appropriate number of observer sea days; (4) a 
process to provide the Councils with periodic reports on discards 
occurring in Northeast Region fisheries and on the effectiveness of the 
SBRM; (5) a measure to enable the Councils to make changes to the SBRM 
through framework adjustments and/or annual specification packages 
rather than full FMP amendments; (6) a process to provide the Councils 
and the public with an opportunity to consider, and provide input into, 
the decisions regarding prioritization of at-sea observer coverage 
allocations; and (7) to implement consistent, cross-cutting observer 
service provider approval and certification procedures and to enable 
the Councils to implement either a requirement for industry-funded 
observers or an observer set-aside program through a framework 
adjustment rather than an FMP amendment.

Bycatch Reporting and Monitoring Mechanisms

    The amendment maintains the status quo methods by which data and 
information on discards occurring in Northeast Region fisheries are 
collected and obtained. The Northeast Region SBRM will employ sampling 
designs developed to minimize bias to the maximum extent practicable. 
The Northeast Fisheries Observer Program (NEFOP) continues to serve as 
the primary mechanism to obtain data on discards in all Northeast 
Region commercial fisheries managed under one or more of the subject 
FMPs. All subject FMPs will continue to require vessels permitted to 
participate in said fisheries to carry an at-sea observer upon request, 
and all data obtained by the NEFOP under this SBRM will be collected 
according to the techniques and protocols established and detailed in 
the Fisheries Observer Program Manual and the Biological Sampling 
Manual. Data collected by the NEFOP include, but are not limited to, 
the following items: Vessel name; date/time sailed; date/time landed; 
steam time; crew size; home port; port landed; dealer name; fishing 
vessel trip report (FVTR) serial number; gear type(s) used; number/
amount of gear; number of hauls; weather; location of each haul 
(beginning and ending latitude and longitude); species caught; 
disposition (kept/discarded); reason for discards; and weight of catch. 
These data are collected on all species of biological organisms caught 
by the fishing vessel and brought on board, including species managed 
under the subject FMPs, but also including species of non-managed fish, 
invertebrates, and marine plants. To obtain information on discards 
occurring in recreational fisheries subject to a Northeast Region FMP, 
the Northeast Region SBRM fully will incorporate, to the extent 
practicable and appropriate for the Region, all surveys and data 
collection mechanisms implemented by NMFS and affected states as a 
result of the agency-wide redesign of the Marine Recreational Fisheries 
Statistics Survey (MRFSS) Program.

Analytical Techniques and Allocation of At-sea Fisheries Observers

    The amendment substantially expands and refines the status quo 
methods by which the data obtained through the mechanisms included 
above are analyzed and utilized to determine the appropriate allocation 
of at-sea observers to fully incorporate all managed species and all 
relevant fishing gear types in the Northeast Region. At-sea fisheries 
observers will, to the maximum extent possible and subject to available 
resources, be allocated and assigned to fishing vessels according to 
the procedures established through the amendment. All appropriate 
filters identified in the amendment will be applied to the results of 
the analysis to determine the observer coverage levels needed to 
achieve the objectives of the SBRM.

[[Page 4738]]

SBRM Performance Standard

    The amendment is intended to ensure that the data collected under 
the Northeast Region SBRM are sufficient to produce a coefficient of 
variation (CV) of the discard estimate of no more than 30 percent, in 
order to ensure that the effectiveness of the Northeast Region SBRM can 
be measured, tracked, and utilized to effectively allocate the 
appropriate number of observer sea days. Each year, the Regional 
Administrator and the Science and Research Director will, subject to 
any external operational constraints, allocate at-sea observer coverage 
to the applicable fisheries of the Northeast Region sufficient to 
achieve a level of precision (measured as the CV) no greater than 30 
percent for each applicable species and/or species group, subject to 
the use of the filters noted above.

SBRM Review and Reporting Process

    The amendment requires an annual report on discards occurring in 
Northeast Region fisheries to be prepared by NMFS and provided to the 
Councils, and a report every 3 years that evaluates the effectiveness 
of the Northeast Region SBRM. Every 3 years, the Regional Administrator 
and the Science and Research Director will appoint appropriate staff to 
work with staff appointed by the Executive Directors of the Councils to 
obtain and review available data on discards and to prepare a report 
assessing the effectiveness of the Northeast Region SBRM. This report 
will include, at a minimum: (1) A review of the recent levels of 
observer coverage in each applicable fishery; (2) a review of recent 
observed encounters with each species in each fishery, and a summary of 
observed discards by weight; a review of the CV of the discard 
information collected for each fishery; (4) an estimate of the total 
discards associated with each fishery; (5) an evaluation of the 
effectiveness of the SBRM at meeting the performance standard for each 
fishery; (6) a description of the methods used to calculate the 
reported CVs and to determine observer coverage levels, if those 
methods are different from those described and evaluated in the SBRM 
Amendment; (7) an updated assessment of potential sources of bias in 
the sampling program and analyses of accuracy; and (8) an evaluation of 
the implications for management of the discard information collected 
under the SBRM, for any cases in which the evaluation performed for 
item 5 indicates that the performance standard is not met. Once each 
year, the Science and Research Director will present to the Councils a 
report on catch and discards occurring in Northeast Region fisheries, 
as reported to the NEFOP by at-sea fisheries observers. This annual 
discard report will include: (1) The number of observer sea days 
scheduled for each fishery, by area and gear type, in each quarter; (2) 
the percent of total trips observed, by gear type, in each quarter; (3) 
the distribution of sea sampling trips by gear type and statistical 
area in each fishery; (4) the observed catch and discards of each 
species, by gear type and fishery, in each quarter; and (5) the 
observed catch and discards of each species, by gear type and fishery, 
in each statistical area.

Framework Adjustment and/or Annual Specification Provisions

    The amendment enables the Councils to make changes to certain 
elements of the SBRM through framework adjustments and/or annual 
specification packages rather than full FMP amendments. All subject 
FMPs provide for an efficient process to modify aspects of the 
Northeast Region SBRM, as relates to each specific FMP, should the need 
arise and the appropriate Council determine that a change to the SBRM 
is warranted and needed to address a contemporary management or 
scientific issue. Depending on the provisions of each FMP, changes to 
the SBRM may be effected either through a framework adjustment to the 
FMP or through annual or periodic specifications. Such changes to the 
SBRM may include modifications to the CV-based performance standard, 
the means by which discard data are collected/obtained in the fishery, 
reporting on discards or the SBRM, or the stratification (modes) used 
as the basis for SBRM-related analyses. Such changes may also include 
the establishment of a requirement for industry-funded observers and/or 
observer set-aside provisions.

Prioritization Process

    The amendment establishes a process to provide the Councils and the 
public with an opportunity to consider, and provide input into, the 
decisions regarding prioritization of at-sea observer coverage 
allocations, if the expected resources necessary may not be available. 
In any year in which external operational constraints would prevent 
NMFS from fully implementing the required at-sea observer coverage 
levels, the Regional Administrator and Science and Research Director 
will consult with the Councils to determine the most appropriate 
prioritization for how the available resources should be allocated. In 
order to facilitate this consultation, in these years, the Regional 
Administrator and the Science and Research Director will provide the 
Councils, at the earliest practicable opportunity: (1) The at-sea 
observer coverage levels required to attain the SBRM performance 
standard in each applicable fishery; (2) the coverage levels that would 
be available if the resource shortfall were allocated proportionately 
across all applicable fisheries; (3) the coverage levels that 
incorporate the recommended prioritization; and (4) the rationale for 
the recommended prioritization. The recommended prioritization should 
be based on: Meeting the data needs of upcoming stock assessments; 
legal mandates of the agency under other applicable laws, such as the 
Marine Mammal Protection Act (MMPA) and the Endangered Species Act 
(ESA); meeting the data needs of upcoming fishery management actions, 
taking into account the status of each fishery resource; improving the 
quality of discard data across all fishing modes; and/or any other 
criteria identified by NMFS and/or the Councils. The Councils may 
choose to accept the proposed observer coverage allocation or to 
recommend revisions or additional considerations for the prioritized 
observer allocations ultimately adopted and implemented by the Regional 
Administrator and the Science and Research Director.

Industry-Funded Observers and Observer Set-Aside Program Provisions

    The amendment implements consistent, cross-cutting observer service 
provider approval and certification procedures and enables the Councils 
to implement either a requirement for industry-funded observers and/or 
an observer set-aside program through a framework adjustment, rather 
than an FMP amendment.

Comments and Responses

    A total of 11 individual comment letters were received on the 
proposed rule and the amendment.
    Comment 1: A letter by representatives of a professional 
association for at-sea fisheries observers raised concerns regarding 
the provision of the SBRM Amendment that establishes observer 
certification and approval procedures to allow a multiple service 
delivery model under an industry-funded observer program. The 
commenters specifically focused on concerns related to the contractual 
relationship that would be established between the observer service 
provider

[[Page 4739]]

and the fishing vessel, rather than between the observer service 
provider and NMFS. The commenters refer to experience with a similar 
model utilized in Alaska under the North Pacific Groundfish Observer 
Program. The commenters cautioned that, in their opinion, such a 
contractual relationship may reduce the reliability of the data 
collected by the at-sea observers due to the potential for bias and 
conflict of interest. The commenters also cited concerns over quality 
control of the data due to the lack of direct oversight by the agency. 
To remedy the potential problems they identified, the commenters 
suggested that NMFS evaluate the performance of approved observer 
service providers on an annual basis, increase Federal funding for 
observers contracted by and paid for by NMFS, and/or utilize an 
independent non-profit organization (either an existing organization 
such as the Atlantic States Marine Fisheries Commission or an 
organization created specifically for this purpose) to provide an 
``arms-length'' relationship between the fishing industry, NMFS, and 
observer service providers.
    Response: NMFS acknowledges that a perceived conflict of interest 
could be a potential issue for some types of industry-funded observer 
programs. Rigorous data quality assurance and control standards, 
observer training and certification programs, and frequent reviews and 
oversight of the observer data collection programs are all means to 
address these concerns. NMFS acknowledges that some of the issues 
raised by the commenter regarding the North Pacific Groundfish Observer 
Program have been previously identified as potential concerns with that 
model, but notes that there are significant differences between the 
North Pacific program and the single industry-funded program that is 
currently in place in the Northeast Region. These differences include 
the observer set-aside that is an important component of the Northeast 
sea scallop observer program and serves to mitigate the conflict of 
interest concerns by providing a mechanism to offset the added cost to 
sea scallop fishing vessels of carrying an observer. Also, to minimize 
the likelihood that an observer would develop ties to a vessel owner/
operator and/or feel pressure by a vessel owner/operator to misreport, 
the regulations prohibit observer service providers from consecutively 
deploying the same observer on the same vessel and from deploying an 
observer on the same vessel more than twice per month.
    While NMFS shares some of the concerns identified by the commenters 
relative to the need to ensure that there is no real or perceived 
conflict of interest between the at-sea observers and the fishing 
vessels, and to ensure reliable, high quality data are collected and 
reported, none of these concerns are immediately applicable to this 
rulemaking. The regulatory changes implemented in this final rule 
merely establish the procedures that potential observer service 
providers must follow to be considered for approval, and the standards 
that they must meet on a continuing basis to maintain their 
certification to serve in the Northeast Region. However, excepting the 
sea scallop observer program that was formally implemented under a 
separate rulemaking (72 FR 32549, June 13, 2007), no other fisheries in 
the Northeast Region are operating under an industry-funded observer 
requirement that would utilize these regulations. This action makes no 
changes to the regulations or procedures established under Amendment 13 
to the Sea Scallop FMP, other than to generalize the observer 
certification procedures to apply more broadly than for the sea scallop 
fishery alone. The intent of this action was to create a more efficient 
process for the Councils to develop future industry-funded programs, 
should the need arise in any fishery. Actual implementation of an 
industry-funded observer program that would enable fishing vessels to 
select from a list of approved observer service providers would require 
the appropriate Council to initiate, develop, and have approved such a 
program for each particular fishery.
    The development of future Council fishery management actions to 
implement any additional industry-funded observer programs provides the 
appropriate opportunity to ensure that the programs fully address the 
data quality concerns and limitations noted by the commenters. NMFS is 
committed to ensuring that data collected and provided by at-sea 
fisheries observers are of the highest-possible quality and meet all 
applicable standards for reliability, precision, and accuracy. Any 
proposal by a Council to implement a future industry-funded observer 
program, such as is currently in place for the sea scallop fishery, 
would be reviewed to ensure it fully explains and justifies how the 
data to be obtained through the program meet all appropriate quality 
standards.
    Comment 2: One member of the public endorsed the comments of the 
observers' professional association, voicing his concern over industry-
funded observer programs as exist in Alaska under the North Pacific 
Groundfish Observer Program. The commenter added, however, that his 
concerns do not refer to the sea scallop observer program that is 
linked to an observer set-aside program to offset the costs to the 
vessels of carrying an observer. The commenter is most concerned with 
the perceptions of conflict of interest that can arise under situations 
where the observer service provider is contractually linked, and 
dependent on, the fishing vessels rather than NMFS.
    Response: The response above to comment 1 addresses the majority of 
the points raised by the commenter. As noted by the commenter, observer 
set-aside programs, such as the Northeast sea scallop program, mitigate 
many of these concerns by providing a mechanism to offset the added 
cost to the vessel of carrying an observer. While there is no 
requirement to do so, NMFS fully anticipates that any program developed 
by a Council to implement an industry-funded observer program would be 
directly associated with an observer set-aside program that offsets the 
additional costs to the vessels. No such program is currently proposed 
or under development by either Council, but the SBRM Amendment provides 
a mechanism for the Councils to develop and propose a set-aside program 
that uses quota, days-at-sea, increased trip limits, or other means to 
compensate fishing vessels that carry observers.
    Comment 3: The comments submitted by a public interest 
environmental organization were very similar to those of the observers' 
professional association. The commenters oppose changing the NEFOP to a 
model based on the North Pacific Groundfish Observer Program, in which 
the industry finances the observer program through independent 
contracts with observer service providers. The commenters raised 
concerns regarding the appearance of a conflict of interest between the 
fishing vessels and the observer service providers, a threat of bias in 
the data collection, creating an economic incentive to avoid 
observation, less transparency of observer data, and a lack of control 
on harassment of an interference with observers. The comment letter 
also expressed concern that the SBRM would discourage monitoring for 
marine mammals and other non-bycatch related monitoring.
    Response: Although the commenters in this case appear to have 
misunderstood the intent of the SBRM Amendment, NMFS takes their 
concerns seriously. The response above to comment 1 addresses the 
majority of the concerns raised by the commenters, but NMFS points out 
that the commenters

[[Page 4740]]

claim that the SBRM Amendment effects a ``conversion'' of the NEFOP 
from one controlled by NMFS to an industry-funded program. This is not 
the case. The SBRM Amendment provides a mechanism for the Councils to 
develop and propose industry-funded observer programs that would serve 
to supplement the existing NMFS-funded observer program, but this 
action neither implements nor requires such a program. Currently, the 
Councils are free to develop and propose such a system (as was done in 
Amendment 13 to the Sea Scallop FMP); the SBRM Amendment allows the 
Councils to use the framework adjustment process to propose a similar 
program instead of requiring a full FMP amendment. NMFS fully 
anticipates that any such program would include an observer set-aside 
mechanism, such as exists for the sea scallop fishery. As noted above 
and by other commenters, such a mechanism mitigates many of the 
concerns raised by the commenters.
    NMFS disagrees with the commenter that such a system, should one be 
proposed by a Council and implemented by NMFS, would result in industry 
``control'' of the observer program. The regulations at 50 CFR 
648.11(h) and (i) provide extensive and detailed procedures that must 
be followed by all observer service providers in order to obtain and 
maintain NMFS certification as valid service providers. These 
regulations specifically address the issues of potential conflicts of 
interest (Sec.  648.11(h)(6)), harassment of or interference with 
observers (Sec.  648.11(h)(5)(vii)(F)), and data transparency (Sec.  
648.11(h)(5)(vii)(A)). Regarding the concerns raised about the 
availability of the ``raw'' observer data, the regulations at Sec.  
648.11(h)(5)(vii)(A) require that, in addition to providing summary 
data within 12 hours of landing, that the observer service providers 
``provide the raw (unedited) data collected by the observer to NMFS 
within 72 hours of the trip landing.'' Regarding the commenters' 
opinion that the plan creates an economic incentive to evade 
observation, this claim does not take into account that observer set-
aside programs in many ways may actually create an incentive to be 
observed, as a set-aside program would grant a vessel extra quota, 
trips, DAS, or increased possession limits in exchange for carrying an 
observer.
    The commenters are also incorrect that the plan ``discourages'' 
marine mammal monitoring. NMFS acknowledges in the SBRM Amendment the 
importance of its mandate under other applicable laws, such as the MMPA 
and the Migratory Bird Act, but the focus of the SBRM is on those 
living marine resources defined as fish and bycatch under the Magnuson-
Stevens Act. Only the Magnuson-Stevens Act requires an SBRM to be 
established, and the Magnuson-Stevens Act specifically excludes certain 
types of organisms, specifically marine mammals and birds, from the 
definitions.
    The commenters are mistaken to conclude that the ``SBRM is based on 
a flawed model.'' The actual SBRM established as a result of this 
action is wholly severable from the provision that authorizes the 
Councils to develop and propose an industry-funded observer program 
through a framework adjustment rather than an amendment to an FMP. The 
SBRM does not implement, require, or rely upon any industry-funded 
observer programs that may be developed and proposed by a Council in 
the future.
    Comment 4: An organization representing a coalition of fishing 
interests involved in the Atlantic herring fishery submitted comments 
critical of the field sampling protocols and procedures used by at-sea 
observers to monitor bycatch occurring in fisheries that pump their 
catch directly from the codend into the vessel hold. The commenters 
asserted that the current observer protocols for the herring fishery 
contain loopholes that were not addressed in the SBRM Amendment, due to 
the potential for unobserved catch to be released from the net without 
being brought on board the vessel for the observer to monitor. The 
commenters expressed concern regarding the lack of mandated observer 
coverage on at-sea processing vessels, which transfer catch from the 
codend of catcher vessels to the hold of the processor vessel and about 
how pair trawls are treated if an observer is aboard only one of the 
paired vessels. The commenters also expressed concern that the 
filtering procedures described in the SBRM Amendment would result in 
exclusion of certain fishing modes (such as mid-water trawls) from 
observer coverage due to low levels of coverage in the past (``the SBRM 
ensures that [the mid-water trawl] mode will be unobserved in 
perpetuity'').
    Response: All fishing vessels permitted by NMFS to operate in the 
Northeast Region under one or more of the FMPs subject to the SBRM 
Amendment are currently obligated to carry a NMFS-certified observer on 
any trip for which they are requested by the Regional Administrator to 
do so (at Sec.  648(a), (b), (c) , and (d)). This requirement does not 
change, and is, in fact, reinforced in section 1.7 of the amendment. 
This requirement, by definition, applies to herring at-sea processors. 
The commenters incorrectly claim that the SBRM excludes some fishing 
modes from observer coverage; in fact, according to the results of the 
importance filter adopted in the amendment, the coverage allocated to 
the New England mid-water trawl fishing mode, cited by the commenters 
as ``unobserved in perpetuity,'' would be 316 days, nearly twice the 
coverage level in 2004 and would represent 11.5 percent of trips taken 
in 2004. The commenters appear to misunderstand the function of the 
importance filters, which is to eliminate certain species (those for 
which the total discards in a fishing mode is a negligible proportion 
of either the total discards of that species across all fishing modes, 
or for which the total discards of that species is a negligible 
proportion of total fishing-related mortality of that species) from the 
calculation of the observer coverage allocation within a fishing mode 
(the allocation being no less than the highest coverage level of all 
species remaining after the importance filter is applied). Under no 
circumstances do the importance filters eliminate any fishing modes 
from the observer allocation process. This can be seen in Appendix C of 
the amendment in a table illustrating the results of applying the SBRM 
to the 2004 dataset. There is some level of observer coverage assigned 
to each of the 39 fishing modes addressed in the SBRM Amendment. In 
addition, the commenters asserted that the SBRM Amendment did not 
address the field sampling protocols to be used in collecting data by 
at-sea fisheries observers. This is incorrect. Section 1.7 of the SBRM 
Amendment stipulates that ``The NEFOP shall serve as the primary 
mechanism to obtain data on discards in all Northeast Region commercial 
fisheries managed under one or more of the subject FMPs,'' and that 
``all data obtained by the NEFOP under this SBRM shall be collected 
according to the techniques and protocols established and detailed in 
the Fisheries Observer Program Manual (NEFOP 2006a) and the Biological 
Sampling Manual (NEFOP 2006b).'' This section of the SBRM Amendment 
goes on to identify the minimum data fields to be collected by 
Northeast Region observers. The Fisheries Observer Program Manual and 
the Biological Sampling Manual provide general as well as specific 
instructions for at-sea observers operating on mid-water trawl, purse 
seine, and pair trawl vessels; these instructions and sampling 
priorities explicitly account, to the extent

[[Page 4741]]

practicable, for the contingencies identified by the commenters 
(including pair trawls with only one vessel observed, pumped fish, loss 
of fish in the net, etc.).
    Comment 5: A letter from an organization representing commercial 
fishermen from Cape Cod expressed concern with how the SBRM would 
perform in monitoring hard TACs (total allowable catch) and fishery 
sectors. The commenters acknowledged that at least some of the changes 
under the SBRM Amendment will improve the region's bycatch reporting, 
and characterized the importance filter process as ``crucial for 
prioritizing observer coverage.'' However, the commenters stressed 
three primary recommendations for improving the SBRM Amendment: (1) 
Ensuring that the SBRM provides a means to accurately and precisely 
quantify discards for all stocks across all stock areas; (2) 
identifying levels of monitoring coverage for sectors necessary for TAC 
management; and (3) providing a real-time, publicly-accessible, and 
transparent reporting methodology that allows for enforcement of 
accountability measures.
    Response: The commenters imply that the SBRM Amendment should have 
addressed the new requirement included in the Magnuson-Stevens 
Reauthorization Act of 2007 (MSRA) for all FMPs to include ``Annual 
Catch Limits'' (ACLs) and ``Accountability Measures'' (AMs) and 
indicate how the SBRM would perform in the face of these new 
requirements. However, the MSRA does not require ACLs and AMs be 
developed and implemented for any fishery until at least 2010 (for 
fisheries experiencing overfishing) or 2011 (for all other fisheries). 
Also, the new MSRA provision related to ACLs and AMs, by its very 
definition, applies to all catch, not just bycatch, and is a 
requirement much broader in scope than the requirement to establish an 
SBRM, which remains a separate requirement under the Magnuson-Stevens 
Act and was not modified by the MSRA. Section 1.2 of the SBRM Amendment 
acknowledges the changes promulgated through the MSRA, but explains 
that no changes to the amendment are necessary as a result. This action 
remains necessary primarily to correct deficiencies identified by the 
Court in Amendment 13 to the Northeast Multispecies FMP and Amendment 
10 to the Sea Scallop FMP in order to bring the Northeast Region FMPs 
into compliance with the requirement to establish an SBRM as specified 
as section 303(a)(11) of the Magnuson-Stevens Act. As the Councils 
embark on fishery management actions to bring the FMPs into compliance 
with the new requirements of the MSRA, changes to the SBRM established 
herein may be necessary to accommodate the specific attributes of the 
ACLs and AMs that will be developed, but such changes would address 
specific management needs that go beyond the mandate of section 
303(a)(11) to establish an SBRM to assess the amount and type of 
bycatch, which is the focus of this action. Because it is impossible at 
this time to foresee all the particular attributes of the various ACL 
and AM programs that may be developed and adopted by the two Councils 
for all 13 FMPs, and how the SBRM may need to change to accommodate 
those programs, it would be premature to attempt to craft an SBRM that 
could accommodate all possible ACL and AM outcomes, without resulting 
in an SBRM so vague and generalized as to be ineffectual at meeting its 
current objectives.
    Regarding the specific points raised by the commenter, NMFS asserts 
that the Northeast Region SBRM is wholly sufficient to quantify 
discards for all stocks across all stock areas. Data collected by at-
sea fisheries observers provide sufficient information to determine the 
specific stocks of fish discarded, and the stock areas in which the 
discard event occurred. These data can be used to apportion the 
collected discard estimates across all stocks and stock areas. This is 
illustrated in Appendix F and Appendix G of the amendment, which 
provide example data queries and analyses based on the data collected 
by at-sea observers and a sample format for the information requested 
by the Councils to be provided in annual discard reports. In both 
cases, discard data are summarized by stock and statistical area, which 
is a finer scale even than stock area (i.e., stock areas are composed 
of multiple statistical areas).
    The commenters also suggest that the SBRM must identify observer 
coverage levels for fishery sectors authorized under an FMP to provide 
for a specific level of certainty in future TAC management programs. 
The commenters appear to assume that a one-size-fits-all approach would 
be appropriate for all potential future instances of sector management. 
Sectors are unique and temporary fishery management provisions that 
authorize a collective of similar fishing vessels (e.g., hook vessels 
operating out of Cape Cod) to be granted a portion of a TAC for 1 year 
in exchange for abiding by the specific provisions and limitations 
identified in the sector management plan. Currently, there are two 
approved sectors operating in New England waters; both are authorized 
under the sector management provisions of Amendment 13 to the Northeast 
Multispecies FMP. As many as 19 additional multispecies sectors are 
under development, and the New England Council is considering adopting 
similar sector provisions in upcoming amendments to the other New 
England FMPs. The sector provisions of the Northeast Multispecies FMP 
require that the vessels interested in forming a sector prepare and 
submit annually a sector proposal that includes, among other things, 
``detailed plans for the monitoring and reporting of landings and 
discards'' (at Sec.  648.87(b)(2)(vi)). Under the sector provisions of 
the FMP, it is the responsibility of the sector proponents to propose 
how discards will be monitored and reported, while the Council and NMFS 
retain the authority to determine if the proposed plans are sufficient. 
Sector proposals developed by members of the fishing industry are 
submitted to and reviewed by the New England Council. Those approved by 
the Council are incorporated into framework adjustments to the 
Northeast Multispecies FMP and submitted to NMFS for review. At that 
time, NMFS considers the specific provisions of the proposed sector 
plan to ensure it would meet all requirements of the FMP and be 
consistent with the provisions of the Magnuson-Stevens Act and other 
applicable law. Given the variety of sector proposals currently under 
development, and the expectation of additional sector provisions 
included in the other New England FMPs, it would not be practicable to 
stipulate in this amendment the specific levels of observer coverage 
that would be necessary for each sector, as this would depend on the 
number of vessels participating, the area(s) to be fished, the target 
and likely incidental species, fishing gear(s) used, and the other 
reporting mechanisms required under each sector plan. This action is 
focused on the requirement at section 303(a)(11) of the Magnuson-
Stevens Act to develop a methodology to assess the amount and type of 
bycatch and provides a framework for modifications to the overarching 
methodology to address specific future management needs. The Councils 
recognized the need for the SBRM Amendment to be flexible enough to 
adapt to such changes, noting in section 6.9.5 of the amendment that 
because new sector programs may be implemented through a framework 
adjustment, the same framework action could be used to ``modify the 
SBRM to

[[Page 4742]]

ensure sufficient data are collected'' on discards.
    The commenters asserted that the SBRM must establish a ``real-time, 
publicly-accessible, and transparent reporting methodology.'' NMFS 
disagrees with the commenters on this point. The Magnuson-Stevens Act 
requires simply that an SBRM be established; it imposes no minimum 
legal requirements on whether this system provide data in real time, or 
the degree to which the data are publicly accessible. A ``real-time'' 
reporting system, as requested by the commenters, would require that 
data be presented in a publicly accessible medium as the discards are 
observed and documented by the at-sea fisheries observer. This would 
provide no time for the fishing trip to end, for the observer to submit 
the data to NMFS, and for NMFS to review, edit, and audit the data 
prior to publishing the data. This would severely reduce the quality of 
the data and, in so doing, diminish the usefulness and reliability of 
the discard data. Data reduction and summaries are necessary in order 
to prevent the release of sensitive and proprietary data that is 
protected under the Magnuson-Stevens Act and other Federal statutes. 
NMFS concludes that it is more appropriate to engage a full data 
quality control and assurance program, as summarized in Appendix D of 
the SBRM Amendment, in order to ensure the resulting data are of the 
highest possible quality before they are released to the public or used 
in management.
    Comment 6: A conservation organization submitted extensive comments 
on the SBRM Amendment and its proposed rule, urging that NMFS not 
approve the amendment. The comments addressed several elements of the 
SBRM Amendment, and include references to the results of a technical 
review of the amendment conducted under contract to another 
conservation organization. The responses to the comments identified in 
the technical review are addressed separately under comment 10. All 
other points raised in the comment letter are addressed in this 
response.
    The commenters, while acknowledging that the SBRM Amendment 
``dramatically'' improves upon prior documents by specifying a 
monitoring and reporting system that could be implemented, expressed 
concern that the amendment fails to actually establish this system 
because it vests NMFS with discretion as to the allocation of observer 
coverage if there are external constraints (such as an insufficient 
budget) that prevent full implementation. The commenters suggested that 
the amendment could have adopted a formal decision procedure that would 
stipulate how observers are to be allocated if there is a budget 
shortfall, such as requiring that the budget allocations be cut pro 
rata across all fishing modes, or to rank fishing modes according to a 
standard of priority and fully allocating observer coverage across 
priority modes until funding is exhausted.
    The commenters claim that the SBRM Amendment fails to mandate that 
data be reported in a rational manner useful for fisheries management, 
and that the amendment fails to establish a reporting requirement that 
provides information on the amount, type, and disposition of bycatch. 
The commenters also claim that the amendment fails to recognize the 
fishery management needs of the Councils and the needs of the public.
    The commenters claim that the amendment fails to establish an SBRM 
because it provides for framework adjustment provisions to enable the 
Councils to develop and propose changes to the SBRM. The commenters 
also claim that the SBRM Amendment fails to consider the bycatch of 
species that are not targeted under Northeast Region FMPs, including 
failing to consider alternatives for including ``non-managed'' species 
in the SBRM.
    The commenters claim that NMFS ``locked'' the public and Fishery 
Management Councils out of the decision-making process to develop the 
SBRM Amendment. The commenters also claim that the SBRM Amendment 
violates NEPA because an environmental impact statement (EIS) was not 
prepared. Regarding the environmental assessment's (EA) compliance with 
NEPA, the commenters raised the following concerns: The EA fails to 
adequately discuss the purpose, need, and scope of the amendment; the 
EA fails to consider a reasonable range of alternatives, including 
performance standards other than 30 percent, different reporting 
formats or frequencies, or different ways to assess accuracy; the EA 
fails to consider cumulative environmental impacts; and the EA fails to 
adequately address protected resources.
    Response: NMFS disagrees with the commenters' assertion that the 
amendment fails to establish an SBRM because it vests NMFS with some 
degree of discretion in cases where external operational constraints 
prevent full implementation of the resulting at-sea observer 
allocations. The SBRM Amendment establishes an extensive and detailed 
methodology to utilize available observer data on discards occurring 
across all relevant Northeast Region fisheries, assess the degree to 
which those data meet the established performance standard, allocate 
observer coverage levels across all relevant fisheries to achieve said 
performance standard, and provide reports to the Fishery Management 
Councils on the discards that are occurring and on the effectiveness of 
the SBRM itself at meeting its objectives. The prioritization process 
is one component of the overall program that explicitly recognizes that 
external operational constraints (such as Congressional budget 
allocations) may occasionally prevent the full implementation of the 
SBRM. The process establishes a rigorous review and consultation 
process to engage the Councils and the public in determining the most 
appropriate approach to prioritize observer coverage on these occasions 
that reflects the needs and priorities of the agency and Councils at 
the time.
    The commenters suggested that the amendment could have implemented 
a requirement to apportion any budget allocations pro rata across all 
fishing modes, or could have ranked fishing modes according to a 
specific standard of priority and require that observers be fully 
allocated to the highest priority modes in descending order until the 
available budget is exhausted. NMFS notes that several options such as 
these are described in section 6.6 of the amendment, but that the 
Councils recognized the importance of retaining sufficient flexibility 
in the SBRM to adapt to changing conditions and priorities in the 
fisheries. The approach suggested by the commenters would leave the 
Councils and NMFS with a rigid system that would require an FMP 
amendment to modify the priority allocation of resources. NMFS also 
notes that retaining some level of discretion in allocating resources 
is necessary for the agency to adequately meet its obligations under 
other laws in addition to the Magnuson-Stevens Act, such as the ESA and 
MMPA. Lastly, the commenters appeared to have misconstrued the 
instructions from the Court. Instead of requiring that the SBRM 
Amendment stipulate the precise areas where observers must be 
concentrated, the Court, in Oceana II, clarified that it ``only 
requires that the FMP establish some method for determining observer 
concentration instead of leaving all decisions to the Regional 
Administrator's discretion'' [See, Oceana II at p. 234 (footnote 41)]. 
The SBRM Amendment establishes a very specific method for determining 
observer allocations across all relevant fisheries, and does not leave 
``all

[[Page 4743]]

decisions'' to the Regional Administrator. Rather, only in years in 
which external operational constraints prevent full implementation 
would NMFS have any discretion to adapt the results of the SBRM, and 
only then following a review and consultation with the Councils in a 
public forum. NMFS asserts that this approach is consistent with both 
the intent of the SBRM provisions of the Magnuson-Stevens Act and the 
guidance provided by the Court.
    NMFS rejects the commenters' claim that the SBRM Amendment fails to 
mandate that data be reported in a rational manner useful for fisheries 
management, and that the amendment fails to establish a reporting 
requirement that provides information on the amount, type, and 
disposition of bycatch. Section 6.4 of the SBRM Amendment describes the 
alternatives considered regarding potential reporting procedures, and 
section 1.7 of the amendment establishes the requirements for two types 
of reports to be prepared at different time intervals. The amendment 
requires an annual report be provided to the Councils to provide the 
data they requested on the current status of observer coverage and 
discard information, along with an additional report provided every 3 
years that assesses the SBRM in a more comprehensive manner. The 
amendment, in sections 1.7 and 6.4, identifies the specific data 
elements to be provided in the reports, including the amount, species, 
location, and gear types involved. The information to be reported, the 
frequency, and the format for the reports was proposed and adopted by 
both Councils as their preferred alternative approach to obtaining SBRM 
reports on a routine basis. NMFS asserts that the Councils are in the 
best position to determine their needs as to SBRM reports, and, as 
such, the SBRM Amendment clearly reflects the needs of the Councils for 
this information.
    NMFS disagrees with the commenters that the SBRM Amendment fails to 
actually establish an SBRM simply because it provides a procedure for 
the Councils to make changes to certain provisions of the SBRM through 
the use of framework adjustments rather than full FMP amendments. The 
intent of this provision of the amendment is to facilitate an efficient 
and timely process for the Councils to develop and submit proposed 
changes to the SBRM, limited within certain constraints. Nothing in 
this provision diminishes or abrogates the agency's obligation to 
carefully review any framework adjustment proposed by a Council to 
ensure that the proposed changes are consistent with the Magnuson-
Stevens Act, other applicable law, and do not undermine or contravene 
the parent FMP. The amendment clearly stipulates that intent, as at 
section 6.5.2, which provides that ``the intent of this [framework] 
provision is to provide an efficient means for the Council to change 
the performance standard in certain circumstances when a higher level 
of precision (i.e., reducing the CV to less than 30 percent) is desired 
for a particular fishery or management program [emphasis added].'' 
Providing this mechanism to modify certain elements of the SBRM is 
considered important because several provisions of the parent FMPs 
already establish framework adjustment protocols for items such as 
creating new special access programs (SAPs) or new fishery sectors. As 
these changes are developed through a framework adjustment process, 
changes to the SBRM may be necessary in order to ensure sufficient 
discard reporting in the new SAP or sector. Without the ability to 
effect the necessary changes to the SBRM through the framework 
adjustment implementing the SAP or sector, the Council would have to 
defer implementation of each such framework until an accompanying 
amendment could be developed to implement the changes to the SBRM. This 
delay would directly contravene the intent of the parent FMPs.
    NMFS also disagrees with the commenters that the amendment failed 
to consider the bycatch of species that are not targeted under the 
Northeast Region FMPs. This issue is addressed in several sections of 
the amendment. First, section 1.7 of the amendment clearly stipulates 
that the data collected by at-sea fisheries observers ``shall be 
collected on all species of biological organisms caught by the fishing 
vessel and brought on board, including species managed under the 
subject FMPs but also including species on non-managed fish, 
invertebrates, and marine plants.'' This section of the amendment 
continues to stipulate, in a footnote, that a complete list of the 
species for which the listed data elements are to be collected can be 
found in Appendix A and Appendix R of the Fisheries Observer Program 
Manual. These lists include more than 500 distinct species and species 
codes that must be accounted for by observers in their catch and 
discard reports. This provision of the SBRM requires that information 
regarding the discards of all species be reported by at-sea observers 
and reported to NMFS. The same information collected on species managed 
under a subject Northeast Region FMP would also be available, at the 
same level of detail, on all other species. The SBRM, however, is 
specifically crafted around the species managed under a subject FMP, 
and it is these species, with the addition of threatened and endangered 
sea turtles, that drive the allocation of observers across the subject 
fishing modes. Contrary to the claim of the commenters, the Councils 
explicitly considered expanding this aspect of the SBRM calculations to 
include all non-managed species. This is described in section 6.8.1 of 
the amendment document and includes the Councils' rationale for not so 
expanding the SBRM.
    NMFS rejects the claim by the commenters that the agency ``locked'' 
the public and Councils out of the decision-making process to develop 
the SBRM Amendment. The process to development the amendment included 
numerous and varied opportunities for the public and the Councils to 
fully engage and provide valued input, fulfilling the letter and spirit 
of NEPA. The commenters correctly pointed out that the primary analyses 
and technical materials were developed by a Fishery Management Action 
Team (FMAT) that was chaired by a NMFS staff member, but claim that 
this represents a ``flawed'' approach. The choice of a NMFS staff 
member to serve as chair of this technical group was suggested by the 
Councils as a way to help with staffing resource concerns shared by the 
Councils. However, in all respects other than the position of the 
group's chair, the membership of the FMAT reflected the standard 
operating procedures for Plan Development Teams (PDTs), as used by the 
New England Council, as well as FMATs as used by the Mid-Atlantic 
Council. The SBRM FMAT included staff from both Councils, the Northeast 
Fisheries Science Center, NOAA General Counsel, and the Northeast 
Regional Office, all with the requisite expertise and background in the 
subject matter.
    All activities, analyses, and recommendations of the FMAT were 
reported to a Joint Oversight Committee composed of voting member of 
both Councils, and all such meetings of the SBRM Committee were held in 
public fora with advance notice to the public. Throughout the 
development of the amendment, the SBRM Committee held six public 
meetings ranging in location from Virginia Beach, VA, to Peabody, MA. 
All decisions of the Councils with regards to establishing the range of 
alternatives to be considered in the

[[Page 4744]]

amendment, selecting the preferred alternatives, approval of the draft 
amendment for release to the public, reviewing the results of the 
analyses and information provided by the FMAT, assessing the comments 
submitted by the public on the draft amendment and the changes proposed 
to address those comments were first vetted through the SBRM Committee 
in public meetings. In addition to the six meetings of the SBRM 
Committee, the Councils met publicly a total of 13 times to receive 
reports on the progress of the SBRM Amendment, to review the decisions 
and recommendations of the SBRM Committee, and to formally approve and 
adopt the amendment for release to the public and, later, to submit for 
Secretarial review. There was also a public meeting at which members of 
both Councils' SSCs conducted a formal peer-review of the technical 
components of the SBRM Amendment, and two public hearings were held to 
provide ample opportunity for interested members of the public to 
provide comments on the draft amendment.
    Lastly, NMFS disagrees with the assertion by the commenters that 
the SBRM Amendment violates NEPA because an EIS was not prepared. 
Consistent with NEPA, Council for Environmental Quality (CEQ) 
regulations, and NOAA administrative policy, NMFS and the Councils 
collaborated to prepare an EA to evaluate the significance of the 
environmental impacts expected as a result of the actions considered in 
the SBRM Amendment. The results of this assessment are provided in 
section 8.9.2 of the amendment, which supports the finding of no 
significant impacts (FONSI) signed by the agency on October 16, 2007. 
The commenters provided no evidence, nor even any claims, that the 
conclusions in the FONSI are not supported by the facts presented in 
the EA for this finding. Contrary to the claim of the commenters, NMFS 
asserts that the EA considers a sufficient range of alternatives to 
satisfy the requirements of NEPA. As described throughout the amendment 
(the Executive Summary and chapters 6, 7, and 8), the alternatives 
considered by the Councils were structured around seven specific 
elements that together comprise the Northeast Region SBRM. Multiple 
alternatives were developed and considered for each element and, in 
some cases, various sub-options were also developed and considered. As 
noted in Appendix E of the amendment, in response to a similar comment 
received on the draft amendment, the available permutations of the 
various alternatives considered in this action exceeds 1,400 if the 
sub-options are not counted. Accounting for the sub-options, the number 
of possible outcomes exceeds 2,100 distinct sets of management 
alternatives. In addition to the sets of alternatives expressly 
analyzed in the EA, the Councils considered, but ultimately rejected 
from detailed analysis, an additional four distinct alternatives. These 
additional alternatives are described in section 6.8 of the amendment, 
and, contrary to the claim of the commenters, include alternatives that 
specifically addresses setting alternate CV levels and different 
intervals for the SBRM reports.
    NMFS disagrees with the commenters that the EA fails to adequately 
discuss the purpose, need, and scope of the amendment. All of these 
elements are specifically identified and are fully described in chapter 
1 of the amendment. The commenters assert that the EA fails to consider 
cumulative environmental impacts. NMFS rejects this claim, as section 
7.3 of the amendment explicitly provides a discussion of the expected 
cumulative effects associated with the action. NMFS asserts that this 
treatment of cumulative effects is consistent with CEQ regulations and 
current NOAA policy. Regarding protected resources, several elements of 
sections 7.1 and 7.2 of the amendment address the potential impacts of 
the actions on protected resources, and NMFS considers this treatment, 
along with sections 8.3 and 8.8 of the amendment, to be adequate under 
all applicable law. Endangered sea turtles are explicitly addressed in 
the SBRM (see chapters 5 and 6), and are afforded a priority superior 
to all other fish species by ``trumping'' the second and third level 
importance filters (i.e., if the results of the second and third level 
importance filters would result in an observer allocation to a fishing 
mode that is less than the number of sea days calculated to adequately 
observe sea turtles, then the higher sea turtle allocation is applied). 
As noted throughout the amendment document, the Magnuson-Stevens Act 
specifically excludes marine mammals and birds from the definitions of 
fish and bycatch and, therefore, the SBRM (because it exists solely as 
a Magnuson-Stevens Act construct) need not expressly account for marine 
mammals or birds. Therefore, NMFS considers the SBRM Amendment to 
adequately address protected resources.
    Comment 7: A comment letter written on behalf of four conservation 
organizations raised many of the same concerns as the conservation 
organization noted above. In particular, the commenters frequently 
referred to the results of the technical review described below. The 
responses to the comments identified in the technical review are 
addressed separately under comment 10. All other points raised in the 
comment letter are addressed in this response.
    The commenters claim that the SBRM Amendment fails to achieve the 
purpose of the action or meet the related requirements of the Magnuson-
Stevens Act and the prior Court orders because it fails to explain the 
methods and processes by which bycatch is currently monitored, fails to 
determine whether these methods and process should be modified and/or 
supplemented, and fails to document the SBRM established for all 
Northeast Region FMP fisheries. The commenters claim that the SBRM 
Amendment does not explain the methods by which data and information on 
discards are obtained by observers. The commenters reiterated the claim 
made in comment 4 that the SBRM Amendment ``conclude[s] that observer 
coverage is not warranted'' in the mid-water trawl fishery.
    The commenters claim that the SBRM Amendment fails to specify 
levels of observer coverage required for each FMP, citing concern that 
the ``mere performance targets'' leave the actual level of observer 
coverage entirely up to the agency. The commenters also claim that the 
SBRM fails to adequately cover ``non-managed'' bycatch species.
    The commenters claim that NMFS ``prevented'' the New England and 
Mid-Atlantic Councils and the public from meaningfully participating in 
the development of the SBRM Amendment. Similar to the previous 
commenter, the commenters claim that an EIS should have been prepared, 
rather than the EA, and that the document therefore does not comply 
with NEPA. In particular, the commenters claim that the lack of an EIS: 
Limited the opportunities for public participation and stymied the 
involvement of the Councils; failed to consider a range of 
alternatives; and failed to ensure that decision-makers and the public 
are well informed about the potential environmental impacts of the 
action. The commenters suggested that the amendment should have been 
presented in a more accessible format, claiming that the SBRM is a 
``nearly incoherent document.'' The commenters claim that the FMAT 
formed to prepare the technical materials for the Councils was a 
``failure'' and failed to engage the Councils. The commenters further 
claim that the SBRM Amendment was ``carefully steered around the 
avoidance

[[Page 4745]]

of the public participation requirements of NEPA,'' and that 
opportunities for public participation, including the two public 
hearings, were limited to Council meetings with short agenda items and 
``little or no'' opportunity for public comment. The commenters also 
criticized the amount of time available to review and comment on the 
amendment, claiming that much of the document was not available ``in 
any form'' until shortly before the Councils approved the document in 
June 2007. The commenters concluded by criticizing the 60-day comment 
period on the amendment, claiming that this amount of time was 
insufficient.
    The commenters suggested that NMFS engage independent and objective 
scientific expertise, along with the public, and prepare an EIS in 
support of a ``significantly revised'' SBRM Amendment. The commenters 
claim that the SBRM was never peer reviewed by independent reviewers at 
any stage of its development. The commenters recognized that the 
document was reviewed by members of the Councils' SSCs, but claim that 
these reviewers ``lacked the highly specialized expertise necessary to 
conduct a review of this nature,'' and that the reviewers cannot be 
considered as independent and objective because they serve as members 
of the Councils' SSCs.
    Response: NMFS disagrees that the amendment fails to explain the 
methods and processes by which bycatch is currently monitored or that 
the amendment fails to evaluate whether these methods should be 
modified and/or supplemented, noting that chapter 4 addresses these 
specific issues. Additional information about the current bycatch data 
collection programs is provided in chapter 5 of the amendment and in 
associated reference documents that are clearly identified throughout 
the amendment. As noted above in response to comments on this issue, it 
is incorrect to conclude that the SBRM Amendment in any way suggests 
that observer coverage ``is not warranted'' in any fishing mode, 
including the New England mid-water trawl mode, which the amendment 
indicates would be allocated 316 observer sea days based on the 2004 
observer data, a two-fold increase over the actual coverage in this 
fishing mode in 2004.
    NMFS disagrees with the commenters' implication that the SBRM 
Amendment was intended to specify levels of observer coverage required 
for each FMP. Nothing in the Magnuson-Stevens Act, or in either 
relevant Court order described above, requires that an SBRM include 
specific observer coverage levels to be identified for each FMP. 
Rather, the intent of the Magnuson-Stevens Act SBRM provision, 
supported by the Court, was to establish procedures to determine the 
appropriate levels of coverage [See, Oceana II at p. 233 (footnote 38), 
where the Court states that ``Oceana I did not require that an FMP 
mandate a specific level of observer coverage'']. The amendment clearly 
establishes the procedures to be used to make these determinations and 
requires that the agency utilize these procedures (``Each year, the 
Regional Administrator and the Science and Research Director shall 
allocate sufficient at-sea observer coverage to the applicable 
fisheries of the Northeast Region in order to achieve a level of 
precision . . . no greater than 30 percent for each applicable species 
and/or species group'' SBRM Amendment at section 1.7).
    The commenters' claim that the agency ``prevented'' the Councils 
from participating in a meaningful way in the development of the 
amendment is patently false. As described earlier in response to 
previous comments, the development of the SBRM Amendment was conducted 
under the oversight of a joint Council committee that included members 
from both Councils. All decisions regarding the development of the 
amendment were made by the Councils and were based on the 
recommendations of the SBRM Oversight Committee. Contrary to the claim 
of the commenters, the evidence clearly indicates that both Councils 
were fully engaged in the development of this amendment, and there were 
no actions taken on the part of the agency to ``prevent'' such 
engagement.
    NMFS considers the SBRM Amendment and associated EA to comply fully 
with the requirements of NEPA, the CEQ regulations, and NOAA 
Administrative Order 216-6, and, therefore, rejects the assertion by 
the commenters that an EIS should have been prepared. According to the 
CEQ regulations, and all available guidance on the subject, an EIS need 
only be prepared when an EA or other related analysis identifies 
significant effects on the environment or if the facts available to the 
action agency cannot support the conclusions required in order to make 
a FONSI. The EA associated with the SBRM Amendment fully evaluated the 
expected direct, indirect, and cumulative impacts likely to result from 
implementation of the action. The EA, in both form and scope, followed 
all agency guidelines for an EA associated with an FMP amendment. As 
noted in response to previous comments, a full range of reasonable 
alternatives was considered by the Councils during the development of 
the amendment, and all relevant effects of the action, and its 
alternatives, were identified and made available to the relevant 
decision-makers. In response to the claim that the amendment document 
is ``nearly incoherent,'' NMFS notes that at no stage in the 
development of the amendment did anyone else raise such a comment. NMFS 
considers this amendment to be an organized, well-written, and 
approachable document that includes each element required by NEPA and 
all applicable laws. The inclusion in the amendment of highly technical 
concepts and methodologies was necessary in order to treat the 
statistical analyses and modeling elements inherent in the development 
of an SBRM in a complete and transparent manner. Great care was taken 
to present this information clearly, to organize the amendment in a 
logical manner, and to use clear prose to the extent possible.
    NMFS disagrees with the claim that the FMAT process was a failure. 
The FMAT members included representatives from both Councils' staffs, 
and the FMAT reported to the Councils' SBRM Oversight Committee at each 
step in the process to develop the amendment. The FMAT produced a draft 
amendment 8 months after the first FMAT meeting, at which time it was 
accepted by both Councils and released for public review. Following the 
public comment period on the draft amendment and draft EA, the FMAT 
prepared revisions to several sections of the amendment and presented 
all revisions to the Committee less than 4 months after the end of the 
comment period. NMFS considers the FMAT process to be a success by all 
accepted standards and practices for Council actions. Regarding the 
claim that the development of the amendment was intended to avoid 
public participation, as noted above in response to the previous 
comment on this issue, public participation was encouraged and multiple 
opportunities for public participation were provided throughout the 
development process. Both public hearings held on the draft amendment 
were noticed well in advance of the hearings, both were held in public 
venues in conjunction with, but not during, public meetings of the New 
England and Mid-Atlantic Councils. Both hearings were relatively well 
attended (32 individuals attended the first hearing in Gloucester, MA, 
and 16 individuals attended the second hearing in New York, NY), and 
both hearings remained open until all in the audience who wished to 
provide comment had

[[Page 4746]]

done so. No time limits were placed on any commenter, and no one was 
precluded from speaking. As a result of the discussions of the Councils 
and comments from the public, several changes to the SBRM Amendment 
were made throughout its development, including the revisions to the 
importance filter process, the inclusion of multiple reporting 
procedures, and the incorporation of an external peer review of the 
underlying analyses conducted by the Councils' SSCs.
    NMFS disagrees with the claim of the commenters that the document 
was not available ``in any form'' until shortly before the Councils 
approved the document in June 2007. Drafts of the amendment and EA were 
available prior to the Council meetings in September and October 2006 
at which the draft amendment was approved for release to the public for 
public hearings. The public hearing draft of the amendment and EA was 
posted to the Internet and made available on November 1, 2006, 
initiating a 60-day comment period. Copies of the public hearing draft 
were available by mail for anyone who requested one, and copies were 
available at both public hearings. The public hearing draft of the 
amendment and EA remained available on the Internet until it was 
replaced by a revised draft in mid-2007. In advance of the April 2007 
meeting of the SBRM Oversight Committee, errata sheets reflecting the 
sections of the draft amendment that had been revised to address public 
comments were made available on the New England Council's Internet 
page. Copies of these revised sections of the amendment were also made 
available at the April 2007 meeting. Following the April 2007 meeting 
of the Committee, these revised sections were integrated into the draft 
amendment, and a final draft of the amendment was posted to the 
Internet in early June.
    Regarding the criticism that the 60-day comment period on the 
amendment (72 FR 41047) was insufficient, NMFS notes that this 60-day 
time period for public review of FMPs and amendments is stipulated in 
section 304 of the Magnuson-Stevens Act (``Upon transmittal by the 
Council to the Secretary of a fishery management plan or plan 
amendment, the Secretary shall . . . immediately publish in the Federal 
Register a notice stating that the plan or amendment is available and 
that written information, views, or comments of interested persons on 
the plan or amendment may be submitted to the Secretary during the 60-
day period beginning on the date the notice is published.'').
    NMFS asserts that it is unnecessary to engage additional expertise, 
and finds no reason to disapprove and revise the SBRM Amendment. NMFS 
disputes the commenters' claim that the SBRM was not peer reviewed by 
independent reviewers, noting that both Councils solicited their 
respective SSCs for members with the expertise to conduct a formal peer 
review of the technical components of the SBRM Amendment. Four 
reviewers, two from each Council's SSC, with all the requisite 
expertise and background to conduct such a review, met in August 2006 
in a public forum to assess the SBRM. The results of the peer review 
were made publicly available in September 2006 and were fully addressed 
in revisions to the initial draft of the SBRM Amendment and all 
comments and suggestions made by the SSC members were incorporated.
    Comment 8: A comment letter by the chief scientist for a 
conservation organization asserted that the analyses and preferred 
options in the SBRM Amendment represent improvements over previous 
versions. The commenter stressed that the selected alternative for the 
importance filter is ``much better'' than the non-preferred 
alternative, and that it is ``appropriate'' to concentrate observer 
sampling effort on fishing modes that cause a high fraction of the 
discard mortality and a high fraction of the total fishing mortality 
for each harvested species. The commenter also stated that the 
preferred alternative precision standard (a CV of 30 percent) for 
bycatch estimates for each managed species and fishing mode is 
``appropriate.'' In addition, the commenter concurred with one of the 
conclusions of the McAllister report (see below) that simulation 
testing should be done to evaluate the precision and potential biases 
of each proposed estimator.
    Response: NMFS agrees with the commenter that the SBRM represents 
an improvement over previous versions, that the importance filter is a 
sound and appropriate approach to concentrate observer coverage, and 
that the performance standard of a 30 percent CV is appropriate for 
discard estimates. The response to the comment concurring with the 
McAllister report on simulation testing is addressed below in response 
to comment 10.
    Comment 9: A comment letter written by attorneys representing an 
association of full-time, limited access scallop fishermen in New 
England and the Mid-Atlantic endorsed the SBRM Amendment, noting that, 
in their opinion, the SBRM Amendment addresses all relevant legal 
requirements. The commenters claim that the amendment establishes an 
appropriately flexible system to meet unknown future demands on the 
observer system. The commenters assert that the amendment appears to 
have achieved a reasonable and practicable balance in the scope of the 
SBRM and the approach taken to allocate observer coverage across the 
subject fishing modes. The commenters support the use of the importance 
filters by focusing limited resources on the areas of greatest concern 
to management. The commenters also support the provisions of the rule 
that allows the Councils to develop an observer set-aside program 
through a framework adjustment to the FMP, rather than a full 
amendment. In addition, the commenters support the establishment of 
standards for certifying additional observer service providers.
    Response: NMFS agrees with the comments.
    Comment 10: A comment letter from a conservation organization 
included a detailed technical review of the scientific analyses and 
methodology underlying the SBRM Amendment. A technical review was 
submitted by Dr. Murdoch McAllister of the University of British 
Columbia. Although the McAllister report found the importance filters 
to be ``scientifically sound,'' ``well-founded,'' and ``sensible from a 
scientific point of view'' and to be effective at reducing the amount 
of observer effort required without compromising the quality of data 
required for bycatch estimation, the McAllister report raised several 
issues related to the analysis conducted in support of the SBRM 
Amendment. The McAllister report claims to have identified a number of 
flaws in the estimation method chosen to be applied in the SBRM, and 
that the observer coverage levels that result from the application of 
this estimator could potentially lead to ``wastage'' of government 
resources because ``unnecessarily high'' or ``unacceptably low'' 
numbers of observer sea days could be specified by the SBRM. The 
McAllister report claims that the SBRM Amendment failed to adequately 
evaluate the statistical properties of the six alternative bycatch 
estimation methods considered, and raised concerns that the key 
assumptions of the preferred statistical method do not hold, such that 
the SBRM Amendment utilizes a statistical method that is inferior to 
others that might have been selected. The report notes that an 
alternative statistical method that was considered, but not selected, 
may have resulted in lower CVs in bycatch estimates than the other 
methods. The McAllister report recommends that

[[Page 4747]]

simulation testing of the candidate bycatch estimation methods be 
conducted to evaluate the potential bias and precision in the methods 
prior to selecting one for implementation.
    The McAllister report also raises concern regarding the degree to 
which evidence of bias in the observer data is acknowledged in the 
analyses supporting the SBRM Amendment, suggesting that there is 
evidence of bias in the data where none was reported. This concern is 
extended to include the use of the FVTR as a source of kept biomass, 
which may have more bias than described in the amendment. The report 
concludes with the claim that the SBRM is ``unlikely'' to provide 
reliable discard estimates or prescriptions for observer coverage, 
noting that this is ``largely due'' to the issues previously raised 
regarding the ratio bycatch estimator that was selected.
    In spite of the concerns raised, the McAllister report concedes 
that ``the observer data on bycatch appear to be the best available 
data on bycatch by species and fishing fleet type.'' Dr. McAllister 
notes that ``no other data exist with the extent of coverage of bycatch 
species, landed species, and fishing mode,'' and that there is a 
relatively small proportion of the various potential combinations of 
species and fishing mode for which observer coverage is too low to 
permit estimation of bycatch. The report acknowledges that there are 
sufficient data in the ``vast majority'' of fishing mode and species 
combinations to enable computation of a bycatch value and a standard 
error for the estimate, and that ``no other type of data collected 
comes close to providing the high level of coverage offered by the 
existing observer dataset.'' The McAllister report also acknowledges 
that the high proportion of the estimates of bycatch presented in the 
SBRM with CVs of 30 percent or less indicate that the ``existing 
observer database has potential to provide bycatch estimates with the 
desired level of precision.''
    In addition to the concerns described above, the McAllister report 
also raises a concern regarding the selection of a 30 percent CV of the 
discard estimate as an appropriate performance standard for the SBRM, 
noting that in commonly applied stock assessment models, the desired CV 
of the catch estimate would be 10 percent or less, not 30 percent.
    Response: Dr. Murdoch McAllister makes a number of important 
comments on the SBRM Amendment. His thorough review on behalf of 
Lenfest Ocean Program highlights a number of important issues for 
discard estimation and suggests some useful approaches for improving 
the estimators currently employed. NMFS considered his comments, but, 
despite the issues raised by Dr. McAllister, contends the SBRM is 
consistent with all legal and statutory requirements, and is based upon 
the best available science. The SBRM incorporates not only the sampling 
design but also the infrastructure to collect auxiliary data, the 
methods of estimation and the properties of the estimators, and 
approaches to improve the allocation of observer coverage to the 
diverse fishing fleets of the Northeast Region. The SBRM is fully 
consistent with the limitations of the data necessary to support 
estimation of discards across a wide range of species and fisheries.
    Improvements can always be made to statistical models and 
techniques to derive bycatch estimates. By reviewing observer coverage 
annually and instituting optimal allocation procedures, the SBRM is 
designed to continuously improve the underlying data. Ultimately, the 
utility of any statistical model depends more on the quality of the 
data than the sophistication of the model. Nonetheless, the SBRM is 
designed to collect data that will support many different types of 
statistical estimators. In order to achieve this goal, the information 
in the observed samples must be sufficient for inference about the 
unobserved fraction of the fishery. The basis for the program rests on 
the quality of the discard data collected at sea by fisheries observers 
and the ability to extrapolate estimates of total discards from the 
observed fraction of the fleets to the unobserved fractions. Any 
estimator of total discards requires that the observed rate of discards 
in a sample can be expanded to a total. An estimator based on discards 
per trip requires an estimate of total trips; an estimator based on 
discards per day absent requires an estimate of total days absent. 
Estimators that compute discard rates as a function of some set of 
environmental conditions or vessel attributes must have the ability to 
apply those same characteristics for the unobserved set.
    The remarks of Dr. McAllister appear to indicate some confusion 
regarding the estimators that are applied for the purpose of 
initializing the SBRM and those which will be used in stock 
assessments. NMFS acknowledges that these estimators do not necessarily 
have to be the same. In fact, one would expect that improved discard 
estimates can be derived after the data are collected because more 
information about the fishing trip, and the nature of the discards, is 
available. Possible refinements to the data and the resulting discard 
estimates include various post-stratification approaches, incorporation 
of other auxiliary variables, and intensive investigation of regulatory 
effects (e.g., size limits, trip limits, overall quotas, closed area 
effects, permit restrictions etc.). The ability to implement these 
changes is governed ultimately by the quality of the statistical 
sampling design. On that point, the SBRM is on firm ground: while the 
McAllister report provides a number of instances where further research 
efforts can be directed, it does not alter our conclusion that the SBRM 
is a scientifically-sound process for implementing a continuously 
improving process of bycatch estimation.
    The SBRM addresses discarding issues for the entire range of 
fishing activities in the Northeast. This synoptic approach requires 
careful attention to the limitations and availability of data to 
estimate discards and provides a representative methodology to apply 
consistently across all Northeast Region fisheries. The inclusion of 
all species and all fisheries precluded a detailed case-by-case 
treatment of the best estimators in favor of a standardized approach to 
provide reasonable results across the full range of Northeast Region 
fisheries. The SBRM incorporates objective approaches to reduce the 
estimation problem to a subset of cells that are biologically 
important.
    Dr. McAllister did not comment on the procedures for collecting 
data on trips or the observer training program. As this was not in his 
terms of reference, it is assumed that neither the Lenfest Ocean 
Program nor Dr. McAllister had any serious concerns about observer 
training or quality assurance procedures. The ability to extrapolate 
from the observed fishing trips to the unobserved fraction rests in 
part on the overall sampling design. On this topic, Dr. McAllister 
states ``In my view the sampling program proposed for obtaining bycatch 
estimates has a few issues regarding accuracy but largely appears to be 
the best available sampling program for bycatch estimation.''
    It is noted that, in spite of the concerns raised, the McAllister 
report concedes that ``the observer data on bycatch appear to be the 
best available data on bycatch by species and fishing fleet type.'' The 
author notes that ``no other data exist with the extent of coverage of 
bycatch species, landed species, and fishing mode,'' and that there is 
a relatively small proportion of the various potential combinations of 
species and fishing mode for which observer coverage is too low to 
permit estimation of bycatch. His report

[[Page 4748]]

acknowledges that there are sufficient data in the ``vast majority'' of 
fishing mode and species combinations to enable computation of a 
bycatch value and a standard error for the estimate, and that ``no 
other type of data collected comes close to providing the high level of 
coverage offered by the existing observer dataset.'' The McAllister 
report also acknowledges that the high proportion of the estimates of 
bycatch presented in the SBRM with CVs of 30 percent or less indicate 
that the ``existing observer database has potential to provide bycatch 
estimates with the desired level of precision.''
    Dr. McAllister criticizes the selection of the ratio estimator as 
the appropriate model for estimation. NMFS acknowledges that the ratio 
estimator is not uniformly supported across all 2,700 cells (45 fleets 
and 60 species groups). In some instances, the trip-based estimator 
(average discards per trip multiplied by total trips) may in fact have 
greater precision. In effect, all of the discard estimation methods 
considered in the SBRM are stratified ratio estimators. The simple 
expansion method preferred by Dr. McAllister uses total trips as a 
measure of effort. Implicitly, this means that the stratification 
variables used in the SBRM are sufficient to define strata with a low 
degree of within-stratum variability and high degree of between stratum 
variability. The incorporation of ``days absent'' as a measure of 
fishing effort recognizes that residual variation in trip length may be 
important for characterizing bycatch; however, the measure of days 
absent does not account for variations in transit time to fishing 
grounds or search activities (i.e., there could be significant 
differences in actual fishing time true effort if transit time is 
accounted for). The use of total landings addresses this weakness and 
provides at least one performance-based measure of fishing effort, 
wherein variation in fishing power can be addressed. Because catch is 
the product of effort and abundance, total landings per trip can be 
viewed conceptually as a surrogate for effective fishing effort, if 
average abundance within a year does not change too greatly.
    The SBRM proposes the use of a stratified ratio estimator as a 
general measure of the total bycatch by species. The estimator 
incorporates two complementary components to improve the precision of 
the estimates. Stratification by ``fleets'' reduces the variability 
within non-overlapping sets. For some species, it would be possible to 
develop more refined stratifications, particularly after the sample has 
been collected. Some fleets are strongly associated with a particular 
species, such as the scallop dredge fleet and the hydraulic dredge 
fleet for clams. However, for most fleets, the target species is not 
identifiable in advance. Some vessels will change net types during a 
cruise to shift among species groups (e.g., gadoids vs. flatfish).
    Contrary to the comments of Dr. McAllister, the estimators used in 
the SBRM are consistent with the many peer-reviewed published studies 
of discard estimation. For example, Pikitch et al. (1998)\1\ estimated 
total bycatch for Pacific halibut as the product of a bycatch ratio of 
discard per hour fished (stratified by fleet, season, and depth) and 
total hours fished. Total hours fished were assumed to have negligible 
error because, in the words of the authors, ``the states of Oregon, 
Washington, and California collect logbooks for the majority of fishing 
trips (70-90 percent in Oregon, nearly 100 percent in Washington, and 
about 80 percent in California).'' In their paper, the authors 
concluded that logbook records, which McAllister claims are 
``notoriously inaccurate,'' were sufficient to estimate hours fished 
even when they are known to be incomplete.
---------------------------------------------------------------------------

    \1\ Pikitch, E.K., J.R. Wallace, E.A. Babcock, D.L. Erickson, M. 
Saelens, and G. Oddsson. 1998. Pacific halibut bycatch in the 
Washington, Oregon, and California groundfish and shrimp trawl 
fisheries. North American Journal of Fisheries Management, 18:569-
586.
---------------------------------------------------------------------------

    Stratoudakis et al. (1999)\2\ recognized the bias in small sample 
ratio estimators and recommended an alternative method based on 
collapsed stratification. The authors examined a wide range of ratio 
estimators, similar to the procedures used in the SBRM. They 
recommended the use of a ``partially collapsed estimator'' that used 
total gadoid landings or total demersal species landings as the 
auxiliary variable in the ratio estimator. They recommended pooling 
across strata to estimate the discard ratio. In the SBRM, the discard 
ratio for the ``combined'' estimator was in fact a ``partially 
collapsed estimator'' over quarters. Their comparisons of ratio 
estimators with the stratified sample mean estimator suggested improved 
performance for most but not all species. They concluded the partially 
collapsed ratio estimator, with gadoid or total landings as the 
auxiliary variable, offers a sensible method for estimating total 
species discards within Scottish waters. Another advantage cited by 
these investigators was the decreased reliance on ad hoc decisions that 
arise when single species discard/kept ratios are employed.
---------------------------------------------------------------------------

    \2\ Stratoudakis, Y., R.J. Fryer, R.M. Cook, and G.J. Pierce. 
1999. Fish discarded from Scottish demersal vessels: Estimators of 
total discards and annual estimates for targeted gadoids. ICES 
Journal of Marine Science, 56:592-605.
---------------------------------------------------------------------------

    In a comprehensive evaluation of discarding in the multispecies and 
multi-country fisheries of the Northwest Atlantic, Watson et al. 
(2000)\3\ also estimated total discards by species using the ratio of 
discard to total kept. Previous studies of discarding have also relied 
extensively on discard to kept ratios, and have typically required 
pooling of information across fisheries. Clarke et al. (2002)\4\ used a 
discard to kept ratio to estimate discards of a squalid shark off the 
northern coast of Ireland. They noted that this ratio ``enabled the 
estimation of the total weight discarded by raising the overall discard 
rate to the reported landings of the target species.'' Harrington et 
al. (2005)\5\ and Zeller and Pauly (2005)\6\ also reported a number of 
discard estimates based on discard to kept ratios.
    Allain et al. (2003)\7\ considered two methods for estimating the 
total weights of fish discarded by the French grenadier fleet. 
Extrapolations of total landings using effort based ratios, as 
suggested by McAllister, resulted in differences between observed and 
predicted between -67 and +52 percent per quarter. They noted that real 
effort is difficult to estimate owing to different fractions of time 
actually spent on fishing grounds. Instead, they favored a target 
species (grenadier) approach as the denominator of a discard to kept 
ratio because ``it was the target species of the fishery, it was the 
only species both landed and discarded, and it was the most common 
species in the catches of deepwater commercial trawlers.'' Borges et 
al. (2005)\8\ also analyzed discards at the trip level and considered 
four ratio estimators. The authors

[[Page 4749]]

concluded that expansions based on total trips or total landings were 
most appropriate. Their studies suggested that no single approach may 
be appropriate for all fishery strata and that the performance of the 
discard to total kept estimator was sometimes inferior to a simple 
discard per trip estimator.
---------------------------------------------------------------------------

    \3\ Watson, R., S. Guennete, P. Fanning, and T.J. Pitcher. 2000. 
The basis for change: Part 1, Reconstructing fisheries catch and 
effort data. P. 23-39 in D. Pauly and T.D Pitcher (eds) Methods for 
Assessing the Impacts of Fisheries on Marine Ecosystems in the North 
Atlantic. Fisheries Centre Res. Rep. 8(2), 195 pp.
    \4\ Clarke, M.W., P.L. Connolly, and J.J. Braken. 2005. Catch, 
discarding, age estimation, growth, and maturity of the squalid 
shark, Deania calceus, west and north of Ireland. Fisheries 
Research, 55:25-35.
    \5\ Harrington, J.M., R.A. Myers, and A.A. Rosenberg. 2005. 
Wasted fishery resources: Discarded bycatch in the USA. Fish and 
Fisheries, 6:350-361.
    \6\ Zeller, D. And D. Pauly. 2005. Good new, bad news: Global 
fisheries discards are declining, but so are total catches. Fish and 
Fisheries, 6:156-150.
    \7\ Allain, V., A. Biseau, and B. Kergoat. 2003. Preliminary 
estimates of French deepwater fishery discards in the Northeast 
Atlantic Ocean. Fisheries Research, 60:185-192.
    \8\ Borges L., E. Rogan, and R. Officer. 2005. Discarding by the 
demersal fishery in the waters around Ireland. Fisheries Research, 
76:1-13.
---------------------------------------------------------------------------

    The Food and Agricultural Organization of the United Nations has 
sponsored two of the most comprehensive estimates of worldwide 
discards. The first, by Alverson et al. (1994),\9\ estimated total 
discards by using ratios of discards to kept of the same species. The 
second major paper, by Kelleher (2005)\10\, updated the Alverson et al. 
review using total landings in the fleet as the primary raising factor. 
The SBRM uses an approach similar to Kelleher. The focus is on 
fisheries rather than target species. Kelleher argues that the 
relationship between landings and discard of a species is influenced by 
many different factors and does not constitute an a priori basis for 
estimation of total discards.
    Many attempts in the literature to model bycatch have been based on 
regression trees and Generalized Additive Models that partition the 
data into multiple categories (see Stratoudakis et al. 1999\11\, Allen 
et al. 2002\12\, Borges et al. 2005\13\). These partitions have been 
based on post hoc analyses of single species and have been valuable 
approaches for improving the utility of discard estimates. However, it 
is not clear how such approaches could be easily applied in the context 
of multivariate responses. The partitioning of fleets into sectors 
based on properties observable before the trip is taken is a major 
attribute of the current NEFOP sampling program (e.g., Cotter et al. 
2002\14\, Allen et al. 2002). The ability to post-stratify the trips 
into improved strata after the trip is taken is a responsibility of the 
individual assessment analyst. The SBRM allows for this process by 
ensuring that whatever assessment methodology is used, one must 
consider the total scope of potential discards across all fleets.
---------------------------------------------------------------------------

    \9\ Alverson, D.L., M.H. Freeberg, S.A. Murawski, and J.G. Pope. 
1994. A global assessment of fisheries bycatch and discards. FAO 
Fisheries Technical Paper No. 339, 235 pp.
    \10\ Kelleher, K. 2005. Discards in the world's marine 
fisheries: An update. FAO Fisheries Technical Paper No. 470, 134 pp.
    \11\ Stratoudakis, Y., R.J. Fryer, R.M. Cook, and G.J. Pierce. 
1999. Fish discarded from Scottish demersal vessels: Estimators of 
total discards and annual estimates for targeted gadoids. ICES 
Journal of Marine Science, 56:592-605.
    \12\ Allen, M., D. Kilpatrick, M. Armstrong, R. Briggs, G. 
Course, and N. Perez. 2002. Multistage cluster sampling design and 
optimal sample sizes for estimation of fish discards from commercial 
trawlers. Fisheries Research, 55:11-24.
    \13\ Borges, L., A.F. Zuur, E. Rogan, and R. Officer. 2005. 
Choosing the best sampling unit and auxiliary variable for discard 
estimations. Fisheries Research, 75:29-39.
    \14\ Cotter, A.J.R., G. Course, S.T. Buckland, and C. Garrod. 
2002. A PPS sample survey of English fishing vessels to estimate 
discarding and retention of North Sea cod, haddock, and whiting. 
Fisheries Research, 55:25-35.
---------------------------------------------------------------------------

    NMFS acknowledges that all measures of accuracy based on 
observations are incomplete, since the ``truth'' (or its approximation) 
is unknown. However, the multiple lines of evidence used in the SBRM 
suggest that potential biases in the NEFOP observer data do not negate 
the utility of all estimates. Several of the data validation issues 
highlighted by Dr. McAllister were examined as part of a recent 
Groundfish Assessment Review Meeting (GARM) held in the fall of 2007. 
This particular meeting of the GARM dealt with the catch, survey, and 
environmental data that will be used to assess 19 Northeast groundfish 
stocks in 2008. The review panel, including its chair, included eight 
independent, external scientists with relevant experience.
    In addition to the methods described in the SBRM, another 
validation approach was presented at the GARM that included a 
comparison of total landings by species estimated from the observed 
fraction of the fleet with the actual landings enumerated in the VTR 
data. In other words, an estimate of the average landings of a single 
species per total landings in the observer data was multiplied by the 
total landings of all species in each fleet. If the observer data are a 
representative sample, the confidence interval for estimated total 
landings should encompass the true value. Liggens et al. (1997)\15\ 
used a similar approach for estimating observer bias by comparing 
average catch rates and length frequencies between observed and 
unobserved vessels. The results of this exercise supported the 
conclusions presented in the SBRM Amendment, and confirm that the 
method and underlying data provide sound estimates of discards. For 
many species and species groups, the estimated landings based on NEFOP 
data compared favorably to the VTR landings, with the 95 percent 
confidence interval of the estimated landings encompassing the VTR 
landings.
---------------------------------------------------------------------------

    \15\ Liggens, G.W., M.J. Bradley, and S.J. Kennelly. 1997. 
Detection of bias in observer-based estimates of retained and 
discarded catches from a multi-species trawl fishery. Fisheries 
Research, 32:133-147.
---------------------------------------------------------------------------

    The GARM considered this evidence and concluded that the combined 
ratio method was validated by comparing estimated landings using 
expanded kept portion of the catch in the observer data to the actual 
report landing. The estimated landings appear to be in line with the 
reported total landings. Using kept weight of all species in the 
denominator of the combined ratio ensures that all the catch data are 
used in estimating discards. The GARM review panel also concluded that 
the SBRM documents a number of estimators of discarding and validation 
of the combined ratio method was provided using the 2005 observer data 
set by a follow-up analysis. VTR data were used as a surrogate for 
Dealer data to expand the NEFOP discard ratios to total discards. In 
most cases (95 percent), there was good correspondence between VTR and 
Dealer landings, adding confidence to the use of these data, although 
there were patterns in the data for some species (e.g., surfclam/
quahog, hakes) that require further exploration. The GARM concluded 
that, overall, the technique was synoptic, reasonably well validated, 
and exhibited little evidence of bias.
    Contrary to Dr. McAllister's comments, simulation tests of 
alternative estimators have been conducted for several species. These 
results were reviewed as part of the GARM described above. NMFS has 
also conducted studies to estimate total landings from the observed 
sample data and have found good agreement for the methods used in the 
SBRM. Scientists at the Northeast Fisheries Science Center conducted a 
simulation study of the behavior of six different estimators of total 
discards, including the combined ratio (discard to kept) and the sample 
mean estimator (discard to trip) as described in the SBRM Amendment. 
Results supported the use of the discard to total kept ratio and the 
simple expansion method. The independent GARM reviewers considered this 
additional analysis and concluded that the analysis provided a 
comprehensive simulation study to test the overall performance of a 
number of discard estimation techniques with respect to bias and 
precision. Two methods were clearly superior to the other four 
techniques: The SBRM's combined ratio estimator (ratio of sums) and the 
direct estimator, based on mean discard per trip scaled up to all trips 
in the simulation datasets. The latter had been advocated by McAllister 
for the estimation of discards, and would be the preferred approach if 
there is no

[[Page 4750]]

correlation between the numerator and denominator of the estimate 
(i.e., there is no correlation between discard weight and kept weight). 
However, the GARM reviewers concluded that McAllister's preferred 
method only provides unbiased estimates of total discards if the total 
number of trips is known, which is often not the case in the New 
England fisheries. Total landings estimates are considered more 
reliable than those of the total number of trips, and so the GARM 
reviewers concluded that the SBRM's combined ratio estimator of mean 
discard based on observed trips has the advantage that it can be 
combined with known landings data to estimate total discards. They 
considered this to be a pragmatic solution to data deficiencies, and 
noted that the SBRM appears to provide estimates with similar precision 
as the direct estimator. The bias in the combined ratio estimator 
depends on the sample size (number of observed trips) and was 
negligible for the data being assessed in the simulation study.
    Regarding the assertion that a CV of 30 percent is an insufficient 
precision standard for the SBRM, the commenter identifies, as a 
suggested alternative, a CV of 10 percent for catch estimates used in 
stock assessments. However, NMFS points out that estimates of bycatch, 
which are the focus of this action, are but one aspect of overall 
catch, which includes all commercial and recreational landings as well 
as discards. As illustrated in Appendix C to the SBRM Amendment, for 
most species, discards represent a very small proportion of total 
catch. Therefore, the CV of the landings estimates contributes much 
more significantly to the CV of the overall catch than does the CV of 
the discard estimate. Also, as explained earlier, the data generated 
through the SBRM are utilized in different ways in individual stock 
assessments, and that post-stratification techniques available at the 
individual stock assessment level provide an opportunity to refine 
estimates as Dr. McAllister suggests. While NMFS agrees that higher 
precision is always a laudable goal, it notes that the Councils' SSC 
reviewers, as well as another independent scientist commenting on the 
SBRM Amendment (see comment 8), all concluded that the proposed 
standard of a CV of 30 percent is appropriate for its stated purpose.
    In sum, NMFS has carefully considered the comments and suggestions 
made by Dr. McAllister, in some cases conducting additional analyses 
which have been subjected to an additional level of independent 
external peer review through the GARM, and found that none of the 
comments undermine NMFS's findings regarding the adequacy of the 
Northeast Region SBRM.
    Comment 11: One member of the public expressed concern over whether 
the agency may be unduly swayed in the actions it takes due to 
political interference. The commenter suggested that all fishing quotas 
be cut by 50 percent, but no evidence or analysis was provided to 
support such a reduction.
    Response: This comment letter did not address the specific 
provisions of the SBRM Amendment or its proposed rule, and the comments 
have no bearing on the agency's decision relative to this action.

Classification

    The Administrator, Northeast Region, NMFS, determined that the 
Northeast Region SBRM Omnibus Amendment is necessary for the 
conservation and management of Northeast Region fisheries and that it 
is consistent with the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.

    Dated: January 22, 2008
Samuel D. Rauch III
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.

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2. In Sec.  648.11, paragraphs (h) and (i) are revised to read as 
follows:


Sec.  648.11  At-sea sea sampler/observer coverage.

* * * * *
    (h) Observer service provider approval and responsibilities--(1) 
General. An entity seeking to provide observer services must apply for 
and obtain approval from NMFS following submission of a complete 
application to The Observer Program Branch Chief, 25 Bernard St Jean 
Drive, East Falmouth, MA 02536. A list of approved observer service 
providers shall be distributed to vessel owners and shall be posted on 
the NMFS/NEFOP website at http://www.nefsc.noaa.gov/femad/fsb/.
    (2) Existing observer service providers. Observer service providers 
that currently deploy certified observers in the Northeast must submit 
an application containing the information specified in paragraph (h)(3) 
of this section, excluding any information specified in paragraph 
(h)(3) of this section that has already been submitted to NMFS.
    (3) Contents of application. An application to become an approved 
observer service provider shall contain the following:
    (i) Identification of the management, organizational structure, and 
ownership structure of the applicant's business, including 
identification by name and general function of all controlling 
management interests in the company, including but not limited to 
owners, board members, officers, authorized agents, and staff. If the 
applicant is a corporation, the articles of incorporation must be 
provided. If the applicant is a partnership, the partnership agreement 
must be provided.
    (ii) The permanent mailing address, phone and fax numbers where the 
owner(s) can be contacted for official correspondence, and the current 
physical location, business mailing address, business telephone and fax 
numbers, and business e-mail address for each office.
    (iii) A statement, signed under penalty of perjury, from each owner 
or owners, board members, and officers, if a corporation, that they are 
free from a conflict of interest as described under paragraph (h)(6) of 
this section.
    (iv) A statement, signed under penalty of perjury, from each owner 
or owners, board members, and officers, if a corporation, describing 
any criminal convictions, Federal contracts they have had, and the 
performance rating they received on the contract, and previous 
decertification action while working as an observer or observer service 
provider.
    (v) A description of any prior experience the applicant may have in 
placing individuals in remote field and/or marine work environments. 
This includes, but is not limited to, recruiting, hiring, deployment, 
and personnel administration.
    (vi) A description of the applicant's ability to carry out the 
responsibilities and duties of a fishery observer services

[[Page 4751]]

provider as set out under paragraph (h)(2) of this section, and the 
arrangements to be used.
    (vii) Evidence of holding adequate insurance to cover injury, 
liability, and accidental death for observers during their period of 
employment (including during training). Workers' Compensation and 
Maritime Employer's Liability insurance must be provided to cover the 
observer, vessel owner, and observer provider. The minimum coverage 
required is $5 million. Observer service providers shall provide copies 
of the insurance policies to observers to display to the vessel owner, 
operator, or vessel manager, when requested.
    (viii) Proof that its observers, either contracted or employed by 
the service provider, are compensated with salaries that meet or exceed 
the U.S. Department of Labor (DOL) guidelines for observers. Observers 
shall be compensated as a Fair Labor Standards Act (FLSA) non-exempt 
employees. Observer providers shall provide any other benefits and 
personnel services in accordance with the terms of each observer's 
contract or employment status.
    (ix) The names of its fully equipped, NMFS/NEFOP certified, 
observers on staff or a list of its training candidates (with resumes) 
and a request for an appropriate NMFS/NEFOP Observer Training class. 
The NEFOP training has a minimum class size of eight individuals, which 
may be split among multiple vendors requesting training. Requests for 
training classes with less than eight individuals will be delayed until 
further requests make up the full training class size. Requests for 
training classes must be made 30 days in advance of the requested date 
and must have a complete roster of trainees at that time.
    (x) An Emergency Action Plan (EAP) describing its response to an 
``at sea'' emergency with an observer, including, but not limited to, 
personal injury, death, harassment, or intimidation.
    (4) Application evaluation. (i) NMFS shall review and evaluate each 
application submitted under paragraphs (h)(2) and (h)(3) of this 
section. Issuance of approval as an observer provider shall be based on 
completeness of the application, and a determination of the applicant's 
ability to perform the duties and responsibilities of a fishery 
observer service provider, as demonstrated in the application 
information. A decision to approve or deny an application shall be made 
by NMFS within 15 business days of receipt of the application by NMFS.
    (ii) If NMFS approves the application, the observer service 
provider's name will be added to the list of approved observer service 
providers found on the NMFS/NEFOP website specified in paragraph (h)(1) 
of this section, and in any outreach information to the industry. 
Approved observer service providers shall be notified in writing and 
provided with any information pertinent to its participation in the 
fishery observer program.
    (iii) An application shall be denied if NMFS determines that the 
information provided in the application is not complete or the 
evaluation criteria are not met. NMFS shall notify the applicant in 
writing of any deficiencies in the application or information submitted 
in support of the application. An applicant who receives a denial of 
his or her application may present additional information to rectify 
the deficiencies specified in the written denial, provided such 
information is submitted to NMFS within 30 days of the applicant's 
receipt of the denial notification from NMFS. In the absence of 
additional information, and after 30 days from an applicant's receipt 
of a denial, an observer provider is required to resubmit an 
application containing all of the information required under the 
application process specified in paragraph (h)(3) of this section to be 
re-considered for being added to the list of approved observer service 
providers.
    (5) Responsibilities of observer service providers. (i) An observer 
service provider must provide observers certified by NMFS/NEFOP 
pursuant to paragraph (i) of this section for deployment in a fishery 
when contacted and contracted by the owner, operator, or vessel manager 
of a vessel fishing, unless the observer service provider refuses to 
deploy an observer on a requesting vessel for any of the reasons 
specified at paragraph (h)(5)(viii) of this section. An approved 
observer service provider must maintain a minimum of eight 
appropriately trained NEFOP certified observers in order to remain 
approved; should a service provider cadre drop below eight, the 
provider must submit the appropriate number of candidates for the next 
available training class. Failure to do so shall be cause for 
suspension of their approved status until rectified.
    (ii) An observer service provider must provide to each of its 
observers:
    (A) All necessary transportation, including arrangements and 
logistics, of observers to the initial location of deployment, to all 
subsequent vessel assignments, and to any debriefing locations, if 
necessary;
    (B) Lodging, per diem, and any other services necessary for 
observers assigned to a fishing vessel or to attend an appropriate 
NMFS/NEFOP Observer Training class;
    (C) The required observer equipment, in accordance with equipment 
requirements listed on the NMFS/NEFOP website specified in paragraph 
(h)(1) of this section, prior to any deployment and/or prior to NMFS 
observer certification training; and
    (D) Individually assigned communication equipment, in working 
order, such as a cell phone or pager, for all necessary communication. 
An observer service provider may alternatively compensate observers for 
the use of the observer's personal cell phone or pager for 
communications made in support of, or necessary for, the observer's 
duties.
    (iii) Observer deployment logistics. Each approved observer service 
provider must assign an available certified observer to a vessel upon 
request. Each approved observer service provider must provide for 
access by industry 24 hours per day, 7 days per week, to enable an 
owner, operator, or manager of a vessel to secure observer coverage 
when requested. The telephone system must be monitored a minimum of 
four times daily to ensure rapid response to industry requests. 
Observer service providers approved under paragraph (h) of this section 
are required to report observer deployments to NMFS daily for the 
purpose of determining whether the predetermined coverage levels are 
being achieved in the appropriate fishery.
    (iv) Observer deployment limitations. Unless alternative 
arrangements are approved by NMFS, an observer provider must not deploy 
any observer on the same vessel for two or more consecutive 
deployments, and not more than twice in any given month. A certified 
observer's first deployment and the resulting data shall be immediately 
edited, and approved, by NMFS prior to any further deployments of that 
observer.
    (v) Communications with observers. An observer service provider 
must have an employee responsible for observer activities on call 24 
hours a day to handle emergencies involving observers or problems 
concerning observer logistics, whenever observers are at sea, stationed 
shoreside, in transit, or in port awaiting vessel assignment.
    (vi) Observer training requirements. The following information must 
be submitted to NMFS to request a certified observer training class at 
least 30 days prior to the beginning of the proposed training class: 
Date of requested training; a list of observer candidates, with a 
minimum of eight individuals; observer candidate resumes; and a

[[Page 4752]]

statement signed by the candidate, under penalty of perjury, that 
discloses the candidate's criminal convictions, if any. All observer 
trainees must complete a basic cardiopulmonary resuscitation/first aid 
course prior to the beginning of a NMFS/NEFOP Observer Training class. 
NMFS may reject a candidate for training if the candidate does not meet 
the minimum qualification requirements as outlined by NMFS National 
Minimum Eligibility Standards for observers as described in paragraph 
(i)(1) of this section.
    (vii) Reports--(A) Observer deployment reports. The observer 
service provider must report to NMFS when, where, to whom, and to what 
fishery an observer has been deployed, within 24 hours of their 
departure. The observer service provider must ensure that the observer 
reports back to NMFS its Observer Contract (OBSCON) data, as described 
in the certified observer training, within 12 hours of landing. OBSCON 
data are to be submitted electronically or by other means as specified 
by NMFS. The observer service provider shall provide the raw (unedited) 
data collected by the observer to NMFS within 72 hours of the trip 
landing.
    (B) Safety refusals. The observer service provider must report to 
NMFS any trip that has been refused due to safety issues, e.g., failure 
to hold a valid USCG Commercial Fishing Vessel Safety Examination Decal 
or to meet the safety requirements of the observer's pre-trip vessel 
safety checklist, within 24 hours of the refusal.
    (C) Biological samples. The observer service provider must ensure 
that biological samples, including whole marine mammals, sea turtles, 
and sea birds, are stored/handled properly and transported to NMFS 
within 7 days of landing.
    (D) Observer debriefing. The observer service provider must ensure 
that the observer remains available to NMFS, including NMFS Office for 
Law Enforcement, for debriefing for at least 2 weeks following any 
observed trip. If requested by NMFS, an observer that is at sea during 
the 2-week period must contact NMFS upon his or her return.
    (E) Observer availability report. The observer service provider 
must report to NMFS any occurrence of inability to respond to an 
industry request for observer coverage due to the lack of available 
observers on staff by 5 pm, Eastern Standard Time, of any day on which 
the provider is unable to respond to an industry request for observer 
coverage.
    (F) Other reports. The observer provider must report possible 
observer harassment, discrimination, concerns about vessel safety or 
marine casualty, observer illness or injury, and any information, 
allegations, or reports regarding observer conflict of interest or 
breach of the standards of behavior must be submitted to NMFS within 24 
hours of the event or within 24 hours of learning of the event.
    (viii) Refusal to deploy an observer. (A) An observer service 
provider may refuse to deploy an observer on a requesting fishing 
vessel if the observer service provider does not have an available 
observer within 72 hours of receiving a request for an observer from a 
vessel.
    (B) An observer service provider may refuse to deploy an observer 
on a requesting fishing vessel if the observer service provider has 
determined that the requesting vessel is inadequate or unsafe pursuant 
to the reasons described atSec.  600.746.
    (C) The observer service provider may refuse to deploy an observer 
on a fishing vessel that is otherwise eligible to carry an observer for 
any other reason, including failure to pay for previous observer 
deployments, provided the observer service provider has received prior 
written confirmation from NMFS authorizing such refusal.
    (6) Limitations on conflict of interest. An observer service 
provider:
    (i) Must not have a direct or indirect interest in a fishery 
managed under Federal regulations, including, but not limited to, a 
fishing vessel, fish dealer, fishery advocacy group, and/or fishery 
research;
    (ii) Must assign observers without regard to any preference by 
representatives of vessels other than when an observer will be 
deployed; and
    (iii) Must not solicit or accept, directly or indirectly, any 
gratuity, gift, favor, entertainment, loan, or anything of monetary 
value from anyone who conducts fishing or fishing related activities 
that are regulated by NMFS, or who has interests that may be 
substantially affected by the performance or nonperformance of the 
official duties of observer providers.
    (7) Removal of observer service provider from the list of approved 
observer service providers. An observer provider that fails to meet the 
requirements, conditions, and responsibilities specified in paragraphs 
(h)(5) and (h)(6) of this section shall be notified by NMFS, in 
writing, that it is subject to removal from the list of approved 
observer service providers. Such notification shall specify the reasons 
for the pending removal. An observer service provider that has received 
notification that it is subject to removal from the list of approved 
observer service providers may submit information to rebut the reasons 
for removal from the list. Such rebuttal must be submitted within 30 
days of notification received by the observer service provider that the 
observer service provider is subject to removal and must be accompanied 
by written evidence that clearly disproves the reasons for removal. 
NMFS shall review information rebutting the pending removal and shall 
notify the observer service provider within 15 days of receipt of the 
rebuttal whether or not the removal is warranted. If no response to a 
pending removal is received by NMFS, the observer service provider 
shall be automatically removed from the list of approved observer 
service providers. The decision to remove the observer service provider 
from the list, either after reviewing a rebuttal, or if no rebuttal is 
submitted, shall be the final decision of NMFS and the Department of 
Commerce. Removal from the list of approved observer service providers 
does not necessarily prevent such observer service provider from 
obtaining an approval in the future if a new application is submitted 
that demonstrates that the reasons for removal are remedied. Certified 
observers under contract with an observer service provider that has 
been removed from the list of approved service providers must complete 
their assigned duties for any fishing trips on which the observers are 
deployed at the time the observer service provider is removed from the 
list of approved observer service providers. An observer service 
provider removed from the list of approved observer service providers 
is responsible for providing NMFS with the information required in 
paragraph (h)(5)(vii) of this section following completion of the trip. 
NMFS may consider, but is not limited to, the following in determining 
if an observer service provider may remain on the list of approved 
observer service providers:
    (i) Failure to meet the requirements, conditions, and 
responsibilities of observer service providers specified in paragraphs 
(h)(5) and (h)(6) of this section;
    (ii) Evidence of conflict of interest as defined under paragraph 
(h)(3) of this section;
    (iii) Evidence of criminal convictions related to:
    (A) Embezzlement, theft, forgery, bribery, falsification or 
destruction of records, making false statements, or receiving stolen 
property; or
    (B) The commission of any other crimes of dishonesty, as defined by 
state law or Federal law that would seriously

[[Page 4753]]

and directly affect the fitness of an applicant in providing observer 
services under this section;
    (iv) Unsatisfactory performance ratings on any Federal contracts 
held by the applicant; and
    (v) Evidence of any history of decertification as either an 
observer or observer provider.
    (i) Observer certification. (1) To be certified, employees or sub-
contractors operating as observers for observer service providers 
approved under paragraph (h) of this section must meet NMFS National 
Minimum Eligibility Standards for observers. NMFS National Minimum 
Eligibility Standards are available at the National Observer Program 
website: http://www.st.nmfs.gov/st4/nop/.
    (2) Observer training. In order to be deployed on any fishing 
vessel, a candidate observer must have passed an appropriate NMFS/NEFOP 
Observer Training course. If a candidate fails training, the candidate 
shall be notified in writing on or before the last day of training. The 
notification will indicate the reasons the candidate failed the 
training. Observer training shall include an observer training trip, as 
part of the observer's training, aboard a fishing vessel with a 
trainer. A certified observer's first deployment and the resulting data 
shall be immediately edited, and approved, by NMFS prior to any further 
deployments of that observer.
    (3) Observer requirements. All observers must:
    (i) Have a valid NMFS/NEFOP fisheries observer certification 
pursuant to paragraph (i)(1) of this section;
    (ii) Be physically and mentally capable of carrying out the 
responsibilities of an observer on board fishing vessels, pursuant to 
standards established by NMFS. Such standards are available from NMFS/
NEFOP website specified in paragraph (h)(1) of this section and shall 
be provided to each approved observer service provider;
    (iii) Have successfully completed all NMFS-required training and 
briefings for observers before deployment, pursuant to paragraph (i)(2) 
of this section; and
    (iv) Hold a current Red Cross (or equivalence) CPR/first aid 
certification.
    (4) Probation and decertification. NMFS has the authority to review 
observer certifications and issue observer certification probation and/
or decertification as described in NMFS policy found on the NMFS/NEFOP 
website specified in paragraph (h)(1) of this section.
    (5) Issuance of decertification. Upon determination that 
decertification is warranted under paragraph (i)(3) of this section, 
NMFS shall issue a written decision to decertify the observer to the 
observer and approved observer service providers via certified mail at 
the observer's most current address provided to NMFS. The decision 
shall identify whether a certification is revoked and shall identify 
the specific reasons for the action taken. Decertification is effective 
immediately as of the date of issuance, unless the decertification 
official notes a compelling reason for maintaining certification for a 
specified period and under specified conditions. Decertification is the 
final decision of NMFS and the Department of Commerce and may not be 
appealed.

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3. Add Sec.  648.18 to subpart A to read as follows:


Sec.  648.18  Standardized bycatch reporting methodology.

    NMFS shall comply with the Standardized Bycatch Reporting 
Methodology (SBRM) provisions established in the following fishery 
management plans: Atlantic Bluefish; Atlantic Herring; Atlantic Salmon; 
Deep-Sea Red Crab; Mackerel, Squid, and Butterfish; Monkfish; Northeast 
Multispecies; Northeast Skate Complex; Sea Scallop; Spiny Dogfish; 
Summer Flounder, Scup, and Black Sea Bass; Surfclam and Ocean Quahog; 
and Tilefish.

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4. In Sec.  648.21, paragraph (c)(13) is added to read as follows:


Sec.  648.21  Procedures for determining initial annual amounts.

    (c) * * *
    (13) Changes, as appropriate, to the Northeast Region SBRM, 
including the coefficient of variation (CV) based performance standard, 
fishery stratification, and/or reports.
* * * * *

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5. In Sec.  648.24, paragraph (a)(1) is revised to read as follows:


Sec.  648.24  Framework adjustments to management measures.

    (a) * * *
    (1) Adjustment process. The Council shall develop and analyze 
appropriate management actions over the span of at least two Council 
meetings. The Council must provide the public with advance notice of 
the availability of the recommendation(s), appropriate justification(s) 
and economic and biological analyses, and the opportunity to comment on 
the proposed adjustment(s) at the first meeting and prior to and at the 
second Council meeting. The Council's recommendations on adjustments or 
additions to management measures must come from one or more of the 
following categories: Minimum fish size, maximum fish size, gear 
restrictions, gear requirements or prohibitions, permitting 
restrictions, recreational possession limit, recreational seasons, 
closed areas, commercial seasons, commercial trip limits, commercial 
quota system including commercial quota allocation procedure and 
possible quota set asides to mitigate bycatch, recreational harvest 
limit, annual specification quota setting process, FMP Monitoring 
Committee composition and process, description and identification of 
EFH (and fishing gear management measures that impact EFH), description 
and identification of habitat areas of particular concern, overfishing 
definition and related thresholds and targets, regional gear 
restrictions, regional season restrictions (including option to split 
seasons), restrictions on vessel size (LOA and GRT) or shaft 
horsepower, changes to the Northeast Region SBRM (including the CV-
based performance standard, the means by which discard data are 
collected/obtained, fishery stratification, reports, and/or industry-
funded observers or observer set-aside programs), any other management 
measures currently included in the FMP, set aside quota for scientific 
research, regional management, and process for inseason adjustment to 
the annual specification.
* * * * *

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6. In Sec.  648.55, paragraph (e)(32) is revised and paragraph (e)(33) 
is added to read as follows:


Sec.  648.55  Framework adjustments to management measures.

* * * * *
    (e) * * *
    (32) Changes to the Northeast Region SBRM, including the CV-based 
performance standard, the means by which discard data are collected/
obtained, fishery stratification, reports, and/or industry-funded 
observers or observer set-aside programs.
    (33) Any other management measures currently included in the FMP.
* * * * *

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7. In Sec.  648.77, paragraph (a)(1) is revised to read as follows:


Sec.  648.77  Framework adjustments to management measures.

    (a) * * *
    (1) Adjustment process. The Council shall develop and analyze 
appropriate management actions over the span of at

[[Page 4754]]

least two Council meetings. The Council must provide the public with 
advance notice of the availability of the recommendation(s), 
appropriate justification(s) and economic and biological analyses, and 
the opportunity to comment on the proposed adjustment(s) at the first 
meeting, and prior to and at the second Council meeting. The Council's 
recommendations on adjustments or additions to management measures must 
come from one or more of the following categories: The overfishing 
definition (both the threshold and target levels), description and 
identification of EFH (and fishing gear management measures that impact 
EFH), habitat areas of particular concern, set-aside quota for 
scientific research, VMS, OY range, suspension or adjustment of the 
surfclam minimum size limit, and changes to the Northeast Region SBRM 
(including the CV-based performance standard, the means by which 
discard data are collected/obtained, fishery stratification, reports, 
and/or industry-funded observers or observer set-aside programs).
* * * * *

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8. In Sec.  648.90, paragraphs (a)(2)(i), (a)(2)(iii), (b)(1)(ii), and 
(c)(1)(i) are revised to read as follows:


Sec.  648.90  NE Multispecies assessment, framework procedures and 
specifications, and flexible area action system.

* * * * *
    (a) * * *
    (2) Biennial review. (i) Beginning in 2005, the NE Multispecies PDT 
shall meet on or before September 30 every other year, unless otherwise 
specified in paragraph (a)(3) of this section, under the conditions 
specified in that paragraph, to perform a review of the fishery, using 
the most current scientific information available provided primarily 
from the NEFSC. Data provided by states, ASMFC, the USCG, and other 
sources may also be considered by the PDT. Based on this review, the 
PDT will develop target TACs for the upcoming fishing year(s) and 
develop options for Council consideration, if necessary, on any 
changes, adjustments, or additions to DAS allocations, closed areas, or 
on other measures necessary to achieve the FMP goals and objectives, 
including changes to the Northeast Region SBRM. For the 2005 biennial 
review, an updated groundfish assessment, peer-reviewed by independent 
scientists, will be conducted to facilitate the PDT review for the 
biennial adjustment, if needed, for the 2006 fishing year. Amendment 13 
biomass and fishing mortality targets may not be modified by the 2006 
biennial adjustment unless review of all valid pertinent scientific 
work during the 2005 review process justifies consideration.
* * * * *
    (iii) Based on this review, the PDT shall recommend target TACs and 
develop options necessary to achieve the FMP goals and objectives, 
which may include a preferred option. The PDT must demonstrate through 
analyses and documentation that the options they develop are expected 
to meet the FMP goals and objectives. The PDT may review the 
performance of different user groups or fleet Sectors in developing 
options. The range of options developed by the PDT may include any of 
the management measures in the FMP, including, but not limited to: 
Target TACs, which must be based on the projected fishing mortality 
levels required to meet the goals and objectives outlined in the FMP 
for the 10 regulated species, Atlantic halibut (if able to be 
determined), and ocean pout; DAS changes; possession limits; gear 
restrictions; closed areas; permitting restrictions; minimum fish 
sizes; recreational fishing measures; description and identification of 
EFH; fishing gear management measures to protect EFH; designation of 
habitat areas of particular concern within EFH; and changes to the 
Northeast Region SBRM, including the CV-based performance standard, the 
means by which discard data are collected/obtained, fishery 
stratification, reports, and/or industry-funded observers or observer 
set-aside programs. In addition, the following conditions and measures 
may be adjusted through future framework adjustments: Revisions to 
status determination criteria, including, but not limited to, changes 
in the target fishing mortality rates, minimum biomass thresholds, 
numerical estimates of parameter values, and the use of a proxy for 
biomass; DAS allocations (such as the category of DAS under the DAS 
reserve program, etc.) and DAS baselines, etc.; modifications to 
capacity measures, such as changes to the DAS transfer or DAS leasing 
measures; calculation of area-specific TACs, area management 
boundaries, and adoption of area-specific management measures; Sector 
allocation requirements and specifications, including establishment of 
a new Sector; measures to implement the U.S./Canada Resource Sharing 
Understanding, including any specified TACs (hard or target); changes 
to administrative measures; additional uses for Regular B DAS; future 
uses for C DAS; reporting requirements; the GOM Inshore Conservation 
and Management Stewardship Plan; GB Cod Gillnet Sector allocation; 
allowable percent of TAC available to a Sector through a Sector 
allocation; categorization of DAS; DAS leasing provisions; adjustments 
for steaming time; adjustments to the Handgear A permit; gear 
requirements to improve selectivity, reduce bycatch, and/or reduce 
impacts of the fishery on EFH; SAP modifications; and any other 
measures currently included in the FMP.
* * * * *
    (b) * * *
    (1) * * *
    (ii) The WMC shall recommend management options necessary to 
achieve FMP goals and objectives pertaining to small-mesh multispecies, 
which may include a preferred option. The WMC must demonstrate through 
analyses and documentation that the options it develops are expected to 
meet the FMP goals and objectives. The WMC may review the performance 
of different user groups or fleet Sectors in developing options. The 
range of options developed by the WMC may include any of the management 
measures in the FMP, including, but not limited to: Annual target TACs, 
which must be based on the projected fishing mortality levels required 
to meet the goals and objectives outlined in the FMP for the small-mesh 
multispecies; possession limits; gear restrictions; closed areas; 
permitting restrictions; minimum fish sizes; recreational fishing 
measures; description and identification of EFH; fishing gear 
management measures to protect EFH; designation of habitat areas of 
particular concern within EFH; changes to the Northeast Region SBRM, 
including the CV-based performance standard, the means by which discard 
data are collected/obtained, fishery stratification, reports, and/or 
industry-funded observers or observer set-aside programs; and any other 
management measures currently included in the FMP.
* * * * *
    (c) * * *
    (1) * * *
    (i) After a management action has been initiated, the Council shall 
develop and analyze appropriate management actions over the span of at 
least two Council meetings. The Council shall provide the public with 
advance notice of the availability of both the proposals and the 
analyses and opportunity to comment on them prior to and at the second 
Council meeting. The Council's recommendation on adjustments or 
additions to management measures, other than to address gear conflicts,

[[Page 4755]]

must come from one or more of the following categories: DAS changes, 
effort monitoring, data reporting, possession limits, gear 
restrictions, closed areas, permitting restrictions, crew limits, 
minimum fish sizes, onboard observers, minimum hook size and hook 
style, the use of crucifer in the hook-gear fishery, fleet Sector 
shares, recreational fishing measures, area closures and other 
appropriate measures to mitigate marine mammal entanglements and 
interactions, description and identification of EFH, fishing gear 
management measures to protect EFH, designation of habitat areas of 
particular concern within EFH, changes to the Northeast Region SBRM, 
and any other management measures currently included in the FMP. In 
addition, the Council's recommendation on adjustments or additions to 
management measures pertaining to small-mesh NE multispecies, other 
than to address gear conflicts, must come from one or more of the 
following categories: Quotas and appropriate seasonal adjustments for 
vessels fishing in experimental or exempted fisheries that use small 
mesh in combination with a separator trawl/grate (if applicable), 
modifications to separator grate (if applicable) and mesh 
configurations for fishing for small-mesh NE multispecies, adjustments 
to whiting stock boundaries for management purposes, adjustments for 
fisheries exempted from minimum mesh requirements to fish for small-
mesh NE multispecies (if applicable), season adjustments, declarations, 
participation requirements for the Cultivator Shoal Whiting Fishery 
Exemption Area, and changes to the Northeast Region SBRM (including the 
CV-based performance standard, the means by which discard data are 
collected/obtained, fishery stratification, reports, and/or industry-
funded observers or observer set-aside programs).
* * * * *

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9. In Sec.  648.96, the section heading, paragraphs (a), (b)(5), and 
(c)(1)(i) are revised to read as follows:


Sec.  648.96  Monkfish annual adjustment process and framework 
specifications.

    (a) General. The Monkfish Monitoring Committee (MFMC) shall meet on 
or before November 15 of each year to develop target TACs for the 
upcoming fishing year in accordance with paragraph (b)(1) of this 
section, and options for NEFMC and MAFMC consideration on any changes, 
adjustment, or additions to DAS allocations, trip limits, size limits, 
the Northeast Region SBRM (including the CV-based performance standard, 
fishery stratification, and/or reports), or other measures necessary to 
achieve the Monkfish FMP's goals and objectives. The MFMC shall review 
available data pertaining to discards and landings, DAS, and other 
measures of fishing effort; stock status and fishing mortality rates; 
enforcement of and compliance with management measures; and any other 
relevant information.
    (b) * * *
    (5) Annual review process. The Monkfish Monitoring Committee (MFMC) 
shall meet on or before November 15 of each year to develop options for 
the upcoming fishing year, as needed, and options for NEFMC and MAFMC 
consideration on any changes, adjustment, or additions to DAS 
allocations, trip limits, size limits, the Northeast Region SBRM 
(including the CV-based performance standard, fishery stratification, 
and/or reports), or other measures necessary to achieve the Monkfish 
FMP's goals and objectives. The MFMC shall review available data 
pertaining to discards and landings, DAS, and other measures of fishing 
effort; stock status and fishing mortality rates; enforcement of and 
compliance with management measures; and any other relevant 
information.
* * * * *
    (c) * * *
    (1) * * *
    (i) Based on their annual review, the MFMC may develop and 
recommend, in addition to the target TACs and management measures 
established under paragraph (b) of this section, other options 
necessary to achieve the Monkfish FMP's goals and objectives, which may 
include a preferred option. The MFMC must demonstrate through analysis 
and documentation that the options it develops are expected to meet the 
Monkfish FMP goals and objectives. The MFMC may review the performance 
of different user groups or fleet sectors in developing options. The 
range of options developed by the MFMC may include any of the 
management measures in the Monkfish FMP, including, but not limited to: 
Closed seasons or closed areas; minimum size limits; mesh size limits; 
net limits; liver-to-monkfish landings ratios; annual monkfish DAS 
allocations and monitoring; trip or possession limits; blocks of time 
out of the fishery; gear restrictions; transferability of permits and 
permit rights or administration of vessel upgrades, vessel replacement, 
or permit assignment; measures to minimize the impact of the monkfish 
fishery on protected species; gear requirements or restrictions that 
minimize bycatch or bycatch mortality; transferable DAS programs; 
changes to the Northeast Region SBRM, including the CV-based 
performance standard, the means by which discard data are collected/
obtained, fishery stratification, reports, and/or industry-funded 
observers or observer set-aside programs; and other frameworkable 
measures included in Sec. Sec.  648.55 and 648.90.
* * * * *

0
10. In Sec.  648.100, paragraph (a) is revised and paragraph (b)(12) is 
added to read as follows:


Sec.  648.100  Catch quotas and other restrictions.

    (a) Review. The Summer Flounder Monitoring Committee shall review 
each year the following data, subject to availability, unless a TAL has 
already been established for the upcoming calendar year as part of a 
multiple-year specification process, provided that new information does 
not require a modification to the multiple-year quotas, to determine 
the annual allowable levels of fishing and other restrictions necessary 
to achieve, with at least a 50-percent probability of success, a 
fishing mortality rate (F) that produces the maximum yield per recruit 
(Fmax): Commercial, recreational, and research catch data; current 
estimates of fishing mortality; stock status; recent estimates of 
recruitment; virtual population analysis results; levels of 
noncompliance by fishermen or individual states; impact of size/mesh 
regulations; discards; sea sampling and winter trawl survey data or, if 
sea sampling data are unavailable, length frequency information from 
the winter trawl survey and mesh selectivity analyses; impact of gear 
other than otter trawls on the mortality of summer flounder; and any 
other relevant information.
    (b) * * *
    (12) Changes, as appropriate, to the Northeast Region SBRM, 
including the CV-based performance standard, fishery stratification, 
and/or reports.
* * * * *

0
11. In Sec.  648.108, paragraph (a)(1) is revised to read as follows:


Sec.  648.108  Framework adjustments to management measures.

    (a) * * *
    (1) Adjustment process. The Council shall develop and analyze 
appropriate management actions over the span of at least two Council 
meetings. The Council must provide the public with advance notice of 
the availability of the recommendation(s), appropriate

[[Page 4756]]

justification(s) and economic and biological analyses, and the 
opportunity to comment on the proposed adjustment(s) at the first 
meeting and prior to and at the second Council meeting. The Council's 
recommendations on adjustments or additions to management measures must 
come from one or more of the following categories: Minimum fish size, 
maximum fish size, gear restrictions, gear requirements or 
prohibitions, permitting restrictions, recreational possession limit, 
recreational seasons, closed areas, commercial seasons, commercial trip 
limits, commercial quota system including commercial quota allocation 
procedure and possible quota set asides to mitigate bycatch, 
recreational harvest limit, annual specification quota setting process, 
FMP Monitoring Committee composition and process, description and 
identification of essential fish habitat (and fishing gear management 
measures that impact EFH), description and identification of habitat 
areas of particular concern, overfishing definition and related 
thresholds and targets, regional gear restrictions, regional season 
restrictions (including option to split seasons), restrictions on 
vessel size (LOA and GRT) or shaft horsepower, operator permits, 
changes to the Northeast Region SBRM (including the CV-based 
performance standard, the means by which discard data are collected/
obtained, fishery stratification, reports, and/or industry-funded 
observers or observer set-aside programs), any other commercial or 
recreational management measures, any other management measures 
currently included in the FMP, and set aside quota for scientific 
research.
* * * * *

0
12. In Sec.  648.120, paragraph (a) is revised and paragraph (b)(13) is 
added to read as follows:


Sec.  648.120  Catch quotas and other restrictions.

    (a) Review. The Scup Monitoring Committee shall review each year 
the following data, subject to availability, unless a TAL already has 
been established for the upcoming calendar year as part of a multiple-
year specification process, provided that new information does not 
require a modification to the multiple-year quotas: Commercial, 
recreational, and research data; current estimates of fishing 
mortality; stock status; recent estimates of recruitment; virtual 
population analysis results; levels of noncompliance by fishermen or 
individual states; impact of size/mesh regulations; impact of gear on 
the mortality of scup; discards; and any other relevant information. 
This review will be conducted to determine the allowable levels of 
fishing and other restrictions necessary to achieve the F that produces 
the maximum yield per recruit (Fmax).
    (b) * * *
    (13) Changes, as appropriate, to the Northeast Region SBRM, 
including the CV-based performance standard, fishery stratification, 
and/or reports.
* * * * *

0
13. In Sec.  648.140, paragraph (a) is revised and paragraph (b)(12) is 
added to read as follows:


Sec.  648.140  Catch quotas and other restrictions.

    (a) Review. The Black Sea Bass Monitoring Committee shall review 
each year the following data, subject to availability, unless a TAL 
already has been established for the upcoming calendar year as part of 
a multiple-year specification process, provided that new information 
does not require a modification to the multiple-year quotas, to 
determine the allowable levels of fishing and other restrictions 
necessary to result in a target exploitation rate of 23 percent (based 
on Fmax) in 2003 and subsequent years: Commercial, recreational, and 
research catch data; current estimates of fishing mortality; stock 
status; recent estimates of recruitment; virtual population analysis 
results; levels of noncompliance by fishermen or individual states; 
impact of size/mesh regulations; discards; sea sampling and winter 
trawl survey data, or if sea sampling data are unavailable, length 
frequency information from the winter trawl survey and mesh selectivity 
analyses; impact of gear other than otter trawls, pots and traps on the 
mortality of black sea bass; and any other relevant information.
    (b) * * *
    (12) Changes, as appropriate, to the Northeast Region SBRM, 
including the CV-based performance standard, fishery stratification, 
and/or reports.
* * * * *

0
14. In Sec.  648.160, paragraph (a) is revised and paragraph (b)(9) is 
added to read as follows:


Sec.  648.160  Catch quotas and other restrictions.

* * * * *
    (a) Annual review. On or before August 15 of each year, the 
Bluefish Monitoring Committee will meet to determine the total 
allowable level of landings (TAL) and other restrictions necessary to 
achieve the target fishing mortality rate (F) specified in the Fishery 
Management Plan for Atlantic Bluefish for the upcoming fishing year or 
the estimated F for the fishing year preceding the Council submission 
of the recommended specifications, whichever F is lower. In determining 
the TAL and other restrictions necessary to achieve the specified F, 
the Bluefish Monitoring Committee will review the following data, 
subject to availability: Commercial, recreational, and research catch 
data; current estimates of fishing mortality; stock status; recent 
estimates of recruitment; virtual population analysis results; levels 
of noncompliance by fishermen or individual states; impact of size/mesh 
regulations; discards; sea sampling data; impact of gear other than 
otter trawls and gill nets on the mortality of bluefish; and any other 
relevant information.
    (b) * * *
    (9) Changes, as appropriate, to the Northeast Region SBRM, 
including the CV-based performance standard, fishery stratification, 
and/or reports.
* * * * *

0
15. In Sec.  648.165, paragraph (a)(1) is revised to read as follows:


Sec.  648.165  Framework specifications.

    (a) * * *
    (1) Adjustment process. After a management action has been 
initiated, the Council shall develop and analyze appropriate management 
actions over the span of at least two Council meetings. The Council 
shall provide the public with advance notice of the availability of 
both the proposals and the analysis and the opportunity to comment on 
them prior to and at the second Council meeting. The Council's 
recommendation on adjustments or additions to management measures must 
come from one or more of the following categories: Minimum fish size, 
maximum fish size, gear restrictions, gear requirements or 
prohibitions, permitting restrictions, recreational possession limit, 
recreational season, closed areas, commercial season, description and 
identification of essential fish habitat (EFH), fishing gear management 
measures to protect EFH, designation of habitat areas of particular 
concern within EFH, changes to the Northeast Region SBRM (including the 
CV-based performance standard, the means by which discard data are 
collected/obtained, fishery stratification, reports and/or industry-
funded observers or observer set-aside programs), and any

[[Page 4757]]

other management measures currently included in the FMP.
* * * * *

0
16. In Sec.  648.200, paragraph (b) introductory text is revised to 
read as follows:


Sec.  648.200  Specifications.

* * * * *
    (b) Guidelines. As the basis for its recommendations under 
paragraph (a) of this section, the PDT shall review available data 
pertaining to: Commercial and recreational catch data; current 
estimates of fishing mortality; discards; stock status; recent 
estimates of recruitment; virtual population analysis results and other 
estimates of stock size; sea sampling and trawl survey data or, if sea 
sampling data are unavailable, length frequency information from trawl 
surveys; impact of other fisheries on herring mortality; and any other 
relevant information. The specifications recommended pursuant to 
paragraph (a) of this section must be consistent with the following:
* * * * *

0
17. In Sec.  648.206, paragraphs (b)(28) and (b)(29) are revised and 
paragraph (b)(30) is added to read as follows:


Sec.  648.206  Framework provisions.

* * * * *
    (b) * * *
    (28) TAC set-aside amounts, provisions, adjustments;
    (29) Changes, as appropriate, to the Northeast Region SBRM, 
including the CV-based performance standard, the means by which discard 
data are collected/obtained, fishery stratification, reports, and/or 
industry-funded observers or observer set-aside programs; and
    (30) Any other measure currently included in the FMP.
* * * * *

0
18. In Sec.  648.230, paragraphs (a), (b)(4), and (b)(5) are revised 
and paragraph (b)(6) is added to read as follows:


Sec.  648.230  Catch quotas and other restrictions.

    (a) Process for setting specifications. The Spiny Dogfish 
Monitoring Committee will review the following data at least every 5 
years, subject to availability, to determine the total allowable level 
of landings (TAL) and other restrictions necessary to assure that a 
target fishing mortality rate specified in the Spiny Dogfish Fishery 
Management Plan will not be exceeded in each year for which TAL and any 
other measures are recommended: Commercial and recreational catch data; 
discards; current estimates of F; stock status; recent estimates of 
recruitment; virtual population analysis results; levels of 
noncompliance by fishermen or individual states; impact of size/mesh 
regulations; sea sampling data; impact of gear other than otter trawls 
and gill nets on the mortality of spiny dogfish; and any other relevant 
information.
    (b) * * *
    (4) Trip limits;
    (5) Changes to the Northeast Region SBRM, including the CV-based 
performance standard, fishery stratification, and/or reports; or
    (6) Other gear restrictions.
* * * * *

0
19. In Sec.  648.237, paragraph (a)(1) is revised to read as follows:


Sec.  648.237  Framework provisions.

    (a) * * *
    (1) Adjustment process. After the Councils initiate a management 
action, they shall develop and analyze appropriate management actions 
over the span of at least two Council meetings. The Councils shall 
provide the public with advance notice of the availability of both the 
proposals and the analysis for comment prior to, and at, the second 
Council meeting. The Councils' recommendation on adjustments or 
additions to management measures must come from one or more of the 
following categories: Minimum fish size; maximum fish size; gear 
requirements, restrictions or prohibitions (including, but not limited 
to, mesh size restrictions and net limits); regional gear restrictions; 
permitting restrictions and reporting requirements; recreational 
fishery measures (including possession and size limits and season and 
area restrictions); commercial season and area restrictions; commercial 
trip or possession limits; fin weight to spiny dogfish landing weight 
restrictions; onboard observer requirements; commercial quota system 
(including commercial quota allocation procedures and possible quota 
set-asides to mitigate bycatch, conduct scientific research, or for 
other purposes); recreational harvest limit; annual quota specification 
process; FMP Monitoring Committee composition and process; description 
and identification of essential fish habitat; description and 
identification of habitat areas of particular concern; overfishing 
definition and related thresholds and targets; regional season 
restrictions (including option to split seasons); restrictions on 
vessel size (length and GRT) or shaft horsepower; target quotas; 
measures to mitigate marine mammal entanglements and interactions; 
regional management; changes to the Northeast Region SBRM, including 
the CV-based performance standard, the means by which discard data are 
collected/obtained, fishery stratification, reports, and/or industry-
funded observers or observer set-aside program; any other management 
measures currently included in the Spiny Dogfish FMP; and measures to 
regulate aquaculture projects.
* * * * *

0
20. In Sec.  648.260, paragraph (b) introductory text is revised to 
read as follows:


Sec.  648.260  Specifications.

* * * * *
    (b) Development of specifications. In developing the management 
measures and specifications, the PDT shall review at least the 
following data, if available: Commercial catch data; current estimates 
of fishing mortality and catch-per-unit-effort (CPUE); discards; stock 
status; recent estimates of recruitment; virtual population analysis 
results and other estimates of stock size; sea sampling, port sampling, 
and survey data or, if sea sampling data are unavailable, length 
frequency information from port sampling and/or surveys; impact of 
other fisheries on the mortality of red crabs; and any other relevant 
information.
* * * * *

0
21. In Sec.  648.293, paragraphs (a)(1)(xiv) and (xv) are revised and 
paragraph (a)(1)(xvi) is added to read as follows:


Sec.  648.293  Framework specifications.

    (a) * * *
    (1) * * *
    (xiv) Habitat areas of particular concern,
    (xv) Set-aside quotas for scientific research, and
    (xvi) Changes to the Northeast Region SBRM, including the CV-based 
performance standard, the means by which discard data are collected/
obtained, fishery stratification, reports, and/or industry-funded 
observers or observer set-aside programs.
* * * * *

0
22. In Sec.  648.321, paragraphs (b)(19) and (b)(20) are revised and 
paragraph (b)(21) is added to read as follows:


Sec.  648.321  Framework adjustment process.

* * * * *
    (b) * * *
    (19) OY and/or MSY specifications;
    (20) Changes to the Northeast Region SBRM, including the CV-based 
performance standard, the means by which discard data are collected/
obtained, fishery stratification, reports, and/or industry-funded 
observers or observer set-aside programs; and

[[Page 4758]]

    (21) Any other measures contained in the FMP.
* * * * *
[FR Doc. E8-1436 Filed 1-25-08; 8:45 am]
BILLING CODE 3510-22-S