[Federal Register Volume 77, Number 57 (Friday, March 23, 2012)]
[Rules and Regulations]
[Pages 16942-16949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7062]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110901552-20494-02]
RIN 0648-BB34


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

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

ACTION: Final rule.

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SUMMARY: This final rule implements measures in Amendment 17 to the 
Northeast Multispecies Fishery Management Plan which was approved on 
March 8, 2012. This action amends the Northeast Multispecies Fishery 
Management Plan to explicitly define and facilitate the effective 
operation of state-operated permit banks. As proposed in Amendment 17, 
state-operated permit banks may be allocated an annual catch 
entitlement and specifically authorized to provide their annual catch 
entitlement and/or days-at-sea to approved groundfish sectors to 
enhance the fishing opportunities available to sector members. This 
action also approves a provision allowing NMFS to issue a days-at-sea 
credit to a vessel that cancels a fishing trip prior to setting or 
hauling fishing gear.

DATES: This rule is effective April 23, 2012.

ADDRESSES: Copies of the Amendment 17 document, including an 
environmental assessment and a regulatory impact review, are available 
from the Northeast Regional Office of the National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. This document 
is also accessible via the Internet at http://www.nero.noaa.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to the Northeast Regional Office and by 
email to [email protected], or fax to (202) 395-7285.

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

[[Page 16943]]


SUPPLEMENTARY INFORMATION: 

Background

    The final rule implementing Amendment 13 to the Northeast (NE) 
Multispecies Fishery Management Plan (FMP) (69 FR 22906; April 27, 
2004) specified a process for forming sectors within the NE 
multispecies fishery, implemented restrictions applicable to all 
sectors, and authorized the allocation of a total allowable catch (TAC) 
for specific groundfish species to a sector. As approved in Amendment 
13, each sector must prepare a sector operations plan, which must be 
submitted to NMFS along with signed sector member contracts and an 
environmental assessment (EA), or other appropriate environmental 
analysis. Amendment 16 (74 FR 18262; April 9, 2010) expanded sector 
management measures and authorized 17 new sectors, for a total of 19 
sectors. The amendment defined a sector as ``[a] group of persons 
(three or more persons, none of whom have an ownership interest in the 
other two persons in the sector) holding limited access vessel permits 
who have voluntarily entered into a contract and agree to certain 
fishing restrictions for a specified period of time, and which has been 
granted a TAC(s) [sic] in order to achieve objectives consistent with 
applicable FMP goals and objectives.'' A sector's TAC is referred to as 
an annual catch entitlement (ACE). Each sector's ACE for a particular 
stock represents a share of that stock's annual catch limit (ACL) 
available to commercial NE multispecies vessels, based upon the 
potential sector contribution (PSC) of permits participating in that 
sector. Regional Administrator (RA) approval is required for a sector 
to be authorized to fish and to be allocated an ACE for stocks of 
regulated NE multispecies during each fishing year. Each sector is 
responsible for monitoring its catch, reporting catch to NMFS, and 
ensuring it does not exceed its ACE.
    In 2009 and 2010, NOAA provided nearly $5 million in funding 
through Federal grants to the states of Maine, New Hampshire, and Rhode 
Island for the express purpose of establishing several ``permit banks'' 
of NE multispecies fishing vessel permits.\1\ The permit banks were 
developed jointly by the states and NMFS, through memoranda of 
agreement (MOA), to help promote the effective implementation of catch 
share programs in New England and to mitigate some of the potential 
adverse socio-economic impacts to fishing communities and small-scale 
fishing businesses. The intent of the permit bank program is for states 
to use the funding to obtain fishing vessel permits and then to provide 
the fishing opportunities associated with those permits in the form of 
ACE and/or days-at-sea (DAS) to qualified fishermen.
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    \1\ $1 million initially provided to the Commonwealth of 
Massachusetts for a permit bank has been, at the request of the 
Commonwealth, reprogrammed for use in a revolving loan fund intended 
to serve a similar purpose as the permit bank.
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    State-operated permit banks are not specifically recognized under 
the current NE Multispecies FMP, and are not allocated, or authorized 
to transfer, ACE outside of the current sector program. Because of 
this, the only mechanism currently available for a state-operated 
permit bank to be allocated and to transfer ACE is for the state to 
either enroll in an existing sector or to form its own sector with 
other permit holders. Both of these methods complicate the operation of 
the state permit banks and add administrative requirements that are 
redundant with requirements of memoranda of agreement (MOA) that were 
signed with the states and NOAA's National Marine Fisheries Service 
(NMFS) as a prerequisite for receiving the grant awards.
    This action implements Amendment 17 to the NE Multispecies FMP 
which was approved on March 8, 2012. The amendment as implemented 
explicitly defines and facilitates the effective operation of state-
operated permit banks by specifically recognizing state-operated permit 
banks under the provisions of the NE Multispecies FMP. As such, a 
state-operated permit bank can now be allocated ACE and is able to 
transfer ACE to an approved sector without having to enroll in another 
sector or create its own sector. Separately from Amendment 17, this 
action also amends the regulations implementing the NE Multispecies, 
Monkfish, and Atlantic Sea Scallop FMPs to include a provision that 
would allow NMFS to issue a DAS credit to a vessel that canceled a 
fishing trip prior to setting or hauling fishing gear and if the 
vessel, therefore, did not catch or land fish at any time on the trip.
    A notice of availability for Amendment 17 was published in the 
Federal Register on December 12, 2011 (76 FR 77200) and public comments 
were accepted through February 10, 2012. A proposed rule to implement 
measures in Amendment 17 was published in the Federal Register on 
December 22, 2011 (76 FR 79612) and public comments were accepted 
through January 23, 2012. The Amendment 17 proposed rule included a 
detailed description of sector management, state-operated permit banks, 
the proposed measures, and other issues that influenced the development 
of this action. Amendment 17 was approved on March 8, 2012.

Approved Measures

    The following summarizes the approved Amendment 17 measures as well 
as the DAS credit provision as previously proposed. These measures 
build upon the provisions implemented by previous management actions 
and are intended to either supplement or replace existing regulations 
that would otherwise apply to state-operated permit banks. This final 
rule also revises regulations that are not specifically identified in 
Amendment 17, but are necessary to clarify existing provisions, as 
described further below.

1. Definition of a State-Operated Permit Bank

    Amendment 17 defines a state-operated permit bank as a permit 
depository established through an agreement between NOAA and a state in 
which Federal grant funds are used by the state to obtain Federal 
fishing vessel permits so that the fishing access privileges associated 
with those permits may be allocated by the state to qualified sectors. 
State-operated permit banks are not equivalent to groundfish sectors.
    State-operated permit banks shall be deemed to meet the definition 
above, and therefore qualify to operate as intended in this action, so 
long as the state-operated permit bank was initially established using 
a Federal grant award from NOAA for this purpose and the state 
maintains a valid MOA with NMFS. The MOA between NMFS and each state 
establishes the parameters that the state must follow in order to 
receive Federal grant funding that is then applied towards purchasing 
NE multispecies permitted vessels and transferring the ACE allocated to 
the permit bank to approved sectors. A state-operated permit bank must 
have a valid MOA in order to operate. State-operated permit banks are 
no longer subject to the requirement that three or more persons be 
included in a sector.

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

    This action allows state-operated permit banks to be allocated ACE 
and/or DAS and authorizes them to provide ACE to approved groundfish 
sectors to enhance the fishing opportunities available to sector 
members. State-operated permit banks are required to

[[Page 16944]]

comply with the terms and conditions of any applicable Federal grant 
agreement (i.e., a Federal grant award provided to a state for the 
purpose of establishing, enhancing, or operating a permit bank), as 
well as meet the requirements specified in an MOA established with NMFS 
for administering the permit bank.
    State-operated permit banks are required to report to the Council 
annually on the performance of the permit bank. Such reports must 
include, to the extent that the information does not conflict with any 
regulations regarding the protection of personal and/or proprietary 
information, all reporting requirements within the MOA. State-operated 
permit banks are exempt from many of the sector reporting requirements 
because state-operated permit banks are prohibited from actively 
fishing.
    State-operated permit banks are not authorized to acquire, except 
as described below, additional ACE or DAS for a fishing year through a 
transfer from a sector or other vessels because the purpose of the 
state-operated permit banks is to transfer out ACE and DAS to sector 
fishermen in need of additional allocation, not to accumulate ACE or 
DAS. However, if a sector receives a transfer of ACE, or a vessel 
receives DAS, from a state-operated permit bank but wishes to return 
either the (unused) ACE or DAS to the permit bank, NMFS could, upon 
written agreement by both parties, void the initial transfer, thereby 
returning the ACE or DAS to the permit bank. The state permit bank 
would then be free to redistribute the available ACE or DAS to another 
sector or vessel. In addition, and subject to the terms and conditions 
of the states' permit bank MOAs with NMFS, state-operated permit banks 
are authorized to transfer ACE, on a stock-by-stock basis, to other 
state-operated permit banks for the purpose of maximizing the fishing 
opportunities made available by the permit banks to sector members. For 
example, the Rhode Island state permit bank could transfer ACE for Gulf 
of Maine cod to the Maine state permit bank in exchange for ACE for 
Southern New England/Mid-Atlantic yellowtail flounder.
    For the reasons stated in the proposed rule, NMFS highlighted the 
need for public comment in the proposed rule on two specific provisions 
of Amendment 17 raised by the New England Fishery Management Council, 
detailed in the September 7, 2011, ``deeming'' letter to the Regional 
Administrator.
    First, NMFS specifically solicited public comment on whether state-
operated permit banks should be prohibited from using additional funds 
to acquire permits prior to Council review. The State of New Hampshire 
commented that it was ``not opposed'' to the proposed regulation as 
written. However, NMFS has determined that the proposed rule is 
inconsistent with Amendment 17 language and it is not appropriate in 
the context of Amendment 17 for NMFS to prohibit the mere acquisition 
of a permit that may or may not be used in the state-operated permit 
bank. Moreover, there is nothing in the current regulations that 
prohibits any interested party, including a state, from acquiring a 
permit. Therefore, the Council cannot prohibit a state from acquiring a 
permit with additional funding it receives or impose any conditions on 
the acquisition of such a permit. If more funds become available to a 
state, the use of those additional funds to allocate or transfer ACE by 
a state-operated permit bank as defined in this action must first be 
reviewed by the Council for consistency with the goals and objectives 
of the NE Multispecies FMP prior to the state using those funds outside 
of the sector process. A state would not be authorized to allocate or 
transfer any ACE that may be associated with new permits obtained as a 
result of the additional funds, unless the state either: (1) provides 
the Council the opportunity to review the implications of the expanded 
permit bank to the goals and objectives of the NE Multispecies FMP; or 
(2) forms or joins an approved groundfish sector. This language is 
consistent with the language in Amendment 17 as approved by the 
Council. The regulations implemented by this rule have been changed 
accordingly.
    Second, NMFS sought public comment on whether state-operated permit 
banks should be allowed to carry-over unused ACE and DAS from one 
fishing year into the next. In deeming the proposed regulations 
necessary and appropriate for implementing Amendment 17, the Council 
questioned whether the carryover of unused ACE provision for sectors in 
current regulations should be included in these implementing 
regulations even though the amendment is silent on this issue. However, 
the Council did not submit a comment on this issue. In the absence of 
any comments on this issue, and because the amendment itself and 
accompanying regulations do not propose carry-over provisions, NMFS 
cannot unilaterally add such a provision to this final rule. Moreover, 
NMFS summarized in the proposed rule that there are reasons distinct 
from the sector process that explain why carry-over may not be 
appropriate for state-operated permit banks. Therefore, state-operated 
permit banks cannot carry-over uncaught ACE from one fishing year to 
the next.

3. Canceled Trip DAS Credit

    This final rule implements a provision that is separate from 
Amendment 17, allowing NMFS to credit DAS to a vessel that cancels a 
fishing trip prior to setting or hauling fishing gear and which, 
therefore, does not catch or land fish at any time on the trip. This 
provision applies to all fisheries that operate under a DAS management 
system, specifically the NE multispecies, monkfish, and Atlantic sea 
scallop fisheries. Because this DAS credit would only be granted for 
situations in which no fishing activity occurs, it is not expected to 
have a negative impact on fishing-related mortality in the DAS 
fisheries. This measure will be applied retroactively for the 2011 
fishing years for those fisheries (the fishing years are not the same).
    To ensure the enforceability of this provision, vessels seeking a 
DAS credit must notify NMFS' Office of Law Enforcement (OLE) to 
coordinate a monitored landing event. Vessels that are required to use 
a vessel monitoring system (VMS) must send a VMS email to OLE at the 
earliest opportunity prior to crossing the VMS demarcation line upon 
return to port. Vessels not required to use a VMS must use the 
interactive voice response (IVR) line to make the notification. 
Additionally, both VMS and IVR vessels must submit a written DAS credit 
form along with the vessel trip report for the canceled trip to NMFS.
    The following information must be submitted on the written DAS 
credit request form: Owner/corporation name; vessel name; permit 
number; U.S. Coast Guard documentation number or state registration 
number; vessel operator name; trip departure and landing date; date and 
time VMS email was sent or IVR backup line was called; and reason for 
canceling the trip. Forms must be submitted within 30 days from the day 
the vessel returned to port on the canceled trip.
    For DAS credits that are requested near the end of the fishing 
year, the credited DAS will apply to the year in which the canceled 
trip occurred. Credited DAS that remain unused at the end of the 
fishing year or are not credited until the following fishing year can 
be carried over into the next fishing year, provided they do not to 
exceed the maximum number of DAS allowed to be

[[Page 16945]]

carried over for the fishery being credited.
Comments and Responses
    Three comments were received on the proposed rule. Two comments, 
one from the State of New Hampshire, and one from a member of the 
public, expressed general support for the amendment. One comment from a 
member of the fishing industry expressed concern about common pool 
vessels being excluded from state-operated permit bank ACE.
    Comment 1: The State of New Hampshire did not oppose the Council 
reviewing plans by its state-operated permit bank prior to acquiring 
additional Federal fishing permits.
    Response: NMFS has determined that the proposed regulation for this 
provision is not consistent with Amendment 17 and it is not appropriate 
for NMFS to prohibit the mere acquisition of a permit by a state in the 
context of Amendment 17. In addition, nothing in the current 
regulations for this provision prohibits any interested party, 
including a state-operated permit bank, from acquiring a permit. 
Therefore, this rule does not prohibit a state from acquiring a permit 
or impose conditions on a state regarding such an acquisition. Rather, 
this rule provides that if more funds from any source become available 
to a state to obtain additional permits, the state-operated permit bank 
may not allocate or transfer ACE that may be associated with the new 
permit until the state-operated permit bank provides the Council with 
the opportunity to review the implications of the expanded permit bank 
with the goals and objectives of the NE Multispecies FMP. However, once 
the Council has the opportunity to conduct such a review, the state-
operated permit bank may allocate or transfer any such ACE provided it 
is consistent with the MOAs with NOAA and other applicable law.
    Comment 2: The State of New Hampshire was not opposed to allowing 
DAS credit to vessels cancelling fishing trips prior to engaging in 
fishing activity for fisheries managed under a DAS system.
    Response: NMFS agrees with this comment and has approved this 
measure in this action.
    Comment 3: One individual expressed concern that fishermen not 
enrolled in a sector (i.e., the common pool) are unable to acquire ACE 
from state-operated permit banks.
    Response: Prior to Amendment 17, the only entities able to transfer 
ACE were approved sectors. Amendment 17 allows a state-operated permit 
bank to transfer ACE and/or DAS to another sector without becoming or 
enrolling in a sector. Neither sectors nor state-operated permit banks 
are able to transfer ACE to an individual not enrolled in a sector. 
However, common pool vessels may lease DAS from a state-operated permit 
bank for cooperative research purposes. Allowing a permit bank to 
transfer ACE to an individual fisherman in the common pool is 
inconsistent with current regulations and the FMP and therefore 
prohibited. Moreover, because this type of transfer regarding sectors 
was not proposed in Amendment 17, NMFS may not unilaterally add it.

Changes From the Proposed Rule

    As described above, NMFS has determined that the proposed rule is 
inconsistent with Amendment 17 language, and that it is not appropriate 
in the context of Amendment 17 for NMFS to prohibit the mere 
acquisition of a permit that may or may not be used in the state-
operated permit bank. Therefore, the regulation at 50 CFR 648.87(e)(6) 
has been modified in this final rule to be consistent with the language 
in Amendment 17 as approved by the Council.

Classification

    The Administrator, Northeast Region, NMFS, determined that 
Amendment 17 to the NE Multispecies FMP is necessary for the 
conservation and management of the groundfish fishery and that it is 
consistent with the Magnuson-Stevens Fishery Conservation and 
Management Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the 
Chief Counsel for Regulation of the Department of Commerce certified to 
the Chief Counsel for Advocacy of the Small Business Administration 
during the proposed rule stage that this action would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for the certification was published in the proposed 
rule and is not repeated here. No comments were received regarding this 
certification. As a result, a regulatory flexibility analysis was not 
required and none was prepared.
    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and that has been 
submitted for approval by OMB under control numbers 0648-0202 and 0648-
1212. NMFS will notify the affected public through a follow-up notice 
in the Federal Register announcing OMB's clearance of the collection-
of-information requirements. Under this action, in order to request a 
DAS credit, vessel owners are required to provide NMFS with an initial 
notification as well as the submission of a DAS credit request form. 
The public burden for requesting a DAS credit is estimated to average 
15 minutes per application, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information. Send comments regarding these burden estimates 
or any other aspect of this data collection, including suggestions for 
reducing the burden, to NMFS (see ADDRESSES) and by email to [email protected], or fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 648

    Fish, Fisheries, Reporting and recordkeeping requirements.

    Dated: March 19, 2012.
Samuel D. Rauch III,
Acting Assistant Administrator, For Fisheries, 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.  648.2, revise the definition for ``Annual catch entitlement 
(ACE)'' and add a new definition for ``State-operated permit bank'' in 
alphabetical order to read as follows:


Sec.  648.2  Definitions.

* * * * *
    Annual catch entitlement (ACE), with respect to the NE multispecies 
fishery, means the share of the annual catch limit (ACL) for each NE 
multispecies stock that is allocated to an individual sector or state-
operated permit bank based upon the cumulative fishing history attached 
to each permit participating in that sector or held by a state-operated 
permit bank in a given year. This share may be adjusted due to 
penalties for exceeding the sector's ACE for a particular stock in 
earlier years, or due to other violations of the FMP,

[[Page 16946]]

including the yearly sector operations plan. When a sector's or state-
operated permit bank's share of a NE multispecies stock, as determined 
by the fishing histories of vessels participating in that sector or 
permits held by a state-operated permit bank, is multiplied by the 
available catch, the result is the amount of ACE (live weight in 
pounds) that can be harvested (landings and discards) by participants 
in that sector or transferred by a state-operated permit bank, during a 
particular fishing year.
* * * * *
    State-operated permit bank means a depository established and 
operated by a state through an agreement between NMFS and a state in 
which Federal grant funds have been used by the state to obtain Federal 
fishing vessel permits so that the fishing access privileges associated 
with those permits may be allocated to qualified persons and that meets 
the requirement of Sec.  648.87(e).
* * * * *

0
3. In Sec.  648.53, revise paragraph (f) to read as follows:


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

* * * * *
    (f) DAS credits--(1) Good Samaritan credit. A limited access vessel 
operating under the DAS program and that spends time at sea assisting 
in a USCG search and rescue operation or assisting the USCG in towing a 
disabled vessel, and that can document the occurrence through the USCG, 
will not accrue DAS for the time documented.
    (2) Canceled trip DAS credit. A limited access vessel operating 
under the DAS program and that ends a fishing trip prior to setting 
and/or hauling fishing gear for any reason may request a cancelled trip 
DAS credit for the trip based on the following conditions and 
requirements:
    (i) There is no fish onboard the vessel and no fishing operations 
on the vessel were initiated, including setting and/or hauling fishing 
gear; and
    (ii) The owner or operator of the vessel fishing under a DAS 
program and required to use a VMS as specified under Sec.  648.10(b) 
makes an initial trip cancelation notification from sea, at the time 
the trip was canceled, or at the earliest opportunity prior to crossing 
the demarcation line as defined at Sec.  648.10(a). These reports are 
in the form of an email to NMFS Office of Law Enforcement and include 
at least the following information: Operator name; vessel name; vessel 
permit number; port where vessel will return; date trip started; 
estimated date/time of return to port; and a statement by the operator 
that no fish were onboard and no fishing activity occurred; and
    (iii) The owner or operator of the vessel operating under the DAS 
program required to use the IVR call in as specified under Sec.  
648.10(h) makes an initial trip cancelation notification to NMFS by 
calling the IVR back at the time the trip was canceled, or at the 
earliest opportunity prior to returning to port. This request must 
include at least the following information: Operator name; vessel name; 
vessel permit number; port where vessel will return; date trip started; 
estimated date/time of return to port; and a statement from the 
operator that no fish were onboard and no fishing activity occurred; 
and
    (iv) The owner or operator of the vessel requesting a canceled trip 
DAS credit, in addition to the requirements in paragraphs (f)(2)(ii) 
and (iii) of this section, submits a written DAS credit request form to 
NMFS within 30 days of the vessel's return to port from the canceled 
trip. This application must include at least the following information: 
Date and time when the vessel canceled the fishing trip; date and time 
of trip departure and landing; operator name; owner/corporation name; 
permit number; hull identification number; vessel name; date and time 
notification requirements specified under paragraphs (f)(2)(ii) and 
(iii) of this section were made; reason for canceling the trip; and 
owner/operator signature and date; and
    (v) The vessel trip report for the canceled trip as required under 
Sec.  648.7(b) is submitted along with the DAS credit request form; and
    (vi) For DAS credits that are requested near the end of the fishing 
year as defined at Sec.  648.2, and approved by the Regional 
Administrator, the credited DAS apply to the fishing year in which the 
canceled trip occurred. Credited DAS that remain unused at the end of 
the fishing year or that are not credited until the following fishing 
year may be carried over into the next fishing year, not to exceed the 
maximum number of carryover DAS as specified under paragraph (d) of 
this section.
* * * * *

0
4. In Sec.  648.82, remove and reserve paragraph (m) and revise 
paragraph (f) to read as follows:


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

* * * * *
    (f) DAS credits--(1) Good Samaritan credit. A limited access vessel 
fishing under the DAS program and that spends time at sea assisting in 
a USCG search and rescue operation or assisting the USCG in towing a 
disabled vessel, and that can document the occurrence through the USCG, 
shall not accrue DAS for the time documented.
    (2) Canceled trip DAS credit. A limited access vessel operating 
under the DAS program and that ends a fishing trip prior to setting 
and/or hauling fishing gear for any reason may request a cancelled trip 
DAS credit for the trip based on the following conditions and 
requirements:
    (i) There is no fish onboard the vessel and no fishing operations 
on the vessel were initiated, including setting and/or hauling fishing 
gear; and
    (ii) The owner or operator of the vessel fishing under a DAS 
program and required to use a VMS as specified under Sec.  648.10(b) 
makes an initial trip cancelation notification from sea, at the time 
the trip was canceled, or at the earliest opportunity prior to crossing 
the demarcation line as defined at Sec.  648.10(a). These reports are 
in the form of an email to NMFS Office of Law Enforcement and include 
at least the following information: Operator name; vessel name; vessel 
permit number; port where vessel will return; date trip started; 
estimated date/time of return to port; and a statement from the 
operator must that no fish were onboard and no fishing activity 
occurred; and
    (iii) The owner or operator of the vessel operating under the DAS 
program required to use the IVR call in as specified under Sec.  
648.10(h) makes an initial trip cancelation notification to NMFS by 
calling the IVR back at the time the trip was canceled, or at the 
earliest opportunity prior to returning to port. This request must 
include at least the following information: Operator name; vessel name; 
vessel permit number; port where vessel will return; date trip started; 
estimated date/time of return to port; and a statement from the 
operator that no fish were onboard and no fishing activity occurred; 
and
    (iv) The owner or operator of the vessel requesting a canceled trip 
DAS credit, in addition to the requirements in paragraphs (f)(2)(ii) 
and (iii) of this section, submits a written DAS credit request form to 
NMFS within 30 days of the vessel's return to port from the canceled 
trip. This application must include at least the following information: 
Date and time when the vessel canceled the fishing trip; date and time 
of trip departure and landing; operator name; owner/corporation name; 
permit number; hull identification number; vessel name; date and time 
notification requirements specified under paragraphs (f)(2)(ii) and 
(iii) of this section were made; reason

[[Page 16947]]

for canceling the trip; and owner/operator signature and date; and
    (v) The vessel trip report for the canceled trip as required under 
Sec.  648.7(b) is submitted along with the DAS credit request form; and
    (vi) For DAS credits that are requested near the end of the fishing 
year as defined at Sec.  648.2, and approved by the Regional 
Administrator, the credited DAS apply to the fishing year in which the 
canceled trip occurred. Credited DAS that remain unused at the end of 
the fishing year or are not credited until the following fishing year 
may be carried over into the next fishing year, not to exceed the 
maximum number of carryover DAS as specified under paragraph (a)(1) of 
this section.
    (3) DAS credit for standing by entangled whales. A limited access 
vessel fishing under the DAS program that reports and stands by an 
entangled whale may request a DAS credit for the time spent standing by 
the whale. The following conditions and requirements must be met to 
receive this credit:
    (i) At the time the vessel begins standing by the entangled whale, 
the vessel operator must notify the USCG and the Center for Coastal 
Studies, or another organization authorized by the Regional 
Administrator, of the location of the entangled whale and that the 
vessel is going to stand by the entangled whale until the arrival of an 
authorized response team;
    (ii) Only one vessel at a time may receive credit for standing by 
an entangled whale. A vessel standing by an entangled whale may 
transfer its stand-by status to another vessel while waiting for an 
authorized response team to arrive, provided it notifies the USCG and 
the Center for Coastal Studies, or another organization authorized by 
the Regional Administrator, of the transfer. The vessel to which stand-
by status is transferred must also notify the USCG and the Center for 
Coastal Studies or another organization authorized by the Regional 
Administrator of this transfer and comply with the conditions and 
restrictions of this part;
    (iii) The stand-by vessel must be available to answer questions on 
the condition of the animal, possible species identification, severity 
of entanglement, etc., and take photographs of the whale, if possible, 
regardless of the species of whale or whether the whale is alive or 
dead, during its stand-by status and after terminating its stand-by 
status. The stand-by vessel must remain on scene until the USCG or an 
authorized response team arrives, or the vessel is informed that an 
authorized response team will not arrive. If the vessel receives notice 
that a response team is not available, the vessel may discontinue 
standing-by the entangled whale and continue fishing operations; and
    (iv) To receive credit for standing by an entangled whale, a vessel 
must submit a written request to the Regional Administrator. This 
request must include at least the following information: Date and time 
when the vessel began its stand-by status; date of first communication 
with the USCG; and date and time when the vessel terminated its stand-
by status. DAS credit shall not be granted for the time a vessel fishes 
when standing by an entangled whale. Upon a review of the request, NMFS 
shall consider granting the DAS credit based on information available 
at the time of the request, regardless of whether an authorized 
response team arrives on scene or a rescue is attempted. NMFS shall 
notify the permit holder of any DAS adjustment that is made or explain 
the reasons why an adjustment will not be made.
* * * * *

0
5. In Sec.  648.87, add paragraph (e) to read as follows:


Sec.  648.87  Sector allocation.

* * * * *
    (e) State-operated permit bank. A state-operated permit bank must 
meet and is subject to the following requirements and conditions:
    (1) The state-operated permit bank must be initially established 
using a Federal grant award from NOAA through a valid Memorandum of 
Agreement (MOA) with NMFS and the state must maintain and comply with 
such MOA. The MOA must contain and the state must comply with at least 
the following requirements and conditions:
    (i) The state may not associate a state-operated permit bank permit 
with a vessel engaged in any fishing or other on-the-water activities;
    (ii) The state must establish the minimum eligibility criteria to 
determine whether a sector and its associated vessels are qualified to 
receive either ACE or DAS from the state-operated permit bank;
    (iii) The state must identify a program contact person for the 
state agency administering the state-operated permit bank;
    (iv) The state must provide to NMFS a list of all permits held by 
the state under the aegis of the state-operated permit bank, and 
declare which permits will be used in the coming fishing year for 
exclusively DAS leasing to common pool vessels and which permits are to 
be used exclusively for transferring ACE to sectors (including the 
leasing of DAS to sector vessels for the purpose of complying with the 
requirements of other FMPs); and
    (v) The state must prepare and submit an annual performance report 
to NMFS, and that said performance report must include, at a minimum, 
the following elements:
    (A) A comprehensive listing of all permits held by the state-
operated permit bank, identifying whether a permit was used for ACE 
transfers to sectors (including DAS leases to the sector members) or 
DAS leases to common pool vessels, the total amount of ACE, by stock, 
and DAS available to the state-operated permit bank for transfers and 
leases to sectors and common-pool vessels;
    (B) A comprehensive listing of all sectors to which ACE was 
transferred from the state-operated permit bank, including the amount, 
by stock, of ACE transferred to each sector, including a list of all 
vessels that harvested the ACE transferred to the sector and the 
amounts harvested;
    (C) A comprehensive listing of all sector vessels to which DAS were 
leased from the state-operated permit bank, including the number of DAS 
leased to each sector vessel; and
    (D) A comprehensive listing of all common pool vessels to which DAS 
were leased from the state-operated permit bank, including the number 
of DAS leased to each common pool vessel.
    (2) Eligibility. If a state is issued a permit that meets sector 
eligibility requirements, as defined in paragraph (a)(3) of this 
section, such permit may be held by a state-operated permit bank.
    (3) Allocation and utilization of ACE--(i) Allocation of ACE. The 
amount of ACE allocated to a state-operated permit bank shall be 
derived from the permits appropriately declared by the state to be 
``ACE permits,'' pursuant to paragraph (e)(1)(i)(v) of this section, 
for the fishing year and allocated on a stock-by-stock basis pursuant 
to paragraph (b)(1)(i) of this section.
    (ii) Acquiring ACE. Except as provided in this paragraph, a state-
operated permit bank may not acquire ACE for a fishing year through a 
transfer from a sector. If ACE is transferred to a sector from a state-
operated permit bank, NMFS may authorize the return of the unused 
portion of such ACE (up to the total originally transferred) to the 
state-operated permit bank upon written agreement by both parties. The 
state-operated permit bank may then redistribute the available ACE to

[[Page 16948]]

another qualifying sector during that fishing year.
    (iii) Transferring ACE. Subject to the terms and conditions of the 
state-operated permit bank's MOAs with NMFS, as well as ACE transfer 
restrictions described in paragraph (b)(1)(viii) of this section, a 
state-operated permit bank may transfer ACE, on a stock-by-stock basis, 
to other state-operated permit banks.
    (4) Allocation and utilization of days-at-sea--(i) Allocation of 
DAS. The number of DAS available for a state-operated permit bank to 
provide to sector or common pool vessels shall be the accumulated NE 
Multispecies Category A DAS assigned to the fishing vessel permits held 
by the state and appropriately declared by the state pursuant to 
paragraph (e)(1)(v) of this section to be either ``ACE permits'' or 
``common pool permits'' for that fishing year, consistent with the 
terms of the state's permit bank MOA.
    (ii) Acquiring DAS. A state-operated permit bank may not acquire 
DAS through a lease from a vessel permit (including permits held by 
other state-operated permit banks), as described in Sec.  684.82(k). If 
a vessel leases DAS from a state-operated permit bank, NMFS may 
authorize the return of the unused portion of such DAS to the state-
operated permit bank upon written agreement by both parties, provided 
none of the DAS had been used. The state-operated permit bank may then 
redistribute the available DAS to another vessel during the same 
fishing year.
    (5) Annual report. A state-operated permit bank shall report to the 
Council annually on the performance of the state-operated permit bank. 
Such reports shall include at a minimum and to the extent that the 
information does not conflict with any regulations regarding the 
protection of personal and/or proprietary information, all elements 
listed in paragraph (e)(1)(v) of this section.
    (6) Use of additional funds. If additional funds from any source 
become available to a state-operated permit bank, the state-operated 
permit bank may not allocate or transfer any ACE that may be associated 
with any new permit purchased with those funds, until the state-
operated permit bank provides the Council the opportunity to review the 
implications of the expanded state-operated permit bank to the goals 
and objectives of the NE Multispecies FMP.
    (7) Violation of the terms and conditions applicable to a state-
operated permit bank. If a state or state-operated permit bank violates 
or fails to comply with any of the requirements and conditions 
specified in this section or in the MOA referenced in paragraph (e)(1) 
of this section, the state or state-operated permit bank is subject to 
the actions and penalties specified in Sec.  648.4(n) or the MOA.

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


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

* * * * *
    (a) * * *
    (2) * * *
    (iii) Based on this review, the PDT shall recommend ACLs and 
develop options necessary to achieve the FMP goals and objectives, 
which may include a preferred option. The PDT must demonstrate through 
analyses and documentation that the options they develop are expected 
to meet the FMP goals and objectives. The PDT may review the 
performance of different user groups or fleet sectors in developing 
options. The range of options developed by the PDT may include any of 
the management measures in the FMP, including, but not limited to: 
ACLs, which must be based on the projected fishing mortality levels 
required to meet the goals and objectives outlined in the FMP for the 
12 regulated species and ocean pout if able to be determined; 
identifying and distributing ACLs and other sub-components of the ACLs 
among various segments of the fishery; AMs; DAS changes; possession 
limits; gear restrictions; closed areas; permitting restrictions; 
minimum fish sizes; recreational fishing measures; describing and 
identifying EFH; fishing gear management measures to protect EFH; and 
designating 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; sector reporting requirements; state-
operated permit bank administrative provisions; measures to implement 
the U.S./Canada Resource Sharing Understanding, including any specified 
TACs (hard or target); changes to administrative measures; additional 
uses for Regular B DAS; reporting requirements; the GOM Inshore 
Conservation and Management Stewardship Plan; adjustments to the 
Handgear A or B permits; gear requirements to improve selectivity, 
reduce bycatch, and/or reduce impacts of the fishery on EFH; SAP 
modifications; revisions to the ABC control rule and status 
determination criteria, including, but not limited to, changes in the 
target fishing mortality rates, minimum biomass thresholds, numerical 
estimates of parameter values, and the use of a proxy for biomass may 
be made either through a biennial adjustment or framework adjustment; 
and any other measures currently included in the FMP.
* * * * *

0
7. In Sec.  648.92, revise paragraph (b)(4) to read as follows:


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

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

[[Page 16949]]

vessel name; vessel permit number; port where vessel will return; date 
trip started; estimated date/time of return to port; and a statement 
from the operator that no fish were onboard and no fishing activity 
occurred; and
    (C) The owner or operator of the vessel operating under the DAS 
program required to use the IVR call in as specified under Sec.  
648.10(h) makes an initial trip cancelation notification to NMFS by 
calling the IVR back at the time the trip was canceled, or at the 
earliest opportunity prior to returning to port. This request must 
include at least the following information: Operator name; vessel name; 
vessel permit number; port where vessel will return; date trip started; 
estimated date/time of return to port; and a statement from the 
operator that no fish were onboard and no fishing activity occurred; 
and
    (D) The owner or operator of the vessel requesting a canceled trip 
DAS credit, in addition to the requirements in paragraphs (b)(4)(ii)(B) 
and (C) of this section, submits a written DAS credit request form to 
NMFS within 30 days of the vessel's return to port from the canceled 
trip. This application must include at least the following information: 
Date and time when the vessel canceled the fishing trip; date and time 
of trip departure and landing; operator name; owner/corporation name; 
permit number; hull identification number; vessel name; date and time 
notification requirements specified under paragraphs (b)(4)(ii)(B) and 
(C) of this section were made; reason for canceling the trip; and 
owner/operator signature and date; and
    (E) The vessel trip report for the canceled trip as required under 
Sec.  648.7(b) is submitted along with the DAS credit request form; and
    (F) For DAS credits that are requested near the end of the fishing 
year as defined at Sec.  648.2, and approved by the Regional 
Administrator, the credited DAS apply to the fishing year in which the 
canceled trip occurred. Credited DAS that remain unused at the end of 
the fishing year or are not credited until the following fishing year 
and may be carried over into the next fishing year, not to exceed the 
maximum number of carryover DAS as specified under paragraph (a)(1) of 
this section.

[FR Doc. 2012-7062 Filed 3-22-12; 8:45 am]
BILLING CODE 3510-22-P