[Federal Register Volume 76, Number 247 (Friday, December 23, 2011)]
[Proposed Rules]
[Pages 80318-80325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32996]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110816505-1734-02]
RIN 0648-BB39


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery Management Plan; Secretarial Amendment

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

ACTION: Proposed rule; notice of availability of a Secretarial 
amendment; request for comments.

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SUMMARY: NMFS proposes a Secretarial Amendment to the Northeast 
Multispecies Fishery Management Plan to establish a mechanism for 
specifying annual catch limits and accountability measures for the 
small-mesh multispecies fishery. The Secretarial Amendment, 
incorporating a draft Environmental Assessment and an Initial 
Regulatory Flexibility Analysis, is available for public comment. NMFS 
is proposing this amendment because the New England Fishery Management 
Council has been delayed in implementing the mechanism to specify 
annual catch limits and accountability measures for the silver hake, 
red hake, and offshore hake stocks. This amendment is intended to 
comply with the Magnuson-Stevens Fishery Conservation and Management 
Act requirements for establishing a mechanism for specifying annual 
catch limits and accountability measures in this fishery.

DATES: Written comments must be received no later than 5 p.m. eastern 
standard time, on February 21, 2012.

ADDRESSES: An environmental assessment (EA) was prepared for the 
Secretarial Amendment that describes the proposed action and other 
considered alternatives, and provides an analysis of the impacts of the 
proposed measures and alternatives. Copies of the Secretarial 
Amendment, including the EA and the Initial Regulatory Flexibility 
Analysis (IRFA), are available on request from Daniel Morris, Acting 
Regional Administrator, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930. These documents are also available online 
at http://www.nero.noaa.gov.
    You may submit comments, identified by NOAA-NMFS-2011-0206, by any 
one of the following methods:
     Electronic Submissions: 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-2011-0206'' 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.
     Fax: (978) 281-9135, Attn: Moira Kelly.
     Mail: Daniel Morris, Acting Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 
01930. Mark the outside of the envelope, ``Comments on Whiting 
Secretarial Amendment.''
    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 a part of the public 
record and will generally be posted for public viewing

[[Page 80319]]

on www.regulations.gov. 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 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.

FOR FURTHER INFORMATION CONTACT: Moira Kelly, Fishery Policy Analyst, 
(978) 281-9218.

SUPPLEMENTARY INFORMATION: 

Background

    The small-mesh multispecies complex is composed of five stocks of 
three species of hakes (northern silver hake, southern silver hake, 
northern red hake, southern red hake, and offshore hake), and the 
fishery is managed through a series of exemptions from the other 
provisions of the Northeast Multispecies Fishery Management Plan (FMP). 
Amendment 19 to the FMP was initiated by the New England Fishery 
Management Council (Council) in 2009 to establish a mechanism for 
specifying annual catch limits (ACLs) and accountability measures (AMs) 
for the small-mesh multispecies fishery as required by the 2007 
reauthorization of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), but the Council postponed 
development of the amendment in order to include the results of an 
updated stock assessment in November 2010. Developing the amendment has 
been further delayed by the Council due to other pressing actions, and 
Amendment 19 is not scheduled to be implemented until October 2012, 
well past the Magnuson-Stevens Acts' deadline for implementing ACLs and 
AMs. NMFS has determined that it is necessary and appropriate, under 
section 304(c)(1)(A) of the Magnuson-Stevens Act, to develop a 
Secretarial Amendment in order to bring the small-mesh multispecies 
fishery into compliance with the Magnuson-Stevens Act requirements 
concerning ACLs and AMs.
    To date, the Council has made a number of preliminary decisions 
regarding what alternatives will be included in Amendment 19. For the 
Secretarial Amendment, NMFS is proposing measures that are similar to 
those that are expected to be in Amendment 19 in order to minimize 
confusion and disruption for the industry when the Council's amendment, 
if approved, is implemented. NMFS is proposing to implement the 
overfishing limits (OFLs), acceptable biological catch limits (ABCs), 
and the ACL framework that the Council is considering for Amendment 19.

Amendment Development

    When a Secretarial Amendment is being developed, according to 
section 304(c)(2)(A) of the Magnuson-Stevens Act, the Secretary must 
``conduct public hearings, at appropriate times and locations in the 
geographical areas concerned, so as to allow interested parties an 
opportunity to be heard in the preparation and amendment of the plan 
and any regulations implementing the plan.'' In order to satisfy this 
requirement, NMFS published an Advanced Notice of Proposed Rulemaking 
(76 FR 57944) on September 19, 2011. Public hearings were held in East 
Setauket, NY; Toms River, NJ; Gloucester, MA; and Narragansett, RI, and 
public comments were accepted until October 19, 2011. In general, 
commenters expressed concern on what effect a stock area total 
allowable landings (TAL) level would have on the inshore Gulf of Maine 
exemption areas; how much influence the years that the Council chose 
for potentially sub-dividing the northern area TALs would have on 
future actions; and recommended that any new trips limits not be too 
restrictive and set at such a level as to protect historical 
participants. NMFS took these comments into consideration during the 
development of the preferred alternatives and addressed the issues 
raised by the commenters in the EA.

Proposed Measures

    The Council does not yet have a set of preferred alternatives, so 
NMFS is proposing the broadest, most general of the Council's current 
alternatives. In choosing the preferred alternatives for the 
Secretarial Amendment, NMFS intends to meet the requirements of the 
law, while preserving the Council's flexibility for measures to be 
proposed in Amendment 19. In doing so, NMFS considered but rejected for 
this amendment one of the Council's alternatives for a more 
complicated, sub-divided quota system in the northern area; however, 
this is not intended to preclude the Council from recommending this 
alternative in Amendment 19.

1. Mechanism for Specifying OFLs, ABCs, ACLs, TALs, and the 
Specification Process

    The Magnuson-Stevens Act requires that each FMP establish ``a 
mechanism for specifying annual catch limits * * * at such a level that 
overfishing does not occur in the fishery, including measures to ensure 
accountability.'' In order to do that for the small-mesh multispecies 
fishery, the first step is to estimate the OFL for each stock. The OFL 
is the amount of catch above which overfishing is deemed to be 
occurring, that is, it is a status determination criterion for 
overfishing. It is an annual limit derived as the product of current 
exploitable biomass and the current rate of fishing, after taking into 
account the variance of each factor. To calculate this, the Council's 
Small-Mesh Multispecies Plan Development Team (PDT) derived a 
distribution of the OFL, and the OFL is equal to the 50th percentile of 
that distribution. The 3-year moving average biomass estimate for 
silver hake is estimated using the fall trawl survey; and the 3-year 
moving average biomass estimate for red hake is estimated using the 
spring trawl survey, based on guidance from the Council's Scientific 
and Statistical Committee (SSC) and the November 2010 stock assessment. 
No reliable estimates for offshore hake are available. For fishing 
years 2012-2014, the OFLs would be as follows:

                  Table 1--Fishing Years 2012-2014 OFLs
------------------------------------------------------------------------
                                          OFL (mt)          OFL (lb)
------------------------------------------------------------------------
Northern Red Hake...................               314           692,252
Northern Silver Hake................            24,840        54,762,830
Southern Red Hake...................             3,448         7,601,539
Southern Silver Hake................            62,301       137,350,200
------------------------------------------------------------------------


[[Page 80320]]

    The second step in establishing ACLs is to account for uncertainty 
in the OFL estimate by estimating the acceptable biological catch, or 
ABC. ABC is the level of catch that accounts for scientific uncertainty 
in the estimate of the OFL and any other scientific uncertainty. Based 
on guidance from the SSC, the ABCs would be based on the OFLs and would 
be set equal to the 40th percentile of the OFL distribution for both 
red hake stocks, and the 25th percentile for both silver hake stocks 
(Table 2). In order to account for offshore hake, which are caught 
incidentally in the southern silver hake fishery and are marketed 
together as ``whiting,'' the southern silver hake ABC would be 
increased by 4 percent.

                                      Table 2--Fishing Years 2012-2014 ABCs
----------------------------------------------------------------------------------------------------------------
                                                         Percentile of OFL
                                           OFL              distribution     Percent of OFL          ABC
----------------------------------------------------------------------------------------------------------------
Northern Red Hake................  314 mt.............  40th...............           89.17  280 mt
                                   (692,252 lb)                                              (617,294 lb).
Northern Silver Hake.............  24,840 mt..........  25th...............           53.05  13,177 mt
                                   (54,762,830 lb)                                           (2,9050,310 lb).
Southern Red Hake................  3,448 mt...........  40th...............           94.52  3,259 mt
                                   (7,601,539 lb)                                            (7,184,865 lb).
Southern Whiting*................  62,301 mt..........  25th...............           54.48  33,940 mt
                                   (137,350,200 lb)                                          (74,824,890 lb).
----------------------------------------------------------------------------------------------------------------
* Southern Whiting ABC = Silver Hake 25th percentile of OFL (32,635 mt) + 4% (1,305 mt).

    The final step in estimating the ACLs, after estimating OFL and 
ABC, as described above, is to take into account any uncertainty in the 
ability of managers to effectively implement the recommended catch 
levels. The Council has recommended that ACLs for the small-mesh 
multispecies fishery be set equal to 95 percent of the corresponding 
ABC to account for management uncertainty. The mechanism to establish 
ACLs for the small-mesh multispecies fishery results in four ABCs 
(northern red hake, northern silver hake, southern red hake, and 
southern whiting), set below their respective OFLs to account for 
scientific uncertainty, and four corresponding ACLs, set below ABC to 
account for management uncertainty, where ACL = 95 percent ABC (Table 
3.)

      Table 3--Fishing Years 2012-2014 ABCs and ACLs for Small-Mesh
                              Multispecies
------------------------------------------------------------------------
                                          ABC          ACL (95% of ABC)
------------------------------------------------------------------------
Northern Red Hake...............  280 mt............  266 mt
                                  (617,294 lb)......  (586,430 lb).
Northern Silver Hake............  13,177 mt.........  12,518 mt
                                  (2,9050,310 lb)...  (27,597,470 lb).
Southern Red Hake...............  3,259 mt..........  3,096 mt
                                  (7,184,865 lb)....  (6,825,512 lb).
Southern Whiting................  33,940 mt*........  32,243 mt
                                  (74,824,890 lb)...  (71,083,650 lb).
------------------------------------------------------------------------
* Southern Whiting ABC = Silver Hake 25th percentile of OFL (32,635 mt)
  + 4% (1,305 mt).

    This action would also implement TALs on a stock area basis, with 
southern silver and offshore hake combined. This would result in four 
TALs (Table 4) that relate directly to the ACLs recommended by the SSC 
and the Council. Discards and a state landings estimate would be 
deducted from the ACLs, and stock area TALs would be used as the 
management limit. At its September 2011 meeting, the Council 
recommended a 3-percent allowance for state landings. The Council also 
recommended using a discard estimate based on the average discards from 
2008-2010 for all stocks.

                                  Table 4--Fishing Year 2012-2014 ACLs and TALs
----------------------------------------------------------------------------------------------------------------
                                                        Northern Silver
                                   Northern Red Hake         Hake          Southern Red Hake   Southern Whiting
----------------------------------------------------------------------------------------------------------------
ACL.............................  266 mt............  12,518 mt.........  3,096 mt..........  32,243 mt.
State Landings (3%).............  3.35 mt...........  281.65 mt.........  33.44 mt..........  841.54 mt.
Discard Percentage 2008-2010....  58%...............  25%...............  64%...............  13%.
Discards........................  154.28 mt.........  3,129.5 mt........  1,981.44 mt.......  4,191.59 mt.
                                 -------------------------------------------------------------------------------
    Total Federal TAL (mt)......  108 mt............  9,106 mt..........  1,081 mt..........  27,084 mt.
                                 -------------------------------------------------------------------------------
    Total Federal TAL (lb)......  238,099 lb........  20,075,290 lb.....  2,383,197 lb......  59,710,000 lb.
----------------------------------------------------------------------------------------------------------------


[[Page 80321]]

Specifications Process

    Specifications would be set on a 3-year cycle, starting with the 
first year of implementation of the Secretarial Amendment. This process 
would update the OFLs, ABCs, ACLs, and TALs based on the most recent 
available information using the framework mechanisms described above. 
Data that should be available for the specifications setting process 
should include, but not limited to, new survey biomass indices, 
reported landings, estimated discards, and estimates of state-waters 
landings.
    The Council, the Small-Mesh Multispecies Plan Development Team 
(PDT), and the Small-Mesh Multispecies Oversight Committee would 
monitor the status of the small-mesh multispecies fishery and resource. 
The Small-Mesh Multispecies PDT would meet to review the status of the 
stocks and the fishery. Based on this review, the PDT would provide a 
report to the Council on any changes or new information about the 
small-mesh multispecies stocks and/or fishery, and it should recommend 
whether the specifications for the upcoming year(s) need to be 
modified. If necessary, the Small-Mesh Multispecies PDT would provide 
advice and recommendations to the Small-Mesh Multispecies Oversight 
Committee and the Council regarding the need to adjust measures for the 
small-mesh multispecies fishery to better achieve the FMP's objectives.
    The PDT's recommendations would include the following information: 
OFL and ABC estimates for the next 3 fishing years, based on the 
control rules; ACLs that are set equal to 95 percent of the 
corresponding ABC; TALs that are calculated using an estimate of 
discards based on the most recent 3-year moving average for which data 
are available and an appropriate estimate of state-waters landings; an 
evaluation of catches compared to the ABCs in recent years; and any 
other measures that the PDT determines are necessary to successfully 
implement the ACL framework, including, but not limited to, adjustments 
to the management uncertainty buffer between ABC and ACL.
    The PDT would provide these recommendations to the SSC for review. 
The SSC would either approve the PDT's recommendations or provide 
alternative recommendations to the Council. The Council would then 
consider the SSC's and PDT's recommendations and make a decision on the 
specifications for the next 3 fishing years. The Council must establish 
ACLs that are equal to or lower than the SSC's recommended ABCs. Once 
the Council has approved ACLs, they would be submitted to NMFS for 
approval and implementation. After receipt of the Council's ACLs, NMFS 
would review the recommendations and implement the ACLs in a manner 
consistent with the Administrative Procedure Act, if it is determined 
that the ACLs are consistent with applicable law. If the ACLs are 
determined to be inconsistent with applicable law, NMFS may publish 
alternative specifications that do not exceed the SSC's recommendations 
and are consistent with applicable law. If new ACLs are not implemented 
for the start of the new specifications cycle, the old ACLs would 
remain in effect until they are replaced.

2. Accountability Measures

    NMFS is proposing both a proactive (in-season) and a reactive 
(post-season) AM framework for the small-mesh multispecies fishery. 
NMFS intends for the two AMs to complement each other and to work 
jointly to ensure that the catch limits are not exceeded, and if they 
are, to mitigate the potential harm to the small-mesh multispecies 
stocks.

In-Season AM: Incidental Possession Limit Trigger

    This action proposes an AM that would reduce the possession of a 
particular stock to an incidental level when a trigger limit for that 
stock's TAL is projected to be reached. Under this approach, even if 
the TAL is exceeded, the possession limit would remain at the 
incidental level until the end of the fishing year. Based on a review 
of recent data and recommendations for the Council's Whiting Oversight 
Committee, NMFS is proposing the following incidental limits and 
triggers (Table 5).

                          Table 5--Potential Incidental Possession Limits and Triggers
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                             % of TAL                         Incidental limit
----------------------------------------------------------------------------------------------------------------
Red Hake...............................                90  400 lb....................  181.44 kg.
Silver Hake............................                90  1,000 lb..................  453.59 kg.
----------------------------------------------------------------------------------------------------------------

    The Council's Whiting Oversight Committee recommended at its 
November 3, 2011, meeting that the Council's draft Amendment 19 include 
a range of incidental limits for comment at public hearings. The 
Whiting Oversight Committee has recommended 200, 300, or 400 lb (90.72, 
136.08, or 181.44 kg) as the range of potential incidental limits for 
red hake. The Whiting Oversight Committee has also recommended 500, 
1,000, or 2,000 lb (226.80, 453.59, or 907.18 kg) as the range of 
potential incidental limits for silver hake.
    NMFS reviewed recent vessel trip report data (2006-2010) for the 
Secretarial Amendment. For red hake, 62.5 percent of trips that landed 
at least 1 lb (0.45 kg) of red hake with a small-mesh otter trawl 
landed 400 lb (181.44 kg) or less. The landings level for 45-percent of 
all trips landing at least 1 lb (0.45 kg) of red, silver, or offshore 
hake with a small-mesh otter trawl was less than 400 lb (181.44 kg); 
1,000 lb (453.59 kg) represents nearly two-thirds of all trips. This 
suggests that 400-1,000 lb (181.44-453.59 kg) is roughly the current 
level of landings on a small-mesh trip, and that 100-400 lb (45.36-
181.44 kg) is approximately the current incidental landing level for 
all gear types. That is, this is already the incidental level that 
vessels are landing, without a possession limit dictating that level.

Post-Season AM: Pound-for-Pound Payback of an ACL Overage

    This AM would authorize NMFS, through the Northeast Regional 
Administrator, to deduct from a subsequent year's ACL any overage of a 
stock's ACL in a given year. In the Northeast Region, there have been 
two approaches to this type of management measure. For some fisheries, 
an overage in year 1 is deducted from the ACL in year 2. In other 
fisheries, the overage from year 1 is deducted from the ACL in year 3. 
For the small-mesh multispecies fishery, NMFS is proposing the latter 
approach. ACL overages that occur in one year would be deducted from 
the ACL in the second year after the overage occurred (i.e., year 3). 
This approach is recommended for the small-mesh multispecies fishery 
because the small-mesh multispecies fishery in the northern area is 
restricted by the groundfish regulations in area and season. An in-
season adjustment to

[[Page 80322]]

an ACL might result in some exemption areas opening, while others would 
not. This also allows vessel owners the opportunity to prepare for the 
reduction with ample time to adjust their business plans.

Other Alternatives Considered

    NMFS also analyzed and considered other alternatives for management 
measures to complement the OFL, ABC, and ACL framework described above. 
As required, NMFS considered and analyzed the status quo/no action 
alternatives for implementing a stock area TAL and a post-season AM. 
Alternatives considered for in-season AMs included the status quo/no 
action alternative, a zero possession when 100 percent of a TAL is 
projected to be harvested alternative, and an alternative that combined 
the 90-percent trigger and incidental possession limit alternative, 
described above, and the zero possession at 100 percent of the TAL 
alternative. Details of these alternatives and analysis are included in 
the Secretarial Amendment and EA.

Classification

    Pursuant to section 304(c)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the Northeast Multispecies FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    Public comments on the Secretarial Amendment and its incorporated 
documents may be submitted through the end of the comment period stated 
in this notice of availability. Public comments on the proposed rule 
must be received by the end of the comment period provided in this 
notice of availability and proposed rule to be considered in the 
decision on the amendment. To be considered, comments must be received 
by close of business on the last day of the comment period. See 
ADDRESSES for more information on public comments.
    The Office of Management and Budget has determined that this 
proposed rule is not significant for the purposes of Executive Order 
12866.
    NMFS prepared an IRFA, as required by section 603 of the Regulatory 
Flexibility Act (RFA), which is included in the Secretarial Amendment 
and supplemented by information contained in the preamble to this 
proposed rule. The IRFA describes the economic impact this proposed 
rule, if adopted, would have on small entities. A description of the 
action, why it is being considered, and the legal basis for this action 
are contained at the beginning of this section of the preamble and in 
the SUMMARY of this proposed rule. A summary of the IRFA follows. A 
copy of this analysis is available from the Regional Administrator (see 
ADDRESSES).
    All of the entities (fishing vessels) affected by this action are 
considered small entities under the Small Business Administration size 
standards for small fishing businesses ($4.0 million in annual gross 
sales). Therefore, there are no disproportionate effects on small 
versus large entities. Information on costs in the fishery is not 
readily available and individual vessel profitability cannot be 
determined directly; therefore, expected changes in gross revenues were 
used as a proxy for profitability.
    This action does not introduce any new reporting, recordkeeping, or 
other compliance requirements. This proposed rule does not duplicate, 
overlap, or conflict with other Federal rules.

Description and Estimate of Number of Small Entities To Which the Rule 
Would Apply

    In order to fish for small-mesh multispecies, a vessel owner must 
be issued either a limited access northeast multispecies permit or an 
open access category K Northeast multispecies permit; however, there 
are many vessels issued both of these types of permits that may not 
actually fish for small-mesh multispecies. Although some firms own more 
than one vessel, available data make it difficult to reliably identify 
ownership control over more than one vessel. For this analysis, the 
number of permitted vessels landing small-mesh multispecies is 
considered to be a maximum estimate of the number of small business 
entities that may be impacted. The average number of permitted vessels 
landing at least 1 lb (0.45 kg) of silver hake or red hake from 2005-
2010 was 562 vessels per year.

Economic Impacts of the Proposed Action Compared to Significant Non-
Selected Alternatives

    In general, the economic impacts of the proposed actions are 
neutral to slightly negative, compared to the status quo/no action 
alternatives and the other alternatives considered. For northern silver 
hake, southern red hake, and southern whiting, the proposed catch and 
landing limits are much higher than recent catch and landings. The 
recent catch of northern red hake is above the proposed ACL, but recent 
landings are slightly below the proposed TAL. Given the timing 
constraints in developing the Secretarial Amendment and the preliminary 
decisions made by the Council for Amendment 19, the only other 
alternative that was considered for the ACL and catch limit framework 
was the status quo/no action alternative. In the short term, the status 
quo/no action, which is not legally consistent with the Magnuson-
Stevens Act, would likely result in neutral impacts to the human 
communities involved in the small-mesh multispecies fishery. In the 
long-term, however, the possibility of fishing above the recommended 
levels may result in negative impacts to the human communities if a 
small-mesh multispecies stock is fished at an unsustainable level.
    Also based on the Council's preliminary decisions for Amendment 19 
and the timing constraints associated with the Secretarial Amendment, 
only the proposed reactive AM (pound-for-pound payback) and the status 
quo/no action alternative were considered. Not implementing a reactive 
accountability measure would have a neutral impact to vessels targeting 
small-mesh multispecies stocks because there is no change from the 
current management. It is possible, however, that by exceeding the ACL 
on a regular basis, long-term impacts on the stock could lead to long-
term economic losses due to changes in the stock size. The proposed 
pound-for-pound payback alternative may result in short-term negative 
impact on the small-mesh multispecies industry by potentially reducing 
ACLs in the future, if an ACL is exceeded. However, the long-term 
impacts of maintaining catch within the recommended levels would be 
positive.
    The proposed alternative that is most likely to have an impact in 
the foreseeable future is the 90-percent trigger AM for northern red 
hake. Using vessel trip report data from 2006-2010, a 400-lb (181.44-
kg) incidental possession limit in the northern stock area, implemented 
when 90 percent of the northern red hake TAL is projected to be 
harvested, would have impacted approximately 23 trips per year, and an 
average of 7 vessels per year. At a loss of approximately $282 per 
trip, this AM would have cost the fleet $6,486 per year in lost 
northern red hake revenue. This may not be a true revenue loss, 
however. Red hake is rarely the primary target species and vessel 
owners are likely to shift effort onto another routinely landed 
incidental species, such as skates or dogfish, to finish their trip. 
The other in-season AM alternatives considered for this amendment 
included zero possession at 100 percent of the TAL, a combination of 
the 90-percent trigger and zero

[[Page 80323]]

possession at 100 percent of the TAL alternatives, and the status quo/
no action alternative. The zero possession at 100 percent of the TAL 
alternative would likely have negative economic impacts on the small-
mesh multispecies fleet. Because northern red hake is the only stock 
where the TAL is likely to be harvested in the near future, the 
Secretarial Amendment focused on the likely impacts of the alternatives 
to that stock. Based on 2009 vessel trip report data for northern red 
hake, the fishery would have harvested the proposed TAL by early 
September. This would have resulted in approximately $29,544 in lost 
revenue for the fleet (estimated at $0.37/lb for the 79,849 lb (36,219 
kg) of northern red hake landed in excess of the proposed TAL (238,099 
lb (108,000 kg)) for fishing year 2009). However, these losses may not 
be realized, as vessels may redirect the effort that would have been 
used to land red hake onto another incidental species, such as skates 
or dogfish. The impacts from the combined 90-percent trigger and zero 
possession at 100 percent of the TAL alternative would likely be the 
same as the 90-percent trigger alternative itself, as the possession 
limit would reduce landings such that the TAL would not likely be 
harvested prior to the end of the fishing year. Not implementing a 
proactive AM (i.e., the status quo/no action alternative) would have a 
neutral impact to vessels targeting small-mesh multispecies stocks 
because there is no change from the current management. It is possible, 
however, that by exceeding the recommended landing level on a regular 
basis, long-term impacts on the stock could lead to long-term economic 
losses due to changes in the stock size.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: December 20, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

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

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    2. In Sec.  648.80, paragraphs (a)(8)(iii) and (a)(16)(iii) are 
revised to read as follows:


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

    (a) * * *
    (8) * * *
    (iii) For exemptions allowing no incidental catch of regulated 
species, as defined under paragraph (a)(8)(i) of this section, the 
NEFMC may recommend to the Regional Administrator, through the 
framework procedure specified in Sec.  648.90(c), additions or 
deletions to exemptions for fisheries, either existing or proposed, for 
which there may be insufficient data or information for the Regional 
Administrator to determine, without public comment, percentage catch of 
regulated species. For exemptions allowing incidental catch of 
regulated species, as defined under paragraph (a)(8)(ii) of this 
section, the NEFMC may recommend to the Regional Administrator, through 
the framework procedure specified in Sec.  648.90(c), additions or 
deletions to exemptions for fisheries, either existing or proposed, for 
which there may be insufficient data or information for the Regional 
Administrator to determine, without public comment, the risk that this 
exemption would result in a targeted regulated species fishery, the 
extent of the fishery in terms of time and area, and the possibility of 
expansion in the fishery.
* * * * *
    (16) * * *
    (iii) Annual review. On an annual basis, the Groundfish PDT will 
review data from this fishery, including sea sampling data, to 
determine whether adjustments are necessary to ensure that regulated 
species bycatch remains at a minimum. If the Groundfish PDT recommends 
adjustments to ensure that regulated species bycatch remains at a 
minimum, the Council may take action prior to the next fishing year 
through the framework adjustment process specified in Sec.  648.90(c), 
and in accordance with the Administrative Procedure Act.
* * * * *
    3. In Sec.  648.86, paragraph (d)(4) is added to read as follows:


Sec.  648.86  NE Multispecies possession restrictions.

* * * * *
    (d) * * *
    (4) In-season adjustment of small-mesh multispecies possession 
limits. If the Regional Administrator projects that 90 percent of a 
stock area TAL, as defined in Sec.  648.90(b)(3), has been landed, the 
Regional Administrator shall reduce the possession limit of that stock 
described in paragraphs (d)(4)(i) and (ii) of this section, for the 
remainder of the fishing year through notice consistent with the 
Administrative Procedure Act, unless such a reduction in the possession 
limit would be expected to prevent the TAL from being reached.
    (i) Red hake. If a possession limit reduction is needed for a 
stock, the incidental possession limit for red hake in that stock area 
will be 400 lb (181.44 kg) for the remainder of the fishing year.
    (ii) Silver hake. If a possession limit reduction is needed for a 
stock, the incidental possession limit for silver hake in that stock 
area will be 1,000 lb (453.59 kg) for the remainder of the fishing 
year.
* * * * *
    4. In Sec.  648.90, the introductory paragraph is revised, and 
paragraphs (b) and (c)(1)(ii) are revised to read as follows:


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

    For the NE multispecies framework specification process described 
in this section, the regulated species and ocean pout biennial review 
is considered a separate process from the small-mesh species annual 
review, as described in paragraphs (a)(2) and (b)(1), respectively, of 
this section. In addition, the process for specifying ABCs and 
associated ACLs for regulated species and ocean pout, as described in 
paragraph (a)(4) of this section, is considered a separate process from 
the small-mesh species ABC and ACL process described in paragraph 
(b)(2) of this section.
* * * * *
    (b) Small-mesh multispecies.--(1) Three-year specifications 
process, annual review, and Stock Assessment and Fishery Evaluation. 
The Council will specify on at least a 3-year basis the OFL, ABC, ACLs, 
and TALs for each small-mesh multispecies stock in accordance with the 
following process.
    (i) At least every three years, based on the annual review, 
described below in paragraph (b)(3) of this section, and/or the SAFE 
Report described in paragraph (b)(4) of this section, recommendations 
for acceptable biological catch (ABC) from the Scientific and 
Statistical Committee (SSC), and any other relevant information, the 
Small-Mesh Multispecies PDT will recommend to the Small-Mesh 
Multispecies Oversight Committee and Council specifications including 
the OFL, ABC, ACL and TAL for each small-mesh multispecies stock the 
following specifications for a period of at least 3-year. The Small-
Mesh Multispecies PDT and the Council will follow the process in 
paragraph (b)(2) of

[[Page 80324]]

this section for setting these specifications.
    (ii) The Small-Mesh Multispecies PDT, after its review of the 
available information on the status of the stock and the fishery, may 
recommend to the Council any measures necessary to assure that the 
specifications will not be exceeded, as well as changes to the 
appropriate specifications.
    (iii) Taking into account the annual review and/or SAFE Report 
described in paragraph (b)(2) of this section, the advice of the SSC, 
and any other relevant information, the Small-Mesh Multispecies PDT may 
also recommend to the Small-Mesh Multispecies Oversight Committee and 
Council changes to stock status determination criteria and associated 
thresholds based on the best scientific information available, 
including information from peer-reviewed stock assessments of small-
mesh multispecies. These adjustments may be included in the Council's 
specifications for the small-mesh multispecies fishery.
    (iv) Council recommendation. (A) The Council will review the 
recommendations of the Small-Mesh Multispecies PDT, Small-Mesh 
Multispecies Oversight Committee, and SSC, any public comment received 
thereon, and any other relevant information, and make a recommendation 
to the Regional Administrator on appropriate specifications and any 
measures necessary to assure that the specifications will not be 
exceeded.
    (B) The Council's recommendation must include supporting 
documentation, as appropriate, concerning the environmental, economic, 
and social impacts of the recommendations. The Regional Administrator 
will consider the recommendations and publish a rule in the Federal 
Register proposing specifications and associated measures, consistent 
with the Administrative Procedure Act.
    (C) The Regional Administrator may propose specifications different 
than those recommended by the Council. If the specifications published 
in the Federal Register differ from those recommended by the Council, 
the reasons for any differences must be clearly stated and the revised 
specifications must satisfy the criteria set forth in this section, the 
FMP, and other applicable laws.
    (D) If the final specifications are not published in the Federal 
Register for the start of the fishing year, the previous year's 
specifications will remain in effect until superseded by the final rule 
implementing the current year's specifications, to ensure that there is 
no lapse in regulations while new specifications are completed.
    (2) Process for specifying ABCs, ACLs and TALs. The Small-Mesh 
Multispecies PDT will calculate the OFL and ABC values for each small-
mesh multispecies stock based on the control rules established in the 
FMP. These calculations will be reviewed by the SSC, guided by terms of 
reference developed by the Council. The ACLs and TALs will be 
calculated based on the SSC's approved ABCs, as specified in paragraphs 
(a)(2)(i)(A) through (C), and (a)(2)(ii)(A) through (C) of this 
section.
    (i) Red hake--(A) ABCs. The Council's SSC will recommend an ABC to 
the Council for both the northern and southern stocks of red hake. The 
red hake ABCs are reduced from the OFLs based on an adjustment for 
scientific uncertainty as specified in the FMP; the ABCs must be less 
than or equal to the OFL.
    (B) ACLs. The red hake ACLs are equal to 95 percent of the 
corresponding ABCs.
    (C) TALs. The red hake TALs are equal to the ACLs minus a discard 
estimate based on the most recent 3 years of data. The red hake TALs 
are then reduced by 3 percent to account for red hake landings that 
occur in state waters.
    (ii) Silver and Offshore Hake--(A) ABCs. The Council's SSC will 
recommend an ABC to the Council for both the northern and southern 
stocks of silver hake. The ABC for the southern stock of silver hake 
will be increased by 4 percent to account for catch of offshore hake. 
The silver hake and offshore hake combined ABC will be the southern 
whiting ABC. The silver hake and whiting ABCs are reduced from the OFLs 
based on an adjustment for scientific uncertainty as specified in the 
FMP; the ABCs must be less than or equal to the OFLs.
    (B) ACLs. The northern silver hake and southern whiting ACLs are 
equal to 95 percent of the ABCs.
    (C) TALs. The northern silver hake and southern whiting TALs are 
equal to the northern silver hake and southern whiting ACLs minus a 
discard estimate based on the most recent 3 years data. The northern 
silver hake and southern whiting TALs are then reduced by 3 percent to 
account for silver hake and offshore hake landings that occur in state 
waters.
    (3) Annual Review. (i) The Small-Mesh Multispecies PDT will meet at 
least once annually to review the status of the stock and the fishery 
and the adequacy of the 3-year specifications. Based on such review, 
the PDT will provide a report to the Council on any changes or new 
information about the small-mesh multispecies stocks and/or fishery, 
and it will recommend whether the specifications for the upcoming 
year(s), established pursuant to paragraph (b)(1) of this section, need 
to be modified. At a minimum, this review should include a review of at 
least the following data, if available: Commercial catch data; current 
estimates of fishing mortality and catch-per-unit-effort (CPUE); 
discards; stock status; recent estimates of recruitment; virtual 
population analysis results and other estimates of stock size; sea 
sampling, port sampling, and survey data or, if sea sampling data are 
unavailable, length frequency information from port sampling and/or 
surveys; impact of other fisheries on the mortality of small-mesh 
multispecies; and any other relevant information.
    (ii) If new and/or additional information becomes available, the 
Small-Mesh Multispecies PDT will consider it during this annual review. 
Based on this review, the Small-Mesh Multispecies PDT will provide 
guidance to the Small-Mesh Multispecies Oversight Committee and the 
Council regarding the need to adjust measures for the small-mesh 
multispecies fishery to better achieve the FMP's objectives. After 
considering guidance, the Council may submit to NMFS its 
recommendations for changes to management measures, as appropriate, 
through the specifications process described in this section, the 
process specified in paragraph (c) of this section, or through an 
amendment to the FMP.
    (4) SAFE Report. (i) The Small-Mesh Multispecies PDT will prepare a 
SAFE Report at least every 3 years. Based on the SAFE Report, the 
Small-Mesh Multispecies PDT will develop and present to the Council 
recommended specifications as defined in paragraph (a) of this section 
for up to 3 fishing years. The SAFE Report will be the primary vehicle 
for the presentation of all updated biological and socio-economic 
information regarding the small-mesh multispecies fishery. The SAFE 
Report will provide source data for any adjustments to the management 
measures that may be needed to continue to meet the goals and 
objectives of the FMP.
    (ii) In any year in which a SAFE Report is not completed by the 
Small-Mesh Multispecies PDT, the annual review process described in 
paragraph (a) of this section will be used to recommend any necessary 
adjustments

[[Page 80325]]

to specifications and/or management measures in the FMP.
    (5) Accountability measures for the small-mesh multispecies 
fishery.--(i) In-season adjustment of possession limits. When the 
Regional Administrator projects that 90 percent of a small-mesh 
multispecies TAL has been landed, the Regional Administrator may, 
through notice consistent with the Administrative Procedure Act, reduce 
the possession limit of that stock to the incidental level, as 
specified in Sec.  648.86(d)(4), for the remainder of the fishing year.
    (ii) Post-season adjustment for an overage. If NMFS determines that 
a small-mesh multispecies ACL was exceeded in a given fishing year, the 
exact amount of the landings overage will be deducted, as soon as is 
practicable, from a subsequent single fishing year's ACL for that 
stock, through notification consistent with the Administrative 
Procedure Act.
    (c) * * *
    (1) * * *
    (ii) Adjustment process for whiting DAS. The Council may develop 
recommendations for a whiting DAS effort reduction program through the 
framework process outlined in paragraph (c) of this section only if 
these options are accompanied by a full set of public hearings that 
span the area affected by the proposed measures in order to provide 
adequate opportunity for public comment.
* * * * *
[FR Doc. 2011-32996 Filed 12-22-11; 8:45 am]
BILLING CODE 3510-22-P