[Federal Register Volume 76, Number 79 (Monday, April 25, 2011)]
[Rules and Regulations]
[Pages 23042-23076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9705]



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Vol. 76

Monday,

No. 79

April 25, 2011

Part III





Department of Commerce





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 National Oceanic and Atmospheric Administration



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50 CFR Part 648



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

  Federal Register / Vol. 76 , No. 79 / Monday, April 25, 2011 / Rules 
and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100923469-1211-02]
RIN 0648-BA27


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

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

ACTION: Final rule.

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SUMMARY: This final rule partially approves Framework Adjustment (FW) 
45 to the NE Multispecies Fishery Management Plan (FMP) and implements 
the approved measures. FW 45 was developed by the New England Fishery 
Management Council (Council) to make adjustments necessary to ensure 
that conservation and management objectives of the FMP, including 
preventing overfishing, rebuilding overfished stocks, achieving optimum 
yield (OY), and minimizing the economic impact of management measures 
on affected vessels, are being met in accordance with the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). 
Specifically, this action revises the biological reference points and 
stock status for pollock, updates annual catch limits (ACLs) for 
several stocks for fishing years (FYs) 2011-2012, adjusts the 
rebuilding program for Georges Bank (GB) yellowtail flounder, increases 
scallop vessel access to the Great South Channel Exemption Area, 
approves five new sectors, modifies the existing dockside and at-sea 
monitoring requirements, revises several sector administrative 
provisions, establishes a Gulf of Maine (GOM) Cod Spawning Protection 
Area, and refines measures affecting the operations of NE multispecies 
vessels fishing with handgear. This action approves the Council's 
proposed FY 2011 U.S./Canada Management Area total allowable catch 
(TAC), acceptable biological catch (ABC), and ACL for GB yellowtail 
flounder, but replaces them with new catch limits for this stock 
through a parallel emergency action, included as part of this final 
rule, based on the International Fisheries Agreement Clarification Act 
(IFACA) that provides new flexibility in setting catch limits for this 
stock. In addition, this action disapproves a measure to delay fishing 
industry responsibility for paying for at-sea monitoring coverage costs 
in FY 2012. This action is necessary to ensure that the fishery is 
managed on the basis of the best available science, to comply with the 
ABC control rules adopted in Amendment 16 to the FMP, and to enhance 
the viability of the fishery.

DATES: This rule is effective at 0001 hr on May 1, 2011. The 
specification of the GB yellowtail flounder ABC and ACL and their 
distribution are effective May 1, 2011, through October 24, 2011.

ADDRESSES: Copies of FW 45, its Regulatory Impact Review (RIR), a draft 
of the environmental assessment (EA) prepared for this action, and the 
draft Initial Regulatory Flexibility Act (IRFA) analysis prepared by 
the Council are available from Paul J. Howard, Executive Director, New 
England Fishery Management Council, 50 Water Street, Mill 2, 
Newburyport, MA 01950. A supplemental EA was also prepared for this 
action that outlines analysis in support of increased FY 2011 GB 
yellowtail flounder U.S./Canada Management Area TAC, ABC, and ACL 
implemented by this action. Also, an errata sheet was prepared to 
augment the FW 45 EA's analysis of the impacts of the proposed action 
on distinct population segments of Atlantic sturgeon and loggerhead sea 
turtles. The draft IRFA prepared by the Council was expanded upon in 
the preamble to the proposed rule for this action. The Final Regulatory 
Flexibility Act (FRFA) analysis consists of the IRFA, public comments 
and responses, and the summary of impacts, and alternatives contained 
in the Classification section of the preamble of this final rule and 
applicable sections of Framework 45. Copies of the small entity 
compliance guide, the errata sheet for the FW 45 EA, and the 
supplemental EA associated with this action are available from Patricia 
A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 55 
Great Republic Drive, Gloucester, MA 01930-2298. The FW 45 EA/RIR/IRFA, 
errata sheet, supplemental EA prepared for this action, and the 
relevant analyses for Amendment 16 and other recent actions are also 
accessible via the Internet at http://www.nefmc.org/nemulti/index.html 
or http://www.nero.noaa.gov. Copies of recent stock assessments for 
stocks managed by the FMP are also accessible via the Internet at 
http://www.nefsc.noaa.gov/groundfish.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule should be submitted to the Regional Administrator at the address 
above and to the Office of Management and Budget (OMB) by e-mail at 
[email protected], or fax to (202) 395-7285.

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

SUPPLEMENTARY INFORMATION: 

Background

    Amendment 13 (April 27, 2004; 69 FR 22906) included the 
establishment of rebuilding programs for stocks managed by the FMP and 
measures necessary to end overfishing, rebuild overfished stocks, and 
help mitigate the economic impacts of effort reductions in the fishery 
to the extent practicable. In addition to revising existing days-at-sea 
(DAS) measures and substantially expanding sector measures, Amendment 
16 (April 9, 2010; 75 FR 18262) established a process for specifying 
ABCs and ACLs and distributing available catch among components of the 
fishery that catch regulated species and ocean pout, and also specified 
accountability measures (AMs) necessary to prevent overfishing on these 
stocks and address overages of ACLs, as required by the Magnuson-
Stevens Act. 16 U.S.C. 1801 et seq. In another action, FW 44 (April 9, 
2010; 75 FR 18356), NMFS set the ACLs for FYs 2010 through 2012, and 
distributed such allocations among the various components of the 
fishery that catch these stocks.
    The Council developed FW 45 as part of the established framework 
adjustment process to revise measures necessary to ensure consistency 
with the FMP in order to prevent overfishing and rebuild overfished 
stocks, while achieving OY in the fishery and minimizing economic 
impact to the extent practicable. Updated stock assessments for pollock 
and GB yellowtail flounder conducted in 2010 require the ACLs 
originally established under FW 44 pursuant to the ABC/ACL process 
established in Amendment 16 to be updated based upon revised stock 
status for pollock and a revised rebuilding program for GB yellowtail 
flounder. Further, following the transition to sectors under Amendment 
16, the Council realized that several changes to existing measures are 
necessary to make the Amendment 16 measures work more effectively, as 
described below.

[[Page 23043]]

    This rule also implements the parallel, but separate, emergency 
action that replaces the FW 45 FY 2011 GB yellowtail flounder TAC, ABC, 
and ACL based on the flexibility to increase catch limits provided by 
the IFACA, which President Obama signed into law on January 4, 2011. 
This Act provides authority to the Council and NMFS to increase the FY 
2011 U.S./Canada Management Area TAC, ABC, and ACL for GB yellowtail 
flounder originally proposed by the Council under FW 45 and approved by 
this action. Specifically, the new statute recognizes the U.S./Canada 
Resource Sharing Understanding (Understanding) as an international 
agreement for the purposes of section 304(e)(4)(A)(ii) of the Magnuson-
Stevens Act. Based on this recognition, the IFACA provides for 
additional flexibility regarding the range of catch levels that may be 
considered for GB yellowtail flounder, and allows for a higher yearly 
TAC and, therefore, ABC and ACL for this stock in FY 2011, provided 
that overfishing is ended immediately and that the fishing mortality 
rate (F) ensures rebuilding consistent with the Understanding. The 
justification for implementing these increases through emergency 
action, as provided for in section 305(c) of the Magnuson-Stevens Act, 
is explained in the preamble to the proposed rule and is not repeated 
here.
    Following the passage of the IFACA, NMFS requested a special 
meeting of the Transboundary Management Guidance Committee (TMGC), a 
group that consists of NMFS, Council members and staff, and United 
States fishing industry representatives and their counterparts in the 
Department of Fisheries and Ocean of Canada (DFO) that makes 
recommendations of the yearly TACs for stocks managed by the 
Understanding, to reconsider the FY 2011 U.S./Canada Management Area 
TAC for GB yellowtail flounder pursuant to the IFACA and the 
Understanding. On February 9, 2011, the TMGC held a conference call to 
consider revising the FY 2011 TAC for this stock, and concluded that 
the original combined U.S./Canada Management Area TAC for GB yellowtail 
flounder (1,900 mt) could be increased to 2,650 mt for FY 2011.
    A proposed rule to implement measures proposed in FW 45 was 
published on March 3, 2011 (76 FR 11858), with public comments accepted 
through March 18, 2011. That proposed rule included a detailed 
description of the proposed management measures, and other factors that 
influenced the development of this action. Specifically, that rule 
indicated that NMFS was considering disapproving the FY 2011 GB 
yellowtail flounder U.S./Canada Management Area TAC adopted by the 
Council under FW 45, and implementing the increased TAC for this stock 
agreed to by the TMGC on February 9, 2011, through a parallel, but 
separate emergency action pursuant to section 305(c) of the Magnuson-
Stevens Act. This parallel emergency action was proposed and justified 
in the same Federal Register notice as the proposed rule for this 
action, and is being promulgated as a final rule in this action as 
well. NMFS also published, at the same time as and in conjunction with 
the proposed rule for FW 45, a proposed rule to approve the FY 2011 
operations plans and sector contracts for 19 sectors authorized by 
Amendment 16 and FW 45 (February 28, 2011; 76 FR 10852). Public 
comments on that rule were accepted through March 15, 2011. If 
approved, that rule would also specify the annual catch entitlements 
(ACEs, or sector quotas) for each stock allocated to each sector 
pursuant to Amendment 16 and sector rosters submitted to NMFS on 
December 1, 2010. This roster deadline was later extended to allow 
vessels involved in an ownership change to either join a sector or 
change its sector affiliation. A final rule implementing approved FY 
2011 sector operations plans and ACE is expected to publish in 
conjunction with this final rule and become effective on May 1, 2011.

Disapproved Measures

Delay in Industry Responsibility for At-Sea Monitoring Coverage

    In Amendment 16, the Council established monitoring measures to 
ensure that sector allocations of the ACLs for particular species could 
be accurately monitored. These measures included the requirement for 
sectors to develop and pay for an at-sea monitoring program beginning 
in FY 2012 that meet a minimum level of coverage based on the precision 
of bycatch estimates. In the development of these measures, the Council 
noted that ``effective management of sectors requires that catch be 
accurately known.'' Thus, the at-sea monitoring provisions were 
developed to ensure that landings were accurately monitored for each 
sector.
    To reduce monitoring costs to industry, the Council proposed to 
delay the requirement for the fishing industry to pay for at-sea 
monitoring coverage in FW 45 by one year. However, without industry 
funding, NMFS funding would be the sole source for any at-sea or 
observer monitoring coverage during FY 2012. During the deliberation of 
this measure, NMFS expressed continued concern about the Council's 
reliance upon NMFS funding to fully support a provision required by the 
FMP, particularly the specific at-sea monitoring coverage levels 
outlined for sector-developed at-sea monitoring programs in Amendment 
16 for FY 2012. Because NMFS' funding is not guaranteed and depends 
upon Congressional appropriations, it is likely that funding levels 
will fluctuate on a yearly basis and may not be sufficient to fully 
fund the at-sea monitoring coverage requirements in the FMP. The NMFS 
budget for FY 2012 has yet to be finalized. Accordingly, NMFS remains 
uncertain whether sufficient funding will exist in FY 2012 to provide 
sufficient coverage to accurately monitor sector catch, as required 
under Amendment 16.
    NMFS has determined, therefore, that the proposed delay of industry 
funding for at-sea monitoring coverage in FY 2012 is inconsistent with 
the FMP and the requirements of the Magnuson-Stevens Act. First, such a 
delay, without sufficient federal funding for at-sea monitoring, would 
likely fail to maintain conservation and management measures that are 
necessary and appropriate for the conservation and management of the 
fishery to prevent overfishing and rebuild overfished stocks, as 
required by section 303(a)(1) of the Magnuson-Stevens Act. As noted 
above, Amendment 16 indicated that sufficient at-sea monitoring 
coverage is necessary to ensure that catch is accurately known. Without 
the requirement for the industry to fund at sea monitoring in the 
absence of sufficient federal funding, it would not likely be possible 
to obtain sufficient accurate catch information, including information 
on discards that is most reliably acquired through observer and at-sea 
monitoring coverage. As a result, it would not likely be possible to 
effectively estimate F, evaluate whether overfishing is occurring, and 
develop ACLs and other measures that would prevent overfishing and 
rebuild overfished stocks. Further, by reducing the likelihood that 
sufficient funding will be available to provide adequate at-sea 
monitoring coverage necessary to accurately monitor catch in the 
fishery, the disapproved measure would have undermined measures in 
Amendment 16 that helped to ensure that the standardized reporting 
methodology is capable of assessing the amount and type of bycatch 
occurring in the fishery, as required in section 303(a)(11). 
Accordingly, NMFS has disapproved

[[Page 23044]]

the measure to delay making the industry responsible for the costs 
associated with at-sea monitoring in FY 2012 to the extent that the 
federal funds are not available. NMFS intends to pay for at least some 
level of at-sea monitoring coverage in 2012, as it has done every year, 
based on the amount of available funding, and will work toward trying 
to secure the funds necessary to fully support such coverage in 2012. 
However, industry shall be responsible for that balance of at-sea 
monitoring coverage costs that are not covered by available Federal 
funding starting in FY 2012.

Approved Measures

    The following summarizes the approved FW 45 measures, based on the 
order in which applicable provisions appear in the regulations at 50 
CFR part 648. These measures build upon the provisions implemented by 
previous management actions, and are intended to either supplement or 
replace existing regulations, as described for each measure. This final 
rule also includes, through authority granted to NMFS by section 305(d) 
of the Magnuson-Stevens Act, revisions to regulations that are not 
specifically identified in FW 45, but that are necessary to implement 
measures to achieve, but not exceed the sub-ACLs available to the 
common pool fishery during FY 2011 and to correct errors in, or 
clarify, existing provisions, as described further below. A more 
detailed explanation of the rationale for each approved measure can be 
found in the proposed rule for this action.
    Although NMFS proposed to disapprove the FY 2011 GB yellowtail 
flounder U.S./Canada Management Area TAC, ABC, and ACL originally 
adopted by the Council under FW 45, NMFS ultimately decided not to 
disapprove these measures through this final rule, based upon further 
review of the FW 45 measures and applicable law. Disapproval of the 
TAC, ABC, and ACL proposed by FW 45 was not appropriate, because 
disapproval of a measure is only permissible if it is inconsistent with 
Magnuson-Stevens Act requirements and other applicable law. In the 
context of FW 45, these catch limits are consistent with the FMP and 
the Magnuson-Stevens Act requirements and other applicable law. These 
catch limits comply with the Magnuson-Stevens Act requirements to end 
overfishing and rebuild overfished stocks within 10 years. In addition, 
the FW 45 catch limits comply with the advice of the Council's 
Scientific and Statistical Committee in setting an ABC for this stock 
using the ABC control rule specified in the FMP and the best available 
scientific information. Further, the FW 45 ABC and ACL for GB 
yellowtail flounder incorporate both scientific and management 
uncertainty, consistent with the National Standard 1 guidelines. The 
fact that these proposed specifications for GB yellowtail flounder 
could be increased pursuant to IFACA does not undermine their 
approvability in FW 45. Moreover, if the emergency rule increasing the 
ACL expires before the Council has recommended a new ACL for FY 2012, 
the approved Framework 45 measure could go into place automatically, 
thereby avoiding a gap in TACs, ABCs and ACLs for this stock.
    Accordingly, this final rule approves the FY 2011 GB yellowtail 
flounder TAC, ABC, and ACL in FW 45, but temporarily replaces them, 
through NMFS' emergency action authority provided in section 305(c) of 
the Magnuson-Stevens Act, with the revised TAC, ABC, and ACL described 
further below in Item 5 of this preamble.
    This parallel emergency action increasing FW 45's specifications of 
FY 2011 GB yellowtail flounder U.S./Canada Management Area TAC, ABC, 
and ACL is justifed by, and based on, new legal authority stemming from 
the January 4, 2011, enactment of the IFACA, as more fully explained in 
the preamble to the proposed rule for this action. Pursuant to the 
requirements of IFACA that any new catch levels still prevent 
overfishing and are consistent with the U.S. Canada Understanding, NMFS 
held a TMGC conference call. As noted in the preamble of the proposed 
rule for this action, based on this TMGC conference call, a report was 
generated that concluded that the higher FY 2011 TAC for this stock 
specified in the proposed rule for this action and described further in 
Item 5 of this preamble would still likely prevent overfishing (i.e., 
result in a F below F at maximum sustainable yield (FMSY, or 
Fref, as listed in the Understanding)) and result in a 5 
percent increase in median biomass from 2011 to 2012. Therefore, the 
increased TAC is consistent with the provisions of the IFACA and 
National Standards 1 and 8 of the Magnuson-Stevens Act because it 
prevents overfishing, is consistent with the F outlined in the 
Understanding, continues to rebuild this overfished stock, optimizes 
OY, and minimizes adverse economic impacts to fishing communities 
through higher catch limits and increased revenues, without 
compromising conservation objectives of the FMP and applicable law. 
Further, consistent with National Standard 9 of the Magnuson-Stevens 
Act, an increased TAC reduces bycatch and associated bycatch mortality 
in the fishery by increasing the amount of GB yellowtail flounder that 
can be caught during FY 2011 and minimizing incentives to discard this 
stock and others caught concurrently. However, this increase in catch 
limits for GB yellowtail flounder is only valid for the duration of the 
emergency and one extension (i.e., FY 2011). To justify comparable 
increases in catch limits for future fishing years, the Council must 
adjust the FMP to establish a new rebuilding program and timeline 
consistent with IFACA as more fully discussed below in item 2.
1. Status Determination Criteria for Pollock
    Based upon an updated peer-reviewed benchmark stock assessment 
conducted in July 2010 (Stock Assessment Workshop, or SAW, 50), pollock 
is not overfished or subject to overfishing. Thus, this species no 
longer requires the rebuilding program established in Amendment 16. As 
noted in the preamble of the proposed rule for this action, NMFS 
implemented an emergency action on July 20, 2010 (75 FR 41996) to 
incorporate the results of this assessment and update the status 
determination criteria and the associated FY 2010 ABC and ACL for this 
species. These increased catch limits were renewed through July 17, 
2011, or until replaced by another action through a notice published on 
December 1, 2010 (75 FR 74661). Therefore, formally integrating the 
results of the 2010 pollock stock assessment, updated status 
determination criteria, ABC, and ACLs for this species into the FMP 
through this final rule is necessary to replace the measures 
implemented by the emergency action that would expire in July 2011. 
Table 1 lists the revised status determination criteria, with numerical 
estimates of these parameters listed in Table 2. The revised biomass 
target parameter for pollock, where spawning stock biomass is at 
maximum sustainable yield (SSBMSY) or its proxy, is SSB at 40 percent 
maximum spawning potential (MSP). The maximum F threshold is the FMSY 
proxy, or F40%MSP.

[[Page 23045]]



                    Table 1--Description of the Updated Pollock Status Determination Criteria
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                                                                     Minimum  biomass        Maximum  fishing
              Species                 Biomass target (Btarget)          threshold          mortality  threshold
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Pollock...........................  SSBMSY: SSB/R (40%MSP)       \1/2\ Btarget            F40%MSP
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               Table 2--Numerical Estimates for the Updated Pollock Status Determination Criteria
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                                                                                      Maximum
                                                                                      fishing
                                                                  Biomass target     mortality
                             Species                                (SSBMSY or       threshold       MSY in mt
                                                                   proxy) in mt      (FMSY or
                                                                                      proxy)
----------------------------------------------------------------------------------------------------------------
Pollock.........................................................          91,000            0.41          16,200
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2. Rebuilding Program for GB Yellowtail Flounder
    Recent estimates of the status of GB yellowtail flounder conducted 
by the Transboundary Resource Assessment Committee (TRAC) in July 2010 
indicate that overfishing is not occurring, but that the stock is still 
in an overfished condition (TRAC 2010/05). This report concludes that 
it is not possible to rebuild this stock by 2014, the end of the eight-
year rebuilding period originally adopted in FW 42 (October 23, 2006; 
71 FR 62156), with a 75 percent probability of success even at F = 0. 
Accordingly, this action revises the GB yellowtail flounder rebuilding 
program to rebuild the stock by 2016, with a 50-percent probability of 
success. This revision extends the rebuilding program for this stock 
out to a 10-year rebuilding period and lowers the probability of 
success from 75 percent to 50 percent in order to maximize the amount 
of GB yellowtail flounder that could be caught while the stock 
rebuilds.
    IFACA allows the Secretary and the Council to extend the rebuilding 
period for stocks, or portions of stocks, managed by the Understanding. 
However, because IFACA was enacted after FW 45 was developed and 
approved by the Council, the extension of the rebuilding period for GB 
yellowtail flounder was restricted to 10 years. To maintain increases 
in GB yellowtail flounder catch comparable to the emergency increase 
for FY 11 after the emergency increase for FY 2011 expires, the Council 
would need to consider revising the FMP's rebuilding program and 
timeline for this stock consistent with the flexibility provided by 
IFACA. This would allow the Council to further mitigate the adverse 
economic impacts of efforts to rebuild this stock beyond that which was 
considered by the Council in the development of the revised GB 
yellowtail flounder rebuilding program included in FW 45. Therefore, 
NMFS recommends that the Council reevaluate the GB yellowtail flounder 
rebuilding program approved under FW 45, and consider extending the 
rebuilding program for this stock consistent with IFACA and 
implementing, if justified, the higher catch limits for this stock for 
future FYs.
3. Overfishing Levels and ABCs for Particular Stocks
    This action revises the OFLs and ABCs of particular stocks, 
including GB cod, GB haddock, GB yellowtail flounder, and pollock for 
FYs 2011 and 2012. Revisions to the OFLs and ABCs for pollock and GB 
yellowtail flounder are based upon the updated assessments and revised 
rebuilding strategies for these stocks, as described in Items 1 and 2 
of this preamble, respectively, and on the flexibility afforded by 
IFACA for GB yellowtail flounder, as described in Item 5 of this 
preamble. Revisions to the OFLs and ABCs for the GB cod and GB haddock 
stocks are based upon updated TRAC assessments of the eastern 
components of the stock. It is anticipated that the FY 2012 values of 
the ABCs for GB cod, GB haddock, and GB yellowtail flounder will be 
revised during 2011, based on new transboundary stock assessments 
conducted by the TRAC, and will likely be specified again in 
conjunction with the FY 2012 U.S./Canada Management Area TAC levels, as 
further described in Item 5 of this preamble. Table 3 contains the OFLs 
and ABCs for FYs 2011 and 2012 approved under FW 45, with the exception 
of GB yellowtail flounder.
    For GB yellowtail flounder, the FY 2011 U.S. ABC shown in Table 3 
represents a revised shared U.S./Canada Management Area TAC based upon, 
and consistent with, determinations and decisions about this stock by 
the TMGC, pursuant to the Understanding and the flexibility afforded by 
the IFACA. Because the U.S./Canada Management Area represents the 
entire stock area for GB yellowtail flounder, the shared U.S./Canada 
Management Area TAC for this stock that is available to the U.S. 
fishery also represents the ABC for this stock. The revised ABC agreed 
to by the TMGC is consistent with the provisions of IFACA and the 
harvest strategy of the Understanding that requires overfishing to be 
prevented and the facilitation of the rebuilding of overfished stocks. 
NMFS is implementing the revised FY 2011 ABC for this stock as a 
separate, but parallel, action to FW 45 pursuant to its emergency 
action authority specified in section 305(c) of the Magnuson-Stevens 
Act, as further described in the proposed rule for this action. As 
noted above, the duration of this proposed revision to the GB 
yellowtail flounder ABC is limited by the Magnuson-Stevens Act to 180 
days (i.e., through October 24, 2011), but may be extended to make the 
revised ABC and ACL effective for the duration of FY 2011 (through 
April 30, 2012).

[[Page 23046]]



                   Table 3--Revisions to Overfishing Levels and Acceptable Biological Catches
----------------------------------------------------------------------------------------------------------------
                                                      OFL  (mt, live weight)        U.S. ABC  (mt, live weight)
                      Stock                      ---------------------------------------------------------------
                                                      FY 2011         FY 2012         FY 2011         FY 2012
----------------------------------------------------------------------------------------------------------------
GB cod..........................................           7,311         * 8,090           4,766         * 5,364
GB haddock......................................          59,948        * 51,150          34,244        * 29,016
GB yellowtail flounder:
    Proposed in FW 45...........................           3,495         * 4,335        ** 1,458         * 1,222
    Emergency Action............................           3,495         * 4,335           1,099         * 1,222
White hake......................................           4,805           5,306           3,295           3,638
Pollock.........................................          21,853          19,887          16,900          15,400
----------------------------------------------------------------------------------------------------------------
* Preliminary estimates that may be revised in 2012 based on TRAC and TMGC considerations.
** This value represents the flexibility afforded by IFACA and described further in Item 5 of this preamble that
  supersedes the 1,099 mt FY 2011 GB yellowtail flounder U.S. ABC originally adopted by the Council in FW 45.

4. Revisions to ACLs
    Similar to adjustments in the OFLs and ABCs described in Item 3 of 
this preamble, this action revises the ACLs for several stocks, 
including GB cod, GB haddock, GB yellowtail flounder, white hake, and 
pollock. Pursuant to Magnuson-Stevens Act requirements and the process 
specified in Amendment 16, the ACLs adopted in this action are lower 
than the ABCs listed above for these stocks to account for management 
uncertainty, as detailed in Appendix II of FW 45 (see ADDRESSES) and 
summarized in the proposed rule for this action. For most stocks and 
components of the fishery (ABC components), the default adjustment 
(reduction) to the catch level for a fishery component to account for 
management uncertainty was 5 percent. For stocks with less management 
uncertainty, the adjustment was 3 percent, and for those stocks or 
components with more management uncertainty, the adjustment was 7 
percent. The total ACL for a stock represents the catch limit for a 
particular FY, considering both biological and management uncertainty, 
and the limit includes all sources of catch (landed and discards) and 
all fisheries (commercial and recreational groundfish fishery, state-
waters catch, and non-groundfish fisheries).
    The allocation of yellowtail flounder to the scallop fishery is not 
changed by this action. Thus, the SNE/MA yellowtail flounder 
allocations to the scallop fishery listed in Tables 5 and 6 are the 
same amounts implemented under FW 44, with the allocation of SNE/MA 
yellowtail flounder remaining at 82 and 127 mt, live weight, during FYs 
2011 and 2012, respectively; the GB yellowtail flounder allocations to 
the scallop fishery listed in Tables 11 and 12 remain at 200.8 and 
307.5 mt, live weight, during FYs 2011 and 2012, respectively. No 
specific allocation of Cape Cod (CC)/GOM yellowtail flounder is made to 
the scallop fishery, because the incidental catches of this stock by 
the scallop fishery are relatively low. Catches of this stock will be 
considered part of the ``other sub-component'' of the ACL.
    Current regulations set a cap on the amount of yellowtail flounder 
that may be harvested from the scallop access areas in the SNE/MA and 
GB yellowtail flounder stock areas. Specifically, current regulations 
cap yellowtail flounder harvest from scallop access areas at 10 percent 
of the ``total TAC'' for each of the stock areas. In light of the ACL 
components, ``total TAC'' means ``total ACL.'' For FY 2011, this means 
10 percent of 1,416 mt (141.6 mt) for GB yellowtail flounder, as listed 
in Table 11.
    This action updates the existing allocation of 0.2 percent of the 
U.S. ABC for GB and GOM haddock to the mid-water trawl fishery based on 
changes to the GB haddock ABC described above. The values for the 
allocations to the mid-water trawl fishery listed in Table 5 are 
slightly less than 0.2 percent, due to the 7-percent reduction of these 
allocations to account for management uncertainty for this stock. For 
example, the FY 2011 ABC of 32,244 mt was multiplied by 0.002 (32,244 
mt x .002 = 68.5 mt), and then reduced by 4.79 mt (68.5 mt x 0.07 = 
4.79 mt) to arrive at the proposed allocation of 64 mt. Because the 
herring fishery already has AMs associated with this allocation that 
were developed as part of FW 43 (August 15, 2006; 71 FR 46871), all of 
the haddock allocations to the mid-water trawl fishery are 
characterized as sub-ACLs.
    Tables 5 through 8 list the distribution of the total ACL for 
stocks affected by measures in FW 45 to the groundfish fishery, the 
scallop fishery, the mid-water trawl herring fishery, state waters 
fisheries, and other fishery sub-components, such as exempted 
fisheries. A full list of the FY 2011 ACLs will be sent to NE 
multispecies permit holders and posted on the NMFS Northeast Regional 
Office Web site (http://www.nero.noaa.gov). As noted in the FW 44 final 
rule, while ACLs are specified through FY 2012 for most stocks, it is 
likely that the Council will adopt ACLs for FYs 2012 through 2014 
though a future Council action. Therefore, ACLs specified through FY 
2012 in FW 44 and this action will only be implemented if the 
anticipated Council action is delayed. In contrast, the pollock ACLs 
are not expected to be revisited until FY 2013, with any changes 
effective for FY 2014. The ACL listed in Table 5 for white hake 
corrects an error published in Table 4 of both the FW 44 proposed 
(February 1, 2010; 75 FR 5021) and final rules, respectively, that 
listed the commercial sub-ACL for white hake for FY 2011 as 2,566 mt 
(the FY 2010 value) instead of the correct value of 2,974 mt.

                                             Table 5--Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011
                                                                    [Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                             Mid-water     State waters
                          Stock                              Total ACL    Groundfish sub-     Scallop      trawl herring     ACL sub-     Other ACL sub-
                                                                                ACL           fishery         fishery        component      components
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB cod..................................................           4,540           4,301               0               0              48             191

[[Page 23047]]

 
GB haddock..............................................          32,616          30,840               0              64             342           1,370
SNE/MA yellowtail flounder..............................             641             524              82               0               0              27
White hake..............................................           3,138           2,974               0               0              33             132
Pollock.................................................          16,166          13,952               0               0             769           1,445
--------------------------------------------------------------------------------------------------------------------------------------------------------


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


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


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

    The commercial groundfish sub-ACL is further divided into the non-
sector (common pool vessels) sub-ACL and the sector sub-ACL, based on 
the total vessel/permit enrollment in all sectors and the cumulative 
Potential Sector Contributions (PSCs) associated with those sectors. 
Table 9 lists the preliminary distribution of the groundfish sub-ACL 
between common pool and sectors based on rosters submitted to NMFS as 
of December 1, 2010. FY 2011 sector rosters will not be finalized until 
May 1, 2011, because the owners of individual permits signed up to 
participate in sectors have until April 30, 2011, to drop out of a 
sector and fish in the common pool and can either join a sector or 
change its sector affiliation based on an ownership change that 
occurred after December 1, 2011. Therefore, it is possible that the FY 
2011 sector sub-ACL listed in Table 9 and the final rule to approve the 
FY 2011 sector operations plans will be changed at a later date. Based 
on the final sector rosters, NMFS intends to publish a rule in early 
May 2011 to modify these sub-ACLs, and notify the public if these 
numbers change. In addition, it is almost certain that all of the FY 
2012 sub-ACLs for the common pool and sectors will change and be re-
specified prior to FY 2012 due to annual changes to the sector rosters 
and changes to the ABCs for GB cod, GB haddock, and GB yellowtail 
flounder based on the specification of Canadian TACs for these stocks, 
as described above in Item 5 of this preamble.

         Table 9--Preliminary Distribution of Groundfish Sub-ACL Between Common Pool and Sector Vessels
                                               [Mt, live weight]*
----------------------------------------------------------------------------------------------------------------
                                            Groundfish sub-ACL      Common pool sub-ACL       Sector sub-ACL
                  Stock                  -----------------------------------------------------------------------
                                            FY 2011     FY 2012     FY 2011     FY 2012     FY 2011     FY 2012
----------------------------------------------------------------------------------------------------------------
GB cod..................................       4,301       4,841          99         111       4,202       4,730
GB haddock..............................      30,840      26,132         129         109      30,711      26,023
GB yellowtail flounder:

[[Page 23048]]

 
    Proposed in FW 45 **................       790.7       686.3        23.7        20.6         767       665.7
    Emergency Action ***................       1,142       1,142        17.4        17.4     1,124.6     1,124.6
White hake..............................       2,974       3,283          35          39       2,939       3,244
Pollock.................................      13,952      12,612         138         125      13,814      12,487
----------------------------------------------------------------------------------------------------------------
* Preliminary estimate that may be revised based on updated sector rosters and TRAC and TMGC considerations.
** These values represent an increase from the ACLs adopted by the Council in FW 45, as described further in
  Item 5 of this preamble.
*** These values represent an estimate of the ACLs adopted by the Council in FW 45 based upon preliminary sector
  roster information and do not reflect updated rosters submitted to NMFS.

5. Annual Specifications for the U.S./Canada Management Area
    Annual TACs for transboundary stocks jointly managed with Canada as 
part of the Understanding (Eastern GB cod, Eastern GB haddock, and GB 
yellowtail flounder) are determined through a process involving the 
Council, the TMGC, and the U.S./Canada Steering Committee. The 
recommended FY 2011 TACs for Eastern GB cod and Eastern GB haddock were 
based on the most recent stock assessments (TRAC Status Reports for 
2010), and the fishing mortality strategy shared by NMFS and the DFO. 
The TMGC concluded that the most appropriate combined U.S./Canada TAC 
for Eastern GB cod and Eastern GB haddock for FY 2011 is 1,050 mt and 
22,000 mt, respectively. The annual allocation shares between countries 
for FY 2011 are based on a combination of historical catches (10-
percent weighting) and resource distribution based on trawl surveys 
(90-percent weighting). Applying this formula results in an allocation 
of 19 percent of the shared Eastern GB cod TAC to the U.S. and 81 
percent for Canada, or a FY 2011 quota of 200 mt for the U.S. and 850 
mt for Canada. Applying the same formula for Eastern GB haddock results 
in an allocation of 43 percent of the shared TAC to the U.S. and 57 
percent to Canada, or a FY 2011 quota of 9,640 mt for the U.S. and 
12,540 mt for Canada.
    For GB yellowtail flounder, the TMGC originally recommended, the 
Council adopted, and NMFS approved under FW 45, a combined U.S./Canada 
Management Area TAC of 1,900 mt, resulting in a FY 2011 quota of 1,045 
mt for the U.S. and an 855 mt quota for Canada. However, the TMGC 
agreed to a revised shared GB yellowtail flounder TAC for FY 2011 of 
2,650 mt that is being implemented through a parallel emergency action, 
based on the new flexibility provided by IFACA for FY 2011, as 
discussed above in this preamble.
    Table 10 lists the FY 2011 U.S./Canada Management Area TACs for all 
stocks managed by the Understanding, with the FY 2011 GB yellowtail 
flounder TAC reflecting the increased TAC recommended by the TMGC 
following its February 9, 2011, conference call.

                     Table 10--2011 U.S./Canada TACs (Mt, Live Weight) and Percentage Shares
                                                [In parentheses]
----------------------------------------------------------------------------------------------------------------
                                                                                    Eastern GB     GB Yellowtail
                                                                  Eastern GB cod      haddock        flounder
----------------------------------------------------------------------------------------------------------------
Proposed in FW 45.....................  Total Shared TAC........           1,050          22,000           1,900
                                        U.S. TAC................       200 (19%)     9,640 (43%)     1,045 (55%)
                                        Canada TAC..............       850 (81%)    12,540 (57%)       855 (45%)
Emergency Action......................  Total Shared TAC........           1,050          22,000           2,650
                                        U.S. TAC................       200 (19%)     9,640 (43%)     1,458 (55%)
                                        Canada TAC..............       850 (81%)    12,540 (57%)     1,193 (45%)
----------------------------------------------------------------------------------------------------------------

    Because the U.S./Canada Management Area represents the entire stock 
area for GB yellowtail flounder, the U.S./Canada Management Area TAC 
that is available to the U.S. fishery also represents the ABC for this 
stock. After management uncertainty is deducted from the ABC, the 
amount that is available to the U.S. fishery represents the ACL for 
this stock. Thus, the revised GB yellowtail flounder TAC specified in 
this action also requires applicable changes to the ACL, and how the 
ACL for this stock is distributed to the various components of the 
fishery that catch this stock that were adopted by the Council in FW 
45. The revised GB yellowtail flounder ACL, sub-ACL, and ACL sub-
components are specified in Tables 11 and 12 for FYs 2011 and 2012, 
respectively. The revised U.S./Canada TAC for GB yellowtail flounder 
does not affect the sub-ACL for the scallop fishery specified by FW 45 
as 200.8 mt.

                                 Table 11--GB Yellowtail Flounder Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011
                                                                    [Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                             Mid-water     State waters
                         Action                             Total ACL *   Groundfish sub-     Scallop      trawl herring     ACL sub-     Other ACL sub-
                                                                                ACL           fishery         fishery        component      components
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed in FW 45.......................................           1,045           790.7           200.8               0               0            53.5

[[Page 23049]]

 
Emergency Action........................................           1,416           1,142           200.8               0               0              73
--------------------------------------------------------------------------------------------------------------------------------------------------------


                             Table 12--Revised GB Yellowtail Flounder Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2012
                                                                    [Mt, live weight]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                             Mid-water     State waters
                         Action                              Total ACL    Groundfish sub-     Scallop      trawl herring     ACL sub-     Other ACL sub-
                                                                                ACL           fishery         fishery        component      components
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed in FW 45.......................................           1,045           686.3           307.5               0               0            51.2
Emergency Action........................................           1,426           1,046           307.5               0               0              77
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Preliminary estimate that may be revised in 2011 based on TRAC and TMGC considerations.

    The regulations related to the Understanding, promulgated by the 
final rule implementing Amendment 13, state that ``any overages of the 
GB cod, haddock, or yellowtail flounder TACs that occur in a given 
fishing year will be subtracted from the respective TAC in the 
following fishing year.'' Therefore, if an analysis of the catch of the 
shared stocks by U.S. vessels indicates that an over-harvest occurred 
during FY 2010, the pertinent components of the ACL would be adjusted 
downward in order to be consistent with the FMP and Understanding. If 
an adjustment to one of the FY 2011 TACs of cod, haddock, or yellowtail 
flounder is necessary, it will be done consistent with the 
Administrative Procedure Act, and the fishing industry will also be 
notified.
6. Incidental Catch TACs and Allocations to Special Management Programs
    Incidental catch TACs are specified for certain stocks of concern 
(i.e., stocks that are overfished or subject to overfishing) for common 
pool vessels fishing in the special management programs (i.e., special 
access programs (SAPs) and the Regular B DAS Program), in order to 
limit the amount of catch of these stocks caught under such programs. 
The incidental catch TACs apply to catch (landings and discards) on 
trips that end on a Category B DAS (either Regular or Reserve B DAS). 
Catch of such stocks on trips that start under a Category B DAS and 
then flip to a Category A DAS do not accrue toward incidental catch 
TACs, but rather the overall common pool sub-ACL for that stock. 
Because pollock is no longer considered overfished or subject to 
overfishing, this action removes this species from the list of stocks 
of concern, and eliminates the incidental catch TAC for this stock.
    This final rule specifies incidental catch TACs applicable to the 
NE multispecies special management programs for FYs 2011 and 2012, 
based on the common pool sub-ACLs listed in Item 4 of this preamble 
(see Tables 13-15). As noted above, FY 2011 sector rosters will not be 
finalized until May 1, 2011. Therefore, the amount of the common pool 
sub-ACL may change based upon changes to the number of vessels 
participating in the common pool during FY 2011. Based on the final 
rosters, NMFS will publish a rule in early May 2011 to modify these 
sub-ACLs, and notify the public if these numbers change.

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


[[Page 23050]]


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


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

    In addition to the incidental catch TAC for GB cod, overall fishing 
effort by both common pool and sector vessels in the Closed Area I Hook 
Gear Haddock SAP is also controlled by an overall TAC for GB haddock, 
the target species for this SAP. For FY 2011, the overall haddock TAC 
for the Closed Area I Hook Gear Haddock SAP applicable to both common 
pool and sector vessels participating in this SAP is 3157.5 mt 
(6,961,096 lb or 3,157,553 kg) based on TACs specified in FW 44. Once 
this overall haddock TAC is caught, the Closed Area I Hook Gear Haddock 
SAP will be closed to all groundfish vessels for the remainder of FY 
2011.
7. Great South Channel Exemption Area
    This action eliminates the yellowtail flounder spawning closure 
areas within the Great South Channel Exemption Area, and allows all 
scallop vessels, including limited access general category (LAGC) 
scallop vessels, to fish within this area throughout the entire year in 
accordance with applicable scallop regulations. Since the August 31, 
2006, rulemaking (71 FR 51779) that created the Great South Channel 
Exemption Area and the associated yellowtail flounder spawning closure 
areas, the general category scallop permits have become limited access 
permits subject to an individual fishing quota (IFQ) that limit the 
amount of scallops and, therefore, regulated species and ocean pout, 
particularly yellowtail flounder, caught by these vessels. Thus, the 
main justification for the spawning protection areas for LAGC scallop 
vessels is no longer relevant.
8. GOM Cod Spawning Protection Area
    To protect spawning aggregations of GOM cod and prevent fishing 
from interfering with spawning activity, this final rule creates the 
GOM Cod Spawning Protection Area. This area is rectangular in shape and 
is located just south of the Isle of Shoals off the New Hampshire 
coastline, with its long axis oriented in a northwest to southeast 
direction. All commercial fishing vessels using gear capable of 
catching groundfish are prohibited from fishing within the proposed 
area from June 1 through June 30 of each year, while all recreational 
vessels (private and charter/party vessels) are prohibited from using 
gear capable of catching groundfish in the area from April 1 through 
June 30 of each year. For commercial vessels, only vessels fishing with 
``exempted gear,'' as defined in the current regulations, are allowed 
into this area during the closure periods. Exempted gear includes 
pelagic hook and line gear, pelagic longline gear, spears, rakes, 
diving gear, cast nets, tongs, harpoons, weirs, dipnets, stop nets, 
pound nets, pelagic gillnets, pots and traps, shrimp trawls with a 
properly configured grate, and surfclam and ocean quahog dredges. 
Therefore, because midwater trawl gear and purse seine gear is not 
listed as exempted gear, vessels fishing with these gear types may not 
fish in this area during June of each year. Only pelagic hook-and-line 
gear, as defined in the current regulations, is allowed to be used in 
the area by recreational vessels. The catch or possession of any 
regulated species or ocean pout by vessels using the exempted gear from 
April 1 through June 30 of each year is prohibited. Both recreational 
and commercial vessels are allowed to transit the proposed area, 
provided all gear is stowed according to existing regulations.

[[Page 23051]]

9. Handgear A and B Measures

Cod Trip Limit

    Through this final rule, the cod trip limits applicable to NE 
multispecies Handgear A (limited access) and B (open access) vessels 
are revised to be specific to either the GOM or GB cod stock, including 
any adjustments to such trip limits. Handgear A vessels are subject to 
an initial cod limit of 300 lb (135 kg) per trip for both the GOM and 
GB cod stocks, until NMFS adjusts the cod trip limit applicable to 
common pool vessels fishing under a NE multispecies DAS for either of 
these stocks below 300 lb (135 kg) per trip. Once either the GOM or the 
GB cod trip limit for common pool DAS vessels is reduced below 300 lb 
(135 kg) per DAS, the applicable cod trip limit for Handgear A vessels 
will be adjusted to be the same as the daily limit for common pool DAS 
vessels. For example, if only the GOM cod trip limit for NE 
multispecies DAS vessels was reduced to 250 lb (113.4 kg) per DAS, then 
the cod trip limit for a vessel issued a Handgear A category permit 
that is fishing in the GOM Regulated Mesh Area (i.e., the area 
specified for the GOM cod trip limit) would also be reduced to 250 lb 
(113.4 kg) per trip; however, under this example, the cod trip limit 
for a Handgear A vessel fishing for GB cod south of the GOM Regulated 
Mesh Area (RMA) (the GB cod stock area is considered the GB, SNE, and 
MA RMAs) would be maintained at 300 lb (135 kg) per trip.
    The initial Handgear B cod limit for both the GOM and GB stocks is 
maintained at 75 lb (90.7 kg) per trip, but will be adjusted 
proportional (rounded up to the nearest 25 lb (11.4 kg)) to any changes 
in the daily GOM or GB cod trip limits for DAS vessels in the future, 
as necessary. For example, if the GOM cod trip limit was reduced by 50 
percent from 800 lb (362.9 kg) per DAS to 400 lb (181.4 kg) per DAS, 
then the cod trip limit for a Handgear B vessel fishing in the GOM 
Regulated Mesh Area would also be reduced by 50 percent to 37.5 lb (17 
kg), rounded to the nearest 25 lb (11.3 kg), or 50 lb (22.7 kg) per 
trip. In this example, the cod trip limit for a Handgear B vessel 
fishing for GB cod south of the GOM RMA would be maintained at 75 lb 
(90.7 kg) per trip.
    To fish for GB cod south of the GOM Regulated Mesh Area for a 
particular period of time, the owner or operator of a Handgear A or B 
vessel must obtain and retain on board a paper letter of authorization 
(LOA) from the Regional Administrator (RA) to fish, unless otherwise 
noted below. The minimum participation period for this LOA is 7 
consecutive days to minimize the administrative burden of this 
provision, consistent with existing practice for LOAs issued to DAS 
vessels. Once a vessel owner or operator has obtained a paper LOA to 
fish south of the GOM RMA, the owner or operator may not fish in the 
GOM RMA for the duration of the LOA. This requirement is necessary to 
more effectively enforce this measure. Alternatively, the owner or 
operator of a Handgear A permitted vessel, who does not obtain the 
paper LOA, but elects or is required to have a VMS may fish for GB cod 
south of the GOM RMA by declaring an intent to fish for GB cod south of 
the GOM RMA prior to each trip via a vessel monitoring system (VMS) 
(i.e., when fishing in multiple broad stock areas on the same trip). If 
a vessel declares via VMS instead of obtaining a paper LOA, this VMS 
declaration is required on a trip-by-trip basis, and no minimum 
participation period is necessary. These declarations enable at-sea 
enforcement personnel to identify the applicable cod trip limits and 
effectively enforce the appropriate regulations during boarding 
operations.

Access to Seasonal Closure Areas

    To ensure that handgear-permitted vessels are provided an 
opportunity to fish during at least the early part of the FY, this 
action exempts both Handgear A and B vessels from the GB Seasonal 
Closure Area defined in Sec.  648.81(g), and allows Handgear A vessels 
to also fish in the Sector Rolling Closure Areas defined in Sec.  
648.81(f)(2)(vi)(A) through (C), and depicted in section 4.3.3 of FW 
45. These latter areas represent smaller portions of the GOM Rolling 
Closure Areas, and enable Handgear A vessels fishing in the GOM a 
greater chance at catching some of the available sub-ACLs for cod and 
haddock during a particular FY before such trip limits are reduced to 
prevent the ACL from being exceeded.
10. Dockside/Roving Monitor Requirements

Delay in Requirement for Industry To Fund Dockside/Roving Monitors

    To address concerns regarding the ability of the fishing industry 
to pay for the costs of a dockside/roving monitoring program, as 
originally implemented under Amendment 16 in 2010, this action delays 
the industry's responsibility for paying for dockside/roving monitoring 
coverage until FY 2013. None of the costs associated with dockside/
roving monitors during FYs 2011 and 2012 will be imposed upon the owner 
or operator of a NE multispecies vessel. NMFS will attempt to provide 
sufficient dockside/roving monitoring coverage to observe the offloads 
of up to 100 percent of sector trips and, starting in FY 2012, common 
pool trips as well, if funds are available. If funds are not available 
for monitoring 100 percent of commercial groundfish trips, NMFS must 
first provide dockside/roving monitor coverage to trips that do not 
have an observer, at-sea monitor, or an approved electronic monitoring 
program. To enable dockside/roving monitors to more easily identify 
trips that are assigned an observer or at-sea monitor, vessels must 
declare whether an observer or at-sea monitor has been assigned to that 
trip via the trip-start hail report. For FY 2011, NMFS estimates that 
it has sufficient funding to cover approximately 100 percent of sector 
trips that are not assigned an observer or at-sea monitor. NMFS will 
specify coverage levels for FY 2012 based upon available NMFS funding.

Dockside/Roving Monitoring Program Requirements Beginning in FY 2013

    Starting in 2013, sectors must develop and pay for a dockside/
roving monitoring program as part of their annual operations plans, 
common pool vessels will be subject to dockside/roving monitoring upon 
the transition to a trimester TAC AM, vessels must comply with the 
trip-start and trip-end hail reporting requirements associated with at-
sea and dockside monitoring programs, and dockside/roving monitoring 
service providers must observe the landings of 20 percent of all common 
pool and sector trips in a statistically random manner. To facilitate 
administration and compliance with the dockside/roving monitoring 
operational standards specified at Sec.  648.87(b)(5), this action 
revises the regulations at Sec.  648.82(n)(2)(iv) to clearly state that 
the owner or operator of each common pool vessel subject to dockside/
roving monitoring requirements must contract for such services with a 
service provider approved by NMFS by 2013. The need for vessel owners 
to contract with a specific service provider is necessary in the 
absence of any NMFS-controlled dockside/roving monitoring program in 
which NMFS can act as a mediator between the fishing industry and 
approved service providers. Further, because each individual permit is 
considered a separate legal entity, NMFS is not inclined to mandate 
that common pool vessels use a particular service provider in a 
particular FY in order to increase competition among service providers 
and potentially

[[Page 23052]]

decrease costs to the affected vessel owners. Groups of vessel owners, 
however, may elect to contract with the same service provider to help 
lower the costs associated with such requirements.

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

    Vessels issued a limited access NE multispecies Handgear A, 
Handgear B, and Small Vessel category permit are exempt from any 
dockside/roving monitoring requirements when operating in the common 
pool. Given this exemption, it is not possible for dockside/roving 
monitor service providers to provide statistically random coverage of 
all common pool trips, as required under Amendment 16, because not all 
common pool trips are subject to dockside/roving monitoring 
requirements. Therefore, the dockside/roving monitoring coverage 
regulations have been revised to accommodate this exemption, and 
specify that service providers must provide random coverage of all 
trips subject to the dockside/roving monitoring requirements.

Trip-End Hail Requirement

    To facilitate dockside intercepts by both state and Federal 
enforcement personnel, beginning in FY 2011, all sector vessels and 
common pool vessels fishing under a DAS must submit a trip-end hail 
report via VMS prior to returning to port on each trip. Vessels subject 
to dockside monitoring (i.e., sector vessels starting in FY 2010 and 
common pool vessels starting in FY 2012) are required to submit both a 
trip-start and a trip-end hail report for that trip, consistent with 
current practice. The trip-end hail report must contain the same 
information as the trip-end hail report implemented by Amendment 16.

Inspection of Fish Holds

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

Distribution of the PSC From Cancelled Permits

    As described in Amendment 16, a PSC represents an individual 
permit's portion of the total historical landings of each regulated 
species or ocean pout stock during FYs 1996-2006 by all permits, 
including those in confirmation of permit history (CPH), that were 
eligible to participate in the NE multispecies fishery as of May 1, 
2008. If a permit had been cancelled after May 1, 2008, its historic 
landings between FYs 1996-2006 have still been used to calculate the 
total landings by eligible permits.
    As noted above, the current regulations calculate the ACL available 
to sector and common pool vessels based on the cumulative PSCs of each 
permit participating in each sector. By default, if the owner of a 
particular permit has not elected to participate in a sector, that 
permit is considered to be participating in the common pool, and its 
PSC contributes to the sub-ACL available to the common pool at large. 
Similarly, if a permit or CPH is permanently cancelled for any reason, 
that permit or CPH cannot participate in sectors, or any fishery, and 
the PSC is used to contribute to the sub-ACL available to the common 
pool. Thus, the PSCs of cancelled permits artificially inflate the PSCs 
of those permits operating in the common pool and are not equitably 
distributed among all permits remaining in the fishery.
    Beginning in FY 2011, the PSC of all valid permits, including those 
held in CPH, that are eligible to participate in the fishery must be 
recalculated as of June 1 of each year, unless another date is 
specified by the RA, to redistribute the landings histories of 
cancelled permits to all remaining eligible permits. To do so, the PSCs 
for each stock calculated pursuant to the process specified in 
Amendment 16 must be multiplied by a factor of ``1/PSC of the remaining 
permits.'' These recalculated PSCs shall then be used to calculate ACEs 
for each sector during the following FY. For FY 2012 and beyond, a PSC 
that is calculated on June 1, shall affect sector ACE for the FY that 
begins on May 1, of the following year.
    This provision means that each permit's PSC may increase on a 
yearly basis to reflect its higher portion of the historic landings of 
each regulated species and ocean pout stock due to the removal of the 
landings histories of any permits that were cancelled by June 1 of each 
year. This will ensure that the yearly PSC calculations reflect 
eligible permits at the beginning of each FY (May 1), and allow NMFS 
time to process such renewals. On or about July 1 of each year, NMFS 
will inform permit holders of updated PSCs through a permit holder 
letter sent to owners of a valid limited access NE multispecies permit 
or CPH.
    The FW 45 proposed rule specified that the RA would recalculate FY 
2011 PSCs for each permit using valid permits as of May 1, 2011, to 
update PSCs for FY 2011 and reflect permits cancelled through FY 2010. 
However, to ensure that permit owners had sufficient information to 
make informed decisions about whether or not to participate in sectors 
before the start of FY 2011 on May 1, 2011, the RA recalculated FY 2011 
PSCs for each permit using valid permits as of February 11, 2011, to 
reflect permits cancelled through that date. This information was sent 
out to permit holders on February 11, 2011, to facilitate their 
decision to join a sector based on measures proposed in FW 45. The RA 
will recalculate PSCs for each permit as of June 1, 2011, to account 
for permits cancelled through FY 2010 and determine the PSCs that will 
be used to calculate FY 2012 sector ACE for each stock, consistent with 
the procedures outlined above.

Operations Plan Requirements

    Amendment 16 specified that sectors must submit final rosters, 
proposed operations plans, including rosters and associated 
environmental analyses by September 1, so that NMFS could review such 
documents as part of the process to approve sector operations for the 
following FY. Based on industry input, this action increases the 
flexibility of these deadlines by requiring sectors to submit 
preliminary rosters and proposed operations plans to NMFS by September 
1, and final rosters by December 1 of each year. Following further 
industry input submitted during the public comment period for this 
action and ongoing discussions with industry participants, NMFS will 
allow for a limited opportunity for additional changes to FY 2011 
sector rosters to accommodate changes in vessel ownership that occurred 
after the submission of final sector rosters on

[[Page 23053]]

December 1, 2010. This window to reopen FY 2011 sector rosters began on 
March 24, 2011, and will end on April 30, 2011. A sector is not 
required to accept additional changes to sector rosters during this 
window; each sector may decide whether or not a member may leave the 
sector, and whether or not to accept new members. Reopening the rosters 
is intended to provide additional flexibility to new permit holders 
without disrupting the organization of sectors. An announcement of this 
limited opportunity to reopen sector rosters was sent out to all sector 
managers on March 16, 2011, and to all limited access NE multispecies 
permit holders on March 23, 2011. In future years, a window for 
additional sector roster changes would begin with the publication of 
proposed measures for the common pool for the following year and end on 
April 30, and would be limited to ownership changes occurring after the 
December 1 roster deadline. These measures are designed to provide NMFS 
with the information it needs to review or conduct environmental 
analyses associated with draft sector operations plans, while allowing 
vessel owners additional time to decide whether to participate in 
sectors, or which sector to join during the following FY.

Sector Exemptions

    To reduce dockside/roving monitoring costs, especially due to 
infrequent landings of regulated species in more southerly ports, this 
action allows sectors to request an exemption from the dockside/roving 
monitoring requirements implemented under Amendment 16. Therefore, 
because Amendment 16 specified that sectors cannot request an exemption 
from the existing reporting requirements, this rule removes dockside/
roving monitoring requirements from the list of reporting requirements 
at Sec.  648.87(c)(2)(i). This enables sectors to request exemptions, 
or at least partial exemptions, from the dockside/roving monitoring 
requirements to minimize monitoring costs for sector trips targeting 
monkfish in southern waters, for example.
12. Authorization of New Sectors
    This final rule authorizes the creation of five new sectors, 
include the State of Maine Permit Banking Sector, the State of Rhode 
Island Permit Bank Sector, the State of New Hampshire Permit Bank 
Sector, the Commonwealth of Massachusetts Permit Bank Sector, and the 
Sustainable Harvest Sector III, as described in Section 4.2.1 of the FW 
45 EA. All operational aspects of these sectors are specified in their 
annual operations plans, as submitted to NMFS. Details of these 
operations plans were published in a parallel rulemaking, as noted 
above. Vessels/permits participating in these sectors must comply with 
the existing sector provisions, unless otherwise exempted by a future 
action.
13. Measures for FY 2011 Under RA Authority
    The FMP provides authority for the RA to implement certain types of 
inseason management measures for the common pool fishery, the U.S./
Canada Management Area, and Special Management Programs, as described 
further below. Although these measures were not proposed by the Council 
for implementation through FW 45, this final rule makes the public 
aware of measures implemented for FY 2011 by the RA. Once effective, 
the RA may revise these measures, as necessary, to ensure that the 
objectives of the FMP, including preventing the sub-ACLs from being 
exceeded, are met during FY 2011. Any necessary adjustments will be 
implemented through an inseason action consistent with the 
Administrative Procedures Act and communicated to the affected public.

Initial FY 2011 Common Pool Trip Limits

    The current regulations at Sec.  648.86(o) allow the RA to revise 
trip limits applicable to common pool vessels if the RA projects that 
the catch of any NE multispecies stock allocated to common pool vessels 
will exceed the pertinent sub-ACL in order to prevent exceeding the 
common pool sub-ACL. Table 16 summarizes the initial FY 2011 common 
pool trip limits as adjusted by the RA. These initial trip limits were 
developed after considering changes to the FY 2011 common pool sub-ACLs 
and sector rosters, catch rates of these stocks during FY 2010, price 
of fish during FY 2010, bycatch considerations, the potential for 
differential DAS counting during FY 2011, public comment on proposed 
trip limits, and other available information. Although the slow catch 
rate of SNE/MA yellowtail flounder by common pool vessels in FY 2010 
suggests that the trip limit could be increased substantially to 
increase the catch of this stock in FY 2011, due to concerns that a 
potential increased SNE/MA yellowtail flounder trip limit would 
increase the bycatch and discard of SNE/MA winter flounder (a stock 
that cannot be possessed by any vessel to help ensure this stock 
rebuilds according to the approved rebuilding program), only a small 
increase in the trip limit for this stock is implemented at this time.

                                                Table 16--Initial FY 2011 Trip Limits for the Common Pool
--------------------------------------------------------------------------------------------------------------------------------------------------------
                     Stock                                                                Initial FY 2011 limit
--------------------------------------------------------------------------------------------------------------------------------------------------------
GOM cod.......................................  500 lb (226.8 kg) per DAS, up to 2,000 lb (907.2 kg) per trip.
GB cod........................................  2,000 lb (907.2 kg) per DAS, up to 20,000 lb (9,072 kg) per trip.
GOM haddock...................................  1,000 lb (453.6 kg) per trip.
GB haddock....................................  10,000 lb (4,535.9 kg) per trip.
GOM winter flounder...........................  250 lb (113.4 kg) per trip.
GB winter flounder............................  1,000 lb (453.6 kg) per trip.
CC/GOM yellowtail flounder....................  500 lb (226.8 kg) per DAS, up to 2,000 (907.2 kg) per trip.
GB yellowtail flounder........................  1,500 (680.4 kg) per trip.
SNE/MA yellowtail flounder....................  500 lb (226.8 kg), up to 2,000 (907.2 kg) per trip.
American plaice...............................  unrestricted.
Pollock.......................................  unrestricted.
Witch flounder................................  250 lb (113.4 kg) per trip.
White hake....................................  1,500 lb (680.4 kg) per trip.
Redfish.......................................  unrestricted.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 23054]]

Differential DAS Counting for Common Pool Vessels

    Following the implementation of Amendment 16 measures, the FMP 
requires that the RA implement a differential DAS counting rate for FY 
2011 if the catch of the relevant stocks by common pool vessels is 
projected to exceed the pertinent common pool groundfish sub-ACLs 
during FY 2010. The differential DAS counting factor that will apply to 
common pool vessels is based on the proportion of the sub-ACL projected 
to be caught by common pool vessels during FY 2010, rounded to the 
nearest tenth. If the RA projects that common pool catch will exceed 
the sub-ACL for multiple regulated species within a particular area, 
then the most restrictive differential DAS counting factor will apply.
    Catch information available through March 19, 2011, indicates that 
common pool catch of witch flounder during FY 2010 has exceeded the 
witch flounder sub-ACL by 32 percent. As defined at Sec.  
648.82(n)(1)(i), any differential DAS counting rate to address an 
overage of the witch flounder sub-ACL shall be applied to Category A 
DAS used in the Offshore GOM Differential DAS Area, the Offshore GB 
Differential DAS Area, and the Inshore GB Differential DAS Area. 
Therefore, beginning on May 1, 2011, any Category A DAS used by common 
pool vessels in the Offshore GOM Differential DAS Area, the Offshore GB 
Differential DAS Area, and the Inshore GB Differential DAS Area shall 
be charged at a rate of 1.3:1, or 31 hours for each 24 hr fished (i.e., 
1.3 times 24-hr DAS counting), for the time spent fishing in the 
applicable DAS counting areas specified above. Differential DAS shall 
accrue based upon the first VMS position into the applicable 
differential DAS counting area, and the first VMS position outside of 
the applicable differential DAS counting area. NMFS provides an 
estimate of the status of the common pool catch throughout the year at 
the following address: http://www.nero.noaa.gov/ro/fso/reports/common_pool/Common_Pool_Summary.html.

Delayed Opening of the Eastern U.S./Canada Area

    The regulations at Sec.  648.85(a)(3)(iv)(D) provide the RA the 
authority to adjust various measures in order to optimize the harvest 
of the transboundary stocks managed under the Understanding. Pursuant 
to this authority, NMFS is postponing the opening of the Eastern U.S./
Canada Area for common pool vessels fishing with trawl gear in FY 2011 
from May 1, 2011, through July 31, 2011. This measure delays trawl 
fishing in the Eastern U.S./Canada Area during the time when cod 
bycatch is likely to be very high, and should prolong access to this 
area in order to maximize the catch of available cod, haddock, and 
yellowtail flounder, as well as other valuable stocks such as winter 
flounder.
    Similar to restrictions implemented in FY 2009 and FY 2010, the 
proposed rule for this action proposed to limit the amount of cod that 
could be caught by common pool vessels fishing with non-trawl gear in 
the Eastern U.S./Canada Area prior to August 1, 2011, to 5 percent of 
the Eastern GB cod TAC available for common pool vessels. This was 
intended to further constrain fishing mortality on GB cod and prolong 
access to this area. The proposed rule for this action inaccurately 
specified this cod bycatch limit as 10 mt, but, inadvertently, that was 
based upon 5 percent of the Eastern GB cod TAC available to all 
groundfish vessels, not just common pool vessels as intended. The 
correct number for cod bycatch for just common pool vessels in FY 2011 
is 477 lb (216.4 kg), based on a calculation of vessels that will be in 
the common pool according to sector rosters submitted to NMFS as of 
December 1, 2010. Because this bycatch amount is very low and difficult 
to effectively monitor in a timely manner and because no common pool 
vessels actually fished in the Eastern U.S./Canada Area during FY 2010, 
NMFS has not implemented the proposed cod bycatch limitation for common 
pool vessels fishing with non-trawl gear in the Eastern U.S./Canada 
Area from May 1, 2011, through July 31, 2011.

Closed Area II Yellowtail Flounder/Haddock SAP

    The current regulations provide the RA with the authority to 
determine the total number of allowed trips by common pool vessels into 
the Closed Area II Yellowtail Flounder/Haddock SAP to target yellowtail 
flounder based on several criteria, including the GB yellowtail 
flounder TAC and the amount of GB yellowtail flounder caught outside of 
the SAP. As implemented in 2005 by FW 40B (June 1, 2005; 70 FR 31323), 
no trips to this SAP should be allocated if the available GB yellowtail 
flounder catch, after considering the amount of catch of this stock 
that would occur outside of the SAP, is insufficient to support at 
least 150 trips with a 15,000-lb (6,804-kg) trip limit (i.e., 2,250,000 
lb (1,020,600 kg)). The difference between the minimum level of GB 
yellowtail flounder sub-ACL necessary to allow targeting of yellowtail 
flounder within the Closed Area II Yellowtail Flounder/Haddock SAP and 
the updated FY 2011 GB yellowtail flounder sub-ACL of 1,142 mt 
(2,517,679 lb; or 1,142,019 kg) specified in Table 11 is only 267,679 
lb (121,419 kg). Based on past fishing practices, it is likely that 
catch rates outside of this SAP are more than adequate to fully harvest 
the FY 2011 GB yellowtail flounder sub-ACL, leaving little, if any, 
quota available to open this SAP to targeting GB yellowtail flounder. 
Thus, the FY 2011 GB yellowtail flounder sub-ACL is considered 
insufficient to warrant opening of this SAP to targeting yellowtail 
flounder. Therefore, based on existing authority, no trips are 
allocated by this final rule to target yellowtail flounder within the 
Closed Area II Yellowtail Flounder/Haddock SAP for FY 2011. Further, as 
required at Sec.  648.85(a)(3)(iii)(B) and (x)(A), this final rule 
specifies that the SAP is open from August 1, 2011, through January 31, 
2012, and prohibits the use of the flounder net by both common pool and 
sector vessels in this SAP during FY 2011. All limited access NE 
multispecies vessels can still fish in this SAP during FY 2011, but 
must only fish with a haddock separator trawl, a Ruhle trawl, or hook 
gear while in the SAP area.
14. Corrections and Clarifications
    This final rule corrects or clarifies a number of inadvertent 
errors, omissions, and provisions in existing regulations in order to 
ensure consistency with, and accurately reflect the intent of previous 
actions under the FMP, or to more effectively administer and enforce 
existing provisions pursuant to the authority provided to the Secretary 
in section 305(d) of the Magnuson-Stevens Act. The following measures 
are listed in the order in which they appear in the regulations. The 
proposed rule for this action discusses the reason why such corrections 
are necessary.
    Amendment 16 requires the owner or operator of any vessel issued a 
limited access NE multispecies permit fishing on either a common pool 
or a sector trip to declare its intent to fish within one or more of 
the NE multispecies broad stock areas (BSAs) and provide the vessel 
trip report (VTR) serial number for the first page of the VTR for that 
particular trip via VMS or interactive voice response (IVR) system 
prior to leaving port at the start of a fishing trip and to submit a 
VMS catch report detailing the amount of each species retained in each 
BSA for trips that fish in more than one BSA per trip. To eliminate 
duplicative reporting requirements, this final rule modifies

[[Page 23055]]

the timing requirements for the submission of the VMS catch report in 
Sec.  648.10(k)(1) to require all limited access NE multispecies 
vessels, regardless of the number of broad stock areas fished, to 
submit the VMS catch report listing the VTR serial number applicable 
for that trip prior to crossing the VMS demarcation line upon its 
return to port following each fishing trip on which regulated species 
were caught.
    To further clarify the administration and enforcement of dockside/
roving monitoring provisions originally implemented under Amendment 16 
and revised by this action, this action adds a prohibition at Sec.  
648.14(k)(18)(i)(D) to state that, if the offloads of a particular trip 
are assigned to be monitored by a dockside/roving monitor, the vessel 
cannot offload its catch until the assigned dockside/roving monitor 
arrives at the designated offloading site specified by the vessel owner 
or operator.
    To close a perceived loophole that could have allowed a vessel 
carrying passengers for hire to possess and land fish smaller than the 
minimum fish size specified for commercial vessels and to sell their 
catch from such operations, this action revises the regulations at 
Sec.  648.82(a)(2) to also state that, in addition to a vessel fishing 
under a NE multispecies DAS, a vessel issued a NE multispecies limited 
access permit may not fish under a sector trip or under the limited 
access NE multispecies Small Vessel Category or Handgear A permits, if 
such vessel carries passengers for hire for any portion of a fishing 
trip.
    This action modifies the phrase ``vessels participating in 
sectors'' to read ``vessels/permits participating in sectors'' in the 
regulations at Sec. Sec.  648.87(b)(1)(i)(A) and 
648.90(a)(4)(iii)(E)(2) to reflect that vessels issued permits, 
including those held in CPH, can participate in sectors.
    To provide more flexibility to sectors, Amendment 16 allowed the 
transfer of ACE between sectors, and also permitted carrying over ACE 
from one FY to the next. To clarify how the ACE carry over provision 
shall be applied, this action revises the regulations at Sec.  
648.87(b)(1)(i)(C) to state that a NE multispecies sector may carry 
over up to 10 percent of its allocated ACE for each stock, with the 
exception of GB yellowtail flounder, into the following FY. This 
provision limits the applicability of ACE carry over to only 10 percent 
of the ACE allocated to a sector at the start of a FY and not 10 
percent of the total ACE available to a sector at the end of the 
fishing year, which may include any ACE acquired from another sector as 
part of an ACE transfer. The preamble of the proposed rule for this 
action included text that could be interpreted to mean that a sector 
could not carry over any ACE if it had harvested more than 90 percent 
of its original ACE allocation for that stock by the end of the FY. 
This interpretation does not reflect the intent of NMFS in clarifying 
the amount of ACE that can be carried over into the next FY. Consistent 
with the proposed regulatory text, the intent of NMFS was to merely 
clarify that the amount of ACE that can be carried over for each stock 
shall be calculated based upon the amount of ACE originally allocated 
to that sector. For example, if a sector was originally allocated 100 
mt of GOM cod at the beginning of FY 2010, that sector would be allowed 
to carry over up to 10 mt of GOM cod into FY 2011, even if it had 
acquired an additional 50 mt from another sector through an ACE 
transfer. Thus, the amount of ACE that could be carried over into FY 
2011 would be based upon the 100 mt originally allocated to that sector 
for FY 2010, not the 150 mt that the sector had ultimately acquired by 
the end of FY 2010. Finally, NMFS clarifies that it interprets the term 
``unused ACE'' in the context of the regulations at Sec.  
648.87(b)(1)(i)(C) to mean any ACE that has not been fished by the 
sector originally allocated that ACE, or leased to another sector 
during that FY.
    In addition to the revisions to the calculation of PSCs noted above 
for cancelled permits, this final rule revises the regulatory text 
describing the calculation of PSCs at Sec.  648.87(b)(1)(i)(E)(1) and 
(b)(1)(i)(E)(2) to clarify and more accurately reflect the processes 
that were, and continue to be, applied to implement such calculations. 
Specifically, this rule clarifies that the landings histories of any 
limited access NE multispecies permit, including those that were put 
into CPH, and those of an open access NE multispecies handgear permit 
that eventually qualified for, and resulted in, the issuance of a 
limited access NE multispecies Handgear A permit during FYs 1996 
through 2006 shall be used to calculate the PSCs for each valid permit 
as of June 1 each year. In addition, these revisions include an example 
of the landings of regulated species and ocean pout that may not be 
used to calculate PSC; namely, any landings of yellowtail flounder by 
scallop vessels operating under a scallop DAS. Finally, this rule 
clarifies that the PSC that results from such a calculation is 
considered the PSC for each stock.
    The regulations at Sec. Sec.  648.87(b)(1)(iii)(C) and (viii) allow 
sectors to transfer ACE for up to 2 weeks into the subsequent FY, and 
provide NMFS with 61 days to process ACE transfers and determine 
whether a sector has exceeded its ACE for the previous FY. Such 
measures are dependent upon the completion of NMFS' evaluation of year-
end sector catch, including sector ACE overages, and may not fully 
account for the timing of NMFS' year-end evaluation process. Therefore, 
to allow for additional time to complete these tasks, if necessary, the 
phrase ``unless otherwise instructed by NMFS'' is being added to 
reference to the 2-week and 61-day deadlines in the regulatory text.

Comments and Responses on Measures Proposed in the FW 45 Proposed Rule

    Twenty-four comments were received during the comment period on the 
proposed rule for this action from 13 individuals, 4 fishing industry 
groups (the Northeast Hook Fisherman's Association (NEHFA), the 
Associated Fisheries of Maine (AFM), the Northeast Seafood Coalition 
(NSC), and the Northeast Sector Support Network (NSSN)), 4 conservation 
groups (Center for Biological Diversity (CBD), Oceana, Food and Water 
Watch (FWW), and PEW Environmental Trusts (PEW)), 1 dockside/roving 
monitor service provider (AIS, Inc.), 1 community group (Penobscot East 
Resource Center (PERC)), and the Council. Only comments that were 
applicable to the proposed measures, including the analyses used to 
support these measures, are addressed in this preamble. Comments on the 
overarching sector measures implemented in 2010 by Amendment 16, or the 
anticipated or realized impacts of those measures, are not addressed in 
this preamble. Please note in considering the responses to comments 
below that NMFS may only approve or disapprove measures proposed in a 
fishery management plan, amendment, or framework adjustment and may not 
change or substitute any measure in a substantive way, pursuant to 
section 304(a)(3) of the Magnuson-Stevens Act.

General Comments

    Comment 1: The CBD commented that the EAs prepared in support of 
both FW 45 and the 2011 sector operations plans do not adequately 
evaluate the impacts on a number of species proposed for listing under 
the Endangered Species Act (ESA), particularly Atlantic sturgeon and 
loggerhead sea turtles. The CBD noted that the GOM distinct population 
segment (DPS) and the New York Bight and Chesapeake Bay DPSs of 
Atlantic sturgeon were proposed to be listed as threatened and 
endangered

[[Page 23056]]

under the ESA, respectively, by NMFS' Northeast Regional Office on 
October 6, 2010 (75 FR 61872), while the Northwest Atlantic loggerhead 
sea turtle DPS was proposed to be listed as endangered under the ESA on 
March 16, 2010 (75 FR 12598). They contend that the FW 45 and FY 2011 
sector operations plans EAs rely upon previous assessments of impacts 
to protected species specified in the Amendment 16 EIS that was 
completed on October 16, 2009. Therefore, they claimed that the 
analysis for these actions is not appropriate, given the proposed 
listings of Atlantic sturgeon and loggerhead sea turtles occurred after 
previous analysis was completed. Further, they indicated that the FW 45 
EA does not consider impacts of eliminating the yellowtail flounder 
closure areas in the Great South Channel Exemption Area, noting that 
sea turtles are present in this area at the time that the yellowtail 
flounder spawning protection areas were in effect.
    Response: NMFS agrees that the analysis originally included in the 
FW 45 EA did not describe the impacts to DPS of Atlantic sturgeon and 
loggerhead sea turtles. To meet the ESA requirements of Sec.  
402.12(a), NMFS has updated the analysis supporting this action in an 
addendum to the FW 45 EA to include analysis of FW 45 measures on the 
DPS for these species in light of their proposed listings. This impacts 
analysis concluded that the measures implemented under this final rule 
are not likely to jeopardize the continued existence of Atlantic 
sturgeon between now and the time a final listing determination will be 
made, and concludes that there will be no significant impact on 
Atlantic sturgeon or loggerhead sea turtles for the duration of this 
regulation. It also concluded that a conference, per the ESA 
regulations, for the proposed loggerhead sea turtle DPS is not required 
based on the determinations and the incidental take statement in the 
2010 Biological Opinion for the Multispecies FMP. For Atlantic 
sturgeon, NMFS Sustainable Fisheries Division engaged in an informal 
conference with NMFS Protected Resources per the ESA regulations, and 
no additional measures were recommended by NMFS Protected Resources. 
While it is possible that there may be interactions between Atlantic 
sturgeon or loggerhead sea turtles on the one hand and, on the other, 
gear used in the NE multispecies fishery, based on prior analyses and 
current observer bycatch data for the groundfish fishery, the number of 
interactions that will occur between now and the time a final listing 
determination will be made is not likely to cause an appreciable 
reduction in survival and recovery. A final listing determination for 
the Atlantic sturgeon DPS is expected by October 6, 2011. With the 
publication of a final listing rule, the existing Section 7 
consultation for the NE multispecies fishery would need to be 
reinitiated, consistent with the requirement to reinitiate formal 
consultation where discretionary Federal agency involvement or control 
of the action has been retained and a new species is listed that may be 
affected by the action. During the reinitiation, the effects of the NE 
multispecies fishery on the five DPS for Atlantic sturgeon would be 
fully examined.
    Comment 2: Oceana stated that there are no effective AMs for 
several stocks managed by the FMP, and that FW 45 must include AMs for 
all stocks managed under the FMP, including stocks not allocated to 
sectors under Amendment 16 (SNE/MA winter flounder, ocean pout, 
windowpane flounder, Atlantic halibut, and Atlantic wolffish). Oceana 
cited the January 21, 2010, letter from NMFS to the Council informing 
the Council that AMs for these stocks should be implemented as quickly 
as possible through a future Council action, and stated that the FW 45 
final rule is the first opportunity to implement such measures.
    Response: Because of the timing needed to more fully account for 
the bycatch of haddock in the Atlantic herring fishery before herring 
fishing operations began to increase rapidly during the early fall, the 
Council elected to develop FW 46 to revise the existing allocations of 
portions of the GOM and GB haddock ACL to the herring fishery before 
they worked on any other actions in 2011. Further, because the Council 
intended to develop an action later on in 2011 that would implement NE 
multispecies ACLs for FYs 2012-2014, the Council decided to address 
outstanding issues associated with AMs for ocean pout, windowpane 
flounder and Atlantic halibut through the next action, or FW 47.
    Consistent with the Magnuson-Stevens Act, Amendment 16 implemented 
AMs that would be sufficient to prevent overfishing of any stock 
managed by the FMP in FYs 2010 and 2011. However, because Amendment 16 
did not provide a specific allocation of Atlantic halibut, SNE/MA 
winter flounder, ocean pout, windowpane flounder, or Atlantic wolffish 
to sectors, these stocks are not subject to any sector-specific AMs, 
which is acknowledged by NMFS in the letter cited in the comment. The 
ACL available to the commercial NE multispecies fishery for each of 
these stocks is allocated entirely to common pool vessels, and the only 
specific AM established for these stocks during FYs 2011 and 2012 is 
the differential DAS counting AM specified for common pool vessels at 
Sec.  648.82(n). NMFS has determined there is no immediate need for FW 
45 to implement AMs for these stocks, as overfishing is prevented 
during FYs 2010 and 2011, and any overages of the FY 2010 or 2011 ACLs 
would be addressed, at least partially, through differential DAS 
counting applicable to common pool vessels in FY 2011 or 2012, 
respectively (see Sec.  648.90(a)(5)(ii)). In making this 
determination, NMFS points out that, pursuant to section 304(a)(3) of 
the Magnuson-Stevens Act, it may only approve or disapprove measures 
proposed in a fishery management plan, amendment, or framework action, 
and may not change or substitute any measure in a substantive way. 
Therefore, since FW 45 does not include any measure to disapprove 
regarding AMs for these stocks, NMFS finds that it should approve the 
measures that are consistent with the Magnuson-Stevens Act and other 
applicable law for all of the other stocks with the understanding that 
the Council has committed to address the lack of specific AMs for these 
stocks in FW 47. This leads to the functional equivalence of 
disapproving and remanding the entire framework to address the lack of 
a required measure, but without sacrificing the implementation of those 
measures that are needed to ensure conservation for all of the other 
stocks.
    Comment 3: Oceana suggested that FW 45 must include AMs for 
yellowtail flounder caught by the Atlantic sea scallop fishery, based 
on the premise that the FMP must include measures that account for all 
catches of regulated species and ocean pout stocks by other fisheries. 
Oceana acknowledged that the Council developed AMs to account for 
yellowtail flounder catch in the scallop fishery as part of Amendment 
15 to the Atlantic Sea Scallop FMP. However, they are concerned that 
such AMs will not become effective until at least 6 months into FY 2011 
for the scallop fishery (the scallop FY begins on March 1 of each year) 
and may not be adequate to ensure that any overages of the FY 2010 
yellowtail flounder sub-ACLs allocated to the scallop fishery are 
addressed during FY 2011. Further, they claimed that it is unclear how 
the proposed Amendment 15 yellowtail flounder AMs for the scallop 
fishery

[[Page 23057]]

would be implemented in FY 2011, particularly if preliminary data 
indicate that the yellowtail flounder sub-ACLs for the scallop fishery 
may be exceeded. They suggested that NMFS should better explain how 
such AMs would be implemented during FY 2011. In addition, Oceana 
recommended that NMFS implement an inseason closure provision as an 
interim measure to prevent excessive harvest of yellowtail flounder 
until the Amendment 15 AMs become effective, pursuant to the National 
Standard 1 Guidelines at Sec.  600.310(g)(2).
    Response: The AMs applicable to the NE multispecies fishery are 
consistent with the National Standard 1 Guidelines and sufficient to 
prevent overfishing on each stock by all components of the fishery that 
catch regulated species and ocean pout, including yellowtail flounder 
catch by scallop vessels prior to the implementation of measures 
proposed in Amendment 15 to the Atlantic Sea Scallop FMP. If these 
components of the fishery exceed their allocations, and the overall ACL 
for a particular stock is exceeded, the AMs applicable to the NE 
multispecies fishery, including those specified for sectors and the 
common pool, will be triggered to ensure that overfishing does not 
occur on the stock as a whole (see Sec.  648.90(a)(5)(ii)).
    The proposed rule for Amendment 15 to the Atlantic Sea Scallop FMP 
published on April X, 2011 (76 FR XXXXX). This rule, and its associated 
EIS, contains a complete description of the yellowtail flounder AMs for 
the scallop fishery, including the closure of specific statistical 
areas that have the highest bycatch of yellowtail flounder by the 
scallop fishery if either the GB or SNE/MA yellowtail flounder sub-ACL 
allocated to the scallop fishery is exceeded in the previous FY. This 
rule also clarifies the Council proposal that any overage of either the 
GB or SNE/MA yellowtail flounder sub-ACLs allocated to the scallop 
fishery for FY 2010 shall have a resulting AM applied as soon as 
Amendment 15 is implemented during FY 2011, but only if the FY 2010 
overall ACL for SNE/MA yellowtail flounder is exceeded.
    As explained in the response to Comment 2 above, pursuant to 
section 304(a)(3) of the Magnuson-Stevens Act, NMFS may only approve or 
disapprove measures proposed in a fishery management plan or amendment, 
and may not change or substitute any measure in a substantive way. 
Therefore, NMFS does not have the legal authority to implement AMs to 
account for potentially excessive yellowtail flounder bycatch in the 
scallop fishery through this final rule. Such AMs were not adopted by 
the Council in FW 45, and the AMs in place for yellowtail flounder 
stocks for FY 2011 are sufficient to address any excessive catch by the 
scallop fishery until the AMs proposed in Amendment 15, if approved, 
become effective. Finally, both the common pool and sector AMs 
currently in place are adequate to ensure that overfishing does not 
occur on yellowtail flounder, even if the implementation of Amendment 
15 is delayed until later in FY 2011. As of March 22, 2011, available 
data indicated that the scallop fishery caught 76,508 lb of GB 
yellowtail flounder and 401,313 lb of SNE/MA yellowtail flounder during 
FY 2010 in the scallop fishery (March 1, 2010, through February 28, 
2011). This represents 24 percent of the GB yellowtail flounder and 135 
percent of the SNE/MA yellowtail flounder allocated to the scallop 
fishery in the FW 44 final rule. It is projected that the common pool 
will only harvest 7.7 mt (16,976 lb) of its 75-mt (165,347-lb) sub-ACL 
for SNE/MA yellowtail flounder, leaving 148,371 lb of SNE/MA yellowtail 
flounder unharvested during FY 2010. In addition, all sectors have 
cumulatively caught only 42.6 percent (100 mt, or 220, 462 lb) of the 
overall sub-ACL of this stock allocated to sectors (234.7 mt, or 
517,425 lb) through March 12, 2011. Therefore, even after incorporating 
the 103,689 lb (47 mt) of SNE/MA yellowtail flounder caught by the 
scallop fishery in excess of the allocation to that fishery during FY 
2010, it is highly unlikely that the overall FY 2010 ACL for SNE/MA 
yellowtail flounder will be exceeded, and that the implementation of 
any AMs to prevent overfishing of this stock will be necessary. While 
it is still too early to accurately predict future bycatch rates, based 
upon available data, it is unlikely that the scallop fishery bycatch of 
yellowtail flounder during FY 2011 will exceed allocated sub-ACLs 
before Amendment 15 AMs, if approved, become effective. Thus, the 
current lack of scallop-specific AMs is not a serious conservation or 
management problem in the fishery.
    Finally, Oceana's recommendation to establish an interim in-season 
closure AM is not required by applicable law. Neither the Magnuson-
Stevens Act nor the National Standard 1 Guidelines mandate the use of 
fishery closures or the use of in-season controls as AMs. Reactionary 
AMs similar to the differential DAS counting AM may be used and can be 
are just as valid as inseason AMs. Although an FMP can include in-
season closures, under the cited national standard guideline, neither 
NMFS nor the Council is obligated to institute such closures. In-season 
closures are merely one tool that may be used by the Council and NMFS 
to prevent overfishing and ensure that ACLs are not exceeded. In any 
event, short of a temporary emergency action or Secretarial amendment, 
NMFS is not in a position to implement this kind of AM in deciding 
whether to approve or disapprove FW 45. Accordingly, NMFS has not 
implemented yellowtail flounder AMs for the scallop fishery through 
this final rule.

Status Determination Criteria for Pollock

    Comment 4: Both PEW and an industry group (NSC) supported revisions 
to the status determination criteria for pollock and its associated 
revisions to stock status and ABCs and ACLs. Both groups applauded the 
rapid incorporation of updated scientific information into the FMP, 
with the industry group stating that such measures ensure that 
significant economic benefits of higher catch limits for this species 
will continue in future FYs.
    Response: NMFS agrees that it is appropriate to incorporate updated 
scientific information into management measures as quickly as possible. 
Therefore, the proposed revisions to the status determination criteria 
for pollock and associated ABCs and ACLs are implemented through this 
action.

Rebuilding Program for GB Yellowtail Flounder

    Comment 5: PEW opposed the proposed reduction of the GB yellowtail 
flounder rebuilding program from the existing 75-percent probability of 
success to a 50-percent probability of success. PEW stated that a 50-
percent probability of success is not adequate because the chance of 
failure is too high. They further stated that maximizing catch should 
not be the highest priority when managing the rebuilding of an 
overfished stock. They suggested that the existing rebuilding program 
with a minimum 75-percent probability of success should be maintained, 
noting that typical statistical analyses rely upon a 95-percent 
probability of success.
    Response: The decision to extend the GB yellowtail flounder 
rebuilding program is based on a number of factors beyond simply 
increasing catch over the short term. Updated stock assessment 
conducted by the TRAC indicated that the strength of the 2005 year 
class was much lower than originally estimated. Therefore, the stock is 
no longer

[[Page 23058]]

expected to rebuild by 2014 with a 75-percent probability of success. 
Although extending the rebuilding timeframe to 10 years reduces the 
probability of success to 50 percent, the extension is still within the 
probability limits recognized by courts which have reviewed challenged 
FMPs. Although a rebuilding program with a higher probability of 
success would be more likely to rebuild overfished stocks within 
established rebuilding timeframes than one with a lower probability, 
based on analysis supporting FW 45, the revised rebuilding program is 
still capable of rebuilding the stock within the established rebuilding 
period. Faced with this information, the Council elected, consistent 
with National Standard 8, to revise the rebuilding program for this 
stock in way to minimize the adverse economic impacts on fishing 
communities to the extent practicable, without compromising the 
conservation requirements of the FMP or the Magnuson-Stevens Act. NMFS 
agrees with the Council that allowing for increased catch over the 
short-term, while still ending overfishing and enabling the stock to 
rebuild more effectively, balances the multiple and somewhat competing 
objectives of the national standards of the Magnuson-Stevens Act. 
Further, extending the rebuilding timeframe increases the capacity of 
the Council to negotiate yearly TACs with Canadian representatives 
through the TMGC process, as Canadian law does not have a requirement 
for a defined rebuilding period. Maintaining successful collaborative 
management with Canada is crucial to ensuring the effective management 
of this transboundary stock by preventing overfishing and continuing to 
rebuild this overfished stock. Therefore, NMFS approves and implements 
the proposed revisions to the GB yellowtail flounder rebuilding 
program.

ACLs

    Comment 6: Oceana recommended that NMFS disapprove the proposed 
allocation of yellowtail flounder to the scallop fishery because it 
relies upon an outdated analysis of the expected catch of yellowtail 
flounder by the scallop fishery and is inconsistent with the use of the 
best available scientific information mandated by National Standard 2. 
Instead, they recommend that NMFS implement allocations that are based 
on updated estimates of actual anticipated yellowtail flounder catch by 
the scallop fishery during FY 2011.
    Response: NMFS recognizes that there are updated estimates of 
anticipated catch of yellowtail flounder by the scallop fishery. 
However, as noted in the FW 45 EA, there is uncertainty associated with 
these estimates. For example, Table 113 of the FW 45 EA illustrates 
that scallop catches of yellowtail flounder have not shown clear 
trends, despite the increased abundance of yellowtail flounder in 
recent years. If the updated estimates of yellowtail flounder bycatch 
underestimate actual catch by the scallop fishery, as implied in 
Oceana's comment, then the yellowtail flounder sub-ACLs allocated to 
the scallop fishery are likely to be exceeded, which could result in 
overfishing this stock. Overages of the yellowtail flounder sub-ACL, if 
leading to the overage of the overall ACL for a stock, would trigger 
AMs for the directed groundfish fishery to account for such an overage 
and ensure that overfishing does not occur in the future. Any AMs that 
may be triggered by exceeding this sub-ACL could redistribute either 
common pool or sector fishing effort, resulting in adverse biological 
impacts on a wider range of species compared to the existing 
allocations. In addition, lowering the yellowtail flounder allocations 
to the scallop fishery based upon this updated information puts much 
more total revenue and optimum yield at risk than maintaining the 
existing allocations, particularly if AMs are triggered and the 
available scallop or yellowtail flounder catch is not fully harvested. 
Although updated estimates of the expected yellowtail flounder bycatch 
in the scallop fishery are less than the existing allocations, 
maintaining the existing allocations to the scallop fishery, on 
balance, will likely reduce the chance of a derby fishery in the 
scallop fishery, better achieve the biological targets for both 
scallops and yellowtail flounder, and place less revenue and optimum 
yield at risk for both fisheries. Thus, there are potentially 
substantial adverse economic and biological impacts associated with 
revising these allocations using the updated bycatch estimates.
    As noted above, NMFS may only approve or disapprove measures 
proposed in a fishery management plan or amendment, and may not change 
or substitute any measure in a substantive way. The yellowtail flounder 
allocation to the scallop fishery is a continuation of the allocation 
implemented by FW 44. NMFS cannot substitute another alternative for 
this provision as part of this final rule. Even if NMFS could 
disapprove the FW 45 yellowtail flounder allocation to the scallop 
fishery, the yellowtail flounder allocation to the scallop fishery for 
FY 2011 would revert to that implemented by FW 44 which is the same as 
proposed in FW 45. Therefore, NMFS has not revised the FY 2011 
yellowtail flounder allocations to the scallop fishery in this final 
rule.

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

    Comment 7: One industry group (NSC) strongly supported the proposed 
action to disapprove the FY 2011 GB yellowtail flounder U.S./Canada 
Management Area TAC and associated ABC and ACLs, and to implement a 
revised FY 2011 TAC, ABC, and ACL for this stock based upon revised 
recommendations of the TMGC following the recent adoption of IFACA. 
They noted that the adoption of IFACA represents new information and 
unforeseen circumstances that justify the use of emergency Secretarial 
authority to revise this TAC. They also group suggested that the 
updated TAC prevents overfishing and rebuilds stock consistent with 
broader goals of section 304(e) of the Magnuson-Stevens Act, provides 
very important economic benefits to both the groundfish and scallop 
fisheries, and results in an increased chance of achieving OY in these 
fisheries.
    Response: NMFS agrees with the substance of this comment, although, 
as noted above in the background section of this preamble, instead of 
disapproving the FW 45 TAC for this stock, NMFS has approved it, 
because the originally proposed TAC is still consistent with the FMP 
and applicable law. However, NMFS is replacing the FW 45 TAC for this 
stock with the revised FY 2011 TAC, pursuant to emergency Secretarial 
authority, for the reasons stated in the preamble of the proposed rule 
for this action.

GOM Cod Spawning Protection Area

    Comment 8: Four individual private recreational anglers opposed the 
proposed GOM Cod Spawning Protection Area, while one environmental 
group (PEW) and one community group (PERC) strongly supported the 
implementation of this area. While one recreational angler was opposed 
to closure areas in general, the other three anglers indicated that 
such a closure unnecessarily and unfairly prevents small private 
recreational vessels from accessing cod closer to shore. Two of these 
respondents suggested that the GOM cod stock is improving and does not 
warrant further action to protect spawning aggregations. They indicated 
that, if further protection

[[Page 23059]]

for this stock is necessary, they would prefer alternative measures, 
including possession or size limits. One respondent also claimed that 
fishing with hook gear does not disturb spawning aggregations. In 
contrast, both PEW and PERC supported this provision because it was 
based on a careful analysis of available scientific information. They 
recommended that the Council and NMFS should continue to identify and 
protect additional key habitat areas for spawning fish. Further, PERC 
advised that mid-water trawl gear should not be allowed in this area 
because they claim that this gear catches large amounts of groundfish 
stocks and would undermine efforts to rebuild overfished stocks.
    Response: NMFS agrees that the GOM cod stock is recovering. The 
latest stock assessment, the Groundfish Assessment Review Meeting 
(GARM) III, indicates that the stock is nearly rebuilt (i.e., that SSB 
is nearly at the level to sustain MSY), but notes that the success of 
continued rebuilding relies upon the strength of recent year classes, 
particularly the 2003 and 2005 year classes. Therefore, without 
continuing high levels of recruitment, the stock may not be able to 
achieve and maintain a high level of biomass.
    Council efforts to specifically protect spawning aggregations of 
GOM cod date back to the implementation of FW 26 in 1999 (January 15, 
1999; 64 FR 2601). That action revised the existing GOM Rolling Closure 
Areas established under FW 25 (March 31, 1998; 63 FR 15326), and 
reclassified their designation as ``inshore `cod spawning' closures.'' 
The intended purpose of such measures under FW 26 was to protect cod 
during the spawning season, because cod stocks are ``particularly 
vulnerable to fishing pressure'' during spawning periods. Thus, since 
1998, commercial fishing vessels have been excluded from areas in which 
cod are likely to be spawning. However, private recreational and 
charter/party vessels, including those fishing with gear capable of 
catching groundfish, have been able to access these areas even during 
the spawning season for GOM cod.
    As noted in the FW 45 EA and the preamble to the proposed rule for 
this action, the GOM Cod Spawning Protection Area is intended to 
provide protection to spawning cod by limiting all fishing activities 
using gear that may catch groundfish in a discrete area and during a 
time in which cod spawning activity is documented to be occurring. The 
area and season proposed in FW 45 was based on research conducted by 
the University of New Hampshire in collaboration with the Northeast 
Consortium. This research represents the first study in which western 
Atlantic cod were examined on such a fine scale to determine both 
temporal and spatial distribution of this species. According to this 
research, cod spawning within the GOM Cod Spawning Protection Area 
exhibit site fidelity, congregate in this specific area for the 
duration of the spawning season, and return to this area each year to 
spawn. These fish represent a ``discrete management unit'' that is 
confirmed by genetic study, and constitute the largest distinctly 
identified spawning group left in the western Atlantic Ocean. Further, 
this research documents that trawl-caught fish are affected by fishing 
activity, requiring several days to resume normal behavioral patterns 
following capture. Finally, this study reiterated a concern expressed 
by members of the fishing industry and state resource management 
agencies that the recreational fishing fleet, particularly charter/
party vessels, that continue to be able to access spawning aggregations 
of cod may decrease the rate at which the GOM cod stock rebuilds. Thus, 
continued fishing pressure or disruption to spawning activity could 
adversely affect cod recruitment within the GOM.
    As proposed, the GOM Cod Spawning Protection Area prohibits both 
commercial and recreational vessels fishing with gear considered to be 
capable of catching groundfish from fishing in this area from April 
through June of each year. Under this measure, all vessels are treated 
equally, and neither group has access to this area during this time. 
This is in contrast to the existing GOM Rolling Closure Areas in that 
commercial vessels are prohibited from fishing for groundfish in these 
areas, but recreational vessels can target groundfish in these areas 
throughout the spawning season. Although the GOM Cod Spawning 
Protection Area would essentially close some near-shore fishing grounds 
to recreational vessels during the spawning season, this measure would 
not eliminate small vessel access to available cod resources. This area 
is relatively small (roughly 82 square miles, or 212 square km) and 
represents the only area closure applicable to recreational vessels at 
all, let alone during the spawning season. Therefore, recreational 
vessels have access to available cod resources in other locations and 
throughout the rest of the FY. Finally, while measures such as 
possession or size limits are capable of affecting fishing mortality, 
such measures cannot protect or improve recruitment in the same way 
that area closures can. FW 45 does not propose to further reduce 
fishing mortality on this stock. Instead, this provision is intended 
specifically to reduce fishing activity on spawning aggregations and, 
in turn, preserve opportunities for successful recruitment of this 
stock in the future. Because the preservation of sufficient levels of 
recruitment is critical for the continued success of efforts to rebuild 
GOM cod, possession or size limits would not effectively achieve the 
objectives for the GOM Cod Spawning Protection Area in FW 45. Existing 
regulations, including the GOM Seasonal Rolling Closure Areas at Sec.  
648.81(f) and the Sector Rolling Closure Areas at Sec.  
648.81(f)(2)(vi), already prohibit vessels fishing on either a sector 
or a common pool trip from targeting regulated species and ocean pout 
in this area during April and May. For these reasons, NMFS has approved 
the GOM Cod Spawning Protection Area, including the proposed 
prohibition of midwater trawl gear fishing in this area during June of 
each year.

Handgear A and B Measures

    Comment 9: Two commercial fishermen strongly supported any measures 
that would benefit small vessels fishing near shore with handgear. One 
of these individuals indicated that fishing with handgear has no 
detrimental effects to stock recovery or bycatch because all fish can 
be released alive. Because they consider handgear to be a more 
sustainable gear type, PERC further stated that NMFS should expand 
opportunities for the use of handgear instead of restricting their trip 
limits.
    Response: NMFS believes the measures implemented by this final 
rule, including revisions to handgear trip limits, exemption of 
handgear vessels from common pool dockside monitoring requirements, and 
access to seasonal closure areas encourage participation in the NE 
multispecies fishery by handgear vessels, and minimize economic impacts 
to such vessels, without compromising efforts to end overfishing and 
rebuild overfished stocks.
    Comment 10: The NEHFA and PERC suggested that handgear vessels 
should be given a specific sub-ACL to avoid being adversely impacted by 
potentially excessive catch by common pool vessels.
    Response: The Council considered specifying a specific sub-ACL for 
handgear vessels during the development of FW 45, but did not 
ultimately adopt such a measure due to a concern that allocation 
decisions

[[Page 23060]]

cannot be implemented through a FW action. The Council ultimately 
concluded that such allocations must rather be implemented through an 
amendment to the FMP because they are considered substantial revisions 
to existing management measures and require additional public input. 
NMFS agrees with this interpretation.
    Comment 11: The NEHFA and one commercial fisherman supported the 
proposed revisions to the cod trip limits applicable to handgear 
vessels. They indicated that such revisions will provide relief from 
the impacts of the ``race to fish'' during the early part of the FY in 
the common pool.
    Response: NMFS agrees, and has implemented these revisions through 
this final rule.
    Comment 12: One commercial fisherman, PERC, and the NEHFA expressed 
support for the proposed requirement for handgear vessels to be issued 
a LOA to fish south of the GOM RMA for GB cod. NEHFA recommended that 
vessel owners could request a LOA annually when renewing their NE 
multispecies permits, declare through the permit renewal application 
that the vessel would be fishing south of the GOM RMA for the duration 
of the FY and not have to request a LOA, or be issued a LOA 
automatically through a Web site similar to the existing NMFS VTR Web 
site. This group contends that these recommendations would help 
minimize the burden on fishermen and NMFS. In addition, NEHFA was 
concerned that the issuance of the LOA would adversely impact the 
ability of vessel owners to participate in other fisheries.
    Response: NMFS implements the requirement for handgear vessels 
fishing south of the GOM RMA to either obtain a paper LOA or declare 
their intent to fish south of the GOM via VMS through this final rule. 
Under the LOA provisions implemented through this final rule and 
existing protocols, a vessel owner could specify that he/she intends to 
fish south of the GOM RMA for the entire year and be issued a LOA to 
reflect that decision during the annual renewal of his/her NE 
multispecies permit. Automated or web-based declaration and issuance of 
this LOA would require further consideration by NMFS, including 
ensuring that such declarations do not compromise the enforceability of 
the LOA, would not unintentionally restrict the ability of vessel 
operators to fish in the area of their choosing, and can be technically 
administered. NMFS has the authority to revise the mechanism by which 
such LOAs are issued to fishery participants and could implement the 
recommendations offered by the public in the future if feasible. Any 
changes to how LOAs are issued will be communicated to all affected 
stakeholders through a permit holder letter, as appropriate.
    Comment 13: The NEHFA supported the proposed exemption of vessels 
issued a limited access NE multispecies Handgear A permit from the GB 
Seasonal Closure Area and allowing such vessels to fish in the Sector 
Rolling Closure Areas in the GOM. The NEHFA noted that Handgear A 
vessels are currently precluded from fishing in the GOM until June or 
July based on the existing GOM Rolling Closure Areas. This group stated 
that, without exemptions, Handgear A vessels will not remain 
economically viable due to competition with other gear types for 
available common pool sub-ACLs. They contested that the proposed 
exemptions would provide needed economic relief through increased 
access to traditional fishing grounds that are within reach of the 
small Handgear A vessels. Another commercial fisherman also supported 
these measures, stating that they would help small vessels compete 
against larger and more efficient vessels in the common pool. Both PEW 
and PERC supported promoting the use of handgear through these proposed 
measures, stating that handgear is the gear type with the least impacts 
to habitat and the fishery.
    Response: NMFS agrees with the comments, and this final rule 
implements the proposed exemption.

Dockside/Roving Monitoring Requirements

    Comment 14: The NSC questioned the utility of dockside/roving 
monitoring requirements, suggesting that FW 45 should eliminate such 
requirements completely. The NSC believes the current requirements to 
be highly inefficient, representing an unsustainable and unjustified 
cost to the fishing industry. Further, they suggested that NMFS should 
allow sectors to use dockside monitoring data as a proxy for dealer 
data in the weekly sector catch reports submitted to NMFS to increase 
the utility of the dockside/roving monitoring program. Finally, NSC 
indicated that roving monitors should not have to observe offloads to a 
truck and also to a dealer, asserting that roving monitors should only 
be required to observe offloads from the vessel to a truck, to increase 
the efficiency and reduce costs associated with these provisions.
    Response: The Council considered completely eliminating dockside/
roving monitoring requirements during the development of FW 45. 
However, due to lingering concerns over the ability to enforce existing 
provisions to monitor sector ACE and minimize incentives to misreport 
catch, the Council retained dockside/roving monitoring requirements in 
FW 45. NMFS may only approve or disapprove measures proposed in FW 45, 
and may not change or substitute any measure in a substantive way. 
Therefore, NMFS cannot eliminate dockside/roving monitoring 
requirements through this final rule.
    During the development of Amendment 16, it was anticipated that 
sectors would rely upon dockside/roving monitor data to document sector 
landings immediately following a vessel's offload until the official 
dealer reports become available approximately a week later. This 
practice has been discussed with sector managers through several sector 
workshops held during 2009 and 2010. NMFS recognizes that dockside/
roving monitoring data cannot currently be reported as part of the 
weekly sector catch reports submitted to NMFS based upon existing 
guidance and database structures. To date, many dockside/roving 
monitoring data are not systematically collected in a format that can 
be easily transferred to a catch monitoring database. Instead, they are 
often merely scanned images of a dockside/roving monitor report. NMFS 
has the regulatory authority to accept dockside/roving monitoring data 
in the future and may reconsider the acceptance of dockside/roving 
monitoring data if such data become available in an acceptable 
electronic format. Further, dealer landings, as documented through 
official dealer reports, have been the standard by which landings are 
monitored for many years, and were used as the basis for the 
calculation of potential sector contributions and, therefore, sector 
ACE. Accordingly, even if dockside/roving monitor data could be 
considered as a proxy for dealer landings in weekly sector catch 
report, dealer landings data would continue to be the official record 
of species landed by each federally permitted vessel.
    The Council required sectors to develop and implement an 
independent third-party weighmaster system satisfactory to NMFS for 
monitoring landings and utilization of ACE. The original intent of 
dockside/roving monitoring coverage was to verify landings of a vessel 
at the time it is weighed by a dealer to certify the landing weights 
are accurate as reported on the official dealer report for compliance 
purposes. Therefore, NMFS implemented regulations under

[[Page 23061]]

Amendment 16 that require that a roving monitor must observe the 
offloads from a vessel to a truck and again from the truck to a dealer, 
unless the vessel offloads directly to a dealer. These regulations were 
based upon a pilot program and existing dockside/roving monitoring 
programs developed in other regions and in Canada. During sector 
implementation workshops conducted in 2009 and 2010, and ongoing 
communications with sector managers, NMFS indicated that it would allow 
a roving monitor to only observe offloads from a vessel to a truck, 
provided a representative from the dealer ultimately receiving the fish 
was present at the time of the offload, and that all fish were weighed 
at the time of the offload. This ensures that the weight of fish 
offloaded corresponds to the weight of the fish recorded in the 
official dealer report, consistent with the intent of Amendment 16. 
Thus, existing regulations and protocols already allow for the behavior 
requested by the NSC in their comment.
    Comment 15: The NEHFA, PERC, PEW, and one commercial fisherman 
supported exempting vessels issued a limited access NE multispecies 
Handgear A or a Small Vessel Exemption permit or an open access NE 
multispecies Handgear B permit that is fishing in the common pool from 
the existing dockside/roving monitoring requirements. They stated that 
dockside/roving monitoring costs may be more than the value of fish 
landed on a particular trip and would make the operation of such 
permits economically unviable. The NEHFA also noted that many handgear 
vessels are launched and retrieved at public boat ramps, thereby 
creating logistical difficulties for waiting for the dockside/roving 
monitor to arrive because a boat may be forced to move off of the dock 
to accommodate the launching of other boats. This group also contended 
that the current system of monitoring landings is sufficient for these 
vessels due to the small amount of fish landed on each trip. Finally, 
PERC suggested that handgear vessels fishing in sectors should also be 
exempted from the dockside/roving monitoring requirements.
    Response: NMFS agrees that the costs associated with the existing 
dockside/roving monitoring requirements could make fishing with a 
Handgear A, Handgear B, or Small Vessel Exemption permit uneconomical 
for the reasons noted above and specified in FW 45. Therefore, NMFS 
implements the proposed exemption from the common pool dockside/roving 
monitoring requirements for these permit categories through this final 
rule. Because the Council did not adopt a provision that would have 
exempted sector vessels fishing with a handgear permit from the 
dockside/roving monitoring requirements as part of FW 45, NMFS cannot 
implement such a provision through this action.
    Comment 16: Three commercial fishermen and two commercial fishing 
industry groups (AFM and NSC) opposed the proposal to require dockside/
roving monitors to inspect the fish holds of vessels offloading 
groundfish. AIS, Inc., a dockside/roving monitoring service provider, 
also expressed concerns that the proposed requirement for dockside 
monitors to inspect fish holds presents safety issues. All commenters 
highlighted the risk of serious injury from having dockside/roving 
monitors board vessels, climb down ladders into the fish holds, and 
inspect the holds or other compartments for fish that have not been 
offloaded. AIS noted that there are no standards in FW 45 that address 
potentially dangerous conditions in inspecting holds, or requirements 
for vessels to provide a standardized safe boarding system. AIS also 
stated that there is no guidance as to how to inspect fish holds, 
including whether dockside monitors must inspect piles of ice or look 
for fish in other compartments, giving the impression that dockside/
roving monitors may be acting as enforcement personnel instead of data 
collectors. Several commenters suggested that this potential risk will 
force vessel owners to buy more insurance to ensure that they are 
adequately covered for any potential liability lawsuits that might 
result from this provision. In doing so, they contested that this would 
contradict the FW 45 economic analysis that indicates that this measure 
should not impact either vessel owners or service providers. They noted 
that, even if the dockside/roving monitoring service providers had 
sufficient insurance coverage, vessel owners might still be sued and 
face financial liability from the injury claims of individual dockside/
roving monitors. Further, they claimed that the proposed rule does not 
provide any rationale that enhanced enforceability is needed, or that 
underreporting is occurring. They contested that the existing 
provisions that require dockside/roving monitors to ask vessel 
operators if all fish have been offloaded, and classify providing false 
statements to dockside/roving monitors as a violation, should be 
sufficient to enforce this provision. They recommended that NMFS Office 
of Law Enforcement should inspect fish holds, instead of dockside/
roving monitors.
    Response: As noted throughout the development of Amendment 16 and 
FW 45 by both fishing industry representatives and NMFS, the transition 
to expanded sector management and ACLs increases incentives to 
misreport or under report catch and landings. Dockside/roving 
monitoring programs established in other regions of the United States 
and Canada that are managed by harvest quotas are considering, or have 
required, dockside/roving monitors to inspect fish holds to ensure that 
all fish are offloaded. The potential for dockside/roving monitors to 
inspect fish holds was explicitly discussed throughout the development 
of Amendment 16 as part of both the Council process and parallel 
meetings to discuss the development of sector measures sponsored by the 
Gulf of Maine Research Institute. Section 4.2.3.5.4 of the Amendment 16 
FEIS documents this discussion and clearly indicates that to be 
approved as a dockside/roving monitor, a dockside/roving monitor must 
meet several criteria, including:

    ``Physical capacity for carrying out the responsibilities of a 
dockside/roving monitor pursuant to standards established by NMFS 
such as being certified by a physician to be physically fit to work 
as a dockside/roving monitor. The physician must understand the 
monitor's job and working conditions, including the possibility that 
a monitor may be required to climb a ladder to inspect fish holds.''

Therefore, the general public, including both vessel owners and 
dockside/roving monitoring service providers, were well aware of the 
potential that dockside/roving monitors might be required to inspect 
fish holds and the risks that such activity might incur. However, no 
comments opposing this practice were raised to NMFS during the public 
comment period on the Amendment 16 proposed rule.
    The final rule implementing Amendment 16 measures did not require 
dockside/roving monitors to inspect the fish holds based, in part, on a 
pilot dockside/roving monitoring program conducted in the summer of 
2009. Similar to comments received on this action, some safety concerns 
were identified with inspecting fish holds during the pilot program, 
even though fish holds were actually inspected as part of that pilot 
program. As a result, in the Amendment 16 proposed (74 FR 69382; 
December 31, 2009) and final rules, NMFS intentionally included 
language in the dockside/roving monitoring program operational

[[Page 23062]]

standards at Sec.  648.87(b)(5)(ii)(B)(1) that allow individual 
dockside/roving monitors or service providers to inspect fish holds if 
they elect to do so.
    Section 311 of the Magnuson-Stevens Act provides the Secretary of 
Commerce with the general authority to enforce the provisions of the 
Magnuson-Stevens Act. NMFS acknowledges that existing dockside/roving 
monitoring provisions make it a violation for a vessel operator to 
provide false statements to a dockside/roving monitor about whether all 
catch is offloaded. However, that is just one of many ways to ensure 
compliance with existing regulations. NMFS does not agree that such 
measures are completely sufficient to ensure that all catch is 
offloaded. The only way to validate statements made by a vessel 
operator is to actually inspect fish holds. NMFS Office of Law 
Enforcement personnel already have the authority to board and inspect 
vessels. However, requiring dockside/roving monitors to also inspect 
fish holds, as anticipated during the development of Amendment 16, 
provides another means to ensure that vessel operators are complying 
with existing requirements, and that all fish that are landed are 
recorded in dealer databases or other data sources such as dockside/
roving monitor reports. Dockside/roving monitors are not enforcement 
personnel, but their observations, including the reports summarizing 
the offloads of individual trips, are available to law enforcement 
personnel, as described in Section 4.2.3.5.4 of the Amendment 16 FEIS 
and the existing regulations at Sec.  648.87(b)(4). The training 
provided to dockside/roving monitors by NMFS explicitly states that it 
is the dockside/roving monitor's responsibility to account for all 
catch, whether or not it is properly weighed or recorded by other 
parties. Monitors must record any species that is not weighed in their 
incident report to facilitate compliance with existing requirements. 
Therefore, based on the need to ensure that NMFS is accurately 
monitoring the amount of fish landed, NMFS has retained the requirement 
that dockside/roving monitors must inspect fish holds as part of this 
final rule.
    NMFS recognizes that dockside/roving monitors must proceed with 
caution when conducting inspections of fish holds. As part of the 
dockside/roving monitoring training curriculum and certification 
process overseen by NMFS, individual dockside/roving monitors are 
trained and tested for competency in safety procedures, including 
slips, trips, and falls; electrical safety; climbing stairs and 
ladders; overhead dangers; unstable items; and fire. In addition, NMFS 
will likely require all previously certified dockside/roving monitors 
to attend a refresher safety training session on issues specific to 
boarding vessels and inspecting fish holds. Based on examples in other 
U.S. and Canadian fisheries, NMFS is currently developing standardized 
protocols that outline the major elements that dockside/roving monitors 
must comply with when inspecting fish holds. These elements include, 
but are not limited to, requesting permission from the vessel captain 
to board a vessel, following the instructions of the vessel's captain 
and crew to safely enter and exit the fish holds, and inspecting only 
areas of the vessel that would normally be used to store fish. Such 
standards will be integrated into the dockside/roving monitoring 
training curriculum developed and conducted by the Northeast Fishery 
Observer Program.
    The dockside/roving monitor service provider approval standards 
adopted in Amendment 16 explicitly included the requirement for service 
providers to have adequate insurance to cover injury, liability, or 
accidental death that might befall dockside/roving monitors. NMFS 
recognizes that despite such coverage, individual dockside/roving 
monitors still have the capacity to bring a lawsuit against vessel 
owners for any injuries incurred while inspecting fish holds. NMFS 
encourages sectors and dockside/roving monitor service providers to 
seek agreement on how to best address the issues and problems raised by 
the comment. As to whether FW 45 sufficiently considers possible 
increases in cost for liability insurance for inspecting fish holds, 
NMFS does not have sufficient information to do so. While NMFS has 
information on the amount and type of insurance dockside/roving 
monitoring service providers have purchased, it would be difficult for 
NMFS to speculate on the costs of additional insurance for individual 
vessels. However, NMFS is committed to reviewing the requirement to 
inspect fish holds and the costs associated with it over time as more 
information becomes available.
    Comment 17: Two industry groups (AFM and NSC) supported the 
proposal to delay the industry's responsibility for dockside and at-sea 
monitoring costs until FY 2013. They stated that this accurately 
reflects the fishing industry's inability to pay for the high costs of 
such monitoring at this time. However, the NSC cautioned that the 
economic viability of the fishing industry is not likely to improve 
sufficiently to enable sectors to cover such monitoring costs in FY 
2013. Accordingly, they recommended that the Council and NMFS should 
consider further postponing industry responsibility for such costs 
until the fishing industry is profitable again. In contrast, PEW 
suggested that sectors should be in a better position to assume 
monitoring costs in FY 2013. PEW offered that the proposed delay would 
help ensure the success of the established sector program, arguing that 
the long-term benefits of fishing under sectors outweigh any potential 
impacts associated with reduced dockside monitoring in the short term.
    Oceana opposed delaying industry responsibility for dockside and 
at-sea monitoring costs, claiming that NMFS does not have the authority 
to modify sector monitoring provisions in a FW action because such a 
measure would be a fundamental change in the FMP and that implementing 
this delay through a FW action would circumvent the public process. 
Citing a recent court case (Oceana, Inc. v. Evans, 384 F. Supp. 2d 203, 
255 (D.DC 2005)), they contended that such measures can only be 
modified through an amendment, with an associated NEPA document. They 
also suggested that the proposed delay would undermine the Magnuson-
Stevens Act requirements to monitor bycatch and implement measures to 
ensure accountability for ACLs, especially considering the concerns 
expressed by NMFS in a November 15, 2010, letter to the Council 
highlighting concerns about the potential limitation of NMFS funding in 
2012 to support dockside and at-sea monitoring. FWW echoed this 
concern, noting that this might cause a ``gap in the necessary 
enforcement required due to increased incentives for high-grading, 
misreporting, and underreporting.'' They recommended that delaying or 
removing monitoring costs should be based on vessel size/capacity, or 
an individual business's revenue.
    Response: NMFS recognizes that the costs of requiring the fishing 
industry to pay for sufficient at-sea monitoring coverage could reduce 
profitability. However, a FMP must continue to maintain measures that 
prevent overfishing and promote the long-term health and stability of 
the fishery, as required by section 303(a) of the Magnuson-Stevens Act. 
As noted above, NMFS is concerned that relying exclusively on available 
NMFS funding for at-sea monitoring coverage during FY 2012 may reduce 
the amount of at-sea monitoring coverage available during that FY due 
to the yet uncertain amount of available NMFS funding for FY 2012. NMFS 
agrees that delaying industry responsibility for paying for at-

[[Page 23063]]

sea monitoring coverage may reduce the amount of at-sea monitoring 
coverage during FY 2012 and undermine efforts to obtain accurate 
information regarding catch in the fishery. Therefore, NMFS has 
disapproved the proposed measure to delay industry responsibility for 
the costs at-sea monitoring coverage during FY 2012. NMFS expects at 
least some funding that will offset at least some of the at-sea 
monitoring coverage costs during FY 2012. Accordingly, the fishing 
industry would only be responsible for the costs of at-sea monitoring 
coverage that is not accounted for by available Federal funding.
    As noted in the FW 45 EA, delaying industry responsibility for 
funding dockside/roving monitoring coverage in FYs 2011 and 2012 will 
immediately reduce operational costs to industry, without reducing the 
availability of landings information. This is because the dockside/
roving monitoring data are primarily used for enforcement purposes, not 
catch monitoring. The trip-end hail report, in conjunction with the 
requirement for dockside/roving monitors to inspect fish holds 
implemented by this final rule, is intended to provide sufficient 
information to ensure compliance with existing regulations. Moreover, 
NMFS is expected to have sufficient funding in FY 2011 to continue the 
levels of observer and at-sea monitoring coverage for both sector and 
common pool trips implemented in FY 2010, and to augment that with 
sufficient dockside/roving monitoring coverage for trips not monitored 
by observers or at-sea monitors. Even if insufficient funding available 
to NMFS results in a short-term reduction in dockside/roving monitoring 
data, NMFS agrees that such reductions in data would likely be offset 
by long-term benefits of fishing under sectors. Therefore, NMFS is 
approving the delay in industry responsibility for dockside/roving 
monitoring costs through this final rule. Further changes could be 
considered by the Council through a future management action, but 
because NMFS does not have the authority to revise measures adopted by 
the Council in FW 45, NMFS cannot unilaterally postpone industry 
responsibility for such costs beyond FY 2012 through this action.
    NMFS disagrees that the proposed postponement of industry 
responsibility for dockside/roving and at-sea monitoring costs 
represents a fundamental revision of the FMP and would circumvent the 
public process. First, the fundamental dockside/roving and at-sea 
monitoring provisions implemented by Amendment 16 are retained. The 
only aspect of these provisions that changes through FW 45 is the 
entity paying for the costs of such monitoring. Although NMFS will pay 
for at last some of the costs of dockside/roving and at-sea monitoring 
coverage for FYs 2011 and 2012, and will endeavor to achieve the 
coverage requirements specified in Amendment 16 for industry-funded 
dockside/roving and at-sea monitoring coverage, these changes do not 
constitute a fundamental change to the FMP requiring an amendment to 
the FMP. Second, the Council fully anticipated that measures adopted 
under Amendment 16 could be revised in the future through a FW action. 
This is documented in the Amendment 16 FEIS's executive summary when it 
states, ``The periodic adjustment process is modified so that all 
measures adopted can be adjusted on a framework action'' (see page 10 
of that document) and in Section 4.2.8. This was codified in the 
regulations at Sec.  648.90(a)(2)(iii) and (c)(1)(i). Both the 
Amendment 16 FEIS and the proposed regulations to implement Amendment 
16 measures were made available for extensive public comment. 
Therefore, because the fundamental aspects of the Amendment 16 sector 
and common pool monitoring measures are not affected by the proposed 
delay in responsibility for monitoring costs, and that the public was 
afforded substantial opportunity to comment on the ability of the 
Council and NMFS to revise existing management measures through a FW 
action as part of the Amendment 16 proposed rule, NMFS has not remanded 
this provision back to the Council for implementation through an 
amendment to the FMP.

Sector Measures

    Comment 18: FWW claimed that it was unfair to distribute the PSCs 
of cancelled NE multispecies permits to all valid limited access NE 
multispecies permits, suggesting that it was a poor use of available 
and ``un-owned'' quota. Instead, they recommended that the PSC of 
cancelled permits should be distributed to state-operated permit banks. 
They contended that this would signify a return to the general public 
for the use of its resources.
    Response: NMFS disagrees that it is unfair to distribute the PSCs 
of cancelled NE multispecies permits to all valid limited access NE 
multispecies permits. The National Standard 4 Guidelines state that, if 
it becomes necessary to allocate or assign fishing privileges among 
U.S. fishermen, such allocations shall be ``fair and equitable to all 
such fishermen.'' The proposed distribution to all valid limited access 
permits is consistent with National Standard 4 because it treats all 
permits equally and distributes PSCs associated with cancelled permits 
among all permits that may participate in the NE multispecies fishery. 
Therefore, NMFS implements this measure through this action.
    Comment 19: An individual commercial fisherman recommended that 
sector rosters should be reopened now that common pool trip limits are 
proposed. He contended that there was not enough information about 
potential common pool trip limits to make an informed decision whether 
to join a sector by either the September or December sector roster 
deadlines. The Council also suggested that NMFS consider reopening 
sector rosters for the reasons noted above following public input at 
the March 17, 2011, Groundfish Oversight Committee meeting.
    Response: As highlighted in Item 11 of this preamble and in a March 
23, 2011, letter to permit holders, based on industry input, NMFS is 
allowing for a limited opportunity for additional changes to FY 2011 
sector rosters to accommodate changes in vessel ownership that occurred 
after the submission of final sector rosters on December 1, 2010. This 
window to reopen FY 2011 sector rosters began on March 23, 2011, and 
will end on April 30, 2011. In future years, a window for additional 
sector roster changes would begin with the publication of proposed 
measures for the common pool for the following year and end on April 
30, and would be limited to ownership changes occurring after the 
December 1 roster deadline. This is intended to provide vessel owners 
with the information they need to make an informed decision about 
whether to participate in sectors during the following FY, without 
undermining public consideration of likely sector operations in the 
following fishing year by substantially revising sector rosters 
following an opportunity to comment on proposed sector operations 
plans.
    Comment 20: One industry group (NSSN) and the Council supported the 
proposed delay of the existing 14-day window for sectors to complete 
ACE transfers after the end of the FY to ensure that sectors had 
sufficient time to consider and incorporate final NMFS evaluations of 
sector catch before they sought to acquire additional ACE to rectify 
any overages of sector ACE from the previous FY.
    Response: NMFS agrees, and implements revisions to the existing 
regulations at Sec.  648.87(b)(1)(iii)(C) and (b)(1)(viii) to allow for 
additional time that might be necessary to determine

[[Page 23064]]

estimates of final sector catch and balance sector overages from the 
previous FY through this action.
    Comment 21: PEW expressed strong support for the approval of new 
sectors, including state-operated permit banks. They suggested that 
permit banks offer an important mechanism for preserving fishing 
opportunities for small-scale fishermen operating out of small ports 
and helping to protect against excessive consolidation in the fishery.
    Response: NMFS agrees and approved the creation of new sectors, 
including state-operated permit banks through this final rule.
    Comment 22: FWW stated that there was some conflicting language 
about the approval of new sectors as part of FW 45. In the preamble to 
the FW 45 proposed rule, they state that language suggests that new 
sectors have not been approved, yet language on page 39 of the FW 45 EA 
states that they are already approved and will become effective on May 
1, 2011. Overall, however, comments by FWW did not outright oppose the 
implementation of new state-operated permit bank sectors, but rather 
suggested that such permit banks are indicative of their underlying 
concern with the privatization that occurs with catch shares. They 
suggest an alternative approach that would allow catch shares to be 
rented out to eligible entities. This would avoid the need to fund 
permit banks with taxpayer dollars and allow the Federal government to 
control pricing so that cost of fishing is always reasonable and can 
facilitate participation of small vessels in the fishery, thereby 
allowing managers to prioritize environmental, economic, and social 
goals of the fishery.
    Response: Five new sectors were adopted by the Council in FW 45. 
However, to become effective, these sectors must still be approved by 
the Secretary through proposed and final rulemaking. Therefore, the 
language in the FW 45 EA incompletely described the process for 
approving sectors and their operations on a yearly basis. The Council 
adopted the creation these new sectors as part of FW 45, but they are 
not officially approved until the Secretary approves measures contained 
in FW 45 and the regulations implementing such provisions. Because the 
creation of these sectors is consistent with the FMP and applicable 
law, they are officially approved through FW 45 and implemented through 
this final rule. However, to operate on a yearly basis, all sectors 
must submit an operations plan and contract by specific deadlines. 
These yearly operations plans must further be approved by the sector 
through a separate rulemaking from the rulemaking to approve the 
creation of such sectors.
    In their comment, FWW suggested that rather than allocating fishing 
privileges to fishing entities, fishery managers should require 
eligible fishing entities to rent fishing rights. As noted above, NMFS 
cannot substitute existing management measures with FWW's suggested 
approach through this final rule. However, this approach could be 
considered by the Council through a future management action. 
Nevertheless, it should be noted that their proposal would likely 
increase operational costs to all vessel owners that are interested in 
actively participating in the NE multispecies fishery, as both small 
and large vessels would be potentially obligated to purchase catch 
shares at the beginning of each FY. Depending on other operational 
costs associated with each particular vessel, it may not be feasible to 
continue to participate in the fishery given such expenses. This could 
lead to economic impacts to both these entities and supporting fishing 
communities that would be beyond those associated with the current 
management regime. Further, it may not be fair and equitable to impose 
different costs on different vessels based on size alone. Accordingly, 
FWW's proposal may not be consistent with National Standards 4 and 8 of 
the Magnuson-Stevens Act, as summarized in FWW's comment.

Measures for FY 2011 Under RA Authority

    Comment 23: One commercial fisherman expressed concern that the 
proposed initial common pool trip limits for FY 2011 are insufficient 
to allow vessels to cover operational expenses. He stated that he 
prefers higher DAS counting rates and proportional increases in trip 
limits to allow vessel owners/operators to cover expenses and decrease 
bycatch by turning discards into landings. The Council also suggested 
that NMFS consider increasing trip limits and DAS counting so common 
pool trips are profitable and ACLs are not exceeded during FY 2011, 
following public input at the March 17, 2011, Groundfish Oversight 
Committee meeting.
    Response: Because the realized fishing activity and associated 
expenses for each vessel may be very different, as documented in the 
Amendment 16 FEIS, it is very difficult to determine the appropriate 
combination of trip limits and DAS counting rates that would ensure 
that all common pool trips are profitable. Some vessel owners/operators 
may elect to target some species early in the FY based on historic 
operations and operator knowledge, while others may prefer to operate 
later in the FY to target other species and capitalize on the generally 
higher prices during the winter when fish supply is lower. Therefore, 
any combination of trip limits and DAS rates would likely benefit some, 
but not all vessels operating in the common pool.
    The RA has the authority to revise trip limits and DAS rates to 
ensure that the common pool achieves, but does not exceed allocated 
sub-ACLs throughout the FY. Generally, NMFS has endeavored to ensure 
that the fishery remains open throughout the FY to provide the most 
flexibility in fishing operations to accommodate seasonal distribution 
of fish, fluctuations in market price, and operational preferences of 
vessel owners/operators. This was the approach employed in proposing 
initial FY 2011 common pool trip limits in the proposed rule for this 
action. The proposed FY 2011 DAS counting rate was based on a formulaic 
rate necessary to account for projected overages of specific sub-ACLs 
by the common pool during FY 2010. Because NMFS has the flexibility to 
adjust trip limits and DAS counting rates throughout the year, NMFS can 
adapt to fishing behavior to either increase or decrease trip limits 
and, to some degree, DAS counting rates. Therefore, NMFS implements the 
common pool trip limits and DAS counting rates outlined in Item 13 of 
this preamble for FY 2011. For some stocks, these trip limits reflect 
the highest trip limit from the range of trip limits considered in 
Table 16 of the proposed rule for this action to increase the 
profitability of common pool trips without compromising efforts to 
ensure that the common pool sub-ACLs are not exceeded during FY 2011. 
NMFS will continue to monitor catch rates and will adjust such measures 
as necessary to achieve the goals of the FMP, including increasing the 
profitability of individual trips, if available data suggest that such 
an action is warranted.

Corrections and Clarifications

    Comment 24: The NEHFA and one commercial fisherman expressed 
support for the clarification of PSC text to specifically clarify how 
PSCs will be calculated for handgear permits using landings histories 
of handgear permits during FYs 1996-2006.
    Response: As outlined in the preamble of the proposed rule for this 
action, NMFS believes these changes are necessary to accurately reflect 
the intent of the Council in Amendment 16 and the manner in which PSC 
are actually

[[Page 23065]]

calculated by NMFS starting in FY 2011. Therefore, these changes have 
been implemented through this final rule.
    Comment 25: One sector manager, commenting on the proposed rule to 
approve FY 2011 sector operation plans, commented in support of 
delaying the opening of the Eastern U.S./Canada Area only to common 
pool vessels until August 1, 2011, and allowing sector vessels to 
access this area on May 1, 2011. He noted that all sector vessels fish 
under a hard TAC in all areas, including the Eastern and Western U.S./
Canada Areas. He suggested that access to these offshore fishing areas 
when the weather is better during the summer months is very important 
for smaller trawl vessels that are not suitable for fishing in offshore 
waters during the winter.
    Response: As outlined in the preamble of the proposed rule for this 
action, NMFS proposed applying the delayed opening of the Eastern U.S./
Canada Area only to common pool vessels during FY 2011 for the reasons 
offered by the sector manager. Therefore, NMFS implements the measures 
originally proposed in the proposed rule for this action through this 
final rule.
    Comment 26: The NSC expressed support for the proposed change to 
the regulations at Sec.  648.87(b)(1)(i)(C) to clarify that any sector 
ACE carried over into the next FY would be calculated based on 10 
percent of the ACE originally allocated to the sector at the start of 
the previous FY. However, the NSC disagreed with the characterization 
of that proposed change in the preamble of the proposed rule for this 
action that states ``a NE multispecies sector may carry-over up to 10 
percent of its allocated ACE for each stock * * * into the following 
FY, provided the sector has not harvested more than 90 percent of its 
original allocation for that stock by the end of the FY.'' They contend 
that the preamble text suggests that if a sector leases in ACE from 
another and used more than 90 percent of its allocation, then it would 
not be able to carry over any ACE into the next FY. In doing so, this 
interpretation would destroy the utility of carry over provisions and 
distorts ACE trading system. They recommend that NMFS remove the 
contested preamble text from the final rule, as it could be used to 
interpret any ambiguities in the implementation of this provision in 
the future.
    Response: NMFS recognizes that the preamble text referenced in 
NSC's comment could be interpreted in a way that is counter to the 
intent of NMFS in proposing this correction. Consistent with the 
proposed regulatory text, the intent of NMFS was to merely clarify that 
the amount of ACE that can be carried over for each stock shall be 
calculated based upon the amount of ACE originally allocated to that 
sector. To more accurately reflect the intent of NMFS and the Council 
in originally adopting the original ACE carry-over provision in 
Amendment 16, NMFS has removed the disputed preamble text and inserted 
an example clarifying how NMFS will calculate ACE that can be carried 
over into the next FY into the preamble text for this final rule.

Changes From the Proposed Rule

    NMFS has made two changes to the proposed rule, including changes 
as a result of public comment and the disapproval of the proposed 
measure to delay industry responsibility for at-sea monitoring costs 
during FY 2012. In Sec.  648.87(b)(5)(i)(A)(1), the phrase ``As 
instructed by the Regional Administrator'' was added to the trip-start 
hail reporting requirements to enable the Regional Administrator to 
augment the data elements contained in this report to more effectively 
administer this provision and the associated dockside/roving monitor 
coverage levels on a yearly basis. This change allows the Regional 
Administrator to require that vessel operators declare whether an 
observer or at-sea monitor is assigned for a particular trip to 
facilitate the appropriate deployment of dockside/roving monitors in 
FYs 2011 and 2012 and achieve the desired coverage levels based on 
available funding, as described in Item 10 above. In addition, the 
regulations at Sec.  648.87(b)(1)(v)(B)(2) were revised to reflect that 
the fishing industry was responsible for developing and paying for any 
at-sea monitoring program developed starting in FY 2012.

Classification

    The Administrator, Northeast Region, NMFS, determined that FW 45 is 
necessary for the conservation and management of the NE multispecies 
fishery and that it is consistent with the Magnuson-Stevens Fishery 
Conservation and Management Act and other applicable laws.
    There is good cause under 5 U.S.C. 553(d)(3) to establish an 
effective date less than 30 days after the date of publication for the 
measures implemented by this final rule. The effective date of this 
action affects a parallel rulemaking to approve sector operations plans 
for the start of FY 2011 on May 1, 2011. Therefore, these actions must 
be in effect at the beginning of FY 2011 to fully capture their 
environmental and economic benefits of FW 45 measures as well as the FY 
2011 sector operations plans. The time available for FW 45 was 
constrained by multiple factors, preventing such actions from being 
completed sufficiently in advance of May 1, 2011, to facilitate the 30-
day cooling off period. These factors included additional time 
necessary to fully analyze measures included in this action following 
revisions to draft measures when the Council adopted final FW 45 
measures at its November 2010 meeting, and coordinate a special meeting 
of the TMGC to evaluate the impacts of the approval of IFACA in January 
2011 on measures included in FW 45. Due to these constraints and 
rationale, this rulemaking could not be completed further in advance of 
May 1, 2011. Therefore, in order to have this action effective at the 
beginning of FY 2011, it is necessary to waive a portion of [retain as 
necessary] the 30-day delay period for this rule.
    The waiver of a portion of [retain as necessary] the 30-day delayed 
effectiveness for this final rule is in the public interest because it 
is necessary to implement a number of measures by the start of FY 2011 
that would benefit the NE multispecies fishery at large. Specifically, 
this action incorporates the best available scientific information for 
both pollock and GB yellowtail flounder, specifies and distributes 
revised ACLs for several stocks, implements a spawning closure area to 
protect spawning cod in the GOM, delays industry responsibility for 
costs associated with catch monitoring, increases access to near-shore 
seasonal closure areas by smaller Handgear-permitted vessels, increases 
LAGC vessel access to the Great South Channel Exemption Area, and 
approves the creation of five new sectors, among other measures. This 
final rule also includes measures that would control fishing effort by 
common pool vessels to help prevent the premature or excessive harvest 
of sub-ACLs allocated to the common pool during FY 2011. A May 1, 2011, 
effective date is necessary in order to specify catch levels and 
implement management measures necessary to eliminate overfishing and 
continue stock rebuilding, help mitigate the adverse economic impacts 
resulting from continued efforts to end overfishing and rebuild 
overfished stocks, increase the economic efficiency of vessel 
operations, and prevent industry confusion. Failure to waive the 30-day 
delay in effectiveness would prevent such measures from being 
implemented on May 1, 2011, and could

[[Page 23066]]

result in short-term adverse economic impacts to NE multispecies 
vessels and associated fishing communities that were neither 
anticipated by the Council and industry participants, nor analyzed in 
the FW 45 EA and the associated FY 2011 sector operations plans EA. In 
particular, access to available fishery resources would be 
unnecessarily delayed for scallop and Handgear-permitted vessels, and 
commercial vessels would not be able to benefit from the substantially 
increased FY 2011 GB yellowtail flounder ACL. This could result in 
additional economic impacts and reduce the economic efficiency of the 
fleet until such measures become effective. Without the timely 
implementation of measures specified in this rule, the risk of 
excessive catch by common pool vessels would be increased, along with 
potential that the common pool will once again exceed its sub-ACL for 
specific stocks. In addition, allowing for a full 30-day delayed 
effectiveness period would delay the implementation of the GOM Cod 
Spawning Protection Area for up to an additional 30 days during which 
cod will continue to spawn. Thus, this delay could potentially 
jeopardize existing efforts to end overfishing and rebuild overfished 
stocks. This would be contrary to not only the interest of the fishing 
communities, but to the public at large, as overfishing and overfished 
stocks decreases the ability of the public to enjoy that stock for 
commercial, recreational, aesthetic, or other reasons, and reduces the 
availability of seafood to the nation. Therefore, delayed 
implementation of these measures beyond May 1, 2011, is impracticable 
and contrary to the public interest, and the requirement to delay 
implementation of this rule for a period of 30 days is hereby waived.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule does not contain policies with federalism or 
``takings'' implications, as those terms are defined in E.O. 13132 and 
E.O. 12630, respectively.
    A FRFA was prepared for this action. The FRFA incorporates the 
IRFA, a summary of the significant issues raised by the public comments 
in response to the IRFA, NMFS responses to those comments, a summary of 
the analyses completed in the FW 45 EA and any supplements thereto to 
support the action, and this portion of the preamble. A summary of the 
IRFA was published in the proposed rule for this action and is not 
repeated here. A description of why this action was considered, the 
objectives of, and the legal basis for this rule is contained in FW 45 
and in the preamble to the proposed and this final rule, and is not 
repeated here. All of the documents that constitute the FRFA are 
available from NMFS (see ADDRESSES). In the FRFA, the baseline (no-
action alternative) is the set of measures that were in place during FY 
2010 (i.e., the measures implemented under Amendment 16 and FW 44). 
Tables and sections that are referenced in this FRFA refer to those 
contained in the EA developed for FW 45. A copy of FW 45 is available 
from the Council (see ADDRESSES).
    A supplemental EA was developed to analyze the impacts of the 
emergency action to increase the FY 2011 GB yellowtail flounder TAC for 
the U.S./Canada Management Area and the associated ABC and ACL for this 
stock. The economic impact on affected entities resulting from 
increasing the FY 2011 GB yellowtail flounder TAC, ABC, and ACL is 
expected to be positive, because it will provide additional fishing 
opportunity and fishing revenue for vessels participating in NE 
multispecies fishery and the scallop fishery during FY 2011. Based on 
historic information, the groundfish fishery is able to land close to 
the full amount of GB yellowtail flounder allowed. The estimated 
revenue from the sale of GB yellowtail flounder under the increased 
catch limits is approximately $2 million, compared with $1.4 million if 
the original FY 2011 TAC, ABC, and ACL adopted in FW 45 were to be 
implemented instead. Based on a conservative estimate using FY 2010 
data, for every dollar of yellowtail flounder revenue, there is at 
least $10 of revenue from other species. The additional revenue due to 
the catch of other species could be worth approximately ten times the 
difference between the GB yellowtail flounder revenue under the 
original catch limits and the increased catch limits implemented by 
this action (10 x $641,272), or approximately $6.4 million (if the 
total GB yellowtail flounder TAC is caught, and fishing effort on GB 
ceases consistent with existing regulations).
    With respect to the scallop fishery, the increased catch limit 
implemented by this action will result in a larger cap on the amount of 
GB yellowtail flounder than can be caught in the scallop access areas. 
A larger cap may indirectly enable greater scallop revenue for the 
scallop fishery, particularly if the GB yellowtail flounder cap becomes 
limiting to the scallop fishery in the Closed Area II Scallop Access 
Area. It is difficult to predict the amount of GB yellowtail flounder 
that will be caught in the Closed Area II Scallop Access Area in FY 
2011 due to the variability of scallop fishing effort, as well as 
scallop and yellowtail flounder catch rates. However, a larger cap on 
the amount of GB yellowtail flounder that can be caught in the scallop 
access areas enhances the ability of the scallop industry to plan 
fishing operations, and will minimize disruption to fishing activities.

Summary of the Significant Issues Raised by Public Comments in Response 
to the IRFA. A Summary of the Assessment of the Agency of Such Issues, 
and a Statement of Any Changes Made From the Proposed Rule as a Result 
of Such Comments

    Comment A: As noted above in Comment 16, several commenters 
suggested that the proposed requirement for dockside/roving monitors to 
inspect fish holds will expose vessel owners to a risk of a lawsuit 
stemming from any potential injury to such monitors when boarding the 
vessel or inspecting fish holds even if the dockside/roving monitoring 
service providers had sufficient insurance coverage. These commenters 
asserted that this potential risk will force vessel owners to buy more 
insurance to ensure that they are adequately covered for any potential 
liability lawsuits that might result from this provision. In doing so, 
they contest that this would contradict the FW 45 economic analysis 
that indicates that this measure should not impact either vessel owners 
or service providers.
    Response: The existing regulations require dockside/roving monitor 
service providers to have adequate insurance to cover injury, 
liability, or accidental death that might befall dockside/roving 
monitors in the conduct of their duties. However, NMFS recognizes that 
despite such coverage, individual dockside/roving monitors still have 
the capacity to file a lawsuit against vessel owners for any injuries 
incurred while inspecting fish holds. As noted in the response to 
Comment 16 above, NMFS encourages sectors and dockside/roving monitor 
service providers to seek agreement on how to best address the issues 
and problems raised by the comment. NMFS does not have sufficient 
information to evaluate the potential increase in costs associated with 
any additional insurance coverage that vessel owners may be inclined to 
purchase to protect them from any liability associated with dockside/
roving monitors inspecting fish holds. The risks associated with the 
liability for injuries to dockside/roving monitors inspecting fish 
holds appear to be

[[Page 23067]]

somewhat similar to those associated with having to accommodate an 
observer and, therefore, may be instructive on how to consider 
insurance costs for dockside monitoring. NMFS is committed to reviewing 
the requirement to inspect fish holds and the costs associated with it 
over time as more information becomes available.

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

    The measures implemented by this action affect recreational anglers 
and any vessel issued a limited access NE multispecies permit, an open 
access NE multispecies Handgear B permit (Handgear B permit) or 
charter/party permit, or a LAGC scallop permit. In addition, because 
this action affects the dockside/roving and at-sea or electronic 
monitoring program requirements and require dockside monitors to 
inspect fish holds, this action also affects any entity intending to 
provide dockside/roving or at-sea or electronic monitoring services. As 
of December 20, 2010, the maximum number of small fishing entities (as 
defined by the Small Business Administration (SBA)) that may be 
affected by this action is 3,935 entities. These affected entities 
include 1,144 limited access NE multispecies DAS permit holders; 133 
limited access NE multispecies Handgear A (Handgear A) permit holders; 
11 limited access NE multispecies Small Vessel Exemption (Category C) 
permit holders; 1,156 open access NE multispecies Hangear B (Handgear 
B) permit holders; 824 open access NE multispecies charter/party 
permits; and 667 Atlantic sea scallop LAGC permits. It is likely that 
the actual number of small fishing entities affected by this action 
would be much smaller. For instance, information contained in Section 
10.11.2 of the FW 45 EA indicates that only 397 vessels had reported 
any sales of regulated species and ocean pout as of December 2010, 
including 18 Handgear A vessels, 50 Handgear B vessels, and 329 other 
vessels issued limited access NE multispecies DAS permits. Further, 
according to that analysis, only 18 entities conducted party/charter 
operations in the GOM Cod Spawning Protection Area implemented by this 
action. It is difficult to estimate the number of private recreational 
anglers that may be affected by this action, as the GOM Cod Spawning 
Protection Area implemented by this action is too small to accurately 
determine the number of anglers that fish in this area based on 
available data. Finally, it is expected that the five entities 
currently providing dockside/roving monitoring and at-sea or electronic 
monitoring services would continue to do so in FYs 2011 and 2012, and 
would be affected by this action. As of March 28, 2011, four of these 
entities have submitted an application to provide dockside/roving 
monitoring services for FY 2011.
    It is important to note that past fishing activity and enrollment 
in sectors may not be an accurate predictor of future fishing activity. 
In particular, it is possible that revisions to measures affecting both 
the Handgear A and Handgear B fisheries may increase participation by 
vessels issued such permits. As of December 1, 2010, 836 permits had 
elected to join a sector during FY 2011, as determined through the 
submission of sector rosters to NMFS, indicating that 452 permits would 
be enrolled in the common pool during FY 2011. However, vessels may 
withdraw from sectors through April 30, 2011. Therefore, because 
participation in sectors is voluntary, the number of vessels that will 
actually participate in sectors during FY 2011 and future years is 
likely to fluctuate based upon whether joining a sector or fishing 
under common pool measures offers the greater economic advantage to 
each individual vessel.
    The SBA considers commercial fishing entities (NAICS code 114111) 
to be small entities if they have no more than $4 million in annual 
sales, while the size standard for charter/party operators (part of 
NAICS cod 487210) is $7 million in sales. Based on 2005-2007 average 
conditions, median gross sales by commercial fishing vessels were just 
over $200,000, and no single fishing entity earned more than $2 
million. For regulated charter/party operators, the median value of 
gross receipts from passengers was just over $9,000, and did not exceed 
$500,000 in any year during 2001 to 2007. The vessels in the Atlantic 
sea scallop fishery are considered small business entities because all 
of them grossed less than $3 million according to the dealer's data for 
FYs 1994 to 2009, consistent with analyses under the RFA for recent 
scallop actions. Although multiple vessels may be owned by a single 
owner, available tracking of ownership is not readily available to 
reliably ascertain affiliated entities. Therefore, for the purposes of 
this analysis, each permitted vessel is treated as a single small 
entity and is determined to be a small entity under the RFA. 
Accordingly, there are no differential impacts between large and small 
entities under this final rule.

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

    The only reporting and recordkeeping requirements affected by this 
final rule are the request for a LOA to fish south of the GOM RMA by 
Handgear A and Handgear B vessels, or a similar declaration via VMS 
prior to each trip by Handgear A vessels required to use VMS under the 
existing regulations, and the trip-end hail report already approved as 
part of Amendment 16. This action does not impose any new reporting or 
recordkeeping requirements that have not already been in existence. 
However, it requires additional vessels (handgear-permitted vessels) to 
comply with the LOA requirements and mandates that common pool vessels 
submit trip-end hail reports earlier than expected when originally 
implemented under Amendment 16. Existing reporting and recordkeeping 
requirements for the dockside/roving and at-sea or electronic 
monitoring programs approved under Amendment 16 have been included 
below for reference.
    The costs associated with the reporting and recordkeeping 
requirements supporting measures implemented by this action are 
detailed in the Paperwork Reduction Act (PRA) analysis associated with 
Amendment 16 and the permit family of forms for the Northeast Region of 
NMFS. The time burden associated with a telephone call to request for a 
LOA to fish south of the GOM RMA is estimated at 5 minutes, with no 
costs to vessels requesting such a LOA. The cost associated with a 
similar declaration via VMS is estimated to be $0.50 per submission. 
For the trip-end hail reports, the yearly cost to each vessel is 
estimated to be approximately $17, assuming that such reports were made 
via VMS. Costs would likely be lower if such reports were submitted via 
another medium. Costs to vessels receiving dockside/roving monitoring 
services implemented under Amendment 16 include $10 per year for 
confirming pre-trip hail reports and $13 per year to confirm trip-end 
hail reports and specify whether a particular trip would be observed by 
a dockside monitor. Requirements to maintain and enter data into a 
dockside monitoring database are estimated to cost approximately $4,225 
per service provider annually, while submitting dockside monitoring 
data to NMFS is likely to cost each service provider approximately 
$36,000 per year. Similar costs to service providers are expected to 
notify sector vessels of selection for at-sea/electronic monitoring 
coverage

[[Page 23068]]

($3,125 per year) and to submit at-sea or electronic monitoring data to 
NMFS ($36,000 per year).
    This final rule contains a collection-of-information requirement 
subject to the PRA and which has been approved by OMB under the various 
OMB control numbers listed below. Public reporting burden for these 
collections of information are estimated to average, as follows:
    1. VTR submissions, OMB 0648-0605, (5 min/response);
    2. Sector operations plan and associated NEPA analysis, 
OMB 0648-0605, (640 hr/response);
    3. Dockside/at-sea monitoring service provider application, 
OMB 0648-0605, (10 hr/response);
    4. Dockside/at-sea monitoring service provider response to 
application disapproval, OMB 0648-0605, (10 hr/response);
    5. Data entry for sector discard monitoring system, OMB 
0648-0605, (3 min/response);
    6. Sector weekly catch report, OMB 0648-0605, (4 hr/
response);
    7. Sector annual report, OMB 0648-0605, (12 hr/response);
    8. Notification of expulsion from a sector, OMB 0648-0605, 
(30 min/response);
    9. Request to transfer ACE, OMB 0648-0605, (5 min/
response);
    10. VMS certification form, OMB 0648-0605, (10 min/
response);
    11. VMS confirmation call, OMB 0648-0605, (5 min/
response);
    12. VMS area and DAS declaration, OMB 0648-0605, (5 min/
response);
    13. VMS trip-level catch reports, OMB 0648-0605, (15 min/
response);
    14. Request for a LOA to participate in the GOM Haddock Gillnet 
Pilot Program, OMB 0648-0605, (5 min/response);
    15. Request for a LOA to fish in a NE multispecies RGA, 
OMB 0648-0605, (5 min/response);
    16. VMS declaration to fish in a NE multispecies RGA, OMB 
0648-0605, (5 min/response);
    17. Pre-trip hail report to a dockside monitoring service provider, 
OMB 0648-0605, (2 min/response);
    18. Trip-end hail report to a dockside monitoring service provider, 
OMB 0648-0605, (15 min/response);
    19. Confirmation of dockside monitoring trip-end hail report, 
OMB 0648-0605, (2 min/response);
    20. Dockside/roving service provider data entry, OMB 0648-
0605, (3 min/response);
    21. Dockside/roving or at-sea monitor deployment report, 
OMB 0648-0605, (10 min/response);
    22. Dockside/roving or at-sea monitoring service provider catch 
report to NMFS upon request, OMB 0648-0605, (5 min/response);
    23. Dockside/roving or at-sea monitor report of harassment and 
other issues, OMB 0648-0605, (30 min/response);
    24. OLE debriefing of dockside/roving or at-sea monitors, 
OMB 0648-0605, (2 hr/response);
    25. Copy of dockside/roving or at-sea monitoring service provider 
contract upon request, OMB 0648-0605, (30 min/response);
    26. Copy of dockside/roving or at-sea monitoring service provider 
information materials upon request, OMB 0648-0605, (30 min/
response);
    27. Observer program pre-trip notification, OMB 0648-0605, 
(2 min/response);
    28. Daily VMS catch reports when fishing in the U.S./Canada 
Management Area and CA II SAPs, OMB 0648-0605, (15 min/
response);
    29. Daily VMS catch reports when fishing in the CA I Hook Gear 
Haddock SAP, OMB 0648-0605, (15 min/response);
    30. Daily VMS catch reports when fishing in the Regular B DAS 
Program, OMB 0648-0605, (15 min/response);
    31. Copy of the dealer weigh-out slip or dealer signature of the 
dockside monitor report, OMB 0648-0605, (2 min/response);
    32. Forward trip start/end hails to NMFS, OMB 0648-0605 (2 
min/response);
    33. Notification to vessel/sector/NMFS of monitor emergency, 
OMB 0648-0605 (5 min/response);
    34. Initial vessel application for a limited access Handgear A 
permit, OMB Control Number 0648-0202, (10 min/response);
    35. DAS Transfer Program application, OMB Control Number 0648-0202, 
(5 min/response);
    36. VMS purchase and installation, OMB Control Number 0648-0202, (1 
hr/response);
    37. Automated VMS polling of vessel position twice per hour while 
fishing within the U.S./Canada Area, OMB Control Number 0648-0202, (5 
sec/response);
    38. VMS proof of installation, OMB Control Number 0648-0202, (5 
min/response);
    39. Expedited submission of a proposed SAP, OMB Control Number 
0648-0202, (20 hr/response);
    40. Request to power down VMS for at least 1 month, OMB Control 
Number 0648-0202, (5 min/response);
    41. Request for an LOA to participate in the GOM Cod Landing 
Exemption, OMB Control Number 0648-0202, (5 min/response);
    42. Request for an LOA to participate in the Skate Bait-only 
Possession Limit Exemption, OMB Control Number 0648-0202, (5 min/
response);
    43. Submission of a sector allocation proposal, OMB Control Number 
0648-0202, (50 hr/response);
    44. DAS ``flip'' notification via VMS for the Regular B DAS pilot 
program, OMB 0648-0202 (5 min/response);
    45. DAS ``flip'' notification via VMS for the Eastern U.S./Canada 
Haddock SAP Pilot Program, OMB 0648-0202 (5 min/response);
    46. NMFS Office of Law Enforcement landings notice requirement for 
Category 1 herring vessels operating with an observer waiver, 
OMB 0648-0521, (5 min/response);
    47. Notification and Communication with USCG and Center for Coastal 
Studies, OMB 0648-0521, (10 min/response);
    48. Written requests to receive a DAS credit for standing by an 
entangled whale, OMB 0648-0521, (30 min/response);
    49. Vessel baseline downgrade request for the DAS Leasing Program, 
OMB 0648-0475, (1 hr/response);
    50. Spawning block declaration, OMB 0648-0202 (2 min/
response);
    51. Sector Manager daily reports for CA I Hook Gear Haddock SAP, 
OMB 0648-0212 (2 hr/response);
    52. DAS Leasing Program application, OMB 0648-0475 (10 
min/response); and
    53. Declaration of intent to fish inside and outside of the Eastern 
U.S./Canada Area on the same trip, OMB 0648-0202 (5 min/
response).
    These estimates include the time required for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding these burden 
estimates or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-
mail to [email protected], or fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

Description of Steps the Agency Has Taken To Minimize the Significant 
Economic Impact on Small Entities Consistent With the Stated Objectives 
of Applicable Statues

    During the development of Framework 45, NMFS and the Council

[[Page 23069]]

considered ways to reduce the regulatory burden on and provide 
flexibility to the regulated community. The approach taken is 
consistent with the recent Presidential Memorandum on Regulatory 
Flexibility, Small Business, and Job Creation (January 18, 2011). The 
measures implemented by this final rule, in conjunction with the final 
rule to approve FY 2011 sector operations plans, minimize the long-term 
economic impacts on small entities to the extent practicable. Overall, 
long-term impacts of this final rule, as well as the related actions of 
the FMP, are minimized by ensuring that management measures and catch 
levels result in fishing mortality rates are sustainable and contribute 
to rebuilding stocks and, therefore, maximizing yield, as well as 
providing additional flexibility for fishing operations in the short 
term. In particular, this final rule implements several measures that 
directly or indirectly provide small entities with some ability to 
offset at least some portion of the estimated economic impacts 
associated with proposed measures. The major mitigating measures 
include formal recognizing the rebuilt status of pollock; extending the 
rebuilding period for GB yellowtail flounder; increasing the FY 2011 GB 
yellowtail flounder U.S./Canada Management Area TAC; maintaining 
existing yellowtail flounder allocations to the scallop fishery; 
allowing LAGC scallop vessels greater access to the Great South Channel 
Exemption area; increasing access to the seasonal closure areas for 
Handgear A and Handgear B permits and exempting vessels issued these 
permits and limited access Small Vessel Exemption permits from existing 
dockside/roving monitoring requirements; delaying requiring sectors and 
common pool vessels to pay for dockside/roving and at-sea or electronic 
monitoring; redistributing PSC from cancelled permits to all remaining 
valid limited access NE multispecies permits; and approving new 
sectors, including state permit banks and a lease-only sector. A 
complete description of why each measure was selected can be found in 
the Section 4.0 of the FW 45 EA (see ADDRESSES).
    The specification of ACLs for components of the groundfish and non-
groundfish fisheries, as well as additional management measures to 
ensure that such catch levels are not exceeded, increase the likelihood 
that the biological objectives of the FMP will be met, resulting 
greater sustainable revenue over the long term. Specifically, this 
action formally recognizes that pollock is rebuilt, incorporates 
updated biological reference points, and specifies higher ACLs for this 
stock based upon updated stock assessment data first implemented on a 
temporary basis through a July 20, 2010, emergency action (75 FR 
41996). This action also extends the rebuilding program for GB 
yellowtail flounder and indirectly reduces economic impacts on NE 
multispecies vessels by allowing higher ACLs to be specified for the 
remainder of the rebuilding program compared to the existing rebuilding 
program adopted for this stock. Further, this action substantially 
increases the FY 2011 GB yellowtail flounder U.S./Canada Management 
Area TAC and the associated ABC and ACL available to commercial vessels 
based on the flexibility provided by IFACA. Such increases in available 
ACL and associated vessel revenue would not be realized if this action 
was not implemented, as the increased pollock ACL implemented by the 
July 20, 2010, emergency rule would expire on July 17, 2011, and the GB 
yellowtail flounder U.S./Canada Management Area TAC and the associated 
ABC and ACL would expire on April 30, 2011, because this TAC is 
approved on a yearly basis following annual recommendations by the 
TMGC. Finally, this action maintains the actual yellowtail flounder 
allocations to the scallop fishery that were implemented by the FW 44 
final rule for FY 2010, instead of updating those allocations to 
reflect revised estimates of the amount of yellowtail flounder bycatch 
expected in the scallop fishery during FY 2011. Updated estimates would 
have lowered the yellowtail allocations to the scallop fishery for FY 
2011 and potentially resulted in reduced fishing revenue for the 
scallop fishery. Together, these provisions increase the amount of 
these stocks available to commercial vessels without compromising the 
conservation of objectives of the FMP to prevent overfishing and 
rebuild overfished stocks, thereby likely increasing vessel revenues 
from landing these and other stocks by reducing the likelihood that low 
ACLs for these stocks will unnecessarily restrict vessel operations in 
FY 2011 and mitigating adverse economic impacts of recent effort 
controls in the fishery.
    This final rule mitigates economic impacts to LAGC scallop vessels 
by eliminating the yellowtail flounder peak spawning closure areas in 
the Great South Channel Exemption Area and enabling LAGC scallop 
vessels greater access to this area. If this measure reduces 
operational costs by allowing vessels to operate in a more efficient 
manner, it could increase the economic efficiency of vessel operations 
and increase the value of the IFQ permits. Not implementing this 
measure would likely cause fishing operations by LAGC scallop vessels 
to be less efficient, increasing operational costs by requiring such 
vessels to steam farther to open fishing grounds. This action does not 
compromise efforts to protect overfished stocks of yellowtail flounder, 
as the yellowtail flounder spawning closure areas were first 
implemented at a time when LAGC scallop vessels were not as restricted 
in the amount scallop trips that they could take as they are now. 
Therefore, these closures were necessary to prevent the excessive 
harvest of yellowtail flounder as bycatch by LAGC scallop vessels, but 
are now no longer required following the implementation of more 
restrictive measures to control scallop catch by these vessels in the 
form of an individual fishing quota system as part of Amendment 11 to 
the Atlantic Sea Scallop FMP (April 14, 2008; 72 FR 20090).
    This action implements several measures that reduce operational 
costs to vessels, on both a temporary and indefinite basis. 
Specifically, this action indefinitely exempts NE multispecies Handgear 
A, Handgear B, and Small Vessel Exemption Category permits from 
dockside/roving monitoring requirements, delays industry responsibility 
for paying for dockside/roving monitoring coverage until FY 2013, and 
delays industry responsibility for paying for a sector at-sea 
monitoring program until FY 2013. Delaying the fishing industry's 
responsibility to pay for dockside/roving monitors and exempting 
handgear and Small Vessel category permits from the dockside/roving 
monitoring requirements would save approximately $281,000 per year 
(assuming 20 percent of trips would be covered), while delaying the 
responsibility for paying for at-sea monitoring would save industry 
about $5 million per year (assuming 30 percent of trips would be 
covered). Such cost savings would not be realized if such measures are 
not implemented. Therefore, this action attempts to minimize 
operational costs to affected vessels as the fishery continues to adapt 
to substantial changes to management measures, including ACLs, AMs, and 
an expansion of sector measures, and overfished stocks continue to 
rebuild.
    Allowing vessels with handgear permits access to at least some of 
the seasonal closure areas is likely to increase the chance that such 
permits could increase their catch of regulated species, particularly 
during the early months of the fishing season before trip

[[Page 23070]]

limits may be reduced to prevent the overall ACLs from being exceeded. 
In addition to increasing the operational efficiency of such vessels by 
increasing catch rates and reducing operational costs (fuel, 
primarily), because these vessels are small and use relatively 
inefficient gear to catch fish, these measures allow vessels to fish 
closer to shore during periods of better weather instead of forcing 
them to fish farther offshore in areas that are not subject to seasonal 
closures. Such benefits would not be realized if this action is not 
implemented.
    This action recalculates the PSC for each stock on a yearly basis 
to reflect the elimination of landings histories from cancelled 
permits, and redistributes such landings histories to all valid limited 
access NE multispecies permits. This replaces the previous practice of 
using the landing histories of cancelled permits to contribute to the 
sub-ACL specified for the common pool based on the interpretation that 
if a permit has not signed up to join a sector it is, by default, in 
the common pool. The magnitude of the impact from this provision is 
likely to be small, as few permits have been cancelled since the PSCs 
were calculated using permits valid as of May 1, 2008. Cancelled 
permits represent only about 72,000 lb (32,659 kg) of all species 
combined that is divided among the 1,288 valid limited access NE 
multispecies permits based on each permit's individual fishing history. 
Thus, this measure, in itself, is unlikely to make an unprofitable 
fishing operation marginally profitable. Nevertheless, this action 
provides some positive benefit and increased economic opportunity to 
all remaining permit holders, and may increase the amount of ACE 
available on the market to lease.
    As noted in the proposed rule for this action, the approval of new 
sectors, including state permit banks and a lease-only sector, as part 
of this action is likely to help to reduce vessel operational costs by 
increasing the amount of DAS and ACE available on the leasing market, 
reducing market price for such additional fishing opportunities, and 
increasing competition in the leasing market by providing alternative 
means to acquire the ACE necessary for to help vessels remain 
financially solvent. In addition, it is possible that the lease-only 
sector could reduce sector monitoring fees due to the presumption that 
participating vessels would not be actively fishing, but rather exist 
for the sole purpose of providing PSC that the sector may use to enable 
other sectors to continue fishing.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
small entity compliance guide (the guide) was prepared. Copies of this 
final rule are available from the Northeast Regional Office, and the 
guide (i.e., permit holder letter) will be sent to all holders of 
permits for the fishery. The guide and this final rule will be 
available upon request.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 18, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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


0
2. In Sec.  648.10, revise paragraph (k)(1) to read as follows:


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

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

0
3. In Sec.  648.14, revise paragraph (k)(7)(i)(B); and add paragraphs 
(k)(9)(i), (k)(15)(ii)(A)(5), and (k)(18)(i)(D) to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (k) * * *
    (7) * * *
    (i) * * *
    (B) Fish for, harvest, possess, or land regulated species in or 
from the closed areas specified in Sec.  648.81(a) through (f) and (o), 
unless otherwise specified in Sec.  648.81(c)(2)(iii), (f)(2)(i), 
(f)(2)(iii),

[[Page 23071]]

(f)(2)(vi), (i), (o)(2)(i), or as authorized under Sec.  648.85.
* * * * *
    (9) * * *
    (i) If operating under the provisions of a limited access NE 
multispecies Handgear A permit south of the GOM Regulated Mesh Area, as 
defined at Sec.  648.80(a)(1), fail to declare the vessel operator's 
intent to fish in this area via VMS or fail to obtain or retain on 
board a letter of authorization from the Regional Administrator, as 
required by Sec.  648.82(b)(6)(iv).
* * * * *
    (15) * * *
    (ii) * * *
    (A) * * *
    (5) If operating under the provisions of a limited access NE 
multispecies Handgear B permit south of the GOM Regulated Mesh Area, as 
defined at Sec.  648.80(a)(1), fail to obtain or retain on board a 
letter of authorization from the Regional Administrator, as required by 
Sec.  648.88(a)(2)(iv).
* * * * *
    (18) * * *
    (i) * * *
    (D) Offload fish before a dockside/roving monitor arrives, if 
selected to have its offloading events observed by a dockside/roving 
monitor, as specified by Sec.  648.87(b)(1)(v)(B)(1) and (b)(5)(i)(C).
* * * * *

0
4. In Sec.  648.80, revise the introductory text to paragraph (a)(18), 
and remove paragraphs (a)(18)(ii)(C) and (D).
    The revision reads as follows:


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

* * * * *
    (a) * * *
    (18) Great South Channel Scallop Dredge Exemption Area. Vessels 
issued a LAGC scallop permit, including limited access scallop permits 
that have used up their DAS allocations, may fish in the Great South 
Channel Scallop Dredge Exemption Area, as defined under paragraph 
(a)(18)(i) of this section, when not under a NE multispecies or scallop 
DAS or on a sector trip, provided the vessel complies with the 
requirements specified in paragraph (a)(18)(ii) of this section and 
applicable scallop regulations in subpart D of this chapter.
* * * * *

0
5. In Sec.  648.81:
0
a. Revise the introductory text of paragraph (f)(2)(vi);
0
b. Add paragraph (g)(2)(vi);
0
c. Revise paragraph (i); and
0
d. Add paragraph (o).
    The revisions and additions read as follows:


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

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

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

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

0
6. In Sec.  648.82:
0
a. Revise paragraphs (a)(2) and the introductory text of paragraph 
(b)(6);
0
b. Add paragraph (b)(6)(iv); and
0
c. Revise paragraph (n)(2)(iv).
    The revisions and addition read as follows:


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

    (a) * * *
    (2) Notwithstanding any other provision of this part, any vessel 
issued

[[Page 23072]]

a NE multispecies limited access permit may not call into the DAS 
program and fish under a DAS, fish on a sector trip, or fish under the 
provisions of a limited access Small Vessel Category or Handgear A 
permits pursuant to paragraphs (b)(5) and (6) of this section, 
respectively, if such vessel carries passengers for hire for any 
portion of a fishing trip.
    (b) * * *
    (6) Handgear A category. A vessel qualified and electing to fish 
under the Handgear A category, as described in Sec.  648.4(a)(1)(i)(A), 
may retain, per trip, up to 300 lb (135 kg) of cod, one Atlantic 
halibut, and the daily possession limit for other regulated species and 
ocean pout, as specified under Sec.  648.86. If either the GOM or GB 
cod trip limit applicable to a vessel fishing under a NE multispecies 
DAS permit, as specified in Sec.  648.86(b)(1) and (2), respectively, 
is reduced below 300 lb (135 kg) per DAS by NMFS, the cod trip limit 
specified in this paragraph (b)(6) shall be adjusted to be the same as 
the applicable cod trip limit specified for NE multispecies DAS 
permits. For example, if the GOM cod trip limit for NE multispecies DAS 
vessels was reduced to 250 lb (113.4 kg) per DAS, then the cod trip 
limit for a vessel issued a Handgear A category permit that is fishing 
in the GOM Regulated Mesh Area would also be reduced to 250 lb (113.4 
kg). Qualified vessels electing to fish under the Handgear A category 
are subject to the following restrictions:
* * * * *
    (iv) Declaration. For any such vessel that is not required to use 
VMS pursuant to Sec.  648.10(b)(4), to fish for GB cod south of the GOM 
Regulated Mesh Area, as defined at Sec.  648.80(a)(1), a vessel owner 
or operator must obtain, and retain on board, a letter of authorization 
from the Regional Administrator stating an intent to fish south of the 
GOM Regulated Mesh Area and may not fish in any other area for a 
minimum of 7 consecutive days from the effective date of the letter of 
authorization. For any such vessel that is required, or elects, to use 
VMS pursuant to Sec.  648.10(b)(4), to fish for GB cod south of the GOM 
Regulated Mesh Area, as defined at Sec.  648.80(a)(1), a vessel owner 
or operator must declare an intent to fish south of the GOM Regulated 
Mesh Area on each trip through the VMS prior to leaving port, in 
accordance with instructions provided by the Regional Administrator. 
Such vessels may transit the GOM Regulated Mesh Area, as defined at 
Sec.  648.80(a)(1), provided that their gear is stowed in accordance 
with the provisions at Sec.  648.23(b).
* * * * *
    (n) * * *
    (2) * * *
    (iv) Monitoring requirements. Except as specified in paragraph 
(n)(2)(iv)(C), starting in fishing year 2012 (May 1, 2012), landings of 
regulated species or ocean pout by common pool vessels shall be 
monitored at the point of offload by independent, third-party service 
providers approved to provide such services by NMFS, as specified in 
paragraphs (n)(2)(iv)(A) and (B) of this section. Unless otherwise 
instructed by NMFS, these service providers shall deploy dockside 
monitors to monitor the offload of catch directly to a dealer, and 
roving monitors to monitor the offload of catch onto a truck for 
subsequent shipment to a dealer. For fishing year 2012 only, common 
pool vessels must comply with any dockside/roving monitoring program 
specified by NMFS pursuant to Sec.  648.87(b)(1)(v)(B)(1). None of the 
costs associated with dockside/roving monitors during fishing year 2012 
shall be paid by the owner or operator of a vessel subject to these 
requirements. Starting in fishing year 2013 and thereafter, the costs 
associated with monitoring vessel offloads shall be the responsibility 
of individual vessels, unless otherwise instructed by NMFS. An 
individual vessel owner or operator may only use one dockside/roving 
monitoring service provider per fishing year beginning in fishing year 
2013, and must contract for such services with a service provider 
approved by NMFS pursuant to Sec.  648.87(b)(4), as instructed by the 
Regional Administrator. Both common pool vessels and service providers 
providing offloading monitoring services will be subject to the 
requirements specified in Sec.  648.87(b)(5).
    (A) Coverage levels. For fishing year 2012, dockside/roving 
monitoring coverage levels shall be determined by NMFS based on 
available funding. If NMFS does not require 100-percent coverage of all 
common pool trips, NMFS shall first provide dockside/roving monitoring 
for trips that are not also assigned an observer or at-sea monitor 
pursuant to Sec.  648.11. Starting in fishing year 2013, at least 20 
percent of the trips taken by vessels operating under the provisions of 
the common pool shall be monitored. To ensure that these levels of 
coverage are achieved, if a trip has been selected to be observed by a 
dockside/roving monitor, all offloading events associated with that 
trip must be monitored by a dockside/roving monitor, as specified in 
paragraph (n)(2) of this section, and a vessel may not offload any of 
its catch until the dockside/roving monitor arrives. For example, a 
vessel offloading at more than one dealer or facility must have a 
dockside/roving monitor present during offload at each location. All 
landing events at remote ports that are selected to be observed by a 
dockside/roving monitor must have a roving monitor present to witness 
offload activities to the truck, as well as a dockside monitor present 
at each dealer to certify weigh-out of all landings. Except as provided 
in this paragraph (n)(2)(iv)(A) or paragraph (n)(2)(iv)(C) of this 
section, or as instructed by the Regional Administrator, any service 
provider providing dockside/monitoring services required under this 
paragraph (n)(2)(iv) must ensure that coverage is randomly distributed 
among all such trips, and that the landing events monitored are 
representative of fishing operations by common pool vessels throughout 
the fishing year.
    (B) Dockside/roving monitor service provider standards. Starting in 
fishing year 2013, a common pool vessel must employ a service provider 
approved by NMFS to provide dockside/roving monitor services, as 
identified by the Regional Administrator. To be approved to provide the 
services specified in paragraph (n)(2) of this section, dockside/roving 
monitor service providers must meet the standards in Sec.  
648.87(b)(4).
    (C) Exemption. Common pool vessels operating under the provisions 
of either a limited access Northeast multispecies Small Vessel Category 
permit or Handgear A permit, as specified at Sec. Sec.  648.82(b)(5) 
and (6), respectively, or an open access Northeast multispecies 
Handgear B permit, as specified at Sec.  648.88(a), are exempt from the 
dockside/roving monitoring requirements specified in this paragraph 
(n)(2)(iv).
* * * * *

0
7. In Sec.  648.87:
0
a. Revise paragraphs (b)(1)(i)(A), (b)(1)(i)(C), (b)(1)(i)(E) 
introductory text, (b)(1)(i)(E)(1), (b)(1)(i)(E)(2)(i) and (ii), 
(b)(1)(iii)(C), (b)(1)(v)(B) introductory text, (b)(1)(v)(B)(1), 
(b)(1)(v)(B)(3) introductory text, (b)(1)(v)(B)(3)(i), (b)(1)(v)(B)(4) 
and (5), (b)(1)(viii) introductory text, and (b)(1)(viii)(C);
0
b. Revise paragraph (b)(2) introductory text;
0
c. Revise paragraphs (b)(5) introductory text and (b)(5)(i)(A)(1);
0
d. Add paragraph (b)(5)(ii)(E);
0
e. Revise paragraph (c)(2)(i); and
0
f. Add paragraphs (d)(20) through (24).

[[Page 23073]]

    The revisions and additions read as follows:


Sec.  648.87  Sector allocation.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (A) Allocated stocks. Each sector shall be allocated a TAC in the 
form of an ACE for each NE multispecies stock, with the exception of 
Atlantic halibut, SNE/MA winter flounder, ocean pout, windowpane 
flounder (both the GOM/GB and the SNE/MA stocks), and Atlantic wolffish 
based upon the cumulative PSCs of vessels/permits participating in each 
sector during a particular fishing year, as described in paragraph 
(b)(1)(i)(E) of this section. In the event that a future allocation of 
SNE/MA winter flounder can be made available pursuant to the biennial 
adjustment or framework process specified in Sec.  648.90(a)(2), an ACE 
for this stock will be specified pursuant to paragraph (b)(1)(i)(E)(1) 
of this section.
* * * * *
    (C) Carry-over. With the exception of GB yellowtail flounder, a 
sector may carry over an amount of ACE equal to up to 10 percent of its 
original ACE allocation for each stock that is unused at the end of one 
fishing year into the following fishing year. Any unused ACE allocated 
for Eastern GB stocks pursuant to paragraph (b)(1)(i)(B) of this 
section will contribute to the 10-percent carry-over allowance for each 
stock, as specified in this paragraph (b)(1)(i)(C), but will not 
increase an individual sector's allocation of Eastern GB stocks during 
the following year. This carry-over ACE remains effective during the 
subsequent fishing year even if vessels that contributed to the sector 
allocation during the previous fishing year are no longer participating 
in the same sector for the subsequent fishing year.
* * * * *
    (E) Potential sector contribution (PSC). For the purposes of 
allocating a share of the available ACL for each NE multispecies stock 
to approved sectors pursuant to Sec.  648.90(a)(4), the landings 
history of all limited access NE multispecies permits shall be 
evaluated to determine each permit's share of the overall landings for 
each NE multispecies stock as specified in paragraphs (b)(1)(i)(E)(1) 
and (2) of this section. When calculating an individual permit's share 
of the overall landings for a particular regulated species or ocean 
pout stock, landed weight shall be converted to live weight to maintain 
consistency with the way ACLs are calculated pursuant to Sec.  
648.90(a)(4) and the way ACEs are allocated to sectors pursuant to this 
paragraph (b)(1)(i). This calculation shall be performed on July 1 of 
each year, unless another date is specified by the Regional 
Administrator, to redistribute the landings history associated with 
permits that have been voluntarily relinquished or otherwise canceled 
among all remaining valid limited access NE multispecies permits as of 
that date during the following fishing year. The PSC calculated 
pursuant to this paragraph (b)(1)(i)(E) shall remain with the permit 
indefinitely, but may be permanently reduced or eliminated due to a 
permit sanction or other enforcement action.
    (1) Calculation of PSC for all NE multispecies stocks except GB 
cod. Unless otherwise specified in paragraph (b)(1)(i)(E)(2) of this 
section, for each valid limited access NE multispecies permit, 
including limited access NE multispecies Handgear A permits, landings 
recorded in the NMFS dealer database of each stock of NE multispecies 
determined by NMFS to be the landings history associated with that 
permit while subject to the NE multispecies regulations based on 
whether the vessel fishing under that permit was issued a limited 
access NE multispecies permit or subsequently qualified for a limited 
access NE multispecies permit pursuant to Sec.  648.4(a)(1)(i), 
including regulated species or ocean pout caught under a NE 
multispecies DAS when participating in the skate or monkfish fisheries, 
but excluding, for example, landings by scallop vessels operating under 
a scallop DAS, shall be summed for fishing years 1996 through 2006. 
This sum shall then be divided by the total landings of each NE 
multispecies stock during the same period by all permits eligible to 
join sectors as of May 1, 2008. The resulting figure shall then be 
multiplied by a factor of 1/PSC of remaining permits as of June 1 of 
each year, unless another date is specified by the Regional 
Administrator, to calculate the PSC for each individual valid limited 
access NE multispecies permit for each regulated species or ocean pout 
stock allocated to sectors in the NE multispecies fishery for the 
following fishing year pursuant to this paragraph (b)(1)(i)(E)(1).
    (2) * * *
    (i) GB cod PSC for permits committed to participate in the GB Cod 
Hook Gear Sector or GB Cod Fixed Gear Sector. For each owner of a valid 
NE multispecies permit, or CPH, that committed to participate in either 
the GB Cod Hook Gear Sector or the GB Cod Fixed Gear Sector as 
evidenced by a valid authorized signature executed on or before March 
1, 2008, on a preliminary roster for either of these sectors, the PSC 
for GB cod shall be equal to the sum of dealer landings of GB cod for 
fishing years 1996 through 2001, divided by the total landings of GB 
cod by permits eligible to join sectors as of May 1, 2008, during that 
period. The PSC for all other regulated species or ocean pout stocks 
specified for these permits shall be calculated pursuant to paragraph 
(b)(1)(i)(E)(1) of this section. The PSC calculated pursuant to this 
paragraph (b)(1)(i)(E)(2)(i) shall then be multiplied by a factor of 1/
PSC of remaining permits as of June 1 of each year, unless another date 
is specified by the Regional Administrator, to calculate the GB cod PSC 
for each permit for the following fishing year.
    (ii) GB cod PSC for all other permits. For each owner of a valid NE 
multispecies permit or CPH that has not committed to participate in 
either the GB Cod Hook Gear Sector or GB Cod Fixed Gear Sector, as 
specified in paragraph (b)(1)(i)(E)(2)(i) of this section, the GB cod 
PSC for each such permit or CPH shall be based upon the GB cod PSC 
available after accounting for the GB cod PSC calculated pursuant to 
paragraph (b)(1)(i)(E)(2)(i) of this section. To determine the GB cod 
PSC for each of these permits, the sum of the individual permit's 
landings of GB cod available in the NMFS dealer database for fishing 
years 1996 through 2006 shall be divided by the total landings of GB 
cod during that period by the total landings of GB cod by permits 
eligible to join sectors as of May 1, 2008, during that period, after 
subtracting the total landings of GB cod by permits that committed to 
participate in either the GB Cod Hook Sector or GB Cod Fixed Gear 
Sector as of March 1, 2008. This individual share shall then be 
multiplied by the available GB cod PSC calculated by subtracting the GB 
cod PSC allocated pursuant to paragraph (b)(1)(i)(E)(2)(i) of this 
section from one. The PSC calculated pursuant to this paragraph 
(b)(1)(i)(E)(2)(ii) shall then be multiplied by a factor of 1/PSC of 
remaining permits as of July 1 of each year, unless another date is 
specified by the Regional Administrator, to calculate the GB cod PSC 
for each permit.
* * * * *
    (iii) * * *
    (C) ACE buffer. At the beginning of each fishing year, NMFS shall 
withhold 20 percent of a sector's ACE for each stock for a period of up 
to 61 days (i.e., through June 30), unless otherwise specified by NMFS, 
to allow time to process any ACE transfers submitted at

[[Page 23074]]

the end of the fishing year pursuant to paragraph (b)(1)(viii) of this 
section and to determine whether the ACE allocated to any sector needs 
to be reduced, or any overage penalties need to be applied to 
individual permits/vessels in the current fishing year to accommodate 
an ACE overage by that sector during the previous fishing year, as 
specified in paragraph (b)(1)(iii) of this section.
* * * * *
    (v) * * *
    (B) Independent third-party monitoring program. A sector must 
comply with any dockside/roving monitoring program specified by NMFS 
for fishing years 2011 and 2012, pursuant to paragraph (b)(1)(v)(B)(1) 
of this section, including the dockside/roving monitoring operational 
standards specified in paragraph (b)(5) of this section, and develop 
and implement an independent third-party dockside/roving monitoring 
program by fishing year 2013. A sector must also develop, implement, 
and pay for, to the extent not funded by NMFS, an at-sea or electronic 
monitoring program by fishing year 2012 (May 1, 2012) consistent with 
paragraph (b)(1)(v)(B)(2) of this section. Both the dockside/roving and 
at-sea or electronic monitoring program developed by sectors must be 
approved by NMFS for monitoring landings and utilization of sector ACE, 
as specified in this paragraph (b)(1)(v)(B). Any service provider 
providing dockside/roving and at-sea or electronic monitoring services 
pursuant to this paragraph (b)(1)(v)(B) must meet the service provider 
standards specified in paragraph (b)(4) of this section, and any 
dockside/roving and at-sea or electronic monitoring program proposed by 
sectors must meet the operational standards specified in paragraphs 
(b)(5) and (b)(6) of this section, respectively, and be approved by 
NMFS in a manner consistent with the Administrative Procedure Act. None 
of the costs associated with any dockside/roving monitor monitoring 
requirements shall be paid by the owner or operator of a vessel subject 
to these requirements during fishing years 2011 and 2012. Starting in 
fishing year 2013, sectors shall be responsible for paying the costs 
associated with dockside/roving monitoring coverage, unless otherwise 
instructed by NMFS.
    (1) Dockside/roving monitoring program. Dockside/roving monitors 
shall monitor landings of regulated species and ocean pout at every 
offload for which a trip has been selected to be observed by a 
dockside/roving monitor, whether directly to a federally permitted 
dealer or to a truck for transfer to a federally permitted dealer, to 
verify such landings at the time the landings are weighed by a 
federally permitted dealer and to certify the landing weights are 
accurate as reported on the dealer report. Unless otherwise specified 
in this part, the level of coverage for landings is specified in 
paragraph (b)(1)(v)(B)(3) of this section. To ensure that these levels 
of coverage are achieved, if a trip has been selected to be observed by 
a dockside/roving monitor, all offloading events associated with that 
trip, regardless of how many or the location of offloading events, must 
be monitored, and a vessel may not offload any of its catch until the 
dockside/roving monitor arrives. For example, if a trip is selected to 
be observed by a dockside/roving monitor, a vessel offloading at more 
than one dealer or facility must have a dockside/roving monitor present 
during the offload at each location. All landing events at remote ports 
that are selected to be observed by a dockside/roving monitor must have 
a roving monitor present to witness offload activities to the truck, as 
well as a dockside monitor present at each dealer to certify weigh-out 
of all landings. Any service provider providing dockside/roving 
monitoring services pursuant to this paragraph (b)(1)(v)(B)(1) must 
meet the service provider standards specified in paragraph (b)(4) of 
this section. The details of the dockside/roving monitoring program 
used by each sector starting in fishing year 2013 pursuant to paragraph 
(b)(1)(v)(B) of this section must be specified in the sector's 
operations plan, and must be consistent with the operational standards 
specified in paragraph (b)(5) of this section. The Regional 
Administrator shall review the dockside/roving monitoring program and 
approve/disapprove it as part of the yearly operations plan in a manner 
consistent with the Administrative Procedure Act. Common pool vessels 
operating under the provisions of the either a limited access Northeast 
multispecies Small Vessel Category permit or Handgear A permit, as 
specified at Sec. Sec.  648.82(b)(5) and (6), respectively, or an open 
access Northeast multispecies Handgear B permit, as specified at Sec.  
648.88(a), are exempt from the dockside/roving monitoring requirements 
specified in this paragraph (b)(1)(v)(B)(1). Except as provided in this 
paragraph (b)(1)(v)(B)(1), all common pool and sector vessels, along 
with service providers providing dockside monitoring services, will be 
subject to the dockside monitoring operational requirements specified 
at Sec.  648.87(b)(5).
* * * * *
    (3) Coverage levels. Except as specified in paragraph 
(b)(1)(v)(B)(3)(i), any service provider providing dockside/roving or 
at-sea or electronic monitoring services required under this paragraph 
(b)(1)(v)(B)(3) must provide coverage that is fair and equitable, and 
distributed in a statistically random manner among all trips such that 
coverage is representative of fishing activities by all vessels within 
the common pool or each sector, and by all operations of common pool 
vessels or vessels operating in each sector throughout the fishing 
year.
    (i) Dockside/roving monitoring. For fishing years 2011 and 2012, 
NMFS shall determine the level of coverage for any NMFS-sponsored 
dockside/roving monitoring program specified pursuant to paragraph 
(b)(1)(v)(B)(1) of this section based on available funding. If 100-
percent coverage of all sector and common pool trips is not possible, 
NMFS shall first provide coverage to trips without an observer or at-
sea monitor assigned pursuant to Sec.  648.11(k), or approved 
electronic monitoring equipment assigned pursuant to paragraph 
(b)(1)(v)(B) of this section for sector vessels. Starting in fishing 
year 2013, at least 20 percent of all sector and common pool trips 
shall be monitored by dockside/roving monitors.
* * * * *
    (4) Hail reports. For the purposes of the dockside/roving and at-
sea monitoring requirements specified in this paragraph (b)(1)(v)(B), 
sector vessels must submit all hail reports for a sector trip in which 
the NE multispecies catch applies against the ACE allocated to a 
sector, as specified in this part, to service providers offering 
dockside/roving and at-sea monitoring services pursuant to this 
paragraph (b)(1)(v)(B). The mechanism and timing of the transmission of 
such hail reports must be consistent with instructions provided by the 
Regional Administrator for any dockside/roving monitoring program 
required by paragraph (b)(1)(v)(B)(1) of this section, or specified in 
the annual sector operations plan, consistent with paragraphs (b)(5) 
and (6) of this section.
    (5) Notification of service provider change. If for any reason a 
sector decides to change approved service providers used to provide 
dockside/roving or at-sea or electronic monitoring services required in 
this paragraph (b)(1)(v), the sector manager must first inform NMFS in 
writing in advance of the effective date of the change in

[[Page 23075]]

approved service providers in conjunction with the submission of the 
next weekly sector catch report specified in paragraph (b)(1)(vi)(B) of 
this section. A sector may employ more than one service provider at any 
time, provided any service provider employed by a sector meets the 
standards specified in paragraph (b)(4) of this section.
* * * * *
    (viii) ACE transfers. All or a portion of a sector's ACE for any NE 
multispecies stock may be transferred to another sector at any time 
during the fishing year and up to 2 weeks into the following fishing 
year (i.e., through May 14), unless otherwise instructed by NMFS, to 
cover any overages during the previous fishing year. A sector is not 
required to transfer ACE to another sector. An ACE transfer only 
becomes effective upon approval by NMFS, as specified in paragraph 
(b)(1)(viii)(B) of this section.
* * * * *
    (C) Duration of transfer. Notwithstanding ACE carried over into the 
next fishing year pursuant to paragraph (b)(1)(i)(C) of this section, 
ACE transferred pursuant to this paragraph (b)(1)(viii) is only valid 
for the fishing year in which the transfer is approved, with the 
exception of ACE transfer requests that are submitted up to 2 weeks 
into the subsequent fishing year to address any potential ACE overages 
from the previous fishing year, as provided in paragraph (b)(1)(iii) of 
this section, unless otherwise instructed by NMFS.
* * * * *
    (2) Operations plan and sector contract. To be approved to operate, 
each sector must submit an operations plan and preliminary sector 
contract to the Regional Administrator no later than September 1 prior 
to the fishing year in which the sector intends to begin operations, 
unless otherwise instructed by NMFS. A final roster, sector contract, 
and list of Federal and state permits held by participating vessels for 
each sector must be submitted by December 1 prior to the fishing year 
in which the sector intends to begin operations, unless otherwise 
instructed by NMFS. The operations plan may cover a 1- or 2-year 
period, provided the analysis required in paragraph (b)(3) of this 
section is sufficient to assess the impacts of sector operations during 
the 2-year period and that sector membership, or any other parameter 
that may affect sector operations during the second year of the 
approved operations plan, does not differ to the point where the 
impacts analyzed by the supporting NEPA document are compromised. Each 
vessel and vessel operator and/or vessel owner participating in a 
sector must agree to and comply with all applicable requirements and 
conditions of the operations plan specified in this paragraph (b)(2) 
and the letter of authorization issued pursuant to paragraph (c)(2) of 
this section. It shall be unlawful to violate any such conditions and 
requirements unless such conditions or restrictions are identified in 
an approved operations plan as administrative only. If a proposed 
sector does not comply with the requirements of this paragraph (b)(2), 
NMFS may decline to propose for approval such sector operations plans, 
even if the Council has approved such sector. At least the following 
elements must be contained in either the final operations plan or 
sector contract submitted to NMFS:
* * * * *
    (5) Dockside monitoring operational standards. In addition to the 
independent third-party monitoring provider standards specified in 
paragraph (b)(4) of this section, any dockside monitoring program 
developed by NMFS pursuant to paragraph (b)(1)(v)(B)(1) of this section 
must meet the following operational standards to be approved by NMFS:
    (i) * * *
    (A) * * *
    (1) Trip-start hail report. As instructed by the Regional 
Administrator, the vessel operator must submit a trip-start hail report 
prior to departing port at the beginning of each trip notifying the 
sector manager and/or dockside/roving monitor service provider of the 
vessel permit number; trip ID number in the form of the VTR serial 
number of the first VTR page for that trip, or another trip identifier 
specified by NMFS; and an estimate of the date and time of arrival to 
port. Trip-start hail reports by vessels operating less than 6 hours or 
within 6 hours of port must also include estimated date and time of 
offload. If the vessel operator does not receive confirmation of the 
receipt of the trip-start hail report from the dockside/roving monitor 
service provider within 10 minutes of sending the original trip-start 
hail report, the operator must contact the service provider to confirm 
the trip-start hail report via an independent back-up system developed 
by the service provider.
* * * * *
    (ii) * * *
    (E) Inspection of fish holds. A dockside/roving monitor assigned to 
observe the offloading of fish from a particular trip shall inspect the 
fish holds, or any other areas of the vessel in which fish are stored, 
to determine if all fish are offloaded for that particular trip.
* * * * *
    (c) * * *
    (2) * * *
    (i) Regulations that may not be exempted for sector participants. 
The Regional Administrator may not exempt participants in a sector from 
the following Federal fishing regulations: NE multispecies year-round 
closure areas; permitting restrictions (e.g., vessel upgrades, etc.); 
gear restrictions designed to minimize habitat impacts (e.g., roller 
gear restrictions, etc.); and reporting requirements. For the purposes 
of this paragraph (c)(2)(i), the DAS reporting requirements specified 
at Sec.  648.82; the SAP-specific reporting requirements specified at 
Sec.  648.85; and the reporting requirements associated with a dockside 
monitoring program specified in paragraph (b)(5)(i) of this section are 
not considered reporting requirements, and the Regional Administrator 
may exempt sector participants from these requirements as part of the 
approval of yearly operations plans. This list may be modified through 
a framework adjustment, as specified in Sec.  648.90.
* * * * *
    (d) * * *
    (20) State of Maine Permit Banking Sector.
    (21) State of Rhode Island Permit Bank Sector.
    (22) State of New Hampshire Permit Bank Sector.
    (23) State of Massachusetts Permit Bank Sector.
    (24) Sustainable Harvest Sector III.

0
8. In Sec.  648.88, revise paragraph (a)(1), and add paragraph 
(a)(2)(iv) to read as follows:


Sec.  648.88  Multispecies open access permit restrictions.

    (a) * * *
    (1) The vessel may possess and land up to 75 lb (90.7 kg) of cod, 
and up to the landing and possession limit restrictions for other NE 
multispecies specified in Sec.  648.86, provided the vessel complies 
with the restrictions specified in paragraph (a)(2) of this section. If 
either the GOM or GB cod trip limit applicable to a vessel fishing 
under a NE multispecies DAS permit, as specified in Sec.  648.86(b)(1) 
and (2), respectively, is adjusted by NMFS, the cod trip limit 
specified in this paragraph (a)(1) shall be adjusted proportionally 
(rounded up to the nearest 25 lb (11.3

[[Page 23076]]

kg)). For example, if the GOM cod trip limit specified at Sec.  
648.86(b)(1) doubled, then the cod trip limit for the Handgear B 
category fishing in the GOM Regulated Mesh Area would also double to 
150 lb (68 kg).
    (2) * * *
    (iv) Declaration. To fish for GB cod south of the GOM Regulated 
Mesh Area, as defined at Sec.  648.80(a)(1), a vessel owner or operator 
must obtain, and retain on board, a letter of authorization from the 
Regional Administrator declaring an intent to fish south of the GOM 
Regulated Mesh Area, and may not fish in any other area for a minimum 
of 7 consecutive days from the effective date of the letter of 
authorization. Such a vessel may transit the GOM Regulated Mesh Area, 
provided that their gear is stowed in accordance with the provisions at 
Sec.  648.23(b).
* * * * *

0
9. In Sec.  648.89, revise paragraph (e)(1) to read as follows:


Sec.  648.89  Recreational and charter/party vessel restrictions.

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

0
10. In Sec.  648.90, revise paragraph (a)(4)(iii)(E)(2) to read as 
follows:


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

    (a) * * *
    (4) * * *
    (iii) * * *
    (E) * * *
    (2) Commercial allocation. The ABC/ACL for regulated species or 
ocean pout stocks available to the commercial NE multispecies fishery, 
after consideration of the recreational allocation pursuant to 
paragraph (a)(4)(iii)(E)(1) of this section, shall be divided between 
sectors operating under an approved sector operations plan, as 
described at Sec.  648.87(c), and vessels operating under the 
provisions of the common pool, as defined in this part, based upon the 
cumulative PSCs of vessels/permits participating in sectors calculated 
pursuant to Sec.  648.87(b)(1)(i)(E). Unless otherwise specified in 
paragraph (a)(5) of this section, regulated species or ocean pout catch 
by common pool and sector vessels shall be deducted from the sub-ACL/
ACE allocated pursuant to this paragraph (a)(4)(iii)(E)(2) for the 
purposes of determining whether adjustments to common pool measures are 
necessary, pursuant to the common pool AMs specified in Sec.  
648.82(n), or whether sector ACE overages must be deducted, pursuant to 
Sec.  648.87(b)(1)(iii).
* * * * *
[FR Doc. 2011-9705 Filed 4-19-11; 4:15 pm]
BILLING CODE 3510-22-P