[Federal Register Volume 78, Number 155 (Monday, August 12, 2013)]
[Proposed Rules]
[Pages 48852-48854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19496]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

RIN 0648-AY26


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Atlantic 
Mackerel, Squid, and Butterfish Fisheries; Amendment 14

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

ACTION: Announcement of availability of fishery management plan 
amendment; request for comments.

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SUMMARY: NMFS announces that the Mid-Atlantic Fishery Management 
Council (Council) has submitted Amendment 14 to the Atlantic Mackerel, 
Squid, and Butterfish Fishery Management Plan (Amendment 14), 
incorporating the Final Environmental Impact Statement (FEIS) and the 
Initial Regulatory Flexibility Analysis (IRFA), for review by the 
Secretary of Commerce, and is requesting comments from the public.

DATES: Comments must be received on or before October 11, 2013.

ADDRESSES: The Council prepared an FEIS for Amendment 14 that describes 
the proposed action and other considered alternatives and provides a 
thorough analysis of the impacts of the proposed measures and 
alternatives. Copies of Amendment 14, including the FEIS, the 
Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility 
Analysis (IRFA), are available from: Christopher Moore, Executive 
Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 State 
Street, Dover, DE 19901. The FEIS/RIR/IRFA is accessible via the 
Internet at http://www.nero.nmfs.gov.
    You may submit comments on this document, identified by NOAA-NMFS-
2013-0128, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0128, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: John K. Bullard, Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic

[[Page 48853]]

Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on MSB Amendment 14 NOA.''
     Fax: (978) 281-9135, Attn: Aja Szumylo.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF formats only.

FOR FURTHER INFORMATION CONTACT: Aja Szumylo, Fishery Policy Analyst, 
978-281-9195; fax 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    The goals of Amendment 14 are to: Implement an effective program 
for monitoring river herring and shad incidental catch and bycatch in 
the MSB fisheries; and reduce the incidental catch and bycatch of river 
herring and shad in the MSB fisheries. The Council initially notified 
the public of its intent to consider the impacts of alternatives for 
addressing river herring and shad interactions with the Atlantic 
Mackerel, Squid, and Butterfish (MSB) fisheries, as well as catch 
shares to limit harvesting capacity in the Illex and longfin squid 
fisheries, in a Notice of Intent to Prepare an Environmental Impact 
Statement (EIS) for Amendment 14 on June 9, 2010 (75 FR 32745). Based 
on written comments and comments received during scoping meetings held 
in June 2010, the Council decided to proceed with the analysis for 
Amendment 14 without including consideration of catch shares in the 
squid fisheries.
    The Council conducted public hearings for Amendment 14 in April and 
May of 2012. Following the public comment period on the Amendment 14 
DEIS that ended on June 4, 2012, the Council adopted Amendment 14 on 
June 14, 2012. The Council submitted Amendment 14 to NMFS for review on 
February 26, 2013. After making necessary revisions, the Council 
submitted Amendment 14 on June 3, 2013. In Amendment 14, measures 
recommended by the Council would:
     Require weekly vessel trip reports (VTRs) for all MSB 
permits, consistent with VTR provisions for other fisheries;
     Require a 48-hr pre-trip notification in order to retain, 
possess, or transfer more than 20,000 lb (9.07 mt) of Atlantic mackerel 
(mackerel) in order to facilitate observer placement;
     Require the use of vessel monitoring systems (VMS), as 
well as the submission of daily VMS catch reports, for limited access 
mackerel and longfin squid/butterfish moratorium permits to facility 
quota monitoring;
     Require a 6-hr pre-landing notification via VMS in order 
to land more than 20,000 lb (9.07 mt) of mackerel, to facilitate 
enforcement;
     Expand dealer reporting requirements;
     Increase observer coverage on limited access mackerel 
vessels using midwater and small-mesh bottom trawl, and require 
industry contributions of $325 per day;
     Expand vessel requirements related to at-sea observer 
sampling to help ensure safe sampling and improve data quality;
     Establish measures to minimize the discarding of catch 
before it has been made available for sampling;
     Require that the Council meet formally to review the 
results of the Sustainable Fisheries Coalition/University of 
Massachusetts Dartmouth School of Marine Science and Technology river 
herring and shad bycatch avoidance project, and consider the 
appropriateness of developing a framework adjustment to implement the 
catch avoidance strategies suggested in the study;
     Establish a mortality cap for river herring and shad to 
directly control mortality in the mackerel fishery, with caps amounts 
set during specifications; and
     Add river herring and shad mortality caps and time/area 
hotspot closures to the list of measures that can be addressed via 
framework adjustment.
    The geographic range and vessel participation in the mackerel 
fishery overlap with the Atlantic herring fishery to a large extent. 
Some of the management measures in Amendment 14 are the same or similar 
to those in the New England Fishery Management Council's (NEFMC) 
Amendment 5 to the Atlantic Herring FMP (Amendment 5), which was 
partially approved by NMFS on July 18, 2013. A Notice of Availability 
soliciting public comments on Amendment 5 was published on April 22, 
2013 (77 FR 23733), with a comment period ending June 21, 2013. The 
proposed rule to implement Amendment 5 (78 FR 33020) was published on 
June 3, 2013, with a comment period ending July 18, 2013.
    The disapproved measures in Amendment 5 lacked adequate rationale 
or development by the NEFMC, and included the following: A dealer 
reporting requirement; a cap that, if achieved, would require vessels 
discarding catch before it had been sampled by observers (known as 
slippage) to return to port; and a requirement for 100-percent observer 
coverage on Category A and B vessels, coupled with a limited industry 
contribution of $325 per day toward observer costs. A summary of the 
comments received, and NMFS's responses to those comments, will be 
published in the final rule implementing Amendment 5. NMFS's concerns 
with similar measures in Amendment 14 will be outlined in the Amendment 
14 proposed rule.
    Amendment 5 contained a requirement that herring dealers must 
accurately weigh all fish and, if catch is not sorted by species, 
dealers would be required to document how they estimated relative 
species composition. The same requirement is proposed in Amendment 14 
for MSB dealers for transactions with greater than 20,000 lb (9.07 mt) 
mackerel, or greater than 2,500 lb (1.13 mt) longfin squid. Dealers 
currently report the weight of fish, obtained by scale weights and/or 
volumetric estimates. Because this measure does not specify the methods 
dealers must use to determine weight and allows volumetric estimates, 
it is not expected to change dealer behavior and, therefore, is not 
expected to improve the accuracy of catch weights reported by dealers. 
Additionally, a qualitative description of how relative species 
composition is estimated cannot be incorporated into catch monitoring 
because we must use the weights reported by the dealers, regardless of 
the methods used to determine weights. Without standards for estimating 
species composition, we would be unable to evaluate the sufficiency of 
the information submitted. If this measure was a requirement, and 
dealers did not document how they estimated relative species 
composition, it would become a compliance issue and could affect future 
permit issuance. NMFS disapproved this measure in Amendment 5 because 
we believe that it does not comply with National Standard 7's 
requirement to minimize costs and avoid unnecessary duplication, and 
the Paperwork Reduction Act's requirement for the utility of the 
measure to outweigh the additional reporting and administrative burden 
on the dealers.

[[Page 48854]]

    Amendment 5 contained a measure that would require limited access 
herring permit holders to bring all catch aboard the vessel and make it 
available for sampling by an observer. If catch is discarded before it 
has been made available to the observer, that catch is considered 
slippage. Amendment 5 would allow catch to be slipped only if: (1) 
Bringing catch aboard compromises the safety of the vessel, (2) 
mechanical failure prevents the catch from being brought aboard, or (3) 
spiny dogfish prevents the catch from being pumped aboard. But if catch 
is slipped, the vessel operator would be required to complete a 
released catch affidavit detailing why catch was slipped and the 
estimated amount of slipped catch. Additionally, once there have been 
10 slippage events in a herring management area by vessels using a 
particular gear type (including midwater trawl, bottom trawl, and purse 
seine) and carrying an observer, vessels that subsequently slip catch 
in that management area, using that particular gear type and carrying 
an observer, would be required to return to port. Amendment 14 would 
prohibit slipped catch on limited access mackerel and longfin squid/
butterfish moratorium trips with an observer aboard, with the same 
exemptions that were proposed in Amendment 5, would require a released 
catch affidavit to document slippage events, and would require trip 
termination after 10 slippage events for the entire mackerel fleet (no 
trip termination requirement would apply for longfin squid).
    NMFS did approve the prohibition on slippage and the released catch 
affidavit requirement in Herring Amendment 5. However, we were 
concerned about the rationale for, and legality of, the slippage caps 
in Amendment 5, and ultimately chose to disapprove that aspect of the 
measure. The threshold for triggering a slippage cap (10 slippage 
events by area and gear type) does not have a strong supporting 
analysis in the EIS for Amendment 5. Once a slippage cap has been met, 
vessels that slip catch, even if the reason for slipping was safety or 
mechanical failure, would be required to return to port. This aspect of 
the measure has the characteristic of a sanction, inconsistently 
applied. Vessels may continue fishing following slippage events 1 
through 10, but must return to port following the 11th slippage event, 
regardless of the vessel's role in the first 10 slippage events. 
Additionally, this measure may result in a vessel operator having to 
choose between trip termination and bringing catch aboard, despite a 
safety concern. For these reasons, NMFS determined that the slippage 
caps in Herring Amendment 5 were inconsistent with the Administrative 
Procedure Act and National Standards 2 and 10, and had to be 
disapproved. While Amendment 14 does not count exempted slippage events 
towards the slippage cap on the mackerel fishery, NMFS remains 
concerned about the rationale for the cap trigger, and the legality of 
requiring a vessel to return to port regardless of the vessel's role in 
the first 10 slippage events.
    Finally, Amendment 5 contained a measure that would have required 
100-percent observer coverage on Category A and B herring vessels. The 
100-percent observer requirement was coupled with a target maximum 
industry contribution of $325 per day. The at-sea costs associated with 
an observer in the herring fishery are higher than $325 per day. The 
Department of Commerce (DOC) Office of General Counsel has advised that 
such cost-sharing would violate the Anti-Deficiency Act. Based on DOC's 
advice, there is no current legal mechanism to allow cost-sharing of 
at-sea costs between NMFS and the industry. Budget uncertainties 
prevent NMFS from being able to commit to paying for increased observer 
coverage in the herring fishery. Requiring 100-percent observer 
coverage would amount to an unfunded mandate. Because Amendment 5 does 
not identify a funding source to cover all of the increased costs of 
observer coverage, the measure was not sufficiently developed and was 
disapproved. NMFS has similar concerns about the proposed measure for 
increased observer coverage and industry contribution in Amendment 14.
    NMFS is soliciting public comments on Amendment 14 and its 
incorporated documents through the end of the comment period stated in 
the DATES section of this NOA. Separate from this NOA, a proposed rule 
including regulations for implementing Amendment 14 will be published 
in the Federal Register for public comment, following NMFS's further 
evaluation under Magnuson-Stevens Act procedures. The public comment 
period for the proposed rule may close after the public comment period 
for this NOA has closed. In addition, a Final Environmental Impact 
Statement (FEIS), required under the National Environmental Policy Act 
(NEPA), supports Amendment 14, and NMFS has announced the availability 
of the FEIS for public review for 30 days, with comments due on 
September 14, 2013. Although NMFS has published three documents 
soliciting public comment, interested public need only comment once to 
be considered in NMFS's decision to approve, partially approve, or 
disapprove Amendment 14.
    The timing of comments, given the different dates in the three 
notices, is important. In order to be considered in NMFS's decision to 
approve, partially approve, or disapprove Amendment 14, public comments 
must be received by NMFS on or before the last day of the comment 
period provided in this NOA (see DATES). Comments received after that 
date will not be considered for the decision on Amendment 14, including 
comments postmarked or otherwise transmitted, but not received by NMFS 
on or before the closing date specified in the DATES section of this 
NOA. NMFS will consider all comments received by the end of the comment 
period on the NOA of Amendment 14, whether specifically directed to 
Amendment 14, the proposed rule, or the FEIS, in its decision to 
approve, partially approve, or disapprove Amendment 14.

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

    Dated: August 7, 2013.
Emily H. Menashes,
Deputy Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 2013-19496 Filed 8-9-13; 8:45 am]
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