[Federal Register Volume 76, Number 250 (Thursday, December 29, 2011)]
[Rules and Regulations]
[Pages 81844-81850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33302]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 111219777-1775-02]
RIN 0648-BB52
Fisheries of the Northeastern United States; Removal of
Standardized Bycatch Reporting Methodology Regulations
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This action removes regulations implementing the Northeast
Region Standardized Bycatch Reporting Methodology (SBRM). To comply
with the D.C. Circuit Court's decision, NMFS announces that the
Northeast Region SBRM Omnibus Amendment is vacated and all regulations
implemented by the SBRM Omnibus Amendment final rule are removed. The
intended effect of this rule is to revise regulatory language to refer
specifically to the industry-funded observer program in the scallop
fishery.
DATES: Effective January 30, 2012.
FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy Analyst,
(978) 281-9341, fax (978) 281-9135.
SUPPLEMENTARY INFORMATION:
Background
On September 15, 2011, upon the order of the U.S. Court of Appeals
for the District of Columbia Circuit, the U.S. District Court for the
District of Columbia, in the case of Oceana, Inc. v. Locke (Civil
Action No. 08-318), vacated the Northeast Region Standardized Bycatch
Reporting Methodology (SBRM) Omnibus Amendment and remanded the case to
NMFS for further proceedings consistent with the D.C. Circuit Court's
decision. To comply with the ruling, NMFS announces that the Northeast
Region SBRM Omnibus Amendment is vacated and all regulations
implemented by the SBRM Omnibus Amendment final rule (73 FR 4736,
January 28, 2008) are removed.
The removal of regulations implementing the SBRM Omnibus Amendment
is not an exact reversal of the regulation amendatory instructions as
written in the January 28, 2008, final rule. Some regulatory changes
that occurred subsequent to the SBRM Omnibus Amendment final rule had
to be accommodated. The final rule implementing the Annual Catch Limit
and Accountability Measure Omnibus Amendment (76 FR 60606, September
29, 2011) reorganized the regulations for some species managed by the
Mid-Atlantic Fishery Management Council and changed where SBRM
provisions were located. In addition, the final rule implementing
Amendment 11 to the Atlantic Sea Scallop Fishery Management Plan (FMP)
(73 FR 20090, April 14, 2008) and the final rule implementing Amendment
3 to the Northeast Skate Complex FMP (75 FR 34049, June 16, 2010)
inadvertently overwrote the SBRM provisions for those fisheries.
Therefore, this action does not need to remove SBRM provisions in those
two fisheries.
This action removes the SBRM section at Sec. 648.18 and removes
SBRM-related items from the lists of measures that can be changed
through the FMP framework adjustment and/or annual specification
process for the Atlantic mackerel, squid, and butterfish; Atlantic
surfclam and ocean quahog; Northeast multispecies, monkfish; summer
flounder; scup; black sea bass; bluefish; Atlantic herring; spiny
dogfish; deep-sea red crab; and tilefish fisheries. This action also
makes changes to the regulations regarding observer service provider
approval and responsibilities and observer certification. The SBRM
Omnibus Amendment had authorized the development of an industry-funded
observer program in any fishery, and the final rule modified regulatory
language in these sections to apply broadly to any such program. This
action revises that regulatory language to refer specifically to the
industry-funded observer program in the scallop fishery, which existed
prior to the adoption of the SBRM Omnibus Amendment.
Classification
The Assistant Administrator for Fisheries finds it is unnecessary,
impracticable, and contrary to the public interest to provide for prior
notice and an opportunity for public comment. This action is required
by Court order and, therefore, NMFS has no discretion in implementing
this rule. The September 15, 2011, Court order requires NMFS to vacate
the SBRM Omnibus Amendment and the implementing regulations. Public
comments will not affect the Court's order. Therefore, prior notice and
the opportunity for public comment, pursuant to authority set forth at
U.S.C. 553(b)(B), is unnecessary and impracticable because of the Court
order.
This final rule is promulgated under NMFS' general rule making
authority specified at 16 U.S.C. 1855(d), and is issued to bring the
regulations into compliance with the U.S. District Court for the
District of Columbia's order vacating the SBRM Omnibus Amendment.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
This rule is exempt from the procedures of the Regulatory
Flexibility Act because the rule is issued without opportunity for
prior notice and opportunity for public comment. Accordingly, no
initial regulatory flexibility analysis is required, and none has been
prepared.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
[[Page 81845]]
Dated: December 22, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.11, paragraphs (h) and (i) are revised to read as
follows:
Sec. 648.11 At-sea sea sampler/observer coverage.
* * * * *
(h) Observer service provider approval and responsibilities--(1)
General. An entity seeking to provide observer services to the Atlantic
sea scallop fishery must apply for and obtain approval from NMFS
following submission of a complete application to The Observer Program
Branch Chief, 25 Bernard St. Jean Drive, East Falmouth, MA 02536. A
list of approved observer service providers shall be distributed to
scallop vessel owners and shall be posted on NMFS' Web page, as
specified in paragraph (g)(4) of this section.
(2) [Reserved]
(3) Contents of application. An application to become an approved
observer service provider shall contain the following:
(i) Identification of the management, organizational structure, and
ownership structure of the applicant's business, including
identification by name and general function of all controlling
management interests in the company, including but not limited to
owners, board members, officers, authorized agents, and staff. If the
applicant is a corporation, the articles of incorporation must be
provided. If the applicant is a partnership, the partnership agreement
must be provided.
(ii) The permanent mailing address, phone and fax numbers where the
owner(s) can be contacted for official correspondence, and the current
physical location, business mailing address, business telephone and fax
numbers, and business email address for each office.
(iii) A statement, signed under penalty of perjury, from each owner
or owners, board members, and officers, if a corporation, that they are
free from a conflict of interest as described under paragraph (h)(6) of
this section.
(iv) A statement, signed under penalty of perjury, from each owner
or owners, board members, and officers, if a corporation, describing
any criminal convictions, Federal contracts they have had, and the
performance rating they received on the contract, and previous
decertification action while working as an observer or observer service
provider.
(v) A description of any prior experience the applicant may have in
placing individuals in remote field and/or marine work environments.
This includes, but is not limited to, recruiting, hiring, deployment,
and personnel administration.
(vi) A description of the applicant's ability to carry out the
responsibilities and duties of a scallop fishery observer services
provider as set out under paragraph (h)(5) of this section, and the
arrangements to be used.
(vii) Evidence of holding adequate insurance to cover injury,
liability, and accidental death for observers during their period of
employment (including during training). Workers' Compensation and
Maritime Employer's Liability insurance must be provided to cover the
observer, vessel owner, and observer provider. The minimum coverage
required is $5 million. Observer service providers shall provide copies
of the insurance policies to observers to display to the vessel owner,
operator, or vessel manager, when requested.
(viii) Proof that its observers, either contracted or employed by
the service provider, are compensated with salaries that meet or exceed
the Department of Labor (DOL) guidelines for observers. Observers shall
be compensated as Fair Labor Standards Act (FLSA) non-exempt employees.
Observer providers shall provide any other benefits and personnel
services in accordance with the terms of each observer's contract or
employment status.
(ix) The names of its fully equipped, NMFS/NEFOP certified
observers on staff or a list of its training candidates (with resumes)
and a request for a NMFS/NEFOP Sea Scallop Observer Training class. The
NEFOP training has a minimum class size of eight individuals, which may
be split among multiple vendors requesting training. Requests for
training classes with fewer than eight individuals will be delayed
until further requests make up the full training class size.
(x) An Emergency Action Plan (EAP) describing its response to an
``at sea'' emergency with an observer, including, but not limited to,
personal injury, death, harassment, or intimidation.
(4) Application evaluation. (i) NMFS shall review and evaluate each
application submitted under paragraphs (h)(2) and (h)(3) of this
section. Issuance of approval as an observer provider shall be based on
completeness of the application, and a determination by NMFS of the
applicant's ability to perform the duties and responsibilities of a sea
scallop fishery observer service provider, as demonstrated in the
application information. A decision to approve or deny an application
shall be made by NMFS within 15 days of receipt of the application by
NMFS.
(ii) If NMFS approves the application, the observer service
provider's name will be added to the list of approved observer service
providers found on NMFS' Web site specified in paragraph (g)(4) of this
section, and in any outreach information to the industry. Approved
observer service providers shall be notified in writing and provided
with any information pertinent to its participation in the sea scallop
fishery observer program.
(iii) An application shall be denied if NMFS determines that the
information provided in the application is not complete or NMFS
concludes that the applicant does not have the ability to perform the
duties and responsibilities of a sea scallop fishery observer service
provider. NMFS shall notify the applicant in writing of any
deficiencies in the application or information submitted in support of
the application. An applicant who receives a denial of his or her
application may present additional information, in writing, to rectify
the deficiencies specified in the written denial, provided such
information is submitted to NMFS within 30 days of the applicant's
receipt of the denial notification from NMFS. In the absence of
additional information, and after 30 days from an applicant's receipt
of a denial, an observer provider is required to resubmit an
application containing all of the information required under the
application process specified in paragraph (h)(3) of this section to be
re-considered for being added to the list of approved observer service
providers.
(5) Responsibilities of observer service providers. (i) An observer
service provider must provide observers certified by NMFS/NEFOP
pursuant to paragraph (i) of this section for deployment in the sea
scallop fishery when contacted and contracted by the owner, operator,
or vessel manager of a vessel fishing in the scallop fishery, unless
the observer service provider does not have an available observer
within 48 hr of receiving a request for an observer from a vessel
owner, operator, and/or manager, or refuses to deploy an observer on a
requesting vessel for any of the reasons specified at paragraph
(h)(5)(viii) of this section. An
[[Page 81846]]
observer's first three deployments and the resulting data shall be
immediately edited and approved after each trip, by NMFS/NEFOP, prior
to any further deployments by that observer. If data quality is
considered acceptable, the observer will be certified.
(ii) An observer service provider must provide to each of its
observers:
(A) All necessary transportation, including arrangements and
logistics, of observers to the initial location of deployment, to all
subsequent vessel assignments, and to any debriefing locations, if
necessary;
(B) Lodging, per diem, and any other services necessary for
observers assigned to a scallop vessel or to attend a NMFS/NEFOP Sea
Scallop Observer Training class;
(C) The required observer equipment, in accordance with equipment
requirements listed on NMFS' Web site specified in paragraph (g)(4) of
this section under the Sea Scallop Program, prior to any deployment
and/or prior to NMFS observer certification training; and
(D) Individually assigned communication equipment, in working
order, such as a cell phone or pager, for all necessary communication.
An observer service provider may alternatively compensate observers for
the use of the observer's personal cell phone or pager for
communications made in support of, or necessary for, the observer's
duties.
(iii) Observer deployment logistics. Each approved observer service
provider must assign an available certified observer to a vessel upon
request. Each approved observer service provider must provide for
access by industry 24 hr per day, 7 days per week, to enable an owner,
operator, or manager of a vessel to secure observer coverage when
requested. The telephone system must be monitored a minimum of four
times daily to ensure rapid response to industry requests. Observer
service providers approved under paragraph (h) of this section are
required to report observer deployments to NMFS daily for the purpose
of determining whether the predetermined coverage levels are being
achieved in the scallop fishery.
(iv) Observer deployment limitations. Unless alternative
arrangements are approved by NMFS, an observer provider must not deploy
any observer on the same vessel for more than two consecutive multi-day
trips, and not more than twice in any given month for multi-day
deployments.
(v) Communications with observers. An observer service provider
must have an employee responsible for observer activities on call 24 hr
a day to handle emergencies involving observers or problems concerning
observer logistics, whenever observers are at sea, stationed shoreside,
in transit, or in port awaiting vessel assignment.
(vi) Observer training requirements. The following information must
be submitted to NMFS/NEFOP at least 7 days prior to the beginning of
the proposed training class: A list of observer candidates; observer
candidate resumes; and a statement signed by the candidate, under
penalty of perjury, that discloses the candidate's criminal
convictions, if any. All observer trainees must complete a basic
cardiopulmonary resuscitation/first aid course prior to the end of a
NMFS/NEFOP Sea Scallop Observer Training class. NMFS may reject a
candidate for training if the candidate does not meet the minimum
qualification requirements as outlined by NMFS/NEFOP Minimum
Eligibility Standards for observers as described on the NMFS/NEFOP Web
site.
(vii) Reports --(A) Observer deployment reports. The observer
service provider must report to NMFS/NEFOP when, where, to whom, and to
what fishery (open or closed area) an observer has been deployed,
within 24 hr of the observer's departure. The observer service provider
must ensure that the observer reports back to NMFS its Observer
Contract (OBSCON) data, as described in the certified observer
training, within 24 hr of landing. OBSCON data are to be submitted
electronically or by other means as specified by NMFS. The observer
service provider shall provide the raw (unedited) data collected by the
observer to NMFS within 72 hr, which should be within 4 business days
of the trip landing.
(B) Safety refusals. The observer service provider must report to
NMFS any trip that has been refused due to safety issues, e.g., failure
to hold a valid USCG Commercial Fishing Vessel Safety Examination Decal
or to meet the safety requirements of the observer's pre-trip vessel
safety checklist, within 24 hr of the refusal.
(C) Biological samples. The observer service provider must ensure
that biological samples, including whole marine mammals, sea turtles,
and sea birds, are stored/handled properly and transported to NMFS
within 7 days of landing.
(D) Observer debriefing. The observer service provider must ensure
that the observer remains available to NMFS, either in-person or via
phone, at NMFS' discretion, including NMFS Office for Law Enforcement,
for debriefing for at least 2 weeks following any observed trip. If
requested by NMFS, an observer that is at sea during the 2-week period
must contact NMFS upon his or her return.
(E) Observer availability report. The observer service provider
must report to NMFS any occurrence of inability to respond to an
industry request for observer coverage due to the lack of available
observers by 5 p.m., Eastern Standard Time, of any day on which the
provider is unable to respond to an industry request for observer
coverage.
(F) Other reports. The observer provider must report possible
observer harassment, discrimination, concerns about vessel safety or
marine casualty, or observer illness or injury; and any information,
allegations, or reports regarding observer conflict of interest or
breach of the standards of behavior, to NMFS/NEFOP within 24 hr of the
event or within 24 hr of learning of the event.
(G) Observer status report. Providers must provide NMFS/NEFOP with
an updated list of contact information for all observers that includes
the observer identification number, observer's name, mailing address,
email address, phone numbers, homeports or fisheries/trip types
assigned, and must include whether or not the observer is ``in
service,'' indicating when the observer has requested leave and/or is
not currently working for the industry funded program.
(H) Providers must submit to NMFS/NEFOP, if requested, a copy of
each type of signed and valid contract (including all attachments,
appendices, addendums, and exhibits incorporated into the contract)
between the observer provider and those entities requiring observer
services.
(I) Providers must submit to NMFS/NEFOP, if requested, a copy of
each type of signed and valid contract (including all attachments,
appendices, addendums, and exhibits incorporated into the contract)
between the observer provider and specific observers.
(J) Providers must submit to NMFS/NEFOP, if requested, copies of
any information developed and used by the observer providers
distributed to vessels, such as informational pamphlets, payment
notification, description of observer duties, etc.
(viii) Refusal to deploy an observer. (A) An observer service
provider may refuse to deploy an observer on a requesting scallop
vessel if the observer service provider does not have an available
observer within 72 hr of receiving a request for an observer from a
vessel.
(B) An observer service provider may refuse to deploy an observer
on a requesting scallop vessel if the observer
[[Page 81847]]
service provider has determined that the requesting vessel is
inadequate or unsafe pursuant to the reasons described at Sec.
600.746.
(C) The observer service provider may refuse to deploy an observer
on a scallop vessel that is otherwise eligible to carry an observer for
any other reason, including failure to pay for previous observer
deployments, provided the observer service provider has received prior
written confirmation from NMFS authorizing such refusal.
(6) Limitations on conflict of interest. An observer service
provider:
(i) Must not have a direct or indirect interest in a fishery
managed under Federal regulations, including, but not limited to, a
fishing vessel, fish dealer, fishery advocacy group, and/or fishery
research;
(ii) Must assign observers without regard to any preference by
representatives of vessels other than when an observer will be
deployed; and
(iii) Must not solicit or accept, directly or indirectly, any
gratuity, gift, favor, entertainment, loan, or anything of monetary
value from anyone who conducts fishing or fishing related activities
that are regulated by NMFS, or who has interests that may be
substantially affected by the performance or nonperformance of the
official duties of observer providers.
(7) Removal of observer service provider from the list of approved
observer service providers. An observer provider that fails to meet the
requirements, conditions, and responsibilities specified in paragraphs
(h)(5) and (h)(6) of this section shall be notified by NMFS, in
writing, that it is subject to removal from the list of approved
observer service providers. Such notification shall specify the reasons
for the pending removal. An observer service provider that has received
notification that it is subject to removal from the list of approved
observer service providers may submit written information to rebut the
reasons for removal from the list. Such rebuttal must be submitted
within 30 days of notification received by the observer service
provider that the observer service provider is subject to removal and
must be accompanied by written evidence rebutting the basis for
removal. NMFS shall review information rebutting the pending removal
and shall notify the observer service provider within 15 days of
receipt of the rebuttal whether or not the removal is warranted. If no
response to a pending removal is received by NMFS within 30 days of the
notification of removal, the observer service provider shall be
automatically removed from the list of approved observer service
providers. The decision to remove the observer service provider from
the list, either after reviewing a rebuttal, or automatically if no
timely rebuttal is submitted, shall be the final decision of the
Department of Commerce. Removal from the list of approved observer
service providers does not necessarily prevent such observer service
provider from obtaining an approval in the future if a new application
is submitted that demonstrates that the reasons for removal are
remedied. Certified observers under contract with an observer service
provider that has been removed from the list of approved service
providers must complete their assigned duties for any scallop trips on
which the observers are deployed at the time the observer service
provider is removed from the list of approved observer service
providers. An observer service provider removed from the list of
approved observer service providers is responsible for providing NMFS
with the information required in paragraph (h)(5)(vii) of this section
following completion of the trip. NMFS may consider, but is not limited
to, the following in determining if an observer service provider may
remain on the list of approved observer service providers:
(i) Failure to meet the requirements, conditions, and
responsibilities of observer service providers specified in paragraphs
(h)(5) and (h)(6) of this section;
(ii) Evidence of conflict of interest as defined under paragraph
(h)(6) of this section;
(iii) Evidence of criminal convictions related to:
(A) Embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements, or receiving stolen
property; or
(B) The commission of any other crimes of dishonesty, as defined by
state law or Federal law, that would seriously and directly affect the
fitness of an applicant in providing observer services under this
section;
(iv) Unsatisfactory performance ratings on any Federal contracts
held by the applicant; and
(v) Evidence of any history of decertification as either an
observer or observer provider.
(i) Observer certification. (1) To be certified, employees or sub-
contractors operating as observers for observer service providers
approved under paragraph (h) of this section must meet NMFS National
Minimum Eligibility Standards for observers. NMFS National Minimum
Eligibility Standards are available at the National Observer Program
Web site: http://www.st.nmfs.gov/st4/nop/.
(2) Observer training. In order to be deployed on any scallop
vessel, a candidate observer must have passed a NMFS/NEFOP Sea Scallop
Fisheries Observer Training course. If a candidate fails training, the
candidate shall be notified in writing on or before the last day of
training. The notification will indicate the reasons the candidate
failed the training. A candidate that fails training shall not be able
to enroll in a subsequent class. Observer training shall include an
observer training trip, as part of the observer's training, aboard a
scallop vessel with a trainer. A certified observer's first deployment
and the resulting data shall be immediately edited, and approved, by
NMFS prior to any further deployments of that observer.
(3) Observer requirements. All observers must:
(i) Have a valid NMFS/NEFOP fisheries observer certification
pursuant to paragraph (i)(1) of this section;
(ii) Be physically and mentally capable of carrying out the
responsibilities of an observer on board scallop vessels, pursuant to
standards established by NMFS. Such standards are available from NMFS/
NEFOP Web site specified in paragraph (g)(4) of this section and shall
be provided to each approved observer service provider;
(iii) Have successfully completed all NMFS-required training and
briefings for observers before deployment, pursuant to paragraph (i)(2)
of this section; and
(iv) Hold a current Red Cross (or equivalence) CPR/first aid
certification.
(v) Observers must accurately record their sampling data, write
complete reports, and report accurately any observations relevant to
conservation of marine resources or their environment.
(4) Probation and decertification. NMFS has the authority to review
observer certifications and issue observer certification probation and/
or decertification as described in NMFS policy found on the Web site
at: http://www.nefsc.noaa.gov/femad/fsb/.
(5) Issuance of decertification. Upon determination that
decertification is warranted under paragraphs (i)(1) through (3) of
this section, NMFS shall issue a written decision to decertify the
observer to the observer and approved observer service provider via
certified mail at the observer's most current address provided to NMFS.
The decision shall identify whether a certification is revoked and
shall identify the specific reasons for the action taken.
Decertification is effective immediately as of the date of issuance,
[[Page 81848]]
unless the decertification official notes a compelling reason for
maintaining certification for a specified period and under specified
conditions. Decertification is the final decision of the Department of
Commerce.
* * * * *
Sec. 648.18 [Amended]
0
3. Sec. 648.18 is removed and reserved.
Sec. 648.22 [Amended]
0
4. In Sec. 648.22, paragraph (c)(13) is removed and reserved.
0
5. In Sec. 648.25, paragraph (a)(1) is revised to read as follows:
Sec. 648.25 Atlantic Mackerel, squid, and butterfish framework
adjustments to management measures.
(a) * * *
(1) Adjustment process. The MAFMC shall develop and analyze
appropriate management actions over the span of at least two MAFMC
meetings. The MAFMC must provide the public with advance notice of the
availability of the recommendation(s), appropriate justification(s) and
economic and biological analyses, and the opportunity to comment on the
proposed adjustment(s) at the first meeting and prior to and at the
second MAFMC meeting. The MAFMC's recommendations on adjustments or
additions to management measures must come from one or more of the
following categories: Adjustments within existing ABC control rule
levels; adjustments to the existing MAFMC risk policy; introduction of
new AMs, including sub-ACTs; minimum fish size; maximum fish size; gear
restrictions; gear requirements or prohibitions; permitting
restrictions, recreational possession limit; recreational seasons;
closed areas; commercial seasons; commercial trip limits; commercial
quota system, including commercial quota allocation procedure and
possible quota set-asides to mitigate bycatch; recreational harvest
limit; annual specification quota setting process; FMP Monitoring
Committee composition and process; description and identification of
EFH (and fishing gear management measures that impact EFH); description
and identification of habitat areas of particular concern; overfishing
definition and related thresholds and targets; regional gear
restrictions; regional season restrictions (including option to split
seasons); restrictions on vessel size (LOA and GRT) or shaft
horsepower; any other management measures currently included in the
FMP, set aside quota for scientific research, regional management, and
process for inseason adjustment to the annual specification. Measures
contained within this list that require significant departures from
previously contemplated measures or that are otherwise introducing new
concepts may require amendment of the FMP instead of a framework
adjustment.
* * * * *
0
6. In Sec. 648.79, paragraph (a)(1) is revised to read as follows:
Sec. 648.79 Surfclam and ocean quahog framework adjustments to
management measures.
(a) * * *
(1) Adjustment process. The MAFMC shall develop and analyze
appropriate management actions over the span of at least two MAFMC
meetings. The MAFMC must provide the public with advance notice of the
availability of the recommendation(s), appropriate justification(s) and
economic and biological analyses, and the opportunity to comment on the
proposed adjustment(s) at the first meeting, and prior to and at the
second MAFMC meeting. The MAFMC's recommendations on adjustments or
additions to management measures must come from one or more of the
following categories: Adjustments within existing ABC control rule
levels; adjustments to the existing MAFMC risk policy; introduction of
new AMs, including sub-ACTs; description and identification of EFH (and
fishing gear management measures that impact EFH); habitat areas of
particular concern; set-aside quota for scientific research; VMS; OY
range; and suspension or adjustment of the surfclam minimum size limit.
Issues that require significant departures from previously contemplated
measures or that are otherwise introducing new concepts may require an
amendment of the FMP instead of a framework adjustment.
* * * * *
0
7. In Sec. 648.90, paragraphs (a)(2)(i), (a)(2)(iii), (b)(1)(ii), and
(c)(1)(i) are revised to read as follows:
Sec. 648.90 NE multispecies assessment, framework procedures and
specifications, and flexible area action system.
* * * * *
(a) * * *
(2) Biennial review. (i) The NE multispecies PDT shall meet on or
before September 30 every other year, unless otherwise specified in
paragraph (a)(3) of this section, under the conditions specified in
that paragraph, to perform a review of the fishery, using the most
current scientific information available provided primarily from the
NEFSC. Data provided by states, ASMFC, the USCG, and other sources may
also be considered by the PDT. Based on this review, the PDT will
develop ACLs for the upcoming fishing year(s) as described in paragraph
(a)(4) of this section and develop options for consideration by the
Council if necessary, on any changes, adjustments, or additions to DAS
allocations, closed areas, or other measures necessary to rebuild
overfished stocks and achieve the FMP goals and objectives.
* * * * *
(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;
identification and distribution of 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;
description and identification of EFH; fishing gear management measures
to protect EFH; designation of habitat areas of particular concern
within EFH. 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;
[[Page 81849]]
sector reporting requirements; 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.
* * * * *
(b) * * *
(1) * * *
(ii) The WMC shall recommend management options necessary to
achieve FMP goals and objectives pertaining to small-mesh multispecies,
which may include a preferred option. The WMC must demonstrate through
analyses and documentation that the options it develops are expected to
meet the FMP goals and objectives. The WMC may review the performance
of different user groups or fleet Sectors in developing options. The
range of options developed by the WMC may include any of the management
measures in the FMP, including, but not limited to: Annual target TACs,
which must be based on the projected fishing mortality levels required
to meet the goals and objectives outlined in the FMP for the small-mesh
multispecies; possession limits; gear restrictions; closed areas;
permitting restrictions; minimum fish sizes; recreational fishing
measures; description and identification of EFH; fishing gear
management measures to protect EFH; designation of habitat areas of
particular concern within EFH; and any other management measures
currently included in the FMP.
* * * * *
(c) * * *
(1) * * *
(i) After a management action has been initiated, the Council shall
develop and analyze appropriate management actions over the span of at
least two Council meetings. The Council shall provide the public with
advance notice of the availability of both the proposals and the
analyses and opportunity to comment on them prior to and at the second
Council meeting. The Council's recommendation on adjustments or
additions to management measures, other than to address gear conflicts,
must come from one or more of the following categories: DAS changes,
effort monitoring, data reporting, possession limits, gear
restrictions, closed areas, permitting restrictions, crew limits,
minimum fish sizes, onboard observers, minimum hook size and hook
style, the use of crucifer in the hook-gear fishery, sector
requirements, recreational fishing measures, area closures and other
appropriate measures to mitigate marine mammal entanglements and
interactions, description and identification of EFH, fishing gear
management measures to protect EFH, designation of habitat areas of
particular concern within EFH, and any other management measures
currently included in the FMP. In addition, the Council's
recommendation on adjustments or additions to management measures
pertaining to small-mesh NE multispecies, other than to address gear
conflicts, must come from one or more of the following categories:
Quotas and appropriate seasonal adjustments for vessels fishing in
experimental or exempted fisheries that use small mesh in combination
with a separator trawl/grate (if applicable), modifications to
separator grate (if applicable) and mesh configurations for fishing for
small-mesh NE multispecies, adjustments to whiting stock boundaries for
management purposes, adjustments for fisheries exempted from minimum
mesh requirements to fish for small-mesh NE multispecies (if
applicable), season adjustments, declarations, and participation
requirements for the Cultivator Shoal Whiting Fishery Exemption Area.
* * * * *
0
8. In Sec. 648.96, paragraph (a)(3)(ii) is revised to read as follows:
Sec. 648.96 FMP review, specification, and framework adjustment
process.
(a) * * *
(3) * * *
(ii) The range of options developed by the Councils may include any
of the management measures in the Monkfish FMP, including, but not
limited to: ACTs; closed seasons or closed areas; minimum size limits;
mesh size limits; net limits; liver-to-monkfish landings ratios; annual
monkfish DAS allocations and monitoring; trip or possession limits;
blocks of time out of the fishery; gear restrictions; transferability
of permits and permit rights or administration of vessel upgrades,
vessel replacement, or permit assignment; measures to minimize the
impact of the monkfish fishery on protected species; gear requirements
or restrictions that minimize bycatch or bycatch mortality;
transferable DAS programs; changes to the Monkfish Research Set-Aside
Program; and other frameworkable measures included in Sec. Sec. 648.55
and 648.90.
* * * * *
Sec. 648.102 [Amended]
0
9. In Sec. 648.102, paragraph (a)(10) is removed and reserved.
0
10. In Sec. 648.110, paragraph (a)(1) is revised to read as follows:
Sec. 648.110 Summer flounder framework adjustments to management
measures.
(a) * * *
(1) Adjustment process. The MAFMC shall develop and analyze
appropriate management actions over the span of at least two MAFMC
meetings. The MAFMC must provide the public with advance notice of the
availability of the recommendation(s), appropriate justification(s) and
economic and biological analyses, and the opportunity to comment on the
proposed adjustment(s) at the first meeting and prior to and at the
second MAFMC meeting. The MAFMC's recommendations on adjustments or
additions to management measures must come from one or more of the
following categories: Adjustments within existing ABC control rule
levels; adjustments to the existing MAFMC risk policy; introduction of
new AMs, including sub-ACTs; minimum fish size; maximum fish size; gear
restrictions; gear requirements or prohibitions; permitting
restrictions; recreational possession limit; recreational seasons;
closed areas; commercial seasons; commercial trip limits; commercial
quota system including commercial quota allocation procedure and
possible quota set asides to mitigate bycatch; recreational harvest
limit; specification quota setting process; FMP Monitoring Committee
composition and process; description and identification of essential
fish habitat (and fishing gear management measures that impact EFH);
description and identification of habitat areas of particular concern;
regional gear restrictions; regional season restrictions (including
option to split seasons); restrictions on vessel size (LOA and GRT) or
shaft horsepower; operator permits; any other commercial or
recreational management measures; any other management measures
currently included in the FMP; and set aside quota for scientific
research. Issues that require significant departures
[[Page 81850]]
from previously contemplated measures or that are otherwise introducing
new concepts may require an amendment of the FMP instead of a framework
adjustment.
* * * * *
Sec. 648.122 [Amended]
0
11. In Sec. 648.122, paragraph (a)(13) is removed and reserved.
Sec. 648.142 [Amended]
0
12. In Sec. 648.142, paragraph (a)(12) is removed and reserved.
Sec. 648.162 [Amended]
0
13. In Sec. 648.162, paragraph (a)(9) is removed and reserved.
0
14. In Sec. 648.167, paragraph (a)(1) is revised to read as follows:
Sec. 648.167 Bluefish framework adjustment to management measures.
(a) * * *
(1) Adjustment process. After a management action has been
initiated, the MAFMC shall develop and analyze appropriate management
actions over the span of at least two MAFMC meetings. The MAFMC shall
provide the public with advance notice of the availability of both the
proposals and the analysis and the opportunity to comment on them prior
to and at the second MAFMC meeting. The MAFMC's recommendation on
adjustments or additions to management measures must come from one or
more of the following categories: Adjustments within existing ABC
control rule levels; adjustments to the existing MAFMC risk policy;
introduction of new AMs, including sub-ACTs; minimum fish size; maximum
fish size; gear restrictions; gear requirements or prohibitions;
permitting restrictions; recreational possession limit; recreational
season; closed areas; commercial season; description and identification
of EFH; fishing gear management measures to protect EFH; designation of
habitat areas of particular concern within EFH; and any other
management measures currently included in the FMP. Measures that
require significant departures from previously contemplated measures or
that are otherwise introducing new concepts may require an amendment of
the FMP instead of a framework adjustment.
* * * * *
0
15. In Sec. 648.200, paragraph (b) introductory text is revised to
read as follows:
Sec. 648.200 Specifications.
* * * * *
(b) Guidelines. As the basis for its recommendations under
paragraph (a) of this section, the PDT shall review available data
pertaining to: Commercial and recreational catch data; current
estimates of fishing mortality; stock status; recent estimates of
recruitment; virtual population analysis results and other estimates of
stock size; sea sampling and trawl survey data or, if sea sampling data
are unavailable, length frequency information from trawl surveys;
impact of other fisheries on herring mortality; and any other relevant
information. The specifications recommended pursuant to paragraph (a)
of this section must be consistent with the following:
* * * * *
Sec. 648.206 [Amended]
0
16. In Sec. 648.206, paragraph (b)(29) is removed and reserved.
Sec. 648.232 [Amended]
0
17. In Sec. 648.232, paragraph (a)(5) is removed and reserved.
0
18. In Sec. 648.239, paragraph (a)(1) is revised to read as follows:
Sec. 648.239 Spiny dogfish framework adjustments to management
measures.
(a) * * *
(1) Adjustment process. After the Councils initiate a management
action, they shall develop and analyze appropriate management actions
over the span of at least two Council meetings. The Councils shall
provide the public with advance notice of the availability of both the
proposals and the analysis for comment prior to, and at, the second
Council meeting. The Councils' recommendation on adjustments or
additions to management measures must come from one or more of the
following categories: Adjustments within existing ABC control rule
levels; adjustments to the existing MAFMC risk policy; introduction of
new AMs, including sub-ACTs; minimum fish size; maximum fish size; gear
requirements, restrictions, or prohibitions (including, but not limited
to, mesh size restrictions and net limits); regional gear restrictions;
permitting restrictions, and reporting requirements; recreational
fishery measures (including possession and size limits and season and
area restrictions); commercial season and area restrictions; commercial
trip or possession limits; fin weight to spiny dogfish landing weight
restrictions; onboard observer requirements; commercial quota system
(including commercial quota allocation procedures and possible quota
set-asides to mitigate bycatch, conduct scientific research, or for
other purposes); recreational harvest limit; annual quota specification
process; FMP Monitoring Committee composition and process; description
and identification of essential fish habitat; description and
identification of habitat areas of particular concern; overfishing
definition and related thresholds and targets; regional season
restrictions (including option to split seasons); restrictions on
vessel size (length and GRT) or shaft horsepower; target quotas;
measures to mitigate marine mammal entanglements and interactions;
regional management; any other management measures currently included
in the Spiny Dogfish FMP; and measures to regulate aquaculture
projects. Measures that require significant departures from previously
contemplated measures or that are otherwise introducing new concepts
may require an amendment of the FMP instead of a framework adjustment.
* * * * *
0
19. In Sec. 648.260, paragraph (a)(1) is revised to read as follows:
Sec. 648.260 Specifications.
(a) * * *
(1) The Red Crab PDT shall meet at least once annually during the
intervening years between Stock Assessment and Fishery Evaluation
(SAFE) Reports, described in paragraph (b) of this section, to review
the status of the stock and the fishery. Based on such review, the PDT
shall provide a report to the Council on any changes or new information
about the red crab stock and/or fishery, and it shall recommend whether
the specifications for the upcoming year(s) need to be modified. At a
minimum, this review shall 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); stock status; recent
estimates of recruitment; virtual population analysis results and other
estimates of stock size; sea sampling, port sampling, and survey data
or, if sea sampling data are unavailable, length frequency information
from port sampling and/or surveys; impact of other fisheries on the
mortality of red crabs; and any other relevant information.
* * * * *
Sec. 648.299 [Amended]
20. In Sec. 648.299, paragraph (a)(1)(xviii) is removed and
reserved.
[FR Doc. 2011-33302 Filed 12-28-11; 8:45 am]
BILLING CODE 3510-22-P