[Federal Register Volume 76, Number 42 (Thursday, March 3, 2011)]
[Proposed Rules]
[Pages 11858-11890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4395]



[[Page 11857]]

Vol. 76

Thursday,

No. 42

March 3, 2011

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 648



Magnuson-Stevens Fishery Conservation and Management Act Provisions; 
Fisheries of the Northeastern United States; Northeast (NE) 
Multispecies Fishery; Framework Adjustment 45; Proposed Rule

  Federal Register / Vol. 76 , No. 42 / Thursday, March 3, 2011 / 
Proposed Rules  

[[Page 11858]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100923469-1002-02]
RIN 0648-BA27


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast (NE) 
Multispecies Fishery; Framework Adjustment 45

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement measures in Framework 
Adjustment (FW) 45 to the NE Multispecies Fishery Management Plan 
(FMP). FW 45 was developed by the New England Fishery Management 
Council (Council) to prevent overfishing, rebuild overfished stocks, 
achieve optimum yield (OY), and minimize the economic impact of 
management measures on affected vessels, pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). 
This action would revise the biological reference points and stock 
status for pollock, update annual catch limits (ACLs) for several 
stocks for fishing years (FYs) 2011-2012, adjust the rebuilding program 
for Georges Bank (GB) yellowtail flounder, increase scallop vessel 
access to the Great South Channel Exemption Area, approve five new 
sectors, modify the existing dockside and at-sea monitoring 
requirements, revise several sector administrative provisions, 
establish a Gulf of Maine (GOM) Cod Spawning Protection Area, and 
refine measures affecting the catch of limited access NE multispecies 
Handgear A vessels. This action would disapprove the Council's proposed 
catch limits for GB yellowtail flounder for FY 2011, and instead 
propose new catch limits for this stock through emergency action 
authority based on new flexibility provided by the International 
Fisheries Agreement Clarification Act. This action is necessary to 
ensure that the fishery is managed on the basis of the best available 
science, to comply with the acceptable biological catch (ABC) control 
rules adopted in Amendment 16 to the FMP, and to enhance the viability 
of the fishery following the transition to sector management in 2010.

DATES: Comments must be received by March 18, 2011.

ADDRESSES: You may submit comments, identified by 0648-BA27, by any of 
the following methods:
     Electronic submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov.
     Fax: (978) 281-9135, Attn: Douglas Christel.
     Mail: Paper, disk, or CD-ROM comments should be sent to 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the 
outside of the envelope, ``Comments on the Proposed Rule for NE 
Multispecies Framework Adjustment 45.''
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://regulations.gov without change. 
All Personal Identifying Information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit Confidential Business Information or otherwise sensitive or 
protected information. NMFS will accept anonymous comments (enter N/A 
in the required fields, if you wish to remain anonymous). You may 
submit attachments to electronic comments in Microsoft Word, Excel, 
WordPerfect, or Adobe PDF file formats only.
    Copies of FW 45, its Regulatory Impact Review (RIR), a draft of the 
environmental assessment (EA) prepared for this action, and the Initial 
Regulatory Flexibility Act (IRFA) analysis prepared by the Council are 
available from Paul J. Howard, Executive Director, New England Fishery 
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The 
IRFA analysis assessing the impacts of the proposed measures on small 
entities and describing steps taken to minimize any significant 
economic impact on such entities is summarized in the Classification 
section of this proposed rule. The FW 45 EA/RIR/IRFA, as well as the 
relevant analyses for Amendment 16 and other recent actions, are also 
accessible via the Internet at http://www.nefmc.org/nemulti/index.html 
or http://www.nero.noaa.gov. Copies of recent stock assessments for 
stocks managed by the FMP are also accessible via the Internet at 
http://www.nefsc.noaa.gov/groundfish.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule should be submitted to the Regional Administrator at the address 
above and to the Office of Management and Budget (OMB) by e-mail at 
[email protected], or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Douglas W. Christel, Fishery Policy 
Analyst, phone: 978-281-9141, fax: 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    The FMP specifies management measures for 16 species in Federal 
waters off the New England and Mid-Atlantic coasts, including both 
large-mesh and small-mesh species. Small-mesh species include silver 
hake (whiting), red hake, offshore hake, and ocean pout; while large-
mesh species include Atlantic cod, haddock, yellowtail flounder, 
pollock, American plaice, witch flounder, white hake, windowpane 
flounder, Atlantic halibut, winter flounder, redfish, and Atlantic 
wolffish. Large-mesh species are further divided into 19 individual 
stocks and are referred to as ``regulated species,'' that, along with 
ocean pout, are collectively referred to as groundfish.
    A major overhaul of the FMP occurred in 2004 with implementation of 
Amendment 13 on May 1, 2004 (April 27, 2004; 69 FR 22906), which 
included the establishment of rebuilding programs for stocks managed by 
the FMP and measures necessary to end overfishing, rebuild overfished 
stocks, and help mitigate the economic impacts of effort reductions in 
the fishery to the extent practicable. Amendment 13 also established a 
biennial adjustment process intended to update status determination 
criteria, adopt and update rebuilding programs, and revise management 
measures necessary to achieve the objectives of the FMP and the 
mandates of applicable law. A second substantial revision to the FMP 
came in 2010, with the implementation of Amendment 16 (April 9, 2010; 
75 FR 18262). Amendment 16 updated status determination criteria for 
all regulated NE multispecies and ocean pout stocks based upon revised 
assessments for all stocks; adopted rebuilding programs for stocks 
newly classified as being overfished and subject to overfishing; and 
revised management measures to achieve the conservation objectives of 
the FMP and to minimize the economic impacts of such measures, 
including significant revisions to the sector management measures, 
reporting requirements, trip limits, and days-at-

[[Page 11859]]

sea (DAS) measures. Amendment 16 not only established a process for 
specifying ABCs and ACLs and distributing available catch among 
components of the fishery that catch regulated species and ocean pout, 
but it also specified accountability measures (AMs) necessary to 
prevent overfishing on these stocks and addressed overages of ACLs, as 
required by the Magnuson-Stevens Act. 16 U.S.C. 1801 et seq. In another 
action, FW 44 (April 9, 2010; 75 FR 18356), NMFS set the ACLs for FYs 
2010 through 2012, and distributed such allocations among the various 
components of the fishery that catch these stocks. An April 9, 2010, 
final rule (75 FR 18113) implemented the approval of 17 new sectors in 
FY 2010, and specified their respective annual catch entitlements 
(ACEs, or sector quotas) for each stock allocated to sectors pursuant 
to Amendment 16.
    The Council developed FW 45 as part of the established framework 
and biennial adjustment process to revise measures necessary to prevent 
overfishing and rebuild overfished stocks, while achieving OY in the 
fishery and minimizing economic impact to the extent practicable. 
Pursuant to the Magnuson-Stevens Act, the Council has proposed FW 45 to 
NMFS, which has reviewed the proposal and is presenting it for public 
review. If implemented, FW 45 would set and update ACLs for several 
stocks pursuant to the process established by Amendment 16 and FW 44. 
Updated stock assessments for pollock and GB yellowtail flounder 
conducted in 2010 require the ACLs originally established under FW 44 
to be updated based upon revised stock status for pollock and a revised 
rebuilding program for GB yellowtail flounder proposed in FW 45. 
Further, following the transition to sectors under Amendment 16, the 
Council realized that several changes to existing measures are 
necessary to make the Amendment 16 measures work more effectively, as 
described below.

Proposed Measures

    The following summarizes the measures proposed by the Council in FW 
45, based on the order in which applicable provisions appear in the 
regulations at 50 CFR part 648. These measures build upon the 
provisions implemented by previous management actions, and are intended 
to either supplement or replace existing regulations, as described for 
each measure. This proposed rule also includes revisions to regulations 
that are not specifically identified in FW 45, but that are necessary 
to correct errors in, or clarify, existing provisions, as described 
further below. The proposed regulations implementing measures in FW 45 
were deemed by the Council to be consistent with FW 45, and necessary 
to implement such provisions pursuant to section 303(c) of the 
Magnuson-Stevens Act through a January 11, 2011, letter from the 
Council Chairman to the Regional Administrator (RA).

1. Status Determination Criteria for Pollock

    Amendment 16 updated the status determination criteria for existing 
NE multispecies regulated species and ocean pout stocks based upon the 
best available scientific information regarding stock status resulting 
from the Groundfish Assessment Review Meeting (GARM III), a 
comprehensive stock assessment for all species managed by the FMP, 
conducted in August 2008. GARM III originally characterized pollock as 
overfished and subject to overfishing. However, due to the high 
uncertainty of the determination of pollock stock status, as noted in 
the GARM III stock assessment conclusions, and on the advice from the 
Council's Scientific and Statistical Committee (SSC), the body charged 
by the Magnuson-Stevens Act with recommending an ABC to the Council for 
each stock, an updated pollock stock assessment was conducted in 2010. 
The pollock peer-reviewed benchmark stock assessment review (Stock 
Assessment Workshop, or SAW, 50) was completed in June 2010, with the 
final summary report completed on July 14, 2010. This assessment 
determined that pollock is not overfished or subject to overfishing. 
Thus, this species no longer requires the rebuilding program 
established in Amendment 16. Based upon this updated assessment, NMFS 
implemented an emergency action (July 20, 2010; 75 FR 41996) to 
incorporate the results of this assessment and update the status 
determination criteria and the associated FY 2010 ABC and ACL for this 
species. On December 1, 2010 (75 FR 74661), this emergency action was 
continued through the end of FY 2010 (April 30, 2011).
    In FW 45, NMFS proposes to integrate the results of the 2010 
pollock stock assessment into the FMP. Table 1 lists the proposed 
revised status determination criteria, with numerical estimates of 
these parameters listed in Table 2. The revised biomass target 
parameter for pollock, where spawning stock biomass is at maximum 
sustainable yield (SSBMSY) or its proxy, is SSB at 40 
percent maximum spawning potential (MSP). The maximum fishing mortality 
rate (F) threshold is the FMSY proxy, or 
F40MSP.

                   Table 1--Description of the Proposed Pollock Status Determination Criteria
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                                         Biomass target          Minimum biomass      Maximum fishing mortality
              Species                       (Btarget)               threshold                 threshold
----------------------------------------------------------------------------------------------------------------
Pollock............................  SSBMSY: SSB/R (40%MSP)  \1/2\ Btarget.........  F40MSP
----------------------------------------------------------------------------------------------------------------


               Table 2--Numerical Estimates for the Proposed Pollock Status Determination Criteria
----------------------------------------------------------------------------------------------------------------
                                         Biomass target          Maximum fishing
              Species                 (SSBMSY or proxy) in     mortality threshold            MSY in mt
                                               mt                (FMSY or proxy)
----------------------------------------------------------------------------------------------------------------
Pollock............................  91,000................  0.41..................  16,200
----------------------------------------------------------------------------------------------------------------

2. Rebuilding Program for GB Yellowtail Flounder

    In 2004, GARM II concluded that the GB yellowtail flounder stock 
was overfished and subject to overfishing. In response, the Council 
developed a rebuilding program for this stock in FW 42 (October 23, 
2006; 71 FR 62156). That rebuilding program incorporated an adaptive 
rebuilding strategy that was expected to rebuild the stock by 2014 with 
a 75-percent probability of success, and was anticipated to rebuild 
this stock in 8 years, 2 years ahead of the

[[Page 11860]]

maximum rebuilding period allowed by section 304(e)(4) of the Magnuson-
Stevens Act. The intent of that rebuilding program was to rebuild the 
stock as quickly as possible, consistent with efforts to jointly manage 
this stock with Canada as part of the U.S./Canada Resource Sharing 
Understanding (Understanding).
    More recent estimates of the status of this stock conducted by the 
Transboundary Resource Assessment Committee (TRAC) in July 2010 
indicate that overfishing is not occurring, but that the stock is still 
in an overfished condition (TRAC 2010/05). This estimate is affected by 
updated estimates of the 2005 year class that suggest this year class 
is much smaller than previously thought. This report concludes that it 
is not possible to rebuild this stock by 2014, even at F = 0. 
Accordingly, as part of FW 45, the Council proposes to revise the GB 
yellowtail flounder rebuilding program to rebuild the stock by 2016, 
with a 50-percent probability of success to extend the rebuilding 
program to the maximum extent allowed by applicable law. This revision 
would extend the rebuilding program for this stock out to the maximum 
10-year rebuilding period allowed by the Magnuson-Stevens Act and lower 
the probability of success from 75 percent to 50 percent in order to 
maximize the amount of GB yellowtail flounder that could be caught 
while the stock rebuilds.

3. Overfishing Levels and ABCs for Particular Stocks

    NMFS also proposes in FW 45 to revise the overfishing levels (OFLs) 
and ABCs of particular stocks, including GB cod, GB haddock, GB 
yellowtail flounder, and pollock for FYs 2011 and 2012. Revisions to 
the OFLs and ABCs for pollock and GB yellowtail flounder are based upon 
the updated assessments and revised rebuilding strategies for these 
stocks, as described in Items 1 and 2 of this preamble, respectively, 
and by the 2010 International Fisheries Agreement Clarification Act for 
GB yellowtail flounder, as described in Item 5 of this preamble. 
Revisions to the OFLs and ABCs for the GB cod and GB haddock stocks are 
based upon updated TRAC assessments of the eastern components of the 
stock. It is anticipated that the FY 2012 values of the ABCs for GB 
cod, GB haddock, and GB yellowtail flounder will be revised during 
2011, based on new transboundary stock assessments conducted by the 
TRAC, and will likely be specified again in conjunction with the FY 
2012 U.S./Canada Management Area total allowable catch (TAC) levels, as 
further described in Item 5 of this preamble. Table 3 contains the OFLs 
and ABCs for FYs 2011 and 2012 proposed under FW 45 with the exception 
of GB yellowtail flounder, as noted below. The expected economic 
impacts of the proposed ABCs are summarized below.
    For GB yellowtail flounder, the FY 2011 U.S. ABC shown in Table 3 
represents a revised shared U.S./Canada Management Area TAC based upon, 
and consistent with, determinations and decisions about this stock by 
the Transboundary Management Guidance Committee (TMGC), pursuant to the 
Understanding in a February 9, 2011, conference call. This meeting of 
the TMGC was precipitated based on provisions of the recently enacted 
International Fisheries Agreement Clarification Act which provides 
increased flexibility to NMFS and the Council in setting higher fishing 
limits for those portions of stocks subject to the Understanding. This 
Act states that decisions made under that Understanding should be 
considered as ``management measures under an international agreement'' 
that ``dictate otherwise'' for purposes of section 304(e)(4)(A)(ii) of 
the Act (16 U.S.C. 1854(e)(4)(A)(ii)) and that the Council and the 
Secretary of Commerce may ``establish catch levels for those portions 
of fish stocks within their respective geographic areas covered by the 
Understanding on the date of enactment of this Act that exceed the 
catch levels otherwise required under the Northeast Multispecies 
Fishery Management Plan if * * * overfishing is ended immediately.'' 
(Sec. 202(2) and (3) of the International Fisheries Agreement Act). 
Because the U.S./Canada Management Area represents the entire stock 
area for GB yellowtail flounder, the shared U.S./Canada Management Area 
TAC for this stock also represents the ABC for this stock. The revised 
ABC agreed to by the TMGC is being proposed consistent with the 
provisions of the International Fisheries Agreement Clarification Act 
and the harvest strategy of the Understanding that requires overfishing 
to be prevented and the facilitation of the rebuilding of overfished 
stocks.
    The revised ABC recommended by the TMGC is higher than that 
approved by the Council's SSC and adopted by the Council in FW 45 
(i.e., a U.S. ABC of 1,099 mt for FY 2011 and 1,222 mt for FY 2012). 
Because this revised ABC was not considered by the Council in FW 45, 
NMFS proposes to implement the revised FY 2011 ABC and ACL for this 
stock as a separate but parallel action to FW 45 pursuant to its 
emergency action authority specified in section 305(c) of the Magnuson-
Stevens Act. NMFS has determined that the adoption of the International 
Fisheries Agreement Clarification Act meets the criteria for proposing 
this emergency action, as explained further in Item 5 of this preamble. 
Because this proposed revision would be made under the authority to 
implement a Secretarial emergency action pursuant to section 305(c) of 
the Magnuson-Stevens Act instead of a Council action, the involvement 
of the SSC in the specification of the ABC for this stock is not 
specifically required, although the emergency rule must still be 
consistent with the best scientific information available. Although 
NMFS could wait for the SSC to consider the new assessment, the time 
necessary to complete such a process would unduly delay the possibility 
of increasing the TAC for this stock as quickly as possible and 
addressing the emergency exigencies of this matter. NMFS has determined 
that revising the ABC and ACL through this proposed emergency action is 
consistent with best scientific information available. The duration of 
this proposed revision to the GB yellowtail flounder ABC is limited by 
the Magnuson-Stevens Act to 180 days, but may be extended to make the 
revised ABC and ACL effective for the duration of FY 2011 (through 
April 30, 2012), consistent with the authority in the Magnuson-Stevens 
Act to extend emergency actions for up to an additional 186 days.
    For FYs 2010-2012, the SSC recommended that the ABC for GOM winter 
flounder be specified based on 75 percent of recent catches of this 
stock as part of FW 44. For FY 2011, the Council tasked the SSC with 
reviewing the GOM winter flounder catches for FY 2009 and any 
additional survey information collected since GARM III to determine 
whether revisions to the FY 2011 and 2012 ABCs are necessary for this 
stock. The SSC considered available information at its August 2010 
meeting, as well as an alternative approach to determine the ABC for 
GOM winter flounder by the Groundfish Plan Development Team (PDT) that 
utilized an area-swept survey approach to determine the ABC for this 
stock. However, the SSC was concerned that increased catch resulting 
from the PDT's alternative approach to specifying ABC for this stock 
could compromise stock status or rebuilding, given lingering 
uncertainty regarding the information necessary to evaluate the risks 
of jeopardizing stock status. Therefore, the SSC did not recommend any 
changes to the ABC for this stock, and the FW 44

[[Page 11861]]

values for FY 2011 and FY 2012 are maintained.
    The OFL value for a stock is calculated using the estimated stock 
size for a particular year, and represents the amount of catch 
associated with FMSY, i.e., the F that, if applied over the 
long term, would result in MSY. The ABCs are those recommended to the 
Council's SSC following the SSC's August 25-26, 2010, meeting and its 
reports to the Council at the Council's September and November 2010 
meetings. The ABCs recommended by the SSC are lower than the OFLs in 
order to take into account scientific uncertainty in setting catch 
limits. The ABC value for a stock is calculated using the estimated 
stock size for a particular year based upon the ABC control rules 
established by Amendment 16. The ABC represents the amount of catch 
associated with 75 percent of FMSY, or the F rate required 
to rebuild the stock within the defined rebuilding time period 
(Frebuild), whichever is lower, with the exception of GOM 
and Southern New England (SNE)/Mid-Atlantic (MA) winter flounder. For 
SNE/MA winter flounder, the ABC recommendations are based on estimates 
of discards that result from recent management measures. For GOM winter 
flounder, the ABC recommendation is based on 75 percent of recent 
catches.

                                   Table 3--Proposed Revisions to Overfishing Levels and Acceptable Biological Catches
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                                                                 OFL (mt, live weight)                            U.S. ABC (mt, live weight)
                      Stock                      -------------------------------------------------------------------------------------------------------
                                                    FY 2011      FY 2012      FY 2013      FY 2014      FY 2011      FY 2012      FY 2013      FY 2014
--------------------------------------------------------------------------------------------------------------------------------------------------------
Georges Bank cod................................        7,311      * 8,090           NA           NA        4,766      * 5,364           NA           NA
Georges Bank haddock............................       59,948     * 51,150           NA           NA       34,244     * 29,016           NA           NA
Georges Bank yellowtail flounder................        3,495      * 4,335           NA           NA     ** 1,458           NA           NA           NA
White hake......................................        4,805        5,306           NA           NA        3,295        3,638           NA           NA
Pollock.........................................       21,853       19,887       20,060       20,554       16,900       15,400       15,600       16,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Preliminary estimates that may be revised in 2012 based on TRAC and TMGC considerations.
** This value represents an increase from the U.S. ABC adopted by the Council in FW 45 based on the flexibility afforded by the International Fisheries
  Agreement Clarification Act and described further in Item 5 of this preamble.

4. ACLs

    Similar to adjustments in the OFLs and ABCs described in Item 3 of 
this preamble, FW 45 proposes revisions to the ACLs for several stocks, 
including GB cod, GB haddock, GB yellowtail flounder, white hake, and 
pollock. Pursuant to Magnuson-Stevens Act requirements and Amendment 
16, the Council recommended ACLs that are lower than the ABCs, in order 
to account for management uncertainty. The total ACL for a stock 
represents the catch limit for a particular FY, considering both 
biological and management uncertainty, and the limit includes all 
sources of catch (landed and discards) and all fisheries (commercial 
and recreational groundfish fishery, State-waters catch, and non-
groundfish fisheries). The division of a single ABC value for each 
stock (for a particular FY) into sub-ACLs, and ACL-subcomponents, 
accomplishes three objectives: (1) The ABC is sub-divided to account 
for all components of the fishery and sources of fishing mortality; (2) 
allocations are made for certain fisheries; and (3) management 
uncertainty is taken into account, as described in Appendix II of FW 
45.
    For FW 45 the ABC was sub-divided into fishery components on a 
stock-specific manner, prior to the consideration of management 
uncertainty. The following components of the fishery are reflected in 
the total ABC: Canadian share/allowance (expected Canadian catch); U.S. 
ABC (available to the U.S. fishery after accounting for Canadian 
catch); State waters (portion of ABC expected to be caught from State 
waters outside Federal management); other sub-components (expected 
catch by other non-groundfish fisheries such as exempted fisheries); 
scallop fishery; mid-water trawl fishery; commercial groundfish 
fishery; and recreational groundfish fishery. The percentage of the ABC 
deducted for anticipated catch from State waters is between 1 and 10 
percent for most stocks, but for Atlantic halibut and GOM winter 
flounder, 50 percent and 25 percent of the ABC of each stock is set 
aside for State waters catch, respectively. The amount deducted for 
anticipated catch of other regulated species and ocean pout in other 
sub-components of the fishery is between 4 to 6 percent of the ABC for 
each stock, with the exception of windowpane flounder stocks, in which 
29 percent is set aside for such catch.
    The allocation of yellowtail flounder to the scallop fishery is not 
changed by this framework. Under FW 44, the Council elected to allocate 
100 percent of the estimated GB and SNE/MA yellowtail flounder bycatch 
associated with the projected scallop catch in FY 2010, and 90 percent 
of the yellowtail flounder bycatch projected for the scallop fishery in 
FYs 2011 and 2012. Based on doubts about accurately estimating expected 
bycatch in the scallop fishery and not wanting to unnecessarily 
constrain the scallop fishery, the Council voted to maintain the 
specific FW 44 allocations of yellowtail flounder to the scallop 
fishery under FW 45, rather than base yellowtail flounder allocations 
on current information about anticipated bycatch amounts in the scallop 
fishery. Thus, the SNE/MA yellowtail flounder allocations to the 
scallop fishery listed in Tables 5 and 6 are the same amounts 
implemented under FW 44 in 2010 (the allocation of SNE/MA yellowtail 
flounder remain at 82 and 127 mt, live weight, respectively during FYs 
2011 and 2012), while the GB yellowtail flounder allocations to the 
scallop fishery listed in Tables 11 and 12 remain at 200.8 and 307.5 
mt, live weight, respectively, during FYs 2011 and 2012. No specific 
allocation of Cape Cod (CC)/GOM yellowtail flounder would be made to 
the scallop fishery, because the incidental catches of this stock by 
the scallop fishery are relatively low. Catches of this stock will be 
considered part of the ``other sub-component'' of the ACL.
    The FY 2011 and 2012 yellowtail flounder allocations to the scallop 
fishery are characterized as sub-ACLs to reflect the fact that the 
Council adopted AMs for the scallop fishery that would be responsive to 
yellowtail flounder catches in excess of these sub-ACLs, as part of 
Amendment 15 to the Atlantic Sea Scallop FMP at its November 2010 
meeting. A proposed rule soliciting comment on that action is expected 
to

[[Page 11862]]

be published shortly, with a final decision to approve, partially 
approve, or disapprove such measures expected in spring 2011. Current 
regulations set a cap on the amount of yellowtail flounder that may be 
harvested from the scallop access areas from the SNE/MA and GB 
yellowtail flounder stock areas. Specifically, current regulations cap 
yellowtail flounder harvest from scallop access areas at 10 percent of 
the ``total TAC'' for each of the stock areas. In light of the proposed 
ACL components, ``total TAC'' means ``total ACL.'' For FY 2011, this 
means 10 percent of 1,416 mt (141.6 mt) for GB yellowtail flounder, 
based on the proposed total ACL listed in Table 11 proposed based on 
the flexibility afforded by the International Fisheries Agreement 
Clarification Act, as further described in Item 4 of this preamble 
below. Because the U.S./Canada Management Area represents the entire 
stock area for GB yellowtail flounder, the U.S./Canada Management Area 
TAC for this stock that is available to the U.S. fishery also 
represents the ACL for this stock. The specification and distribution 
of the GB yellowtail flounder ACL is discussed further in Item 5 of 
this preamble and shown in Tables 11 and 12.
    Under this action, the mid-water trawl fishery would be allocated 
0.2 percent of the U.S. ABC for GB and GOM haddock. The values for the 
allocations to the mid-water trawl fishery listed in Table 5 are 
slightly less than 0.2 percent, due to the 7-percent reduction of these 
allocations to account for management uncertainty for this stock. For 
example, the FY 2011 ABC of 32,244 mt was multiplied by 0.002 (32,244 
mt x .002 = 68.5 mt), and then reduced by 4.79 mt (68.5 mt x 0.07 = 
4.79 mt) to arrive at the proposed allocation of 64 mt. Because the 
herring fishery already has AMs associated with this allocation that 
were developed as part of FW 43 (August 15, 2006; 71 FR 46871), all of 
the haddock allocations to the mid-water trawl fishery are 
characterized as sub-ACLs.
    The concept of management uncertainty for the purpose of developing 
ACLs, as outlined in the process specified in Amendment 16 and 
described in detail in FW 44, was characterized as the likelihood that 
management measures will result in a level of catch that is greater 
than the catch objective. Consistent with that process, management 
uncertainty was evaluated for each stock, considering the following 
elements of the fishery and the FMP: Enforceability; monitoring 
adequacy; precision of management tools; latent effort; and catch of 
groundfish in non-groundfish fisheries. For most stocks and components 
of the fishery (ABC components), the default adjustment (reduction) to 
the catch level for a fishery component was 5 percent. For stocks with 
less management uncertainty, the adjustment was 3 percent, and for 
those stocks or components with more management uncertainty, the 
adjustment was 7 percent.
    Tables 5 through 8 list the proposed distribution of the total ACL 
for stocks affected by measures in FW 45 to the groundfish fishery, the 
scallop fishery, the mid-water trawl herring fishery, State waters 
fisheries, and other fishery sub-components, such as exempted 
fisheries. A full list of the FY 2011 ACLs will be sent to NE 
multispecies permit holders and posted on the NMFS Northeast Regional 
Office Web site (http://www.nero.noaa.gov) once finalized. As noted in 
the FW 44 final rule, while ACLs are specified through FY 2012 for most 
stocks, it is likely that the Council will adopt ACLs for FYs 2012 
through 2014 though a future Council action. Therefore, ACLs specified 
through FY 2012 in FW 44 and proposed in this action for FW 45 will 
only be implemented if the anticipated Council action is delayed. In 
contrast, the pollock ACLs are not expected to be revisited until FY 
2013, with any changes effective for FY 2014. The proposed ACL listed 
in Table 5 for white hake corrects an error published in Table 4 of 
both the FW 44 proposed (February 1, 2010; 75 FR 5021) and final rules, 
respectively, that listed the commercial sub-ACL for white hake for FY 
2011 as 2,566 mt (the FY 2010 value) instead of the correct value of 
2,974 mt. For a detailed description of the process used to estimate 
management uncertainty and calculate ACLs as part of FW 45, refer to 
Appendix II of the FW 45 EA (see ADDRESSES).

                                             Table 5--Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011
                                                                    [Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Groundfish  sub-                     Mid-water trawl  State waters ACL   Other ACL sub-
                    Stock                         Total ACL            ACL         Scallop fishery   herring fishery    sub-component      components
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB cod......................................             4,540             4,301                 0                 0                48               191
GB haddock..................................            32,616            30,840                 0                64               342             1,370
SNE/MA yellowtail flounder..................               641               524                82                 0                 0                27
White hake..................................             3,138             2,974                 0                 0                33               132
Pollock.....................................            16,166            13,952                 0                 0               769             1,445
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                             Table 6--Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2012
                                                                    [Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Groundfish  sub-                     Mid-water trawl  State waters ACL   Other ACL sub-
                    Stock                         Total ACL            ACL         Scallop fishery   herring fishery    sub-component      components
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB cod *....................................             5,109             4,841                 0                 0                54               215
GB haddock *................................            27,637            26,132                 0                54               290             1,161
SNE/MA Yellowtail flounder..................               936               759               127                 0                 0                40
White hake..................................             3,465             3,283                 0                 0                36               146
Pollock.....................................            14,736            12,612                 0                 0               754             1,370
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Preliminary estimate that may be revised in 2012 based on Transboundary Resource Assessment Committee and Transboundary Resource Management Committee
  considerations.


[[Page 11863]]


                                         Table 7--Pollock Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2013
                                                                    [Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Groundfish  sub-                     Mid-water trawl  State waters ACL   Other ACL sub-
                    Stock                         Total ACL            ACL         Scallop fishery   herring fishery    sub-component      components
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pollock.....................................            14,927            12,791                 0                 0               756             1,380
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                         Table 8--Pollock Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2014
                                                                    [Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Groundfish  sub-                     Mid-water trawl  State waters ACL   Other ACL sub-
                    Stock                         Total ACL            ACL         Scallop fishery   herring fishery    sub-component      components
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pollock.....................................            15,308            13,148                 0                 0               760             1,400
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The commercial groundfish sub-ACL is further divided into the non-
sector (common pool vessels) sub-ACL and the sector sub-ACL, based on 
the total vessel enrollment in all sectors and the cumulative Potential 
Sector Contributions (PSCs) associated with those sectors. Table 9 
lists the preliminary distribution of the groundfish sub-ACL between 
common pool and sectors based on rosters submitted to NMFS as of 
December 1, 2010. This distribution is different from the common pool 
and sector sub-ACLs listed in the EA for FW 45, as those were based 
upon preliminary sector roster information and do not reflect updated 
rosters submitted to NMFS. However, this distribution is the same as 
the sector sub-ACLs and ACE specified for each sector listed in the 
proposed rule to approve sector operations plans for FY 2011. That rule 
uses sector rosters submitted to NMFS as of December 1, 2010, to 
calculate each individual sector's ACE for FY 2011, and which are 
expected to publish soon. FY 2011 sector rosters will not be finalized 
until May 1, 2011, because the owners of individual permits signed up 
to participate in sectors have until April 30, 2011, to drop out of a 
sector and fish in the common pool. Therefore, it is possible that the 
FY 2011 sector sub-ACL listed in Table 9 and the proposed rule to 
approve the FY 2011 sector operations plans will be reduced at a later 
date, and the common pool sub-ACL will increase, due to vessels leaving 
sectors and entering the common pool after publication of the FW 45 
final rule and specification of ACLs for FY 2011.
    Despite such changes, the proposed groundfish sub-ACL (common pool 
sub-ACL plus the sector sub-ACL) listed in Tables 5 through 8 would not 
likely change. Based on the final rosters, NMFS intends to publish a 
rule in early May 2011 to modify these sub-ACLs, and notify the public 
if these numbers change. In addition, it is almost certain that all of 
the FY 2012 sub-ACLs for the common pool and sectors will change and be 
re-specified prior to FY 2012 due to annual changes to the sector 
rosters and changes to the ABCs for GB cod, GB haddock, and GB 
yellowtail flounder based on the specification of Canadian TACs for 
these stocks, as described above in Item 5 of this preamble.

         Table 9--Preliminary Distribution of Groundfish Sub-ACL Between Common Pool and Sector Vessels
                                                [Mt, live weight]
----------------------------------------------------------------------------------------------------------------
                                       Groundfish sub-ACL        Common pool sub-ACL         Sector sub-ACL
               Stock               -----------------------------------------------------------------------------
                                      FY 2011     FY 2012 *     FY 2011     FY 2012 *     FY 2011     FY 2012 *
----------------------------------------------------------------------------------------------------------------
Georges Bank cod..................        4,301        4,841           99          111        4,202        4,730
Georges Bank haddock..............       30,840       26,132          129          109       30,711       26,023
Georges Bank yellowtail flounder          1,142        1,142         17.4         17.4      1,124.6      1,124.6
 **...............................
White hake........................        2,974        3,283           35           39        2,939        3,244
Pollock...........................       13,952       12,612          138          125       13,814       12,487
----------------------------------------------------------------------------------------------------------------
* Preliminary estimate that may be revised in 2012 based on updated sector rosters and Transboundary Resource
  Assessment Committee and Transboundary Resource Management Committee considerations.
** These values represent an increase from the ACLs adopted by the Council in FW 45 based on the flexibility
  afforded by the International Fisheries Agreement Clarification Act and described further in Item 5 of this
  preamble.

5. Annual Specifications for the U.S./Canada Management Area

    The FMP specifies a procedure for setting annual hard TAC levels 
(i.e., TACs that, when reached, will trigger a regulatory response in 
the form of area closures or other restrictions) for Eastern GB cod, 
Eastern GB haddock, and GB yellowtail flounder in the U.S./Canada 
Management Area. The regulations governing the annual development of 
TACs were authorized by Amendment 13 to the FMP in order to be 
consistent with the Understanding, an informal agreement between the 
Northeast Region of NMFS and the Maritimes Region of the Department of 
Fisheries and Ocean of Canada (DFO) that outlines a process for the 
management of the shared GB groundfish resources. The Understanding 
specifies an allocation of TAC for these three stocks for each country, 
based on a formula that considers historical catch percentages and 
current resource distribution.
    Annual TACs for these stocks are determined through a process 
involving the Council, the TMGC, and the U.S./Canada Transboundary 
Resources Steering Committee. In August 2010, the TMGC approved the 
2010 Guidance

[[Page 11864]]

Documents for Eastern GB cod and Eastern GB haddock, which included 
recommended U.S. TACs for these stocks. The recommended FY 2011 TACs 
were based on the most recent stock assessments (TRAC Status Reports 
for 2010), and the fishing mortality strategy shared by NMFS, the 
Department of Fisheries and DFO. The shared strategy has two parts: (1) 
To maintain a low to neutral (less than 50-percent) risk of exceeding 
the F limit reference (Fref = 0.18, 0.26, and 0.25 for cod, haddock, 
and yellowtail flounder, respectively); and (2) when stock conditions 
are poor, F should be further reduced to promote rebuilding. The 
Council reviewed the recommendations of the TMGC and approved those 
recommendations at its September 2010 meeting, as detailed further 
below.
    The TMGC concluded that the most appropriate combined U.S./Canada 
TAC for Eastern GB cod for FY 2011 is 1,050 mt. This TAC corresponds to 
the average of the pertinent two models for a low risk (less than 25-
percent) of exceeding the Fref of 0.18 (i.e., FMSY) in FY 
2011, and a greater than neutral probability of biomass growth of up to 
10 percent. The annual allocation shares between countries for FY 2011 
are based on a combination of historical catches (10-percent weighting) 
and resource distribution based on trawl surveys (90-percent 
weighting). Applying this formula results in the proposed allocations 
of 19 percent of the shared TAC to the U.S. and 81 percent for Canada, 
or a FY 2011 quota of 200 mt for the U.S. and 850 mt for Canada.
    For Eastern GB haddock, the TMGC concluded that the most 
appropriate combined U.S./Canada Management Area TAC for FY 2011 is 
22,000 mt. This corresponds to a 50-percent risk of exceeding Fref 
(i.e., FMSY) of 0.26, assuming the entire TAC will be caught 
in FY 2010. In reality, this TAC level represents a low risk level, 
because the anticipated catch in FY 2010 will likely be less than the 
FY 2010 TAC. The annual allocation share recommendations between 
countries for FY 2010 are based on a combination of historical catches 
(10-percent weighting) and resource distribution based on trawl surveys 
(90-percent weighting). Applying this formula results in proposed 
allocations of 43 percent of the shared TAC to the U.S. and 57 percent 
to Canada, or a FY 2011 quota of 9,640 mt for the U.S. and 12,540 mt 
for Canada.
    For GB yellowtail flounder, the TMGC concluded that the most 
appropriate combined U.S./Canada Management Area TAC for FY 2011 is 
1,900 mt. This TAC corresponds to a low probability (< 25 percent) of 
exceeding Fref (i.e., FMSY) of 0.25, and an 
expected 10-percent increase in median biomass from 2011 to 2012. The 
TMGC noted that F was below 0.15 in 2008 and 2009. The annual 
allocation share recommendations between countries for FY 2011 are 
based on a combination of historical catches (10-percent weighting) and 
resource distribution based on trawl surveys (90-percent weighting). 
This weighting results in proposed allocations of 55 percent of the 
shared TAC to the United States and 45 percent to Canada, or a FY 2011 
quota of 1,045 mt for the United States and 855 mt for Canada.

            Table 10--2011 U.S./Canada TACs (Mt, Live Weight) and Percentage Shares (In Parentheses)
----------------------------------------------------------------------------------------------------------------
                                                                                Eastern GB       GB yellowtail
                                                           Eastern GB cod        haddock            flounder
----------------------------------------------------------------------------------------------------------------
Total Shared TAC.......................................        1,050             22,000              1,900
U.S. TAC...............................................         200 (19%)        9,640 (43%)        1,045 (55%)
Canada TAC.............................................         850 (81%)       12,540 (57%)          855 (45%)
----------------------------------------------------------------------------------------------------------------

    This proposed rule notifies the public that a recent statute, the 
International Fisheries Agreement Clarification Act, signed by 
President Obama on January 4, 2011, affects the proposed FY 2011 U.S./
Canada Management Area TAC and ACL for GB yellowtail flounder. 
Specifically, the new statute allows for additional flexibility under 
the Understanding regarding the range of catch levels that may be 
considered for GB yellowtail flounder, which allows for a higher yearly 
TAC for this species.
    As described in Item 4 of this preamble, the catch limits for GB 
yellowtail flounder result from the annual recommendation of the TMGC, 
a group that consists of NMFS and United States fishing industry 
representatives and their counterparts in the DFO and the Canadian 
fishing industry. Based on the new flexibility provided by the 
International Fisheries Clarification Act, the TMGC held a conference 
call on February 9, 2011, to reconsider the FY 2011 shared GB 
yellowtail flounder TAC. During this conference call, the TMGC agreed 
to a revised shared GB yellowtail flounder TAC for FY 2011 of 2,650 mt 
(documentation of this call is available from NMFS, see ADDRESSES). 
This revised TAC represents a 39 percent increase compared to the FY 
2011 TAC (i.e., 1,900 mt) originally adopted by the Council as part of 
FW 45, and would increase the amount of GB yellowtail flounder 
allocated to the directed NE multispecies fishery (1,142 mt) by 44 
percent compared to the amount of this stock originally allocated to 
this fishery under FW 45 (790.7 mt). NMFS is considering implementing 
this revised U.S./Canada Management Area TAC for this stock based upon 
Secretarial emergency authority specified in section 305(c) of the 
Magnuson-Stevens Act through the final rule that would implement 
approved measures under FW 45. To put this in the context of the 
Magnuson-Stevens Act, NMFS is proposing to disapprove the ABC, ACL, and 
U.S./Canada Management Area TAC for GB yellowtail flounder adopted by 
the Council in FW 45, and to replace them, through its emergency 
authority, with the revised ABC, ACL, and U.S./Canada Management Area 
TAC for this stock recommended by the TMGC following its February 9, 
2011 conference call.
    NMFS policy guidelines for the use of emergency rules (August 21, 
1997; 62 FR 44421) specify the following three criteria that define 
what an emergency situation is, and justification for final rulemaking: 
(1) The emergency results from recent, unforeseen events or recently 
discovered circumstances; (2) the emergency presents serious 
conservation or management problems in the fishery; and (3) if the 
emergency action is being implemented without prior public comment, the 
emergency can be addressed through emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and deliberative consideration of the impacts on participants 
to the same extent as would be expected under the normal rulemaking 
process. In this case, the third prong of these criteria is not 
directly involved because NMFS is providing opportunity for prior 
public comment. NMFS policy guidelines further provide that emergency 
action is justified for certain situations where

[[Page 11865]]

emergency action would prevent significant direct economic loss, or to 
preserve a significant economic opportunity that otherwise might be 
foregone. The 2010 International Fisheries Agreement Act, signed into 
law by President Obama on January 4, 2011, is considered to be a 
``recently discovered circumstance,'' because the Council was not aware 
if or when the legislation would be considered by Congress when it 
adopted final measures under FW 45 at its November 2010 meeting. The 
emergency presents serious management concerns because the low catch 
limits for GB yellowtail flounder dictated by Magnuson-Stevens Act 
requirements in force before the International Fisheries Agreement Act 
was enacted could result in substantially reduced fishing effort and 
decreased catch and revenue compared to the higher catch limits that 
would be available if action is taken pursuant to the International 
Fisheries Agreement Act. For the common pool fishery, when the 
projected catch of GB yellowtail flounder is equal to the common pool 
GB yellowtail flounder sub-ACL, such vessels may no longer fish in the 
Eastern U.S./Canada Area, and may not possess yellowtail flounder 
caught in the Western U.S./Canada Area. For vessels fishing in sectors, 
when an individual sector's GB yellowtail flounder ACE is caught, 
participating vessels may no longer fish in the U.S./Canada Management 
Area. As a result of the loss of access to the Eastern U.S./Canada Area 
(for common pool vessels) or the whole U.S./Canada Management Area (for 
sector vessels), not only do vessels lose revenue associated with GB 
yellowtail flounder, but they lose revenue associated with multiple 
other stocks that are caught concurrently, such as GB winter flounder. 
Emergency action to increase the GB yellowtail flounder ACL and U.S./
Canada Management Area TAC would enable additional economic opportunity 
that could otherwise be forgone and, therefore, likely avoid economic 
impacts from an unnecessarily low ACL for this stock, based upon 
applicable law. Therefore, NMFS has determined that the current 
situation meets the criteria for emergency action.
    Because the U.S./Canada Management Area represents the entire stock 
area for GB yellowtail flounder, the U.S./Canada Management Area TAC 
for this stock that is available to the U.S. fishery also represents 
the ACL for this stock. Thus, the revised GB yellowtail flounder TAC 
proposed in this action also requires applicable changes to the ACL, 
and how the ACL for this stock is distributed to the various components 
of the fishery that catch this stock, that were adopted by the Council 
in FW 45. The proposed revised GB yellowtail flounder ACL, sub-ACL, and 
ACL sub-components are specified in Tables 11 and 12 for FYs 2011 and 
2012, respectively. A revised U.S./Canada TAC for GB yellowtail 
flounder would not affect the sub-ACL for the scallop fishery, 
specified by FW 45 as 200.8 mt.

                             Table 11--Revised GB Yellowtail Flounder Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011
                                                                    [Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Mid-Water trawl herring   State waters ACL  sub-       Other ACL sub-
        Total ACL            Groundfish sub-ACL          Scallop fishery               fishery                 component                components
--------------------------------------------------------------------------------------------------------------------------------------------------------
               1,416                     1,142                     200.8                         0                         0                       73
--------------------------------------------------------------------------------------------------------------------------------------------------------


                             Table 12--Revised GB Yellowtail Flounder Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2012
                                                                    [Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Mid-water trawl herring   State waters ACL  sub-       Other ACL sub-
       Total ACL*            Groundfish sub-ACL          Scallop fishery               fishery                 component                components
--------------------------------------------------------------------------------------------------------------------------------------------------------
               1,426                     1,046                     307.5                         0                         0                       77
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Preliminary estimate that may be revised in 2011 based on TRAC and TMGC considerations.

    The regulations related to the Understanding, promulgated by the 
final rule implementing Amendment 13, state that ``any overages of the 
GB cod, haddock, or yellowtail flounder TACs that occur in a given 
fishing year will be subtracted from the respective TAC in the 
following fishing year.'' Therefore, if an analysis of the catch of the 
shared stocks by U.S. vessels indicates that an over-harvest occurred 
during FY 2010, the pertinent components of the ACL would be adjusted 
downward in order to be consistent with the FMP and Understanding. If 
an adjustment to one of the FY 2011 TACs of cod, haddock, or yellowtail 
flounder is necessary, it will be done consistent with the 
Administrative Procedure Act, and the fishing industry will also be 
notified.

6. Incidental Catch TACs and Allocations to Special Management Programs

    This proposed rule specifies incidental catch TACs applicable to 
the NE multispecies special management programs (i.e., special access 
programs (SAPs) and the Regular B DAS Program) for FYs 2011 and 2012, 
based on the proposed common pool sub-ACLs listed in Item 4 of this 
preamble. As noted above, FY 2011 sector rosters will not be finalized 
until May 1, 2011, because permits currently enrolled in sectors have 
until April 30, 2011, to drop out of a sector and fish in the common 
pool. Therefore, the amount of the common pool sub-ACL may change based 
upon changes to the number of vessels participating in the common pool 
during FY 2011. Based on the final rosters, NMFS will publish a rule in 
early May 2011 to modify these sub-ACLs, and notify the public if these 
numbers change.
    Incidental catch TACs are specified for certain stocks of concern 
(i.e., stocks that are overfished or subject to overfishing) for common 
pool vessels fishing in the special management programs, in order to 
limit the amount of catch of stocks of concern that can be caught under 
such programs. The Incidental Catch TACs proposed below are consistent 
with the allocation of incidental catch TACs among special management 
programs in the FMP. However, because pollock is no longer considered 
overfished or subject to overfishing, FW 45 proposes to remove this 
species from the list of stocks of concern, and eliminate the 
incidental catch TAC for this stock.

[[Page 11866]]

    The incidental catch TACs apply to catch (landings and discards) 
that end on a Category B DAS (either Regular or Reserve B DAS). The 
catch of stocks for which incidental catch TACs are specified on trips 
that start under a Category B DAS and then flip to a Category A DAS do 
not accrue toward such TACs, but rather the overall common pool sub-ACL 
for that stock. The incidental catch TACs by stock based on the common 
pool sub-ACL are shown in Table 13, while Tables 14 and 15 list the 
distribution of these TACs among existing special management programs.

                Table 13--Preliminary Common Pool Incidental Catch TACs by Stock for FY 2011-2012
                                                [Mt, live weight]
----------------------------------------------------------------------------------------------------------------
                                                         Percentage of sub-  2011 Incidental    2012 Incidental
                         Stock                                  ACL             catch TAC          catch TAC
----------------------------------------------------------------------------------------------------------------
GB cod.................................................                  2                2.0                2.2
GOM cod................................................                  1                1.3                1.3
GB yellowtail flounder.................................                  2                0.3                0.3
CC/GOM yellowtail flounder.............................                  1                0.3                0.4
SNE/MA yellowtail flounder.............................                  1                1.1                1.7
American plaice........................................                  5                3.9                4.1
Witch flounder.........................................                  5                1.2                1.2
SNE/MA winter flounder.................................                  1                7.3                7.6
GB winter flounder.....................................                  2                0.3                0.3
White hake.............................................                  2                0.7                0.8
----------------------------------------------------------------------------------------------------------------


                Table 14--Distribution of Incidental Catch TACs Among Special Management Programs
                                                [Mt, live weight]
----------------------------------------------------------------------------------------------------------------
                                                                              Closed area I
                                                           Regular B DAS        hook gear        Eastern U.S./
                         Stock                           program (percent)     haddock SAP       Canada haddock
                                                                                (percent)        SAP (percent)
----------------------------------------------------------------------------------------------------------------
GB cod.................................................                 50                 16                 34
GOM cod................................................                100                 na                 na
GB yellowtail flounder.................................                 50                 na                 50
CC/GOM yellowtail flounder.............................                100                 na                 na
SNE/MA yellowtail flounder.............................                100                 na                 na
Plaice.................................................                100                 na                 na
Witch flounder.........................................                100                 na                 na
SNE/MA winter flounder.................................                100                 na                 na
GB winter flounder.....................................                 50                 na                 50
White hake.............................................                100                 na                 na
Pollock................................................                 50                 16                 34
----------------------------------------------------------------------------------------------------------------


            Table 15--Incidental Catch TACs for Special Management Programs by Stock for FY 2011-2012
                                                [Mt, live weight]
----------------------------------------------------------------------------------------------------------------
                                     Regular B DAS  program    Closed area I hook gear     Eastern U.S./Canada
                                   --------------------------        haddock SAP               haddock SAP
               Stock                                         ---------------------------------------------------
                                      FY 2011      FY 2012      FY 2011      FY 2012      FY 2011      FY 2012
----------------------------------------------------------------------------------------------------------------
GB cod............................         1.0          1.1           0.3          0.4          0.7          0.8
GOM cod...........................         1.3          1.3            na           na           na           na
GB yellowtail flounder............         0.15         0.15           na           na          0.1          0.1
CC/GOM yellowtail flounder........         0.3          0.4            na           na           na           na
SNE/MA yellowtail flounder........         1.1          1.7            na           na           na           na
American plaice...................         3.9          4.1            na           na           na           na
Witch flounder....................         1.2          1.2            na           na           na           na
SNE/MA winter flounder............         7.3          7.6            na           na           na           na
GB winter flounder................         0.1          0.2            na           na          0.1          0.2
White hake........................         0.7          0.8            na           na           na           na
----------------------------------------------------------------------------------------------------------------

7. Great South Channel Exemption Area

    The current regulations at Sec.  648.80 state that a vessel may not 
fish in either the GOM or GB Exemption Areas unless it is fishing under 
a NE multispecies or a scallop DAS, is fishing with exempted gear, or 
is fishing in an exempted fishery, among other restrictions. Several 
exempted fisheries were created by previous adjustments to the FMP 
based on a procedure for adding, modifying, or deleting fisheries from 
the list of exempted fisheries originally established by FW 9 to the 
FMP on April 15, 1995 (60 FR 19364), and expanded in Amendment 7 on May 
31, 1996 (61 FR 27710). A fishery may be exempted by the NMFS NE RA 
after consultation with the Council, if the RA determines, based on 
available data or information, that the bycatch of

[[Page 11867]]

regulated species of groundfish is, or can be reduced to, less than 5 
percent by weight of the total catch, and that such exemption will not 
jeopardize the fishing mortality objectives of the FMP.
    On October 25, 2005, a request was submitted on behalf of the 
General Category scallop fleet to establish an additional exempted 
scallop dredge fishery in the GOM/GB Exemption Area, in the vicinity of 
traditional scalloping grounds within the area known as the Great South 
Channel, off Cape Cod, MA. This request was approved, and the Great 
South Channel Exemption Area was created, on August 31, 2006 (71 FR 
51779). That rule allowed vessels issued a general category scallop 
permit, then an open access permit, and vessels with limited access 
scallop permits not fishing under a scallop DAS allocation, to use 
small dredges with a combined width not greater than 10.5 ft (3.2 m) in 
portions of the Great South Channel. Two large portions of the 
exemption area were closed seasonally to General Category scallop 
vessels to protect spawning populations of yellowtail flounder during 
peak spawning periods, including a southern closure from April 1 
through June 30 of each year, and a northern closure from June 1 
through June 30. However, limited access scallop vessels fishing under 
a scallop DAS could still fish within the Great South Channel Exemption 
Area during those peak spawning periods because their catch of 
scallops, and, therefore, yellowtail flounder, was limited by the DAS 
effort controls in the scallop fishery.
    Since the 2006 rulemaking that created the Great South Channel 
Exemption Area, the general category scallop permits have become 
limited access permits subject to an individual fishing quota (IFQ) 
system under Amendment 11 to the Atlantic Sea Scallop FMP (April 14, 
2008; 72 FR 20090). Amendment 11 redefined the general category permits 
as ``limited access general category,'' or ``LAGC'' permits, and 
imposed limits on the amount of scallop catch from each LAGC IFQ 
vessels. Because of the catch limits of the IFQs, the amount of 
regulated species and ocean pout, particularly yellowtail flounder, 
caught by these vessels is also limited. Thus, the main justification 
for the spawning protection areas for general category scallop 
vessels--to minimize the impact on spawning yellowtail flounder--has 
been significantly mitigated through these catch limits. Further 
evaluation of the catch of limited access scallop vessels fishing on a 
DAS during these spawning periods reveals that the bycatch of 
yellowtail flounder in these areas during the peak spawning periods is 
below the 5-percent bycatch threshold established for exempted 
fisheries under Amendment 7. Therefore, based upon an industry request 
to reevaluate the necessity of these spawning closures, FW 45 proposes 
to eliminate the yellowtail spawning closure areas within the Great 
South Channel Exemption Area and allow all scallop vessels, including 
LAGC scallop vessels, to fish within this area throughout the entire 
year in accordance with applicable scallop regulations. To clarify that 
scallop vessels operating in the Great South Channel Exemption Area are 
still subject to the applicable scallop regulations, a reference to the 
scallop regulations at subpart D of 50 CFR part 648 was included in the 
proposed regulations.

8. GOM Cod Spawning Protection Area

    During the solicitation of public comment on measures proposed 
under Amendment 16, several individuals expressed concern regarding the 
impact of fishing activity on known spawning aggregations of GOM cod. 
Similar concerns were identified by the Massachusetts Division of 
Marine Fisheries during the early development of FW 45. In response, FW 
45 proposes to create a GOM Cod Spawning Protection Area that would be 
effective from April through June of each year to protect spawning 
aggregations of GOM cod.
    The proposed GOM Cod Spawning Protection Area is rectangular in 
shape and would be located just south of the Isle of Shoals off the New 
Hampshire coastline, with its long axis oriented in a northwest to 
southeast direction. The exact coordinates for this proposed area are 
specified in section 4.3.2 of FW 45 and in this proposed rule. This 
area was identified by researchers at the University of New Hampshire, 
working in conjunction with several commercial fishing vessels, and 
corresponds to areas and times when large spawning cod congregate 
during peak spawning months. The proposed area is intended to prevent 
fishing from interfering with spawning activity and reducing future 
recruitment in the fishery.
    As proposed, all commercial fishing vessels using gear capable of 
catching groundfish would be prohibited from fishing within the 
proposed area from June 1 through June 30 of each year, while all 
recreational vessels would be prohibited from using gear capable of 
catching groundfish in the area from April 1 through June 30 of each 
year. For commercial vessels, only vessels fishing with ``exempted 
gear,'' as defined in the current regulations, would be allowed into 
this area during the closure periods. Exempted gear includes pelagic 
hook and line gear, pelagic longline gear, spears, rakes, diving gear, 
cast nets, tongs, harpoons, weirs, dipnets, stop nets, pound nets, 
pelagic gillnets, pots and traps, shrimp trawls with a properly 
configured grate, and surfclam and ocean quahog dredges. Pelagic 
gillnet gear is currently further defined as a single pelagic gillnet 
not longer than 300 ft (91.4 m) and not greater than 6 ft (1.83 m) 
deep, with a maximum mesh size of 3 inches (7.6 cm), that is attached 
to the boat and fished in the upper two-thirds of the water column. 
Only pelagic hook-and-line gear, as defined in the current regulations, 
would be allowed to be used in the area by recreational vessels. For 
both recreational and commercial vessels, ``pelagic hook and line 
gear'' is defined as handline or rod and reel gear that is designed to 
fish for, or that is being used to fish for, pelagic species, no 
portion of which is designed to be or is operated in contact with the 
bottom at any time. The catch or possession of any regulated species or 
ocean pout by vessels using the exempted gear described above from 
April 1 through June 30 of each year would be prohibited. Both 
recreational and commercial vessels would be allowed to transit the 
proposed area, provided all gear is stowed according to existing 
regulations.
    During the development of FW 45, draft measures and discussions at 
Council and Groundfish Oversight Committee meetings made it clear that 
the Council did not intend to allow vessels using midwater trawl gear 
to fish in the proposed GOM Cod Spawning Protection Area from April 1 
through June 30. However, it is less clear whether the Council intended 
this prohibition to also apply to vessels employing purse seine gear. 
The proposed regulations to implement FW 45 that were submitted by the 
RA to the Council for deeming consistent with section 303(c) the 
Magnuson-Stevens Act reflected the current text in the FW 45 document, 
as described above. Therefore, because midwater trawl gear and purse 
seine gear are not included in the current list of exempted gear, this 
action would not allow commercial vessels fishing with either midwater 
trawl gear or purse seines into this area during June of each year. 
These regulations were deemed consistent with FW 45 and the FMP by the 
Council Chairman through a letter dated January 11, 2011. Accordingly, 
NMFS considers the proposed regulations to be consistent with Council 
intent for FW 45.

[[Page 11868]]

9. Handgear A and B Measures

Cod Trip Limit
    Amendment 13 originally created the limited access NE multispecies 
Handgear A permit and open access NE multispecies Handgear B permit, 
and specified the existing effort controls for such permits, including 
trip limits. The cod trip limit for Handgear A and B vessels 
implemented under Amendment 13 was set at 300 lb (135 kg) and 75 lb 
(90.7 kg) per trip, respectively, and did not differentiate between the 
GOM and GB cod stocks. In addition, Amendment 13 implemented measures 
that adjusted these cod trip limits proportionally to any changes to 
the GOM cod limit specified for NE multispecies DAS vessels in Sec.  
648.86(b), rounded up to the nearest 50 lb (22.7 kg) for Handgear A 
vessels and 25 lb (11.3 kg) for Handgear B vessels. Further, Amendment 
13 did not differentiate between the GOM and GB cod stocks regarding 
adjustments to the cod trip limits. Thus, under Amendment 13, if the 
GOM cod limit specified for DAS vessels was reduced, the cod limit for 
Handgear A and B vessels would be reduced as well, regardless of 
whether such vessels fished in either the GOM or GB cod stock area, as 
demonstrated in an adjustment to such trip limits on July 30, 2010 (75 
FR 44924).
    FW 45 proposes to rectify these two issues by clarifying that the 
cod trip limits applicable to Handgear A and B vessels are stock-
specific to the GOM or GB cod stock, including any adjustments to such 
trip limits. Handgear A vessels would be subject to an initial cod 
limit of 300 lb (135 kg) per trip for both the GOM and GB cod stocks, 
until NMFS adjusts the cod trip limit applicable to common pool vessels 
fishing under a NE multispecies DAS for either of these stocks below 
300 lb (135 kg) per trip. Once either the GOM or the GB cod trip limit 
for common pool DAS vessels is reduced below 300 lb (135 kg) per DAS, 
the applicable cod trip limit for Handgear A vessels would be adjusted 
to be the same as the daily limit for common pool DAS vessels. For 
example, if only the GOM cod trip limit for NE multispecies DAS vessels 
was reduced to 250 lb (113.4 kg) per DAS, then the cod trip limit for a 
vessel issued a Handgear A category permit that is fishing in the GOM 
Regulated Mesh Area (i.e., the area specified for the GOM cod trip 
limit) would also be reduced to 250 lb (113.4 kg); however, the cod 
trip limit for a Handgear A vessel fishing for GB cod south of the GOM 
Regulated Mesh Area (the GB cod stock area is considered the GB, SNE, 
and MA Regulated Mesh Areas) would be maintained at 300 lb (135 kg) per 
trip. The initial Handgear B cod limit for both the GOM and GB stocks 
would be maintained at 75 lb (90.7 kg) per trip, but would be adjusted 
proportional (rounded up to the nearest 25 lb (11.4 kg)) to any changes 
in the daily GOM or GB cod trip limits for DAS vessels in the future, 
as necessary. For example, if the GOM cod trip limit was reduced by 50 
percent from 800 lb (362.9 kg) per DAS to 400 lb (181.4 kg) per DAS, 
then the cod trip limit for a Handgear B vessel fishing in the GOM 
Regulated Mesh Area would also be reduced by 50 percent to 37.5 lb (17 
kg), rounded to the nearest 25 lb (11.3 kg), or 50 lb (22.7 kg) per 
trip. In this example, the cod trip limit for a Handgear B vessel 
fishing for GB cod south of the GOM Regulated Mesh Area would be 
maintained at 75 lb (90.7 kg) per trip.
    FW 45 explicitly provides NMFS with the ability to propose 
administrative measures necessary to implement the stock-specific cod 
trip limits, including a letter of authorization (LOA) to fish in 
defined stock areas. Consistent with existing provisions to administer 
different cod trip limits for DAS vessels that were first established 
by FW 20 (April 1, 1997; 62 FR 15381), NMFS proposes to require the 
owner or operator of a Handgear A or B vessel to declare his or her 
intent to fish for GB cod by obtaining and retaining on board a paper 
LOA from the RA. Alternatively, the owner or operator of a Handgear A 
permitted vessel may declare his or her intent to fish for GB cod south 
of the GOM Regulated Mesh Area prior to each trip via a vessel 
monitoring system (VMS), if the vessel elects, or is required (i.e., 
when fishing in multiple broad stock areas on the same trip), to use 
VMS under the current regulations. These declarations enable at-sea 
enforcement personnel to identify the applicable cod trip limits and 
effectively enforce the appropriate regulations during boarding 
operations. The minimum participation period for this LOA would be 7 
consecutive days to minimize the administrative burden of this 
provision, consistent with existing practice for LOAs issued to DAS 
vessels. If a vessel declares via VMS, this would be required on a 
trip-by-trip basis, and no minimum participation period is necessary.
    Because the current cod trip limits are based upon Regulated Mesh 
Area, not stock area, the owner or operator of a Handgear A or B vessel 
that intends to fish for GB cod would commit to fishing south of the 
GOM Regulated Mesh Area. Consistent with the existing cod LOA for DAS 
vessels, this action proposes to restrict vessels issued the cod LOA 
described above to fishing south of the GOM Regulated Mesh Area for the 
duration of the LOA to more effectively enforce this measure. NMFS is 
particularly interested in soliciting public comment regarding this 
restriction, as neither FW 45, nor Council or Groundfish Oversight 
Committee discussion of this measure explicitly considered this 
restriction.

Access to Seasonal Closure Areas

    The catch of regulated species and ocean pout by vessels issued 
either a Handgear A or B permit participating in the common pool is 
limited not only by the cod trip limits described above, but also by 
seasonal closure areas, and the common pool sub-ACL for each stock. The 
current seasonal closure areas in the GOM and on GB run from March 
through June, and October and November, and include large portions of 
inshore waters most frequently fished by the predominantly smaller 
handgear vessels. Accordingly, many of these vessels are unable to fish 
during these months, because it would be unsafe for them to venture 
farther offshore and fish in open areas.
    Existing regulations implementing FW 44 allow the RA to adjust the 
trip limits applicable to common pool vessels, including those issued a 
Handgear A or B permit, to ensure the common pool sub-ACLs are not 
exceeded before the end of the FY. This authority was utilized during 
FY 2010 to reduce trip limits for stocks caught by Handgear A and B 
vessels, including cod and haddock, as early as May 27, 2010 (75 FR 
29678). Thus, handgear vessels are competing against often larger 
trawl, gillnet, and hook vessels to catch the available sub-ACL of each 
stock. However, due to the operational limitations caused by the 
seasonal closure areas, handgear vessels are often precluded from 
fishing, particularly in the GOM, until June or July of each year. If 
common pool trip limits are reduced before June to prevent a sub-ACL 
from being exceeded, the trip limits might be reduced so low as to make 
it economically unviable for handgear vessels to fish at all during a 
particular FY.
    To ensure that handgear vessels are provided an opportunity to fish 
during at least the early part of the FY, FW 45 proposes to exempt both 
Handgear A and B vessels from the GB Seasonal Closure Area defined in 
Sec.  648.81(g), and to allow Handgear A vessels to also fish in the 
Sector Rolling Closure Areas defined in Sec.  648.81(f)(2)(vi)(A) 
through (C), and depicted in section 4.3.3 of FW 45. These latter areas 
represent smaller portions of the GOM Rolling Closure

[[Page 11869]]

Areas, and would enable Handgear A vessels fishing in the GOM a greater 
chance at catching some of the available sub-ACLs for cod and haddock 
during a particular FY before such trip limits are reduced to prevent 
the ACL from being exceeded. It is unlikely that this measure would 
increase F or jeopardize rebuilding requirements for overfished stocks, 
as the sub-ACLs and associated AMs established for the common pool are 
sufficient to prevent overfishing and to continue to rebuild overfished 
stocks.

10. Dockside/Roving Monitor Requirements

    FW 45 proposes several revisions to the existing dockside/roving 
monitor requirements originally established in 2010 under Amendment 16. 
Each of these revisions is considered a separate provision and is 
discussed in further detail below.

Delay in Requirement for Industry To Fund Dockside/Roving Monitors

    One of the primary objections to the dockside/roving monitoring 
program expressed by the public during the development and 
implementation of Amendment 16 and the development of FW 45 was the 
high cost of providing sufficient coverage to monitor offloads. As a 
result, NMFS made sufficient funding available to pay for 100 percent 
of the costs associated with dockside/roving monitoring coverage in FY 
2010, and pledged to do the same in FY 2011 to help alleviate the 
economic impacts of monitoring costs and smooth the transition to a 
quota-based management regime in the FMP.
    To address lingering concerns regarding the ability of the fishing 
industry to pay for future costs of a dockside/roving monitoring 
program, particularly while stocks continue to rebuild, NFMS proposes 
to delay the industry's responsibility for paying for dockside/roving 
monitoring coverage until FY 2013. Instead, NMFS would specify coverage 
levels during FYs 2011 and 2012 based upon available NMFS funding. None 
of the costs associated with dockside/roving monitors during FYs 2011 
and 2012 would be imposed upon the owner or operator of a NE 
multispecies vessel. NMFS would endeavor to provide dockside/roving 
monitoring coverage to observe the offloads of up to 100 percent of 
sector and, for FY 2012, common pool trips, if funds are available. If 
funds are not available for monitoring 100 percent of groundfish trips, 
NMFS would first provide dockside/roving monitor coverage to trips that 
do not have an observer, at-sea monitor, or approved electronic 
monitoring equipment.

Dockside/Roving Monitoring Program Requirements Beginning in FY 2013

    Neither the Council motion approving the delayed industry funding 
of dockside/roving monitor coverage discussed above, nor FW 45 
explicitly describes the Council's intent regarding dockside/roving 
monitoring requirements beginning in FY 2013. Amendment 16 clearly 
indicated the Council's intention to monitor landings of regulated 
species and ocean pout by all limited access NE multispecies vessels 
beginning in FY 2012, and that the industry would eventually be 
responsible for the costs of dockside/roving monitoring requirements. 
Based upon the intention expressed in Amendment 16, NMFS interprets the 
language describing the measures in the FW 45 EA to reinstate the 
dockside/roving monitoring requirements originally implemented under 
Amendment 16 beginning in FY 2013. Thus, proposed regulations to 
implement FW 45 that were submitted by the RA to the Council for 
deeming included, starting again in 2013, the requirement for sectors 
to develop and pay for a dockside/roving monitoring program as part of 
their annual operations plans, the requirement for common pool vessels 
to be subject to dockside/roving monitoring upon the transition to a 
trimester TAC AM, the trip-start and trip-end hail reporting 
requirements associated with such provisions, and the requirement for 
dockside/roving monitors to observe the landings of 20 percent of all 
common pool and sector trips determined in a statistically random 
manner. These regulations were deemed consistent with FW 45 and the FMP 
by the Council Chairman through a letter dated January 11, 2011. 
Accordingly, NMFS considers the proposed regulations to be consistent 
with Council intent for FW 45.
    As noted above, the regulations implementing Amendment 16 currently 
require common pool vessels to comply with dockside/roving monitoring 
requirements beginning in FY 2012. To facilitate administration and 
compliance with the dockside/roving monitoring operational standards 
specified at Sec.  648.87(b)(5), the regulations at Sec.  
648.82(n)(2)(iv) indicate that such vessels may only use one dockside/
roving monitor service provider per FY. Further clarification of this 
requirement was provided in the March 30, 2010, permit holder letter 
explaining the Amendment 16 regulations. That letter indicated that the 
owner of each common pool vessel must contract with a dockside/roving 
monitoring service provider approved by NMFS beginning in FY 2012. 
Because this action proposes to require most common pool vessels to 
comply with the dockside/roving monitoring provisions originally 
implemented under Amendment 16 beginning in FY 2013, this action would 
revise the regulations at Sec.  648.82(n)(2)(iv) to clearly state that 
the owner or operator of each common pool vessel subject to dockside/
roving monitoring requirements must contract for such services with a 
service provider approved by NMFS by 2013. The need for vessel owners 
to contract with a specific service provider is necessary in the 
absence of any NMFS-controlled dockside/roving monitoring program in 
which NMFS can act as a mediator between the fishing industry and 
approved service providers. Further, because each individual permit is 
considered a separate legal entity, NMFS is not inclined to mandate 
that common pool vessels use a particular service provider in a 
particular FY in order to increase competition among service providers 
and potentially decrease costs to the affected vessel owners. Groups of 
vessel owners, however, may elect to contract with the same service 
provider to help lower the costs associated with such requirements.

Exemption of the Dockside/Roving Monitor Requirements for Certain 
Permit Categories

    Vessels issued a limited access NE multispecies Handgear A or Small 
Vessel Category permit, and vessels issued an open access NE 
multispecies Handgear B permit, land very small amounts of regulated 
species and ocean pout compared to vessels issued limited access NE 
multispecies DAS permits. Thus, dockside/roving monitoring costs would 
represent a greater proportion of their operational costs compared to 
NE multispecies vessels operating under a NE multispecies DAS. Based on 
public input, there is the potential that such costs would be more than 
the value of fish landed on a particular trip. Accordingly, FW 45 
proposes to exempt Handgear A, Handgear B, and Small Vessel category 
permits from any dockside/roving monitoring requirements when operating 
in the common pool. Under such an exemption, it would not be possible 
for dockside/roving monitor service providers to provide statistically 
random coverage of all common pool trips, as required under Amendment 
16. Therefore, the proposed regulations would also revise the Amendment 
16 dockside/roving monitoring coverage provisions to accommodate this

[[Page 11870]]

exemption, and specify that service providers must provide random 
coverage of all trips subject to the dockside/roving monitoring 
requirements.

Trip-End Hail Requirement

    Based upon a pilot dockside/roving monitoring program, the 
dockside/roving monitor provisions implemented under Amendment 16 
currently require that vessels submit both a trip-start and trip-end 
hail report. The trip-start hail report was intended to provide the 
basic trip information necessary for dockside/roving service providers 
to coordinate the deployment of dockside/roving monitors, including the 
date, time, and port of intended landing and offloading. The trip-end 
hail report provides more detailed information that confirmed or 
revised information submitted in the trip-start hail report. This 
latter report is also used by both State and Federal enforcement 
personnel to facilitate dockside intercepts.
    As described above, the Council considered, but did not approve, a 
motion that would have eliminated the dockside/roving monitoring 
requirements of Amendment 16. Instead, in FW 45, NMFS proposes to rely 
upon its available funding to determine the amount of dockside/roving 
monitoring coverage in FYs 2011 and 2012. If the Council had elected to 
eliminate completely the dockside/roving monitor requirements, the 
trip-end hail report would have also been eliminated. Because the 
recent transition to quota-based management under ACLs and AMs 
increases incentives to misreport or underreport landings of regulated 
species and ocean pout, the Council considered it important to ensure 
that the trip-end hail report in FW 45 was retained, even if there was 
insufficient NMFS funding to support dockside/roving monitoring 
coverage in FYs 2011 or 2012. This measure is expected to increase the 
chances that a particular trip would be subject to dockside inspection 
by enforcement personnel and may, in turn, increase compliance with 
applicable measures and the accuracy of landings data used to monitor 
the fishery.
    Beginning in FY 2011, if implemented, FW 45 would require all 
sector vessels and common pool vessels fishing under a DAS to submit 
trip-hail report via VMS prior to returning to port. If there is 
sufficient NMFS funding to provide for some level of dockside/roving 
monitor coverage, vessels assigned a dockside/roving monitor for a 
particular trip would be required to submit both a trip-start and a 
trip-end hail report for that trip, however, consistent with current 
practice. The trip-end hail report would contain the same information 
as the trip-end hail report implemented by Amendment 16, including the 
vessel permit number; vessel trip report (VTR) serial number of the 
first VTR page for that trip; intended offloading location(s), 
including the dealer name/offload location, port/harbor, and State for 
the first dealer/facility where the vessel intends to offload catch and 
the port/harbor and State for the second dealer/facility where the 
vessel intends to offload catch; estimated date/time of arrival; 
estimated date/time of offload; and the estimated total amount of all 
species retained, including species managed by other FMPs (in pounds, 
landed weight) on board at the time the vessel first offloads its catch 
from a particular trip. This report, if submitted when there is 
insufficient funding to provide for a NMFS-controlled dockside/roving 
monitoring program, would only be submitted to NMFS' Office of Law 
Enforcement rather than also to a dockside/roving monitor service 
provider.

Inspection of Fish Holds

    Amendment 16 established approval requirements for entities 
providing dockside/roving monitoring services. These standards included 
hiring individual dockside monitors that were capable of climbing 
ladders and inspecting fish holds. For FY 2010, NMFS developed 
operational standards necessary to implement the Amendment 16 dockside 
monitoring provisions, based on a pilot dockside/roving monitoring 
program conducted during the summer of 2009. These standards did not 
require dockside monitors to inspect fish holds for FY 2010. However, 
based on further evaluation of the performance of the dockside 
monitoring program and consideration of concerns expressed by 
enforcement personnel, NMFS is proposing to require dockside monitors 
to inspect the fish holds for any trip that is assigned a dockside/
roving monitor beginning in FY 2011. This requirement would enhance the 
enforceability of existing provisions and minimize the incentives to 
under-report/misreport the amount of regulated species landed.

11. Sector Measures

Distribution of the PSC From Cancelled Permits
    As described in Amendment 16, a PSC represents an individual 
permit's portion of the total historical landings of each regulated 
species or ocean pout stock during FYs 1996-2006 by all permits, 
including those in confirmation of permit history (CPH), that were 
eligible to participate in the NE multispecies fishery as of May 1, 
2008. This date was selected to provide a recent baseline of eligible 
permits so that the PSCs of each permit could be calculated only once, 
and then become fixed. Accordingly, if a permit is cancelled after May 
1, 2008, its historic landings between FYs 1996-2006 are still used to 
calculate the total landings by eligible permits, and continue to 
effectively reduce the PSC of all remaining permits.
    As noted above, the current regulations calculate the ACL available 
to sector and common pool vessels based on the cumulative PSCs of each 
permit participating in each sector. By default, if the owner of a 
particular permit has not elected to participate in a sector, that 
permit is considered to be participating in the common pool, and its 
PSC contributes to the sub-ACL available to the common pool at large. 
Similarly, if a permit or CPH is cancelled for any reason, that permit 
or CPH cannot participate in sectors, or any fishery, and the PSC is 
used to contribute to the sub-ACL available to the common pool. Thus, 
the PSCs of cancelled permits artificially inflate the PSCs of those 
permits operating in the common pool and are not equitably distributed 
among the permits remaining in the fishery.
    Under FW 45, the PSC calculations adopted under Amendment 16 would 
be performed yearly based upon valid permits, including those held in 
CPH, that are eligible to participate in the fishery as of a certain 
date. To do so, the PSCs for each stock calculated pursuant to the 
process specified in Amendment 16 would be multiplied by a factor of 
``1/PSC of the remaining permits.'' The Council provided NMFS with the 
authority to specify the date on which PSCs are calculated each year. 
To reflect permits that are renewed by the beginning of each FY (May 
1), and allow NMFS time to process such renewals, this action proposes 
to recalculate PSCs on June 1 of each year, unless another date is 
specified by the RA. These recalculated PSCs would be used to calculate 
ACEs for each sector during the following FY. For example, if a PSC is 
calculated on June 1, 2011, that PSC will affect sector ACE for the 
2012 FY that begins on May 1, 2012. This provision would mean that each 
permit's PSC may increase on a yearly basis to reflect its higher 
portion of the historic landings of each regulated species and ocean 
pout stock due to the removal of the landings histories of any

[[Page 11871]]

permits that were cancelled by June 1 of each year. On or about July 1 
of each year, NMFS would inform permit holders of updated PSCs. If this 
measure is approved, the RA would recalculate PSCs for each permit 
using valid permits as of May 1, 2011, to update PSCs for FY 2011 and 
reflect permits cancelled through FY 2010.

Operations Plan Requirements

    Amendment 16 specified that sectors must submit final rosters, 
proposed operations plans, and associated environmental analyses by 
September 1, so that NMFS could review such documents as part of the 
process to approve sector operations for the following FY. NMFS 
extended this deadline in 2009 to provide more time for vessel owners 
to decide whether to join sectors for FY 2010. Based on industry input, 
NMFS requested that the Council formally integrate such flexibility 
into the current regulations as part of FW 45. Thus, NMFS proposes to 
require sectors to provide preliminary rosters and proposed operations 
plans by September 1, but to submit final rosters by December 1. Draft 
rosters by September 1, and final rosters by December 1, provide NMFS 
with the information it needs to review or conduct environmental 
analyses associated with draft sector operations plans, while allowing 
vessel owners additional time to decide whether to participate in 
sectors, or which sector to join during the following FY.

Sector Exemptions

    Amendment 16 defined several measures for which sectors cannot 
request an exemption. These include year-round closure areas, 
permitting restrictions, gear restrictions designed to reduce impacts 
to habitat, and reporting requirements. Amendment 16 specifically noted 
that sectors could request an exemption from the DAS reporting 
requirements, as sectors were universally exempted from the NE 
multispecies DAS restrictions. As part of public comments received on 
the proposed rule to implement Amendment 16 (December 31, 2009; 74 FR 
69382), several members of the public requested that NMFS exempt sector 
vessels operating west of 72[deg] 30' W. long. (i.e., Shinnecock Inlet, 
NY) and using larger mesh in the monkfish fishery from the Amendment 16 
dockside/roving monitoring requirements. This requirement was based on 
the argument that regulated species are rarely encountered in waters 
south of New York, particularly when using the large mesh required in 
the monkfish fishery. NMFS disapproved this request based on the 
Amendment 16 requirements to monitor all sector trips.
    Similar concerns were raised during the final meeting to approve 
measures for FW 45. To reduce dockside/roving monitoring costs, 
especially due to infrequent landings of regulated species in more 
southerly ports, some individuals sought to limit the geographic scope 
of dockside/roving monitoring requirements, or exempt vessels landing 
in particular ports from the dockside/roving monitoring requirements. 
FW 45 proposes to address these concerns by specifically removing 
dockside/roving monitoring requirements from the list of reporting 
requirements at Sec.  648.87(c)(2)(i). This would enable sectors to 
request exemptions, or at least partial exemptions, from the dockside/
roving monitoring requirements to minimize monitoring costs for sector 
trips targeting monkfish in southern waters, for example.

At-Sea or Electronic Monitoring Requirements

    Amendment 16 currently requires that sectors develop and pay for an 
at-sea or electronic monitoring program starting in FY 2012. This 
requirement was intended to provide sufficient information to 
accurately monitor landings and discards of regulated species and ocean 
pout by sector vessels, while allowing sectors 2 years to develop such 
a program on their own. As noted above, members of the fishing industry 
and the Council are concerned about the high cost of at-sea and 
electronic monitoring requirements. Because of the costs associated 
with sectors, including costs to join a sector, the Council was 
concerned that imposing additional monitoring costs on the industry, 
particular shortly after the transition to sector management and before 
many of the currently overfished stocks rebuild enable higher ACLs to 
be specified, would reduce profitability and result in making the 
sector system an economic failure. Therefore, FW 45 would delay the 
industry's responsibility for developing and paying for an at-sea or 
electronic monitoring program by 1 year. Unless the Council further 
revises this provision, sectors would be responsible for developing and 
paying for such a program beginning in FY 2013.
    During the deliberation of this provision, NMFS expressed concern 
about the Council's reliance upon NMFS funding to fully support a 
provision required by the FMP, particularly the specific at-sea or 
electronic monitoring coverage levels in Amendment 16. Because NMFS' 
funding is not guaranteed, and depends upon Congressional 
appropriations, it is likely that funding levels will fluctuate on a 
yearly basis and may not be sufficient to fully fund the dockside/
roving monitoring coverage requirements in the FMP. Thus, NMFS 
indicated that this measure may not be approvable as part of FW 45.

12. Authorization of New Sectors

    FW 45 would authorize five new sectors. These sectors are described 
in Section 4.2.1 of the FW 45 EA, and include the State of Maine Permit 
Banking Sector, the State of Rhode Island Permit Bank Sector, the State 
of New Hampshire Permit Bank Sector, the Commonwealth of Massachusetts 
Permit Bank Sector, and the Sustainable Harvest Sector III. All 
operational aspects of these sectors would be specified in their annual 
operations plans, as submitted to NMFS. Most of these sectors are 
proposed to be used for the primary purpose of leasing ACE to other 
sectors. Details of these operations plans are expected to be proposed 
in a parallel rulemaking to be published in the Federal Register soon, 
as noted above. If approved, each of these sectors must comply with the 
existing sector provisions, unless otherwise exempted by a future 
action. The Council is currently considering specifically exempting 
State-funded and -operated permit banks from several of the existing 
sector provisions, including the minimum size requirement for sectors 
originally established under Amendment 16, through a separate 
rulemaking being developed by the Council. Public comment will be 
solicited separately on that action.

13. Measures for FY 2011 Under RA Authority

    The FMP provides authority for the RA to implement certain types of 
management measures for the common pool fishery, the U.S./Canada 
Management Area, and Special Management Programs, as described further 
below. This proposed rule includes a description of measures that may 
be considered by the RA for implementation in FY 2011 for these 
components of the groundfish fishery, in order to provide an 
opportunity for the public to comment on whether such measures are 
appropriate. Although these measures are not proposed by the Council 
for implementation through FW 45, this proposed rule makes the public 
aware of measures under consideration by the RA, under the authority of 
the FMP. It also enables the public to comment on such measures in the

[[Page 11872]]

context of the measures proposed in FW 45, that, if approved, would 
also be implemented for FY 2011. The RA may implement measures that 
differ from the measures described below if, based on current 
information, such measures are necessary to conform to the requirements 
of the FMP. However, NMFS does not anticipate the measures that would 
be implemented will be substantially different than those described 
below. The measures implemented through RA authority for FY 2011 will 
be implemented through the FW 45 final rule, or through a separate 
final rule, if necessary, due to the availability of relevant data or 
the timing of FW 45.
    The FW 44 final rule implemented RA authority to alter common pool 
trip limits at Sec.  648.86(o). If the RA projects that the catch of 
any NE multispecies stock allocated to common pool vessels will exceed 
the pertinent sub-ACL, NMFS may implement or adjust possession and trip 
limits in order to prevent exceeding the common pool sub-ACL. Table 16 
provides a summary of the trip limits that are the default trip limits 
in effect if the RA takes no action to modify such limits, as well as a 
summary of trip limit modifications that occurred during FY 2010, and 
potential starting trip limits that would be in effect for FY 2011. 
These potential trip limits were developed after considering changes to 
the 2011 common pool sub-ACLs and sector rosters, catch rates of these 
stocks during FY 2010, price of fish during FY 2010, bycatch 
considerations, the potential for differential DAS counting during FY 
2011, and other available information. Specifically, compared to the FY 
2010 sub-ACLs, FY 2011 sub-ACLs (see Table 5) would increase for SNE/MA 
yellowtail flounder (69 percent), GB cod (25 percent), CC/GOM 
yellowtail flounder (21 percent), white hake (16 percent), GOM cod (6 
percent), American plaice (9 percent), witch flounder (45 percent), GB 
winter flounder (8 percent), redfish (10 percent), and Atlantic halibut 
(10 percent). Decreased catch limits compared to FY 2010 are expected 
for GB haddock (-24 percent), GB yellowtail flounder (-18 percent), 
pollock (-16 percent), and GOM haddock (-5 percent). Although the slow 
catch rate of SNE/MA yellowtail flounder by common pool vessels in FY 
2010 suggests that trip limits could be increased substantially to 
increase the catch of this stock in FY 2011, due to concerns over the 
potential of increased SNE/MA yellowtail flounder trip limits to 
increase the bycatch and discard of SNE/MA winter flounder (a stock 
that cannot be possessed by any vessel to help ensure this stock 
rebuilds according to the approved rebuilding program), only a small 
increase in the trip limit for this stock is proposed at this time. For 
stocks that include a range of potential trip limits in Table 16, a 
final trip limit would be specified in the final rule for this action 
based upon public comment. NMFS is requesting public input on common 
pool trip limits for FY 2011.

                Table 16--Default, FY 2010, and Potential FY 2011 Trip Limits for the Common Pool
----------------------------------------------------------------------------------------------------------------
                                        Default limit in            FY 2010 limit
              Stock                       regulations                implemented         Potential FY 2011 limit
----------------------------------------------------------------------------------------------------------------
GOM cod..........................  800 lb (362.9 kg) per      200 lb (90.7 kg) per      500 lb (226.8 kg) per
                                    DAS, up to 4,000 lb        DAS, up to 1,000 lb       DAS, up to 2,000 lb
                                    (1,818.2 kg) per trip.     (453.6 kg) per trip;      (907.2 kg) per trip.
                                                               reduced to 100 lb (45.4
                                                               kg) per DAS, up to
                                                               1,000 lb (453.6 kg) per
                                                               trip.
GB cod...........................  2,000 lb (907.2 kg) per    no change to default      2,000 lb (907.2 kg) per
                                    DAS, up to 20,000 lb       limit.                    DAS, up to 20,000 lb
                                    (9,072 kg) per trip.                                 (9,072 kg) per trip.
GOM haddock......................  unrestricted.............  1,000 lb (453.6 kg) per   750 lb (340.2 kg)--1,000
                                                               trip.                     lb (453.6 kg) per trip.
GB haddock.......................  unrestricted.............  10,000 lb (4,535.9 kg)    7,500 lb (3,402 kg)--
                                                               per trip.                 10,000 lb (4,535.9 kg)
                                                                                         per trip.
GOM winter flounder..............  unrestricted.............  250 lb (113.4 kg) per     250 lb (113.4 kg) per
                                                               trip.                     trip.
GB winter flounder...............  unrestricted.............  started at 5,000 lb       1,000 lb (453.6 kg) per
                                                               (2,268 kg); reduced to    trip.
                                                               1,000 lb (453.6 kg) per
                                                               trip.
CC/GOM yellowtail flounder.......  250 lb (113.4 kg) per      250 lb (113.4 kg) per     250 lb (113.4 kg) per
                                    DAS, up to 1,500 (680.4    DAS, up to 1,500 (680.4   DAS, up to 1,500 (680.4
                                    kg) per trip.              kg) per trip.             kg) per trip.
GB yellowtail flounder...........  unrestricted.............  started at 2,500 lb       1,000 (453.6 kg)--1,500
                                                               (1,134 kg) per trip;      (680.4 kg) per trip.
                                                               reduced to 1,000 lb
                                                               (453.6 kg) per trip;
                                                               reduced again to 100 lb
                                                               (45.4 kg) per trip.
SNE/MA yellowtail flounder.......  250 lb (113.4 kg) per      250 lb (113.4 kg) per     250 lb (113.4 kg) per
                                    DAS, up to 1,500 (680.4    DAS, up to 1,500 (680.4   DAS, up to 1,500 (680.4
                                    kg) per trip.              kg) per trip.             kg) per trip--500 lb
                                                                                         (226.8 kg), up to 2,000
                                                                                         (907.2 kg) per trip.
American plaice..................  unrestricted.............  unrestricted............  unrestricted.
Pollock..........................  1,000 lb (450 kg) per      unrestricted............  unrestricted.
                                    DAS; up to 10,000 lb
                                    (4,500 kg) per trip.
Witch flounder...................  unrestricted.............  130 lb (59 kg) per trip;  250 lb (113.4 kg) per
                                                               reduced to possession     trip.
                                                               prohibition.
White hake.......................  unrestricted.............  Started at 2,000 lb       1,000 lb (453.6 kg)--
                                                               (907.2 kg) per DAS; up    1,500 lb (680.4 kg) per
                                                               to 10,000 lb (4,500 kg)   trip.
                                                               per trip; reduced to
                                                               100 lb (45.4 kg) per
                                                               DAS; up to 500 lb
                                                               (226.8 kg) per trip.
Redfish..........................  unrestricted.............  unrestricted............  unrestricted.
----------------------------------------------------------------------------------------------------------------

    Amendment 16 implemented a provision that AMs for the common pool 
fishery will be triggered for FY 2011 if the catch in FY 2010 exceeds 
the pertinent common pool sub-ACL (Sec. Sec.  648.90(a)(5)(i)(A) and 
648.82(n)). Specifically, the FMP requires that the DAS counting rate 
during FY 2011 be adjusted if the catch of the relevant stocks by 
common pool vessels exceeds the pertinent common pool groundfish sub-
ACLs during FY 2010. Based on current information, the common pool 
catch of witch flounder during FY 2010 will exceed the witch flounder 
sub-ACL

[[Page 11873]]

specified for the common pool (25 mt) by 20 percent or more. As an 
example, if the percent of the common pool sub-ACL for witch flounder 
caught at the end of FY 2010 is determined to be 124 percent, the 
required differential DAS rate would be 1.2 where historically witch 
flounder are caught. The geographic areas for which the differential 
DAS rate would apply are defined for witch flounder by the FMP as the 
Offshore GOM Differential DAS Area, the Offshore GB Differential DAS 
Area, and the Inshore GB Differential DAS Area, with coordinates 
specified at Sec.  648.82(n)(1)(i). The differential DAS rate would not 
apply to the Inshore GOM Differential DAS Area or the SNE/MA 
Differential DAS Area, provided only the witch flounder ACL is 
exceeded, and AMs are not required for a stock with predominantly 
inshore catch. The differential DAS would apply to all Category A trips 
taken by common pool vessels in the applicable areas. Category A DAS 
would be charged at a rate of 28.8 hr for every 24 hr fished (1.2 times 
24-hr DAS counting), for the time spent fishing in the applicable DAS 
counting area (noted above) based upon the first VMS position into the 
applicable differential DAS counting area, and the first VMS position 
outside of the applicable differential DAS counting area. If the catch 
of other stocks such as GOM cod exceed their respective sub-ACLs, 
additional differential DAS restrictions or an adjustment to the DAS 
allocation may be required. NMFS provides an estimate of the status of 
the common pool catch to the public through the following Internet 
address: http://www.nero.noaa.gov/ro/fso/reports/common_pool/Common_Pool_Summary.html.
    Under authority granted by the FMP (Sec.  648.85(a)(3)(iv)(D)), the 
RA may implement rules to optimize the harvest of the transboundary 
stocks managed under the Understanding. Pursuant to this authority, 
NMFS is considering postponing the opening of the Eastern U.S./Canada 
Area for non-sector (common pool) vessels fishing with trawl gear in FY 
2011 from May 1, 2011, to August 1, 2011. This action would prevent 
trawl fishing in the Eastern U.S./Canada Area during the time when cod 
bycatch is likely to be very high, and prolong access to this area in 
order to maximize the catch of available cod, haddock, and yellowtail 
flounder, as well as other valuable stocks such as winter flounder. 
This action would not affect valid members of sectors fishing with 
trawl gear in the Eastern U.S./Canada Area, because such vessels are 
subject to additional restrictions on catch as members of a sector. 
Industry members believe that sector restrictions provide sufficient 
incentives for vessels to fish in a manner that optimizes catch, and 
that such incentives are not existent under common pool regulations. To 
further constrain fishing mortality on GB cod, NMFS may limit the 
common pool vessels fishing with non-trawl gear in the Eastern U.S./
Canada Area prior to August 1, 2011, to a cod catch of 5 percent of the 
Eastern GB cod TAC, or 10 mt of cod.
    The RA has the authority to determine the allocation of the total 
number of trips into the Closed Area II Yellowtail Flounder/Haddock SAP 
based on several criteria, including the GB yellowtail flounder TAC and 
the amount of GB yellowtail flounder caught outside of the SAP. As 
implemented in 2005 by FW 40B (June 1, 2005; 70 FR 31323), zero trips 
to this SAP should be allocated if the available GB yellowtail flounder 
catch is insufficient to support at least 150 trips with a 15,000-lb 
(6,804-kg) trip limit (i.e., 150 trips of 15,000 lb (6,804 kg)/trip, or 
2,250,000 lb (1,020,600 kg) total. This calculation takes into account 
the projected catch from the area outside the SAP. Based on the 
groundfish sub-ACL of 2,125,256 lb (964,016 kg), even if the projected 
catch from outside the SAP area is zero, there is still insufficient GB 
yellowtail flounder available to allow the SAP to proceed (i.e., 
2,125,256 lb (964,016 kg) available < 2,250,000 (1,020,600 kg) needed). 
Therefore, based on existing authority, this proposed rule would 
allocate zero trips to the CA II Yellowtail Flounder SAP for FY 2010, 
based on a determination that the available TAC of GB yellowtail 
flounder is insufficient to support a minimum level of fishing activity 
within the Closed Area II Yellowtail Flounder/Haddock SAP. This means 
that vessels could fish in this SAP, but would not be allowed to fish 
any trips using flounder nets, as defined in the regulations at Sec.  
648.85(a)(3)(iii)(B), and would instead need to fish with a haddock 
separator trawl, a Ruhle trawl, or hook gear.

14. Corrections and Clarifications

    This proposed rule would also correct a number of inadvertent 
errors, omissions, and ambiguities in existing regulations in order to 
ensure consistency with, and accurately reflect the intent of previous 
actions under the FMP, or to more effectively administer and enforce 
existing provisions pursuant to the authority provided to the Secretary 
of Commerce in section 305(d) of the Magnuson-Stevens Act. The 
following proposed measures are listed in the order in which they 
appear in the regulations, and indicate the genesis of the regulation 
and/or the cause of the regulatory error.
    Amendment 16 requires the owner or operator of any vessel issued a 
limited access NE multispecies permit fishing on either a common pool 
(i.e., non-sector) or a sector trip to declare its intent to fish 
within one or more of the NE multispecies broad stock areas (BSAs) and 
provide the vessel trip report (VTR) serial number for the first page 
of the VTR for that particular trip via VMS prior to leaving port at 
the start of a fishing trip. In addition, a vessel fishing in more than 
one BSA per trip must submit a VMS catch report detailing the amount of 
each species retained from each BSA fished prior to crossing the VMS 
demarcation line upon its return to port. Because the VTR serial number 
can only be submitted by a VMS catch report, for trips into more than 
one BSA, these regulations require duplicative reporting requirements. 
This action would modify the timing requirements for the submission of 
the VMS catch report in Sec.  648.10(k)(1) to require all NE 
multispecies limited access vessels, regardless number of broad stock 
areas fished, to submit the VMS catch report listing the VTR serial 
number applicable for that trip prior to crossing the VMS demarcation 
line upon its return to port following each fishing trip on which 
regulated species were caught.
    To further clarify the administration and enforcement of dockside/
roving monitoring provisions originally implemented under Amendment 16 
and revised by this action, NMFS is proposing to add a prohibition at 
Sec.  648.14(k)(18)(i)(D) to state that, if the offloads of a 
particular trip are assigned to be monitored by a dockside/roving 
monitor, the vessel cannot offload its catch until the assigned 
dockside/roving monitor arrives at the designated offloading site 
specified by the vessel owner or operator.
    The regulations at Sec.  648.82(a)(2) currently state that a vessel 
issued a NE multispecies limited access permit may not call into the 
DAS program or fish under a DAS, if such vessel carries passengers for 
hire for any portion of a fishing trip. This provision was first 
implemented under FW 33 (April 24, 2000; 65 FR 21658) to close a 
perceived loophole that could have allowed a vessel fishing under a NE 
multispecies DAS to possess and land fish smaller than the minimum fish 
size specified for commercial vessels and to sell their catch from such 
operations. In a similar manner, this action proposes to expand

[[Page 11874]]

this provision to apply to vessels fishing on a sector trip or under 
the limited access NE multispecies Small Vessel Category or Handgear A 
permits.
    In Sec. Sec.  648.87(b)(1)(i)(A) and 648.90(a)(4)(iii)(E)(2), the 
proposed regulations would add the term ``permits'' to the phrase 
``vessels participating in sectors'' to reflect that vessels issued 
permits, including those held in CPH, can participate in sectors.
    To provide more flexibility to sectors, Amendment 16 allowed the 
transfer of ACE between sectors, and also permitted carrying over ACE 
from one FY to the next. With the exception of GB yellowtail flounder, 
a sector may carry-over up to 10 percent of its unused ACE for each 
stock into the following FY. The final rule implementing Amendment 16 
did not specify whether the 10 percent carry-over for each stock is to 
be derived from the unused portion of a sector's total available ACE, 
including ACE acquired from another sector through an ACE transfer, or 
from the unused amount of the sector's originally allocated ACE based 
upon the PSCs of vessels participating in that sector.
    The Council did not intend these provisions to allow a sector to 
exceed its ACE. To clarify how the ACE carry-over provision will be 
applied, this action proposes to refine the regulations at Sec.  
648.87(b)(1)(i)(C) to state that a NE multispecies sector may carry-
over up to 10 percent of its allocated ACE for each stock, with the 
exception of GB yellowtail flounder, into the following FY, provided 
the sector has not harvested more than 90 percent of its original ACE 
allocation for that stock by the end of the FY. This provision is 
intended to limit the applicability of ACE carry-over to only the ACE 
allocated to a sector and not the ACE acquired from another sector, as 
part of an ACE transfer. Because the Council did not specifically state 
whether the ACE carry-over provision applies to allocated or total 
available ACE, NMFS is specifically seeking public input on this 
measure.
    In addition to the proposed revisions to the calculation of PSCs 
noted above, this proposed rule would revise the regulatory text 
describing the calculation of PSCs at Sec.  648.87(b)(1)(i)(E)(1) and 
(b)(1)(i)(E)(2). These revisions would not revise the manner in which 
the PSCs are calculated, as adopted in Amendment 16, but rather they 
would clarify and more accurately reflect the processes that were, and 
continue to be, applied to implement such calculations. Specifically, 
this rule would clarify that the landings histories of any limited 
access NE multispecies permit, including those that were put into CPH, 
and those of an open access NE multispecies handgear permit that 
eventually qualified for, and resulted in, the issuance of a limited 
access NE multispecies Handgear A permit during FYs 1996 through 2006 
would be used to calculate the PSCs for each valid permit as of June 1 
each year. In addition, these revisions would provide an example of the 
landings of regulated species and ocean pout that would not be used to 
calculate PSC; namely, any landings of yellowtail flounder by scallop 
vessels operating under a scallop DAS. Finally, the PSC that results 
from such a calculation would be specified as the PSC for each stock.
    This proposed rule includes revisions to the regulatory text at 
Sec. Sec.  648.87(b)(1)(iii)(C) and (viii) that provide for the 
transfer of a sector's ACE for up to 2 weeks into the subsequent FY, 
and the processing of such ACE transfers by NMFS for up to 61 days. 
These provisions were originally included in Amendment 16 to provide an 
opportunity for sectors to participate in the ACE Transfer Program to 
cover any ACE overages that the sector accrued at the end of the FY. 
These regulatory provisions are dependent upon the completion of NMFS' 
evaluation of year-end sector catch, including sector ACE overages, and 
may not account for the timing of NMFS' year-end evaluation process. 
Therefore, to account for additional time for this process, if 
necessary, the phrase ``unless otherwise instructed by NMFS'' is being 
added to reference to the 2-week and 61-day deadlines in the regulatory 
text.

Request for Comments

    The public is invited to comment on any of the measures proposed in 
this rule. NMFS is especially interested in receiving comments on 
several proposed measures for which the agency has concern, 
particularly the proposed measure to restrict vessels issued either a 
Handgear A or Handgear B permit that are issued a LOA to fish south of 
the GOM Regulated Mesh Area from fishing within the GOM Regulated Mesh 
Area for the duration of the LOA; the proposed August 1, 2011, delayed 
opening of the Eastern U.S./Canada Area for common pool vessels fishing 
with trawl gear; and the proposed initial FY 2011 common pool trip 
limits for certain stocks.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with FW 45 to the FMP, other provisions of the Magnuson-
Stevens Act, and other applicable law, subject to further consideration 
after public comment. Further, pursuant to section 303(c) of the 
Magnuson-Stevens Act, the Council has deemed this proposed rule as 
necessary and appropriate to implement FW 45.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An IRFA, consistent with the Regulatory Flexibility Act (RFA) 
analysis contained in FW 45 and the preamble to this proposed rule, has 
been prepared, as required by section 603 of the RFA. The IRFA 
describes the economic impact this proposed rule, if adopted, would 
have on small entities. A description of the action, why it is being 
considered, and the legal basis for this action are contained in FW 45, 
and in the preamble to this rule. A summary of the analysis contained 
in FW 45 follows. In this analysis, the baseline (no-action 
alternative) is the set of measures that were in place during FY 2010 
(i.e., the measures implemented under Amendment 16 and FW 44). Tables 
and sections that are referenced in this IRFA refer to those contained 
in the EA developed for FW 45. A copy of FW 45 is available from the 
Council (see ADDRESSES).

Description of and Estimate of the Number of Small Entities to Which 
the Proposed Rule Will Apply

    The measures proposed in FW 45 would affect recreational anglers 
and any vessel issued a limited access NE multispecies permit, an open 
access NE multispecies Handgear B permit (Handgear B permit) or 
charter/party permit, or a LAGC scallop permit. In addition, because 
this action would affect the dockside/roving and at-sea or electronic 
monitoring program requirements and require dockside monitors to 
inspect fish holds, this action would also affect any entity intending 
to provide dockside/roving or at-sea or electronic monitoring services. 
As of December 20, 2010, the maximum number of small fishing entities 
(as defined by the Small Business Administration (SBA)) that may be 
affected by this action would be 3,935 entities. The potentially 
affected entities include 1,144 limited access NE multispecies DAS 
permit holders; 133 limited access NE multispecies Handgear A (Handgear 
A) permit holders; 11 limited access NE multispecies Small Vessel 
Exemption (Category C) permit holders; 1,156 open access NE 
multispecies Handgear B (Handgear B) permit holders; 824 open

[[Page 11875]]

access NE multispecies charter/party permits; and 667 Atlantic sea 
scallop LAGC permits. In addition, it is expected that the five 
entities currently providing dockside/roving monitoring and at-sea or 
electronic monitoring services would continue to do so in FYs 2011 and 
2012, and would be affected by this action. It is likely that the 
actual number of small fishing entities affected by this action would 
be much smaller. For instance, information contained in Section 10.11.2 
of the FW 45 EA indicates that only 397 vessels had reported any sales 
of regulated species and ocean pout as of December 2010, including 18 
Handgear A vessels, 50 Handgear B vessels, and 329 other vessels issued 
limited access NE multispecies DAS permits. Further, only 18 entities 
conducted party/charter operations in the proposed GOM Cod Spawning 
Protection Area proposed in this action, according to that analysis. 
Finally, it is difficult to estimate the number of private recreational 
anglers that may be affected by this action, as the proposed GOM Cod 
Spawning Protection Area is too small to accurately determine the 
number of anglers that fish in this area based on available data.
    It is important to note that past fishing activity and enrollment 
in sectors may not be an accurate predictor of future fishing activity. 
In particular, it is possible that revisions to measures affecting both 
the Handgear A and Handgear B fisheries may increase participation by 
vessels issued such permits. In addition, as of December 1, 2010, 835 
permits had elected to join a sector during FY 2011, as determined 
through the submission of sector rosters to NMFS, indicating that 453 
permits would be enrolled in the common pool. However, vessels may 
withdraw from sectors until the beginning of FY 2011 on May 1, 2011. 
Therefore, because participation in sectors is voluntary, the number of 
vessels that will actually participate in sectors during FY 2011 and 
future years is likely to fluctuate based upon whether joining a sector 
or fishing under common pool measures offers the greater economic 
advantage to each individual vessel.
    The SBA considers commercial fishing entities (NAICS code 114111) 
to be small entities if they have no more than $4 million in annual 
sales, while the size standard for charter/party operators (part of 
NAICS cod 487210) is $7 million in sales. Based on 2005-2007 average 
conditions, median gross sales by commercial fishing vessels were just 
over $200,000, and no single fishing entity earned more than $2 
million. For regulated charter/party operators, the median value of 
gross receipts from passengers was just over $9,000, and did not exceed 
$500,000 in any year during 2001 to 2007. Although multiple vessels may 
be owned by a single owner, available tracking of ownership is not 
readily available to reliably ascertain affiliated entities. Therefore, 
for the purposes of this analysis, each permitted vessel is treated as 
a single small entity and is determined to be a small entity under the 
RFA. Accordingly, there are no differential impacts between large and 
small entities under this proposed rule.

Economic Impacts of the Proposed Action

    The economic impacts of each proposed measure is discussed in more 
detail in Sections 8.4, 9.4, and 10.11 of the FW 45 EA. The following 
summarizes the economic impacts contained in those sections for each 
proposed measure.

Revised Status Determination Criteria and Rebuilding Programs

    Economic impacts resulting from the proposed revisions to status 
determination criteria for pollock and the rebuilding period for GB 
yellowtail flounder are primarily reflected in the ACLs specified for 
these stocks during future years, as discussed further below. However, 
an estimate of the present value of the potential revenues of each 
rebuilding strategy considered for GB yellowtail flounder under FW 45 
was developed. This analysis indicates that the proposed rebuilding 
strategy would result in a U.S. catch that is expected to achieve a 
present value of about $70.8 million, assuming a 5-percent yearly 
discount rate over the course of a 10-year period (i.e., through 2020).

ACLs

    The total potential revenue of the proposed FY 2011 and 2012 ACLs 
was estimated to be approximately $187.8 million and $181 million using 
FY 2010 prices, respectively. However, this estimate assumes that the 
entire ACL for each stock will be caught, meaning there are no discards 
and the fishery is using gear that is perfectly selective. To more 
accurately evaluate the expected economic impacts of ACLs proposed in 
this action, the catch rate for each stock as of October 16, 2010, was 
calculated and projected forward for the rest of the FY (i.e., through 
April 30, 2011) and through FY 2012. Resulting revenues were 
calculated, after first deducting an estimate of discards. This 
estimate produced expected commercial revenues of $79.8 million in FY 
2011 and $72.5 million in FY 2012. Compared to the no action 
alternative (i.e., maintaining the FY 2011 and 2012 ACLs implemented 
under FW 44), the proposed ACLs would reduce revenues by $0.4 million 
in FY 2011 and by $9.4 million in FY 2012. Assuming the current trend 
in fishing revenues observed during the first half of FY 2010 
continues, expected groundfish revenues would be about $83.7 million in 
FY 2010. Therefore, the proposed FY 2011 revenues would be about $4 
million lower than projected FY 2010 revenues (about 5 percent of 
groundfish sales, or $12,000 per vessel), while proposed FY 2012 ACLs 
would produce revenues that are about $11.2 million lower than those 
expected in FY 2010. These estimates suggest that sectors may be able 
to obtain higher use rates and, therefore, landings of several stocks 
compared to landings from previous FYs.
    This evaluation incorporates the potential impacts associated with 
the U.S./Canada Management Area TACs, incidental catch TACs, and the 
proposed allocation of yellowtail flounder to the scallop fishery, as 
each of these components is part of the available ACL for applicable 
stocks. As a result, no additional impacts beyond those described above 
are expected for these provisions. However, separate analysis was 
conducted to provide more detailed information regarding the potential 
specific impacts of these provisions, as detailed further below.
    The primary reason for the difference in the expected revenue under 
this proposed action and the no action alternative or the expected FY 
2010 revenues is the lower ACLs of GB haddock and GB yellowtail that 
result from the aging of the very large 2003 year class of GB haddock 
and the reduced ACL for GB yellowtail flounder that is necessary to 
rebuild this stock under the proposed rebuilding program. These reduced 
ACLs are sufficient to overcome any gains resulting from the updated 
status and associated increased ACLs for pollock proposed under this 
action. However, because the FW 45 EA applied the 2010 catch rates to 
the lower FY 2011 and 2012 sub-ACL for GB haddock, it is possible that 
the adverse economic impacts specified in the FW 45 EA were 
overestimated. Rather than assuming that the 2010 catch rate for this 
stock would continue into future FYs, as was done in the FW 45 EA, it 
is reasonable to assume that the fishery is capable of catching the 
same amount of GB haddock in future FYs. If the same amount of GB 
haddock is caught in FYs 2011 and 2012 as is projected based on 
observed catch rates so far in FY 2010, then the realized adverse 
economic

[[Page 11876]]

impacts of the ACLs proposed in this action would be less than those 
estimated in the FW 45 EA. Given that GB haddock, pollock, and redfish 
(another rebuilt stock) comprise nearly 70 percent of the aggregate 
groundfish ACL (41, 18.5, and 10 percent, respectively), improvements 
in fishing selectivity, particularly while fishing for these stocks, 
could lead to substantially higher revenues for the fishery.
    Because NMFS is also proposing to implement a higher FY 2011 GB 
yellowtail flounder ACL than that adopted by the Council in FW 45 based 
on the flexibility afforded by the International Fisheries Agreement 
Clarification Act, it is likely that fishing revenues will be slightly 
higher in FY 2011 than that analyzed under FW 45 and described above. 
The revised FY 2011 GB yellowtail flounder sub-ACL available to the NE 
multispecies species based upon the TAC approved by the TMGC in its 
February 9, 2011, conference call is 358 mt (789,255 lb) higher than 
the ACL adopted in FW 45. At $1.34 per pound ($2.95 per kg), this 
revised ACL could increase fishing revenues by $1,057,602 in FY 2011. 
Because GB yellowtail flounder are also caught in conjunction with 
other regulated species, it is likely that revenues will be even higher 
based upon additional revenues from landing these other species.
    Economic impacts of these ACLs on the fishery at large may not be 
representative of impacts to individual vessels. Over the past decade, 
there has been a significant amount of consolidation in this fishery in 
response to the severely depleted state of the majority of the 
groundfish stocks and to changes in management measures. In particular, 
the recent implementation of ACLs, AMs, and an expanded use of sectors 
under Amendment 16 has affected fishing patterns in ways that are not 
yet determined. For example, sector measures were intended to provide a 
mechanism for vessels to increase the economic efficiency of fishing 
operations. Reasons why fewer vessels have fished thus far may be 
related to owners with multiple vessels fishing fewer vessels, or 
vessel owners or sectors using quota differently and waiting to fish 
later in the fishing year to maximize revenue in response to some of 
the efficiencies gained through the implementation of sector measures 
in 2010. It is also likely that some vessels that have not landed 
groundfish have received revenue from leasing their groundfish 
allocation or have been fishing in other fisheries. Thus, fewer vessels 
are actively fishing for and landing regulated species and ocean pout 
stocks, with 10 percent of the fishing vessels earning more than half 
of the revenues from such stocks since 2005, leading to a seemingly 
continuing trend of consolidation in the fishery. However, as alluded 
to above, this trend began before the implementation and expansion of 
the sector program, and based on limited data available to date, the 
trend is not significantly out of proportion to fishing years prior to 
the implementation of Amendment 16. Based upon concerns over 
consolidation raised by the public during the development of Amendment 
16, the Council is currently working on a white paper regarding fleet 
diversity and accumulation limits, and has agreed to develop an 
amendment to the FMP to address concerns identified.

U.S./Canada Management Area TACs

    The economic impacts to the groundfish fishery of specification of 
the U.S./Canada Management Area TACs are difficult to predict due to 
the many factors that may affect the level of catch. This includes the 
potential that inseason actions necessary to ensure that the U.S./
Canada Management Area TACs for Eastern GB cod, Eastern GB haddock, and 
GB yellowtail flounder are not exceeded, including area closures, trip 
limit adjustments, and gear restrictions, may affect the catch of other 
stocks caught in this area and the timing of when such catch can be 
landed. The amount of fish landed and sold would not be equal to the 
sum of the proposed TACs for these stocks, but would be reduced as a 
result of discards (for the common pool), and may be further reduced by 
limitations on access to stocks that may result from the associated 
fishing rules. Reductions to the value of the fish may result from 
landing large amounts of fish in a short duration following the start 
of the FY, and the resulting potential impact on markets. It is likely 
that, because the proposed FY 2011 TACs for these stocks are 
substantially lower compared to the TACs for FY 2010, the proposed 
action would result in reduced overall revenue from the U.S./Canada 
Management Area. Some of this reduction in revenue could be mitigated 
if the selectivity of the fishery increases such that vessels can 
minimize the catch of Eastern GB cod and increase catch of abundant 
resources of Eastern GB haddock.
    An evaluation of the specific impacts of the proposed FY 2011 TACs 
was conducted using FY 2009 prices and discard ratios. It is important 
to note that this evaluation is not directly comparable to the 
evaluation of the impacts of proposed ACLs discussed above, due to the 
use of lower market prices observed during FY 2009 and the likely 
higher discard rates recorded compared to preliminary estimates from FY 
2010 to date. In addition, these impacts are not cumulative, and should 
not be added to the impacts estimated for the proposed ACLs, as noted 
above. Nonetheless, this analysis suggests that the proposed FY 2011 
U.S./Canada Management Area TACs may result in revenue that is between 
48 to 67 percent less than that recorded for FY 2009. Because this 
analysis used conservative prices from FY 2009, the expected reduction 
in revenue would likely be less than reported here. In addition, 
because NMFS is proposing a higher FY 2011 GB yellowtail flounder ACL 
than that adopted by the Council in FW 45, the resulting reduction in 
fishing revenue is expected to be less than that analyzed in FW 45, as 
discussed above. Overall, the primary cause for reduced revenue is the 
substantially lower proposed FY 2011 TACs compared to those specified 
for FY 2010 (41 percent lower for Eastern GB cod and 20 percent lower 
for Eastern GB haddock). The amount of haddock that has been harvested 
from the U.S./Canada Management Area has been increasing, but it is 
unknown whether this trend will continue. The delayed opening of the 
Eastern U.S./Canada Area for common pool vessels using trawl gear that 
is proposed in this action and described below would likely result in 
increased revenue from the Eastern U.S./Canada Area, because it is 
likely to prolong the time period during which the area is open and 
enable a higher overall catch of all species, particularly GB haddock. 
Similarly, the proposed closure of the CA II Yellowtail Flounder/
Haddock SAP to targeting yellowtail flounder and the associated 
prohibition of the use of flounder nets in this SAP should reduce the 
bycatch of these stocks and increase the harvest of the available 
Eastern GB haddock TAC, prolong the opening of the Eastern U.S./Canada 
Area, and result in greater overall revenue.
    Different impacts would likely be realized by common pool and 
sector vessels due to the nature of the operations of such groups and 
applicable regulations. Unlike vessels operating within the same 
sector, the common pool is unable to actively coordinate fishing 
operations to maximize fishing revenue based upon resource availability 
and market price. Therefore, impacts on common pool vessels will be 
dependent upon the overall rate at which available TACs are caught, and 
whether any responsive measures necessary to prevent such

[[Page 11877]]

TACs from being exceeded are triggered. Further, once the available ACE 
for a particular stock is caught, sectors must cease fishing operations 
in the entire stock area. In contrast, while common pool vessels may be 
subject to more restrictive DAS or trip limits in a particular area, 
they could continue to fish in the Western U.S./Canada Area even after 
the GB yellowtail flounder TAC is caught, provided they do not retain 
any GB yellowtail flounder.

Yellowtail Flounder Allocations to the Scallop Fishery

    FW 45 would maintain the yellowtail flounder allocations to the 
scallop fishery originally implemented under FW 44. This allocation to 
the scallop fishery recognizes the importance of yellowtail flounder to 
the prosecution of the scallop fishery and allocates most of the 
yellowtail flounder that the fishery is expected to catch if it 
harvests the available scallop yield. It also creates an incentive for 
scallop fishermen to reduce bycatch of yellowtail flounder in order to 
maximize scallop yield. The allocation of yellowtail flounder to the 
scallop fishery in FYs 2011 and FY 2012 would likely have fewer 
economic impacts on the scallop fishery than those originally estimated 
in FW 44, because, with the exception of the allocation of GB 
yellowtail flounder to the scallop fishery in FY 2012 (the proposed 
action would provide 93 percent of expected yellowtail flounder bycatch 
by the scallop fishery), that allocation would not constrain scallop 
catch based on updated estimates of the amount of yellowtail flounder 
necessary to fully harvest available scallop resources. However, these 
updated projections of expected yellowtail flounder bycatch by the 
scallop fishery are based upon data from FY 2009 that are considered to 
be overly optimistic due to the substantially lower bycatch of 
yellowtail flounder, particularly from the Nantucket Lightship Closure 
Area, compared to that observed during previous FYs. In addition, these 
projections are subject to a high degree of uncertainty, including 
uncertainty associated with the size of the yellowtail flounder stock. 
Additional detail regarding the evaluation of the likely economic 
impacts to the scallop fishery, including those resulting from the 
proposed yellowtail flounder allocation to the scallop fishery and 
expected scallop catch and the AMs proposed in that fishery as part of 
Amendment 15 and FW 22 to the Atlantic Sea Scallop FMP, are contained 
in the supporting EIS and EA developed for those actions, respectively. 
Overall, however, it is expected that the allocation of yellowtail 
flounder to the scallop fishery represents the greatest overall benefit 
to the nation consistent with the Magnuson-Stevens Act, because it 
would reduce the likelihood that scallop AMs would be triggered due to 
excessive catch of yellowtail flounder in FYs 2011 and 2012 and, 
therefore, put far less fishing revenue at risk compared to other 
allocation alternatives considered in FW 45. The economic impacts of 
other alternatives considered for this measure are discussed further 
below.
    The economic impact of this action on the NE multispecies fishery 
in FY 2011 has two components: (1) The primary revenue reduction due to 
the forgone sale of yellowtail flounder, and (2) secondary revenue 
reduction as a result of reduced access to a particular yellowtail 
flounder stock area. Secondary revenue reduction occurs once a sector's 
yellowtail flounder ACE is caught and that sector is required to cease 
fishing in that stock area, or when the GB yellowtail flounder TAC for 
common pool vessels is caught and the Eastern U.S./Canada Area is 
closed to such vessels. At a market price of $1.34 per lb ($2.95 per 
kg), the primary revenue reduction in the NE multispecies fishery 
associated with the allocations of GB yellowtail flounder to the 
scallop fishery is estimated at $593,787 and $906,928 for FYs 2011 and 
2012, respectively. For SNE/MA yellowtail flounder allocations to the 
scallop fishery, the primary revenue reduction in the NE multispecies 
fishery is estimated at $242,241 and $375,179 for FYs 2011 and 2012, 
respectively.
    The secondary revenue reduction in the groundfish fishery from 
yellowtail flounder allocations to the scallop fishery were estimated 
using the ratio of the value of catch of all species to yellowtail 
flounder. In FY 2010, that ratio was approximately 19 to 1 for GB 
yellowtail flounder. At a market price of $1.34 per lb ($2.95 per kg), 
the value of each metric ton of GB yellowtail flounder to the NE 
multispecies fishery is estimated to be $2,954. Accordingly, for each 
metric ton of GB yellowtail flounder that cannot be caught, 
approximately $56,130 of revenue from other species would also be lost 
due to the reduction of catch of other species caught in association 
with each ton of GB yellowtail flounder caught. Similar to the 
discussion of the economic impact of the proposed U.S./Canada 
Management Area TACs, it is important to remember that these impacts 
are not cumulative, and should not be added to the impacts estimated 
for the proposed ACLs discussed above. Instead, this discussion 
provides additional information that clarifies the potential impact of 
this particular component of the proposed suite of measures that is 
estimated to be captured by the discussion of the impact of the 
proposed ACLs on the NE multispecies fishery. It is also not 
appropriate to consider all of the yellowtail flounder allocated to the 
scallop fishery as a ``loss'' to the groundfish fishery because the 
groundfish fishery does not ``own'' the yellowtail flounder. Rather, it 
is more accurate to consider the allocations as a transfer between the 
two fisheries, particularly given the long and documented history of 
bycatch of yellowtail flounder in the scallop fishery and the current 
requirement that scallop vessels must land all legal-size yellowtail 
flounder.

U.S./Canada Area Measures

    This proposed rule would allocate zero trips to target yellowtail 
flounder in the CA II Yellowtail Flounder/Haddock SAP. This measure 
would prevent vessels from accessing the SAP to target yellowtail 
flounder with flounder nets, as defined in the current regulations, but 
would not reduce the potential revenue from the available ACL of stocks 
that are caught in this area for several reasons. First, the measures 
implemented under Amendment 16 allow vessels to access the same SAP 
area to target GB haddock, a rebuilt stock whose ACL has not been fully 
harvested in recent years, using hook gear and selective trawl gear 
such as the haddock separator trawl and Ruhle trawl. Secondly, 
available ACL of GB yellowtail flounder can also be caught outside this 
SAP in either the Eastern U.S./Canada Area or the Western U.S./Canada 
Area. Thus, this measure would not represent a decrease in opportunity 
or revenue from recent years, because the SAP has not been opened since 
FY 2004 due to the status of the GB yellowtail flounder stock.
    This action would also delay the opening of the Eastern U.S./Canada 
Area to common pool trawl vessels until August 1, 2011. This delay has 
been requested by the Council and implemented by NMFS for the past 
several FYs to reduce the bycatch of Eastern GB cod during the summer 
months and prolong access to the Eastern U.S./Canada Area. This measure 
attempts to maximize fishing revenues by increasing the chances that a 
greater portion of the available Eastern GB haddock TAC can be caught 
without triggering the premature closure of the Eastern U.S./Canada 
Area to avoid exceeding the common pool TAC of Eastern GB cod before 
the end of FY 2011 on April 30, 2012. As noted above

[[Page 11878]]

in the description of the economic impacts of the proposed U.S./Canada 
Management Area TACs, the expected benefits of this measure depend upon 
the selectivity of the fishery and other factors that are difficult to 
predict, but will still likely be reduced compared to those observed 
during FY 2010 due to the reduced TAC of Eastern GB cod. The potential 
2011 common pool trip limits listed in Table 14 should increase the 
likelihood that the fishery will fully harvest, but not exceed, the 
2011 common pool sub-ACLs and minimize the need for further revisions 
to trip limits or differential DAS counting rates. Thus, these trip 
limits should not result in any different economic impacts than those 
identified for the proposed 2011 ACLs discussed above.

Great South Channel Exemption Area

    This measure would remove the existing yellowtail flounder peak 
spawning closures and allow LAGC scallop vessels to fish for scallops 
in the Great South Channel Exemption Area through the year. It is 
expected that this measure would allow such vessels to harvest 
individual allocations of scallops in a more cost-effective manner. In 
doing so, vessel profitability would improve and increase IFQ share 
values compared to the no action alternative. However, the potential 
benefit cannot be reliably quantified. If it is later found that 
fishing with scallop dredge gear during yellowtail flounder peak 
spawning seasons interferes with yellowtail flounder spawning success, 
the proposed elimination of the spawning closures may reduce the 
likelihood that yellowtail flounder stocks will rebuild and could lead 
to further economic impacts in the future to ensure that the rebuilding 
requirements of the FMP are achieved.

GOM Cod Spawning Protection Area

    FW 45 would create a GOM Cod Spawning Protection Area and prohibit 
commercial and recreational vessels from fishing in this area with gear 
capable of catching regulated species and ocean pout from April 1 
through June 30 of each year. The proposed measure would affect private 
recreational anglers and vessels issued a NE multispecies charter/party 
permit and the value such anglers derive from taking a trip into the 
proposed protection area. Recreational fishing values are typically 
measured by the economic surplus beyond what anglers have to pay to 
take a trip, using specialized surveys that are not available for the 
recreational groundfish fishery at this time. It can be expected that 
the proposed action would reduce the economic surplus to anglers that 
fish in this area, as they would not be allowed to fish for groundfish 
in their preferred area from April to June of each year. Even if trips 
could be taken in a different area during these months, the reduction 
in economic surplus would still impact affected entities.
    An estimate of the impact of the proposed measures on charter/party 
vessels was derived by measuring the loss in passenger revenues if 
trips are not taken in this area and the vessel cannot fish in another 
area. During FYs 2007 through 2009, up to 2 percent of charter/party 
trips taken in the GOM between April and June occurred in the proposed 
protection area. However, only about 10 vessels are considered likely 
to be affected by this action based upon their more recent activity 
within this area. For trips taken in these areas during FYs 2008 and 
2009, gross sales were up to $112,000 per year. For vessels that took 
multiple trips into this area, annual gross sales would be reduced by 
about 6 to 7 percent, or about $10,000 per vessel (the impacts ranged 
from less than $1,000 to just over $42,000 per vessel, depending on the 
FY). Overall, the proposed action would reduce the annual gross sales 
of the entire charter/party fishery operating in the GOM by between 1.9 
to 3 percent. These impacts likely represent a maximum impact, as this 
analysis did not consider the sales from fishing in alternative 
locations. If charter/party vessels are able to attract passengers 
willing to fish in other areas, these impacts would be mitigated, at 
least to some degree.

Handgear A and Handgear B Measures

    If implemented, FW 45 would specify stock-specific cod trip limits 
and trip limit adjustments (i.e., different trip limits and trip limit 
adjustments for GOM and GB cod stocks) for vessels issued a limited 
access NE multispecies Handgear A or an open access NE multispecies 
Handgear B permit, as described above. In addition, this action would 
allow Handgear A and Handgear B vessels to access the existing GB 
Seasonal Closure Area, and Handgear A vessels to access the existing 
Sector Rolling Closure Areas. Finally, this action would exempt 
Handgear A and Handgear B vessels from the dockside/roving monitoring 
requirements, as described further below.
    Compared to the no action alternative, the proposed measures are 
expected to improve the economic opportunity available to such vessels. 
Although the realized economic impacts of these measures are uncertain 
as far as the number of vessels that would benefit from these measures 
based on historic fishing patterns and the degree by which landings by 
such vessels would change, they are expected to be positive. In 
particular, specifying stock-specific trip limits and adjustments means 
that handgear vessels fishing for GB cod would not be subject to lower 
cod limits if high catch rates of GOM cod by common pool vessels 
necessitates lower trip limits to prevent the common pool sub-ACL for 
that stock from being exceeded prior to the end of the FY. Thus, the 
economic impacts caused by unnecessarily reducing the cod limit for 
handgear vessels fishing in the GB cod stock area would be avoided. 
Further, increasing access to seasonal closure areas would provide 
handgear vessels operating in the common pool a greater chance of 
landing the allowable cod limit early in the FY before common pool cod 
trip limits would need to be reduced to ensure the sub-ACL is not 
exceeded. Further, by maintaining the Handgear A cod trip limit at 300 
lb (135 kg) per trip until the applicable cod trip limit for vessels 
operating under a NE multispecies DAS drops below 300 lb (135 kg) per 
DAS, such vessels would be better able to land larger amounts of cod 
and increase fishing revenue compared to the no action alternative.

Dockside/Roving and At-Sea Monitor Requirements

    This action would make several changes to the current dockside/
roving monitoring requirements, including delaying the requirement for 
the fishing industry to pay for dockside/roving and at-sea monitoring 
coverage until FY 2013, exempting vessels issued a NE multispecies 
Handgear A or B and Small Vessel Category permits operating in the 
common pool from the dockside/roving monitoring requirements, 
maintaining the trip-end hail reports in the absence of any dockside/
roving monitoring requirements for a particular FY, and requiring 
dockside monitors to inspect the fish holds. Delaying the fishing 
industry's responsibility to pay for dockside/roving monitors and 
exempting handgear and Small Vessel category permits from the dockside/
roving monitoring requirements would save approximately $281,000 per 
year (assuming 20 percent of trips would be covered), while delaying 
the responsibility for paying for at-sea monitoring would save industry 
about $5 million per year (assuming 30 percent of trips would be 
covered). If the level of NMFS funding prevents the Agency from 
providing sufficient at-sea monitoring coverage through FY 2013, then 
uncertainty in catch accounting may necessitate the adoption of higher

[[Page 11879]]

buffers between the ABC and ACL for each stock in future FYs to account 
for this increased management uncertainty. Higher buffers would result 
in decreased ACLs and lower fishing revenues, if adopted in a future 
action. Maintaining the trip-end hail reports in the absence of any 
dockside/roving monitoring program for a particular FY would maintain 
the costs anticipated for such reports, as implemented under Amendment 
16. These costs were estimated to be $24,750 ($0.90 per hail report) 
based on 25,000 trips per year. However, based on fishing patterns 
during FY 2010, it is likely that the number of trips will be lower in 
future years, with about 13,000 trips expected during FY 2010. If this 
trend continues, trip-end hail reports would cost about $12,870 per 
year. Inspection of fish holds is an administrative measure that would 
not affect the costs or revenues of fishing operations. Because 
dockside monitoring service providers are required to have sufficient 
insurance to cover liability associated with dockside monitor injury, 
this should result in no impact to either inspected vessels or service 
providers.
    Exempting Handgear A, Handgear B, and vessels issued a Small Vessel 
Category permit from these regulations would reduce operational costs 
to such vessels. Assuming dockside/roving monitoring costs remain the 
same as they are during FY 2010, the estimated costs of dockside/roving 
monitoring would be a fixed rate of $33 per trip, and an additional $27 
for a trip in which a roving monitor is required, with an additional 
$0.015 per lb ($0.033 per kg) of regulated species landed for 20 
percent of trips taken. These costs would represent 5.2 percent of the 
total regulated species landed by Small Vessel Category permits, and 
2.3 percent and 3.7 percent of the regulated species landed by Handgear 
A and Handgear B permits, respectively. This action would reduce such 
costs, amounting to an aggregate annual savings of $9,841.

Sector Measures

    If implemented, FW 45 would recalculate the PSC for each stock on a 
yearly basis to reflect the elimination of landings histories from 
cancelled permits and allow sectors to request an exemption from the 
dockside/roving monitoring requirements as part of their annual 
operations plans. Assuming equivalent PSC utilization rates and cost of 
fishing, the economic value derived from available ACL would be 
unchanged whether the PSC from cancelled permits is allocated to the 
common pool under the no action alternative, or equally distributed to 
all permits as proposed in this action. If, on average, vessels that 
fish in the common pool are less profitable than sector vessels, then 
this action would result in an improvement in these vessels' economic 
efficiency as compared to taking no action. The magnitude of the impact 
from this provision would likely be small, as few permits have been 
cancelled since the PSCs were calculated using permits valid as of May 
1, 2008. Cancelled permits represent only about 72,000 lb (32,659 kg) 
of all species combined that would be divided among the 1,288 valid 
limited access NE multispecies permits based on each permit's 
individual fishing history. Thus, this measure, in itself, is unlikely 
to make an unprofitable fishing operation marginally profitable. 
Nevertheless, this action would provide some positive benefit and 
increased economic opportunity to all remaining permit holders, and may 
increase the amount of ACE available on the market to lease. Allowing 
sectors to request an exemption from the dockside/roving monitoring 
requirements would likely result in cost savings to applicable sectors 
that are difficult to quantify. It is expected that some sectors would 
request an exemption from the dockside/roving monitoring requirements, 
particularly for trips in southern waters targeting monkfish with large 
mesh. These trips rarely encounter regulated species and ocean pout, 
suggesting that the dockside/roving monitoring requirements offer 
little benefit to increasing the accuracy of monitoring data or the 
enforceability of sector provisions. Thus, such an exemption, if 
justified, could result in reducing operational costs and increasing 
the economic efficiency of sector operations. The environmental 
analysis developed to support a sector operations plan that includes 
such an exemption request, not FW 45, would include a discussion of any 
anticipated economic impacts of such a request.
    This action would also approve five new sectors, including four 
State permit banks and an additional lease-only sector. The approval of 
these new sectors may affect the market price of both permits or 
available DAS and ACE on the leasing market. There is a concern that 
the presence of large institutions such as State governments that have 
less emphasis on achieving a return on investment, and the potential 
for such institutions to acquire permits in a short contracting window, 
would raise the price of available permits for sale. This increase 
could place a private entity at a competitive disadvantage in relation 
to the permit market, particularly if access to capital for investment 
in additional permits by such private entities is limited or already 
maximized. For these same reasons, State permit banks may also serve to 
lower the price of DAS or ACE available on the leasing market. The 
lowering the price of DAS or ACE available on the leasing market by 
State-operated permit banks, along with the approval of another lease-
only sector, may benefit some vessels by providing additional fishing 
opportunities at a lower market price, especially considering reports 
that the ACE leasing market that has developed so far during FY 2010 
has resulted in higher leasing rates, and a restricted supply of 
available ACE.
    Overall, however, the presence of additional permit banks and 
lease-only sectors would facilitate price discovery, leading to more 
efficient markets, the establishment of competitive prices, and a 
limitation on the ability of market participants to exert some form of 
monopoly power. Finally, the approval of the lease-only sector may 
provide some benefits to participating vessels in that it could, 
depending on the fee structure developed by that sector, reduce or 
eliminate the need for participating vessels to pay fees associated 
with dockside/roving and at-sea or electronic monitoring and require 
participating vessels to only pay a processing fee for any ACE or DAS 
transactions in which it participates.
    Based on funding provided to such permit banks to date, it is 
unlikely that the amount of permits and associated DAS and ACE that 
would be able to be purchased by State permit banks would be sufficient 
to fully meet the demand for available ACE, as a rough estimate 
suggests that available funding would only able to procure about 1,300 
mt of ACE of all stocks, if permits are available to purchase. This 
benefit is likely to accrue only to a subset of vessels, at least 
initially, as State permit banks would only be able to lease ACE to 
vessels that are 45 feet (13.7 m) or shorter and are associated with 
communities of less than 30,000 residents, based on funding agreements 
with NMFS. While State permit banks may be able to lower the price of 
available DAS and ACE, if they elect to offer DAS or ACE at below the 
prevailing market price, this would affect the returns to private 
entities in the leasing market that also offer DAS or ACE to lease to 
other entities.
    Any estimate of the magnitude of the possible impacts of the 
proposed approval of State permit banks or the lease-only sector is 
speculative. This action would only approve the concept

[[Page 11880]]

of such additional sectors, and would not actually approve the annual 
operations of these sectors. That approval is occurring through a 
parallel rulemaking to this proposed action.

Corrections

    There are several corrections proposed in this rule that are 
considered to be mostly administrative in nature and do not affect 
vessel operations that would result in any economic impact to regulated 
entities. These corrections would include inserting text that would 
apply a long-standing prohibition on the sale of fish while carrying 
passengers for hire to vessels fishing on a sector trip and those 
fishing under the Small Vessel Category and Handgear A permit 
restrictions, inserting a prohibition to prevent offloading fish prior 
to the arrival of an assigned dockside/roving monitor, clarifying that 
sectors can only carry over up to 10 percent of allocated ACE for each 
stock except for GB yellowtail flounder into the next FY, clarifying 
that permits in CPH can participate in sectors to reflect the intent of 
Amendment 16, and revising the text describing how PSCs are calculated 
to more precisely describe the process outlined in Amendment 16 and 
implemented by NMFS.

Measures Proposed To Mitigate Adverse Economic Impacts of the Proposed 
Action

    The proposed action contains several measures that would directly 
or indirectly provide small entities with some ability to offset at 
least some portion of the estimated economic impacts associated with 
proposed measures. The major mitigating measures would include allowing 
LAGC scallop vessels greater access to the Great South Channel 
Exemption area; increasing access to the seasonal closure areas for 
Handgear A and Handgear B permits; exempting the existing dockside/
roving monitoring requirements; delaying requiring sectors and common 
pool vessels to pay for dockside/roving and at-sea or electronic 
monitoring; extending rebuilding period for GB yellowtail flounder and 
formal recognition of the rebuilt status of pollock; redistributing PSC 
from cancelled permits to all remaining valid limited access NE 
multispecies permits; and approving new sectors, including State permit 
banks and a lease-only sector. During the development of Framework 45, 
NMFS and the Council considered ways to reduce the regulatory burden on 
and provide flexibility to the regulated community. The approach taken 
is consistent with the recent Presidential Memorandum on Regulatory 
Flexibility, Small Business, and Job Creation (January 18, 2011). 
Proposed actions and alternatives are described in detail in Framework 
45, which includes an Environmental Assessment, Regulatory Impact 
Review, and Initial Regulatory Flexibility Analysis (available at 
ADDRESSES).
    Eliminating the yellowtail flounder peak spawning closure areas in 
the Great South Channel Exemption Area would enable LAGC scallop 
vessels greater access to this area. If this measure reduces 
operational costs by allowing vessels to operate in a more efficient 
manner, it could increase the economic efficiency of vessel operations 
and increase the value of the IFQ permits.
    Exempting Handgear A, Handgear B, and Small Vessel Category permits 
from dockside/roving monitoring requirements, delaying industry 
responsibility for paying for dockside/roving monitoring coverage until 
FY 2013, and delaying industry responsibility for paying for a sector 
at-sea monitoring program until FY 2013 would explicitly reduce 
monitoring costs to affected entities, saving such entities 
approximately $5.28 million each year compared to the no action 
alternative.
    Allowing vessels with handgear permits access to at least some of 
the seasonal closure areas would increase the chance that such permits 
could increase their catch of regulated species, particularly during 
the early months of the fishing season before trip limits may be 
reduced to prevent the overall ACLs from being exceeded. Similar 
benefits would be expected from specifications of stock-specific trip 
limits and trip limit adjustments for cod for these vessels.
    Extending the rebuilding program for GB yellowtail flounder would 
indirectly reduce economic impacts on NE multispecies vessels by 
allowing higher ACLs to be specified for the remainder of the 
rebuilding program compared to the existing rebuilding program adopted 
for this stock. The adoption of updated biological reference points for 
pollock would formally end the rebuilding program implemented for this 
stock under Amendment 16, and enable the specification of higher ACLs 
on an indefinite basis that would have otherwise expired on April 30, 
2011, following the extension of the July 20, 2010, emergency rule.
    As noted above, the approval of new sectors, including State permit 
banks and a lease-only sector, would help to reduce vessel operational 
costs by increasing the amount of DAS and ACE available on the leasing 
market, reducing market price for such additional fishing 
opportunities, and increasing competition in the leasing market by 
providing alternative means to acquire the ACE necessary for to help 
vessels remain financially solvent. In addition, it is possible that 
the lease-only sector could reduce sector monitoring fees due to the 
presumption that participating vessels would not be actively fishing, 
but rather exist for the sole purpose of providing PSC that the sector 
may use to enable other sectors to continue fishing.

Economic Impacts of Alternatives to the Proposed Action

    Under the no action alternative, updated status determination 
criteria would not be adopted for pollock. These updated criteria were 
adopted in the July 20, 2010, emergency action, but would expire on 
April 30, 2011, if not formally integrated into the FMP under this 
action. The expiration of the emergency action would mean that the 
rebuilding program implemented under Amendment 16 would be reinstated, 
and that the fishery would not be able to benefit from the harvest the 
additional pollock based upon its status as a rebuilt stock. The 
implications of this alternative are transmitted through lower ACLs 
described in further detail below.
    Because FW 45 is a discrete adjustment in a long line of frameworks 
and amendments, a number and scope of alternatives have either already 
been considered in earlier actions or are not appropriate in the 
context of this action. FW 45 considered five alternatives to revising 
the GB yellowtail flounder rebuilding strategy. These five alternatives 
included: (1) The no action alternative that would maintain the current 
FW 42 rebuilding period that would rebuild the GB yellowtail flounder 
stock by FY 2014 with a 75 percent probability of success; (2) Sub-
option A (the proposed action) that would rebuild this stock by 2016 
with a 50 percent probability of success; (3) Sub-option B that would 
rebuild this stock by 2016 with a 60 percent probability of success; 
(4) Sub-option C that would rebuild this stock by 2016 with a 75 
percent probability of success; and (5) Sub-option D that would rebuild 
this stock by 2019 with a 60 percent probability of success. The 
present values of a stream of potential revenues over a 10-year period 
for each of these alternatives are presented in Section 9.4.1 of the FW 
45 EA using several discount rates. Discards were not incorporated into 
this analysis; however, because discard rates are not expected to 
differ among the

[[Page 11881]]

alternatives, this was not expected to affect the ranking of these 
alternatives.
    According to this analysis, sub-option D (rebuilding this stock by 
2019 with a 60-percent probability of success) would result in the 
highest median present values among all alternatives considered, 
followed by sub-option A (the proposed action), sub-option B, the no 
action alternative, and sub-option C. This pattern was repeated, 
regardless of the discount rate applied. Sub-option D would result in 
U.S. catches with a median present value of $74.7 million through 2020, 
while the proposed action is expected to yield $70.8 million over the 
same period, using a 5-percent discount rate. Therefore, sub-option D 
would result in about $4 million of additional revenue, compared to the 
proposed action, over the course of 10 years. However, as noted earlier 
in this preamble, because sub-option D would extend the rebuilding 
period though FY 2019, the rebuilding period would run 13 years, or 3 
years beyond the maximum rebuilding period allowed under the Magnuson-
Stevens Act. Therefore, that alternative is not consistent with 
applicable law. The proposed action, in contrast, is consistent with 
applicable law and would result in the next highest median present 
value among the alternatives considered. Thus, the proposed action 
represents the alternative with the least economic impact of the 
alternatives that were considered that are also consistent with 
applicable law.
    Under the no action alternative, the ACLs implemented under FW 44 
would be retained for FYs 2011 and 2012. Those ACLs do not reflect the 
updated status of pollock, or the extended rebuilding period for GB 
yellowtail flounder proposed in this action. This alternative would 
result in foregone income for NE multispecies vessels, as they would 
not be able to capitalize on increased ACLs for these stocks under this 
proposed action. The economic impact of the no action alternative was 
measured by estimating the revenue associated with landing the full 
amount of available ACL for each stock using prices as of September 30, 
2010. This analysis suggests that the potential value of FY 2011 and 
2012 ACLs under the no action alternative would be $191.3 million and 
$184.6 million, respectively. These estimates are lower than that 
specified under FW 44 ($205 million and $196 million, respectively) due 
to changes in prices used. The proposed action would result in a value 
of between $185.4 million and $187.8 million, depending on the GB 
yellowtail flounder rebuilding alternative analyzed, or between nearly 
$3.5 million and $6 million less value than the no action alternative. 
However, because the no action alternative and GB yellowtail flounder 
rebuilding sub-option C would specify an ACL of zero for that stock, 
the potential realized revenues associated with those options would be 
much lower, since revenues associated with any other stock caught with 
GB yellowtail flounder would be reduced as well. This factor is 
particularly important for sectors, as sectors are not allowed to 
operate in the GB yellowtail flounder stock area since they would not 
be allocated any GB yellowtail flounder ACE during FYs 2011 and 2012 
based on existing regulations.
    A more realistic estimate projected FY 2011 landings based upon the 
ACL utilization rate as of October 16, 2010, and a consideration of 
discards. This analysis suggests that potential revenues from the no 
action alternative would be $80.2 million during FY 2011 and $81.9 
million during FY 2012, with estimated sector revenues of $71.1 million 
and $73 million for those FYs, respectively. Compared to the proposed 
action, the no action alternative would produce about $0.4 million more 
revenue in FY 2011 and $9.4 million revenue in FY 2012. Once again, 
this amount does not factor in potential revenue loss from the 
specification of zero GB yellowtail ACL. Because the no action 
alternative for ACLs is affected by the integration of updates to the 
status determination criteria for pollock and the updated rebuilding 
program for GB yellowtail flounder, the no action alternative for 
specifying ACLs would not incorporate the best available scientific 
information and would be, therefore, inconsistent with the Magnuson-
Stevens Act.
    Failure to specify FY 2011 U.S./Canada Management Area TACs under 
the no action alternative would result in increased revenue compared to 
the proposed action. Vessels would be able to harvest the available ACL 
for GB cod, GB haddock, and GB yellowtail flounder throughout GB, 
including in the Eastern U.S./Canada Area, but overall catches would 
still be limited by ACLs specified under this action. Revenue from the 
catch of other stocks caught in conjunction with these stocks would 
also be higher under the no action alternative. However, because the no 
action alternative would ignore the joint efforts to manage 
transboundary stocks, it would likely set F on such stocks higher in FY 
2011 than they actually are (or would be), and perhaps at unsustainable 
levels. In contrast to the proposed action, the no action alternative 
may result in long-term negative economic impacts if such fishing would 
undermine efforts to prevent overfishing and rebuild overfished stocks 
of GB cod and GB yellowtail flounder and necessitate further action in 
the future to ensure the FMP's conservation objectives are achieved.
    The Council considered one alternative allocation of GB and SNE/MA 
yellowtail flounder to the Atlantic sea scallop fishery to the 
allocations proposed in this action based upon the management measures 
adopted in the scallop fishery as part of FW 22 to the Atlantic Sea 
Scallop FMP. The Council opted to retain the existing allocations of 
yellowtail flounder implemented under FW 44, even though it also 
analyzed additional alternatives as part of FW 22 to the Atlantic Sea 
Scallop FMP. This allocation to the scallop fishery recognizes the 
importance of yellowtail flounder to the prosecution of the scallop 
fishery and allocates most of the yellowtail flounder that the fishery 
is expected to catch if it harvests the available scallop yield. It 
also creates an incentive for scallop fishermen to reduce bycatch of 
yellowtail flounder in order to maximize scallop yield. It is expected 
that the allocation of yellowtail flounder to the scallop fishery will 
represent the greatest net benefit to the nation, as it will enable the 
continuation of one of the nation's most profitable fisheries by 
reducing the chance that the catch of scallops will be limited by the 
available bycatch of yellowtail flounder, as described in further 
detail in FW 45 and the analysis of FW 22 to the Atlantic Sea Scallop 
FMP.
    A possible impact from allocating yellowtail flounder to the 
scallop fishery is that it may limit opportunities for groundfish 
fishermen to target other stocks. The FW 45 analysis characterizes this 
potential impact as secondary revenue at risk. The proposed action to 
allocate yellowtail flounder to the scallop fishery would place far 
less fishing revenue at risk compared to the other option considered. 
For example, based upon the ratio of yellowtail flounder revenues to 
total groundfish revenues, the amount of fishing revenue at risk in the 
groundfish fishery (i.e., the amount of groundfish revenue reduction 
that would be expected if the groundfish fishery was not able to 
harvest allocated 100 percent of the available yellowtail flounder 
based on the proposed allocations) is estimated to be $11.2 million in 
FY 2011 and $17.2 million in FY 2012 for GB yellowtail flounder, and 
$1.8 million in FY 2011 and $2.8 million in FY 2012 for SNE/MA 
yellowtail flounder, or a combined $32,560,387 at a discount rate of 3

[[Page 11882]]

percent. The amount of fishing revenue at risk in the scallop fishery 
(i.e., the amount of scallop revenue reduction that would be expected 
if the groundfish fishery was not able to harvest allocated 100 percent 
of the available yellowtail flounder based on the proposed allocations) 
is estimated to be about $4,228,222 in FY 2011 using a discount rate of 
3 percent, because the GB yellowtail flounder sub-ACL to the scallop 
fishery is 93 percent of the amount of yellowtail flounder the scallop 
fishery is expected to catch in FY 2012, indicating that 7 percent of 
the scallop revenues from this stock are at risk in FY 2013 based on 
the AMs implemented in FW 22 to the Atlantic Sea Scallop FMP that would 
be implemented the year after an overage. Therefore, the total fishing 
revenue at risk for the proposed allocation is $36.8 million in FY 
2011, using a 3 percent discount rate. In contrast, under the other 
allocation alternative considered (Option 2) that would have only 
allocated 90 percent of the estimated yellowtail flounder catch by the 
scallop fishery based upon updated projections, the revenue at risk 
would be $91,063,372 ($27,042,096 revenue at risk in the groundfish 
fishery plus $64,021,277 revenue at risk in the scallop fishery) in FY 
2011 using a 3 percent discount rate, or $54,274,763 more revenue at 
risk than the proposed action. Thus, the proposed action put far less 
fishing revenue at risk. In addition, the proposed action may also 
result in less adverse biological effects on a wide range of species 
compared to Option 2, because the proposed action would reduce the 
likelihood that the scallop bycatch of yellowtail flounder would exceed 
sub-ACLs and, therefore, the overall yellowtail flounder ABC, and 
trigger AMs that would alter the distribution of scallop fishing effort 
and the resulting impacts to other species.
    The only other alternative considered to the proposed approval of 
five new sectors is the no action alternative. The no action 
alternative for this measure would not approve any new sectors for FY 
2011. This may have a small adverse economic impact on permit holders 
intending to participate in the Sustainable Harvest Sector III. 
However, permit holders may be able to remain in or join the 
Sustainable Harvest Sector that was approved under Amendment 16. If the 
operations plan for the Sustainable Harvest Sector III offered reduced 
operational costs to participating vessels due to the intended lease-
only status of that sector, those costs savings may not be realized 
under the no action alternative.
    Additional sectors were considered for approval under FW 45, but 
the Council chose not to approve them because they did not submit an 
operations plan to NMFS by the existing deadline of September 1. 
Approval of these other sectors, the Northeast Fisheries Sector XIV and 
the Sustainable Harvest Sector II, may have resulted in a small 
positive economic impact since permit holders would have had more 
options for which sectors to join. However, permit holders were able to 
join other sectors following the Council's decision, so any impacts to 
such permit holders would be minimal.
    Under the no action alternative, the dockside monitoring 
requirements originally implemented under Amendment 16 would be 
maintained. These requirements would make sector vessels responsible 
for developing and paying for a dockside/roving monitoring program 
beginning in FY 2010, and an at-sea or electronic monitoring program 
beginning in FY 2012, while all common pool vessels would be subject to 
dockside/roving monitoring beginning in FY 2012. The no action 
alternative would have resulted in an estimated annual cost of $9,841 
per vessel to Handgear A, Handgear B, and Small Vessel Category 
vessels. Further, the estimated $280,000 cost of dockside monitoring to 
the remainder of the fishery would have been imposed on the fleet, as 
well as the $5 million cost associated with at-sea monitoring during 
FYs 2011 and 2012, respectively.
    Failing to redistribute PSC from cancelled permits to all valid 
limited access NE multispecies as of a certain date each year as part 
of the no action alternative would result in continued allocation of 
such PSC to the common pool. This allocation would provide some 
marginal benefit to the common pool that would be redistributed to the 
entire fishery under the proposed action. However, because the amount 
of PSCs that have been cancelled to date represent a small amount of 
fish (72,000 lb (32,659 kg) of all regulated species and ocean pout 
stocks combined), the benefits are not expected to materially affect 
the operations of the common pool under the no action alternative, 
particularly because a majority of this PSC is pollock, a species that 
has not been constraining to the operations by the common pool so far 
during FY 2010.
    The no action alternative would not specify stock-specific cod 
limits for handgear vessels, allow such vessels increased access to the 
existing seasonal closure areas, or allow LAGC vessels to fish in the 
Great South Channel Exemption Area during peak yellowtail flounder 
spawning periods. It would maintain the existing value of such permits, 
and not improve the economic opportunity provided to these vessels as 
part of the proposed action. Such an action would reduce the economic 
efficiency of such vessels.
    The no action alternative would also maintain the existing 
recreational measures and would not implement the proposed GOM Cod 
Spawning Protection Area. Since FY 2007, the number of trips taken by 
charter/party vessels in the GOM has steadily declined, with gross 
receipts declining by almost $2 million based on an average ticket 
price of $60 per person. Thus, the no action alternative is not likely 
to alter what appears to be a continuing downward trend in 
participation in the charter/party fishery in the GOM in recent years.

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule

Reporting and Recordkeeping Requirements
    The only reporting and recordkeeping requirements affected by this 
proposed rule are the request for a LOA to fish south of the GOM 
Regulated Mesh Area by Handgear A and Handgear B vessels, or a similar 
declaration via VMS prior to each trip by Handgear A vessels required 
to use VMS under the existing regulations, and the trip-end hail report 
already approved as part of Amendment 16. This action would not impose 
any new reporting or recordkeeping requirements that have not already 
been in existence. However, it would require additional vessels 
(handgear vessels) to comply with the LOA requirements. Existing 
reporting and recordkeeping requirements for the dockside/roving and 
at-sea or electronic monitoring programs approved under Amendment 16 
have been included below for reference.
    The costs associated with the reporting and recordkeeping 
requirements supporting measures proposed in this action are detailed 
in the PRA analysis associated with Amendment 16 and the permit family 
of forms for the Northeast Region of NMFS. The time burden associated 
with a telephone call to request for a LOA to fish south of the GOM 
Regulated Mesh Area is estimated at 5 minutes, with no costs to vessels 
requesting such a LOA. The cost associated with a similar declaration 
via VMS is estimated at $0.50 per submission. For the trip-end hail 
reports, the yearly cost to each vessel would be approximately $17, 
assuming that such reports were made via VMS. Costs to vessels 
receiving

[[Page 11883]]

dockside/roving monitoring services proposed under Amendment 16 include 
$10 per year for confirming pre-trip hail reports and $13 per year to 
confirm trip-end hail reports and specify whether a particular trip 
would be observed by a dockside monitor. Requirements to maintain and 
enter data into a dockside monitoring database would cost approximately 
$4,225 per service provider annually, while submitting dockside 
monitoring data to NMFS would cost each service provider approximately 
$36,000 per year. Similar costs to service providers are expected to 
notify sector vessels of selection for at-sea/electronic monitoring 
coverage ($3,125 per year) and to submit at-sea or electronic 
monitoring data to NMFS ($36,000 per year).

Other Compliance Requirements

    This proposed rule contains a collection-of-information requirement 
subject to the PRA and which has been approved by OMB under the various 
OMB control numbers listed below. Public reporting burden for these 
collections of information are estimated to average, as follows:
    1. VTR submissions, OMB 0648-0605, (5 min/response);
    2. Sector operations plan and associated NEPA analysis, 
OMB 0648-0605, (640 hr/response);
    3. Dockside/at-sea monitoring service provider application, 
OMB 0648-0605, (10 hr/response);
    4. Dockside/at-sea monitoring service provider response to 
application disapproval, OMB 0648-0605, (10 hr/response);
    5. Data entry for sector discard monitoring system, OMB 
0648-0605, (3 min/response);
    6. Sector weekly catch report, OMB 0648-0605, (4 hr/
response);
    7. Sector annual report, OMB 0648-0605, (12 hr/response);
    8. Notification of expulsion from a sector, OMB 0648-0605, 
(30 min/response);
    9. Request to transfer ACE, OMB 0648-0605, (5 min/
response);
    10. VMS certification form, OMB 0648-0605, (10 min/
response);
    11. VMS confirmation call, OMB 0648-0605, (5 min/
response);
    12. VMS area and DAS declaration, OMB 0648-0605, (5 min/
response);
    13. VMS trip-level catch reports, OMB 0648-0605, (15 min/
response);
    14. Request for a LOA to participate in the GOM Haddock Gillnet 
Pilot Program, OMB 0648-0605, (5 min/response);
    15. Request for a LOA to fish in a NE multispecies RGA, 
OMB 0648-0605, (5 min/response);
    16. VMS declaration to fish in a NE multispecies RGA, OMB 
0648-0605, (5 min/response);
    17. Pre-trip hail report to a dockside monitoring service provider, 
OMB 0648-0605, (2 min/response);
    18. Trip-end hail report to a dockside monitoring service provider, 
OMB 0648-0605, (15 min/response);
    19. Confirmation of dockside monitoring trip-end hail report, 
OMB 0648-0605, (2 min/response);
    20. Dockside/roving service provider data entry, OMB 0648-
0605, (3 min/response);
    21. Dockside/roving or at-sea monitor deployment report, 
OMB 0648-0605, (10 min/response);
    22. Dockside/roving or at-sea monitoring service provider catch 
report to NMFS upon request, OMB 0648-0605, (5 min/response);
    23. Dockside/roving or at-sea monitor report of harassment and 
other issues, OMB 0648-0605, (30 min/response);
    24. OLE debriefing of dockside/roving or at-sea monitors, 
OMB 0648-0605, (2 hr/response);
    25. Copy of dockside/roving or at-sea monitoring service provider 
contract upon request, OMB 0648-0605, (30 min/response);
    26. Copy of dockside/roving or at-sea monitoring service provider 
information materials upon request, OMB 0648-0605, (30 min/
response);
    27. Observer program pre-trip notification, OMB 0648-0605, 
(2 min/response);
    28. Daily VMS catch reports when fishing in the U.S./Canada 
Management Area and CA II SAPs, OMB 0648-0605, (15 min/
response);
    29. Daily VMS catch reports when fishing in the CA I Hook Gear 
Haddock SAP, OMB 0648-0605, (15 min/response);
    30. Daily VMS catch reports when fishing in the Regular B DAS 
Program, OMB 0648-0605, (15 min/response);
    31. Copy of the dealer weigh-out slip or dealer signature of the 
dockside monitor report, OMB 0648-0605, (2 min/response);
    32. Forward trip start/end hails to NMFS, OMB 0648-0605 (2 
min/response);
    33. Notification to vessel/sector/NMFS of monitor emergency, 
OMB 0648-0605 (5 min/response);
    34. Initial vessel application for a limited access Handgear A 
permit, OMB Control Number 0648-0202, (10 min/response);
    35. DAS Transfer Program application, OMB Control Number 0648-0202, 
(5 min/response);
    36. VMS purchase and installation, OMB Control Number 0648-0202, (1 
hr/response);
    37. Automated VMS polling of vessel position twice per hour while 
fishing within the U.S./Canada Area, OMB Control Number 0648-0202, (5 
sec/response);
    38. VMS proof of installation, OMB Control Number 0648-0202, (5 
min/response);
    39. Expedited submission of a proposed SAP, OMB Control Number 
0648-0202, (20 hr/response);
    40. Request to power down VMS for at least 1 month, OMB Control 
Number 0648-0202, (5 min/response);
    41. Request for an LOA to participate in the GOM Cod Landing 
Exemption, OMB Control Number 0648-0202, (5 min/response);
    42. Request for an LOA to participate in the Skate Bait-only 
Possession Limit Exemption, OMB Control Number 0648-0202, (5 min/
response);
    43. Submission of a sector allocation proposal, OMB Control Number 
0648-0202, (50 hr/response);
    44. DAS ``flip'' notification via VMS for the Regular B DAS pilot 
program, OMB 0648-0202 (5 min/response);
    45. DAS ``flip'' notification via VMS for the Eastern U.S./Canada 
Haddock SAP Pilot Program, OMB 0648-0202 (5 min/response);
    46. NMFS Office of Law Enforcement landings notice requirement for 
Category 1 herring vessels operating with an observer waiver, 
OMB 0648-0521, (5 min/response);
    47. Notification and Communication with USCG and Center for Coastal 
Studies, OMB 0648-0521, (10 min/response);
    48. Written requests to receive a DAS credit for standing by an 
entangled whale, OMB 0648-0521, (30 min/response);
    49. Vessel baseline downgrade request for the DAS Leasing Program, 
OMB 0648-0475, (1 hr/response);
    50. Spawning block declaration, OMB 0648-0202 (2 min/
response);
    51. Sector Manager daily reports for CA I Hook Gear Haddock SAP, 
OMB 0648-0212 (2 hr/response);
    52. DAS Leasing Program application, OMB 0648-0475 (10 
min/response); and
    53. Declaration of intent to fish inside and outside of the Eastern 
U.S./Canada Area on the same trip, OMB 0648-0202 (5 min/
response).
    Public reporting burden for these requirements includes the time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, andcompleting and reviewing the 
collection of information. Send comments regarding these burden 
estimates, or any other aspect of this

[[Page 11884]]

data collection, including suggestions for reducing the burden, to NMFS 
(see ADDRESSES) and by e-mail to [email protected], or fax 
to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 22, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 648 is proposed 
to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    2. In Sec.  648.10, revise paragraph (k)(1) to read as follows:


Sec.  648.10  VMS and DAS requirements for vessel owners/operators.

* * * * *
    (k) * * *
    (1) Reporting requirements for all limited access NE multispecies 
vessel owners or operators. In addition to any other reporting 
requirements specified in this part, the owner or operator of any 
vessel issued a limited access NE multispecies permit on either a 
common pool or sector trip must declare the following information via 
VMS or IVR, as instructed by the Regional Administrator:
    (i) Broad stock area(s) to be fished. To fish in any of the broad 
stock areas, the vessel owner or operator must declare his/her intent 
to fish within one or more of the NE multispecies broad stock areas, as 
defined in paragraph (k)(3) of this section, prior to leaving port at 
the start of a fishing trip;
    (ii) VTR serial number. On its return to port, prior to crossing 
the VMS demarcation line, as defined at Sec.  648.10, the vessel owner 
or operator must provide the VTR serial number for the first page of 
the VTR for that particular trip, or other applicable trip ID specified 
by NMFS; and
    (iii) Trip-end hail report. Unless otherwise required to comply 
with both the dockside/roving monitoring trip-start and trip-end hail 
reports pursuant to Sec.  648.87(b)(5), beginning in fishing year 2011 
(May 1, 2011), upon its return to port and prior to crossing the VMS 
demarcation line as defined in Sec.  648.10, the owner or operator of 
any vessel issued a limited access NE multispecies permit that is 
subject to the VMS requirements specified in paragraph (b)(4) of this 
section must submit a trip-end hail report to NMFS via VMS, as 
instructed by the Regional Administrator. The trip-end hail report must 
include at least the following information, as instructed by the 
Regional Administrator: The vessel permit number; VTR serial number, or 
other applicable trip ID specified by NMFS; intended offloading 
location(s), including the dealer name/offload location, port/harbor, 
and State for the first dealer/facility where the vessel intends to 
offload catch and the port/harbor, and State for the second dealer/
facility where the vessel intends to offload catch; estimated date/time 
of arrival; estimated date/time of offload; and the estimated total 
amount of all species retained, including species managed by other FMPs 
(in pounds, landed weight), on board at the time the vessel first 
offloads its catch from a particular trip. The trip-end hail report 
must be submitted at least 6 hr in advance of landing for all trips of 
at least 6 hr in duration or occurring more than 6 hr from port. For 
shorter trips, the trip-end hail reports must be submitted upon the 
completion of the last tow or hauling of gear, as instructed by the 
Regional Administrator.
* * * * *
    3. In Sec.  648.14, revise paragraph (k)(7)(i)(B); and add 
paragraphs (k)(9)(i), (k)(15)(ii)(A)(5), and (k)(18)(i)(D) to read as 
follows:


Sec.  648.14  Prohibitions.

* * * * *
    (k) * * *
    (7) * * *
    (i) * * *
    (B) Fish for, harvest, possess, or land regulated species in or 
from the closed areas specified in Sec.  648.81(a) through (f) and (o), 
unless otherwise specified in Sec.  648.81(c)(2)(iii), (f)(2)(i), 
(f)(2)(iii), (f)(2)(vi), (i), (o)(2)(i), or as authorized under Sec.  
648.85.
* * * * *
    (9) * * *
    (i) If operating under the provisions of a limited access NE 
multispecies Handgear A permit south of the GOM Regulated Mesh Area, as 
defined at Sec.  648.80(a)(1), fail to declare the vessel operator's 
intent to fish in this area via VMS or fail to obtain or retain on 
board a letter of authorization from the Regional Administrator, as 
required by Sec.  648.82(b)(6)(iv).
* * * * *
    (15) * * *
    (ii) * * *
    (A) * * *
    (5) If operating under the provisions of a limited access NE 
multispecies Handgear B permit south of the GOM Regulated Mesh Area, as 
defined at Sec.  648.80(a)(1), fail to obtain or retain on board a 
letter of authorization from the Regional Administrator, as required by 
Sec.  648.88(a)(2)(iv).
* * * * *
    (18) * * *
    (i) * * *
    (D) Offload fish before a dockside/roving monitor arrives, if 
selected to have its offloading events observed by a dockside/roving 
monitor, as specified by Sec.  648.87(b)(1)(v)(B)(1) and (b)(5)(i)(C).
* * * * *
    4. In Sec.  648.80, revise the introductory text to paragraph 
(a)(18), and remove paragraphs (a)(18)(ii)(C) and (D) to read as 
follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

    (a) * * *
    (18) Great South Channel Scallop Dredge Exemption Area. Vessels 
issued a LAGC scallop permit, including limited access scallop permits 
that have used up their DAS allocations, may fish in the Great South 
Channel Scallop Dredge Exemption Area, as defined under paragraph 
(a)(18)(i) of this section, when not under a NE multispecies or scallop 
DAS or on a sector trip, provided the vessel complies with the 
requirements specified in paragraph (a)(18)(ii) of this section and 
applicable scallop regulations in subpart D of this chapter.
* * * * *
    5. In Sec.  648.81, revise paragraphs (f)(2)(vi) and (i); and add 
paragraphs (g)(2)(vi) and (o) to read as follows:


Sec.  648.81  NE multispecies closed areas and measures to protect EFH.

* * * * *
    (f) * * *
    (2) * * *
    (vi) That are fishing on a sector trip, or under the provisions of 
a Northeast multispecies Handgear A permit, as specified at Sec.  
648.82(b)(6), provided such vessels comply with the following 
restricted areas referred to as the Sector Rolling Closure Areas:
* * * * *

[[Page 11885]]

    (g) * * *
    (2) * * *
    (vi) That are fishing under the provisions of a Northeast 
multispecies Handgear A permit, as specified at Sec.  648.82(b)(6), or 
the provisions of a Northeast multispecies Handgear B permit, as 
specified at Sec.  648.88(a).
* * * * *
    (i) Transiting. Unless otherwise restricted or specified in this 
paragraph (i), a vessel may transit CA I, the Nantucket Lightship 
Closed Area, the Cashes Ledge Closed Area, the Western GOM Closure 
Area, the GOM Rolling Closure Areas, the GB Seasonal Closure Area, the 
EFH Closure Areas, and the GOM Cod Spawning Protection Area, as defined 
in paragraphs (a)(1), (c)(1), (d)(1), (e)(1), (f)(1), (g)(1), (h)(1), 
and (o)(1), of this section, respectively, provided that its gear is 
stowed in accordance with the provisions of Sec.  648.23(b). A vessel 
may transit CA II, as defined in paragraph (b)(1) of this section, in 
accordance with paragraph (b)(2)(iv) of this section. Private 
recreational or charter/party vessels fishing under the Northeast 
multispecies provisions specified at Sec.  648.89 may transit the GOM 
Cod Spawning Protection Area, as defined in paragraph (o)(1) of this 
section, provided all bait and hooks are removed from fishing rods, and 
any regulated species on board have been caught outside the GOM Cod 
Spawning Protection Area and has been gutted and stored.
* * * * *
    (o) GOM Cod Spawning Protection Area. (1) Except as specified in 
paragraph (o)(2) of this section, from April through June of each year, 
no fishing vessel or person on a fishing vessel may enter, fish in, or 
be in; and no fishing gear capable of catching NE multispecies may be 
used, on, or be on board, a vessel in the GOM Cod Spawning Protection 
Area, as defined by straight lines connecting the following points in 
the order stated (a chart depicting this area is available from the 
Regional Administrator upon request):

                    GOM Cod Spawning Protection Area
------------------------------------------------------------------------
              Point                   N. latitude        W. longitude
------------------------------------------------------------------------
CSPA1...........................  42[deg]50.95'       70[deg]32.22'
CSPA2...........................  42[deg]47.65'       70[deg]35.64'
CSPA3...........................  42[deg]54.91'       70[deg]41.88'
CSPA4...........................  42[deg]58.27'       70[deg]38.64'
CSPA1...........................  42[deg]50.95'       70[deg]32.22'
------------------------------------------------------------------------

     (2) Paragraph (o)(1) of this section does not apply to persons on 
a fishing vessel or fishing vessels:
    (i) That have not been issued a NE multispecies permit and that are 
fishing exclusively in State waters;
    (ii) That are fishing with or using exempted gear as defined under 
this part, excluding pelagic gillnet gear capable of catching NE 
multispecies, except for vessels fishing with a single pelagic gillnet 
not longer than 300 ft (91.4 m) and not greater than 6 ft (1.83 m) 
deep, with a maximum mesh size of 3 inches (7.6 cm), provided:
    (A) The net is attached to the boat and fished in the upper two-
thirds of the water column;
    (B) The net is marked with the vessel owner's name and vessel 
identification number;
    (C) There is no retention of regulated species or ocean pout; and
    (D) There is no other gear on board capable of catching NE 
multispecies;
    (iii) That are fishing as a charter/party or recreational fishing 
vessel, provided that:
    (A) With the exception of tuna, fish harvested or possessed by the 
vessel are not sold or intended for trade, barter, or sale, regardless 
where the species are caught;
    (B) The vessel has no gear other than pelagic hook and line gear, 
as defined in this part, on board unless that gear is properly stowed 
pursuant to Sec.  648.23(b); and
    (C) There is no retention of regulated species, or ocean pout; and
    (iv) That are transiting pursuant to paragraph (i) of this section.
* * * * *
    6. In Sec.  648.82, revise paragraphs (a)(2), the introductory text 
of paragraph (b)(6), and (n)(2)(iv), and add paragraph (b)(6)(iv) to 
read as follows:


Sec.  648.82  Effort-control program for NE multispecies limited access 
vessels.

    (a) * * *
    (2) Notwithstanding any other provision of this part, any vessel 
issued a NE multispecies limited access permit may not call into the 
DAS program and fish under a DAS, fish on a sector trip, or fish under 
the provisions of a limited access Small Vessel Category or Handgear A 
permits pursuant to paragraphs (b)(5) and (b)(6) of this section, 
respectively, if such vessel carries passengers for hire for any 
portion of a fishing trip.
    (b) * * *
    (6) Handgear A category. A vessel qualified and electing to fish 
under the Handgear A category, as described in Sec.  648.4(a)(1)(i)(A), 
may retain, per trip, up to 300 lb (135 kg) of cod, one Atlantic 
halibut, and the daily possession limit for other regulated species and 
ocean pout, as specified under Sec.  648.86. If either the GOM or GB 
cod trip limit applicable to a vessel fishing under a NE multispecies 
DAS permit, as specified in Sec.  648.86(b)(1) and (b)(2), 
respectively, is reduced below 300 lb (135 kg) per DAS by NMFS, the cod 
trip limit specified in this paragraph (b)(6) shall be adjusted to be 
the same as the applicable cod trip limit specified for NE multispecies 
DAS permits. For example, if the GOM cod trip limit for NE multispecies 
DAS vessels was reduced to 250 lb (113.4 kg) per DAS, then the cod trip 
limit for a vessel issued a Handgear A category permit that is fishing 
in the GOM Regulated Mesh Area would also be reduced to 250 lb (113.4 
kg). Qualified vessels electing to fish under the Handgear A category 
are subject to the following restrictions:
* * * * *
    (iv) Declaration. For any such vessel that is not required to use 
VMS pursuant to Sec.  648.10(b)(4), to fish for GB cod south of the GOM 
Regulated Mesh Area, as defined at Sec.  648.80(a)(1), a vessel owner 
or operator must obtain, and retain on board, a letter of authorization 
from the Regional Administrator stating his or her intent to fish south 
of the GOM Regulated Mesh Area and may not fish in any other area for a 
minimum of 7 consecutive days from the effective date of the letter of 
authorization. For any such vessel that is required to use VMS pursuant 
to Sec.  648.10(b)(4), to fish for GB cod south of the GOM Regulated 
Mesh Area, as defined at Sec.  648.80(a)(1), a vessel owner or operator 
must declare his or her intent to fish south of the GOM Regulated Mesh 
Area on each trip through the VMS prior to leaving port, in accordance 
with instructions provided by the Regional Administrator. Such vessels 
may transit the GOM Regulated Mesh Area, as defined at Sec.  
648.80(a)(1), provided that their gear is stowed in accordance with the 
provisions at Sec.  648.23(b).
* * * * *
    (n) * * *
    (2) * * *
    (iv) Monitoring requirements. Except as specified in paragraph 
(n)(2)(iv)(C) of this section, starting in fishing year 2012 (May 1, 
2012), landings of regulated species or ocean pout by common pool 
vessels shall be monitored at the point of offload by independent, 
third-party service providers approved to provide such services by 
NMFS, as specified in paragraphs (n)(2)(iv)(A) and (B) of this section. 
Unless otherwise instructed by

[[Page 11886]]

NMFS, these service providers shall deploy dockside monitors to monitor 
the offload of catch directly to a dealer, and roving monitors to 
monitor the offload of catch onto a truck for subsequent shipment to a 
dealer. For fishing year 2012 only, common pool vessels must comply 
with any dockside/roving monitoring program specified by NMFS pursuant 
to Sec.  648.87(b)(1)(v)(B)(1). None of the costs associated with 
dockside/roving monitors during fishing year 2012 shall be paid by the 
owner or operator of a vessel subject to these requirements. Starting 
in fishing year 2013 and thereafter, the costs associated with 
monitoring vessel offloads shall be the responsibility of individual 
vessels, unless otherwise instructed by NMFS. An individual vessel 
owner or operator may only use one dockside/roving monitoring service 
provider per fishing year beginning in fishing year 2013, and must 
contract for such services with a service provider approved by NMFS 
pursuant to Sec.  648.87(b)(4), as instructed by the Regional 
Administrator. Both common pool vessels and service providers providing 
offloading monitoring services will be subject to the requirements 
specified in Sec.  648.87(b)(5).
    (A) Coverage levels. For fishing year 2012, dockside/roving 
monitoring coverage levels shall be determined by NMFS based on 
available funding. If NMFS does not require 100-percent coverage of all 
common pool trips, NMFS shall first provide dockside/roving monitoring 
for trips that are not also assigned an observer or at-sea monitor 
pursuant to Sec.  648.11. Starting in fishing year 2013, at least 20 
percent of the trips taken by vessels operating under the provisions of 
the common pool shall be monitored. To ensure that these levels of 
coverage are achieved, if a trip has been selected to be observed by a 
dockside/roving monitor, all offloading events associated with that 
trip must be monitored by a dockside/roving monitor, as specified in 
paragraph (n)(2) of this section, and a vessel may not offload any of 
its catch until the dockside/roving monitor arrives. For example, a 
vessel offloading at more than one dealer or facility must have a 
dockside/roving monitor present during offload at each location. All 
landing events at remote ports that are selected to be observed by a 
dockside/roving monitor must have a roving monitor present to witness 
offload activities to the truck, as well as a dockside monitor present 
at each dealer to certify weigh-out of all landings. Except as provided 
in this paragraph (n)(2)(iv)(A) or paragraph (n)(2)(iv)(C) of this 
section, or as instructed by the Regional Administrator, any service 
provider providing dockside/monitoring services required under this 
paragraph (n)(2)(iv) must ensure that coverage is randomly distributed 
among all such trips, and that the landing events monitored are 
representative of fishing operations by common pool vessels throughout 
the fishing year.
    (B) Dockside/roving monitor service provider standards. Starting in 
fishing year 2013, a common pool vessel must employ a service provider 
approved by NMFS to provide dockside/roving monitor services, as 
identified by the Regional Administrator. To be approved to provide the 
services specified in paragraph (n)(2) of this section, dockside/roving 
monitor service providers must meet the standards in Sec.  
648.87(b)(4).
    (C) Exemption. Common pool vessels operating under the provisions 
of either a limited access Northeast multispecies Small Vessel Category 
permit or Handgear A permit, as specified at Sec. Sec.  648.82(b)(5) 
and (6), respectively, or an open access Northeast multispecies 
Handgear B permit, as specified at Sec.  648.88(a), are exempt from the 
dockside/roving monitoring requirements specified in this paragraph 
(n)(2)(iv).
* * * * *
    7. In Sec.  648.87, revise the introductory text of paragraphs 
(b)(1)(i)(E), (b)(1)(viii), (b)(2), and (b)(5); revise paragraphs 
(b)(1)(i)(A), (b)(1)(i)(C), (b)(1)(i)(E)(1), (b)(1)(i)(E)(2)(i) and 
(ii), (b)(1)(iii)(C), (b)(1)(v)(B), (b)(1)(viii)(C), and (c)(2)(i); and 
add paragraphs (b)(5)(ii)(E) and (d)(20) through (24) to read as 
follows:


Sec.  648.87  Sector allocation.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (A) Allocated stocks. Each sector shall be allocated a TAC in the 
form of an ACE for each NE multispecies stock, with the exception of 
Atlantic halibut, SNE/MA winter flounder, ocean pout, windowpane 
flounder (both the GOM/GB and the SNE/MA stocks), and Atlantic wolffish 
based upon the cumulative PSCs of vessels/permits participating in each 
sector during a particular fishing year, as described in paragraph 
(b)(1)(i)(E) of this section. In the event that a future allocation of 
SNE/MA winter flounder can be made available pursuant to the biennial 
adjustment or framework process specified in Sec.  648.90(a)(2), an ACE 
for this stock will be specified pursuant to paragraph (b)(1)(i)(E)(1) 
of this section.
* * * * *
    (C) Carry-over. With the exception of GB yellowtail flounder, a 
sector may carry over an amount of ACE equal to up to 10 percent of its 
original ACE allocation for each stock that is unused at the end of one 
fishing year into the following fishing year. Any unused ACE allocated 
for Eastern GB stocks pursuant to paragraph (b)(1)(i)(B) of this 
section will contribute to the 10-percent carry-over allowance for each 
stock, as specified in this paragraph (b)(1)(i)(C), but will not 
increase an individual sector's allocation of Eastern GB stocks during 
the following year. This carry-over ACE remains effective during the 
subsequent fishing year even if vessels that contributed to the sector 
allocation during the previous fishing year are no longer participating 
in the same sector for the subsequent fishing year.
* * * * *
    (E) Potential sector contribution (PSC). For the purposes of 
allocating a share of the available ACL for each NE multispecies stock 
to approved sectors pursuant to Sec.  648.90(a)(4), the landings 
history of all limited access NE multispecies permits shall be 
evaluated to determine each permit's share of the overall landings for 
each NE multispecies stock as specified in paragraphs (b)(1)(i)(E)(1) 
and (2) of this section. When calculating an individual permit's share 
of the overall landings for a particular regulated species or ocean 
pout stock, landed weight shall be converted to live weight to maintain 
consistency with the way ACLs are calculated pursuant to Sec.  
648.90(a)(4) and the way ACEs are allocated to sectors pursuant to this 
paragraph (b)(1)(i). This calculation shall be performed on July 1 of 
each year, unless another date is specified by the Regional 
Administrator, to redistribute the landings history associated with 
permits that have been voluntarily relinquished or otherwise canceled 
among all remaining valid limited access NE multispecies permits as of 
that date during the following fishing year. The PSC calculated 
pursuant to this paragraph (b)(1)(i)(E) shall remain with the permit 
indefinitely, but may be permanently reduced or eliminated due to a 
permit sanction or other enforcement action.
    (1) Calculation of PSC for all NE multispecies stocks except GB 
cod. Unless otherwise specified in paragraph (b)(1)(i)(E)(2) of this 
section, for each valid limited access NE multispecies permit, 
including limited access NE multispecies Handgear A permits,

[[Page 11887]]

landings recorded in the NMFS dealer database of each stock of NE 
multispecies determined by NMFS to be the landings history associated 
with that permit while subject to the NE multispecies regulations based 
on whether the vessel fishing under that permit was issued a limited 
access NE multispecies permit or subsequently qualified for a limited 
access NE multispecies permit pursuant to Sec.  648.4(a)(1)(i), 
including regulated species or ocean pout caught under a NE 
multispecies DAS when participating in the skate or monkfish fisheries, 
but excluding, for example, landings by scallop vessels operating under 
a scallop DAS, shall be summed for fishing years 1996 through 2006. 
This sum shall then be divided by the total landings of each NE 
multispecies stock during the same period by all permits eligible to 
join sectors as of May 1, 2008. The resulting figure shall then be 
multiplied by a factor of 1/PSC of remaining permits as of June 1 of 
each year, unless another date is specified by the Regional 
Administrator, to calculate the PSC for each individual valid limited 
access NE multispecies permit for each regulated species or ocean pout 
stock allocated to sectors in the NE multispecies fishery for the 
following fishing year pursuant to this paragraph (b)(1)(i)(E)(1).
    (2) * * *
    (i) GB cod PSC for permits committed to participate in the GB Cod 
Hook Gear Sector or GB Cod Fixed Gear Sector. For each owner of a valid 
NE multispecies permit, or CPH, that committed to participate in either 
the GB Cod Hook Gear Sector or the GB Cod Fixed Gear Sector as 
evidenced by a valid authorized signature executed on or before March 
1, 2008, on a preliminary roster for either of these sectors, the PSC 
for GB cod shall be equal to the sum of dealer landings of GB cod for 
fishing years 1996 through 2001, divided by the total landings of GB 
cod by permits eligible to join sectors as of May 1, 2008, during that 
period. The PSC for all other regulated species or ocean pout stocks 
specified for these permits shall be calculated pursuant to paragraph 
(b)(1)(i)(E)(1) of this section. The PSC calculated pursuant to this 
paragraph (b)(1)(i)(E)(2)(i) shall then be multiplied by a factor of 1/
PSC of remaining permits as of June 1 of each year, unless another date 
is specified by the Regional Administrator, to calculate the GB cod PSC 
for each permit for the following fishing year.
    (ii) GB cod PSC for all other permits. For each owner of a valid NE 
multispecies permit or CPH that has not committed to participate in 
either the GB Cod Hook Gear Sector or GB Cod Fixed Gear Sector, as 
specified in paragraph (b)(1)(i)(E)(2)(i) of this section, the GB cod 
PSC for each such permit or CPH shall be based upon the GB cod PSC 
available after accounting for the GB cod PSC calculated pursuant to 
paragraph (b)(1)(i)(E)(2)(i) of this section. To determine the GB cod 
PSC for each of these permits, the sum of the individual permit's 
landings of GB cod available in the NMFS dealer database for fishing 
years 1996 through 2006 shall be divided by the total landings of GB 
cod during that period by the total landings of GB cod by permits 
eligible to join sectors as of May 1, 2008, during that period, after 
subtracting the total landings of GB cod by permits that committed to 
participate in either the GB Cod Hook Sector or GB Cod Fixed Gear 
Sector as of March 1, 2008. This individual share shall then be 
multiplied by the available GB cod PSC calculated by subtracting the GB 
cod PSC allocated pursuant to paragraph (b)(1)(i)(E)(2)(i) of this 
section from one. The PSC calculated pursuant to this paragraph 
(b)(1)(i)(E)(2)(ii) shall then be multiplied by a factor of 1/PSC of 
remaining permits as of July 1 of each year, unless another date is 
specified by the Regional Administrator, to calculate the GB cod PSC 
for each permit.
* * * * *
    (iii) * * *
    (C) ACE buffer. At the beginning of each fishing year, NMFS shall 
withhold 20 percent of a sector's ACE for each stock for a period of up 
to 61 days (i.e., through June 30), unless otherwise specified by NMFS, 
to allow time to process any ACE transfers submitted at the end of the 
fishing year pursuant to paragraph (b)(1)(viii) of this section and to 
determine whether the ACE allocated to any sector needs to be reduced, 
or any overage penalties need to be applied to individual permits/
vessels in the current fishing year to accommodate an ACE overage by 
that sector during the previous fishing year, as specified in paragraph 
(b)(1)(iii) of this section.
* * * * *
    (v) * * *
    (B) Independent third-party monitoring program. A sector must 
comply with any dockside/roving monitoring program specified by NMFS 
for fishing years 2011 and 2012, pursuant to paragraph (b)(1)(v)(B)(1) 
of this section, including the dockside/roving monitoring operational 
standards specified in paragraph (b)(5) of this section, and develop 
and implement an independent third-party dockside/roving monitoring 
program by fishing year 2013. A sector must also develop and implement 
an at-sea or electronic monitoring program by fishing year 2012 (May 1, 
2012) consistent with paragraph (b)(1)(v)(B)(2) of this section. Both 
the dockside/roving and at-sea or electronic monitoring program 
developed by sectors must be approved by NMFS for monitoring landings 
and utilization of sector ACE, as specified in this paragraph 
(b)(1)(v)(B). Any service provider providing dockside/roving and at-sea 
or electronic monitoring services pursuant to this paragraph 
(b)(1)(v)(B) must meet the service provider standards specified in 
paragraph (b)(4) of this section, and any dockside/roving and at-sea or 
electronic monitoring program proposed by sectors must meet the 
operational standards specified in paragraphs (b)(5) and (b)(6) of this 
section, respectively, and be approved by NMFS in a manner consistent 
with the Administrative Procedure Act. None of the costs associated 
with any dockside/roving monitor or at-sea or electronic monitoring 
requirements shall be paid by the owner or operator of a vessel subject 
to these requirements during fishing years 2011 and 2012. Starting in 
fishing year 2013, sectors shall be responsible for paying the costs 
associated with dockside/roving and at-sea or electronic monitoring 
coverage, unless otherwise instructed by NMFS.
    (1) Dockside/roving monitoring program. Dockside/roving monitors 
shall monitor landings of regulated species and ocean pout at every 
offload for which a trip has been selected to be observed by a 
dockside/roving monitor, whether directly to a Federally permitted 
dealer or to a truck for transfer to a Federally permitted dealer, to 
verify such landings at the time the landings are weighed by a 
Federally permitted dealer and to certify the landing weights are 
accurate as reported on the dealer report. Unless otherwise specified 
in this part, the level of coverage for landings is specified in 
paragraph (b)(1)(v)(B)(3) of this section. To ensure that these levels 
of coverage are achieved, if a trip has been selected to be observed by 
a dockside/roving monitor, all offloading events associated with that 
trip, regardless of how many or the location of offloading events, must 
be monitored, and a vessel may not offload any of its catch until the 
dockside/roving monitor arrives. For example, if a trip is selected to 
be observed by a dockside/roving monitor, a vessel offloading at more 
than one dealer or facility must have a dockside/roving monitor present 
during the offload at each location. All landing events at remote ports 
that are selected to be observed by a dockside/roving

[[Page 11888]]

monitor must have a roving monitor present to witness offload 
activities to the truck, as well as a dockside monitor present at each 
dealer to certify weigh-out of all landings. Any service provider 
providing dockside/roving monitoring services pursuant to this 
paragraph (b)(1)(v)(B)(1) must meet the service provider standards 
specified in paragraph (b)(4) of this section. The details of the 
dockside/roving monitoring program used by each sector starting in 
fishing year 2013 pursuant to paragraph (b)(1)(v)(B) of this section 
must be specified in the sector's operations plan, and must be 
consistent with the operational standards specified in paragraph (b)(5) 
of this section. The Regional Administrator shall review the dockside/
roving monitoring program and approve/disapprove it as part of the 
yearly operations plan in a manner consistent with the Administrative 
Procedure Act. Common pool vessels operating under the provisions of 
the either a limited access Northeast multispecies Small Vessel 
Category permit or Handgear A permit, as specified at Sec. Sec.  
648.82(b)(5) and (b)(6), respectively, or an open access Northeast 
multispecies Handgear B permit, as specified at Sec.  648.88(a), are 
exempt from the dockside/roving monitoring requirements specified in 
this paragraph (b)(1)(v)(B)(1). Except as provided in this paragraph 
(b)(1)(v)(B)(1), all common pool and sector vessels, along with service 
providers providing dockside monitoring services, will be subject to 
the dockside monitoring operational requirements specified at Sec.  
648.87(b)(5).
    (2) At-sea or electronic monitoring program. Beginning in fishing 
year 2012, in addition to any dockside/roving monitoring requirement 
implemented pursuant to paragraph (b)(1)(v)(B)(1) of this section, an 
at-sea or electronic monitoring program must be implemented by each 
sector to verify area fished, as well as catch and discards by species 
and gear type. A sector may elect to develop an at-sea or electronic 
monitoring program before fishing year 2012 and specify the details of 
such a program in its operations plan. Electronic monitoring may be 
used in place of actual observers if the technology is deemed 
sufficient by NMFS for a specific trip type based on gear type and area 
fished, in a manner consistent with the Administrative Procedure Act. 
No electronic monitoring technology may be used in place of an at-sea 
monitor, unless approved by NMFS as part of the sector's annual 
operations plan. If either an at-sea monitor or electronic monitoring 
is assigned to a particular trip, a vessel may not leave port without 
the appropriate at-sea monitor or electronic monitoring equipment on 
board. The at-sea or electronic monitoring program developed and 
implemented by each sector must be consistent with the operational 
standards specified in paragraph (b)(6) of this section, with details 
of the program specified in the sector's annual operations plan. The 
Regional Administrator shall review the at-sea or electronic monitoring 
program and approve/disapprove it as part of the annual operations plan 
in a manner consistent with the Administrative Procedure Act. The level 
of coverage for operations by sector vessels is specified in paragraph 
(b)(1)(v)(B)(3) of this section.
    (3) Coverage levels. Except as specified in paragraph 
(b)(1)(v)(B)(3)(i), any service provider providing dockside/roving or 
at-sea or electronic monitoring services required under this paragraph 
(b)(1)(v)(B)(3) must provide coverage that is fair and equitable, and 
distributed in a statistically random manner among all trips such that 
coverage is representative of fishing activities by all vessels within 
the common pool or each sector, and by all operations of common pool 
vessels or vessels operating in each sector throughout the fishing 
year.
    (i) Dockside/roving monitoring. For fishing years 2011 and 2012, 
NMFS shall determine the level of coverage for any NMFS-sponsored 
dockside/roving monitoring program specified pursuant to paragraph 
(b)(1)(v)(B)(1) of this section based on available funding. If 100-
percent coverage of all sector and common pool trips is not possible, 
NMFS shall first provide coverage to trips without an observer or at-
sea monitor assigned pursuant to Sec.  648.11(k), or approved 
electronic monitoring equipment assigned pursuant to paragraph 
(b)(1)(v)(B) of this section for sector vessels. Starting in fishing 
year 2013, at least 20 percent of all sector and common pool trips 
shall be monitored by dockside/roving monitors.
    (ii) At-sea or electronic monitoring. For fishing year 2012, 
coverage levels for an at-sea or electronic monitoring program 
developed by a sector shall be specified by NMFS based upon the amount 
of funding available to support sector at-sea or electronic monitoring 
programs for that fishing year. Starting in fishing year 2013, coverage 
levels for an at-sea or electronic monitoring program shall be 
specified by NMFS, but shall be less than 100 percent of all sector 
trips. Such coverage levels must be sufficient to at least meet the 
Standardized Bycatch Reporting Methodology and accurately monitor 
sector operations. In the event that a NMFS-sponsored observer and a 
third-party at-sea monitor are assigned to the same trip, only the NMFS 
observer is required to observe that trip.
    (4) Hail reports. For the purposes of the dockside/roving and at-
sea monitoring requirements specified in this paragraph (b)(1)(v)(B), 
sector vessels must submit all hail reports for a sector trip in which 
the NE multispecies catch applies against the ACE allocated to a 
sector, as specified in this part, to service providers offering 
dockside/roving and at-sea monitoring services pursuant to this 
paragraph (b)(1)(v)(B). The mechanism and timing of the transmission of 
such hail reports must be consistent with instructions provided by the 
Regional Administrator for any dockside/roving monitoring program 
required by paragraph (b)(1)(v)(B)(1) of this section, or specified in 
the annual sector operations plan, consistent with paragraphs (b)(5) 
and (b)(6) of this section.
    (5) Notification of service provider change. If for any reason a 
sector decides to change approved service providers used to provide 
dockside/roving or at-sea or electronic monitoring services required in 
this paragraph (b)(1)(v), the sector manager must first inform NMFS in 
writing in advance of the effective date of the change in approved 
service providers in conjunction with the submission of the next weekly 
sector catch report specified in paragraph (b)(1)(vi)(B) of this 
section. A sector may employ more than one service provider at any 
time, provided any service provider employed by a sector meets the 
standards specified in paragraph (b)(4) of this section.
* * * * *
    (viii) ACE transfers. All or a portion of a sector's ACE for any NE 
multispecies stock may be transferred to another sector at any time 
during the fishing year and up to 2 weeks into the following fishing 
year (i.e., through May 14), unless otherwise instructed by NMFS, to 
cover any overages during the previous fishing year. A sector is not 
required to transfer ACE to another sector. An ACE transfer only 
becomes effective upon approval by NMFS, as specified in paragraph 
(b)(1)(viii)(B) of this section.
* * * * *
    (C) Duration of transfer. Notwithstanding ACE carried over into the 
next fishing year pursuant to paragraph (b)(1)(i)(C) of this section, 
ACE transferred pursuant to this

[[Page 11889]]

paragraph (b)(1)(viii) is only valid for the fishing year in which the 
transfer is approved, with the exception of ACE transfer requests that 
are submitted up to 2 weeks into the subsequent fishing year to address 
any potential ACE overages from the previous fishing year, as provided 
in paragraph (b)(1)(iii) of this section, unless otherwise instructed 
by NMFS.
* * * * *
    (2) Operations plan and sector contract. To be approved to operate, 
each sector must submit an operations plan and preliminary sector 
contract to the Regional Administrator no later than September 1 prior 
to the fishing year in which the sector intends to begin operations, 
unless otherwise instructed by NMFS. A final roster, sector contract, 
and list of Federal and State permits held by participating vessels for 
each sector must be submitted by December 1 prior to the fishing year 
in which the sector intends to begin operations, unless otherwise 
instructed by NMFS. The operations plan may cover a 1- or 2-year 
period, provided the analysis required in paragraph (b)(3) of this 
section is sufficient to assess the impacts of sector operations during 
the 2-year period and that sector membership, or any other parameter 
that may affect sector operations during the second year of the 
approved operations plan, does not differ to the point where the 
impacts analyzed by the supporting NEPA document are compromised. Each 
vessel and vessel operator and/or vessel owner participating in a 
sector must agree to and comply with all applicable requirements and 
conditions of the operations plan specified in this paragraph (b)(2) 
and the letter of authorization issued pursuant to paragraph (c)(2) of 
this section. It shall be unlawful to violate any such conditions and 
requirements unless such conditions or restrictions are identified in 
an approved operations plan as administrative only. If a proposed 
sector does not comply with the requirements of this paragraph (b)(2), 
NMFS may decline to propose for approval such sector operations plans, 
even if the Council has approved such sector. At least the following 
elements must be contained in either the final operations plan or 
sector contract submitted to NMFS:
* * * * *
    (5) Dockside monitoring operational standards. In addition to the 
independent third-party monitoring provider standards specified in 
paragraph (b)(4) of this section, any dockside monitoring program 
developed by NMFS pursuant to paragraph (b)(1)(v)(B)(1) of this section 
must meet the following operational standards to be approved by NMFS:
    (ii) * * *
    (E) Inspection of fish holds. A dockside/roving monitor assigned to 
observe the offloading of fish from a particular trip shall inspect the 
fish holds, or any other areas of the vessel in which fish are stored, 
to determine if all fish are offloaded for that particular trip.
* * * * *
    (c) * * *
    (2) * * *
    (i) Regulations that may not be exempted for sector participants. 
The Regional Administrator may not exempt participants in a sector from 
the following Federal fishing regulations: NE multispecies year-round 
closure areas; permitting restrictions (e.g., vessel upgrades, etc.); 
gear restrictions designed to minimize habitat impacts (e.g., roller 
gear restrictions, etc.); and reporting requirements. For the purposes 
of this paragraph (c)(2)(i), the DAS reporting requirements specified 
at Sec.  648.82; the SAP-specific reporting requirements specified at 
Sec.  648.85; and the reporting requirements associated with a dockside 
monitoring program specified in paragraph (b)(5)(i) of this section are 
not considered reporting requirements, and the Regional Administrator 
may exempt sector participants from these requirements as part of the 
approval of yearly operations plans. This list may be modified through 
a framework adjustment, as specified in Sec.  648.90.
* * * * *
    (d) * * *
    (20) State of Maine Permit Banking Sector.
    (21) State of Rhode Island Permit Bank sector.
    (22) State of New Hampshire Permit Bank Sector.
    (23) State of Massachusetts Permit Bank Sector.
    (24) Sustainable Harvest Sector III.
    8. In Sec.  648.88, revise paragraph (a)(1), and add paragraph 
(a)(2)(iv) to read as follows:


Sec.  648.88  Multispecies open access permit restrictions.

    (a) * * *
    (1) The vessel may possess and land up to 75 lb (90.7 kg) of cod, 
and up to the landing and possession limit restrictions for other NE 
multispecies specified in Sec.  648.86, provided the vessel complies 
with the restrictions specified in paragraph (a)(2) of this section. If 
either the GOM or GB cod trip limit applicable to a vessel fishing 
under a NE multispecies DAS permit, as specified in Sec.  648.86(b)(1) 
and (2), respectively, is adjusted by NMFS, the cod trip limit 
specified in this paragraph (a)(1) shall be adjusted proportionally 
(rounded up to the nearest 25 lb (11.3 kg)). For example, if the GOM 
cod trip limit specified at Sec.  648.86(b)(1) doubled, then the cod 
trip limit for the Handgear B category fishing in the GOM Regulated 
Mesh Area would also double to 150 lb (68 kg).
    (2) * * *
    (iv) Declaration. To fish for GB cod south of the GOM Regulated 
Mesh Area, as defined at Sec.  648.80(a)(1), a vessel owner or operator 
must obtain, and retain on board, a letter of authorization from the 
Regional Administrator declaring his or her intent to fish south of the 
GOM Regulated Mesh Area, and may not fish in any other area for a 
minimum of 7 consecutive days from the effective date of the letter of 
authorization. Such a vessel may transit the GOM Regulated Mesh Area, 
provided that their gear is stowed in accordance with the provisions at 
Sec.  648.23(b).
* * * * *
    9. In Sec.  648.89, revise paragraph (e)(1) to read as follows:


Sec.  648.89  Recreational and charter/party vessel restrictions.

* * * * *
    (e) * * *
    (1) GOM Closed Areas. Unless otherwise specified in this paragraph 
(e)(1) of this section, a vessel fishing under charter/party 
regulations may not fish in the GOM closed areas specified at Sec.  
648.81(d)(1) through (f)(1) during the time periods specified in those 
paragraphs, unless the vessel has on board a valid letter of 
authorization issued by the Regional Administrator pursuant to Sec.  
648.81(f)(2)(iii) and paragraph (e)(3) of this section. The conditions 
and restrictions of the letter of authorization must be complied with 
for a minimum of 3 months if the vessel fishes or intends to fish in 
the seasonal GOM closure areas; or for the rest of the fishing year, 
beginning with the start of the participation period of the letter of 
authorization, if the vessel fishes or intends to fish in the year-
round GOM closure areas. A vessel fishing under charter/party 
regulations may not fish in the GOM Cod Spawning Protection Area 
specified at Sec.  648.81(o)(1) during the time period specified in 
that paragraph, unless the vessel complies with the requirements 
specified at Sec.  648.81(o)(2)(iii).
* * * * *
    10. In Sec.  648.90, revise paragraph (a)(4)(iii)(E)(2) to read as 
follows:

[[Page 11890]]

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

    (a) * * *
    (4) * * *
    (iii) * * *
    (E) * * *
    (2) Commercial allocation. The ABC/ACL for regulated species or 
ocean pout stocks available to the commercial NE multispecies fishery, 
after consideration of the recreational allocation pursuant to 
paragraph (a)(4)(iii)(E)(1) of this section, shall be divided between 
sectors operating under an approved sector operations plan, as 
described at Sec.  648.87(c), and vessels operating under the 
provisions of the common pool, as defined in this part, based upon the 
cumulative PSCs of vessels/permits participating in sectors calculated 
pursuant to Sec.  648.87(b)(1)(i)(E). Unless otherwise specified in 
paragraph (a)(5) of this section, regulated species or ocean pout catch 
by common pool and sector vessels shall be deducted from the sub-ACL/
ACE allocated pursuant to this paragraph (a)(4)(iii)(E)(2) for the 
purposes of determining whether adjustments to common pool measures are 
necessary, pursuant to the common pool AMs specified in Sec.  
648.82(n), or whether sector ACE overages must be deducted, pursuant to 
Sec.  648.87(b)(1)(iii).
* * * * *
[FR Doc. 2011-4395 Filed 2-28-11; 11:15 am]
BILLING CODE 3510-22-P