[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