[Federal Register Volume 78, Number 168 (Thursday, August 29, 2013)]
[Proposed Rules]
[Pages 53404-53419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21052]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100120035-3705-02]
RIN 0648-AY26


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: Proposed rule, request for comments.

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SUMMARY: NMFS proposes regulations to implement measures in Amendment 
14 to the Atlantic Mackerel, Squid and Butterfish Management Plan. The 
Mid-Atlantic Fishery Management Council developed Amendment 14 to 
improve catch monitoring for the Atlantic mackerel, squid, and 
butterfish fisheries and to address incidental catch of river herring 
and shad through responsible management. Amendment 14 management 
measures include: Revising dealer and vessel reporting requirements, 
and requirements for vessel monitoring systems; increasing observer 
coverage on midwater trawl mackerel and Tier 1, 2 and 3 small-mesh 
bottom trawl mackerel vessels; implementing partial industry funding 
for observer coverage; revising vessel requirements to improve at-sea 
sampling by observers; establishing slippage caps to discourage the 
discarding of catch prior to sampling by observers; and establishing a 
mortality cap for river herring and shad with amounts to be set during 
specifications.

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

ADDRESSES: Copies of supporting documents used by the Mid-Atlantic 
Fishery Management Council (Council), including the Environmental 
Impact Statement (EIS) and Regulatory Impact Review (RIR)/Initial 
Regulatory Flexibility Analysis (IRFA), are available from: Dr. 
Christopher M. Moore, Executive Director, Mid-Atlantic Fishery 
Management Council, Room 2115, Federal Building, 300 South New Street, 
Dover, DE 19904-6790. The EA/RIR/IRFA is accessible via the Internet at 
http://www.nero.noaa.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 Drive, Gloucester, MA 
01930. Mark the outside of the envelope, ``Comments on the MSB 
Amendment 14 Proposed Rule.''
     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.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS, Northeast Regional Office and 
by email to OIRA [email protected], or fax to 202-395-7285.

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

SUPPLEMENTARY INFORMATION: 

Background

    On June 9, 2010 (75 FR 32745), the Council published a notice of 
intent (NOI) to prepare an EIS for Amendment 14 to the Atlantic 
mackerel, squid, and butterfish (MSB) Fishery Management Plan (FMP) to 
consider measures to: Implement catch share systems for the squid 
fisheries, increase fishery monitoring to determine the significance of 
river herring and shad incidental catch in the MSB fisheries, and 
measures to minimize bycatch and/or incidental catch of river herring 
and shad. The Council subsequently conducted scoping meetings during 
June 2010 to gather public comments on these issues. Based on the 
comments submitted during scoping, the Council removed consideration of 
catch shares for squids from Amendment 14 at its August 2010 meeting.
    Following further development of Amendment 14, the Council 
conducted Magnuson-Stevens Fishery Conservation and Management Act 
(MSA) and National Environmental Policy Act public hearings in April 
and May 2012, and, following the public comment period on the draft EIS 
that ended on June 4, 2012, the Council adopted Amendment 14 on June 
14, 2012. The Council submitted Amendment 14 to NOAA Fisheries Service 
(NMFS) for review on February 26, 2012. Following a series of 
revisions, the Council submitted a revised version of Amendment 14 to 
NMFS on June 3, 2013. This action proposes management measures that 
were recommended by the Council in Amendment 14. If implemented, these 
management measures 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

[[Page 53405]]

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 cap amounts 
set during the development of 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.
    A Notice of Availability (NOA) for Amendment 14, as submitted by 
the Council for review by the Secretary of Commerce, was published in 
the Federal Register on August 12, 2013 (78 FR 48852). The comment 
period on Amendment 14 NOA ends on October 11, 2013. Comments submitted 
on the NOA and/or this proposed rule prior to October 11, 2013, will be 
considered in NMFS's decision to approve, partially approve, or 
disapprove Amendment 14. NMFS will consider comments received by the 
end of the comment period for this proposed rule October 15, 2013 in 
its decision regarding measures to be implemented.

Proposed Measures

    The proposed regulations are based on the measures in Amendment 14, 
and contain many measures that would improve data collection and reduce 
catch of river herring and shad and that can be administered by NMFS. 
NMFS supports improvements to fishery dependent data collections, 
either through increasing reporting requirements or expanding the at-
sea monitoring of the MSB fisheries. NMFS also shares the Council's 
concern for reducing incidental catch and unnecessary discarding. 
However, NMFS believes that a few measures in Amendment 14 may lack 
adequate rationale or development by the Council, and NMFS has concerns 
about the potential utility and legality of the approval and 
implementation of these measures. These measures include: A dealer 
reporting requirement; a cap that, if achieved, would require vessels 
discarding catch before it had been sampled by observers to return to 
port; and a recommended 100-percent observer coverage on midwater trawl 
and Tier 1 small-mesh bottom trawl mackerel vessels, 50 percent 
coverage on Tier 2 small-mesh bottom trawl mackerel vessels, and 25 
percent on Tier 3 small-mesh bottom trawl mackerel vessels, with the 
industry contributing $325 per day toward observer costs.
    The measures NMFS has concern with in Amendment 14 are the same or 
similar to measures that NMFS disapproved on July 19, 2013, in the New 
England Fishery Management Council's (NEFMC) Amendment 5 to the 
Atlantic Herring FMP (Amendment 5). A proposed rule to implement 
Amendment 5 (78 FR 33020) was published on June 3, 2013, with a comment 
period ending July 18, 2013. A summary of the comments received, NMFS's 
responses to those comments, and the full rationale for the disapproval 
of certain measures, will be published in the final rule implementing 
Amendment 5.
    This proposed rule for Amendment 14 describes potential concerns 
about these measures' consistency with the MSA and other applicable 
law, and summarizes the disapproval rationale for similar measures in 
Amendment 5. While the measures disapproved in Amendment 5 are very 
similar to measures in Amendment 14, we are considering the two actions 
and their supporting analyses separately. Following public comment, 
NMFS will determine if these measures in Amendment 14 can be approved 
or if they must be disapproved. NMFS seeks public comments on all 
proposed measures in Amendment 14, and in particular, NMFS seeks public 
comment on the proposed measures for which NMFS has approvability 
concerns.
    Amendment 14 proposes several measures to address the catch of 
river herring and shad in the mackerel fishery. River herring (the 
collective term for alewife and blueback herring) and shad (American 
shad and hickory shad) are anadromous species that co-occur seasonally 
with mackerel and are harvested as incidental catch in the mackerel 
fishery. For the purposes of this rulemaking, the term ``river herring 
and shad'' refers to all four species. When river herring are 
encountered in the mackerel fishery, they are either discarded at sea 
(bycatch) or retained and sold as part of the mackerel catch 
(incidental catch). For the purposes of this rulemaking, the terms 
bycatch and incidental catch are used interchangeably.
    Several sections of regulatory text affected by Amendment 14 are 
also affected by Amendment 5. The proposed regulations for both actions 
will present adjustments to the existing regulatory text. In the likely 
event that Amendment 5 is finalized prior to Amendment 14, the 
finalized regulations for Amendment 14 will be presented as 
modifications to the regulations that will be implemented in Amendment 
5, and will thus differ in structure, but not content, from the 
regulations as presented in this proposed rule. The adjustments will be 
similar to those in this proposed rule.

1. Adjustments to the Fishery Management Program

    Amendment 14 would revise several existing fishery management 
provisions, including dealer reporting requirements, VTR requirements, 
and VMS requirements and reporting.

VTR Frequency Requirements

    Currently MSB permit holders are required to submit fishing vessel 
logs, known as VTRs, on a monthly basis. Amendment 14 would implement a 
weekly VTR submission requirement for all MSB permits. This measure 
would require that VTRs be postmarked or received by midnight of the 
first Tuesday following the end of the reporting week. If an MSB permit 
holder did not make a trip during a given reporting week, a vessel 
representative would be required to submit a report to NMFS stating so 
by midnight of the first Tuesday following the end of the reporting 
week. Any fishing activity during a particular reporting week (i.e., 
starting a trip, landing, or offloading catch) would constitute fishing 
during that reporting week and would eliminate the need to submit a 
negative fishing report to NMFS for that reporting week. For example, 
if a vessel began a fishing trip on Wednesday, but returned to port and 
offloaded its catch on the following Thursday (i.e., after a trip 
lasting 8 days), the VTR for the fishing trip would need to be 
submitted by midnight Tuesday of the third week, but a negative report 
(i.e., a ``did not fish'' report) would not be required for either 
earlier week. If implemented, the weekly VTR reporting requirement 
would bring MSB reporting requirements in line with other Northeast 
Region fisheries, improve monitoring of directed and incidental catch, 
and facilitate cross-checking with other data sources.

VMS Requirement, Daily Catch Reports and Pre-Landing Notifications

    Amendment 14 would implement VMS requirements for vessels with 
limited access mackerel permits and longfin squid/butterfish moratorium 
permits to improve monitoring of directed and incidental catch. 
Currently, vessels with these permits are not required to have VMS, to 
submit catch reports, or to submit pre-landing notifications, although 
many vessels already possess VMS units due to

[[Page 53406]]

requirements for other fisheries for which they hold permits.
    Amendment 14 would require limited access mackerel and longfin 
squid/butterfish moratorium permit holders to purchase and maintain a 
VMS unit. Vessels would be required to declare into the fishery for 
trips targeting mackerel or longfin squid, and would be required to 
transmit location information at least every hour, 24 hours a day, 
throughout the year (see existing operating requirements at Sec.  
648.10(c)(1)(i)). Vessel owners may request a letter of exemption from 
the NMFS Regional Administrator for permission to power down their VMS 
units if the vessel is out of the water for more than 72 consecutive 
hours (see existing Power-down exemption regulations at Sec.  
648.10(c)(2)). Vessels that do not already have VMS units installed 
would have to confirm that their VMS units were operational by 
notifying the NMFS Office of Law Enforcement (OLE) (see existing 
installation notification procedures at Sec.  648.10(e)(1)).
    Amendment 14 would require daily VMS catch reporting for all 
limited access mackerel permits and longfin squid/butterfish moratorium 
permits. Daily VMS catch reports would need to include: The VTR serial 
number for the current trip; month and day mackerel and/or longfin 
squid were caught; and total pounds retained and total pounds 
discarded. Daily mackerel and/or longfin squid VMS catch reports would 
need to be submitted in 24-hr intervals for each day and would have to 
be submitted by 0900 hr of the following day. Reports would be required 
even if mackerel and/or longfin squid caught that day had not yet been 
landed. Amendment 14 would also require that vessels landing more than 
20,000 lb (9.07 mt) of mackerel submit a pre-landing notification, in 
which the vessel would report the time and place of offloading. That 
notification must be submitted at least 6 hr prior to crossing the VMS 
demarcation line on their return trip to port, or, for a vessel that 
has not fished seaward of the VMS demarcation line, at least 6 hr prior 
to landing.

Dealer Reporting Requirement

    During the development of Amendment 14, some stakeholders expressed 
concern that MSB catch is not accounted for accurately and that there 
needs to be a standardized method to determine catch. In an effort to 
address those concerns, Amendment 14 would require MSB dealers to 
accurately weigh all fish or use volume-to-weight conversions for all 
transactions with over 2,500 lb (1.13 mt) of longfin squid or 20,000 lb 
(9.07 mt) of mackerel. If catch is not sorted by species, dealers would 
be required to document for each transaction how they estimate relative 
species composition.
    During the development of Amendment 14, NMFS identified potential 
concerns with the utility of this measure. Dealers are currently 
required to accurately report the weight of fish, which is obtained by 
scale weights and/or volumetric estimates. Because this proposed 
measure does not specify how fish are to be weighed, the measure may 
not change dealer behavior and, therefore, the requirement may not lead 
to any measureable change in the accuracy of catch weights reported by 
dealers. Further, this measure does not provide standards for 
estimating species composition. Without standards for estimating 
species composition or for measuring the accuracy of the estimation 
method, NMFS may be unable to evaluate the sufficiency of methods used 
to estimate species composition. For these reasons, the requirement for 
dealers to document the methods used to estimate species composition 
may not improve the accuracy of dealer reporting.
    While the measure requiring dealers to document methods used to 
estimate species composition may not have direct utility in monitoring 
catch in the mackerel and longfin squid fisheries, it may still inform 
NMFS' and the Council's understanding of the methods used by dealers to 
determine species weights. That information may aid in development of 
standardized methods for purposes of future rulemaking. Furthermore, 
full and accurate reporting is a permit requirement; failure to do so 
could render dealer permit renewals incomplete, precluding renewal of 
the dealer's permit. Therefore, there is incentive for dealers to make 
reasonable efforts to document how they estimate relative species 
composition, which may increase the likelihood that useful information 
will be obtained as a result of this requirement.
    Amendment 5 contained a dealer reporting requirement similar to the 
one proposed here in Amendment 14. The Amendment 5 measure would have 
required identical reporting measures for herring dealers related to 
all Atlantic herring transactions. 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 (PRA) requirement for 
the utility of the measure to outweigh the additional reporting and 
administrative burden on the dealers.
    In light of the foregoing, NMFS seeks public comment on the extent 
to which the proposed Amendment 14 measure has practical utility, as 
required by the MSA and the PRA, that outweighs the additional 
reporting and administrative burden on the dealers. In particular, NMFS 
seeks public comment on whether and how the proposed measure would help 
prevent overfishing, promote the long-term health and stability of the 
mackerel and longfin squid resources, monitor the fisheries, facilitate 
in-season management, or judge performance of the management regime.

2. Adjustments to At-Sea Catch Monitoring

    One of the primary goals of Amendment 14 is to improve catch 
monitoring in the mackerel and longfin squid fisheries. Amendment 14 
would codify a number of requirements to facilitate At-Sea Catch 
Monitoring, including adding a pre-trip notification for mackerel, 
observer assistance requirements, and proper notice of pumping and/or 
net haulback for observers in the mackerel and longfin squid fisheries. 
Amendment 14 would also revise observer coverage levels and establish 
new provisions, such as industry funding to pay for increased observer 
coverage and measures to minimize the discarding of catch before it has 
been sampled by an observer, to monitor catch in the mackerel fishery.

Pre-Trip Notification in the Mackerel Fishery

    Amendment 14 would require a 48-hr pre-trip notification for all 
vessels intending to retain, possess or transfer 20,000 lb (9.07 mt) or 
more of Atlantic mackerel in order to facilitate observer placement. 
Currently mackerel vessels have no pre-trip notifications. This measure 
would assist NMFS's scheduling and deployment of observers on directed 
mackerel trips, with minimal additional burden on the industry, helping 
ensure that observer coverage target for the mackerel fishery is met. 
The list of information that must be provided to NMFS as part of this 
pre-trip observer notification is described in the proposed 
regulations. If this measure is approved, details of how vessels should 
contact NMFS will be provided in the small entity compliance guide. If 
a vessel operator is required to notify NMFS to request an observer 
before embarking on a fishing trip, but does not notify NMFS before 
beginning the fishing trip, that vessel would be prohibited from 
possessing, harvesting,

[[Page 53407]]

or landing more than 20,000 lb (9.07 mt) of mackerel on that trip. If a 
fishing trip is cancelled, a vessel representative must notify NMFS of 
the cancelled trip, even if the vessel is not selected to carry 
observers. All waivers or selection notices for observer coverage would 
be issued by NMFS to the vessel via VMS so the vessel would have an on-
board verification of either the observer selection or waiver.

Observer Assistance Requirements

    Northeast fisheries regulations (found at 50 CFR part 648) specify 
requirements for vessels carrying NMFS-approved observers, such as 
providing observers with food and accommodations equivalent to those 
available to the crew; allowing observers to access the vessel's 
bridge, decks, and spaces used to process fish; and allowing observers 
access to vessel communication and navigations systems. Amendment 14 
would expand these requirements, such that vessels issued limited 
access mackerel and longfin squid/butterfish moratorium permits and 
carrying NMFS-approved observers must provide observers with the 
following: (1) A safe sampling station adjacent to the fish deck, and a 
safe method to obtain and store samples; (2) reasonable assistance to 
allow observers to complete their duties; (3) advance notice when 
pumping or net haulback will start and end and when sampling of the 
catch may begin; and (4) visual access to net/codend or purse seine and 
any of its contents after pumping has ended, including bringing the 
codend and its contents aboard if possible. These measures are 
anticipated to help improve at-sea catch monitoring in the mackerel and 
longfin squid/butterfish fisheries by enhancing the observer's ability 
to collect quality data in a safe and efficient manner. Currently many 
vessels already provide this assistance.

Observer Coverage Levels

    Currently, observer coverage in the MSB fisheries is determined by 
the Northeast Fisheries Science Center, based on the standardized 
bycatch reporting methodology (SBRM), after consultations with the 
Council, and funded by NMFS. In Amendment 14, the Council recommended 
increases in the observer coverage in the mackerel fishery, 
specifically 100-percent observer coverage on all limited access 
mackerel vessels using midwater trawl (i.e., Tiers 1, 2 and 3) and Tier 
1 mackerel vessels using small-mesh bottom trawl, 50-percent coverage 
on Tier 2 mackerel vessels using small-mesh bottom trawl, and 25-
percent on Tier 3 mackerel vessels using small-mesh bottom trawl. Many 
stakeholders believe that this measure is necessary to accurately 
determine the extent of incidental catch of river herring and shad in 
the mackerel fishery. The Council recommended this measure to gather 
more information on the mackerel fishery so that it may better evaluate 
and, if necessary, address issues involving catch and discarding. The 
increased observer coverage recommendations are coupled with a target 
maximum industry contribution of $325 per day. The at-sea costs 
associated with an observer in the mackerel fishery are higher than 
$325 per day and, currently, there is no mechanism to allow cost-
sharing of at-sea costs between NMFS and the industry.
    Throughout the development of Amendment 14, NMFS advised the 
Council that Amendment 14 must identify a funding source for increased 
observer coverage because NMFS's annual appropriations for observer 
coverage are not guaranteed. Because Amendment 14 does not identify a 
funding source to cover all of the increased costs of observer 
coverage, the proposed increase in coverage levels many not be 
sufficiently developed to approve at this time.
    Amendment 5 contains similar observer coverage measures to those 
proposed in Amendment 14. NMFS disapproved the 100-percent observer 
coverage requirement and the $325 per day industry contribution in 
Amendment 5 because the amendment did not identify a funding source to 
cover all of the increased costs of observer coverage. The Amendment 5 
measures would have required 100-percent observer coverage on Category 
A and B herring vessels, with a target maximum industry contribution of 
$325 per day. For both the Atlantic herring and mackerel fisheries, the 
at-sea costs associated with an observer are higher than $325 per day. 
The Department of Commerce (DOC) Office of General Counsel has advised 
that such cost-sharing violates 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.
    NMFS is working with both the Mid-Atlantic and New England Fishery 
Management Councils to address the funding challenges identified in 
Amendments 14 and 5. A technical team comprised of Mid-Atlantic Fishery 
Management Council, New England Fishery Management Council and NMFS 
staff is currently attempting to develop a legal mechanism to allow the 
at-sea costs of increased observer coverage to be funded by the 
industry. Even if the specified recommended observer coverage measures 
in Amendment 14 cannot be approved at this time, the team will continue 
to work on finding a funding solution to pay for the at-sea cost of 
observer coverage in the mackerel fishery. If the technical team can 
develop a legal way to fund the at-sea costs of increased observer 
coverage for the mackerel fishery, a measure requiring increased 
observer coverage in line with the Council's recommendations could be 
implemented in a future action, subject to NMFS's budget appropriations 
and other observer data collection needs in the Northeast Region and 
elsewhere in the country.
    Other measures proposed in Amendment 14 would help improve 
monitoring in the mackerel fishery, regardless of whether the increased 
observer coverage measure is approved at this time. These proposed 
measures include the requirement for vessels to contact NMFS at least 
48 hr in advance of a fishing trip to facilitate the placement of 
observers, and observer sample station and reasonable assistance 
requirements to improve an observer's ability to collect quality data 
in a safe and efficient manner.
    The same measure that would require increased observer coverage, 
coupled with a maximum $325 contribution by the industry, would also 
require that: (1) The increased observer coverage requirement would be 
re-evaluated by the Council 2 years after implementation; (2) the 
increased observer coverage requirement would be waived if no observers 
were available; and (3) observer service provider requirements for the 
Atlantic sea scallop fishery would apply to observer service providers 
for the mackerel fishery. Because these additional measures appear 
inseparable from the increased observer coverage requirement, their 
approval or disapproval is dependent upon the approvability of the 
partially industry-funded increased observer coverage measure.

Measures To Prevent Catch Discards Before Observer Sampling

    Amendment 14 would require limited access mackerel and longfin 
squid moratorium vessels to bring all catch aboard the vessel and make 
it available for sampling by an observer. The Council recommended this 
measure to

[[Page 53408]]

improve the quality of at-sea monitoring data by reducing the 
discarding of unsampled catch. If catch is discarded before it has been 
made available to the observer for sampling, that catch is defined as 
slippage. Fish that cannot be pumped and remain in the net at the end 
of pumping operations are considered operational discards and not 
slipped catch. Some stakeholders believe that slippage is a serious 
problem in the mackerel and longfin squid fisheries because releasing 
catch before an observer can estimate its species composition 
undermines accurate catch accounting.
    Amendment 14 would allow catch to be slipped if: (1) Bringing catch 
aboard compromises the safety of the vessel or crew; (2) mechanical 
failure prevents the catch from being brought aboard; or (3) spiny 
dogfish prevents the catch from being pumped aboard. If catch is 
slipped, even for the exempted reasons, the vessel operator would be 
required to complete a released catch affidavit within 48 hr of the end 
of the fishing trip. The released catch affidavit would detail: (1) Why 
catch was slipped; (2) an estimate of the quantity and species 
composition of the slipped catch and any catch brought aboard during 
the haul; and (3) the time and location of the slipped catch. 
Additionally, Amendment 14 would establish slippage caps for the 
mackerel fishery. Once there have been 10 slippage events by limited 
access mackerel vessels that are carrying an observer, limited access 
mackerel vessels that subsequently slip catch while carrying an 
observer would be required to immediately return to port. NMFS would 
track slippage events and notify the fleet once a slippage cap had been 
reached. The Council recommended these slippage caps to discourage the 
inappropriate use of the slippage exceptions, and to allow for some 
slippage, without unduly penalizing the fleet.
    Amendment 5 contained a slippage measure similar to that proposed 
here in Amendment 14. The Amendment 5 measures would prohibit slippage 
on limited access herring trips with an observer aboard, would require 
a released catch affidavit to document slippage events, and would 
require trip termination after 10 slippage events in a herring 
management area by vessels using a particular gear type (including 
midwater trawl, bottom trawl, and purse seine). NMFS did approve the 
prohibition on slippage and the released catch affidavit requirement in 
Amendment 5. However, we were concerned about the rationale for, and 
legality of, the slippage caps in Amendment 5, and ultimately 
disapproved that aspect of the measure. We found the slippage caps in 
Amendment 5 to be inconsistent with National Standards 2 and 10. The 
threshold for triggering a slippage cap (10 slippage events by area and 
gear type) does not have a strong biological or administrative 
justification in the supporting analysis in the EIS for Amendment 5, 
which made approval of this measure inconsistent with National Standard 
2. 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. In addition, the structure of this measure 
in Amendment 5 raises safety concerns, implicating National Standard 10 
of the Magnuson-Stevens Act, because a vessel operator may be forced to 
bring catch aboard, despite dangerous conditions, to avoid returning to 
port.
    Throughout the development of Amendment 14, NMFS expressed concerns 
with the rationale for, and legality of, the slippage caps for the 
Atlantic mackerel fleet. The need for, and threshold for triggering, a 
slippage cap (10 slippage events for the entire fleet) does not have a 
strong biological or operational basis. From 2006-2010 approximately 26 
percent (73 of 277 or 15 per year) of hauls on observed mackerel trips 
(trips that caught 50 percent or more mackerel or at least 100,000 lb 
(45.34 mt) of mackerel) had some unobserved catch. Hauls may be 
unobserved for a variety of reasons--for example, transfer of catch to 
another vessel without an observer, observers not being on deck to 
sample a given haul, or hauls released from the net while still in the 
water. The estimate of 15 unobserved hauls per year would thus be an 
upper bound on slippage events. Once a slippage cap has been met, 
vessels that slip catch with an observer aboard for reasons other than 
safety, mechanical failure, or spiny dogfish in the pump would be 
required to return to port. Vessels could continue fishing following 
slippage events 1 thorough 10, but must return to port following the 
11th slippage event, regardless of the vessel's role in the first 10 
slippage events. The Council's analysis noted that while documents 
slippage events are relatively infrequent, increases above the 
estimated 15 unobserved hauls per year could compromise observer data 
because large quantities of fish can be caught in a single tow. 
However, the Council's analysis does not provide sufficient rationale 
for why it is biologically or operationally acceptable to allow the 
fleet 10 un-exempted slippage events prior to triggering the trip 
termination requirement.
    The measures to minimize slippage are based on the sampling 
requirements for midwater trawl vessels fishing in Groundfish Closed 
Area I. However, there are important differences between these 
measures. Under the Closed Area I requirements, if midwater trawl 
vessels slip catch, they are allowed to continue fishing, but they must 
leave Closed Area I for the remainder of that trip. The requirement to 
leave Closed Area I is less punitive than the proposed requirement to 
return to port. Additionally, because the consequences of slipping 
catch apply uniformly to all vessels under the Closed Area I 
requirements, inequality among the fleet is not an issue for the Closed 
Area I requirements, like it appears to be for the proposed slippage 
caps.
    In 2010, the Northeast Fisheries Observer Program (NEFOP) revised 
the training curriculum for observers deployed on herring vessels to 
focus on effective sampling in high-volume fisheries. NEFOP also 
developed a discard log to collect detailed information on discards in 
the high-volume fisheries, including slippage, such as why catch was 
discarded, the estimated amount of discarded catch, and the estimated 
composition of discarded catch. Recent slippage data collected by 
observers indicate that information about these events, and the amount 
and composition of fish that are slipped, has improved, and that the 
number of slippage events has declined. Given NEFOP's recent training 
changes and its addition of a discard log, NMFS believes that observer 
data on slipped catch, rather than released catch affidavits, provide 
the best information to account for discards. However, there is still a 
compliance benefit to requiring a released catch affidavit because it 
would provide enforcement with a sworn statement regarding the 
operator's decisions and may help to understand why slippage occurs.
    In summary, NMFS seeks public comment on whether there is a 
biological need for the proposed slippage cap, whether the trigger (10 
slippage events for the entire mackerel fleet) for the proposed 
slippage cap has adequate justification, and whether the requirement to 
return to port would be inequitable. After evaluating public comment, 
NMFS will determine whether the proposed slippage cap can be approved. 
Even if the slippage cap must be disapproved, the ongoing data 
collection by NEFOP and the released catch affidavit requirement would 
still allow for improved monitoring in the mackerel fishery, increased 
information

[[Page 53409]]

regarding discards, and an incentive to minimize the discarding of 
unsampled catch.
    Lastly, Amendment 14 proposes that a number of measures related to 
at-sea sampling could be modified through the specifications process, 
including: (1) The observer provisions to maximize sampling; (2) the 
industry contribution amount for at-sea observer coverage; (3) 
exceptions for the requirement to pump/haul aboard all fish from net 
for inspection by at-sea observers; and (4) trip termination 
requirements for mackerel vessels.

3. Measures To Address River Herring and Shad Interactions

    River herring and shad are managed by the Atlantic States Marine 
Fisheries Commission (ASMFC) and individual states. According to the 
most recent ASMFC stock assessments for river herring (May 2012) and 
shad (August 2007), river herring and shad populations have declined 
from historic levels and many factors will need to be addressed to 
allow their recovery, including fishing (in both state and Federal 
waters), river passageways, water quality, predation, and climate 
change. In an effort to aid in the recovery of depleted or declining 
stocks, the ASMFC, in cooperation with individual states, prohibited 
state waters commercial and recreational fisheries that did not have 
approved sustainable fisheries management plans, effective January 1, 
2012. NMFS recently completed a comprehensive review of the status of 
river herring (but not shad) in response to a petition submitted by the 
Natural Resources Defense Council requesting that we list alewife 
(Alosa pseudoharengus) and blueback herring (Alosa aestivalis) as 
threatened under the Endangered Species Act throughout all or a 
significant portion of their range or as specific distinct population 
segments identified in the petition. Based on the best scientific and 
commercial information available, we determined that listing alewife as 
threatened or endangered under the ESA is not warranted at this time 
(August 12, 2013; 78 FR 48944).
    Amendment 14 would establish a mortality cap on river herring and 
shad in the mackerel fishery, where the mackerel fishery would close 
once it has been determined to cause a certain amount of river herring 
and/or shad mortality. Based on the results of the ASMFC's assessments 
for river herring and shad, data do not appear to be robust enough to 
determine a biologically based catch cap for these species, and/or the 
potential effects on these populations if a catch cap is implemented on 
a coast-wide scale. Nevertheless, the Council believes that capping the 
allowed level of river herring and shad catch in the mackerel fishery 
would provide a strong incentive for the industry to avoid river 
herring and shad, and would help to minimize encounters with these 
species.
    The likelihood of a mackerel closure related to the river herring 
and shad cap would depend on the value the Council proposes for the cap 
for a given year, the availability of mackerel for that year, and the 
realized incidental catch of river herring and shad for that year. The 
analysis presented in Amendment 14 estimated that total ocean fishing 
mortality (all gear types and fisheries) ranged from 244 to 672 mt for 
both river herring species (2006-2010), and 47 to 70 mt for both shad 
species (2007-2010). To qualitatively evaluate the biological and 
economic impacts of a river herring and/or shad cap, Amendment 14 
presented an analysis in which the cap was set equal to 35 percent of 
total ocean fishing mortality for river herring, and 12 percent of 
total ocean fishing mortality for shad. These percentages correspond to 
the estimated amount of mid-water trawl mortality for these species in 
Quarter 1 of the fishing year, which largely encompasses mackerel 
fishing activity. The proposed mortality cap on river herring and shad 
would use a similar method to that used for the butterfish mortality 
cap in the longfin squid fishery, where the ratio of river herring and 
shad caught to total catch on observed hauls would be applied to all 
catch. The analysis in Amendment 14 applies this methodology to mimic 
low, medium, and high rates of river herring and shad encounters on 
mackerel trips. If the mackerel fishery had been able to harvest the 
entire 115,000-mt mackerel quota in any year from 2006 to 2010, a river 
herring cap equal to 35 percent of total river herring ocean catch 
would have resulted in closures of the mackerel fishery in 3 of the 
years if there were low river herring encounter rates, and all of the 
years if there were medium and high river herring encounter rates. 
Similarly, a shad cap equal to 12 percent of the total shad ocean catch 
would not have caused a closure of the mackerel fishery in any of the 
years if there were low shad encounter rates, but would have resulted 
in a closure in all of the years with medium and high shad encounter 
rates. The analysis concluded that, because river herring and shad 
catch vary substantially from year to year, the realized combination of 
these factors may cause an early closure of the mackerel fishery in 
some years, and in other years may not result in a closure at all.
    While the concept of the cap and general methodology are analyzed 
in Amendment 14, the Council's proposal deferred the establishment of 
the actual cap amount and other logistical details of the cap (e.g., 
the closure threshold and post-closure possession limit) to the MSB 
specifications process for the 2014 fishing year. The process for 2014 
MSB specifications began in May 2013 with a MSB Monitoring Committee 
meeting to develop technical recommendations on the cap level and any 
necessary management measures. At its June 2013 meeting, the Council 
selected a combined catch cap for river herring and shad of 236 mt, a 
closure threshold of 95 percent, and a post-closure incidental trip 
limit of 20,000 lb (9.07 mt). The Council is finalizing its analysis of 
these measures and will submit its final recommendation to NMFS shortly 
as part of the 2014 MSB specifications package. Because the details of 
the cap are being fully analyzed in a separate action, NMFS only 
requests comments in this rulemaking on the concept of using a catch 
cap in the mackerel fishery to limit encounters with river herring and 
shad. The public will be given the opportunity to comment on the actual 
proposed cap level and management measures related to the cap in the 
proposed rule for 2014 MSB specifications. Secretarial approval of both 
Amendment 14 and the 2014 MSB specifications are necessary for 
implementation of the river herring and shad caps in the mackerel 
fishery, which is targeted for the start of the 2014 fishing year 
(January 1, 2014).
    The New England Fishery Management Council is also considering 
establishing a catch cap for river herring and shad in the Atlantic 
herring fishery in Framework 3 to the Atlantic Herring FMP. Due to the 
mixed nature of the herring and mackerel fisheries, especially during 
the period from January through April, the potential for the greatest 
river herring catch reduction would come from the implementation of a 
joint river herring catch and shad cap for both the fisheries. On May 
23, 2013, the New England and Mid-Atlantic Councils' technical teams 
for the herring and mackerel fisheries met to begin development of the 
catch caps. In addition, at its June 2013 meeting, the New England 
Council discussed some details of the cap, including the possible 
division of the cap into areas to match the activity of the herring 
fishery by

[[Page 53410]]

season. The New England Council is working towards a target of 
implementing the cap in mid-2014.
    Amendment 14 would establish a mechanism to develop, evaluate, and 
consider regulatory requirements for a river herring bycatch avoidance 
strategy in small-mesh pelagic fisheries. The river herring bycatch 
avoidance strategy would be developed and evaluated by the Council, in 
cooperation with participants in the mackerel fishery, specifically the 
Sustainable Fisheries Coalition (SFC); the Massachusetts Division of 
Marine Fisheries (MA DMF); and the University of Massachusetts 
Dartmouth School of Marine Science and Technology (SMAST). This measure 
is based on the existing river herring bycatch avoidance program 
involving SFC, MA DMF, and SMAST. This voluntary program seeks to 
reduce river herring and shad bycatch by working within current 
fisheries management programs, without the need for additional 
regulatory requirements. The river herring bycatch avoidance program 
includes portside sampling, real-time communication with the SFC on 
river herring distribution and encounters in the herring fishery, and 
data collection to evaluate if oceanographic features may predict high 
rates of river herring encounters.
    Amendment 14 would require that, within 6 months of completion of 
the existing SFC/MA DMF/SMAST river herring bycatch avoidance project, 
the Council would review and evaluate the results from the river 
herring bycatch avoidance project, and consider a framework adjustment 
to the MSB FMP to establish river herring bycatch avoidance measures. 
Measures that may be considered as part of the framework adjustment 
include: (1) Mechanisms to track herring fleet activity, report bycatch 
events, and notify the herring fleet of encounters with river herring; 
(2) the utility of test tows to determine the extent of river herring 
bycatch in a particular area; (3) the threshold for river herring 
bycatch that would trigger the need for vessels to be alerted and move 
out of a given area; and (4) the distance and/or time that vessels 
would be required to move from an area.
    The Council considered other measures to address river herring and 
shad bycatch in Amendment 14, including closed areas. Because the 
seasonal and inter-annual distribution of river herring and shad is 
highly variable in time and space, the Council determined that the most 
effective measures in Amendment 14 to address river herring and shad 
bycatch would be those that increase monitoring, bycatch accounting, 
and promote cooperative efforts with the industry to minimize bycatch 
to the extent practicable. In order to streamline the regulatory 
process necessary to adjust the river herring and shad mortality caps, 
or enact time area management for river herring and shad, should 
scientific information to support such management measures become 
available, the Council proposed that Amendment 14 would add river 
herring and shad catch caps and time/area closures to the list of 
measures that can be addressed via framework adjustment.

4. Adding Individual River Herring and Shad Species as Stocks in the 
MSB Fishery

    Initially, the Council considered alternatives in Amendment 14 
intended to add, in a future action, alewife, blueback herring, 
American shad, and/or hickory shad as stocks in the MSB FMP. Instead, 
the Council decided that it would initiate a future Council amendment 
that would consider adding these as stocks in the fishery and analyze 
all of the MSA provisions (i.e., various management reference points, 
description and delineation of essential fish habitat (EFH), etc.), and 
initiated Amendment 15 to MSB FMP to explore the need for conservation 
and management of these species more thoroughly. Scoping for MSB 
Amendment 15 began in October 2012 (77 FR 65867), and the technical 
team for the MSB FMP is currently working to develop this action.

Classification

    Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant 
Administrator has determined that this proposed rule is consistent with 
Amendment 14 to the MSB FMP, other provisions of the MSA, and other 
applicable law, subject to further consideration after public comment 
and the concerns noted in the preamble.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared a final environmental impact statement (FEIS) 
for Amendment 14. A notice of availability for the FEIS was published 
on August 16, 2013 (78 FR 50054). The FEIS describes the impacts of the 
proposed measures on the environment. Proposed revisions to fishery 
management program measures, including dealer and vessel reporting 
requirements and trip notification, are expected to improve catch 
monitoring in the MSB fisheries with positive biological impacts to the 
MSB fisheries and minimal negative economic impacts on human 
communities. Proposed increases to observer coverage requirements, 
measures to improve at-sea sampling by observers, and measures to 
minimize discarding of catch before it has been sampled by observers 
are also expected to improve catch monitoring and have positive 
biological impacts on the MSB fisheries. The economic impacts of these 
proposed measures on human communities are varied, but negative 
economic impacts may be substantial compared to the status quo. 
Proposed measures to address bycatch to the extent practicable are 
expected to have positive biological impacts and moderate negative 
impacts on human communities. Lastly, all proposed measures are 
expected to have positive biological impacts on non-target species and 
neutral impacts on habitat and protected resources.

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    On June 20, 2013, the Small Business Administration (SBA) issued a 
final rule revising the small business size standards for several 
industries effective July 22, 2013 (78 FR 37398). The rule increased 
the size standard for Finfish Fishing from $4.0 to $19.0 million, 
Shellfish Fishing from $4.0 to $5.0 million, and Other Marine Fishing 
from $4.0 to $7.0 million. NMFS has reviewed the analyses prepared for 
this action in light of the new size standards. Under the former, lower 
size standards, all entities subject to this action were considered 
small entities, thus they all would continue to be considered small 
under the new standards. NMFS has determined that the new size 
standards do not affect the analyses prepared for this action.
    The proposed measures in Amendment 14 could affect any vessel 
holding an active Federal permit to fish for Atlantic mackerel, longfin 
squid, Illex squid, or butterfish. All of the potentially affected 
businesses are considered small entities under the standards described 
in NMFS guidelines, because they have gross receipts that do not exceed 
$19 million annually. In 2012, 1,835 commercial vessels possessed 
Atlantic mackerel permits (132 limited access permits and 1,703 open 
access permits), 329 vessels possessed longfin squid/butterfish 
moratorium permits, 72 vessels possessed Illex permits, 1,578 vessels 
possessed incidental squid/butterfish permits, and 705 vessels 
possessed squid/mackerel/butterfish party/charter permits. Many vessels 
participate in more than one of these fisheries;

[[Page 53411]]

therefore, permit numbers are not additive.
    Available data indicate that no single fishing entity earned more 
than $19 million annually. Although there are likely to be entities 
that, based on rules of affiliation, would qualify as large business 
entities, due to lack of reliable ownership affiliation data NMFS 
cannot apply the business size standard at this time. NMFS is currently 
compiling data on vessel ownership that should permit a more refined 
assessment and determination of the number of large and small entities 
for future actions. For this action, since available data are not 
adequate to identify affiliated vessels, each operating unit is 
considered a small entity for purposes of the RFA, and, therefore, 
there is no differential impact between small and large entities. 
Therefore, there are no disproportionate economic impacts on small 
entities. Section 6.7 in Amendment 14 describes the vessels, key ports, 
and revenue information for the MSB fisheries; therefore, that 
information is not repeated here.

Description of Projected Reporting, Recordkeeping, and Other Compliance

Requirements
Minimizing Significant Economic Impacts on Small Entities
    This proposed rule contains collection-of-information requirements 
subject to review and approval by the Office of Management and Budget 
(OMB) under the PRA. The new requirements, which are described in 
detail in this preamble, have been submitted to OMB for approval as a 
new collection.
    Amendment 14 would increase VTR reporting submission frequency for 
all MSB permit holders from monthly to weekly. MSB permit holders 
currently submit 12 VTRs per year, so the additional cost of submitting 
VTRs on a weekly basis is $18. This cost was calculated by multiplying 
40 (52 weeks in a year minus 12 (number of monthly reports)) by $0.46 
to equal $18. The VTR is estimated to take 5 min to complete. Therefore 
the total annual burden estimate of weekly VTRs is $18, and 3 hr and 20 
min.
    This action proposes that limited access mackerel and longfin 
squid/butterfish moratorium permit holders purchase and maintain a VMS. 
Because other Northeast Federal permits require vessels to maintain a 
VMS, it is estimated that only 80 vessels do not already have a VMS. 
The average cost of purchasing and installing a VMS is $3,400, the VMS 
certification form takes an estimated 5 min to complete and costs $0.46 
to mail, and the call to confirm a VMS unit takes an estimated 5 min to 
complete and costs $1. The average cost of maintaining a VMS is $600 
per year. Northeast regulations require VMS activity declarations and 
automated polling of VMS units to collect position data. Each activity 
declaration takes an estimated 5 min to complete and costs $0.50 to 
transmit. If a longfin squid/butterfish moratorium permit holder takes 
22 trips per year, the burden estimate for activity declarations would 
be 1 hr and 50 min, and $11. If a limited access mackerel permit holder 
takes 8 trips per year, the burden estimate for activity declarations 
would be 40 min and $4. Each automated polling transmission costs $0.06 
and a vessel is polled once per hour every day of the year. The annual 
estimated cost associated with polling is $526. Vessels may request a 
power-down exemption to stop position transmission under certain 
provisions, as described in the preamble. The form to request a power 
down exemption letter takes 5 min to complete, and costs $0.46 to mail. 
If each vessel submits a power down exemption request 2 times a year, 
the total estimated burden is 10 min and $1. In summary, the total 
annual burden estimate for a vessel to purchase and maintain a VMS 
would be 2 hr 10 min and $4,540 for a longfin squid/butterfish 
moratorium permit holder, and 1 hr and $4,533 for a limited access 
mackerel permit holder.
    Amendment 14 would require that limited access mackerel and longfin 
squid/butterfish moratorium permit holders submit daily VMS reports. 
The cost of transmitting a catch report via VMS is $0.60 per 
transmission, and it is estimated to take 5 min to complete. If a 
longfin squid/butterfish moratorium permit holder takes 22 trips per 
year and each trip lasts an average of 2 days, the burden estimate for 
activity declarations would be 1 hr and 50 min, and $14. If a limited 
access mackerel permit holder takes 8 trips per year and each trip 
lasts an average of 3 days, the burden estimate for activity 
declarations would be 40 min, and $5.
    This action would require limited access mackerel vessels to submit 
a pre-landing notification to NMFS OLE via VMS 6 hr prior to landing. 
Each VMS pre-landing notification is estimated to take 5 min to 
complete and cost $1. Limited access mackerel permit holders are 
estimated to take 8 trip per year, so the total annual burden estimate 
is 40 min, and $8.
    Amendment 14 would require MSB dealers to document, for each 
transaction, how they estimate the relative composition of catch, if 
catch is not sorted by species. This requirement would apply to all 
transactions with over 20,000 lb (9.07 mt) of mackerel, and all 
transactions with over 2,500 lb (1.13 mt) of longfin squid, and would 
be in addition to existing dealer reporting requirements. The 
additional reporting burden of documenting relative species composition 
of each of the above transactions is expected to take 5 min per 
transaction. In July 2013, there were 214 entities that held MSB 
permits. Dealers make an average of 1,700 mackerel or longfin squid 
transactions meeting the above descriptions per year. Therefore, the 
annual burden associated with documenting relative species composition 
for each MSB dealer is estimated to be 142 hr.
    Amendment 14 would increase the reporting burden for measures 
designed to improve at-sea sampling by NMFS-approved observers. Limited 
access mackerel vessels would be required to notify NMFS to request an 
observer at least 48 hr prior to beginning a trip where they intend to 
land over 20,000 lb (9.07 mt) of mackerel. The phone call is estimated 
to take 5 min to complete and is free. If a vessel has already 
contacted NMFS to request an observer and then decides to cancel that 
fishing trip, Amendment 14 would require that vessel to notify NMFS of 
the trip cancellation. The call to notify NMFS of a cancelled trip is 
estimated to take 1 min and is free. If a vessel takes an estimated 8 
trips per year, the total annual reporting burden associated with pre-
trip observer notification would be 40 min.
    Amendment 14 would require a released catch affidavit for limited 
access mackerel and longfin squid/butterfish moratorium permit holders 
that discard catch before it had been made available to an observer for 
sampling (slipped catch). The reporting burden for completion of the 
released catch affidavit is estimated to average 5 min. The cost 
associated with the affidavit is the postage to mail the form to NMFS 
($0.46). The affidavit requirement would affect an estimated 312 
longfin squid/butterfish moratorium permit holders, and 132 limited 
access mackerel permit holders. If the longfin squid/butterfish 
moratorium permit holders slipped catch once per trip with an observer 
aboard, and took an estimated 22 trips per year, the total annual 
reporting burden for the released catch affidavit would be 1 hr 50 min 
and $10. If the limited access mackerel permit holders slipped catch 
once per trip with an observer aboard, and took an estimated 8 trips 
per year, the total annual reporting burden for the released catch 
affidavit would be 40 min, and $4.

[[Page 53412]]

    Amendment 14 would require 100-percent observer coverage on all 
limited access mackerel trips using mid-water trawl and Tier 1 trips 
using small-mesh bottom trawl; 50-percent coverage on Tier 2 mackerel 
trips using small-mesh bottom trawl; and 25-percent coverage on Tier 3 
mackerel trips using small-mesh bottom trawl. There are an estimated 
132 limited access mackerel permit holders that may use midwater trawl 
to target mackerel. Vessels go on an average of 6 midwater trawl trips 
per year and spend an average of 3 days at sea. If these permit-holders 
are responsible for paying for 100-percent of coverage on a total of 18 
days at sea per year, the total annual estimated cost would be $5,850. 
There are an estimated 30 Tier 1 vessels that spend an average of 16 
days at sea per year on small-mesh bottom trawl trips, and if these 
vessels were responsible for paying for 100 percent of the cost of 
coverage the total annual estimated cost would be $5,200. There are an 
estimated 23 Tier 2 vessels that spend an average of 16 days at sea per 
year on small-mesh bottom trawl mackerel trips, and if these vessels 
were responsible for paying for 50 percent of the cost of coverage, the 
total annual estimated cost would be $2,600. There are an estimated 79 
Tier 3 vessels that spend an average of 16 days at sea per year on 
small-mesh bottom trawl mackerel trips, and if these vessels were 
responsible for paying for 25 percent of the cost of coverage, the 
total annual estimated cost would be $1,300.
    Under the proposed industry-funded observer program, limited access 
mackerel permit holders would be required to contact an observer 
service provider to request an observer. An estimated 132 vessels would 
be subject to this requirement. If those vessels took an estimated 8 
trips per year and the call to the observer service provider took an 
estimated 10 min to complete and cost $1, the annual reporting burden 
of the proposed notification requirement is estimated to be 1 hr 20 
min, and $8. If an observer service provider had no observer available, 
limited access mackerel permit holders would be required to notify NMFS 
to request an observer waiver. The likelihood of an observer not being 
available is anticipated to be low. Therefore, if on two occasions the 
vessels needed to contact NMFS to request a waiver, and the call took 
an estimated 5 min to complete and was free, the annual reporting 
burden to request a waiver is estimated to be 10 min.
    NMFS expects that additional observer service providers may apply 
for certification under the observer certification procedures found at 
Sec.  648.11(h). NMFS estimates that three additional providers may 
apply for certification. In addition, existing providers, and the three 
potential additional providers, would be required to submit additional 
reports and information required of observer service providers as part 
of their certification. NMFS expects that six providers would be 
subject to these new requirements. Observer service providers must 
comply with the following requirements, submitted via email, fax, or 
postal service: Submit applications for approval as an observer service 
provider; formally request observer training by NEFOP; submit observer 
deployment reports and biological samples; give notification of whether 
a vessel must carry an observer within 24 hr of the vessel owner's 
notification of a prospective trip; maintain an updated contact list of 
all observers that includes the observer identification number; 
observer's name mailing address, email address, phone numbers, 
homeports or fisheries/trip types assigned, and whether or not the 
observer is ``in service.'' The regulations would also require observer 
service providers to submit any outreach materials, such as 
informational pamphlets, payment notification, and descriptions of 
observer duties, as well as all contracts between the service provider 
and entities requiring observer services for review to NMFS. Observer 
service providers also have the option to respond to application 
denials, and submit a rebuttal in response to a pending removal from 
the list of approved observer providers. NMFS expects that all of these 
reporting requirements combined are expected to take 1,734 hr of 
response time per year, for a total annual cost of $25,363 for the 
affected observer providers. The following table provides the detailed 
time and cost information for each response item.

----------------------------------------------------------------------------------------------------------------
                                                                         Time      Total
                                                Number of    Total     (hours)      time     Cost per    Annual
        Observer provider requirements           entities  Number of     per       burden    response     cost
                                                             items     response   (hours)
----------------------------------------------------------------------------------------------------------------
Observer deployment report by email...........          6      1,500      0.167        251      $0            $0
Observer availability report by email.........          6        900      0.167        150       0             0
Safety refusals by email......................          6        150      0.5           75       0             0
Raw observer data by express mail.............          6      1,500      0.083        125      13        19,500
Observer debriefing...........................          6        420      2            840      12         5,040
Other reports.................................          6        210      0.5          105       0             0
Biological samples............................          6      1,500      0.083        125       0.50        750
New application to be a service provider......          3          3     10             30       0.44          1
Applicant response to denial..................          1          1     10             10       0             0
Request for observer training.................          3          6      0.5            3       1.80         11
Rebuttal of pending removal from list of                1          1      8              8       0             0
 approved observer providers..................
Observer contact list updates.................          3         36      0.083          3       0             0
Observer availability updates.................          3         36      0.017          1       0             0
Service provider material submissions.........          6         12      0.5            6       2.50         30
Service provider contracts....................          6         12      0.5            6       2.50         30
                                               -----------------------------------------------------------------
    Total.....................................  .........  .........  .........      1,736  .........     25,363
----------------------------------------------------------------------------------------------------------------

    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the

[[Page 53413]]

collection of information to the Regional Administrator (see 
ADDRESSES), and email to [email protected]">OIRA_[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.
    The Council prepared an IRFA, as required by section 603 of the 
RFA. The IRFA describes the economic impact this proposed rule, if 
adopted, would have on small entities. A description of the action, why 
it is being considered, and the legal basis for this action are 
contained at the beginning of this section in the preamble and in the 
SUMMARY. A summary of the analysis follows. A copy of this analysis is 
available from the Council or NMFS (see ADDRESSES) or via the Internet 
at http://www.nero.noaa.gov.

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

1. Adjustments to the Fishery Management Program
    Amendment 14 proposes to revise several existing fishery management 
provisions, including VTR and VMS requirements, and dealer reporting 
requirements, to better administer the MSB fisheries. The proposed 
action (Alternative 1c in the FEIS) would require all MSB permit 
holders to submit VTRs on a weekly basis. The no action (alternative 
1a) would have maintained monthly reporting requirements for all MSB 
permit holders, and two additional alternatives would have instituted 
weekly reporting for just mackerel permit holders (alternative 1bMack) 
or longfin squid/butterfish permit holders (alternative 1bLong). Weekly 
VTRs would cost an additional $18 per year compared to status quo, but 
any permit holders already submit weekly VTRs related to other 
Northeast Region permits. The proposed action could improve data for 
quota monitoring, and bring VTR requirements in line with those for 
other Northeast Region permits.
    The proposed action requires VMS for limited access mackerel and 
longfin squid/butterfish moratorium permit holders (alternatives 1eMack 
and 1eLong), requires trip declarations and daily VMS catch reports for 
these permit holders (alternatives 1fMack and 1fLong), and requires a 
pre-landing notifications via VMS in order to land more than 20,000 lb 
(9.07 mt) of mackerel (alternative 1gMack). The no action alternative 
(alternative 1a) would not impose VMS requirements for these permit 
holders. As with the VTR requirements, many limited access mackerel and 
longfin squid/butterfish moratorium permit holders already have VMS 
related to other Northeast Region permits. For permit holders obtaining 
a new VMS, the proposed VMS requirements would cost roughly $4,500 for 
the first year of operation. The FEIS for Amendment 14 discussed that 
the economic impacts of these reporting requirements is mixed compared 
to status quo. While short-term operating costs for these fishing 
vessels is increased compared to status quo, these measures may have 
long-term positive impacts if they result in less uncertainty and, 
ultimately, additional harvest being made available to MSB fishery 
participants.
    Amendment 14 would require that MSB dealers weigh all landings 
related to mackerel transactions over 20,000 lb (9.07 mt) (alternative 
2d), and all longfin squid transactions over 2,500 lb (1.13 mt) 
(alternative 2f), and if these transactions were not sorted by species, 
would be required to document, with each transaction, how they 
estimated the relative composition of catch. Dealers would be permitted 
to use volume-to-weight conversions if they were not able to weigh 
landings (alternative 2g). Dealers currently report the weight of fish, 
obtained by scale weights and/or volumetric estimates. Because the 
proposed action does not specify how fish are to be weighed, the 
proposed action is not anticipated to change dealer behavior, and, 
therefore, is expected to have neutral impacts in comparison to the no 
action alternative. Amendment 14 considered four alternatives to the 
proposed action: The no action alternative; and alternatives 2b, 2c and 
2e. Alternative 2b would require that a vessel confirm MSB dealer 
reports for mackerel landings over 20,000 lb (9.07 mt), Illex squid 
landings over 10,000 lb (4.53 mt), and longfin squid landings over 
2,500 lb (1.13 mt). Alternatives 2c and 2e are similar to the proposed 
alternative in that they would require dealers to weigh all landings 
related to mackerel transactions over 20,000 lb (9.07 mt) (alternative 
2c), and all longfin squid transactions over 2,500 lb (1.13 mt) 
(alternative 2e), but would have required that relative species 
composition be documented annually instead of at each transaction. 
Overall, relative to the no action alternative, the proposed action and 
Alternatives 2c and 2e may have low negative impacts on dealers due to 
the regulatory burden of documenting how species composition is 
estimated. In comparison, Alternative 2b may have a low positive impact 
on fishery participants, despite an increased regulatory burden, if it 
minimizes any lost revenue due to data errors in the dealer reports 
and/or the tracking of MSB catch.
2. Adjustments to At-Sea Catch Monitoring
    Amendment 14 would require a 48-hr pre-trip notification for all 
vessels intending to retain, possess or transfer 20,000 lb (9.07 mt) or 
more of Atlantic mackerel in order to facilitate observer placement 
(alternative 1d48). In addition to the no action alternative 
(alternative 1a), Amendment 14 also considered requiring a 72-hr pre-
trip notification requirement (alternative 1d72). Compared to the no 
action alternative, both action alternatives may mean that fishermen 
are not able to embark on fishing trips on short notice, especially if 
they are selected to take an observer. The proposed alternative would, 
however, improve observer placement compared to the no action 
alternative.
    Amendment 14 recommends increases in the observer coverage in the 
mackerel fishery, specifically 100-percent observer coverage on all 
(Tiers 1, 2 and 3) midwater mackerel trawl vessels (alternative 5b4) 
and Tier 1 small-mesh bottom trawl mackerel vessels, 50-percent 
coverage on Tier 2 small-mesh bottom trawl mackerel vessels, and 25-
percent on Tier 3 small-mesh bottom trawl mackerel vessels (alternative 
5c4), with an industry contribution of $325 per day (alternative 5f). 
Amendment 14 considers four alternatives to the proposed coverage level 
recommendations: The no action alternative (alternative 5a); 25-percent 
(alternative 5b1), 50-percent (alternative 5b2), and 75-percent 
(alternative 5b3) coverage levels for all (Tiers 1, 2 and 3) mid-water 
trawl mackerel vessels; 25-percent (alternative 5c1), 50-percent 
(alternative 5c2), and 75-percent (alternative 5c3) coverage levels for 
all (Tiers 1, 2 and 3) small-mesh bottom trawl mackerel vessels; and 
coverage levels necessary to achieve target coefficients of variation 
for river herring bycatch using midwater trawl gear (alternatives 5e1 
and 5e2) and small-mesh bottom trawl gear (5e3 and 5e4). Additionally, 
Amendment 14 considered a phased-in industry funding option (5g) that 
would shift the cost of the at-sea portion of observer coverage from 
NMFS to the industry over a 4-yr period. The specific coverage levels 
under the no action alternative and the 5e alternatives are unknown at

[[Page 53414]]

this time, because they would depend on an analysis of fishery data 
from previous years, but coverage levels under these alternatives are 
expected to be less than 100 percent. Compared to the no action 
alternative, the proposed $325 contribution per day would increase 
daily trip costs by 9 percent for single midwater trawl mackerel 
vessels, and 12 percent for paired midwater trawl mackerel vessels, and 
20 percent for small-mesh bottom trawl vessels. In general, higher 
coverage levels, which would result in higher increases in daily costs 
for fishery participants, would have a negative economic impact on 
fishery participants, potentially resulting in less effort and lower 
catch. In the long-term, increased monitoring and improved data 
collections for the mackerel fishery may translate to improved 
management of the mackerel fishery that would benefit fishery-related 
businesses and communities.
    Amendment 14 would require limited access mackerel and longfin 
squid/butterfish moratorium permit holders to bring all catch aboard 
the vessel and make it available for sampling by an observer 
(alternative 3j). Catch slipped before being sampled by an observer 
would count against a slippage cap and require that a released catch 
affidavit be completed. If a slippage cap is reached, a vessel would be 
required to return to port immediately following any additional 
slippage events (alternative 3l). Amendment 14 considered the no action 
alternative, and nine other alternatives to the proposed action. The no 
action alternative would not establish slippage prohibitions, released 
catch affidavit requirements, slippage caps, or trip termination 
requirements. The other non-selected alternatives include various 
elements of the proposed action, including a requirement for mackerel 
and longfin squid permit holders to complete a released catch affidavit 
(alternative 3e), a requirement to prohibit mackerel (alternative 3f) 
and longfin squid (alternative 3g) permit holders from releasing 
discards before they are bought aboard for sampling, trip termination 
requirements after 1 (alternative 3h), 2 (alternative 3i), 5 
(alternative 3k), or 10 (alternative 3n) fleet-wide slipped hauls on 
mackerel or longfin squid vessels carrying observers, individual 
slippage caps resulting in trip termination (alternative 3p), and a 
requirement that vessels that terminate a trip would have to take 
observers on the immediate subsequent trip (alternative 3o).
    Negative impacts associated with all of these alternatives include 
increased time spent pumping fish aboard the vessel to be sampled by an 
observer, potential decrease in vessel safety during poor operating 
conditions, and the administrative burden of completing a released 
catch affidavit. The penalties associated with slippage vary slightly 
across the alternatives. The overall impacts of the options that 
propose trip termination (proposed action) are negative in comparison 
to the no action alternative. Costs associated with mackerel and 
longfin squid fishing trips are high, particularly with the current 
cost of fuel. Trips terminated prematurely could result in unprofitable 
trips, leaving not only the owners with debt, but crewmembers without 
income, and negative impacts on fishery-related businesses and 
communities.
3. Measures To Address River Herring and Shad Interactions
    Amendment 14 would establish catch caps for river herring 
(alternative 6b) and shad (alternative 6c) in the mackerel fishery. Two 
alternatives, the proposed action and the no action, were considered. 
Compared to the no action alternative, the action alternatives have the 
possibility of resulting in a closure of the directed mackerel fishery 
before the mackerel quota is reached. This could result in revenue 
losses as high as $15 million based on 2010 ex-vessel prices, depending 
on how early the fishery is closed. While there is no direct linkage 
between river herring and shad catch and stock status, a closure that 
results from a catch cap in the mackerel fishery could limit the 
fisheries mortality on these stocks.
    The proposed action also includes support for the existing river 
herring bycatch avoidance program involving SFC, MA DMF, and SMAST. 
This voluntary program seeks to reduce river herring bycatch with real-
time information on river herring distribution and mackerel fishery 
encounters. This aspect of the proposed action has the potential to 
mitigate some of the negative impacts of the proposed action by 
developing river herring bycatch avoidance measures in cooperation with 
the fishing industry.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: August 23, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be 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, the definition of ``Slippage in the Atlantic 
mackerel and longfin squid fisheries'' is added in alphabetical order 
to read as follows:


Sec.  648.2  Definitions.

* * * * *
    Slippage in the Atlantic mackerel and longfin squid fisheries means 
catch that is discarded prior to being brought aboard a vessel issued 
an Atlantic mackerel or longfin squid permit and/or prior to making the 
catch available for sampling and inspection by a NMFS-approved 
observer. Slippage includes catch released from a codend or seine prior 
to the completion of pumping catch aboard and catch released from a 
codend or seine while the codend or seine is in the water. Fish that 
cannot be pumped and that remain in the net at the end of pumping 
operations are not considered slippage. Discards that occur at sea 
after the catch is brought on board and sorted are also not considered 
slippage.
* * * * *
0
3. In Sec.  648.7, paragraphs (a)(1)(iv), (b)(3)(ii), and (b)(3)(iii) 
are added, and paragraph (f)(2)(i) is revised to read as follows:


Sec.  648.7  Recordkeeping and reporting requirements.

    (a) * * *
    (1) * * *
    (iv) Dealer reporting requirements for Atlantic mackerel and 
longfin squid. In addition to the requirements under paragraph 
(a)(1)(i) of this section, dealers issued an MSB dealer permit must 
accurately weigh all fish or use volume-to-weight conversions for all 
transactions containing more than 2,500 lb (1.13 mt) of longfin squid 
or 20,000 lb (9.07 mt) of mackerel. If dealers do not sort by species, 
dealers are required to document, for each report submitted, how the 
species composition of the catch is determined.
* * * * *
    (b) * * *
    (3) * * *
    (ii) Atlantic mackerel owners or operators. The owner or operator 
of a vessel issued a limited access mackerel permit must report catch 
(retained and discarded) of mackerel daily via VMS, unless exempted by 
the Regional Administrator. The report must include at least the 
following information, and any other information required by the

[[Page 53415]]

Regional Administrator: Fishing Vessel Trip Report serial number; month 
and day mackerel was caught; total pounds of mackerel retained and 
total pounds of all fish retained. Daily mackerel VMS catch reports 
must be submitted in 24-hr intervals for each day and must be submitted 
by 0900 hr on the following day. Reports are required even if mackerel 
caught that day have not yet been landed. This report does not exempt 
the owner or operator from other applicable reporting requirements of 
this section.
    (iii) Longfin squid/butterfish moratorium permit owners or 
operators. The owner or operator of a vessel issued a longfin squid/
butterfish moratorium permit must report catch (retained and discarded) 
of longfin squid daily via VMS, unless exempted by the Regional 
Administrator. The report must include at least the following 
information, and any other information required by the Regional 
Administrator: Fishing Vessel Trip Report serial number; month and day 
longfin squid was caught; total pounds longfin squid retained and total 
pounds of all fish retained. Daily longfin squid VMS catch reports must 
be submitted in 24-hr intervals for each day and must be submitted by 
0900 hr on the following day. Reports are required even if longfin 
squid caught that day have not yet been landed. This report does not 
exempt the owner or operator from other applicable reporting 
requirements of this section.
* * * * *
    (f) * * *
    (2) * * *
    (i) For any vessel not issued a NE multispecies; Atlantic herring 
permit; or any Atlantic mackerel, longfin squid, Illex squid, or 
butterfish permit; fishing vessel log reports, required by paragraph 
(b)(1)(i) of this section, must be postmarked or received by NMFS 
within 15 days after the end of the reporting month. If such a vessel 
makes no fishing trip during a particular month, a report stating so 
must be submitted, as instructed by the Regional Administrator. For any 
vessel issued a NE multispecies permit; Atlantic herring permit; or any 
Atlantic mackerel, longfin squid, Illex squid, or butterfish permit; 
fishing vessel log reports must be postmarked or received by midnight 
of the first Tuesday following the end of the reporting week. If such a 
vessel makes no fishing trip during a reporting week, a report stating 
so must be submitted and received by NMFS by midnight of the first 
Tuesday following the end of the reporting week, as instructed by the 
Regional Administrator. For the purposes of this paragraph (f)(2)(i), 
the date when fish are offloaded will establish the reporting week or 
month the VTR must be submitted to NMFS, as appropriate. Any fishing 
activity during a particular reporting week (i.e., starting a trip, 
landing, or offloading catch) will constitute fishing during that 
reporting week and will eliminate the need to submit a negative fishing 
report to NMFS for that reporting week. For example, if a vessel issued 
a NE multispecies permit; Atlantic herring permit; or Atlantic 
mackerel, longfin squid, Illex squid or butterfish permit; begins a 
fishing trip on Wednesday, but returns to port and offloads its catch 
on the following Thursday (i.e., after a trip lasting 8 days), the VTR 
for the fishing trip would need to be submitted by midnight Tuesday of 
the third week, but a negative report (i.e., a ``did not fish'' report) 
would not be required for either earlier week.
* * * * *
0
4. In Sec.  648.10, paragraphs (b)(9), (b)(10), (m), and (n) are added 
to read as follows:


Sec.  648.10  VMS and DAS requirements for vessel owners/operators.

* * * * *
    (b) * * *
    (9) Vessels issued a Tier 1, Tier 2, or Tier 3 limited access 
Atlantic mackerel permit; or
    (10) Vessels issued a longfin squid/butterfish moratorium permit.
* * * * *
    (m) Limited access Atlantic mackerel VMS notification requirements. 
(1) A vessel issued a limited access Atlantic mackerel permit intending 
to declare into the mackerel fishery must notify NMFS by declaring a 
mackerel trip prior to leaving port at the start of each trip in order 
to harvest, possess, or land mackerel on that trip.
    (2) A vessel issued a limited access Atlantic mackerel permit 
intending to land more than 20,000 lb (9.07 mt) of mackerel must notify 
NMFS of the time and place of offloading at least 6 hr prior to 
crossing the VMS demarcation line on its return trip to port, or, for a 
vessel that has not fished seaward of the VMS demarcation line, at 
least 6 hr prior to landing. The Regional Administrator may adjust the 
prior notification minimum time through publication in the Federal 
Register consistent with the Administrative Procedure Act.
    (n) Longfin squid/butterfish VMS notification requirements. A 
vessel issued a longfin squid/butterfish moratorium permit intending to 
declare into the longfin squid fishery must notify NMFS by declaring a 
longfin squid trip prior to leaving port at the start of each trip in 
order to harvest, possess, or land longfin squid on that trip.
0
5. In Sec.  648.11, paragraphs (h)(1), (h)(3)(vi), (h)(3)(ix), 
(h)(4)(i) through (iii), (h)(5)(i), (h)(5)(ii)(B) and (C), (h)(5)(iii), 
(h)(5)(vi), (h)(5)(viii)(A), (h)(7), (i)(2), and (i)(3)(ii) are 
revised, and paragraph (m) is added to read as follows:


Sec.  648.11  At-sea sea sampler/observer coverage.

* * * * *
    (h) * * *
    (1) General. An entity seeking to provide observer services to the 
Atlantic sea scallop or Atlantic mackerel 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 or Atlantic mackerel vessel 
owners and shall be posted on NMFS's Web page, as specified in 
paragraph (g)(4) of this section.
* * * * *
    (3) * * *
    (vi) A description of the applicant's ability to carry out the 
responsibilities and duties of a scallop or Atlantic mackerel fishery 
observer services provider as set out in paragraph (h)(5) of this 
section, and the arrangements to be used.
* * * * *
    (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 or Atlantic mackerel High 
Volume Fisheries Certification 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.
* * * * *
    (4) * * *
    (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 or Atlantic mackerel 
fishery observer service provider, as demonstrated in the

[[Page 53416]]

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 
or Atlantic mackerel 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 or Atlantic mackerel 
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) * * *
    (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 or Atlantic mackerel fishery when contacted and 
contracted by the owner, operator, or vessel manager of a vessel 
fishing in the scallop or Atlantic mackerel fishery, unless the 
observer service provider does not have an available observer within 24 
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 in paragraph 
(h)(5)(viii) of this section. An 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) * * *
    (B) Lodging, per diem, and any other services necessary for 
observers assigned to a scallop or Atlantic mackerel vessel or to 
attend a NMFS/NEFOP Sea Scallop or Atlantic mackerel High Volume 
Fisheries Certification 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 and Atlantic mackerel Observer 
Program, prior to any deployment and/or prior to NMFS observer 
certification training; and
* * * * *
    (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 or Atlantic mackerel fishery.
    (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 or Atlantic mackerel High Volume Fisheries 
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.
* * * * *
    (viii) * * *
    (A) An observer service provider may refuse to deploy an observer 
on a requesting scallop or Atlantic mackerel vessel if the observer 
service provider does not have an available observer within 72 hr of 
receiving a request for an observer from a scallop vessel or within 48 
hr of receiving a request for an observer from an Atlantic mackerel 
vessel.
* * * * *
    (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 or 
Atlantic mackerel trips on which the observers are deployed at the time 
the observer service provider is removed from the list of approved 
observer

[[Page 53417]]

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) * * *
    (2) Observer training. In order to be deployed on any Atlantic 
mackerel vessel, a candidate observer must have passed a NMFS/NEFOP or 
Atlantic mackerel High Volume Fisheries Certification/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 or Atlantic mackerel 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) * * *
    (ii) Be physically and mentally capable of carrying out the 
responsibilities of an observer on board scallop or Atlantic mackerel 
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;
* * * * *
    (m) Atlantic mackerel, squid, and butterfish observer coverage--(1) 
Pre-trip notification. (i) A vessel issued a limited access Atlantic 
mackerel permit or longfin squid/butterfish moratorium permit, as 
specified at Sec.  648.4(a)(5)(i), must, for the purposes of observer 
deployment, have a representative provide notice to NMFS of the vessel 
name, vessel permit number, contact name for coordination of observer 
deployment, telephone number or email address for contact; and the 
date, time, port of departure, gear type (for mackerel trips), and 
approximate trip duration, at least 48 hr, but no more than 10 days, 
prior to beginning any fishing trip, unless it complies with the 
possession restrictions in paragraph (m)(1)(iii) of this section.
    (ii) A vessel that has a representative provide notification to 
NMFS as described in paragraph (a) of this section may only embark on a 
mackerel or longfin squid trip without an observer if a vessel 
representative has been notified by NMFS that the vessel has received a 
waiver of the observer requirement for that trip. NMFS shall notify a 
vessel representative whether the vessel must carry an observer, or if 
a waiver has been granted, for the specified mackerel or longfin squid 
trip, within 24 hr of the vessel representative's notification of the 
prospective mackerel or longfin squid trip, as specified in paragraph 
(a) of this section. Any request to carry an observer may be waived by 
NMFS. A vessel that fishes with an observer waiver confirmation number 
that does not match the mackerel or longfin squid trip plan that was 
called in to NMFS is prohibited from fishing for, possessing, 
harvesting, or landing mackerel or longfin squid except as specified in 
paragraph (c) of this section. Confirmation numbers for trip 
notification calls are only valid for 48 hr from the intended sail 
date.
    (iii) Trip limits. (A) A vessel issued a longfin squid and 
butterfish moratorium permit, as specified in Sec.  648.4(a)(5)(i), 
that does not have a representative provide the trip notification 
required in paragraph (a) of this section is prohibited from fishing 
for, possessing, harvesting, or landing more than 2,500 lb (1.13 mt) of 
longfin squid per trip at any time, and may only land longfin squid 
once on any calendar day, which is defined as the 24-hr period 
beginning at 0001 hours and ending at 2400 hours.
    (B) A vessel issued a limited access mackerel permit, as specified 
in Sec.  648.4(a)(5)(i), that does not have a representative provide 
the trip notification required in paragraph (a) of this section is 
prohibited from fishing for, possessing, harvesting, or landing more 
than 20,000 lb (9.07 mt) of mackerel per trip at any time, and may only 
land mackerel once on any calendar day, which is defined as the 24-hr 
period beginning at 0001 hours and ending at 2400 hours.
    (iv) If a vessel issued a longfin squid and butterfish moratorium 
permit, as specified in Sec.  648.4(a)(5)(i), intends to possess, 
harvest, or land more than 2,500 lb (1.13 mt) of longfin squid per trip 
or per calendar day, or a vessel issued a limited access Atlantic 
mackerel permit, as specified in Sec.  648.4(a)(5)(i), intends to 
possess, harvest, or land more than 20,000 lb (9.07 mt) of mackerel per 
trip or per calendar day, and has a representative notify NMFS of an 
upcoming trip, is selected by NMFS to carry an observer, and then 
cancels that trip, the representative is required to provide notice to 
NMFS of the vessel name, vessel permit number, contact name for 
coordination of observer deployment, and telephone number or email 
address for contact, and the intended date, time, and port of departure 
for the cancelled trip prior to the planned departure time. In 
addition, if a trip selected for observer coverage is cancelled, then 
that vessel is required to carry an observer, provided an observer is 
available, on its next trip.
    (2) Sampling requirements for limited access Atlantic mackerel and 
longfin squid/butterfish moratorium permit holders. In addition to the 
requirements in paragraphs (d)(1) through (7) of this section, an owner 
or operator of a vessel issued a limited access Atlantic mackerel or 
longfin squid/butterfish moratorium permit on which a NMFS-approved 
observer is embarked must provide observers:
    (i) A safe sampling station adjacent to the fish deck, including: A 
safety harness, if footing is compromised and grating systems are high 
above the deck; a safe method to obtain samples; and a storage space 
for baskets and sampling gear.
    (ii) Reasonable assistance to enable observers to carry out their 
duties, including but not limited to assistance with: Obtaining and 
sorting samples; measuring decks, codends, and holding bins; collecting 
bycatch when requested by the observers; and collecting and carrying 
baskets of fish when requested by the observers.
    (iii) Advance notice when pumping will be starting; when sampling 
of the catch may begin; and when pumping is coming to an end.
    (3) Measures to address slippage in the Atlantic mackerel and 
longfin squid fisheries. (i) No vessel issued a limited access Atlantic 
mackerel permit or a longfin squid/butterfish moratorium permit and 
carrying a NMFS-approved observer may release fish from the net, 
transfer fish to another vessel that is not carrying a NMFS-approved 
observer, or otherwise discard fish at sea, unless the fish has first 
been brought on board the vessel and made available for sampling and 
inspection by the observer, except in the following circumstances:
    (A) The vessel operator has determined, and the preponderance of 
available evidence indicates that, there is a compelling safety reason; 
or
    (B) A mechanical failure precludes bringing some or all of the 
catch on board the vessel for sampling and inspection; or

[[Page 53418]]

    (C) The vessel operator determines that pumping becomes impossible 
as a result of spiny dogfish clogging the pump intake. The vessel 
operator shall take reasonable measures, such as strapping and 
splitting the net, to remove all fish that can be pumped from the net 
prior to release.
    (ii) If fish are released prior to being brought on board the 
vessel, including catch released due to any of the exceptions in 
paragraphs (m)(3)(i)(A)-(C) of this section, the vessel operator must 
complete and sign a Released Catch Affidavit detailing the vessel name 
and permit number; the VTR serial number; where, when, and for what 
reason the catch was released; the estimated weight of each species 
brought on board (if only part of the tow was released) or released on 
that tow. A completed affidavit must be submitted to NMFS within 48 hr 
of the end of the trip.
    (4) At-sea observer coverage requirements for the Atlantic mackerel 
fishery. (i) Vessels issued a limited access Atlantic mackerel permit 
may not fish for, take, retain, possess, or land Atlantic mackerel 
without carrying a NMFS-approved observer, unless the vessel owner, 
operator, and/or manager has been notified that the vessel has received 
a waiver of this observer requirement for that trip pursuant to 
paragraph (m)(4)(iv) of this section.
    (ii) An owner, operator, or manager of a vessel required to carry 
an observer under paragraph (m)(4)(i) of this section must arrange for 
carrying an observer certified through the Atlantic Mackerel High 
Volume Fisheries observer training class operated by the NMFS/NEFOP 
from an observer service provider approved by NMFS under paragraph (h) 
of this section. The owner, operator, or vessel manager of a vessel 
selected to carry an observer must contact the observer service 
provider and must provide at least 48-hr notice in advance of the 
fishing trip for the provider to arrange for observer deployment for 
the specified trip. The observer service provider will notify the 
vessel owner, operator, or manager within 24 hr whether they have an 
available observer. A list of approved observer service providers shall 
be posted on the NMFS/NEFOP Web site at http://www.nefsc.noaa.gov/femad/fsb/.
    (iii) An owner, operator, or vessel manager of a vessel that cannot 
procure a certified observer within 24 hr of the advance notification 
to the provider due to the unavailability of an observer may request a 
waiver from NMFS/NEFOP from the requirement for observer coverage for 
that trip, but only if the owner, operator, or vessel manager has 
contacted all of the available observer service providers to secure 
observer coverage and no observer is available.
    (iv) NMFS/NEFOP shall issue such a waiver within 12 hr if the 
conditions of paragraph (m)(4) of this section are met. A vessel may 
not begin the trip without being issued a waiver. All waivers for 
observer coverage will be issued to the vessel by VMS so a vessel must 
have on board a verification of the waiver.
    (v) When selected to carry an observer on a declared mackerel trip, 
owners of vessels issued a limited access Atlantic mackerel permit must 
pay observer service providers $325 per sea day.
0
6. In Sec.  648.14, paragraphs (g)(2)(v) through (viii) are added to 
read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (g) * * *
    (2) * * *
    (v) Reporting requirements in the limited access Atlantic mackerel 
and longfin squid/butterfish moratorium fisheries. (A) Fail to declare 
via VMS into the mackerel or longfin squid/butterfish fisheries by 
entering the fishery code prior to leaving port at the start of each 
trip to harvest, possess, or land Atlantic mackerel or longfin squid, 
if a vessel has been issued a Limited Access Atlantic mackerel permit 
or longfin squid/butterfish moratorium permit, pursuant to Sec.  
648.10.
    (B) Fail to notify NMFS Office of Law Enforcement through VMS of 
the time and place of offloading at least 6 hr prior to crossing the 
VMS demarcation line on their return trip to port, or, for a vessel 
that has not fished seaward of the VMS demarcation line, at least of 6 
hr prior to landing, if a vessel has been issued a Limited Access 
Atlantic mackerel permit, pursuant to Sec.  648.10.
    (vi) Release fish from the codend of the net, transfer fish to 
another vessel that is not carrying a NMFS-approved observer, or 
otherwise discard fish at sea before bringing the fish aboard and 
making it available to the observer for sampling, unless subject to one 
of the exemptions defined at Sec.  648.11(m)(3) if issued a Limited 
Access Atlantic mackerel permit, or a longfin squid/butterfish 
moratorium permit.
    (vii) Fail to complete, sign, and submit an affidavit if fish are 
released pursuant to the requirements at Sec.  648.11(m)(3).
    (viii) Fail to immediately return to port after slipping catch 
while carrying a NMFS-approved observer after NMFS has determined that 
the slippage cap has been reached, pursuant to Sec.  648.24.
* * * * *
0
7. In Sec.  648.22, paragraphs (b)(2)(vi) and (b)(4) are added to read 
as follows:


Sec.  648.22  Atlantic mackerel, squid, and butterfish specifications.

* * * * *
    (b) * * *
    (2) * * *
    (vi) River herring and shad catch cap. The Monitoring Committee 
shall provide recommendations regarding a cap on the catch of river 
herring (alewife and blueback) and shad (American and hickory) in the 
Atlantic mackerel fishery based on best available scientific 
information, as well as measures (seasonal or regional quotas, closure 
thresholds) necessary for implementation.
* * * * *
    (4) Additional measures. The Monitoring Committee may also provide 
recommendations on the following items, if necessary:
    (i) Observer provisions to maximize sampling at Sec.  648.11(m)(2);
    (ii) Industry contribution amount for at-sea observer coverage at 
Sec.  648.11(m)(2);
    (iii) Exceptions for the requirement to pump/haul aboard all fish 
from net for inspection by at-sea observers in Sec.  648.11(n)(2);
    (iv) Trip termination requirements after slippage for mackerel 
vessels in Sec.  648.24(b)(7).
* * * * *
0
8. In Sec.  648.24, paragraph (b)(7) is added to read as follows:


Sec.  648.24  Fishery closures and accountability measures.

* * * * *
    (b) * * *
    (7) Slippage caps. If NMFS determines that there have been 10 
slippage events by vessels issued limited access Atlantic mackerel 
permits and carrying NMFS-approved observers, vessels with limited 
access mackerel permits that subsequently slip catch while carrying a 
NMFS-approved observer must immediately stop fishing and return to port 
after each slippage event. NMFS shall implement these restrictions in 
accordance with the Administrative Procedure Act.
* * * * *
0
9. 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

[[Page 53419]]

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; 
process for inseason adjustment to the annual specification; mortality 
caps for river herring and shad species; time/area management for river 
herring and shad species; and provisions for river herring and shad 
incidental catch avoidance program, including adjustments to the 
mechanism and process for tracking fleet activity, reporting incidental 
catch events, compiling data, and notifying the fleet of changes to the 
area(s); the definition/duration of `test tows,' if test tows would be 
utilized to determine the extent of river herring incidental catch in a 
particular area(s); the threshold for river herring incidental catch 
that would trigger the need for vessels to be alerted and move out of 
the area(s); the distance that vessels would be required to move from 
the area(s); and the time that vessels would be required to remain out 
of the area(s). 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.
* * * * *


Sec.  648.27  [Removed]

0
10. Remove Sec.  648.27.

[FR Doc. 2013-21052 Filed 8-28-13; 8:45 am]
BILLING CODE 3510-22-P