[Federal Register Volume 76, Number 246 (Thursday, December 22, 2011)]
[Proposed Rules]
[Pages 79612-79619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32851]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110901552-1736-01]
RIN 0648-BB34


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast (NE) 
Multispecies Fishery; Amendment 17

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement measures in Amendment 
17 to the Northeast Multispecies Fishery Management Plan. This action 
would amend the Northeast Multispecies Fishery Management Plan to 
explicitly define and facilitate the effective operation of state-
operated permit banks. As proposed in Amendment 17, state-operated 
permit banks would be allocated an annual catch entitlement and 
specifically authorized to provide their annual catch entitlement and/
or days-at-sea to approved groundfish sectors for the purpose of 
enhancing the fishing opportunities available to sector members. This 
action also includes a provision that would allow NMFS to issue a days-
at-sea credit to a vessel that cancels a fishing trip prior to setting 
or hauling fishing gear and the vessel, therefore, does not catch or 
land fish at any time on the trip.

DATES: Comments must be received by January 23, 2012.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2011-0186, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter NOAA-NMFS-2011-0186 in the keyword search. 
Locate the document you wish to comment on from the resulting list and 
click on the ``Submit a Comment'' icon on the right of that line.
     Mail: Submit written comments to Patricia A. Kurkul, 
Regional Administrator, NMFS, Northeast Regional Office, 55 Great 
Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on NE Multispecies Amendment 17.''
     Fax: (978) 281-9135, Attn: William Whitmore
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected

[[Page 79613]]

information. NMFS will accept anonymous comments (enter ``N/A'' in the 
required fields if you wish to remain anonymous). Attachments to 
electronic comments will be accepted in Microsoft Word or Excel, 
WordPerfect, or Adobe PDF file formats only.
    Copies of the Amendment 17 document, including an environmental 
assessment and a regulatory impact review, are available from the 
Northeast Regional Office of the National Marine Fisheries Service, 55 
Great Republic Drive, Gloucester, MA 01930. This document is also 
accessible via the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: William Whitmore, Fishery Policy 
Analyst, (978) 281-9182; fax: (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The final rule implementing Amendment 13 to the Northeast (NE) 
Multispecies Fishery Management Plan (FMP) (69 FR 22906; April 27, 
2004) specified a process for forming sectors within the NE 
multispecies fishery, implemented restrictions applicable to all 
sectors, and authorized the allocation of a total allowable catch (TAC) 
for specific groundfish species to a sector. As approved in Amendment 
13, each sector must prepare a sector operations plan, which must be 
submitted to NMFS along with signed sector member contracts. Each 
sector operations plan must contain certain elements, including rules 
that sector members agree to abide by to avoid exceeding their sector's 
TAC. An environmental assessment (EA), or other appropriate analysis, 
must be prepared that analyzes the individual and cumulative impacts of 
all proposed sector operations. Additionally, the public must be 
provided an opportunity to comment on the proposed sector operations 
plans, sector contracts, and EA. Amendment 13 also implemented the 
first operational sector. A second sector was approved in Framework 
Adjustment (FW) 42 (71 FR 62156; October 23, 2006).
    Amendment 16 (74 FR 18262; April 9, 2010) expanded sector 
management measures and authorized 17 new sectors, for a total of 19 
sectors. The amendment defined a sector as ``[a] group of persons 
(three or more persons, none of whom have an ownership interest in the 
other two persons in the sector) holding limited access vessel permits 
who have voluntarily entered into a contract and agree to certain 
fishing restrictions for a specified period of time, and which has been 
granted a TAC(s) [sic] in order to achieve objectives consistent with 
applicable FMP goals and objectives.'' A sector's TAC is referred to as 
an annual catch entitlement (ACE). Each sector's ACE for a particular 
stock represents a share of that stock's annual catch limit (ACL) 
available to commercial NE multispecies vessels, based upon the 
potential sector contribution (PSC) of permits participating in that 
sector. Regional Administrator (RA) approval is required for a sector 
to be authorized to fish and to be allocated an ACE for stocks of 
regulated NE multispecies during each fishing year. Each sector is 
responsible for monitoring its catch, reporting catch to NMFS, and 
ensuring it does not exceed its ACE.
    In 2009 and 2010, NOAA provided nearly $6 million in funding 
through Federal grants to the states of Maine, New Hampshire, 
Massachusetts, and Rhode Island for the express purpose of establishing 
several ``permit banks'' of NE multispecies fishing vessel permits. The 
permit banks were developed jointly by the states and NMFS, through 
memoranda of agreement (MOA), to help promote the effective 
implementation of catch share programs in New England and to mitigate 
some of the potential adverse socio-economic impacts to fishing 
communities and small-scale fishing businesses. The intent of the 
permit bank program is for states to use the funding to obtain fishing 
vessel permits and then to provide the fishing opportunities associated 
with those permits in the form of ACE and/or days-at-sea (DAS) to 
qualified fishermen.
    Currently, state-operated permit banks are not recognized under the 
provisions of the NE Multispecies FMP, and the only entities allocated 
and authorized to transfer a sector's ACE to approved sectors are other 
approved sectors. The only mechanism currently available for a state-
operated permit bank to operate (i.e., transfer ACE to fishermen in 
sectors) is for the state permit bank to either join an existing sector 
as a member or to form a sector with other permit holders.
    Although FW 45 (76 FR 23042; April 25, 2011) authorized five 
additional sectors, including the Maine Permit Bank Sector, the State 
of Rhode Island Permit Banking Sector, the State of New Hampshire 
Permit Bank Sector, and the Commonwealth of Massachusetts Permit Bank 
Sector. Only the Maine Permit Bank Sector fulfilled the necessary 
roster requirements and gained approval by the RA for operation during 
FY 2011 (76 FR 23076; April 25, 2011). Several states have been 
hesitant to enroll in or form a sector due to sector liability issues. 
As a result, the other state-operated permit banks have been unable to 
utilize any Federal funding to allocate ACE to qualifying sectors.
    This action proposes to amend the NE Multispecies FMP to explicitly 
define and facilitate the effective operation of state-operated permit 
banks. This action would also amend the regulations implementing the NE 
Multispecies, Monkfish, and Atlantic Sea Scallop FMPs to include a 
provision that would allow NMFS to issue a DAS credit to a vessel that 
canceled a fishing trip prior to setting or hauling fishing gear and 
the vessel, therefore, did not catch or land fish at any time on the 
trip.

Proposed Measures

    The following summarizes the measures proposed by the New England 
Fishery Management Council (Council) in Amendment 17 and contained in 
this proposed rule. These measures build upon the provisions 
implemented by previous management actions and are intended to either 
supplement or replace existing regulations that would otherwise apply 
to state-operated permit banks. This proposed rule also includes 
revisions to regulations that are not specifically identified in 
Amendment 17, but are necessary to clarify existing provisions, as 
described further below. The proposed regulations implementing measures 
in Amendment 17 were deemed by the Council to be consistent with the 
amendment, and necessary to implement such provisions pursuant to 
section 303(c) of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), through a September 7, 2011, 
letter from the Council Chairman to the RA.

1. Definition of a State-Operated Permit Bank

    In Amendment 17, NMFS proposes to define a state-operated permit 
bank as a permit depository established through an agreement between 
NOAA and one or more states in which Federal grant funds are used by 
the state(s) to establish a bank of Federal fishing vessel permits so 
that the fishing access privileges associated with those permits may be 
allocated by the state(s) to qualifying commercial fishermen and 
sectors according to criteria to which NOAA and the state(s) have 
mutually agreed through an MOA. State-operated permit banks would be 
separate entities from the groundfish sectors. As proposed, state-
operated permit banks would no longer be subject to the requirement 
that three or more persons be included in a sector, which the states 
claim inhibits the development of their permit banks.

[[Page 79614]]

    State-operated permit banks shall be deemed to meet the definition 
above, and therefore qualify to operate as intended in this proposed 
action, so long as the state-operated permit bank was initially 
established using a Federal grant award from NOAA for this purpose and 
the state maintains a valid MOA with NMFS. The MOA between NMFS and 
each state establishes the parameters that the state must follow in 
order to receive Federal grant funding that is then applied towards 
purchasing NE multispecies permitted vessels and transferring the ACE 
allocated to the permit bank to approved sectors. A state-operated 
permit bank must have a valid MOA in order to operate.

2. Clarification and Streamlining of Administrative Procedures and 
Requirements for State-Operated Permit Banks

    Under this amendment, state-operated permit banks would be 
allocated ACE and specifically authorized to provide ACE to approved 
groundfish sectors and/or DAS for the purpose of enhancing the fishing 
opportunities available to sector members. State-operated permit banks 
would be required to comply with the terms and conditions of any 
applicable Federal grant agreement (i.e., a Federal grant award 
provided to a state for the purpose of establishing, enhancing, or 
operating a permit bank), as well as meet the requirements specified in 
an MOA established with NMFS for administering the permit bank.
    State-operated permit banks would be required to report to the 
Council annually on the performance of the permit bank. Such reports 
would include, to the extent that the information does not conflict 
with any regulations regarding the protection of personal and/or 
proprietary information, all reporting requirements within the MOA. 
State-operated permit banks would be exempt from many of the sector 
reporting requirements because state-operated permit banks are 
prohibited from actively fishing. For example, at-sea monitoring and 
weekly catch reports would be unnecessary since the permit bank would 
not actually be fishing and would be unable to exceed its ACE (it 
cannot transfer out more ACE than it was initially allocated).
    State-operated permit banks would not be authorized to acquire 
additional ACE or DAS for a fishing year through a transfer from a 
sector or other vessels because the purpose of the state-operated 
permit banks is to transfer out ACE and DAS to sector fishermen in need 
of additional allocation, not to accumulate ACE or DAS. However, if a 
sector receives a transfer of ACE, or a vessel receives DAS from a 
state-operated permit bank but wishes to return either the (unused) ACE 
or DAS to the permit bank, NMFS could, upon written agreement by both 
parties, void the initial transfer, thereby returning the ACE or DAS to 
the permit bank. The state permit bank would then be free to 
redistribute the available ACE or DAS to another sector or vessel. In 
addition, and subject to the terms and conditions of the states' permit 
bank MOAs with NMFS, state-operated permit banks would be authorized to 
transfer ACE, on a stock-by-stock basis, to other state-operated permit 
banks for the purpose of maximizing the fishing opportunities made 
available by the permit banks to sector members. For example, the Rhode 
Island state permit bank could transfer Gulf of Maine cod to the Maine 
state permit bank in exchange for Southern New England/Mid-Atlantic 
yellowtail flounder.
    If more funds become available to the state-operated permit banks, 
the use of those additional funds in state-operated permit banks must 
first be reviewed by the Council for consistency with the goals and 
objectives of the NE Multispecies FMP prior to the state-operated 
permit bank using those funds outside of the sector process. A state 
would not be authorized to acquire a permit that would be used in a 
state-operated permit bank, or to allocate or transfer any ACE that may 
be associated with new permits obtained as a result of the additional 
funds, unless the state either (1) provides the Council the opportunity 
to review the implications of the expanded permit bank to the goals and 
objectives of the Northeast Multispecies FMP, or (2) forms or joins an 
approved groundfish sector.
    NMFS is interested in specific public comment on whether state-
operated permit banks should be prohibited from using additional funds 
to acquire permits prior to Council review. NMFS is concerned with the 
consistency of this measure with other groundfish sector measures, 
because there is nothing in the current regulations that prohibits any 
interested party, including a state-operated permit bank, from 
acquiring a permit. For example, under current regulations, a state 
could purchase a permit and lease out the DAS without forming a state-
operated permit bank or a sector. While Amendment 17 does not contain 
exact language prohibiting state-operated permit banks from acquiring 
additional permits with additional funding prior to Council review, the 
Council argues that the proposed measure is consistent with the 
Council's intent.
    NMFS is also interested in specific public comment on whether 
state-operated permit banks should be allowed to carry-over unused ACE 
and DAS from one fishing year into the next. Sectors may carry-over up 
to 10 percent of their unused ACE from one fishing year into the next; 
however, whether state-operated permit banks should be able to carry-
over ACE or DAS was not discussed by the Council or contemplated in 
Amendment 17. In a letter to the RA dated September 7, 2011, deeming 
the proposed regulations pursuant to section 303(c) of the Magnuson-
Stevens Act, the Council claimed that ``state-operated permit banks are 
allowed to make the use of carry-over provisions, subject to the 
current restrictions on the amount of DAS or ACE that can be carried 
over.'' The Council contends that this is the only equitable approach 
and will facilitate efficient operations of these entities. NMFS is 
concerned that allowing state-operated permit banks to carry-over 
unused ACE or DAS could potentially encourage state-operated permit 
banks to hold ACE or DAS instead of transferring it out to sectors and 
fishermen to be used.
    The regulations proposed in this action would allow state-operated 
permit banks to carry-over ACE and would prohibit state-operated permit 
banks from acquiring a permit to be used in a state-operated permit 
bank with additional funds until the state-operated permit bank 
provides the Council the opportunity to review the potential 
implications of purchasing the permit.

3. Canceled Trip DAS Credit

    This proposed rule includes a provision, not related to Amendment 
17, that would allow NMFS to credit DAS to a vessel that cancels a 
fishing trip prior to setting or hauling fishing gear and the vessel, 
therefore, does not catch or land fish at any time on the trip. This 
provision would apply to all fisheries that operate under a DAS 
management system, specifically the NE multispecies, monkfish, and 
Atlantic sea scallop fisheries. Because this DAS credit would only be 
granted for situations in which no fishing activity occurs, it would 
not likely have a negative impact on fishing-related mortality in the 
DAS fisheries. If approved, this measure would be applied retroactively 
for the 2011 fishing year.
    To ensure the enforceability of this provision, vessels seeking a 
DAS credit would be required to send a notification

[[Page 79615]]

to NMFS Office of Law Enforcement (OLE) to coordinate a monitored 
landing event. Vessels that are required to use a vessel monitoring 
system (VMS) would be required to send a VMS email to OLE at the 
earliest opportunity prior to crossing the VMS demarcation line upon 
return to port. Vessels not required to use a VMS would be required to 
use the interactive voice response (IVR) line to make the notification. 
Additionally, both VMS and IVR vessels would also have to submit a 
written DAS credit form along with the vessel trip report for the 
canceled trip to NMFS.
    The following information would be required to be submitted on the 
written DAS credit request form: Owner/corporation name; vessel name; 
permit number; U.S. Coast Guard documentation number or state 
registration number; vessel operator name; trip departure and landing 
date; date and time VMS email was sent or IVR backup line was called; 
and reason for canceling the trip. Forms would be required to be 
submitted within 30 days from the day the vessel returned to port on 
the canceled trip.
    For DAS credits that are requested near the end of the fishing 
year, if approved, the credited DAS would apply to the year in which 
the canceled trip occurred. Credited DAS that remain unused at the end 
of the fishing year or are not credited until the following fishing 
year could be carried over into the next fishing year, provided they do 
not to exceed the maximum number of DAS allowed to be carried over for 
the fishery being credited.
    This rule requires NMFS receive approval to modify currently 
approved information collections. Because of the Paperwork Reduction 
Act (PRA) requirements to which this provision is subject, it is likely 
that Amendment 17, if approved, would be implemented before the PRA 
requirements would be approved by the Office of Management and Budget 
(OMB). If so, in the interim, to allow the industry to utilize this 
provision, NMFS would accept and, if warranted, approve DAS credit 
requests for the current fishing year without requiring the reporting 
requirements specified under this provision.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has made a preliminary determination that 
this proposed rule is consistent with the NE Multispecies, Monkfish, 
and Atlantic Sea Scallop FMPs, Amendment 17, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment. Pursuant to the procedures 
established to implement section 6 of E.O. 12866, the Office of 
Management and Budget has determined that this proposed rule is not 
significant.
    Amendment 17 would amend the NE Multispecies FMP to formally 
define, and facilitate the effective operation of, NOAA-sponsored, 
state-operated permit banks. The purpose of this amendment is to: (1) 
Define a NOAA-sponsored, state-operated permit bank and distinguish 
this type of entity from that of a groundfish sector; and (2) clarify 
and streamline the administrative procedures and requirements to which 
NOAA-sponsored, state-operated permit banks must comply in order to 
operate outside of the sector process (i.e., be allocated ACE and 
provide ACE and/or DAS to approved groundfish sectors). This rule also 
proposes to implement a provision that is unrelated to Amendment 17, 
allowing NMFS to credit DAS to a vessel that cancels a fishing trip 
prior to setting or hauling fishing gear and the vessel, therefore, 
does not catch or land fish at any time on the trip.
    A notice of availability (NOA) for Amendment 17 was published on in 
the Federal Register on December 12, 2011 (76 FR 77200). Public 
comments are being solicited on the amendment through the end of the 
comment period on January 23, 2012.
    Public comments on the proposed rule must be received by the end of 
the comment period on the amendment, as published in the NOA, to be 
considered in the decision to approve or disapprove the amendment. All 
comments received by the end of the comment period on the amendment, 
whether specifically directed to the amendment or the proposed rule, 
will be considered in the approval/disapproval decision. Comments 
received after that date will not be considered in the approval/
disapproval decision on the amendment, but may be considered in the 
development of the final rule. To be considered, comments must be 
received by close of business on the last day of the comment period; 
that does not mean postmarked or otherwise transmitted by that date.
    Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5 
U.S.C. 601-12, the Chief Counsel for Regulation of the Department of 
Commerce certified to the Chief Counsel for Advocacy of the Small 
Business Administration that, as proposed, Amendment 17 would not have 
a significant economic impact on a substantial number of small 
entities; therefore, an Initial Regulatory Flexibility Analysis (IRFA) 
has not been prepared. The factual basis for this determination is 
explained below.
    If implemented, this rule would authorize state-operated fishery 
permit banks to obtain and distribute DAS and ACE to vessels and 
sectors, and also allow NMFS to credit DAS to vessels that cancel 
fishing trips prior to setting or hauling fishing gear. This rule would 
directly impact the state fishery management agencies subject to the 
administrative procedures for operating permit banks and vessels with 
DAS credits.
    The state-operated permit bank provisions have no direct impacts on 
any small fishing entities or businesses. There are currently four 
state agencies that would be directly affected by this action: The 
State of Maine Department of Marine Resources; the State of New 
Hampshire Fish and Game Department; the Commonwealth of Massachusetts 
Department of Marine Fisheries; and the State of Rhode Island 
Department of Environmental Management. Should NOAA provide additional 
funding to other Northeast region states for the same purpose 
(establishing and operating permit banks for the Northeast multispecies 
fishery), the number of entities directly affected by this action could 
expand to as many as 12 (all coastal states from North Carolina through 
Maine that are represented on either the Mid-Atlantic or New England 
Fishery Management Councils). However, none of these state agencies 
would be considered ``small entities'' for the purpose of the RFA, 
which limits consideration of government jurisdictions to those with 
fewer than 50,000 residents.
    The DAS credit provision will affect a maximum of 1,908 small 
entities that have DAS allocations. The rule's impact, however, is 
expected to be positive for all such entities. This new provision is 
not a restriction, but rather provides a mechanism for small entities 
to regain lost DAS due to circumstances beyond their control. It would 
allow vessels that cancel a fishing trip before engaging in fishing 
activity to regain their DAS for that trip, providing another 
opportunity to profit from the DAS that would have otherwise been lost. 
However, due to the limited nature of this provision, and because this 
behavior is not reflective of normal fishing operations, the positive 
economic gain, if any, from this provision is expected to be minimal.
    The RFA also requires Federal agencies to consider 
disproportionality and profitability to determine the significance of 
regulatory impacts. If

[[Page 79616]]

either criterion is met for a substantial number of small entities, 
then the action should not be certified. The criterion is not met 
because there are no small entities disproportionately affected 
relative to large entities. Further, no reductions in profit are 
expected for any small entities, so the profitability criterion is not 
met. Also, state government agencies operating on grant funding 
directly affected by this action, may not ``profit'' from the operation 
of the permit banks. Any revenue generated by the state through the 
operation of the permit bank (e.g., through an auction bid, cost-
recovery fee, landings tax, etc.) is considered ``program income'' 
under Department of Commerce regulations (15 CFR 24.25) and may only be 
used by the state to offset costs incurred in the administration and 
operation of the permit bank program, or must be returned to NOAA to 
defray the amount of the initial grant award. No assumptions are 
necessary to conduct the analyses in support of this conclusion.
    As a result of the above analysis, an IRFA is not required and none 
has been prepared.
    This proposed rule contains collection-of-information requirements 
subject to review and approval by OMB under the PRA. These requirements 
have been submitted to OMB for approval under the 0648-0202 and 0648-
1212 families of forms. Under the proposed action, vessel owners would 
be required to provide NMFS with an initial notification as well as the 
submission of a DAS credit request form. The public burden for 
requesting a DAS credit is estimated to average 15 minutes per 
application, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection information.
    Based upon permit type, a maximum of 1,908 permits holders could 
possibly apply for a DAS credit. With an average response time of 15 
minutes, the total burden for applying for a DAS credit is 478 hours. 
This analysis was conducted assuming each permitted vessel requests one 
DAS credit per fishing year. Of the 1,908 permit holders, 845 are VMS 
vessels and the remaining 1,063 are assumed to be either IVR vessels or 
inactive vessels. Although the notification method depends upon the 
vessels reporting requirements, the associated time burdens will be 
similar.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to the 
Regional Administrator (see ADDRESSES), and email to [email protected] or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 648

    Fish, Fisheries, Reporting and recordkeeping requirements.

    Dated: December 16, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 648 as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    2. In Section 648.2, revise the definition for ``Annual catch 
entitlement (ACE)'' and add a new definition for ``state-operated 
permit bank'' in alphabetical order to read as follows:


Sec.  648.2  Definitions

* * * * *
    Annual catch entitlement (ACE), with respect to the NE multispecies 
fishery, means the share of the annual catch limit (ACL) for each NE 
multispecies stock that is allocated to an individual sector or state-
operated permit bank based upon the cumulative fishing history attached 
to each permit participating in that sector or held by a state-operated 
permit bank in a given year. This share may be adjusted due to 
penalties for exceeding the sector's ACE for a particular stock in 
earlier years, or due to other violations of the FMP, including the 
yearly sector operations plan. When a sector's or state-operated permit 
bank's share of a NE multispecies stock, as determined by the fishing 
histories of vessels participating in that sector or permits held by a 
state-operated permit bank, is multiplied by the available catch, the 
result is the amount of ACE (live weight in pounds) that can be 
harvested (landings and discards) by participants in that sector or 
transferred by a state-operated permit bank, during a particular 
fishing year.
* * * * *
    State-operated permit bank means a depository established and 
operated by a state through an agreement between NMFS and a state in 
which Federal grant funds have been used by the state to obtain Federal 
fishing vessel permits so that the fishing access privileges associated 
with those permits may be allocated to qualified persons and that meets 
the requirement of Sec.  648.87(e).
* * * * *
    3. In Sec.  648.53, revise paragraph (f) to read as follows:


Sec.  648.53  Acceptable biological catch (ABC), annual catch limits 
(ACL), annual catch targets (ACT), DAS allocations, and individual 
fishing quotas (IFQ).

* * * * *
    (f) DAS credits--(1) Good Samaritan credit. A limited access vessel 
operating under the DAS program and that spend time at sea assisting in 
a USCG search and rescue operation or assisting the USCG in towing a 
disabled vessel, and that can document the occurrence through the USCG, 
will not accrue DAS for the time documented.
    (2) Canceled trip DAS credit. A limited access vessel operating 
under the DAS program and that ends a fishing trip prior to setting 
and/or hauling fishing gear for any reason may request a cancelled trip 
DAS credit for the trip based on the following conditions and 
requirements:
    (i) There is no fish onboard the vessel and no fishing operations 
on the vessel were initiated, including setting and/or hauling fishing 
gear;
    (ii) The owner or operator of the vessel fishing under a DAS 
program and required to use a VMS as specified under Sec.  648.10(b) 
makes an initial trip cancelation notification from sea, at the time 
the trip was canceled, or at the earliest opportunity prior to crossing 
the demarcation line as defined at Sec.  648.10(a). These reports are 
in the form of an email to NMFS Office of Law Enforcement and include 
at least the following information: Operator name; vessel name; vessel 
permit number; port where vessel will return; date trip started; 
estimated date/time of return to port; and a statement by the operator 
that no fish were onboard and no fishing activity occurred;

[[Page 79617]]

    (iii) The owner or operator of the vessel operating under the DAS 
program required to use the IVR call in as specified under Sec.  
648.10(h) makes an initial trip cancelation notification to NMFS by 
calling the IVR back at the time the trip was canceled, or at the 
earliest opportunity prior to returning to port. This request must 
include at least the following information: Operator name; vessel name; 
vessel permit number; port where vessel will return; date trip started; 
estimated date/time of return to port; and a statement from the 
operator that no fish were onboard and no fishing activity occurred; 
and
    (iv) The owner or operator of the vessel requesting a canceled trip 
DAS credit, in addition to the requirements in paragraphs (f)(2)(ii) 
and (iii) of this section, submits a written DAS credit request form to 
NMFS within 30 days of the vessel's return to port from the canceled 
trip. This application must include at least the following information: 
Date and time when the vessel canceled the fishing trip; date and time 
of trip departure and landing; operator name; owner/corporation name; 
permit number; hull identification number; vessel name; date and time 
notification requirements specified under paragraphs (f)(2)(ii) and 
(iii) of this section were made; reason for canceling the trip; and 
owner/operator signature and date; and
    (v) The vessel trip report for the canceled trip as required under 
Sec.  648.7(b) is submitted along with the DAS credit request form; and
    (vi) For DAS credits that are requested near the end of the fishing 
year as defined at Sec.  648.2, and approved by the Regional 
Administrator, the credited DAS apply to the fishing year in which the 
canceled trip occurred. Credited DAS that remain unused at the end of 
the fishing year or that are not credited until the following fishing 
year may be carried over into the next fishing year, not to exceed the 
maximum number of carryover DAS as specified under paragraph (d) of 
this section.
* * * * *
    4. In Sec.  648.82, revise paragraph (f) and reserve paragraph (m) 
to read as follows:


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

* * * * *
    (f) DAS credits--(1) Good Samaritan credit. A limited access vessel 
fishing under the DAS program and that spends time at sea assisting in 
a USCG search and rescue operation or assisting the USCG in towing a 
disabled vessel, and that can document the occurrence through the USCG, 
shall not accrue DAS for the time documented.
    (2) Canceled trip DAS credit. A limited access vessel operating 
under the DAS program and that ends a fishing trip prior to setting 
and/or hauling fishing gear for any reason may request a cancelled trip 
DAS credit for the trip based on the following conditions and 
requirements:
    (i) There is no fish onboard the vessel and no fishing operations 
on the vessel were initiated, including setting and/or hauling fishing 
gear;
    (ii) The owner or operator of the vessel fishing under a DAS 
program and required to use a VMS as specified under Sec.  648.10(b) 
makes an initial trip cancelation notification from sea, at the time 
the trip was canceled, or at the earliest opportunity prior to crossing 
the demarcation line as defined at Sec.  648.10(a). These reports are 
in the form of an email to NMFS Office of Law Enforcement and include 
at least the following information: Operator name; vessel name; vessel 
permit number; port where vessel will return; date trip started; 
estimated date/time of return to port; and a statement from the 
operator must that no fish were onboard and no fishing activity 
occurred; and
    (iii) The owner or operator of the vessel operating under the DAS 
program required to use the IVR call in as specified under Sec.  
648.10(h) makes an initial trip cancelation notification to NMFS by 
calling the IVR back at the time the trip was canceled, or at the 
earliest opportunity prior to returning to port. This request must 
include at least the following information: Operator name; vessel name; 
vessel permit number; port where vessel will return; date trip started; 
estimated date/time of return to port; and a statement from the 
operator that no fish were onboard and no fishing activity occurred; 
and
    (iv) The owner or operator of the vessel requesting a canceled trip 
DAS credit, in addition to the requirements in paragraphs (f)(2)(ii) 
and (iii) of this section, submits a written DAS credit request form to 
NMFS within 30 days of the vessel's return to port from the canceled 
trip. This application must include at least the following information: 
Date and time when the vessel canceled the fishing trip; date and time 
of trip departure and landing; operator name; owner/corporation name; 
permit number; hull identification number; vessel name; date and time 
notification requirements specified under paragraphs (f)(2)(ii) and 
(iii) of this section were made; reason for canceling the trip; and 
owner/operator signature and date; and
    (v) The vessel trip report for the canceled trip as required under 
Sec.  648.7(b) is submitted along with the DAS credit request form; and
    (vi) For DAS credits that are requested near the end of the fishing 
year as defined at Sec.  648.2, and approved by the Regional 
Administrator, the credited DAS apply to the fishing year in which the 
canceled trip occurred. Credited DAS that remain unused at the end of 
the fishing year or are not credited until the following fishing year 
and may be carried over into the next fishing year, not to exceed the 
maximum number of carryover DAS as specified under paragraph (a)(1) of 
this section.
    (3) DAS credit for standing by entangled whales. A limited access 
vessel fishing under the DAS program that reports and stands by an 
entangled whale may request a DAS credit for the time spent standing by 
the whale. The following conditions and requirements must be met to 
receive this credit:
    (i) At the time the vessel begins standing by the entangled whale, 
the vessel operator must notify the USCG and the Center for Coastal 
Studies, or another organization authorized by the Regional 
Administrator, of the location of the entangled whale and that the 
vessel is going to stand by the entangled whale until the arrival of an 
authorized response team;
    (ii) Only one vessel at a time may receive credit for standing by 
an entangled whale. A vessel standing by an entangled whale may 
transfer its stand-by status to another vessel while waiting for an 
authorized response team to arrive, provided it notifies the USCG and 
the Center for Coastal Studies, or another organization authorized by 
the Regional Administrator, of the transfer. The vessel to which stand-
by status is transferred must also notify the USCG and the Center for 
Coastal Studies or another organization authorized by the Regional 
Administrator of this transfer and comply with the conditions and 
restrictions of this part;
    (iii) The stand-by vessel must be available to answer questions on 
the condition of the animal, possible species identification, severity 
of entanglement, etc., and take photographs of the whale, if possible, 
regardless of the species of whale or whether the whale is alive or 
dead, during its stand-by status and after terminating its stand-by 
status. The stand-by vessel must remain on scene until the USCG or an 
authorized response team arrives, or the vessel is informed that an 
authorized response team will not arrive. If the vessel receives notice 
that a response team is not available, the vessel may discontinue 
standing-by the entangled

[[Page 79618]]

whale and continue fishing operations; and
    (iv) To receive credit for standing by an entangled whale, a vessel 
must submit a written request to the Regional Administrator. This 
request must include at least the following information: Date and time 
when the vessel began its stand-by status; date of first communication 
with the USCG; and date and time when the vessel terminated its stand-
by status. DAS credit shall not be granted for the time a vessel fishes 
when standing by an entangled whale. Upon a review of the request, NMFS 
shall consider granting the DAS credit based on information available 
at the time of the request, regardless of whether an authorized 
response team arrives on scene or a rescue is attempted. NMFS shall 
notify the permit holder of any DAS adjustment that is made or explain 
the reasons why an adjustment will not be made.
* * * * *
    5. In Sec.  648.87, add paragraph (e) to read as follows:


Sec.  648.87  Sector allocation.

* * * * *
    (e) State-operated permit bank. A state-operated permit bank must 
meet and is subject to the following requirements and conditions:
    (1) The state-operated permit bank must be initially established 
using a Federal grant award from NOAA through a valid Memorandum of 
Agreement (MOA) with NMFS and the state must maintain and comply with 
such MOA. The MOA must contain and the state must comply with at least 
the following requirements and conditions:
    (i) The state may not associate a state-operated permit bank permit 
with a vessel engaged in any fishing or other on-the-water activities;
    (ii) The state must establish the minimum eligibility criteria to 
determine whether a sector and its associated vessels are qualified to 
receive either ACE or DAS from the state-operated permit bank;
    (iii) The state must identify a program contact person for the 
state agency administering the state-operated permit bank;
    (iv) The state must provide to NMFS a list of all permits held by 
the state under the aegis of the state-operated permit bank, and 
declare which permits will be used in the coming fishing year for 
exclusively DAS leasing to common pool vessels and which permits are to 
be used exclusively for transferring ACE to sectors (including the 
leasing of DAS to sector vessels for the purpose of complying with the 
requirements of other FMPs); and
    (v) The state must prepare and submit an annual performance report 
to NMFS, and that said performance report must include, at a minimum, 
the following elements:
    (A) A comprehensive listing of all permits held by the state-
operated permit bank, identifying whether a permit was used for ACE 
transfers to sectors (including DAS leases to the sector members) or 
DAS leases to common pool vessels, the total amount of ACE, by stock, 
and DAS available to the state-operated permit bank for transfers and 
leases to sectors and common-pool vessels;
    (B) A comprehensive listing of all sectors to which ACE was 
transferred from the state-operated permit bank, including the amount, 
by stock, of ACE transferred to each sector, including a list of all 
vessels that harvested the ACE transferred to the sector and the 
amounts harvested;
    (C) A comprehensive listing of all sector vessels to which DAS were 
leased from the state-operated permit bank, including the number of DAS 
leased to each sector vessel; and
    (D) A comprehensive listing of all common pool vessels to which DAS 
were leased from the state-operated permit bank, including the number 
of DAS leased to each common pool vessel.
    (2) Eligibility. If a state is issued a permit that meets sector 
eligibility requirements, as defined in paragraph (a)(3) of this 
section, such permit may be held by a state-operated permit bank.
    (3) Allocation and utilization of ACE--(i) Allocation of ACE. The 
amount of ACE allocated to a state-operated permit bank shall be 
derived from the permits appropriately declared by the state to be 
``ACE permits,'' pursuant to paragraph (e)(1)(i)(v) of this section, 
for the fishing year and allocated on a stock-by-stock basis pursuant 
to paragraph (b)(1)(i) of this section.
    (ii) Acquiring ACE. Except as provided in this paragraph, a state-
operated permit bank may not acquire ACE for a fishing year through a 
transfer from a sector. If ACE is transferred to a sector from a state-
operated permit bank, NMFS may authorize the return of the unused 
portion of such ACE (up to the total originally transferred) to the 
state-operated permit bank upon written agreement by both parties. The 
state-operated permit bank may then redistribute the available ACE to 
another qualifying sector during that fishing year.
    (iii) Transferring ACE. Subject to the terms and conditions of the 
state-operated permit bank's MOAs with NMFS, as well as ACE transfer 
restrictions described in paragraph (b)(1)(viii) of this section, a 
state-operated permit bank may transfer ACE, on a stock-by-stock basis, 
to other state-operated permit banks.
    (4) Allocation and utilization of days-at-sea--(i) Allocation of 
DAS. The number of DAS available for a state-operated permit bank to 
provide to sector or common pool vessels shall be the accumulated NE 
Multispecies Category A DAS assigned to the fishing vessel permits held 
by the state and appropriately declared by the state pursuant to 
paragraph (e)(1)(i)(v) of this section to be either ``ACE permits'' or 
``common pool permits'' for that fishing year, consistent with the 
terms of the state's permit bank MOA.
    (ii) Acquiring DAS. A state-operated permit bank may not acquire 
DAS through a lease from a vessel permit (including permits held by 
other state-operated permit banks), as described in Sec.  684.82(k). If 
a vessel leases DAS from a state-operated permit bank, NMFS may 
authorize the return of the unused portion of such DAS to the state-
operated permit bank upon written agreement by both parties, provided 
none of the DAS had been used. The state-operated permit bank may then 
redistribute the available DAS to another vessel during the same 
fishing year.
    (5) Annual report. A state-operated permit bank shall report to the 
Council annually on the performance of the state-operated permit bank. 
Such reports shall include at a minimum and to the extent that the 
information does not conflict with any regulations regarding the 
protection of personal and/or proprietary information, all elements 
listed in paragraph (e)(1)(v) of this section.
    (6) Use of additional funds. If additional funds from any source 
become available to a state-operated permit bank, the state-operated 
permit bank may not acquire a permit that will be used in a state 
operated permit bank, or allocate or transfer any ACE that may be 
associated with new permit, with such additional funds, until the 
state-operated permit bank provides the Council the opportunity to 
review the implications of the expanded state-operated permit bank to 
the goals and objectives of the NE Multispecies FMP.
    (7) Violation of the terms and conditions applicable to a state-
operated permit bank. If a state or state-operated permit bank violates 
or fails to comply with any of the requirements

[[Page 79619]]

and conditions specified in this section or in the MOA referenced in 
paragraph (e)(1) of this section, the state or state-operated permit 
bank is subject to the actions and penalties specified in Sec.  
648.4(n) or the MOA.
    6. In Sec.  648.90, revise paragraph (a)(2)(iii) to read as 
follows:


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

* * * * *
    (a) * * *
    (2) * * *
    (iii) Based on this review, the PDT shall recommend ACLs and 
develop options necessary to achieve the FMP goals and objectives, 
which may include a preferred option. The PDT must demonstrate through 
analyses and documentation that the options they develop are expected 
to meet the FMP goals and objectives. The PDT may review the 
performance of different user groups or fleet sectors in developing 
options. The range of options developed by the PDT may include any of 
the management measures in the FMP, including, but not limited to: 
ACLs, which must be based on the projected fishing mortality levels 
required to meet the goals and objectives outlined in the FMP for the 
12 regulated species and ocean pout if able to be determined; 
identificating and distributing ACLs and other sub-components of the 
ACLs among various segments of the fishery; AMs; DAS changes; 
possession limits; gear restrictions; closed areas; permitting 
restrictions; minimum fish sizes; recreational fishing measures; 
describing and identifying EFH; fishing gear management measures to 
protect EFH; designating habitat areas of particular concern within 
EFH; and changing the Northeast Region SBRM, including the CV-based 
performance standard, the means by which discard data are collected/
obtained, fishery stratification, reports, and/or industry-funded 
observers or observer set-aside programs. In addition, the following 
conditions and measures may be adjusted through future framework 
adjustments: Revisions to DAS measures, including DAS allocations (such 
as the distribution of DAS among the four categories of DAS), future 
uses for Category C DAS, and DAS baselines, adjustments for steaming 
time, etc.; modifications to capacity measures, such as changes to the 
DAS transfer or DAS leasing measures; calculation of area-specific 
ACLs, area management boundaries, and adoption of area-specific 
management measures; sector allocation requirements and specifications, 
including the establishment of a new sector, the disapproval of an 
existing sector, the allowable percent of ACL available to a sector 
through a sector allocation, and the calculation of PSCs; sector 
administration provisions, including at-sea and dockside monitoring 
measures; sector reporting requirements; state-operated permit bank 
administrative provisions; measures to implement the U.S./Canada 
Resource Sharing Understanding, including any specified TACs (hard or 
target); changes to administrative measures; additional uses for 
Regular B DAS; reporting requirements; the GOM Inshore Conservation and 
Management Stewardship Plan; adjustments to the Handgear A or B 
permits; gear requirements to improve selectivity, reduce bycatch, and/
or reduce impacts of the fishery on EFH; SAP modifications; revisions 
to the ABC control rule and status determination criteria, including, 
but not limited to, changes in the target fishing mortality rates, 
minimum biomass thresholds, numerical estimates of parameter values, 
and the use of a proxy for biomass may be made either through a 
biennial adjustment or framework adjustment; and any other measures 
currently included in the FMP.
* * * * *
    7. In Sec.  648.92, revise paragraph (b)(4) to read as follows:


Sec.  648.92  Effort-control program for monkfish limited access 
vessels.

* * * * *
    (b) * * *
    (4) DAS credits--(i) Good Samaritan credit. A limited access 
vessels fishing under the DAS program and that spends time at sea 
assisting in a USCG search and rescue operation or assisting the USCG 
in towing a disabled vessel, and that can document the occurrence 
through the USCG, will not accrue DAS for the time documented
    (ii) Canceled trip DAS credit. A limited access vessel operating 
under the DAS program and that ends a fishing trip prior to setting 
and/or hauling fishing gear for any reason may request a cancelled trip 
DAS credit for the trip based on the following conditions and 
requirements.
    (A) There is no fish onboard the vessel and no fishing operations 
on the vessel were initiated, including setting and/or hauling fishing 
gear;
    (B) The owner or operator of the vessel fishing under a DAS program 
and required to use a VMS as specified under Sec.  648.10(b) makes an 
initial trip cancelation notification from sea, at the time the trip 
was canceled, or at the earliest opportunity prior to crossing the 
demarcation line as defined at Sec.  648.10(a). These reports are in 
the form of an email to NMFS Office of Law Enforcement and include at 
least the following information: Operator name; vessel name; vessel 
permit number; port where vessel will return; date trip started; 
estimated date/time of return to port; and a statement from the 
operator must that no fish were onboard and no fishing activity 
occurred; and
    (C) The owner or operator of the vessel operating under the DAS 
program required to use the IVR call in as specified under Sec.  
648.10(h) makes an initial trip cancelation notification to NMFS by 
calling the IVR back at the time the trip was canceled, or at the 
earliest opportunity prior to returning to port. This request must 
include at least the following information: Operator name; vessel name; 
vessel permit number; port where vessel will return; date trip started; 
estimated date/time of return to port; and a statement from the 
operator that no fish were onboard and no fishing activity occurred; 
and
    (D) The owner or operator of the vessel requesting a canceled trip 
DAS credit, in addition to the requirements in paragraphs (b)(4)(ii)(B) 
and (C) of this section, submits a written DAS credit request form to 
NMFS within 30 days of the vessel's return to port from the canceled 
trip. This application must include at least the following information: 
Date and time when the vessel canceled the fishing trip; date and time 
of trip departure and landing; operator name; owner/corporation name; 
permit number; hull identification number; vessel name; date and time 
notification requirements specified under paragraphs (b)(4)(ii)(B) and 
(C) of this section were made; reason for canceling the trip; and 
owner/operator signature and date; and
    (E) The vessel trip report for the canceled trip as required under 
Sec.  648.7(b) is submitted along with the DAS credit request form; and
    (F) For DAS credits that are requested near the end of the fishing 
year as defined at Sec.  648.2, and approved by the Regional 
Administrator, the credited DAS apply to the fishing year in which the 
canceled trip occurred. Credited DAS that remain unused at the end of 
the fishing year or are not credited until the following fishing year 
and may be carried over into the next fishing year, not to exceed the 
maximum number of carryover DAS as specified under paragraph (a)(1) of 
this section.
* * * * *
[FR Doc. 2011-32851 Filed 12-21-11; 8:45 am]
BILLING CODE 3510-22-P