Federal Register, Volume 76 Issue 189 (Thursday, September 29, 2011)

[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Rules and Regulations]
[Pages 60605-60650]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24511]

[[Page 60605]]

Vol. 76

Thursday,

No. 189

September 29, 2011

Part II

Department of Commerce

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National Oceanic and Atmospheric Administration

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50 CFR Part 648

Magnuson-Stevens Fishery Conservation and Management Act Provisions;
Fisheries of the Northeastern United States; Annual Catch Limits and
Accountability Measures; Final Rule

Federal Register / Vol. 76 , No. 189 / Thursday, September 29, 2011 /
Rules and Regulations

[[Page 60606]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100902424-1331-03]
RIN 0648-BA23

Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Annual Catch
Limits and Accountability Measures

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

ACTION: Final rule.

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SUMMARY: NMFS hereby implements an omnibus amendment to all Mid-
Atlantic Fishery Management Council (Council) fishery management plans
(FMPs) to bring all Council FMPs into compliance with the annual catch
limit (ACL) and accountability measure (AM) requirements of the
Magnuson-Stevens Act (MSA). This rule is necessary to establish
measures that address the MSA-required elements to utilize scientific
advice, establish catch limits, and maintain accountability in managing
fisheries. There are multiple objectives of the Omnibus Amendment: To
establish a comprehensive framework for all Council FMPs that is
compliant with the MSA requirements and consistent with the National
Standard 1 guidelines issued by NMFS; to implement a process that more
formally utilizes scientific recommendations in the establishment of
annual catch levels; to establish a framework to derive ACLs with AM
backstops; and to establish processes for revisiting and modifying the
measures established by the Omnibus Amendment so that overfishing is
prevented, stocks are rebuilt as needed, and optimum yield (OY) may be
achieved for all managed stocks under the Council's jurisdiction.

DATES: Effective October 31, 2011.

ADDRESSES: Copies of the Omnibus Amendment document, including the
Environmental Assessment and Regulatory Impact Review (EA/RIR) and
other supporting documents for the Omnibus Amendment, are available
from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery
Management Council, Suite 201, 800 North State Street, Dover, DE 19901.
The Omnibus Amendment is also accessible via the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Michael Ruccio, Fishery Policy
Analyst, (978) 281-9104.

SUPPLEMENTARY INFORMATION:

Background

NMFS published a Notice of Availability (NOA) soliciting public
input on the Omnibus Amendment in the Federal Register on May 23, 2011
(76 FR 29717). NMFS published a proposed rule in the Federal Register
on June 17, 2011 (76 FR 35578), proposing regulations that would
implement the Omnibus Amendment measures. The NOA specifically
solicited input on whether NMFS, acting on the behalf of the Secretary
of Commerce (Secretary), should approve, partially approve, or
disapprove the Omnibus Amendment. Comments were accepted through July
22, 2011, on the NOA. The proposed rule outlined the Acceptable
Biological Catch (ABC) control rules for use by the Scientific and
Statistical Committee (SSC) in recommending ABC to the Council, a risk
policy for use in conjunction with the ABC control rules to inform the
SSC of the Council's preferred tolerance for the risk of overfishing a
stock, ACLs for all Council-managed stocks except Loligo and Illex
squids, which are exempt from the ACL/AM requirements because they are
not overfished and have annual life cycles, comprehensive AMs for all
established ACLs, descriptions of the process to review ACL and AM
performance, and information on the processes for the future
modification of the measures established through the Omnibus Amendment.
Comments were accepted on the proposed rule measures through July 18,
2011. Additional background information and detail on why and how the
Omnibus Amendment was developed and the overarching requirements the
amendment satisfies were provided in the Omnibus Amendment proposed
rule (76 FR 35578, June 17, 2011) and are not repeated here.
The Council reviewed the proposed Omnibus Amendment regulations as
drafted by NMFS and deemed them to be necessary and appropriate as
required by section 303(c) of the MSA. The Omnibus Amendment
established the measures described later in this final rule through the
following specific FMP amendments: Amendment 13 to the Atlantic
Mackerel, Squids, and Butterfish FMP; Amendment 3 to the Atlantic
Bluefish FMP; Amendment 2 to the Spiny Dogfish FMP; Amendment 15 to the
Summer Flounder, Scup, and Black Sea Bass FMP; Amendment 16 to the
Surfclam and Ocean Quahog FMP; and Amendment 3 to the Tilefish FMP.

Approved Omnibus Amendment Measures

NMFS evaluated all comments received by the end of the comment
periods, whether specifically directed to the amendment approval
decision or the proposed rule measures, in its decisionmaking process.
NMFS, on behalf of the Secretary, approved the Omnibus Amendment on
August 12, 2011. NMFS now implements through this final rule, the
Omnibus Amendment measures recommended by the Council and as contained
in the proposed rule, with minor clarifications as outlined in the
Changes and Clarifications from the Proposed Rule section later in this
preamble. As outlined in the proposed rule and Omnibus Amendment
document, this action establishes the framework that the Council and
SSC will utilize to establish catch limits, the system for maintaining
accountability when ACLs are exceeded, the process to evaluate the
continued efficacy of the overall ABC/ACL/AM system, and the methods by
which future changes to the overall system may be made. The actual ABC
recommendations by the SSC and establishment of ACLs by the Council
will occur in subsequent specification setting processes. The approved
Omnibus Amendment measures are as follows:

ABC Control Rules

This rule implements the four ABC control rule approaches developed
by the Council's SSC, as proposed. The framework of these rules places
stocks into one of four levels, each with specific criteria for both
placement and generation of ABC recommendations, based on the amount of
scientific uncertainty as determined by the SSC involved with the stock
assessment, available data, life history, and other scientifically
related parameters. When possible, the SSC will utilize the overfishing
level (OFL) probability distribution in conjunction with the Council's
risk policy to derive and recommend ABC to the Council. In instances
where OFL cannot be determined, or for stocks that the SSC determines
have an unreliable OFL or OFL distribution, the control rules guide the
SSC in how ABC shall be derived.

Council Risk Policy

This rule implements the risk policy approaches, as proposed. The
Council's risk policy is designed to inform the SSC of the Council's
tolerance for the

[[Page 60607]]

risk of overfishing. The risk policy uses a combination of the ratio of
biomass (B)/BMaximum Sustainable Yield (MSY) and the life
history traits of any given species to set the tolerance for
overfishing anywhere from zero (for stocks with a B/BMSY of
0.10 or lower, irrespective of life history traits) to a maximum of a
40-percent probability of overfishing for stocks with a typical life
history as determined by the SSC and a B/BMSY of 1.0 or
higher.
The probability of overfishing, as determined by the risk policy,
will be applied by the SSC to stocks with either an OFL distribution
from the stock assessment or generated by the SSC. If no OFL is
available from a stock assessment and no OFL proxy is provided by the
SSC when an ABC recommendation is made, the risk policy does not permit
increases in ABC until an acceptable OFL has been identified.
For stocks under a rebuilding plan, the risk policy requires that
the probability of exceeding the rebuilding target F
(FREBUILD) would be 50 percent, unless modified to a lesser
value (i.e., a higher probability that FREBUILD would not be
exceeded) through a stock rebuilding plan amendment. In instances where
the rebuilding plan risk policy and general risk policy result in
different approaches and potential ABCs, the SSC will forward the lower
of the two resulting ABCs to the Council as a more risk averse
approach.

Annual Catch Limits and Accountability Measures

This final rule implements the ACL and AM measures, as proposed,
along with the minor changes outlined in the Changes from the Proposed
Rule Section later in this preamble. Under the implemented approach
established by the Omnibus Amendment, the Council will rely on the SSC
to set ABC at or below OFL, with the reduction from OFL dependent on
the amount of scientific uncertainty identified by the SSC. Where
applicable, Canadian catch estimates will be removed from the overall
ABC to establish a domestic ABC for U.S. catch. The Council will
recommend to NMFS ACLs set equal to ABC for all species, with some
further subdivision to sector-level ACLs where stocks have pre-existing
allocations for both commercial and recreational fisheries. The sum of
these sector ACLs will equal the ABC. Annual Catch Targets (ACTs) will
be used to address management uncertainty. Council staff or species-
specific monitoring committees will review available information and
recommend to the Council the amount of reduction from ACL to ACT
necessary to address management uncertainty. Where ACLs are divided
into sector-specific ACLs, comparable sector ACTs that address the
associated sector-specific management uncertainties will be used.
Finally, estimated discards (i.e., dead discarded catch) will be
removed from ACTs to yield either commercial or recreational landing
targets, as applicable. In summary, the structure for all Council FMPs
is: OFL >= ABC = ACL(s) >= ACT(s), with scientific uncertainty
addressed at the ABC level by the SSC as an offset from OFL, and
management uncertainty addressed by the Council following
recommendations from Council staff or species-specific monitoring
committees at the ACT level as an offset from the ABC/ACL level.
Existing proactive accountability measures, including commercial
trip and possession limits, commercial fishery closure authority, and
commercial fishery overage repayments are being retained and codified
as AMs through the Omnibus Amendment. In addition, new AMs are
established to close recreational fisheries when data in hand indicate
ACLs have been met or exceeded, as well as establishing lb-for-lb
repayment of any catch above established ACLs for all fisheries.
Recreational ACLs will be evaluated on a 3-yr rolling average
comparison of ACLs to 3-yr average catch. The Omnibus Amendment also
provides for adjustments to future ACTs when the causes of ACL overages
are not related to landings (i.e., dead discards, a combination of
landings and discards, or other sources of stock mortality that may be
tracked and subsequently quantified).

Review and Future Modification of Omnibus Amendment Measures

The Omnibus Amendment establishes that ACL and AM performance
reviews will occur at least every 5 yr if ACLs are not routinely
exceeded. Consistent with the NS1 guidelines, if the ACL is exceeded
for any species with a frequency greater than 25 percent of the time
(i.e., more than 1 in 4 yr, or in any 2 consecutive years), the Omnibus
Amendment requires the Council to initiate a review of the ACL, ACT,
and AM approaches used.
The Omnibus Amendment implements the comprehensive listing of items
that may be modified through the Council's specification or framework
adjustment processes, as proposed.

Comments and Responses

NMFS received 11 combined comments on the May 23, 2011 (76 FR
29717), NOA requesting input on the Secretary's amendment approval
decision and the Omnibus Amendment proposed rule (76 FR 35578; June 17,
2011). Comments were submitted by private citizens, a recreational
party/charter vessel operator, a commercial fish processing plant
operator, a commercial fisheries advocacy group, and the following
nongovernmental organizations (NGOs): Environmental Defense Fund; Pew
Environmental Group; Marine Fish Conservation Network; National
Coalition for Marine Conservation; and Oceana. Some of the comments did
not provide input on the amendment approval decision, nor did they
address the proposed measures; thus no response to these comments is
provided here. Where possible, responses to similar comments on the
amendment approval decision and proposed measures have been
consolidated.
Comment 1: One NGO commented that the Council and NMFS appeared to
exempt Loligo and Illex squids from all the required provisions of the
MSA and NS1 guidelines. Specifically, the commenter stated that ABC
must be established for both squid species using the ABC control rules
and Council risk policy.
Response: The Omnibus Amendment only exempts Loligo and Illex squid
from the ACL and AM components of the amendment; all other NS1
guideline requirements apply to these two species. Both the Omnibus
Amendment document and the proposed rule state that Loligo and Illex
squid are exempt from the ACL and AM requirements. Neither document
provides any additional exemptions from the NS1 guidelines for these
species. The Omnibus Amendment approach for both squids is wholly
consistent with the annual life cycle exemption found in the note to
section 303 of the MSA and the NS1 guidelines at Sec. 600.300(h)(2)
and, as such, they are exempt from ACL and AM requirements, but must
have status determination criteria, MSY, OY, ABC, and ABC control rules
as part of their FMP. As both species already have these required
elements in their FMP, NMFS is implementing the Omnibus Amendment as
proposed.
Comment 2: One NGO raised concerns about the process to modify the
ABC control rules and risk policy established by the Omnibus Amendment.
The commenter asserted that these two components of the Omnibus
Amendment could be modified through the Council's specification
process. Specific concerns were raised that the specification process
could inappropriately be used to modify the ABC control rules and/or

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risk policy, which could minimize public participation and analysis of
alternatives. The commenters stated that the Omnibus Amendment must be
disapproved until such time that the potential adjustment processes are
clarified by the Council.
Response: NMFS disagrees that the Omnibus Amendment should be
disapproved, as these concerns are unfounded. The Omnibus Amendment and
its implementing regulations do not authorize the Council to make such
changes through the specification process. Minor adjustments, within a
narrowly defined scope, are permitted as outlined in each species-
specific framework adjustment process regulation. For all other
changes, the Council would be required to utilize an FMP amendment
process.
Comment 3: One NGO stated that the preferred Omnibus Amendment risk
policy (Alternative G, a two-tiered approach based on species life
history) provides too great a risk of overfishing and should be
disapproved in favor of one of the other proposed risk alternatives
(Alternative D, a four-tiered approach considering stock status,
replenishment threshold, and productivity, as well as an approach for
the maximum permissible risk of overfishing allowed at a B/
BMSY inflection point higher than 1.0). In addition, the
commenter expressed concern about the vague life history criteria in
the two-tiered Alternative G approach that will be used to distinguish
typical and atypical species. The commenter also asserted that the risk
policy is largely superfluous, as many of the Council stocks will not
have the necessary OFL probability distributions needed to apply the
risk policy in a meaningful way. These comments on the risk policy were
suggested as grounds upon which NMFS should disapprove the Omnibus
Amendment (i.e., allegations that the risk policy will not prevent
overfishing.)
Response: NMFS disagrees that the amendment should be disapproved
and also disagrees that one risk policy alternative must be substituted
over another. NMFS has approved and is implementing the Council-
preferred risk alternative (Alternative G). NMFS considers that the
risk policy, in conjunction with the comprehensive system for deriving
ABC and establishing ACL(s) and ACT(s), will provide a sufficiently
high probability that overfishing will not occur.
The risk policy under Alternative G establishes a maximum
permissible risk of overfishing stocks. For a stock that has a B/
BMSY ratio over 1.0 and has a typical life history, a
maximum 40-percent probability of overfishing or, alternatively
expressed as a 60-percent probability that overfishing will not occur,
is permitted. This probability is 10 percent lower than the precedent
established for rebuilding probability of success, wherein a 50-percent
probability of not exceeding the FREBUILD target was
established for summer flounder (see NRDC v. Daley). The maximum
probability of overfishing for a SSC-determined atypical life history
species is 35 percent, which is a 65-percent probability that
overfishing will not occur. The NS1 guidelines indicate that the risk
tolerance for overfishing a stock is an important component of the ABC
control rule and derivation process; however, it is not a requirement
that must be specified in an FMP. The NS1 guidelines make clear that a
minimum threshold of a 50-percent probability of overfishing is
required; thus, NMFS would only have grounds to disapprove the
Council's risk policy approach if it permitted a higher probability
that overfishing would occur.
All the risk policy alternatives were developed through a
comprehensive, collaborative effort of the Council's SSC and the
Council. The alternative implemented in the final rule provides a
useful and appropriate system to inform the SSC of the Council's
tolerance for the risk of overfishing. It is a more robust approach
than selecting a fixed percentage, and is more restrictive than the
minimum requirement, and sets a maximum probability thereby providing
some flexibility to consider current information and circumstances when
setting catch levels. NMFS acknowledges that the risk policy is only
applicable for stocks assigned to ABC control rule levels 1-3 when an
acceptable OFL probability is provided as an assessment output or can
be generated by the SSC for level 3 stocks. NMFS also acknowledges that
the expert judgment of the SSC will play a critical role in deriving
ABC for stocks for which no OFL exists or for which OFL is not viewed
as adequate. These stocks will either have the default control rule
applied (75 percent of the FMSY rate for level 3 stocks) or
will have thoroughly documented, more conservative approaches designed
to ensure overfishing does not occur (level 4 stocks). Additionally,
deference is given to the SSC to make determinations as to which
Council-managed species have typical or atypical life histories. In all
the aforementioned scenarios wherein the SSC may utilize judgment, the
process will occur in open meetings and will include documentation and
justification for the decisions reached. This is not inconsistent with
the approach contemplated under NS1. The SSC recently applied the risk
policy in developing ABC recommendations for the summer flounder, scup,
and bluefish stocks. NMFS disagrees that the risk policy is a ``paper
exercise,'' as the SSC has begun using both the ABC control rules and
risk policy.
Comment 4: Some commenters expressed concern that the ABC control
rule for deriving ABC for stocks categorized as level 3 and 4, and the
conditions for when the SSC might deviate from the ABC control rule
framework, are too vague. Some of these comments recommended
disapproving the amendment until such time that more information and
criteria were added to how ABC would be derived for level 3 and 4
stocks and rules established for when the SSC could deviate from the
ABC control rule framework.
Response: NMFS disagrees. NS1 guidelines contemplate and authorize
SSCs to deviate from ABC control rule calculations, but require the SSC
to provide an explanation of why an alternative ABC is more appropriate
(Sec. 600.310(f)(3)). Because the authority to deviate from ABCs
calculated using the control rules is explicitly provided under the NS1
guidelines, there was no need to include the generic description of
this possibility in the Omnibus Amendment and proposed rule; however, a
brief description was included, designed to echo the language of Sec.
600.310(f)(3), for better transparency of the process. In fact, given
the language in the NS1 guidelines, the SSC may deviate from any ABC
control rule level at any time, provided it can satisfactorily explain
why the deviation was necessary and how the alternative methods used
are the best approach.
In addition, the level 3 and 4 control rule approaches provide a
meaningful framework for the SSC to evaluate the quality of assessment
information and uncertainty in deriving an ABC recommendation for the
Council. The SSC is expected to conduct its ABC recommendation process
in an open, transparent public forum and to provide detailed
documentation for the Council and public that provides the information
considered, the approaches taken, and why the ABC recommended is
consistent with the best available scientific information, to satisfy
National Standard 2 requirements. For these reasons, the level 3 and 4
ABC control rules and the description process for recommending
alternatively derived ABCs are sufficient to approve the Omnibus
Amendment. NMFS

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expects that the ABC control rule provides a sufficiently robust
approach that utilizes the best available scientific information, and
that the ABC recommendations from the SSC will provide a low risk of
overfishing any given stock, irrespective of that stock's level
assignment. There remain some stock assessments that are limited by the
available data and/or understanding of species status. The four-level
ABC control rule framework is designed to encourage scientific
examination so that stocks may be advanced to levels indicative of more
robust understanding. The proposed rule did not repeat that the ABC
control rules are a spectrum from least uncertain to most uncertain for
levels 1 to 4; this description is in the Omnibus Amendment.
Comment 5: Several commenters with recreational fishing interests
stated that no recreational ACL overages should be required to pay back
lb-for-lb the overage amount through AMs until such time that the
Marine Recreational Information Program (MRIP) is operational.
Response: NMFS expects the MRIP system for estimating recreational
catches to be available for the first year of ACL performance
evaluation (i.e., the 2012 FY).
Comment 6: One commenter raised concern that the Omnibus
Amendment's planned 5-year review of ABC control rules and ACL
performance is too long. The commenter was concerned about lost yield
if ACLs and ACTs are set ``too conservatively,'' stating that the only
opportunity to potentially see less conservative approaches applied may
not occur until the 5-yr review.
Response: The Omnibus Amendment affords flexibility for the Council
to re-examine the performance of any of the measures at any time it
deems such a review appropriate. The selection of a planned 5-year
detailed performance review was deliberately selected to ensure that
ABC, ACL, and ACT setting approaches and subsequent performance will be
formally reviewed by the Council on a fixed schedule; however, this
does not preclude additional review on a more frequent basis. In
addition, the Omnibus Amendment requires a thorough performance review
should an ACL be exceeded more than once in a 4-year period, or if an
ACL is exceeded in 2 consecutive years. These latter criteria for
review may well occur if ACLs have been set ``too conservatively,'' as
suggested by the commenter. Were no period expressed for the formal
review, the Council would not be obligated to perform any performance
review unless the more than 1-in-4 or 2-consecutive-year ACL overages
occurred. The SSC has been reviewing the establishment process and the
performance of ABC recommendations annually. It is expected that the
level of review involved with the first few years of operation under
the ACL management system will require more intensive examination of
performance, until such time that the system becomes more stable.
Comment 7: One commenter stated that the potential economic impacts
of the Omnibus Amendment implemented frameworks should have been
prepared by the Council and NMFS. Specifically, the commenter called on
NMFS and the Council to prepare a more thorough analysis of potential
changes in yield, by species, and the resultant potential economic
impacts.
Response: NMFS disagrees. The Omnibus Amendment outlines a
framework for how catch levels will be established consistent with NS1
requirements and, as such, does not provide information on actual catch
levels, by species, the application of risk tolerances, or scientific
or management uncertainties. The Council's approach, supported by NMFS,
has been that the application of the Omnibus Amendment's framework for
setting ABC, ACLs, and ACTs will be fully evaluated as individual
species specification processes occur in 2011 for the 2012 FY. These
evaluations will provide economic impact analysis of the ABCs, ACLs,
ACTs, and other Omnibus Amendment elements, specific to the measures
being proposed.
Comment 8: One commenter requested clarification on whether the
decision to close fisheries will be made based on exceeding the ACL,
ACT, or other levels within the Omnibus Amendment framework. The
commenter also asked for clarification on why commercial and
recreational sector landing-based closure evaluations are different.
Response: Closures are tied to the established commercial fishing
quotas and recreational harvest limits (for fisheries with recreational
sectors) under the Omnibus Amendment. Landings will be monitored during
the fishing seasons and proactive AMs utilized to close the respective
sectors when landing limits are reached. The commercial closure
approaches vary from species to species, but generally the level of
commercial landings are monitored in-season on a weekly or daily basis,
based on dealer-reported data, and the commercial fishery may be closed
when landings projections indicate that the established level will be
reached or exceeded. Some commercial fisheries also have possession or
trip limit reductions that occur when specified amounts of landings are
reached. For example, the scup Winter I season possession limit is
reduced when 80 percent of the Winter I landing limit is reached. Many
of these commercial fishery management systems previously existed and
were adopted as proactive AMs in the Omnibus Amendment.
Recreational fisheries landings will also be monitored during the
fishing season, but because recreational data are available much less
frequently (i.e., updates provided in 2-month waves, delivered some 6
weeks after the end of the wave period), the Omnibus Amendment
establishes that recreational fishery closures will occur only when
data in hand indicate a landing level has already been reached or
exceeded. This is to help mitigate the uncertainty that occurs in
trying to project recreational landings. The authority to close
recreational fisheries based on landings evaluations is a new component
adopted in the Omnibus Amendment.
There is not currently the ability to monitor dead discards in
season for the purposes of inseason monitoring and potential closure.
There will be a post-fishing year accounting to determine dead discards
and, in combination with the final landings data, an evaluation of ACL
and ACT performance. If in the future, the ability to monitor total
catch becomes available on a real-time basis, the Council may consider
modifying an FMP to specify when closures will be enacted at either the
ACT or ACL level.
Comment 9: One commenter stated that Atlantic mackerel and spiny
dogfish ABCs should not be reduced to account for Canadian catch.
Response: These stocks are managed on a stock-wide basis, including
the portion of the stock distributed in Canadian waters. The
specification setting process for the two species currently accounts
for Canadian catch on the stock prior to establishing catch levels. The
Omnibus Amendment established an approach wherein this stock-wide
management is preserved and, because the MSA is inapplicable within
Canadian jurisdiction, removes the estimated Canadian catch before
establishing a domestic ABC, ACL, and ACT for the U.S. portion of the
fishery. NMFS agrees that this is a logical approach and accomplishes
management of the stocks throughout their range, which is a
biologically sound approach.
Comment 10: Some commenters alleged that NMFS failed to ensure that

[[Page 60610]]

the Omnibus Amendment's EA provided alternatives to the proposed
action, and that an Environmental Impact Statement (EIS) should have
been required for the Omnibus Amendment. The commenters cited several
instances wherein they alleged that additional reasonable and/or
feasible alternatives should have been developed and instances where
they believe the analyses were incomplete or otherwise insufficient.
Alleged instances of insufficient alternatives include an alleged
failure to consider additional approaches for dealing with Canadian
catch in the Atlantic mackerel and spiny dogfish fisheries, lack of
additional alternatives beyond setting ACL = ABC, with emphasis that
ACL < ABC should have been developed as an alternative for
consideration and analysis, an alleged failure to provide sufficient
measures to ensure accountability, including insufficient alternatives
for proactive AMs besides ACT. Most of the comments on inadequate
analyses centered on alleged insufficient description of the fisheries,
species captured, and consideration of stocks in the fishery.
Response: Consistent with NEPA, Council for Environmental Quality
(CEQ) regulations, and NOAA administrative policy, the Council and NMFS
collaborated to prepare an EA to evaluate the significance of the
environmental impacts expected as a result of the actions proposed in
the Omnibus Amendment. The results of this assessment are provided in
section 7.0 of the EA signed by NMFS on July, 28, 2011. The FONSI
concludes that because the Omnibus Amendment will merely be formalizing
the process of addressing scientific uncertainty and management
uncertainty when setting catch limits with a comprehensive system of
accountability for catch for each of the managed resources that the
impacts of the considered alternatives are administrative in nature.
Thus because the measures contained in the Omnibus Amendment largely
build on measures already contained in the FMP, which have been in
place for many years, NMFS does not expect that the new actions taken
in the Omnibus Amendment will have any significant impacts. The
commenters provided no evidence, nor even any claims, that the
conclusions in the FONSI are not supported by the evidence provided in
the EA for this finding.
According to the CEQ regulations, and guidance on the subject, an
EIS need only be prepared when an EA or other related analysis
identifies significant effects on the environment or if the facts
available to the action agency cannot support the conclusions required
in order to make a FONSI. The EA associated with the Omnibus Amendment
evaluated the expected direct, indirect, and cumulative impacts likely
to result from implementation of the proposed action. The EA, in both
form and scope, followed all agency guidelines for an EA associated
with an FMP amendment. Had a FONSI determination not been supportable,
based on the analyses, then an EIS would have been prepared, consistent
with the process outlined in CEQ regulations. Future FMP actions that
make use of the Omnibus Amendment processes to establish fishing quotas
will evaluate the impacts of those actions as part of the specification
setting process.
The Omnibus Amendment considered a reasonable range of alternatives
for the decisions made. The EA clearly lays out the alternatives
considered for each decision point and explains the reasoning behind
the development of those alternatives, and for the ultimate decision
between those alternatives. Additionally, Appendix A to the EA provides
a discussion of the alternatives that were initially developed, but not
given further consideration because they were determined to be either
infeasible or insufficient.
The response to comment 9 provides additional information on why
NMFS considers the Omnibus Amendment approach for addressing Canadian
catch of Atlantic mackerel and spiny dogfish to be acceptable. The
response to comment 11 outlines NMFS' response that additional
treatment of species captured in target fisheries, and designation of
non-target stocks and ecosystem components was not required.
NMFS has determined that the Council's analysis in setting ABCs,
ACLs, and AMs was consistent with the NS1 guidelines and met the
requirements of NEPA. The NS1 guidelines instruct that in order to
prevent overfishing and achieve, on a continuing basis, OY all sources
of uncertainty--both scientific and management uncertainty--must be
addressed. Scientific uncertainty should be addressed in reducing the
ABC from the ACL and management uncertainty can either be addressed in
reducing the ACL from the ABC, or through the use of AMs, including
ACTs. The purpose of utilizing an ACT is so that, given uncertainty in
the amount of catch that will result from the conservation and
management measures in the fishery, the ACL will not be exceeded.
The Council acted consistently with these guidelines in deciding to
set ACL=ABC for all managed species and to address management
uncertainty by setting ACTs. Commenters argue that the decision to set
ACL=ABC precludes the Council for considering OY factors when setting
the ACL and for that reason that the Council was required to consider
alternatives that set the ACL at a level less than the ABC. The
response to comment 12 below further explains the Council's approach
for considering OY factors. Because the Council, consistent with the
NS1 guidelines, chose to address those OY factors that are not
considered in setting ABC when setting the ACT, there was no need to
consider setting the ACL at a level lower than the ABC; such an
alternative would have been superfluous.
Moreover, the Council fully complied with NEPA in developing a
reasonable range of alternatives for the processes of setting ABCs,
ACLs, and AMs (including ACTs). Where it was feasible, the Council
developed multiple proactive and reactive accountability measures
designed to prevent the ACLs from being exceeded. Notably while one
commenter argues that more proactive accountability measures were
required to be considered, the commenter does not point to any specific
measures that were overlooked by the Council. The Council considered
all reasonable and feasible alternatives, consistent with NEPA.
Comment 11: Many of the NGOs alleged that the Omnibus Amendment
fails to adequately analyze non-target species captured by fisheries
for Mid-Atlantic FMP species and does not adequately consider all
fisheries requiring conservation and management. These commenters
indicated that the Omnibus Amendment should be disapproved and
additional analyses conducted to indicate all species captured in Mid-
Atlantic fisheries, reclassification of stocks as target, non-target,
stocks in the fishery, and ecosystem components, as needed. One
commenter indicated that this information is contained in existing
Standardized Bycatch Reporting Methodology (SBRM) reports and should
have been used by the Council in the Omnibus Amendment development.
Further comments on this topic stated that the Omnibus Amendment should
be disapproved because it fails to establish appropriate sub-ACLs for
FMP-managed species captured incidentally in Council-managed target
fisheries. One commenter stated, as an example, that swordfish captured
in the squid trawl

[[Page 60611]]

fishery should be managed through a sub-ACL.
Response: NMFS disagrees with these interpretations of the NS1
guidelines and disagrees that the Omnibus Amendment's approach to
stocks in the fishery, incidentally captured species, and sub-ACLs is
deficient and must be disapproved. Section 302(h) of the MSA authorizes
each Council to prepare and submit a fishery management plan and
amendments for ``each fishery under its authority that requires
conservation and management.'' The NS1 guidelines provide that, by
default, species managed under FMPs are considered to be stocks in the
fishery. 50 CFR 600.310(d). The NS1 guidelines do not require Councils
to change which species are or are not included in FMPs, nor do the NS1
guidelines require FMPs to incorporate ecosystem component species
classifications. Councils may, but are not required to, use an
``ecosystem component species'' classification. 50 CFR 600.310(c)-(d).
Thus, Councils have had, and continue to have under the MSA and NS1
Guidelines, considerable discretion to define the managed ``fishery.''
Consistent with the MSA and the NS1 Guidelines, the Council
determined that the stocks managed under its FMPs should all continue
to be considered stocks in the fishery, exercised its discretion not to
add other species in the fishery, and decided against pursuing
potential ecosystem component species classification. While the NS1
guidelines explain that a Council should determine which target and
non-target species to include in a fishery, the guidelines do not
require FMPs to list species in target and non-target species
``classifications.'' See 50 CFR 600.310(d). The main point of
classifying stocks is distinguishing between ``stocks in the fishery''
versus the ecosystem component species category. See 50 CFR 600.310(c)-
(d). The MSA also does not require classification into target and non-
target classifications. Section 303(a)(2) of the MSA merely requires
that an FMP contain a description of the species of fish involved in
the fishery; this is not a new requirement, nor is that requirement
modified by the NS1 guidelines. The Mid-Atlantic FMPs have, since their
inception, approval, and implementation, contained these required
descriptions. Amendments to the FMPs, including the Omnibus Amendment,
update these listings. The Omnibus Amendment's affected environment
incorporates, by reference, detailed analyses of species involved in
each fishery. NMFS supports the Council's approach in the Omnibus
Amendment. The level of analyses requested by these collective comments
would be wholly appropriate if the Council had elected to add new
stocks to the fishery or include them as ecosystem component species.
As the Council did not, the level of fishery information provided is
sufficient and not grounds for disapproving the amendment.
The designation of sub-ACLs is not required by the MSA or NS1
Guidelines. Although sub-ACLs are utilized in some fisheries in other
regions, the Council decided that sub-ACLs were neither reasonable or
practical here, given the current constraints on fishery monitoring for
Mid-Atlantic stocks. All managed species catch, regardless of whether
the FMP is a Mid-Atlantic, South Atlantic, New England, or Secretarial
FMP, is fully accounted for under the respective ACLs, irrespective of
whether the catch is directed landings, dead discards in the directed
fishery, or dead discards incurred while targeting other species. With
regard to swordfish, the Secretary of Commerce, and not the Councils,
directly manages the fishery under an Atlantic Highly Migratory Species
FMP. 16 U.S.C. 1854(g). That Secretarial FMP accounts for the total
catch of swordfish, including that which occurs in the squid fishery
both as authorized retention for sale and as dead discards (if any).
The NS1 guidelines do not require the Secretary and the Council to
establish a swordfish sub-ACL in the Atlantic Mackerel, Squids, and
Butterfish FMP.
Comment 12: Several NGOs commented that NMFS should disapprove or
partially disapprove the Omnibus Amendment until approaches to OY are
revised by the Council consistent with the NS1 Guidelines.
Specifically, these commenters asserted that the Omnibus Amendment must
include OY evaluations for all Council-managed species, with specific
determination of where OY lies within the overall ABC/ACL/ACT framework
for each species. These commenters stated that more specificity must be
included in the process descriptions for how ACL or ACTs may be
adjusted for OY considerations (i.e., relevant economic, social, or
ecological factors), and provide that ACL should be reduced from ABC
for OY considerations. In addition, one commenter said it would not be
appropriate for OY considerations to be applied at the ACT level, as it
is a target, not a limit. Another commenter indicated that
specification of OY is missing from several Mid-Atlantic FMP
implementing regulations.
Response: The Omnibus Amendment's approach to OY is consistent with
the MSA and the NS1 guidelines. National Standard 1 of the MSA requires
that a fishery management plan or amendment prevent overfishing while
achieving, on a continuing basis, the optimum yield from each fishery
for the United States fishing industry. 16 U.S.C. 1851(a)(1). The MSA
defines ``optimum'' with respect to yield from a fishery as being
prescribed on the basis of maximum sustainable yield from the fishery,
as reduced by relevant economic, social or ecological factor. 16 U.S.C.
1802(33). The Omnibus Amendment amends existing FMPs to address new
annual catch limit and other requirements, but retains the FMPs'
existing, previously-approved processes for specifying and assessing
OY. The Council's FMPs all contain a process for assessing, specifying,
identifying, and adjusting OY, as needed, based on relevant economic,
social, and ecological factors for each species. The reauthorized MSA
did not change National Standard 1 or the definition of OY, and the
basic approach to OY is unchanged in the NS1 guidelines. Thus, there is
no need to revise the OY processes in the Omnibus Amendment.
The NS1 Guidelines provide that OY can be described at a fishery,
stock complex, or stock level and the OY specification process must be
included in FMPs or amendments. 50 CFR 600.310(c), (e)(3). While the
Councils have codified OY identification approaches for some individual
stocks, for other stocks, the Councils address OY at the fishery level,
consistent with what is required under the MSA and allowed under the
NS1 guidelines. Providing a clear description of OY considerations is
an important part of the specification process, and the existing FMPs
provide such descriptions.
Because the reauthorized MSA added ACLs and ABC, the NS1 guidelines
were revised to clarify the relationships between MSY, OY, ABC, and
ACL(s), and these relationships were also discussed in the Omnibus
Amendment (p. 27-28). The guidelines state that achieving OY on a
continuing basis means producing a long-term series of catches such
that the average catch is equal to OY and other conservation objectives
of the MSA are met. 50 CFR 600.310(e)(3)(i)(B). The guidelines further
state that an FMP must contain measures, including ACLs and AMs, to
achieve OY on a continuing basis. However, the MSA and guidelines do
not require that OY considerations be addressed when developing ACLs. A

[[Page 60612]]

Council may set an ACL lower than ABC to take into account factors
related to preventing overfishing or achieving OY, or it may set the
ACL equal to ABC and take these additional factors into account when
establishing ACTs. See final NS1 guidelines, 74 FR 3178, 3189
(explaining OY, ABC, ACT, ACL relationships in response 33).
Here, the Omnibus Amendment takes the latter approach. The Omnibus
Amendment rightly describes OY as the long-term average desired yield
from a fishery; OY is not, and should not be confused with, an annual
catch limit. Yield to a fishery and total catch are not
interchangeable; it is expected that the OY level will vary over time,
as scientific and management uncertainties, as well as dead discards
are reduced.
NMFS disagrees that the lack of an OY process description or
specific criteria for the monitoring committees' consideration to
specify OY is grounds for disapproving the amendment. The Omnibus
Amendment is designed to provide flexibility to the Council and their
committees to adapt their practices over time and in response to
changing fishery conditions while meeting its obligations under the
MSA, NS1 guidelines, and their FMPs. NMFS considers that the Omnibus
Amendment processes lend themselves to a transparent, participatory
process that will allow the public and interested parties a mechanism
to understand the concerns and issues raised by these commenters with
respect to OY.
Comment 13: One NGO stated that the Omnibus Amendment lacks
required ACT control rules and that the process for how management
uncertainty will be addressed is deficient, as it lacks a clearly
articulated policy. For these reasons, the commenter states the
amendment must be disapproved and these components revised.
Response: NMFS disagrees. The Council directed the monitoring
committees and staff to set ACTs on a sector-specific basis so that the
ACTs would accurately reflect the interannual and intrannual
variability in the sources of management uncertainty that vary by
sector. ACTs are not required under the NS1 guidelines but are
discretionary provisions that can be used as proactive AMs. Similarly,
ACT control rules are not required to be specified in the FMP by either
the MSA or the NS1 guidelines. The lack of a single over-arching
formulaic control rule does not weaken the Omnibus Amendment's
approaches for addressing management uncertainty through a descriptive
process. The sector-specific committees will consider all sources of
management uncertainty within their respective fisheries and provide
the technical basis, including any necessary control rules, along with
a recommendation for the necessary ACT. NMFS finds this approach to be
consistent with the NS1 guidelines that merely state that an ACT
control rule may be utilized as part of the ACT-setting process. Thus,
NMFS finds the Council's ACT approach wholly consistent with the NS1
guidelines' intent, and sufficient to provide the Council, through its
monitoring committees, a robust mechanism for categorizing and
quantifying applicable management uncertainty.
Comment 14: Several NGOs stated that the Omnibus Amendment is
deficient because it does not establish sufficient bycatch and catch
monitoring processes. Within these comments, one NGO stated that
failure to propose more extensive catch monitoring programs violates
NEPA. The commenters claim the Omnibus Amendment is fatally flawed, as
a result, and must be disapproved.
Response: NMFS disagrees that the Omnibus Amendment must consider
new or additional at-sea or other catch monitoring programs. NMFS also
disagrees that the Omnibus Amendment's approach for assessing total
catch is insufficient and does not agree that the amendment needs to be
disapproved based on the grounds raised by these comments. The Omnibus
Amendment considering a reasonable range of alternatives to address the
monitoring needs of the fisheries. Neither the MSA nor the NS1
guidelines require real-time catch monitoring or discard controls as
contemplated in the comment letters. Currently, such programs are
beyond the scope of existing resources. The Omnibus Amendment did not
explore these options as alternatives, as the alternatives would have
been neither reasonable nor feasible.
In lieu of monitoring total catch on a real-time basis, the Omnibus
Amendment contemplates a two-part examination of the fisheries:
Inseason monitoring of landings (through commercial dealer reports for
commercial landings and MRIP for recreational landings) and post-
fishing year accounting of dead discards. The monitoring committees
will consider the estimated discards for a given specification period
(annual or multi-year) and recommend any necessary reductions for
uncertainty associated with discard performance to the Council to
establish ACT(s). The estimated discards will then be removed from the
Council-adjusted ACT to set the landing level, by sector, to be
monitored inseason. Following the completion of the fishing year, the
final landings will be added to the re-estimated dead discards to
provide total catch. If this total catch exceeds the ACL, AMs will be
imposed as soon as possible, consistent with the Omnibus Amendment
approach for the species in question.
NMFS acknowledges that this accounting exercise to derive total
catch contains some uncertainty, particularly if the discard estimates
utilized to offset the ACT or to derive the landing limits before the
fishery occurs are variable. However, this is largely why the Council
elected to utilize ACTs, so that the likelihood of exceeding ACLs if
changes in discard estimates occur could be mitigated. This process is
consistent with NS1 guidance. While the Omnibus Amendment establishes a
strong process to ensure the likelihood of exceeding ACLs is infrequent
by requiring consideration of both scientific and management
uncertainty, there are AMs that will be imposed if this does occur, a
formal process for examining performance if ACLs are frequently
exceeded, and no requirement that catch be set so that ACL is never
exceeded. How robust discard estimates are also influences scientific
uncertainty as imprecise fishery-related mortality can alter the
perception of fishing mortality and stock size.
NMFS considers that the process for catch accounting will be
iterative as management under ACLs occurs over the next few years. The
process may well require adjustments, and the descriptive nature of the
Omnibus Amendment processes is such that the Council and NMFS have some
flexibility to make modifications that improve the process and
management such that advancements are realized and overfishing is
prevented. In addition, should greater monitoring resources or systems
become available, the Omnibus Amendment does not require modification
to incorporate the information generated by such systems. The data
could be utilized as soon as they become operational.
Comment 15: One commenter alleged that the Omnibus Amendment fails
to satisfy the MSA deadline of establishing ACLs and AMs by the 2011
FY, particularly because the Omnibus Amendment establishes a process
for setting catch, but does not actually provide specific limits for
the 2011 FY.
Response: NMFS asserts that the implementation of the final Omnibus
Amendment before the end of the 2011 FY satisfies the MSA requirement.

[[Page 60613]]

Comment 16: One commenter stated that the Omnibus Amendment must be
disapproved because ACT will not leave a margin for management
uncertainty and that ACTs are inadequate because they do not have AMs.
Response: NMFS disagrees. The use of ACTs in the Omnibus Amendment
is wholly consistent with NS1 guidelines. The NS1 guidelines do not
require that ACL be set lower than ABC, nor that ACT be used. ACTs are
not required in the MSA, but only ACLs and appropriate AMs. The
Secretary may assume that, if OFL = ABC = ACL = ACT, overfishing will
not be prevented, but the Council's process will likely include some
reductions at either the OFL to ABC level for scientific uncertainty,
at the ACL to ACT level for management uncertainty, or both. This
provides a strong system to prevent overfishing, consistent with the
NS1 guidelines.
Under the Omnibus Amendment measures, the Council is expected to
reduce catch from the ACL to the ACT to account for management
uncertainty. In years when an ACT is exceeded but the ACL is not, the
management buffer may be adjusted in subsequent years, but no AMs in
the form of lb-for-lb payback of the ACT overage are required. If the
ACL is exceeded in any year, AMs will be invoked as described in the
Omnibus Amendment for the FMP and species in question. There is no
requirement that lb-for-lb overage repayment AMs be triggered if ACTs
are exceeded. However, there are AMs operative within the ACT as there
will be closures when commercial and recreational landing limits are
reached. As such, ACTs will be used as proactive measures, to reduce
the likelihood that ACLs will be exceeded. The ACT is, in fact, itself
an AM (Sec. 600.310(f)(2)(v)).
Comment 17: One NGO stated that the Omnibus Amendment must be
disapproved because NMFS's proposed AM measures are not an accurate
reflection of the Council's intent. The commenters alleged that
recreational sector fishery lb-for-lb overage repayments must occur in
the year following the overage.
Response: The commenter may have misinterpreted the description of
the overage repayment system. The operation of the overage repayment
system is clarified here and is consistent with the Council's intent.
NMFS attempted to explain, in the proposed rule, that the data for
both commercial and recreational landings and discards will not likely
be available immediately following the FY conclusion. For example, when
ACLs are set for the 2013 FY, the final commercial and recreational
landings and discard information is not expected to be available until
after the first quarter of 2014. Given that the specification process
for 2014 will begin in mid-2013 and culminate in rulemaking for January
1 implementation the last quarter of 2013, it will not be possible to
make adjustments for any ACL overage when the initial 2014
specifications are established.
The Omnibus Amendment retains the existing commercial overage
repayments that were in place prior to the development of ACLs. NMFS
routinely makes adjustments to specifications for known commercial
overages and will continue to do so in the Omnibus Amendment process.
Using the prior example, if known commercial overages are available by
October 31, 2013, NMFS can adjust the 2014 commercial specifications
accordingly through rulemaking. Then, in late 2014, the totality of the
2013 commercial FY data will be examined to ensure that any additional
overages or adjustments resulting from incorporation of final
commercial landings information, if needed, will be performed for the
2015 commercial specifications. The system is configured so double
counting does not occur, but, as the example illustrates, it is
possible that commercial overage repayment AMs may occur 1 full year
removed from the FY in which they occurred. As stated before, this is
not new. Under the Omnibus Amendment, there will also be an examination
of commercial catch data (i.e., landings + dead discards). This process
may function similarly to the example or, using the example timeframe,
may occur in 2014 for application to the 2015 FY for a 2013 catch
overage of the ACL (i.e., dead discard caused overage of the ACL).
Recreational fisheries have not been managed in a system analogous
to the commercial example provided above. Landings data are not
available in as timely a fashion as commercial data. Using the example
years previously discussed, NMFS may only be able to evaluate 2013
recreational landings through June 2013 during the 2014 specification
rulemaking process. While it is possible that a recreational overage
may have occurred by that date, historic data indicate such an
occurrence should be rare. As a result, NMFS may not be able to make
informed examination of 2013 recreational overages until after the
first quarter in 2014. NMFS may make adjustments to the recreational
harvest limit when this information becomes available, through the
recreational management measures rulemaking, typically conducted in the
first and second quarters. However, if the final data are not available
until later in 2014, if there is no ongoing regulatory mechanism to
adjust the recreational harvest limit and recreational measures
concurrently or for other as of yet unforeseen reasons, NMFS may have
to wait to adjust the 2015 FY recreational sector ACL during 2014 for
an overage accrued in the 2013 recreational fishery.
The Omnibus Amendment provides the flexibility in describing how
AMs will function so that NMFS can ensure that any necessary
adjustments will occur consistent with the data necessary to evaluate
ACL performance. It is expected that these data systems and delivery
timing may improve in the future. Should this be the case, the Omnibus
Amendment provides flexibility for NMFS to modify the AM repayment
process, as needed, without needing to amend the ACL process. NMFS
considers that this system will function best if ACL overages are
avoided by well-established sector ACLs, mitigating the need to trigger
AMs all together. See response to comment 18 for additional
information.
Comment 18: One NGO commented that the description of the AM
process indicates that adjustments, through overage repayments, will be
made through the Council's specification process. The commenter states
that the Omnibus Amendment must be disapproved for this reason,
asserting that AMs must be automatic and non-discretionary.
Response: This is an apparent misunderstanding by the commenter. As
explained in the response to Comment 17, NMFS, not the Council, will
make automatic lb-for-lb overage repayments for ACL overages through
the specification rulemaking. The AMs are automatic and do not involve
discretion on either NMFS's or the Council's part. For this reason, the
AMs implemented by the Omnibus Amendment are consistent with the NS1
guidelines.
Comment 19: One commenter stated that the Omnibus Amendment must be
disapproved because it does not consider catch outside its
jurisdiction. The example cited was summer flounder, a Council-managed
species, which is captured and landed in the Atlantic sea scallop
fishery, managed by the New England Fishery Management Council. The
commenter alleged that the Omnibus Amendment fails to consider catch
from all sources and, thus, must be disapproved. The commenter also
indicated that the Omnibus Amendment failed to adequately examine
alternatives for sub-ACLs in examples such as the one

[[Page 60614]]

provided. In so doing, the commenter alleged that the Omnibus Amendment
violates NEPA.
Response: NMFS disagrees with the contention that the Omnibus
Amendment's approach for addressing total catch is fatally flawed. All
federally managed fish landed for commercial sale within the region,
irrespective of whether the fish are captured in a Council-managed
fishery or in a fishery managed by another Council or the Secretary,
will be counted toward the total annual landings for that species. This
method of accounting is not new, and will continue under the Omnibus
Amendment. Similarly, all dead discards of a species such as summer
flounder will be attributed to the total catch estimation of summer
flounder. Thus, the Omnibus Amendment's system of catch accounting
does, in fact, consider catch from all directed fishery and other
sources. The NS1 guidelines do not require the establishment of sub-
ACLs for species captured incidentally in other directed fisheries. See
response to comment 11 for additional information.
Comment 20: One commenter alleged that the decisions made to
implement the Omnibus Amendment are arbitrary, capricious, an abuse of
discretion, and otherwise not in accordance with law and, as such, are
a violation of the Administrative Procedure Act (APA) and must be set
aside as unlawful. The commenter did not provide specific information
in support of their general assertion that the APA had been violated by
implementing the Omnibus Amendment.
Response: NMFS disagrees. The Omnibus Amendments measures are in
accordance with the requirements of NS1 guidelines and the MSA and, as
such, are not arbitrary. The Omnibus Amendment measures were not
impulsively derived or implemented; instead, a lengthy, transparent
process was utilized by the Council, its committees, and the Fishery
Management Action Team (FMAT) tasked with developing alternatives and
measures. NMFS undertook all required elements of announcing the
amendment and proposed rule availability for review and comment and is
responding, in full, to all relevant comments provided on the amendment
and proposed measures. Neither the Council nor NMFS has abused
discretion in following the required development and implementation
processes required for the amendment. NMFS is confident that the APA
has not been violated in any manner and the Omnibus Amendment is being
implemented consistent with applicable laws.

Changes and Clarifications From the Proposed Rule

Atlantic bluefish. The process for deriving ACT and Total Allowable
Landings (TAL) was clarified. The proposed rule correctly outlined the
process required to derive ACT and TAL from the recommended ABC;
however, additional language on where the commercial and recreational
allocation shall be addressed was added for a more clear description.
These changes are consistent with both the proposed rule and the
Omnibus Amendment.
Atlantic mackerel. As was noted in the Omnibus Amendment proposed
rule, the Council took final action on Amendment 11 to the Atlantic
Mackerel, Squids, and Butterfish FMP (Amendment 11) in October 2010 and
NMFS published an Amendment 11 NOA and proposed rule on August 1, 2011
(76 FR 45742). While the proposed rule for Amendment 11 does contain a
proposed recreational fishery allocation for mackerel, the final
approval decision and final rule for Amendment 11 measures will occur
after the final Omnibus Amendment measures in this rule are effective.
Therefore, the final Omnibus Amendment measures reflect the various
Atlantic mackerel measures designed to function without a formal
recreational allocation. If the final Amendment 11 measures, when
approved, contain the recreational allocation for Atlantic mackerel,
the final rule to implement Amendment 11 measures will also modify
Omnibus Amendment measures, as needed.
Butterfish. In the interim between deeming the proposed Omnibus
Amendment regulations and this final rule, the Council initiated the
process to develop 2012 specifications for the Atlantic Mackerel,
Squids, and Butterfish FMP. During this process, the Council discovered
that the method for deriving the butterfish cap in the Loligo fishery
with respect to the OFL/ABC/ACT framework was not entirely clear in
either the Omnibus Amendment document or the proposed regulations. The
Council held discussion during its June 2011 meeting to clarify the
intent of the butterfish cap to be derived as a percentage of the ACT
rather than the ABC. Following this discussion, the Council provided a
comment on the proposed rule to clarify how the butterfish cap should
be devised under the OFL/ABC/ACT framework. NMFS agrees with the
Council's clarification and is implementing, though this final rule,
revisions to the butterfish regulations that are consistent with the
Council-revised information.
Summer flounder. In the interim between the publication of the NOA
and Omnibus Amendment proposed rule, the 2011 recreational management
measures were finalized (76 FR 38387, June 30, 2011). The amendatory
language with respect to summer flounder recreational management
measures has been revised from the proposed rule to reflect the final
2011 recreational management measures.
Relationship of ABC to ACL. NMFS has modified several erroneous
regulations for spiny dogfish, summer flounder, scup, black sea bass,
Atlantic bluefish, surfclam, ocean quahog, and tilefish that indicated
ACL could be set less than or equal to ABC. Several public comments
were received about the Omnibus Amendment's treatment of ABC in
relation to ACL, specifically if ACL could be reduced from the ABC
level. The Council's Omnibus Amendment EA document contains some
conflicting language on this matter, with language under the discussion
of OY (page 27-8) contemplating that adjustments based on OY
considerations could occur at either the ACL or ACT level; however,
examination of the species-specific information contained in the
document clearly articulates that ACL will be set equal to ABC. The
final regulations issued by this rule correctly indicate that ABC=ACL
for all species. Additional discussion of OY occurs in the Comment and
Responses section of this preamble.
Additional Editorial and Corrective Changes. Minor changes in
language not affecting the content or intent of the regulations have
been made between the proposed and final rules. These changes are
designed to improve readability, grammar, and punctuation; maintain
consistency between FMPs; and generally improve the final implementing
regulations.

Classification

The Administrator, Northeast Region, NMFS, determined that the
Omnibus Amendment to the Atlantic Mackerel, Squids, and Butterfish,
Atlantic Bluefish; Spiny Dogfish; Summer Flounder, Scup, and Black Sea
Bass; the Surfclam and Ocean Quahog; and the Tilefish FMPs is necessary
for the conservation and management of the Atlantic mackerel,
butterfish; Atlantic bluefish, spiny dogfish, summer flounder, scup,
black sea bass, surfclam, ocean quahog, and the tilefish fisheries and
that it is consistent with the MSA and other applicable laws.

[[Page 60615]]

This final rule has been determined to be not significant for
purposes of Executive Order 12866.
The Chief Council for Regulation of the Department of Commerce
certified to the Chief Council for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification. As a result, a regulatory flexibility
analysis was not required and none was prepared.

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: September 20, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons stated in the preamble, 50 CFR part 648 is amended
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

Sec. 648.13 [Amended]

0
2a. Section 648.13(i)(2)(iii) is amended by removing ``Sec.
648.123(a)(2), (3), and (4)'' and adding ``Sec. 648.125(a)(2), (3),
and (4)'' in its place.
0
2b. Section 648.14 is amended as follows:
0
a. Paragraph (o)(1)(vi) is amended by removing ``Sec. Sec. 648.122 and
648.123(a)'' and adding ``Sec. Sec. 648.124 and 648.125(a)'' in its
place.
0
b. Paragraph (u)(2)(vi) is amended by removing ``Sec. 648.291(d)(3) or
Sec. 648.291'' and adding ``Sec. 648.294(d)(3) or Sec. 648.295'' in
its place.
0
c. Paragraph (u)(2)(vii) is added to read as follows:

Sec. 648.14 Prohibitions.

* * * * *
(u) * * *
(2) * * *
(vii) Land or possess tilefish in or from the Tilefish Management
Unit, on a vessel issued a valid tilefish permit under this part, after
the incidental fishery is closed pursuant to Sec. 648.245(b), unless
fishing under a valid tilefish IFQ allocation permit as specified in
Sec. 648.249(a), or engaged in recreational fishing.
* * * * *

0
3. Section 648.20 is revised to read as follows:

Sec. 648.20 Mid-Atlantic Fishery Management Council ABC control
rules.

The SSC shall review the following criteria, and any additional
relevant information, to assign managed stocks to a specific control
rule level when developing ABC recommendations. The SSC shall review
the ABC control rule level assignment for stocks each time an ABC is
recommended. The ABC may be recommended for up to 3 years for all
stocks, with the exception of 5 years for spiny dogfish. The SSC may
deviate from the control rule methods or level criteria and recommend
an ABC that differs from the result of the ABC control rule
calculation; however, any such deviation must include the following: A
description of why the deviation is warranted, description of the
methods used to derive the alternative ABC, and an explanation of how
the deviation is consistent with National Standard 2.
(a) Level 1 criteria. (1) Assignment of a stock to Level 1 requires
the SSC to determine the following:
(i) All important sources of scientific uncertainty are captured in
the stock assessment model;
(ii) The probability distribution of the OFL is calculated within
the stock assessment and provides an adequate description of the OFL
uncertainty;
(iii) The stock assessment model structure and treatment of the
data prior to use in the model includes relevant details of the biology
of the stock, fisheries that exploit the stock, and data collection
methods;
(iv) The stock assessment provides the following estimates: Fishing
mortality rate (F) at MSY or an alternate maximum fishing mortality
threshold (MFMT) to define OFL, biomass, biological reference points,
stock status, OFL, and the respective uncertainties associated with
each value; and
(v) No substantial retrospective patterns exist in the stock
assessment estimates of fishing mortality, biomass, and recruitment.
(2) Level 1 ABC determination. Stocks assigned to Level 1 by the
SSC will have the ABC derived by applying acceptable probability of
overfishing from the MAFMC's risk policy found in Sec. 648.21(a)
through (d) to the probability distribution of the OFL.
(b) Level 2 criteria. (1) Assignment of a stock to Level 2 requires
the SSC to determine the following:
(i) Key features of the stock biology, the fisheries that exploit
it, and/or the data collection methods for stock information are
missing from the stock assessment;
(ii) The stock assessment provides reference points (which may be
proxies), stock status, and uncertainties associated with each;
however, the uncertainty is not fully promulgated through the stock
assessment model and/or some important sources of uncertainty may be
lacking;
(iii) The stock assessment provides estimates of the precision of
biomass, fishing mortality, and reference points; and
(iv) The accuracy of the minimum fishing mortality threshold and
projected future biomass is estimated in the stock assessment using ad
hoc methods.
(2) Level 2 ABC determination. Stocks assigned to Level 2 by the
SSC will have the ABC derived by applying acceptable probability of
overfishing from the MAFMC's risk policy found in Sec. 648.21(a)
through (d) to the probability distribution of the OFL.
(c) Level 3 criteria. (1) Assignment of a stock to Level 3 requires
the SSC to determine that the stock assessment attributes are the same
as those for a Level 2 assessment listed in Sec. 648.20(d)(1) through
(4), except that the stock assessment does not contain an estimated
probability distribution of OFL or the stock assessment provided OFL
probability distribution is judged by the SSC to not adequately reflect
uncertainty in the OFL estimate.
(2) Level 3 ABC determination. Stocks assigned to Level 3 will have
ABC derived by one of the following two methods:
(i) The SSC will derive the ABC by applying the acceptable
probability of overfishing from the MAFMC's risk policy found in Sec.
648.21(a) through (d) to an SSC-adjusted OFL probability distribution.
The SSC will use default levels of uncertainty in the adjusted OFL
probability distribution based on literature review and evaluation of
control rule performance; or,
(ii) If the SSC cannot develop an OFL distribution, a default
control rule of 75 percent of the FMSY value will be applied
to derive ABC.
(d) Level 4 criteria. (1) Assignment of a stock to Level 4 requires
the SSC to determine that none of the criteria for Levels 1-3 found in
Sec. 648.20(a) through (c) were met.
(2) Level 4 ABC determination. Stocks assigned to Level 4 will have
ABC derived using control rules developed on a case-by-case basis by
the SSC based on biomass and catch history and

[[Page 60616]]

application of the MAFMC's risk policy found in Sec. 648.21(a) through
(d).

0
4. Section 648.21 is revised to read as follows:

Sec. 648.21 Mid-Atlantic Fishery Management Council risk policy.

The risk policy shall be used by the SSC in conjunction with the
ABC control rules in Sec. 648.20(a) through (d) to ensure the MAFMC's
preferred tolerance for the risk of overfishing is addressed in the ABC
development and recommendation process.
(a) Stocks under a rebuilding plan. The probability of not
exceeding the F necessary to rebuild the stock within the specified
time frame (rebuilding F or FREBUILD) must be at least 50
percent, unless the default level is modified to a higher probability
for not exceeding the rebuilding F through the formal stock rebuilding
plan. A higher probability of not exceeding the rebuilding F would be
expressed as a value greater than 50 percent (e.g., 75-percent
probability of not exceeding rebuilding F, which corresponds to a 25-
percent probability of exceeding rebuilding F).
(b) Stocks not subject to a rebuilding plan. (1) For stocks
determined by the SSC to have an atypical life history, the maximum
probability of overfishing as informed by the OFL distribution will be
35 percent for stocks with a ratio of biomass (B) to biomass at MSY
(BMSY) of 1.0 or higher (i.e., the stock is at
BMSY or higher). The maximum probability of overfishing
shall decrease linearly from the maximum value of 35 percent as the B/
BMSY ratio becomes less than 1.0 (i.e., the stock biomass
less than BMSY) until the probability of overfishing becomes
zero at a B/BMSY ratio of 0.10. An atypical life history is
generally defined as one that has greater vulnerability to exploitation
and whose characteristics have not been fully addressed through the
stock assessment and biological reference point development process.
(2) For stocks determined by the SSC to have a typical life
history, the maximum probability of overfishing as informed by the OFL
distribution will be 40 percent for stocks with a ratio of B to
BMSY of 1.0 or higher (i.e., the stock is at BMSY
or higher). The maximum probability of overfishing shall decrease
linearly from the maximum value of 40 percent as the B/BMSY
ratio becomes less 1.0 (stock biomass less than BMSY) until
the probability of overfishing becomes zero at a B/BMSY
ratio of 0.10. Stocks with typical life history are those not meeting
the criteria in paragraph (b)(1) of this section.
(c) For instances in which the application of the risk policy
approaches in either paragraph (b)(1) or (2) of this section using OFL
distribution, as applicable given life history determination, results
in a more restrictive ABC recommendation than the calculation of ABC
derived from the use of FREBUILD at the MAFMC-specified
overfishing risk level as outlined in paragraph (a) of this section,
the SSC shall recommend to the MAFMC the lower of the ABC values.
(d) If an OFL cannot be determined from the stock assessment, or if
a proxy is not provided by the SSC during the ABC recommendation
process, ABC levels may not be increased until such time that an OFL
has been identified.

0
5. Section 648.22 is revised to read as follows:

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

(a) Initial recommended annual specifications. The Atlantic
Mackerel, Squid, and Butterfish Monitoring Committee (Monitoring
Committee) shall meet annually to develop and recommend the following
specifications for consideration by the Squid, Mackerel, and Butterfish
Committee of the MAFMC:
(1) Initial OY (IOY), including Research Set-Aside (RSA), DAH, and
DAP for Illex squid, which, subject to annual review, may be specified
for a period of up to 3 years;
(2) ACL; ACT including RSA, DAH, DAP; bycatch level of the TALFF,
if any; and butterfish mortality cap for the Loligo fishery for
butterfish; which, subject to annual review, may be specified for a
period of up to 3 years;
(3) ACL; commercial ACT, including RSA, DAH, DAP; JVP if any;
TALFF, if any; and recreational ACT, including RSA for mackerel; which,
subject to annual review, may be specified for a period of up to 3
years. The Monitoring Committee may also recommend that certain ratios
of TALFF, if any, for mackerel to purchases of domestic harvested fish
and/or domestic processed fish be established in relation to the
initial annual amounts.
(4) IOY, including RSA, DAH, and DAP for Loligo squid, which,
subject to annual review, may be specified for a period of up to 3
years; and
(5) Inseason adjustment, upward or downward, to the specifications
for Loligo squid, as specified in paragraph (e) of this section.
(b) Guidelines. As the basis for its recommendations under
paragraph (a) of this section, the Monitoring Committee shall review
the best available data to recommend specifications consistent with the
following:
(1) Loligo and/or Illex squid. (i) The ABC for any fishing year
must be either the maximum OY, or a lower amount, if stock assessments
indicate that the potential yield is less than the maximum OY. The OYs
specified during a fishing year may not exceed the following amounts:
(A) Loligo--The catch associated with a fishing mortality rate of
FThreshold.
(B) Illex--Catch associated with a fishing mortality rate of
FMSY.
(ii) IOY is a modification of ABC based on social and economic
factors. The IOY is composed of RSA and DAH. RSA will be based on
requests for research quota as described in paragraph (g) of this
section. DAH will be set after deduction for RSA, if applicable.
(2) Mackerel--(i) ABC. The MAFMC's SSC shall recommend an ABC to
the MAFMC, as described in Sec. 648.20. The mackerel ABC is reduced
from the OFL based on an adjustment for scientific uncertainty; the ABC
must be less than or equal to the OFL.
(ii) ACL. The ACL or Domestic ABC is calculated using the formula
ACL = ABC - C, where C is the estimated catch of mackerel in Canadian
waters for the upcoming fishing year.
(iii) OY. OY may not exceed the ACL, and must take into account the
need to prevent overfishing while allowing the fishery to achieve OY on
a continuing basis. OY is prescribed on the basis of MSY, as reduced by
social, economic, and ecological factors.
(iv) ACT. The Monitoring Committee shall identify and review
relevant sources of management uncertainty to recommend ACTs for the
commercial and recreational fishing sectors as part of the
specifications process.
(A) Commercial sector ACT. Commercial ACT is composed of RSA, DAH,
dead discards, and TALFF. RSA will be based on requests for research
quota as described in paragraph (g) of this section. DAH, DAP, and JVP
will be set after deduction for RSA, if applicable, and must be
projected by reviewing data from sources specified in paragraph (b) of
this section and other relevant data, including past domestic landings,
projected amounts of mackerel necessary for domestic processing and for
joint ventures during the fishing year, projected recreational
landings, and other data pertinent for such a projection. The JVP
component of DAH is the portion of DAH that domestic processors either
cannot or will not use. Economic considerations for the establishment
of JVP and TALFF include:
(1) Total world export potential of mackerel producing countries.

[[Page 60617]]

(2) Total world import demand of mackerel consuming countries.
(3) U.S. export potential based on expected U.S. harvests, expected
U.S. consumption, relative prices, exchange rates, and foreign trade
barriers.
(4) Increased/decreased revenues to the U.S. from foreign fees.
(5) Increased/decreased revenues to U.S. harvesters (with/without
joint ventures).
(6) Increased/decreased revenues to U.S. processors and exporters.
(7) Increases/decreases in U.S. harvesting productivity due to
decreases/increases in foreign harvest.
(8) Increases/decreases in U.S. processing productivity.
(9) Potential impact of increased/decreased TALFF on foreign
purchases of U.S. products and services and U.S.-caught fish, changes
in trade barriers, technology transfer, and other considerations.
(B) Recreational sector ACT. Recreational ACT is composed of RSA,
dead discards, and the Recreational Harvest Limit (RHL).
(v) Performance review. The Squid, Mackerel, and Butterfish
Committee shall conduct a detailed review of fishery performance
relative to the mackerel ACL at least every 5 years.
(A) If the ACL is exceeded with a frequency greater than 25 percent
(i.e., more than once in 4 years or any two consecutive years), the
Squid, Mackerel, and Butterfish Monitoring Committee will review
fishery performance information and make recommendations to the MAFMC
for changes in measures intended to ensure ACLs are not exceeded as
frequently.
(B) The MAFMC may specify more frequent or more specific ACL
performance review criteria as part of a stock rebuilding plan
following a determination that a stock has become overfished.
(C) Performance reviews shall not substitute for annual reviews
that occur to ascertain if prior year ACLs have been exceeded, but may
be conducted in conjunction with such reviews.
(3) Butterfish--(i) ABC. The MAFMC's SSC shall recommend an ABC to
the MAFMC, as described in Sec. 648.20. The butterfish ABC is reduced
from the OFL based on an adjustment for scientific uncertainty; the ABC
must be less than or equal to the OFL.
(ii) ACL. The butterfish ACL will be set equal to the butterfish
ABC.
(iii) OY. OY may not exceed the ACL, and must take into account the
need to prevent overfishing while allowing the fishery to achieve OY on
a continuing basis. OY is prescribed on the basis of MSY, as reduced by
social, economic, and ecological factors.
(iv) ACT. The Monitoring Committee shall identify and review
relevant sources of management uncertainty to recommend the butterfish
ACT as part of the specifications process. The ACT is composed of RSA,
DAH, dead discards, and bycatch TALFF that is equal to 0.08 percent of
the allocated portion of the mackerel TALFF. RSA will be based on
requests for research quota as described in paragraph (g) of this
section. DAH and bycatch TALFF will be set after deduction for RSA, if
applicable.
(v) The butterfish mortality cap will be based on the ACT and
allocated to the Loligo fishery as follows: Trimester I--65 percent;
Trimester II--3.3 percent; and Trimester III--31.7 percent.
(vi) Any underages of the butterfish mortality cap for Trimesters I
or II will be applied to Trimester III of the same year, and any
overages of the butterfish mortality cap for Trimesters I and II will
be applied to Trimester III of the same year.
(vii) Performance review. The Squid, Mackerel, and Butterfish
Committee shall conduct a detailed review of fishery performance
relative to the butterfish ACL in conjunction with review for the
mackerel fishery, as outlined in this section.
(c) Recommended measures. Based on the review of the data described
in paragraph (b) of this section and requests for research quota as
described in paragraph (g) of this section, the Monitoring Committee
will recommend to the Squid, Mackerel, and Butterfish Committee the
measures from the following list that it determines are necessary to
ensure that the specifications are not exceeded:
(1) RSA set from a range of 0 to 3 percent of:
(i) The IOY for Loligo and/or Illex.
(ii) The commercial and/or recreational ACT for mackerel.
(iii) The ACT for butterfish.
(2) Commercial quotas, set after reductions for research quotas.
(3) The amount of Loligo, Illex, and butterfish that may be
retained, possessed, and landed by vessels issued the incidental catch
permit specified in Sec. 648.4(a)(5)(ii).
(4) Commercial minimum fish sizes.
(5) Commercial trip limits.
(6) Commercial seasonal quotas/closures for Loligo and Illex.
(7) Minimum mesh sizes.
(8) Commercial gear restrictions.
(9) Recreational harvest limit, set after reductions for research
quotas.
(10) Recreational minimum fish size.
(11) Recreational possession limits.
(12) Recreational season.
(13) Changes, as appropriate, to the Northeast Region SBRM,
including the coefficient of variation (CV) based performance standard,
fishery stratification, and/or reports.
(14) Modification of existing accountability measures (AMs)
utilized by the Monitoring Committee.
(d) Annual fishing measures. (1) The Squid, Mackerel, and
Butterfish Committee will review the recommendations of the Monitoring
Committee. Based on these recommendations and any public comment
received thereon, the Squid, Mackerel, and Butterfish Committee must
recommend to the MAFMC appropriate specifications and any measures
necessary to assure that the specifications will not be exceeded. The
MAFMC will review these recommendations and, based on the
recommendations and any public comment received thereon, must recommend
to the Regional Administrator appropriate specifications and any
measures necessary to assure that the ACL will not be exceeded. The
MAFMC's recommendations must include supporting documentation, as
appropriate, concerning the environmental, economic, and social impacts
of the recommendations. The Regional Administrator will review the
recommendations and will publish a proposed rule in the Federal
Register proposing specifications and any measures necessary to assure
that the specifications will not be exceeded and providing a 30-day
public comment period. If the proposed specifications differ from those
recommended by the MAFMC, the reasons for any differences must be
clearly stated and the revised specifications must satisfy the criteria
set forth in this section. The MAFMC's recommendations will be
available for inspection at the office of the Regional Administrator
during the public comment period. If the annual specifications for
squid, mackerel, and butterfish are not published in the Federal
Register prior to the start of the fishing year, the previous year's
annual specifications, excluding specifications of TALFF, will remain
in effect. The previous year's specifications will be superceded as of
the effective date of the final rule implementing the current year's
annual specifications.
(2) The Regional Administrator will make a final determination
concerning the specifications for each species and any measures
necessary to assure that the specifications will not be exceeded. After
the Regional Administrator considers all relevant data and any

[[Page 60618]]

public comments, notification of the final specifications and any
measures necessary to assure that the specifications will not be
exceeded and responses to the public comments will be published in the
Federal Register. If the final specification amounts differ from those
recommended by the MAFMC, the reason(s) for the difference(s) must be
clearly stated and the revised specifications must be consistent with
the criteria set forth in paragraph (b) of this section.
(e) Inseason adjustments. The specifications established pursuant
to this section may be adjusted by the Regional Administrator, in
consultation with the MAFMC, during the fishing year by publishing
notification in the Federal Register.
(f) Distribution of annual Loligo squid commercial quota. (1) A
commercial quota for Loligo squid will be allocated annually into
trimester periods, based on the following percentages: Trimester I
(January-April)--43.0 percent; Trimester II (May-August)--17.0 percent;
and Trimester III (September-December)--40.0 percent.
(2) Any underages of commercial period quota for Trimester I that
are greater than 25 percent of the Trimester I quota will be
reallocated to Trimesters II and III of the same year. The reallocation
of quota from Trimester I to Trimester II is limited, such that the
Trimester II quota may only be increased by 50 percent; the remaining
portion of the underage will be reallocated to Trimester III. Any
underages of commercial period quota for Trimester I that are less than
25 percent of the Trimester I quota will be applied to Trimester III of
the same year. Any overages of commercial quota for Trimesters I and II
will be subtracted from Trimester III of the same year.
(g) Research set-aside (RSA) quota. Prior to the MAFMC's quota-
setting meetings:
(1) NMFS will publish a Request for Proposals (RFP) in the Federal
Register, consistent with procedures and requirements established by
the NOAA Grants Office, to solicit proposals from industry for the
upcoming fishing year, based on research priorities identified by the
MAFMC.
(2) NMFS will convene a review panel, including the MAFMC's
Comprehensive Management Committee and technical experts, to review
proposals submitted in response to the RFP.
(i) Each panel member will recommend which research proposals
should be authorized to utilize research quota, based on the selection
criteria described in the RFP.
(ii) The NEFSC Director and the NOAA Grants Office will consider
each panel member's recommendation, and provide final approval of the
projects. The Regional Administrator may, when appropriate, exempt
selected vessel(s) from regulations specified in each of the respective
FMPs through written notification to the project proponent.
(3) The grant awards approved under the RFPs will be for the
upcoming fishing year. Proposals to fund research that would start
prior to, or that would end after the fishing year, will not be
eligible for consideration. All research and/or compensation trips must
be completed within the fishing year for which the research grant was
awarded.
(4) Research projects will be conducted in accordance with
provisions approved and provided in an Exempted Fishing Permit (EFP)
issued by the Regional Administrator.
(5) If a proposal is disapproved by the NEFSC Director or the NOAA
Grants Office, or if the Regional Administrator determines that the
allocated research quota cannot be utilized by a project, the Regional
Administrator shall reallocate the unallocated or unused amount of
research quota to the respective commercial and recreational fisheries
by publication of a notice in the Federal Register in compliance with
the Administrative Procedure Act, provided:
(i) The reallocation of the unallocated or unused amount of
research quota is in accord with National Standard 1, and can be
available for harvest before the end of the fishing year for which the
research quota is specified; and
(ii) Any reallocation of unallocated or unused research quota shall
be consistent with the proportional division of quota between the
commercial and recreational fisheries in the relevant FMP and allocated
to the remaining quota periods for the fishing year proportionally.
(6) Vessels participating in approved research projects may be
exempted from certain management measures by the Regional
Administrator, provided that one of the following analyses of the
impacts associated with the exemptions is provided:
(i) The analysis of the impacts of the requested exemptions is
included as part of the annual quota specification packages submitted
by the MAFMC; or
(ii) For proposals that require exemptions that extend beyond the
scope of the analysis provided by the MAFMC, applicants may be required
to provide additional analysis of impacts of the exemptions before
issuance of an EFP will be considered, as specified in the EFP
regulations at Sec. 648.12(b).

0
6. Section 648.23 is revised to read as follows:

Sec. 648.23 Mackerel, squid, and butterfish gear restrictions.

(a) Mesh restrictions and exemptions. (1) Vessels subject to the
mesh restrictions in this paragraph (a) may not have available for
immediate use any net, or any piece of net, with a mesh size smaller
than that required.
(2) Owners or operators of otter trawl vessels possessing 1,000 lb
(0.45 mt) or more of butterfish harvested in or from the EEZ may only
fish with nets having a minimum codend mesh of 3 inches (76 mm) diamond
mesh, inside stretch measure, applied throughout the codend for at
least 100 continuous meshes forward of the terminus of the net, or, for
codends with less than 100 meshes, the minimum mesh size codend shall
be a minimum of one-third of the net, measured from the terminus of the
codend to the headrope.
(3) Owners or operators of otter trawl vessels possessing Loligo
harvested in or from the EEZ may only fish with nets having a minimum
mesh size of 2\1/8\ inches (54 mm) during Trimesters I (Jan-Apr) and
III (Sept-Dec), or 1\7/8\ inches (48 mm) during Trimester II (May-Aug),
diamond mesh, inside stretch measure, applied throughout the codend for
at least 150 continuous meshes forward of the terminus of the net, or,
for codends with less than 150 meshes, the minimum mesh size codend
shall be a minimum of one-third of the net measured from the terminus
of the codend to the headrope, unless they are fishing consistent with
exceptions specified in paragraph (b) of this section.
(i) Net obstruction or constriction. Owners or operators of otter
trawl vessels fishing for and/or possessing Loligo shall not use any
device, gear, or material, including, but not limited to, nets, net
strengtheners, ropes, lines, or chafing gear, on the top of the
regulated portion of a trawl net that results in an effective mesh
opening of less than 2\1/8\ inches (54 mm) during Trimesters I (Jan-
Apr) and III (Sept-Dec), or 1\7/8\ inches (48 mm) during Trimester II
(May-Aug), diamond mesh, inside stretch measure. ``Top of the regulated
portion of the net'' means the 50 percent of the entire regulated
portion of the net that would not be in contact with the ocean bottom
if, during a tow, the regulated portion of the net were laid flat on
the ocean floor. However, owners or operators of otter trawl vessels
fishing for and/or possessing Loligo may use net strengtheners
(covers), splitting straps, and/or bull ropes or wire around the entire
circumference of the codend,

[[Page 60619]]

provided they do not have a mesh opening of less than 5 inches (12.7
cm) diamond mesh, inside stretch measure. For the purposes of this
paragraph (a)(3)(i), head ropes are not to be considered part of the
top of the regulated portion of a trawl net.
(ii) Illex fishery. Owners or operators of otter trawl vessels
possessing Loligo harvested in or from the EEZ and fishing during the
months of June, July, August, and September for Illex seaward of the
following coordinates (copies of a map depicting this area are
available from the Regional Administrator upon request) are exempt from
the Loligo gear requirements in paragraph (a)(3) of this section,
provided they do not have available for immediate use, as defined in
paragraph (b) of this section, any net, or any piece of net, with a
mesh size less than 1\7/8\ inches (48 mm) diamond mesh or any net, or
any piece of net, with mesh that is rigged in a manner that is
prohibited by paragraph (a)(3) of this section, when the vessel is
landward of the specified coordinates.

------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
M1................................ 43[deg]58.0' 67[deg]22.0'
M2................................ 43[deg]50.0' 68[deg]35.0'
M3................................ 43[deg]30.0' 69[deg]40.0'
M4................................ 43[deg]20.0' 70[deg]00.0'
M5................................ 42[deg]45.0' 70[deg]10.0'
M6................................ 42[deg]13.0' 69[deg]55.0'
M7................................ 41[deg]00.0' 69[deg]00.0'
M8................................ 41[deg]45.0' 68[deg]15.0'
M9................................ 42[deg]10.0' 67[deg]10.0'
M10............................... 41[deg]18.6' 66[deg]24.8'
M11............................... 40[deg]55.5' 66[deg]38.0'
M12............................... 40[deg]45.5' 68[deg]00.0'
M13............................... 40[deg]37.0' 68[deg]00.0'
M14............................... 40[deg]30.0' 69[deg]00.0'
M15............................... 40[deg]22.7' 69[deg]00.0'
M16............................... 40[deg]18.7' 69[deg]40.0'
M17............................... 40[deg]21.0' 71[deg]03.0'
M18............................... 39[deg]41.0' 72[deg]32.0'
M19............................... 38[deg]47.0' 73[deg]11.0'
M20............................... 38[deg]04.0' 74[deg]06.0'
M21............................... 37[deg]08.0' 74[deg]46.0'
M22............................... 36[deg]00.0' 74[deg]52.0'
M23............................... 35[deg]45.0' 74[deg]53.0'
M24............................... 35[deg]28.0' 74[deg]52.0'
------------------------------------------------------------------------

(4) Mackerel, squid, and butterfish bottom trawling restricted
areas. (i) Oceanographer Canyon. No permitted mackerel, squid, or
butterfish vessel may fish with bottom trawl gear in the Oceanographer
Canyon or be in the Oceanographer Canyon unless transiting. Vessels may
transit this area provided the bottom trawl gear is stowed in
accordance with the provisions of paragraph (b) of this section.
Oceanographer Canyon is defined by straight lines connecting the
following points in the order stated (copies of a chart depicting this
area are available from the Regional Administrator upon request):

Oceanographer Canyon
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
OC1............................... 40[deg]10.0' 68[deg]12.0'
OC2............................... 40[deg]24.0' 68[deg]09.0'
OC3............................... 40[deg]24.0' 68[deg]08.0'
OC4............................... 40[deg]10.0' 67[deg]59.0'
OC1............................... 40[deg]10.0' 68[deg]12.0'
------------------------------------------------------------------------

(ii) Lydonia Canyon. No permitted mackerel, squid, or butterfish
vessel may fish with bottom trawl gear in the Lydonia Canyon or be in
the Lydonia Canyon unless transiting. Vessels may transit this area
provided the bottom trawl gear is stowed in accordance with the
provisions of paragraph (b) of this section. Lydonia Canyon is defined
by straight lines connecting the following points in the order stated
(copies of a chart depicting this area are available from the Regional
Administrator upon request):

Lydonia Canyon
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
LC1............................... 40[deg]16.0' 67[deg]34.0'
LC2............................... 40[deg]16.0' 67[deg]42.0'
LC3............................... 40[deg]20.0' 67[deg]43.0'
LC4............................... 40[deg]27.0' 67[deg]40.0'
LC5............................... 40[deg]27.0' 67[deg]38.0'
LC1............................... 40[deg]16.0' 67[deg]34.0'
------------------------------------------------------------------------

(b) Definition of ``not available for immediate use.'' Gear that
is shown not to have been in recent use and that is stowed in
conformance with one of the following methods is considered to be not
available for immediate use:
(1) Nets--(i) Below-deck stowage. (A) The net is stored below the
main working deck from which it is deployed and retrieved;
(B) The towing wires, including the leg wires, are detached from
the net; and
(C) It is fan-folded (flaked) and bound around its circumference.
(ii) On-deck stowage. (A) The net is fan-folded (flaked) and bound
around its circumference;
(B) It is securely fastened to the deck or rail of the vessel; and
(C) The towing wires, including the leg wires, are detached from
the net.
(iii) On-reel stowage. (A) The net is on a reel, its entire surface
is covered with canvas or other similar opaque material, and the canvas
or other material is securely bound;
(B) The towing wires are detached from the net; and
(C) The codend is removed and stored below deck.
(iv) On-reel stowage for vessels transiting the Gulf of Maine
Rolling Closure Areas, the Georges Bank Seasonal Area Closure, and the
Conditional Gulf of Maine Rolling Closure Area.
(A) The net is on a reel, its entire surface is covered with canvas
or other similar opaque material, and the canvas or other material is
securely bound;
(B) The towing wires are detached from the doors; and
(C) No containment rope, codend tripping device, or other mechanism
to close off the codend is attached to the codend.
(2) Scallop dredges. (i) The towing wire is detached from the
scallop dredge, the towing wire is completely reeled up onto the winch,
the dredge is secured, and the dredge or the winch is covered so that
it is rendered unusable for fishing; or
(ii) The towing wire is detached from the dredge and attached to a
bright-colored poly ball no less than 24 inches (60.9 cm) in diameter,
with the towing wire left in its normal operating position (through the
various blocks) and either is wound back to the first block (in the
gallows) or is suspended at the end of the lifting block where its
retrieval does not present a hazard to the crew and where it is readily
visible from above.
(3) Hook gear (other than pelagic). All anchors and buoys are
secured and all hook gear, including jigging machines, is covered.
(4) Sink gillnet gear. All nets are covered with canvas or other
similar material and lashed or otherwise securely fastened to the deck
or rail, and all buoys larger than 6 inches (15.24 cm) in diameter,
high flyers, and anchors are disconnected.
(5) Other methods of stowage. Any other method of stowage
authorized in writing by the Regional Administrator and subsequently
published in the Federal Register.
(c) Mesh obstruction or constriction. The owner or operator of a
fishing vessel shall not use any mesh construction, mesh configuration,
or other means that effectively decreases the mesh size below the
minimum mesh size, except that a liner may be used to close the opening
created by the rings in the aftermost portion of the net, provided the
liner extends no more than 10 meshes forward of the aftermost portion
of the net. The inside webbing of the codend shall be the same
circumference or less than the outside webbing (strengthener). In
addition, the inside webbing shall not be more than 2 ft (61 cm) longer
than the outside webbing.

0
7. Section 648.24 is revised to read as follows:

[[Page 60620]]

Sec. 648.24 Fishery closures and accountability measures.

(a) Fishery closure procedures--(1) Loligo. NMFS shall close the
directed fishery in the EEZ for Loligo when the Regional Administrator
projects that 90 percent of the Loligo quota is harvested in Trimesters
I and II, and when 95 percent of the Loligo DAH has been harvested in
Trimester III. The closure of the directed fishery shall be in effect
for the remainder of that fishing period, with incidental catches
allowed as specified at Sec. 648.26.
(i) If the Regional Administrator determines that the Trimester I
closure threshold has been under-harvested by 25 percent or more, then
the amount of the underharvest shall be reallocated to Trimester II and
Trimester III, as specified at Sec. 648.22(f)(2), through notice in
the Federal Register.
(ii) [Reserved]
(2) Illex. NMFS shall close the directed Illex fishery in the EEZ
when the Regional Administrator projects that 95 percent of the Illex
DAH is harvested. The closure of the directed fishery shall be in
effect for the remainder of that fishing period, with incidental
catches allowed as specified at Sec. 648.26.
(b) Mackerel AMs. (1) Mackerel commercial sector EEZ closure. NMFS
shall close the commercial mackerel fishery in the EEZ when the
Regional Administrator projects that 90 percent of the mackerel DAH is
harvested, if such a closure is necessary to prevent the DAH from being
exceeded. The closure of the commercial fishery shall be in effect for
the remainder of that fishing year, with incidental catches allowed as
specified in Sec. 648.26. When the Regional Administrator projects
that the DAH for mackerel shall be landed, NMFS shall close the
commercial mackerel fishery in the EEZ, and the incidental catches
specified for mackerel in Sec. 648.26 will be prohibited.
(2) Mackerel commercial landings overage repayment. If the mackerel
ACL is exceeded, and commercial fishery landings are responsible for
the overage, then landings in excess of the DAH will be deducted from
the DAH the following year, as a single-year adjustment to the DAH.
(3) Mackerel recreational sector EEZ closure. NMFS shall close the
recreational mackerel fishery in the EEZ when the Regional
Administrator determines that recreational landings have exceeded the
RHL. This determination shall be based on observed landings and will
not utilize projections of future data.
(4) Mackerel recreational landings overage repayment. If the
mackerel ACL is exceeded, and the recreational fishery landings are
responsible for the overage, then landings in excess of the RHL will be
deducted from the RHL for the following year, as a single-year
adjustment.
(5) Non-landing AMs, by sector. In the event that the ACL is
exceeded, and that the overage has not been accommodated through other
landing-based AMs, but is attributable to either the commercial or
recreational sector (such as research quota overages, dead discards in
excess of those otherwise accounted for in management uncertainty, or
other non-landing overages), then the exact amount, in pounds, by which
the sector ACT was exceeded will be deducted from the following year,
as a single-year adjustment.
(6) Mackerel ACL overage evaluation. The ACL will be evaluated
based on a single-year examination of total catch (landings and
discards). Both landings and dead discards will be evaluated in
determining if the ACL has been exceeded. NMFS shall make
determinations about overages and implement any changes to the ACL, in
accordance with the Administrative Procedure Act, through notification
in the Federal Register, by March 31 of the fishing year in which the
deductions will be made.
(c) Butterfish AMs--(1) Butterfish EEZ closure. NMFS shall close
the directed butterfish fishery in the EEZ when the Regional
Administrator projects that 80 percent of the butterfish DAH has been
harvested. The closure of the directed fishery shall be in effect for
the remainder of that fishing year, with incidental catches allowed as
specified at Sec. 648.26.
(2) Butterfish ACL overage repayment. If the butterfish ACL is
exceeded, then catch in excess of the ACL will be deducted from the ACL
the following year, as a single-year adjustment.
(3) Butterfish mortality cap on the Loligo fishery. NMFS shall
close the directed fishery in the EEZ for Loligo when the Regional
Administrator projects that 80 percent of the butterfish mortality cap
has been harvested in Trimester I, and/or when 90 percent of the
butterfish mortality cap has been harvested in Trimester III.
(4) Butterfish ACL overage evaluation. The ACL will be evaluated
based on a single-year examination of total catch (landings and
discards). Both landings and dead discards will be evaluated in
determining if the ACL has been exceeded. NMFS shall make
determinations about overages and implement any changes to the ACL, in
accordance with the Administrative Procedure Act, through notification
in the Federal Register, by March 31 of the fishing year in which the
deductions will be made.
(d) Notification. Upon determining that a closure is necessary, the
Regional Administrator will notify, in advance of the closure, the
Executive Directors of the MAFMC, NEFMC, and SAFMC; mail notification
of the closure to all holders of mackerel, squid, and butterfish
fishery permits at least 72 hours before the effective date of the
closure; provide adequate notice of the closure to recreational
participants in the fishery; and publish notification of closure in the
Federal Register.

0
8. Section 648.25 is revised to read as follows:

Sec. 648.25 Atlantic Mackerel, squid, and butterfish framework
adjustments to management measures.

(a) Within season management action. The MAFMC may, at any time,
initiate action to add or adjust management measures within the
Atlantic Mackerel, Squid, and Butterfish FMP if it finds that action is
necessary to meet or be consistent with the goals and objectives of the
FMP.
(1) Adjustment process. The MAFMC shall develop and analyze
appropriate management actions over the span of at least two MAFMC
meetings. The MAFMC must provide the public with advance notice of the
availability of the recommendation(s), appropriate justification(s) and
economic and biological analyses, and the opportunity to comment on the
proposed adjustment(s) at the first meeting and prior to and at the
second MAFMC meeting. The MAFMC's recommendations on adjustments or
additions to management measures must come from one or more of the
following categories: Adjustments within existing ABC control rule
levels; adjustments to the existing MAFMC risk policy; introduction of
new AMs, including sub-ACTs; minimum fish size; maximum fish size; gear
restrictions; gear requirements or prohibitions; permitting
restrictions, recreational possession limit; recreational seasons;
closed areas; commercial seasons; commercial trip limits; commercial
quota system, including commercial quota allocation procedure and
possible quota set-asides to mitigate bycatch; recreational harvest
limit; annual specification quota setting process; FMP Monitoring
Committee composition and process; description and identification of
EFH (and fishing gear management measures that impact EFH); description
and identification of habitat areas of particular concern; overfishing
definition and related thresholds and targets; regional gear
restrictions;

[[Page 60621]]

regional season restrictions (including option to split seasons);
restrictions on vessel size (LOA and GRT) or shaft horsepower; changes
to the Northeast Region SBRM (including the CV-based performance
standard, the means by which discard data are collected/obtained,
fishery stratification, reports, and/or industry-funded observers or
observer set-aside programs); any other management measures currently
included in the FMP, set aside quota for scientific research, regional
management, and process for inseason adjustment to the annual
specification. Measures contained within this list that require
significant departures from previously contemplated measures or that
are otherwise introducing new concepts may require amendment of the FMP
instead of a framework adjustment.
(2) MAFMC recommendation. After developing management actions and
receiving public testimony, the MAFMC shall make a recommendation to
the Regional Administrator. The MAFMC's recommendation must include
supporting rationale, if management measures are recommended, an
analysis of impacts, and a recommendation to the Regional Administrator
on whether to issue the management measures as a final rule. If the
MAFMC recommends that the management measures should be issued as a
final rule, the MAFMC must consider at least the following factors, and
provide support and analysis for each factor considered:
(i) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether the regulations would have to be in place
for an entire harvest/fishing season.
(ii) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the recommended management measures.
(iii) Whether there is an immediate need to protect the resource.
(iv) Whether there will be a continuing evaluation of management
measures following their implementation as a final rule.
(3) NMFS action. If the MAFMC's recommendation includes adjustments
or additions to management measures and, after reviewing the MAFMC's
recommendation and supporting information:
(i) If NMFS concurs with the MAFMC's recommended management
measures and determines that the recommended management measures should
be issued as a final rule based on the factors specified in paragraph
(a)(2) of this section, the measures will be issued as a final rule in
the Federal Register.
(ii) If NMFS concurs with the MAFMC's recommended management
measures and determines that the recommended management measures should
be published first as a proposed rule, the measures will be published
as a proposed rule in the Federal Register. After additional public
comment, if NMFS concurs with the MAFMC recommendation, the measures
will be issued as a final rule in the Federal Register.
(iii) If NMFS does not concur, the MAFMC will be notified in
writing of the reasons for the non-concurrence.
(4) Emergency actions. Nothing in this section is meant to derogate
from the authority of the Secretary to take emergency action under
section 305(e) of the Magnuson-Stevens Act.
(b) [Reserved]

0
9. Section 648.26 is revised to read as follows:

Sec. 648.26 Mackerel, squid, and butterfish possession restrictions.

(a) Atlantic mackerel. During a closure of the commercial Atlantic
mackerel fishery that occurs prior to June 1, vessels may not fish for,
possess, or land more than 20,000 lb (9.08 mt) of Atlantic mackerel per
trip at any time, and may only land Atlantic mackerel once on any
calendar day, which is defined as the 24-hr period beginning at 0001
hours and ending at 2400 hours. During a closure of the commercial
fishery for mackerel that occurs on or after June 1, vessels may not
fish for, possess, or land more than 50,000 lb (22.7 mt) of Atlantic
mackerel per trip at any time, and may only land Atlantic mackerel once
on any calendar day.
(b) Loligo. During a closure of the directed fishery for Loligo,
vessels may not fish for, possess, or land more than 2,500 lb (1.13 mt)
of Loligo per trip at any time, and may only land Loligo once on any
calendar day, which is defined as the 24-hr period beginning at 0001
hours and ending at 2400 hours. If a vessel has been issued a Loligo
incidental catch permit (as specified at Sec. 648.4(a)(5)(ii)), then
it may not fish for, possess, or land more than 2,500 lb (1.13 mt) of
Loligo per trip at any time and may only land Loligo once on any
calendar day.
(c) Illex. During a closure of the directed fishery for Illex,
vessels may not fish for, possess, or land more than 10,000 lb (4.54
mt) of Illex per trip at any time, and may only land Illex once on any
calendar day, which is defined as the 24-hr period beginning at 0001
hours and ending at 2400 hours. If a vessel has been issued an Illex
incidental catch permit (as specified at Sec. 648.4(a)(5)(ii)), then
it may not fish for, possess, or land more than 10,000 lb (4.54 mt) of
Illex per trip at any time, and may only land Illex once on any
calendar day.
(d) Butterfish. (1) During a closure of the directed fishery for
butterfish that occurs prior to October 1, vessels may not fish for,
possess, or land more than 250 lb (0.11 mt) of butterfish per trip at
any time, and may only land butterfish once on any calendar day, which
is defined as the 24-hr period beginning at 0001 hours and ending at
2400 hours. During a closure of the directed fishery for butterfish
that occurs on or after October 1, vessels may not fish for, possess,
or land more than 600 lb (0.27 mt) of butterfish per trip at any time,
and may only land butterfish once on any calendar day. If a vessel has
been issued a butterfish incidental catch permit (as specified at Sec.
648.4(a)(5)(ii)), it may not fish for, possess, or land more than 600
lb (0.27 mt) of butterfish per trip at any time, and may only land
butterfish once on any calendar day, unless the directed fishery for
butterfish closes prior to October 1, then a vessel that has been
issued a butterfish incidental catch permit may not fish for, possess,
or land more than 250 lb (0.11 mt) of butterfish per trip at any time,
and may only land butterfish once on any calendar day.
(2) A vessel issued a butterfish moratorium permit (as specified at
Sec. 648.4(a)(5)(i)) may not fish for, possess, or land more than
5,000 lb (2.27 mt) of butterfish per trip at any time, and may only
land butterfish once on any calendar day, which is defined as the 24-hr
period beginning at 0001 hours and ending at 2400 hours.

0
10. Section 648.27 is added to subpart B read as follows:

Sec. 648.27 Observer requirements for the Loligo fishery.

(a) A vessel issued a Loligo and 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 e-mail address for contact; and the
date, time, port of departure, and approximate trip duration, at least
72 hr, but no more than 10 days, prior to beginning any fishing trip,
unless it complies with the possession restrictions in paragraph (c) of
this section.
(b) A vessel that has a representative provide notification to NMFS
as

[[Page 60622]]

described in paragraph (a) of this section may only embark on a Loligo
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 Loligo trip, within 24 hr of the vessel
representative's notification of the prospective Loligo 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 Loligo trip plan
that was called in to NMFS is prohibited from fishing for, possessing,
harvesting, or landing Loligo 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.
(c) A vessel issued a Loligo 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
2,500 lb (1.13 mt) or more of Loligo per trip at any time, and may only
land Loligo once on any calendar day, which is defined as the 24-hr
period beginning at 0001 hours and ending at 2400 hours.
(d) If a vessel issued a Loligo and butterfish moratorium permit,
as specified in Sec. 648.4(a)(5)(i), intends to possess, harvest, or
land 2,500 lb (1.13 mt) or more of Loligo per trip or per calendar day,
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 e-mail 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.

0
11. Section 648.70 is revised to read as follows:

Sec. 648.70 Surfclam and ocean quahog Annual Catch Limit (ACL).

(a) The MAFMC staff shall recommend to the MAFMC ACLs for the
surfclam and ocean quahog fisheries, which shall be equal to the ABCs
recommended by the SSC.
(1) Sectors. The surfclam and ocean quahog ACLs will be established
consistent with the guidelines contained in the Atlantic Surfclam and
Ocean Quahog FMP. The ACL for ocean quahog will then be allocated to
the Maine and non-Maine components of the fishery according to the
allocation guidelines of the Atlantic Surfclam and Ocean Quahog FMP as
specified in Sec. 648.78(b).
(2) Periodicity. The surfclam and ocean quahog ACLs may be
established on an annual basis for up to 3 years at a time, dependent
on whether the SSC provides single or multiple year ABC
recommendations.
(b) Performance review. The MAFMC staff shall conduct a detailed
review of the fishery performance relative to the ACLs at least every 5
years.
(1) If the surfclam or the ocean quahog ACL is exceeded with a
frequency greater than 25 percent (i.e., more than once in 4 years or
any 2 consecutive years), the MAFMC staff will review fishery
performance information and make recommendations to the MAFMC for
changes in measures intended to ensure the ACL is not exceeded as
frequently.
(2) The MAFMC may specify more frequent or more specific ACL
performance review criteria as part of a stock rebuilding plan
following a determination that a stock has become overfished.
(3) Performance reviews shall not substitute for annual reviews
that occur to ascertain if prior year ACLs have been exceeded, but may
be conducted in conjunction with such reviews.

0
12. Section 648.71 is revised to read as follows:

Sec. 648.71 Surfclam and ocean quahog Annual Catch Targets (ACT).

(a) The MAFMC staff shall identify and review the relevant sources
of management uncertainty to recommend ACTs to the MAFMC as part of the
surfclam and ocean quahog specification process. The MAFMC staff
recommendations shall identify the specific sources of management
uncertainty that were considered, technical approaches to mitigating
these sources of uncertainty, and any additional relevant information
considered in the ACT recommendation process.
(1) Sectors. The surfclam ACT and the sum of the Maine and non-
Maine ocean quahog ACTs shall be less than or equal to the ACL for the
corresponding stock. The MAFMC staff shall recommend any reduction in
catch necessary to address management uncertainty, consistent with
paragraph (a) of this section.
(2) Periodicity. ACTs may be established on an annual basis for up
to 3 years at a time, dependent on whether the SSC provides single or
multiple year ABC recommendations.
(b) Performance review. The MAFMC staff shall conduct a detailed
review of fishery performance relative to ACTs in conjunction with any
ACL performance review, as outlined in Sec. 648.70(b)(1) through (3).

0
13. Section 648.72 is revised to read as follows:

Sec. 648.72 Surfclam and ocean quahog specifications.

(a) Establishing catch quotas. The amount of surfclams or ocean
quahogs that may be caught annually by fishing vessels subject to these
regulations will be specified for up to a 3-year period by the Regional
Administrator. Specifications of the annual quotas will be accomplished
in the final year of the quota period, unless the quotas are modified
in the interim pursuant to paragraph (b) of this section. The amount of
surfclams available for harvest annually must be specified within the
range of 1.85 to 3.4 million bu (98.5 to 181 million L). The amount of
ocean quahogs available for harvest annually must be specified within
the range of 4 to 6 million bu (213 to 319.4 million L). Quotas for
surfclams and ocean quahogs may be specified below these ranges if the
ABC recommendation of the SSC limits the ACL to a value less than the
minimum of the range indicated.
(1) Quota reports. On an annual basis, MAFMC staff will produce and
provide to the MAFMC an Atlantic surfclam and ocean quahog annual quota
recommendation paper based on the ABC recommendation of the SSC, the
latest available stock assessment report prepared by NMFS, data
reported by harvesters and processors, and other relevant data, as well
as the information contained in paragraphs (a)(1)(i) through (vi) of
this section. Based on that report, and at least once prior to August
15 of the year in which a multi-year annual quota specification
expires, the MAFMC, following an opportunity for public comment, will
recommend to the Regional Administrator annual quotas and estimates of
DAH and DAP within the ranges specified for up to a 3-year period. In
selecting the annual quotas, the MAFMC shall consider the current stock
assessments, catch reports, and other relevant information concerning:
(i) Exploitable and spawning biomass relative to the OY.
(ii) Fishing mortality rates relative to the OY.

[[Page 60623]]

(iii) Magnitude of incoming recruitment.
(iv) Projected effort and corresponding catches.
(v) Geographical distribution of the catch relative to the
geographical distribution of the resource.
(vi) Status of areas previously closed to surfclam fishing that are
to be opened during the year and areas likely to be closed to fishing
during the year.
(2) Public review. Based on the recommendation of the MAFMC, the
Regional Administrator shall publish proposed surfclam and ocean quahog
quotas in the Federal Register. The Regional Administrator shall
consider public comments received, determine the appropriate annual
quotas, and publish the annual quotas in the Federal Register. The
quota shall be set at that amount that is most consistent with the
objectives of the Atlantic Surfclam and Ocean Quahog FMP. The Regional
Administrator may set quotas at quantities different from the MAFMC's
recommendations only if he/she can demonstrate that the MAFMC's
recommendations violate the national standards of the Magnuson-Stevens
Act or the objectives of the Atlantic Surfclam and Ocean Quahog FMP or
other applicable law.
(b) Interim quota modifications. Based upon information presented
in the quota reports described in paragraph (a)(1) of this section, the
MAFMC may recommend to the Regional Administrator a modification to the
annual quotas that have been specified for a 3-year period and any
estimate of DAH or DAP made in conjunction with such specifications
within the ranges specified in paragraph (a)(1) of this section. Based
upon the MAFMC's recommendation, the Regional Administrator may propose
surfclam and or ocean quahog quotas that differ from the annual quotas
specified for the current 3-year period. Such modification shall be in
effect for a period of up to 3 years, unless further modified. Any
interim modification shall follow the same procedures for establishing
the annual quotas that are specified for up to a 3-year period.
(c) Annual quotas. The annual quotas for surfclams and ocean
quahogs will remain effective unless revised pursuant to this section.
At the end of a multiyear quota period, NMFS will issue notification in
the Federal Register if the previous year's specifications will not be
changed.

0
14. Section 648.73 is revised to read as follows:

Sec. 648.73 Surfclam and ocean quahog Accountability Measures.

(a) Commercial ITQ fishery. (1) If the ACL for surfclam or ocean
quahog is exceeded, and the overage can be attributed to one or more
ITQ allocation holders, the full amount of the overage will be deducted
from the appropriate ITQ allocation in the following fishing year.
(2) Any amount of an ACL overage that cannot be otherwise
attributed to an ITQ allocation holder will be deducted from the
appropriate ACL in the following fishing year.
(b) Maine mahogany quahog fishery. If the ocean quahog ACL is
exceeded, and the Maine mahogany quahog fishery is responsible for the
overage, than the Maine fishery ACT shall be reduced in the following
year by an amount equal to the ACL overage.

0
15. Section 648.74 is revised to read as follows:

Sec. 648.74 Annual individual allocations.

(a) General. (1) Each fishing year, the Regional Administrator
shall determine the initial allocation of surfclams and ocean quahogs
for the next fishing year for each allocation holder owning an
allocation pursuant to paragraph (a)(2) of this section. For each
species, the initial allocation for the next fishing year is calculated
by multiplying the allocation percentage owned by each allocation owner
as of the last day of the previous fishing year in which allocation
owners are permitted to permanently transfer allocation percentage
pursuant to paragraph (b) of this section (i.e., October 15 of every
year), by the quota specified by the Regional Administrator pursuant to
Sec. 648.72. The total number of bushels of allocation shall be
divided by 32 to determine the appropriate number of cage tags to be
issued or acquired under Sec. 648.77. Amounts of allocation of 0.5
cages or smaller created by this division shall be rounded downward to
the nearest whole number, and amounts of allocation greater than 0.5
cages created by this division shall be rounded upward to the nearest
whole number, so that allocations are specified in whole cages. These
allocations shall be made in the form of an allocation permit
specifying the allocation percentage and the allocation in cages and
cage tags for each species. An allocation permit is only valid for the
entity for which it is issued. Such permits shall be issued on or
before December 15, to allow allocation owners to purchase cage tags
from a vendor specified by the Regional Administrator pursuant to Sec.
648.77(b).
(2) The Regional Administrator may, after publication of a fee
notification in the Federal Register, charge a permit fee before
issuance of the permit to recover administrative expenses. Failure to
pay the fee will preclude issuance of the permit.
(b) Transfers--(1) Allocation percentage. Subject to the approval
of the Regional Administrator, part or all of an allocation percentage
may be transferred in the year in which the transfer is made, to any
person or entity eligible to own a documented vessel under the terms of
46 U.S.C. 12102(a). Approval of a transfer by the Regional
Administrator and for a new allocation permit reflecting that transfer
may be requested by submitting a written application for approval of
the transfer and for issuance of a new allocation permit to the
Regional Administrator at least 10 days before the date on which the
applicant desires the transfer to be effective, in the form of a
completed transfer log supplied by the Regional Administrator. The
transfer is not effective until the new holder receives a new or
revised annual allocation permit from the Regional Administrator. An
application for transfer may not be made between October 15 and
December 31 of each year.
(2) Cage tags. Cage tags issued pursuant to Sec. 648.77 may be
transferred at any time, and in any amount subject to the restrictions
and procedure specified in paragraph (b)(1) of this section; provided
that application for such cage tag transfers may be made at any time
before December 10 of each year. The transfer is effective upon the
receipt by the transferee of written authorization from the Regional
Administrator.
(3) Review. If the Regional Administrator determines that the
applicant has been issued a Notice of Permit Sanction for a violation
of the Magnuson-Stevens Act that has not been resolved, he/she may
decline to approve such transfer pending resolution of the matter.

0
16. Section 648.75 is revised to read as follows:

Sec. 648.75 Shucking at sea and minimum surfclam size.

(a) Shucking at sea--(1) Observers. (i) The Regional Administrator
may allow the shucking of surfclams or ocean quahogs at sea if he/she
determines that an observer carried aboard the vessel can measure
accurately the total amount of surfclams and ocean quahogs harvested in
the shell prior to shucking.
(ii) Any vessel owner may apply in writing to the Regional
Administrator to shuck surfclams or ocean quahogs at sea. The
application shall specify: Name

[[Page 60624]]

and address of the applicant; permit number of the vessel; method of
calculating the amount of surfclams or ocean quahogs harvested in the
shell; vessel dimensions and accommodations; and length of fishing
trip.
(iii) The Regional Administrator shall provide an observer to any
vessel owner whose application is approved. The owner shall pay all
reasonable expenses of carrying the observer on board the vessel.
(iv) Any observer shall certify at the end of each trip the amount
of surfclams or ocean quahogs harvested in the shell by the vessel.
Such certification shall be made by the observer's signature on the
daily fishing log required by Sec. 648.7.
(2) Conversion factor. (i) Based on the recommendation of the
MAFMC, the Regional Administrator may allow shucking at sea of
surfclams or ocean quahogs, with or without an observer, if he/she
determines a conversion factor for shucked meats to calculate
accurately the amount of surfclams or ocean quahogs harvested in the
shell.
(ii) The Regional Administrator shall publish notification in the
Federal Register specifying a conversion factor, together with the data
used in its calculation, for a 30-day comment period. After
consideration of the public comments and any other relevant data, the
Regional Administrator may publish final notification in the Federal
Register specifying the conversion factor.
(iii) If the Regional Administrator makes the determination
specified in paragraph (b)(1) of this section, he/she may authorize the
vessel owner to shuck surfclams or ocean quahogs at sea. Such
authorization shall be in writing and be carried aboard the vessel.
(b) Minimum surfclam size--(1) Minimum length. The minimum length
for surfclams is 4.75 inches (12.065 cm).
(2) Determination of compliance. No more than 50 surfclams in any
cage may be less than 4.75 inches (12.065 cm) in length. If more than
50 surfclams in any inspected cage of surfclams are less than 4.75
inches (12.065 cm) in length, all cages landed by the same vessel from
the same trip are deemed to be in violation of the minimum size
restriction.
(3) Suspension. Upon the recommendation of the MAFMC, the Regional
Administrator may suspend annually, by publication in the Federal
Register, the minimum shell-length standard, unless discard, catch, and
survey data indicate that 30 percent of the surfclams are smaller than
4.75 inches (12.065 cm) and the overall reduced shell length is not
attributable to beds where the growth of individual surfclams has been
reduced because of density dependent factors.
(4) Measurement. Length is measured at the longest dimension of the
surfclam shell.

0
17. Section 648.76 is revised to read as follows:

Sec. 648.76 Closed areas.

(a) Areas closed because of environmental degradation. Certain
areas are closed to all surfclam and ocean quahog fishing because of
adverse environmental conditions. These areas will remain closed until
the Regional Administrator determines that the adverse environmental
conditions no longer exist. If additional areas are identified by the
Regional Administrator as being contaminated by the introduction or
presence of hazardous materials or pollutants, they may be closed by
the Regional Administrator in accordance with paragraph (c) of this
section. The areas closed are:
(1) Boston Foul Ground. The waste disposal site known as the
``Boston Foul Ground'' and located at 42[deg]25'36'' N. lat.,
70[deg]35'00'' W. long., with a radius of 1 nm (1.61 km) in every
direction from that point.
(2) New York Bight. The polluted area and waste disposal site known
as the ``New York Bight'' and located at 40[deg]25'04'' N. lat.,
73[deg]42'38'' W. long., and with a radius of 6 nm (9.66 km) in every
direction from that point, extending further northwestward, westward
and southwestward between a line from a point on the arc at
40[deg]31'00'' N. lat., 73[deg]43'38'' W. long., directly northward
toward Atlantic Beach Light in New York to the limit of the state
territorial waters of New York; and a line from the point on the arc at
40[deg]19'48'' N. lat., 73[deg]45'42'' W. long., to a point at the
limit of the state territorial waters of New Jersey at 40[deg]14'00''
N. lat., 73[deg]55'42'' W. long.
(3) 106 Dumpsite. The toxic industrial site known as the ``106
Dumpsite'' and located between 38[deg]40'00'' and 39[deg]00'00'' N.
lat., and between 72[deg]00'00'' and 72[deg]30'00'' W. long.
(4) Georges Bank. The paralytic shellfish poisoning (PSP)
contaminated area, which is located on Georges Bank, and located east
of 69[deg] W. long., and south of 42[deg]20' N. lat.
(b) Areas closed because of small surfclams. Areas may be closed
because they contain small surfclams.
(1) Closure. The Regional Administrator may close an area to
surfclams and ocean quahog fishing if he/she determines, based on
logbook entries, processors' reports, survey cruises, or other
information, that the area contains surfclams of which:
(i) Sixty percent or more are smaller than 4.5 inches (11.43 cm);
and
(ii) Not more than 15 percent are larger than 5.5 inches (13.97 cm)
in size.
(2) Reopening. The Regional Administrator may reopen areas or parts
of areas closed under paragraph (b)(1) of this section if he/she
determines, based on survey cruises or other information, that:
(i) The average length of the dominant (in terms of weight) size
class in the area to be reopened is equal to or greater than 4.75
inches (12.065 cm); or
(ii) The yield or rate of growth of the dominant shell-length class
in the area to be reopened would be significantly enhanced through
selective, controlled, or limited harvest of surfclams in the area.
(c) Procedure. (1) The Regional Administrator may hold a public
hearing on the proposed closure or reopening of any area under
paragraph (a) or (b) of this section. The Regional Administrator shall
publish notification in the Federal Register of any proposed area
closure or reopening, including any restrictions on harvest in a
reopened area. Comments on the proposed closure or reopening must be
submitted to the Regional Administrator within 30 days after
publication. The Regional Administrator shall consider all comments and
publish the final notification of closure or reopening, and any
restrictions on harvest, in the Federal Register. Any adjustment to
harvest restrictions in a reopened area shall be made by notification
in the Federal Register. The Regional Administrator shall send notice
of any action under this paragraph (c)(1) to each surfclam and ocean
quahog processor and to each surfclam and ocean quahog permit holder.
(2) If the Regional Administrator determines, as the result of
testing by state, Federal, or private entities, that a closure of an
area under paragraph (a) of this section is necessary to prevent any
adverse effects fishing may have on the public health, he/she may close
the area for 60 days by publication of notification in the Federal
Register, without prior comment or public hearing. If an extension of
the 60-day closure period is necessary to protect the public health,
the hearing and notice requirements of paragraph (c)(1) of this section
shall be followed.
(d) Areas closed due to the presence of paralytic shellfish
poisoning toxin--(1) Maine mahogany quahog zone. The Maine mahogany
quahog zone is closed to fishing for ocean quahogs except in those
areas of the zone that are tested by the State of Maine and deemed to
be within the requirements of the National

[[Page 60625]]

Shellfish Sanitation Program and adopted by the Interstate Shellfish
Sanitation Conference as acceptable limits for the toxin responsible
for PSP. Harvesting is allowed in such areas during the periods
specified by the Maine Department of Marine Resources during which
quahogs are safe for human consumption. For information regarding these
areas contact the State of Maine Division of Marine Resources.
(2) [Reserved]

0
18. Section 648.77 is revised to read as follows:

Sec. 648.77 Cage identification.

Except as provided in Sec. 648.78, the following cage
identification requirements apply to all vessels issued a Federal
fishing permit for surfclams and ocean quahogs:
(a) Tagging. Before offloading, all cages that contain surfclams or
ocean quahogs must be tagged with tags acquired annually under
provisions of paragraph (b) of this section. A tag must be fixed on or
as near as possible to the upper crossbar of the cage. A tag is
required for every 60 ft\3\ (1,700 L) of cage volume, or portion
thereof. A tag or tags must not be removed until the cage is emptied by
the processor, at which time the processor must promptly remove and
retain the tag(s) for 60 days beyond the end of the calendar year,
unless otherwise directed by authorized law enforcement agents.
(b) Issuance. The Regional Administrator will issue a supply of
tags to each individual allocation owner qualifying for an allocation
under Sec. 648.74 prior to the beginning of each fishing year, or he/
she may specify, in the Federal Register, a vendor from whom the tags
shall be purchased. The number of tags will be based on the owner's
initial allocation as specified in Sec. 648.74(a). Each tag represents
32 bu (1,700 L) of allocation.
(c) Expiration. Tags will expire at the end of the fishing year for
which they are issued, or if rendered null and void in accordance with
15 CFR part 904.
(d) Return. Tags that have been rendered null and void must be
returned to the Regional Administrator, if possible.
(e) Loss. Loss or theft of tags must be reported by the owner,
numerically identifying the tags to the Regional Administrator by
telephone as soon as the loss or theft is discovered and in writing
within 24 hours. Thereafter, the reported tags shall no longer be valid
for use under this part.
(f) Replacement. Lost or stolen tags may be replaced by the
Regional Administrator if proper notice of the loss is provided by the
person to whom the tags were issued. Replacement tags may be purchased
from the Regional Administrator or a vendor with a written
authorization from the Regional Administrator.
(g) Transfer. See Sec. 648.74(b)(2).
(h) Presumptions. Surfclams and ocean quahogs found in cages
without a valid state tag are deemed to have been harvested in the EEZ
and to be part of an individual's allocation, unless the individual
demonstrates that he/she has surrendered his/her Federal vessel permit
issued under Sec. 648.4(a)(4) and conducted fishing operations
exclusively within waters under the jurisdiction of any state.
Surfclams and ocean quahogs in cages with a Federal tag or tags, issued
and still valid pursuant to this section, affixed thereto are deemed to
have been harvested by the individual allocation holder to whom the
tags were issued under the provisions of Sec. 648.77(b) or transferred
under the provisions of Sec. 648.74(b).

0
19. Section 648.78 is added to subpart E to read as follows:

Sec. 648.78 Maine mahogany quahog zone.

(a) Landing requirements. (1) A vessel issued a valid Maine
mahogany quahog permit pursuant to Sec. 648.4(a)(4)(i), and fishing
for or possessing ocean quahogs within the Maine mahogany quahog zone,
must land its catch in the State of Maine.
(2) A vessel fishing under an individual allocation permit,
regardless of whether it has a Maine mahogany quahog permit, fishing
for or possessing ocean quahogs within the zone, may land its catch in
the State of Maine, or, consistent with applicable state law in any
other state that utilizes food safety-based procedures including
sampling and analyzing for PSP toxin consistent with those food safety-
based procedures used by the State of Maine for such purpose, and must
comply with all requirements in Sec. Sec. 648.74 and 648.77.
Documentation required by the state and other laws and regulations
applicable to food safety-based procedures must be made available by
federally permitted dealers for inspection by NMFS.
(b) ACT monitoring and closures--(1) Catch quota. (i) The ACT for
harvest of mahogany quahogs from within the Maine mahogany quahog zone
is 100,000 Maine bu (35,239 hL). The ACL may be revised annually within
the range of 17,000 and 100,000 Maine bu (5,991 and 35,239 hL)
following the procedures set forth in Sec. Sec. 648.72 and 648.73, if
applicable.
(ii) All mahogany quahogs landed for sale in Maine by vessels
issued a Maine mahogany quahog permit and not fishing for an individual
allocation of ocean quahogs under Sec. 648.74 shall be applied against
the Maine mahogany quahog ACT, regardless of where the mahogany quahogs
are harvested.
(iii) All mahogany quahogs landed by vessels fishing in the Maine
mahogany quahog zone for an individual allocation of quahogs under
Sec. 648.74 will be counted against the ocean quahog allocation for
which the vessel is fishing.
(iv) The Regional Administrator will monitor the ACT based on
dealer reports and other available information, and shall determine the
date when the ACT will be harvested. NMFS shall publish notification in
the Federal Register advising the public that, effective upon a
specific date, the Maine mahogany quahog quota has been harvested, and
notifying vessel and dealer permit holders that no Maine mahogany
quahog quota is available for the remainder of the year.
(2) Maine Mahogany Quahog Advisory Panel. The MAFMC shall establish
a Maine Mahogany Quahog Advisory Panel consisting of representatives of
harvesters, dealers, and the Maine Department of Marine Resources. The
Advisory Panel shall make recommendations, through the Surfclam and
Ocean Quahog Committee of the MAFMC, regarding revisions to the annual
quota and other management measures.

0
20. Section 648.79 is added to subpart E to read as follows:

Sec. 648.79 Surfclam and ocean quahog framework adjustments to
management measures.

(a) Within season management action. The MAFMC may, at any time,
initiate action to add or adjust management measures within the
Atlantic Surfclam and Ocean Quahog FMP if it finds that action is
necessary to meet or be consistent with the goals and objectives of the
plan.
(1) Adjustment process. The MAFMC shall develop and analyze
appropriate management actions over the span of at least two MAFMC
meetings. The MAFMC must provide the public with advance notice of the
availability of the recommendation(s), appropriate justification(s) and
economic and biological analyses, and the opportunity to comment on the
proposed adjustment(s) at the first meeting, and prior to and at the
second MAFMC meeting. The MAFMC's recommendations on adjustments or
additions to management measures must come from one or more of the
following categories: Adjustments within existing ABC control rule
levels;

[[Page 60626]]

adjustments to the existing MAFMC risk policy; introduction of new AMs,
including sub-ACTs; description and identification of EFH (and fishing
gear management measures that impact EFH); habitat areas of particular
concern; set-aside quota for scientific research; VMS; OY range;
suspension or adjustment of the surfclam minimum size limit; and
changes to the Northeast Region SBRM (including the CV-based
performance standard, the means by which discard data are collected/
obtained, fishery stratification, reports, and/or industry-funded
observers or observer set-aside programs). Issues that require
significant departures from previously contemplated measures or that
are otherwise introducing new concepts may require an amendment of the
FMP instead of a framework adjustment.
(2) MAFMC recommendation. After developing management actions and
receiving public testimony, the MAFMC shall make a recommendation to
the Regional Administrator. The MAFMC's recommendation must include
supporting rationale, if management measures are recommended, an
analysis of impacts, and a recommendation to the Regional Administrator
on whether to issue the management measures as a final rule. If the
MAFMC recommends that the management measures should be issued as a
final rule, it must consider at least the following factors, and
provide support and analysis for each factor considered:
(i) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether the regulations would have to be in place
for an entire harvest/fishing season.
(ii) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of recommended management measures.
(iii) Whether there is an immediate need to protect the resource.
(iv) Whether there will be a continuing evaluation of management
measures adopted following their implementation as a final rule.
(3) NMFS action. If the MAFMC's recommendation includes adjustments
or additions to management measures and after reviewing the MAFMC's
recommendation and supporting information:
(i) If NMFS concurs with the MAFMC's recommended management
measures and determines that the recommended management measures should
be issued as a final rule based on the factors specified in paragraph
(a)(2) of this section, the measures will be issued as a final rule in
the Federal Register.
(ii) If NMFS concurs with the MAFMC's recommended management
measures and determines that the recommended management measures should
be published first as a proposed rule, the measures will be published
as a proposed rule in the Federal Register. After additional public
comment, if NMFS concurs with the MAFMC recommendation, the measures
will be published as a final rule in the Federal Register.
(iii) If NMFS does not concur, the MAFMC will be notified in
writing of the reasons for the non-concurrence.
(4) Emergency actions. Nothing in this section is meant to derogate
from the authority of the Secretary to take emergency action under
section 305(e) of the Magnuson-Stevens Act.
(b) [Reserved]

0
21. Section 648.100 is revised to read as follows:

Sec. 648.100 Summer flounder Annual Catch Limit (ACL).

(a) The Summer Flounder Monitoring Committee shall recommend to the
MAFMC separate ACLs for the commercial and recreational summer flounder
fisheries, the sum total of which shall be equal to the ABC recommended
by the SSC.
(1) Sector allocations. The commercial and recreational fishing
sector ACLs will be established consistent with the allocation
guidelines contained in the Summer Flounder, Scup, and Black Sea Bass
Fishery Management Plan (FMP).
(2) Periodicity. The summer flounder commercial and recreational
sector ACLs may be established on an annual basis for up to 3 years at
a time, dependent on whether the SSC provides single or multiple year
ABC recommendations.
(b) Performance review. The Summer Flounder Monitoring Committee
shall conduct a detailed review of fishery performance relative to the
sector ACLs at least every 5 years.
(1) If one or both of the sector-specific ACLs is exceeded with a
frequency greater than 25 percent (i.e., more than once in 4 years or
any 2 consecutive years), the Summer Flounder Monitoring Committee will
review fishery performance information and make recommendations to the
MAFMC for changes in measures intended to ensure ACLs are not exceeded
as frequently.
(2) The MAFMC may specify more frequent or more specific ACL
performance review criteria as part of a stock rebuilding plan
following a determination that the summer flounder stock has become
overfished.
(3) Performance reviews shall not substitute for annual reviews
that occur to ascertain if prior year ACLs have been exceeded but may
be conducted in conjunction with such reviews.

0
22. Section 648.101 is revised to read as follows:

Sec. 648.101 Summer flounder Annual Catch Target (ACT).

(a) The Summer Flounder Monitoring Committee shall identify and
review the relevant sources of management uncertainty to recommend ACTs
for the commercial and recreational fishing sectors as part of the
summer flounder specification process. The Summer Flounder Monitoring
Committee recommendations shall identify the specific sources of
management uncertainty that were considered, technical approaches to
mitigating these sources of uncertainty, and any additional relevant
information considered in the ACT recommendation process.
(1) Sectors. Commercial and recreational specific ACTs shall be
less than or equal to the sector-specific ACLs. The Summer Flounder
Monitoring Committee shall recommend any reduction in catch necessary
to address sector-specific management uncertainty, consistent with
paragraph (a) of this section.
(2) Periodicity. ACTs may be established on an annual basis for up
to 3 years at a time, dependent on whether the SSC provides single or
multiple year ABC recommendations.
(b) Performance review. The Summer Flounder Monitoring Committee
shall conduct a detailed review of fishery performance relative to ACTs
in conjunction with any ACL performance review, as outlined in Sec.
648.100(b)(1) through (3).

0
23. Section 648.102 is revised to read as follows:

Sec. 648.102 Summer flounder specifications.

(a) Commercial quota, recreational landing limits, research set-
asides, and other specification measures. The Summer Flounder
Monitoring Committee shall recommend to the MAFMC, through the
specifications process, for use in conjunction with each ACL and ACT, a
sector-specific research set-aside, estimates of sector-related
discards, recreational harvest limit, and commercial quota, along with
other measures, as needed, that are projected to ensure the sector-
specific ACL for an upcoming fishing year or years will not be
exceeded. The

[[Page 60627]]

measures to be considered by the Summer Flounder Monitoring Committee
are:
(1) Research quota set from a range of 0 to 3 percent of the
allowable landings level for both the commercial and recreational
sectors.
(2) Commercial minimum fish size.
(3) Minimum mesh size.
(4) Restrictions on gear other than otter trawls.
(5) Adjustments to the exempted area boundary and season specified
in Sec. 648.108(b)(1) by 30-minute intervals of latitude and longitude
and 2-week intervals, respectively, based on data reviewed by Summer
Flounder Monitoring Committee during the specification process, to
prevent discarding of sublegal sized summer flounder in excess of 10
percent, by weight.
(6) Recreational possession limit set from a range of 0 to 15
summer flounder to achieve the recreational harvest limit, set after
reductions for research quota.
(7) Recreational minimum fish size.
(8) Recreational season.
(9) Recreational state conservation equivalent and precautionary
default measures utilizing possession limits, minimum fish sizes, and/
or seasons set after reductions for research quota.
(10) Changes, as appropriate, to the Northeast Region SBRM,
including the CV-based performance standard, fishery stratification,
and/or reports.
(11) Modification of existing AM measures and ACT control rules
utilized by the Summer Flounder Monitoring Committee.
(b) Specification fishing measures. The Demersal Species Committee
shall review the recommendations of the Summer Flounder Monitoring
Committee. Based on these recommendations and any public comment, the
Demersal Species Committee shall recommend to the MAFMC measures
necessary that are projected to ensure the sector-specific ACLs for an
upcoming fishing year or years will not be exceeded. The MAFMC shall
review these recommendations and, based on the recommendations and any
public comment, recommend to the Regional Administrator measures that
are projected to ensure the sector-specific ACL for an upcoming fishing
year or years will not be exceeded. The MAFMC's recommendations must
include supporting documentation, as appropriate, concerning the
environmental and economic impacts of the recommendations. The Regional
Administrator shall review these recommendations and any
recommendations of the ASMFC.
(c) After such review, the Regional Administrator will publish a
proposed rule in the Federal Register to implement a coastwide
commercial quota, a recreational harvest limit, research set-aside,
adjustments to ACL or ACT resulting from AMs, and additional management
measures for the commercial fishery. After considering public comment,
NMFS will publish a final rule in the Federal Register.
(1) Distribution of annual commercial quota. (i) The annual
commercial quota will be distributed to the states, based upon the
following percentages; state followed by percent share in parenthesis:
Maine (0.04756); New Hampshire (0.00046); Massachusetts (6.82046);
Rhode Island (15.68298); Connecticut (2.25708); New York (7.64699); New
Jersey (16.72499); Delaware (0.01779); Maryland (2.03910); Virginia
(21.31676); North Carolina (27.44584).
(ii) [Reserved]
(2) Quota transfers and combinations. Any state implementing a
state commercial quota for summer flounder may request approval from
the Regional Administrator to transfer part or its entire annual quota
to one or more states. Two or more states implementing a state
commercial quota for summer flounder may request approval from the
Regional Administrator to combine their quotas, or part of their
quotas, into an overall regional quota. Requests for transfer or
combination of commercial quotas for summer flounder must be made by
individual or joint letter(s) signed by the principal state official
with marine fishery management responsibility and expertise, or his/her
previously named designee, for each state involved. The letter(s) must
certify that all pertinent state requirements have been met and
identify the states involved and the amount of quota to be transferred
or combined.
(i) Within 10 working days following the receipt of the letter(s)
from the states involved, the Regional Administrator shall notify the
appropriate state officials of the disposition of the request. In
evaluating requests to transfer a quota or combine quotas, the Regional
Administrator shall consider whether:
(A) The transfer or combination would preclude the overall annual
quota from being fully harvested;
(B) The transfer addresses an unforeseen variation or contingency
in the fishery; and
(C) The transfer is consistent with the objectives of the FMP and
the Magnuson-Stevens Act.
(ii) The transfer of quota or the combination of quotas will be
valid only for the calendar year for which the request was made;
(iii) A state may not submit a request to transfer quota or combine
quotas if a request to which it is party is pending before the Regional
Administrator. A state may submit a new request when it receives notice
that the Regional Administrator has disapproved the previous request or
when notice of the approval of the transfer or combination has been
filed at the Office of the Federal Register.
(iv) If there is a quota overage among states involved in the
combination of quotas at the end of the fishing year, the overage will
be deducted from the following year's quota for each of the states
involved in the combined quota. The deduction will be proportional,
based on each state's relative share of the combined quota for the
previous year. A transfer of quota or combination of quotas does not
alter any state's percentage share of the overall quota specified in
paragraph (d)(1)(i) of this section.
(d) Recreational specification measures. The Demersal Species
Committee shall review the recommendations of the Summer Flounder
Monitoring Committee. Based on these recommendations and any public
comment, the Demersal Species Committee shall recommend to the MAFMC
and ASMFC measures that are projected to ensure the sector-specific ACL
for an upcoming fishing year or years will not be exceeded. The MAFMC
shall review these recommendations and, based on the recommendations
and any public comment, recommend to the Regional Administrator
measures that are projected to ensure the sector-specific ACL for an
upcoming fishing year or years will not be exceeded. The MAFMC's
recommendations must include supporting documentation, as appropriate,
concerning the environmental and economic impacts of the
recommendations. The MAFMC and the ASMFC will recommend that the
Regional Administrator implement either:
(1) Coastwide measures. Annual coastwide management measures that
constrain the recreational summer flounder fishery to the recreational
harvest limit, or
(2) Conservation equivalent measures. Individual states, or regions
formed voluntarily by adjacent states (i.e., multi-state conservation
equivalency regions), may implement different combinations of minimum
fish sizes, possession limits, and closed seasons that achieve
equivalent conservation as the coastwide measures established

[[Page 60628]]

under paragraph (e)(1) of this section. Each state or multi-state
conservation equivalency region may implement measures by mode or area
only if the proportional standard error of recreational landing
estimates by mode or area for that state is less than 30 percent.
(i) After review of the recommendations, the Regional Administrator
will publish a proposed rule in the Federal Register as soon as
possible to implement the overall percent adjustment in recreational
landings required for the fishing year, and the ASMFC's recommendation
concerning conservation equivalency, the precautionary default
measures, and coastwide measures.
(ii) The ASMFC will review conservation equivalency proposals and
determine whether or not they achieve the necessary adjustment to
recreational landings. The ASMFC will provide the Regional
Administrator with the individual state and/or multi-state region
conservation measures for the approved state and/or multi-state region
proposals and, in the case of disapproved state and/or multi-state
region proposals, the precautionary default measures.
(iii) The ASMFC may allow states assigned the precautionary default
measures to resubmit revised management measures. The ASMFC will detail
the procedures by which the state can develop alternate measures. The
ASMFC will notify the Regional Administrator of any resubmitted state
proposals approved subsequent to publication of the final rule and the
Regional Administrator will publish a notice in the Federal Register to
notify the public.
(iv) After considering public comment, the Regional Administrator
will publish a final rule in the Federal Register to implement either
the state specific conservation equivalency measures or coastwide
measures to ensure that the applicable specified target is not
exceeded.
(e) Research quota. See Sec. 648.22(g).

0
24. Section 648.103 is revised to read as follows:

Sec. 648.103 Summer flounder accountability measures.

(a) Commercial sector EEZ closure. The Regional Administrator shall
close the EEZ to fishing for summer flounder by commercial vessels for
the remainder of the calendar year by publishing notification in the
Federal Register if he/she determines that the inaction of one or more
states will cause the commercial sector ACL to be exceeded, or if the
commercial fisheries in all states have been closed. The Regional
Administrator may reopen the EEZ if earlier inaction by a state has
been remedied by that state, or if commercial fisheries in one or more
states have been reopened without causing the sector ACL to be
exceeded.
(b) State commercial landing quotas. The Regional Administrator
will monitor state commercial quotas based on dealer reports and other
available information and shall determine the date when a state
commercial quota will be harvested. The Regional Administrator shall
publish notification in the Federal Register advising a state that,
effective upon a specific date, its commercial quota has been harvested
and notifying vessel and dealer permit holders that no commercial quota
is available for landing summer flounder in that state.
(1) Commercial ACL overage evaluation. The commercial sector ACL
will be evaluated based on a single-year examination of total catch
(landings and dead discards). Both landings and dead discards will be
evaluated in determining if the commercial sector ACL has been
exceeded.
(2) Commercial landings overage repayment. All summer flounder
landed for sale in a state shall be applied against that state's annual
commercial quota, regardless of where the summer flounder were
harvested. Any landings in excess of the commercial quota in any state,
inclusive of any state-to-state transfers, will be deducted from that
state's annual quota for the following year in the final rule that
establishes the annual state-by-state quotas, irrespective of whether
the commercial sector ACL is exceeded. The overage deduction will be
based on landings for the current year through October 31 and on
landings for the previous calendar year that were not included when the
overage deduction was made in the final rule that established the
annual quota for the current year. If the Regional Administrator
determines during the fishing year that any part of an overage
deduction was based on erroneous landings data that were in excess of
actual landings for the period concerned, he/she will restore the
overage that was deducted in error to the appropriate quota allocation.
The Regional Administrator will publish notification in the Federal
Register announcing such restoration.
(c) Recreational landings sector closure. The Regional
Administrator will monitor recreational landings based on the best
available data and shall determine if the recreational harvest limit
has been met or exceeded. The determination will be based on observed
landings and will not utilize projections of future landings. At such
time that the available data indicate that the recreational harvest
limit has been met or exceeded, the Regional Administrator shall
publish notification in the Federal Register advising that, effective
on a specific date, the summer flounder recreational fishery in the EEZ
shall be closed for remainder of the calendar year.
(1) Recreational ACL overage evaluation. The recreational sector
ACL will be evaluated based on a 3-year moving average comparison of
total catch (landings and dead discards). Both landings and dead
discards will be evaluated in determining if the 3-year average
recreational sector ACL has been exceeded. The 3-year moving average
will be phased in over the first 3 years, beginning with 2012: Total
recreational catch from 2012 will be compared to the 2012 recreational
sector ACL; the average total catch from both 2012 and 2013 will be
compared to the average of the 2012 and 2013 recreational sector ACLs;
the average total catch from 2012, 2013, and 2014 will be compared to
the average of the 2012, 2013, and 2014 recreational sector ACLs; and
for all subsequent years, the preceding 3-year average recreational
total catch will be compared to the preceding 3-year average
recreational sector ACL.
(2) Recreational landing overage repayment. If available data
indicate that the recreational sector ACL has been exceeded and the
landings have exceeded the RHL, the exact poundage of the landings
overage will be deducted, as soon as possible, from a subsequent single
fishing year recreational sector ACT.
(d) Non-landing accountability measures, by sector. In the event
that a sector ACL has been exceeded and the overage has not been
accommodated through landing-based AMs, then the exact amount by which
the sector ACL was exceeded, in pounds, will be deducted, as soon as
possible, from the applicable subsequent single fishing year sector
ACL.
(e) State/Federal disconnect AM. If the total catch, allowable
landing, commercial quotas and/or RHL measures adopted by the ASMFC
Summer Flounder Management Board and the MAFMC differ for a given
fishing year, administrative action will be taken as soon as possible
to revisit the respective recommendations of the two groups. The intent
of this action shall be to achieve alignment through consistent state
and Federal measures so no differential effects occur on Federal permit
holders.

[[Page 60629]]

0
25. Section 648.104 is revised to read as follows:

Sec. 648.104 Summer flounder minimum fish sizes.

(a) Moratorium (commercial) permitted vessels. The minimum size for
summer flounder is 14 inches (35.6 cm) TL for all vessels issued a
moratorium permit under Sec. 648.4(a)(3), except on board party and
charter boats carrying passengers for hire or carrying more than three
crew members, if a charter boat, or more than five crew members, if a
party boat.
(b) Party/charter permitted vessels and recreational fishery
participants. Unless otherwise specified pursuant to Sec. 648.107, the
minimum size for summer flounder is 18.5 inches (46.99 cm) TL for all
vessels that do not qualify for a moratorium permit under Sec.
648.4(a)(3), and charter boats holding a moratorium permit if fishing
with more than three crew members, or party boats holding a moratorium
permit if fishing with passengers for hire or carrying more than five
crew members.
(c) The minimum sizes in this section apply to whole fish or to any
part of a fish found in possession, e.g., fillets, except that party
and charter vessels possessing valid state permits authorizing
filleting at sea may possess fillets smaller than the size specified if
all state requirements are met.

0
26. Section 648.105 is revised to read as follows:

Sec. 648.105 Summer flounder recreational fishing season.

Unless otherwise specified pursuant to Sec. 648.107, vessels that
are not eligible for a moratorium permit under Sec. 648.4(a)(3), and
fishermen subject to the possession limit, may fish for summer flounder
from May 1 through September 30. This time period may be adjusted
pursuant to the procedures in Sec. 648.102.

0
27. Section 648.106 is revised to read as follows:

Sec. 648.106 Summer flounder possession restrictions.

(a) Party/charter and recreational possession limits. Unless
otherwise specified pursuant to Sec. 648.107, no person shall possess
more than two summer flounder in, or harvested from, the EEZ, unless
that person is the owner or operator of a fishing vessel issued a
summer flounder moratorium permit, or is issued a summer flounder
dealer permit. Persons aboard a commercial vessel that is not eligible
for a summer flounder moratorium permit are subject to this possession
limit. The owner, operator, and crew of a charter or party boat issued
a summer flounder moratorium permit are subject to the possession limit
when carrying passengers for hire or when carrying more than five crew
members for a party boat, or more than three crew members for a charter
boat. This possession limit may be adjusted pursuant to the procedures
in Sec. 648.102.
(b) If whole summer flounder are processed into fillets, the number
of fillets will be converted to whole summer flounder at the place of
landing by dividing the fillet number by two. If summer flounder are
filleted into single (butterfly) fillets, each fillet is deemed to be
from one whole summer flounder.
(c) Summer flounder harvested by vessels subject to the possession
limit with more than one person on board may be pooled in one or more
containers. Compliance with the daily possession limit will be
determined by dividing the number of summer flounder on board by the
number of persons on board, other than the captain and the crew. If
there is a violation of the possession limit on board a vessel carrying
more than one person, the violation shall be deemed to have been
committed by the owner and operator of the vessel.
(d) Commercially permitted vessel possession limits. Owners and
operators of otter trawl vessels issued a permit under Sec.
648.4(a)(3) that fish with or possess nets or pieces of net on board
that do not meet the minimum mesh requirements and that are not stowed
in accordance with Sec. 648.108(e), may not retain 100 lb (45.4 kg) or
more of summer flounder from May 1 through October 31, or 200 lb (90.7
kg) or more of summer flounder from November 1 through April 30, unless
the vessel possesses a valid summer flounder small-mesh exemption LOA
and is fishing in the exemption area as specified in Sec. 648.108(b).
Summer flounder on board these vessels must be stored so as to be
readily available for inspection in standard 100-lb (45.3-kg) totes or
fish boxes having a liquid capacity of 18.2 gal (70 L), or a volume of
not more than 4,320 in\3\ (2.5 ft\3\ or 70.79 cm\3\).
0
28. Section 648.107 is revised to read as follows:

Sec. 648.107 Conservation equivalent measures for the summer flounder
party/charter and recreational fishery.

(a) The Regional Administrator has determined that the recreational
fishing measures proposed to be implemented by Massachusetts through
North Carolina for 2011 are the conservation equivalent of the
recreational fishing season, minimum fish size, and possession limit
prescribed in Sec. Sec. 648.104(b), 648.105, and 648.106(a),
respectively. This determination is based on a recommendation from the
Summer Flounder Board of the ASMFC.
(1) Federally permitted party and charter vessels subject to the
recreational fishing measures of this part, and other recreational
fishing vessels harvesting summer flounder in or from the EEZ and
subject to the recreational fishing measures of this part, landing
summer flounder in a state whose fishery management measures are
determined by the Regional Administrator to be conservation equivalent
shall not be subject to the more restrictive Federal measures, pursuant
to the provisions of Sec. 648.4(b). Those vessels shall be subject to
the recreational fishing measures implemented by the state in which
they land.
(2) [Reserved]
(b) Federally permitted vessels subject to the recreational fishing
measures of this part, and other recreational fishing vessels subject
to the recreational fishing measures of this part and registered in
states whose fishery management measures are not determined by the
Regional Administrator to be the conservation equivalent of the season,
minimum size, and possession limit prescribed in Sec. Sec. 648.104(b),
648.105, and 648.106(a), respectively, due to the lack of, or the
reversal of, a conservation equivalent recommendation from the Summer
Flounder Board of the ASMFC, shall be subject to the following
precautionary default measures: Season--May 1 through September 30;
minimum size--20.0 inches (50.80 cm); and possession limit--two fish.

0
29. Section 648.108 is revised to read as follows:

Sec. 648.108 Summer flounder gear restrictions.

(a) General. (1) Otter trawlers whose owners are issued a summer
flounder permit and that land or possess 100 lb (45.4 kg) or more of
summer flounder from May 1 through October 31, or 200 lb (90.7 kg) or
more of summer flounder from November 1 through April 30, per trip,
must fish with nets that have a minimum mesh size of 5.5-inch (14.0-cm)
diamond or 6.0-inch (15.2-cm) square mesh applied throughout the body,
extension(s), and codend portion of the net.
(2) Mesh size is measured by using a wedge-shaped gauge having a
taper of 2 cm (0.79 inches) in 8 cm (3.15 inches), and a thickness of
2.3 mm (0.09 inches), inserted into the meshes under a pressure or pull
of 5 kg (11.02 lb) for

[[Page 60630]]

mesh size less than 120 mm (4.72 inches) and under a pressure or pull
of 8 kg (17.64 lb) for mesh size at, or greater than, 120 mm (4.72
inches). The mesh size is the average of the measurements of any series
of 20 consecutive meshes for nets having 75 or more meshes, and 10
consecutive meshes for nets having fewer than 75 meshes. The mesh in
the regulated portion of the net is measured at least five meshes away
from the lacings, running parallel to the long axis of the net.
(b) Exemptions. Unless otherwise restricted by this part, the
minimum mesh-size requirements specified in paragraph (a)(1) of this
section do not apply to:
(1) Vessels issued a summer flounder moratorium permit, a Summer
Flounder Small-Mesh Exemption Area letter of authorization (LOA),
required under paragraph (b)(1)(i) of this section, and fishing from
November 1 through April 30 in the exemption area, which is east of the
line that follows 72[deg]30.0' W. long. until it intersects the outer
boundary of the EEZ (copies of a map depicting the area are available
upon request from the Regional Administrator). Vessels fishing under
the LOA shall not fish west of the line. Vessels issued a permit under
Sec. 648.4(a)(3)(iii) may transit the area west or south of the line,
if the vessel's fishing gear is stowed in a manner prescribed under
Sec. 648.108(e), so that it is not ``available for immediate use''
outside the exempted area. The Regional Administrator may terminate
this exemption if he/she determines, after a review of sea sampling
data, that vessels fishing under the exemption are discarding more than
10 percent, by weight, of their entire catch of summer flounder per
trip. If the Regional Administrator makes such a determination, he/she
shall publish notification in the Federal Register terminating the
exemption for the remainder of the exemption season.
(i) Requirements. (A) A vessel fishing in the Summer Flounder
Small-Mesh Exemption Area under this exemption must have on board a
valid LOA issued by the Regional Administrator.
(B) The vessel must be in enrolled in the exemption program for a
minimum of 7 days.
(ii) [Reserved]
(2) Vessels fishing with a two-seam otter trawl fly net with the
following configuration, provided that no other nets or netting with
mesh smaller than 5.5 inches (14.0 cm) are on board:
(i) The net has large mesh in the wings that measures 8 inches
(20.3 cm) to 64 inches (162.6 cm).
(ii) The first body section (belly) of the net has 35 or more
meshes that are at least 8 inches (20.3 cm).
(iii) The mesh decreases in size throughout the body of the net to
2 inches (5 cm) or smaller towards the terminus of the net.
(3) The Regional Administrator may terminate this exemption if he/
she determines, after a review of sea sampling data, that vessels
fishing under the exemption, on average, are discarding more than 1
percent of their entire catch of summer flounder per trip. If the
Regional Administrator makes such a determination, he/she shall publish
notification in the Federal Register terminating the exemption for the
remainder of the calendar year.
(c) Net modifications. No vessel subject to this part shall use any
device, gear, or material, including, but not limited to, nets, net
strengtheners, ropes, lines, or chafing gear, on the top of the
regulated portion of a trawl net; except that, one splitting strap and
one bull rope (if present) consisting of line or rope no more than 3
inches (7.2 cm) in diameter may be used if such splitting strap and/or
bull rope does not constrict, in any manner, the top of the regulated
portion of the net, and one rope no greater than 0.75 inches (1.9 cm)
in diameter extending the length of the net from the belly to the
terminus of the codend along the top, bottom, and each side of the net.
``Top of the regulated portion of the net'' means the 50 percent of the
entire regulated portion of the net that (in a hypothetical situation)
will not be in contact with the ocean bottom during a tow if the
regulated portion of the net were laid flat on the ocean floor. For the
purpose of this paragraph (c), head ropes shall not be considered part
of the top of the regulated portion of a trawl net. A vessel shall not
use any means or mesh configuration on the top of the regulated portion
of the net, as defined paragraph (c) of this section, if it obstructs
the meshes of the net or otherwise causes the size of the meshes of the
net while in use to diminish to a size smaller than the minimum
specified in paragraph (a) of this section.
(d) Mesh obstruction or constriction. (1) A fishing vessel may not
use any mesh configuration, mesh construction, or other means on or in
the top of the net, as defined in paragraph (c) of this section, that
obstructs the meshes of the net in any manner.
(2) No person on any vessel may possess or fish with a net capable
of catching summer flounder in which the bars entering or exiting the
knots twist around each other.
(e) Stowage of nets. Otter trawl vessels retaining 100 lb (45.3 kg)
or more of summer flounder from May 1 through October 31, or 200 lb
(90.6 kg) or more of summer flounder from November 1 through April 30,
and subject to the minimum mesh size requirement of paragraph (a)(1) of
this section may not have ``available for immediate use'' any net or
any piece of net that does not meet the minimum mesh size requirement,
or any net, or any piece of net, with mesh that is rigged in a manner
that is inconsistent with the minimum mesh size requirement. A net that
is stowed in conformance with one of the methods specified in Sec.
648.23(b) and that can be shown not to have been in recent use is
considered to be not ``available for immediate use.''
(f) The minimum net mesh requirement may apply to any portion of
the net. The minimum mesh size and the portion of the net regulated by
the minimum mesh size may be adjusted pursuant to the procedures in
Sec. 648.102.

0
30. Section 648.109 is added to subpart G to read as follows:

Sec. 648.109 Sea turtle conservation.

Sea turtle regulations are found at 50 CFR parts 222 and 223.

0
31. Section 648.110 is added to subpart G to read as follows:

Sec. 648.110 Summer flounder framework adjustments to management
measures.

(a) Within season management action. The MAFMC may, at any time,
initiate action to add or adjust management measures within the Summer
Flounder, Scup, and Black Sea Bass FMP if it finds that action is
necessary to meet or be consistent with the goals and objectives of the
FMP.
(1) Adjustment process. The MAFMC shall develop and analyze
appropriate management actions over the span of at least two MAFMC
meetings. The MAFMC must provide the public with advance notice of the
availability of the recommendation(s), appropriate justification(s) and
economic and biological analyses, and the opportunity to comment on the
proposed adjustment(s) at the first meeting and prior to and at the
second MAFMC meeting. The MAFMC's recommendations on adjustments or
additions to management measures must come from one or more of the
following categories: Adjustments within existing ABC control rule
levels; adjustments to the existing MAFMC risk policy; introduction of
new AMs, including sub-ACTs; minimum fish size; maximum fish size; gear
restrictions; gear requirements or prohibitions; permitting
restrictions; recreational

[[Page 60631]]

possession limit; recreational seasons; closed areas; commercial
seasons; commercial trip limits; commercial quota system including
commercial quota allocation procedure and possible quota set asides to
mitigate bycatch; recreational harvest limit; specification quota
setting process; FMP Monitoring Committee composition and process;
description and identification of essential fish habitat (and fishing
gear management measures that impact EFH); description and
identification of habitat areas of particular concern; regional gear
restrictions; regional season restrictions (including option to split
seasons); restrictions on vessel size (LOA and GRT) or shaft
horsepower; operator permits; changes to the Northeast Region SBRM
(including the CV-based performance standard, the means by which
discard data are collected/obtained, fishery stratification, reports,
and/or industry-funded observers or observer set-aside programs); any
other commercial or recreational management measures; any other
management measures currently included in the FMP; and set aside quota
for scientific research. Issues that require significant departures
from previously contemplated measures or that are otherwise introducing
new concepts may require an amendment of the FMP instead of a framework
adjustment.
(2) MAFMC recommendation. After developing management actions and
receiving public testimony, the MAFMC shall make a recommendation to
the Regional Administrator. The MAFMC's recommendation must include
supporting rationale, if management measures are recommended, an
analysis of impacts, and a recommendation to the Regional Administrator
on whether to issue the management measures as a final rule. If the
MAFMC recommends that the management measures should be issued as a
final rule, it must consider at least the following factors and provide
support and analysis for each factor considered:
(i) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether the regulations would have to be in place
for an entire harvest/fishing season;
(ii) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of recommended management measures;
(iii) Whether there is an immediate need to protect the resource;
and
(iv) Whether there will be a continuing evaluation of management
measures adopted following their implementation as a final rule.
(3) NMFS action. If the MAFMC's recommendation includes adjustments
or additions to management measures and, if after reviewing the MAFMC's
recommendation and supporting information:
(i) NMFS concurs with the MAFMC's recommended management measures
and determines that the recommended management measures should be
issued as a final rule based on the factors in paragraph (a)(2) of this
section, the measures will be issued as a final rule in the Federal
Register.
(ii) If NMFS concurs with the MAFMC's recommended management
measures and determines that the recommended management measures should
be published first as a proposed rule, the measures will be published
as a proposed rule in the Federal Register. After additional public
comment, if NMFS concurs with the MAFMC recommendation, the measures
will be published as a final rule in the Federal Register.
(iii) If NMFS does not concur, the MAFMC will be notified in
writing of the reasons for the non-concurrence.
(4) Emergency actions. Nothing in this section is meant to derogate
from the authority of the Secretary to take emergency action under
section 305(e) of the Magnuson-Stevens Act.
(b) [Reserved]

0
32. Section 648.120 is revised to read as follows:

Sec. 648.120 Scup Annual Catch Limit (ACL).

(a) The Scup Monitoring Committee shall recommend to the MAFMC
separate ACLs for the commercial and recreational scup fisheries, the
sum total of which shall be equal to the ABC recommended by the SSC.
(1) Sector allocations. The commercial and recreational fishing
sector ACLs will be established consistent with the allocation
guidelines contained in the Summer Flounder, Scup, and Black Sea Bass
FMP.
(2) Periodicity. The scup commercial and recreational sector ACLs
may be established on an annual basis for up to 3 years at a time,
dependent on whether the SSC provides single or multiple year ABC
recommendations.
(b) Performance review. The Scup Monitoring Committee shall conduct
a detailed review of fishery performance relative to the sector ACLs at
least every 5 years.
(1) If one or both of the sector-specific ACLs is exceeded with a
frequency greater than 25 percent (i.e., more than once in 4 years or
any 2 consecutive years), the Scup Monitoring Committee will review
fishery performance information and make recommendations to the MAFMC
for changes in measures intended to ensure ACLs are not as frequently
exceeded.
(2) The MAFMC may specify more frequent or more specific ACL
performance review criteria as part of a stock rebuilding plan
following a determination that the scup stock has become overfished.
(3) Performance reviews shall not substitute for annual reviews
that occur to ascertain if prior year ACLs have been exceeded but may
be conducted in conjunction with such reviews.

0
33. Section 648.121 is revised to read as follows:

Sec. 648.121 Scup Annual Catch Target (ACT).

(a) The Scup Monitoring Committee shall identify and review the
relevant sources of management uncertainty to recommend ACTs for the
commercial and recreational fishing sectors as part of the scup
specification process. The Scup Monitoring Committee recommendations
shall identify the specific sources of management uncertainty that were
considered, technical approaches to mitigating these sources of
uncertainty, and any additional relevant information considered in the
ACT recommendation process.
(1) Sectors. Commercial and recreational specific ACTs shall be
less than or equal to the sector-specific ACLs. The Scup Monitoring
Committee shall recommend any reduction in catch necessary to address
sector-specific management uncertainty, consistent with paragraph (a)
of this section.
(2) Periodicity. ACTs may be established on an annual basis for up
to 3 years at a time, dependent on whether the SSC provides single or
multiple year ABC recommendations.
(b) Performance review. The Scup Monitoring Committee shall conduct
a detailed review of fishery performance relative to ACTs in
conjunction with any ACL performance review, as outlined in Sec.
648.120(b)(1) through (3).

0
34. Section 648.122 is revised to read as follows:

Sec. 648.122 Scup specifications.

(a) Commercial quota, recreational landing limits, research set-
asides, and other specification measures. The Scup Monitoring Committee
shall recommend to the Demersal Species Committee of the MAFMC and the
ASMFC through the specifications process, for use in conjunction with
each ACL and ACT, a sector specific research set-aside, estimates of
sector-related discards,

[[Page 60632]]

recreational harvest limit, and commercial quota, along with other
measures, as needed, that are projected to ensure the sector-specific
ACL for an upcoming fishing year or years will not be exceeded. The
measures to be considered by the Scup Monitoring Committee are as
follows:
(1) Research quota set from a range of 0 to 3 percent of the
maximum allowed to achieve the specified exploitation rate.
(2) The commercial quota for each of the three periods specified in
paragraph (c)(1) of this section for research quota.
(3) Possession limits for the Winter I and Winter II periods,
including possession limits that result from potential rollover of
quota from Winter I to Winter II. The possession limit is the maximum
quantity of scup that is allowed to be landed within a 24-hour period
(calendar day).
(4) Percent of landings attained at which the landing limit for the
Winter I period will be reduced.
(5) All scup landed for sale in any state during a quota period
shall be applied against the coastwide commercial quota for that
period, regardless of where the scup were harvested, except as provided
in paragraph (c)(5) of this section.
(6) Minimum mesh size.
(7) Recreational possession limit set from a range of 0 to 50 scup
to achieve the recreational harvest limit, set after the reduction for
research quota.
(8) Recreational minimum fish size.
(9) Recreational season.
(10) Restrictions on gear.
(11) Season and area closures in the commercial fishery.
(12) Total allowable landings on an annual basis for a period not
to exceed 3 years.
(13) Changes, as appropriate, to the Northeast Region SBRM,
including the CV-based performance standard, fishery stratification,
and/or reports.
(14) Modification of existing AM measures and ACT control rules
utilized by the Scup Monitoring Committee.
(b) Specification of fishing measures. The Demersal Species
Committee shall review the recommendations of the Scup Monitoring
Committee. Based on these recommendations and any public comment, the
Demersal Species Committee shall recommend to the MAFMC measures
necessary to assure that the specified ACLs will not be exceeded. The
MAFMC's recommendation must include supporting documentation, as
appropriate, concerning the environmental and economic impacts of the
recommendations. The Regional Administrator shall review these
recommendations and any recommendations of the ASMFC. After such
review, NMFS will publish a proposed rule in the Federal Register to
implement a commercial quota, specifying the amount of quota allocated
to each of the three periods, possession limits for the Winter I and
Winter II periods, including possession limits that result from
potential rollover of quota from Winter I to Winter II, the percentage
of landings attained during the Winter I fishery at which the
possession limits will be reduced, a recreational harvest limit, and
additional management measures for the commercial fishery. If the
Regional Administrator determines that additional recreational measures
are necessary to ensure that the sector ACL will not be exceeded, he or
she will publish a proposed rule in the Federal Register to implement
additional management measures for the recreational fishery. After
considering public comment, the Regional Administrator will publish a
final rule in the Federal Register to implement annual measures.
(c) Distribution of commercial quota. (1) The annual commercial
quota will be allocated into three periods, based on the following
percentages:

------------------------------------------------------------------------
Period Percent
------------------------------------------------------------------------
Winter I--January-April....................................... 45.11
Summer--May-October........................................... 38.95
Winter II--November-December.................................. 15.94
------------------------------------------------------------------------

(2) The commercial quotas for each period will each be distributed
to the coastal states from Maine through North Carolina on a coastwide
basis.
(d) Winter I and II commercial quota adjustment procedures. The
Regional Administrator will monitor the harvest of commercial quota for
the Winter I period based on dealer reports, state data, and other
available information and shall determine the total amount of scup
landed during the Winter I period. In any year that the Regional
Administrator determines that the landings of scup during Winter I are
less than the Winter I quota for that year, he/she shall increase,
through publication of a notification in the Federal Register, provided
such rule complies with the requirements of the Administrative
Procedure Act, the Winter II quota for that year by the amount of the
Winter I under-harvest. The Regional Administrator shall also adjust,
through publication of a notification in the Federal Register, the
Winter II possession limits consistent with the amount of the quota
increase, based on the possession limits established through the annual
specifications-setting process.
(e) Research quota. See Sec. 648.21(g).

0
35. Section 648.123 is revised to read as follows:

Sec. 648.123 Scup accountability measures.

(a) Commercial sector period closures. The Regional Administrator
will monitor the harvest of commercial quota for each quota period
based on dealer reports, state data, and other available information
and shall determine the date when the commercial quota for a period
will be harvested. NMFS shall close the EEZ to fishing for scup by
commercial vessels for the remainder of the indicated period by
publishing notification in the Federal Register advising that,
effective upon a specific date, the commercial quota for that period
has been harvested, and notifying vessel and dealer permit holders that
no commercial quota is available for landing scup for the remainder of
the period.
(1) Commercial ACL overage evaluation. The commercial sector ACL
will be evaluated based on a single-year examination of total catch
(landings and dead discards). Both landings and dead discards will be
evaluated in determining if the commercial sector ACL has been
exceeded.
(2) Commercial landings overage repayment by quota period. (i) All
scup landed for sale in any state during a quota period shall be
applied against the coastwide commercial quota for that period,
regardless of where the scup were harvested, except as provided in
paragraph (a)(2)(iv) of this section, and irrespective of whether the
commercial sector ACL is exceeded. Any current year landings in excess
of the commercial quota in any quota period will be deducted from that
quota period's annual quota in the following year as prescribed in
paragraphs (a)(2)(ii) through (iii) of this section:
(ii) For the Winter I and Summer quota periods, landings in excess
of the allocation will be deducted from the appropriate quota period
for the following year in the final rule that establishes the annual
quota. The overage deduction will be based on landings for the current
year through October 31 and on landings for the previous calendar year
that were not included when the overage deduction was made in the final
rule that established the period quotas for the current year. If the
Regional Administrator determines during the fishing year that any part
of an overage deduction was based on erroneous landings data that were
in excess of actual landings for the period

[[Page 60633]]

concerned, he/she will restore the overage that was deducted in error
to the appropriate quota allocation. The Regional Administrator will
publish notification in the Federal Register announcing the
restoration.
(iii) For the Winter II quota period, landings in excess of the
allocation will be deducted from the Winter II period for the following
year through notification in the Federal Register during July of the
following year. The overage deduction will be based on landings
information available for the Winter II period as of June 30 of the
following year. If the Regional Administrator determines during the
fishing year that any part of an overage deduction was based on
erroneous landings data that were in excess of actual landings for the
period concerned, he/she will restore the overage that was deducted in
error to the appropriate quota allocation. The Regional Administrator
will publish notification in the Federal Register announcing the
restoration.
(iv) During a fishing year in which the Winter I quota period is
closed prior to April 15, a state may apply to the Regional
Administrator for authorization to count scup landed for sale in that
state from April 15 through April 30 by state-only permitted vessels
fishing exclusively in waters under the jurisdiction of that state
against the Summer period quota. Requests to the Regional Administrator
to count scup landings in a state from April 15 through April 30
against the Summer period quota must be made by letter signed by the
principal state official with marine fishery management responsibility
and expertise, or his/her designee, and must be received by the
Regional Administrator no later than April 15. Within 10 working days
following receipt of the letter, the Regional Administrator shall
notify the appropriate state official of the disposition of the
request.
(b) Recreational landings sector closure. The Regional
Administrator will monitor recreational landings based on the best
available data and shall determine if the recreational harvest limit
has been met or exceeded. The determination will be based on observed
landings and will not utilize projections of future landings. At such
time that the available data indicate that the recreational harvest
limit has been met or exceeded, the Regional Administrator shall
publish notification in the Federal Register advising that, effective
on a specific date, the scup recreational fishery in the EEZ shall be
closed for remainder of the calendar year.
(1) Recreational ACL overage evaluation. The recreational sector
ACL will be evaluated based on a 3-year moving average comparison of
total catch (landings and dead discards). Both landings and dead
discards will be evaluated in determining if the 3-year average
recreational sector ACL has been exceeded. The 3-year moving average
will be phased in over the first 3 years, beginning with 2012: Total
recreational total catch from 2012 will be compared to the 2012
recreational sector ACL; the average total catch from both 2012 and
2013 will be compared to the average of the 2012 and 2013 recreational
sector ACLs; the average total catch from 2012, 2013, and 2014 will be
compared to the average of 2012, 2013, and 2014 recreational sector
ACLs; and for all subsequent years, the preceding 3-year average
recreational total catch will be compared to the preceding 3-year
average recreational sector ACL.
(2) Recreational landing overage repayment. If available data
indicate that the recreational sector ACL has been exceeded and the
landings have exceeded RHL, the exact amount of the landings overage in
pounds will be deducted, as soon as possible, from a subsequent single
fishing year recreational sector ACT.
(c) Non-landing accountability measures, by sector. In the event
that a sector ACL has been exceeded and the overage has not been
accommodated through landing-based AMs, then the exact amount by which
the sector ACL was exceeded will be deducted, as soon as practicable,
from a subsequent single fishing year applicable sector ACL through the
specification process.
(d) State/Federal disconnect AM. If the total catch, allowable
landing, commercial quotas and/or RHL measures adopted by the ASMFC
Scup Management Board and the MAFMC differ for a given fishing year,
administrative action will be taken as soon as is practicable to
revisit the respective recommendations of the two groups. The intent of
this action shall be to achieve alignment through consistent state and
Federal measures so no differential effects occur on Federal permit
holders.
0
36. Section 648.124 is revised to read as follows:

Sec. 648.124 Scup commercial season and commercial fishery area
restrictions.

(a) Southern Gear Restricted Area-- (1) Restrictions. From January
1 through March 15, all trawl vessels in the Southern Gear Restricted
Area that fish for or possess non-exempt species as specified in
paragraph (a)(2) of this section must fish with nets that have a
minimum mesh size of 5.0-inch (12.7-cm) diamond mesh, applied
throughout the codend for at least 75 continuous meshes forward of the
terminus of the net. For trawl nets with codends (including an
extension) of fewer than 75 meshes, the entire trawl net must have a
minimum mesh size of 5.0 inches (12.7 cm) throughout the net. The
Southern Gear Restricted Area is an area bounded by straight lines
connecting the following points in the order stated (copies of a chart
depicting the area are available from the Regional Administrator upon
request):

Southern Gear Restricted Area
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
SGA1.............................. 39[deg]20' 72[deg]53'
SGA2.............................. 39[deg]20' 72[deg]28'
SGA3.............................. 38[deg]00' 73[deg]58'
SGA4.............................. 37[deg]00' 74[deg]43'
SGA5.............................. 36[deg]30' 74[deg]43'
SGA6.............................. 36[deg]30' 75[deg]03'
SGA7.............................. 37[deg]00' 75[deg]03'
SGA8.............................. 38[deg]00' 74[deg]23'
SGA1.............................. 39[deg]20' 72[deg]53'
------------------------------------------------------------------------

(2) Non-exempt species. Unless otherwise specified in paragraph
(d) of this section, the restrictions specified in paragraph (a)(1) of
this section apply only to vessels in the Southern Gear Restricted Area
that are fishing for or in possession of the following non-exempt
species: Loligo squid; black sea bass; and silver hake (whiting).
(b) Northern Gear Restricted Area 1--(1) Restrictions. From
November 1 through December 31, all trawl vessels in the Northern Gear
Restricted Area 1 that fish for or possess non-exempt species as
specified in paragraph (b)(2) of this section must fish with nets of
5.0-inch (12.7-cm) diamond mesh, applied throughout the codend for at
least 75 continuous meshes forward of the terminus of the net. For
trawl nets with codends (including an extension) of fewer than 75
meshes, the entire trawl net must have a minimum mesh size of 5.0
inches (12.7 cm) throughout the net. The Northern Gear Restricted Area
1 is an area bounded by straight lines connecting the following points
in the order stated (copies of a chart depicting the area are available
from the Regional Administrator upon request):

Northern Gear Restricted Area 1
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
NGA1.............................. 41[deg]00' 71[deg]00'
NGA2.............................. 41[deg]00' 71[deg]30'
NGA3.............................. 40[deg]00' 72[deg]40'
NGA4.............................. 40[deg]00' 72[deg]05'

[[Page 60634]]

NGA1.............................. 41[deg]00' 71[deg]00'
------------------------------------------------------------------------

(2) Non-exempt species. Unless otherwise specified in paragraph
(d) of this section, the restrictions specified in paragraph (b)(1) of
this section apply only to vessels in the Northern Gear Restricted Area
1 that are fishing for, or in possession of, the following non-exempt
species: Loligo squid; black sea bass; and silver hake (whiting).
(c) Transiting. Vessels that are subject to the provisions of the
Southern and Northern GRAs, as specified in paragraphs (a) and (b) of
this section, respectively, may transit these areas provided that trawl
net codends on board of mesh size less than that specified in
paragraphs (a) and (b) of this section are not available for immediate
use and are stowed in accordance with the provisions of Sec.
648.23(b).
(d) [Reserved]
(e) Addition or deletion of exemptions. The MAFMC may recommend to
the Regional Administrator, through the framework procedure specified
in Sec. 648.130(a), additions or deletions to exemptions for fisheries
other than scup. A fishery may be restricted or exempted by area, gear,
season, or other means determined to be appropriate to reduce bycatch
of scup.
(f) Exempted experimental fishing. The Regional Administrator may
issue an exempted experimental fishing permit (EFP) under the
provisions of Sec. 600.745(b), consistent with paragraph (d)(2) of
this section, to allow any vessel participating in a scup discard
mitigation research project to engage in any of the following
activities: Fish in the applicable gear restriction area; use fishing
gear that does not conform to the regulations; possess non-exempt
species specified in paragraphs (a)(2) and (b)(2) of this section; or
engage in any other activity necessary to project operations for which
an exemption from regulatory provision is required. Vessels issued an
EFP must comply with all conditions and restrictions specified in the
EFP.
(1) A vessel participating in an exempted experimental fishery in
the Scup Gear Restriction Area(s) must carry an EFP authorizing the
activity and any required Federal fishery permit on board.
(2) The Regional Administrator may not issue an EFP unless s/he
determines that issuance is consistent with the objectives of the FMP,
the provisions of the Magnuson-Stevens Act, and other applicable law
and will not:
(i) Have a detrimental effect on the scup resource and fishery;
(ii) Cause the quotas for any species of fish for any quota period
to be exceeded;
(iii) Create significant enforcement problems; or
(iv) Have a detrimental effect on the scup discard mitigation
research project.

0
37. Section 648.125 is revised to read as follows:

Sec. 648.125 Scup gear restrictions.

(a) Trawl vessel gear restrictions--(1) Minimum mesh size. No owner
or operator of an otter trawl vessel that is issued a scup moratorium
permit may possess 500 lb (226.8 kg) or more of scup from November 1
through April 30, or 200 lb (90.7 kg) or more of scup from May 1
through October 31, unless fishing with nets that have a minimum mesh
size of 5.0-inch (12.7-cm) diamond mesh, applied throughout the codend
for at least 75 continuous meshes forward of the terminus of the net,
and all other nets are stowed in accordance with Sec. 648.23(b)(1).
For trawl nets with codends (including an extension) of fewer than 75
meshes, the entire trawl net must have a minimum mesh size of 5.0
inches (12.7 cm) throughout the net. Scup on board these vessels must
be stowed separately and kept readily available for inspection.
Measurement of nets will conform with Sec. 648.80(f).
(2) Mesh-size measurement. Mesh sizes will be measured according to
the procedure specified in Sec. 648.104(a)(2).
(3) Net modification. The owner or operator of a fishing vessel
subject to the minimum mesh requirements in Sec. 648.124 and paragraph
(a)(1) of this section shall not use any device, gear, or material,
including, but not limited to, nets, net strengtheners, ropes, lines,
or chafing gear, on the top of the regulated portion of a trawl net.
However, one splitting strap and one bull rope (if present), consisting
of line or rope no more than 3 inches (7.2 cm) in diameter, may be used
if such splitting strap and/or bull rope does not constrict in any
manner the top of the regulated portion of the net, and one rope no
greater that 0.75 inches (1.9 cm) in diameter extending the length of
the net from the belly to the terminus of the codend along the top,
bottom, and each side of the net. ``Top of the regulated portion of the
net'' means the 50 percent of the entire regulated portion of the net
that (in a hypothetical situation) will not be in contact with the
ocean bottom during a tow if the regulated portion of the net were laid
flat on the ocean floor. For the purpose of this paragraph (a)(3), head
ropes are not considered part of the top of the regulated portion of a
trawl net.
(4) Mesh obstruction or constriction. (i) The owner or operator of
a fishing vessel subject to the minimum mesh restrictions in Sec.
648.124 and in paragraph (a)(1) of this section shall not use any mesh
construction, mesh configuration, or other means on, in, or attached to
the top of the regulated portion of the net, as defined in paragraph
(a)(3) of this section, if it obstructs or constricts the meshes of the
net in any manner.
(ii) The owner or operator of a fishing vessel subject to the
minimum mesh requirements in Sec. 648.124 and in paragraph (a)(1) of
this section may not use a net capable of catching scup if the bars
entering or exiting the knots twist around each other.
(5) Stowage of nets. The owner or operator of an otter trawl vessel
retaining 500 lb (226.8 kg) or more of scup from November 1 through
April 30, or 200 lb (90.7 kg) or more of scup from May 1 through
October 31, and subject to the minimum mesh requirements in paragraph
(a)(1) of this section, and the owner or operator of a midwater trawl
or other trawl vessel subject to the minimum size requirement in Sec.
648.126, may not have available for immediate use any net, or any piece
of net, not meeting the minimum mesh size requirement, or mesh that is
rigged in a manner that is inconsistent with the minimum mesh size. A
net that is stowed in conformance with one of the methods specified in
Sec. 648.23(b), and that can be shown not to have been in recent use,
is considered to be not available for immediate use.
(6) Roller gear. The owner or operator of an otter trawl vessel
issued a moratorium permit pursuant to Sec. 648.4(a)(6) shall not use
roller rig trawl gear equipped with rollers greater than 18 inches
(45.7 cm) in diameter.
(7) Procedures for changes. The minimum net mesh and the threshold
catch level at which it is required set forth in paragraph (a)(1) of
this section, and the maximum roller diameter set forth in paragraph
(a)(6) of this section, may be changed following the procedures in
Sec. 648.122.
(b) Pot and trap gear restrictions. Owners or operators of vessels
subject to this part must fish with scup pots or traps that comply with
the following:
(1) Degradable hinges. A scup pot or trap must have degradable
hinges and fasteners made of one of the following degradable materials:

[[Page 60635]]

(i) Untreated hemp, jute, or cotton string of \3/16\ inches (4.8
mm) diameter or smaller;
(ii) Magnesium alloy, timed float releases (pop-up devices) or
similar magnesium alloy fasteners; or
(iii) Ungalvanized or uncoated iron wire of 0.094 inches (2.4 mm)
diameter or smaller.
(iv) The use of a single non-degradable retention device designed
to prevent loss of the ghost panel after the degradable materials have
failed is permitted provided the device does not impair the egress
design function of the ghost panel by obstructing the opening or by
preventing the panel from opening at such time that the degradable
fasteners have completely deteriorated.
(2) Escape vents. (i) All scup pots or traps that have a circular
escape vent with a minimum of 3.1 inches (7.9 cm) in diameter, or a
square escape vent with a minimum of 2.25 inches (5.7 cm) for each
side, or an equivalent rectangular escape vent.
(ii) The minimum escape vent size set forth in paragraph (b)(2)(i)
of this section may be revised following the procedures in Sec.
648.122.
(3) Pot and trap identification. Pots or traps used in fishing for
scup must be marked with a code of identification that may be the
number assigned by the Regional Administrator and/or the identification
marking as required by the vessel's home port state.

0
37. Section 648.126 is revised to read as follows:

Sec. 648.126 Scup minimum fish sizes.

(a) Moratorium (commercially) permitted vessels. The minimum size
for scup is 9 inches (22.9 cm) TL for all vessels issued a moratorium
permit under Sec. 648.4(a)(6). If such a vessel is also issued a
charter and party boat permit and is carrying passengers for hire, or
carrying more than three crew members if a charter boat, or more than
five crew members if a party boat, then the minimum size specified in
paragraph (b) of this section applies.
(b) Party/Charter permitted vessels and recreational fishery
participants. The minimum size for scup is 10.5 inches (26.67 cm) TL
for all vessels that do not have a moratorium permit, or for party and
charter vessels that are issued a moratorium permit but are fishing
with passengers for hire, or carrying more than three crew members if a
charter boat, or more than five crew members if a party boat.
(c) The minimum size applies to whole fish or any part of a fish
found in possession, e.g., fillets. These minimum sizes may be adjusted
pursuant to the procedures in Sec. 648.122.

0
38. Section 648.127 is revised to read as follows:

Sec. 648.127 Scup recreational fishing season.

Vessels that are not eligible for a moratorium permit under Sec.
648.4(a)(6), and fishermen subject to the possession limit specified in
Sec. 648.128(a), may not possess scup, except from June 6 through
September 27. This time period may be adjusted pursuant to the
procedures in Sec. 648.122.

0
39. Section 648.128 is added to subpart H to read as follows:

Sec. 648.128 Scup possession restrictions.

(a) Party/Charter and recreational possession limits. No person
shall possess more than 10 scup in, or harvested from, the EEZ unless
that person is the owner or operator of a fishing vessel issued a scup
moratorium permit, or is issued a scup dealer permit. Persons aboard a
commercial vessel that is not eligible for a scup moratorium permit are
subject to this possession limit. The owner, operator, and crew of a
charter or party boat issued a scup moratorium permit are subject to
the possession limit when carrying passengers for hire or when carrying
more than five crew members for a party boat, or more than three crew
members for a charter boat. This possession limit may be adjusted
pursuant to the procedures in Sec. 648.122.
(b) If whole scup are processed into fillets, an authorized officer
will convert the number of fillets to whole scup at the place of
landing by dividing fillet number by 2. If scup are filleted into a
single (butterfly) fillet, such fillet shall be deemed to be from one
whole scup.
(c) Scup harvested by vessels subject to the possession limit with
more than one person aboard may be pooled in one or more containers.
Compliance with the daily possession limit will be determined by
dividing the number of scup on board by the number of persons aboard
other than the captain and crew. If there is a violation of the
possession limit on board a vessel carrying more than one person, the
violation shall be deemed to have been committed by the owner and
operator.
(d) Scup and scup parts harvested by a vessel with a moratorium or
charter or party boat scup permit, or in or from the EEZ north of
35[deg]15.3' N. lat., may not be landed with the skin removed.

0
40. Section 648.129 is added to subpart H to read as follows:

Sec. 648.129 Protection of threatened and endangered sea turtles.

This section supplements existing regulations issued to regulate
incidental take of sea turtles under authority of the Endangered
Species Act under 50 CFR parts 222 and 223. In addition to the measures
required under those parts, NMFS will investigate the extent of sea
turtle takes in flynet gear and, if deemed appropriate, may develop and
certify a Turtle Excluder Device for that gear.

0
41. Section 648.130 is added to subpart H to read as follows:

Sec. 648.130 Scup framework adjustments to management measures.

(a) Within season management action. See Sec. 648.110(a).
(1) Adjustment process. The MAFMC shall develop and analyze
appropriate management actions over the span of at least two MAFMC
meetings. The MAFMC must provide the public with advance notice of the
availability of the recommendation(s), appropriate justification(s) and
economic and biological analyses, and the opportunity to comment on the
proposed adjustment(s) at the first meeting and prior to and at the
second MAFMC meeting. The MAFMC's recommendations on adjustments or
additions to management measures must come from one or more of the
following categories: Adjustments within existing ABC control rules;
adjustments to the existing MAFMC risk policy; introduction of new AMs,
including sub-ACTs; minimum fish size; maximum fish size; gear
restrictions; gear restricted areas; gear requirements or prohibitions;
permitting restrictions; recreational possession limits; 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
limits; 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; regional
gear restrictions; regional season restrictions (including option to
split seasons); restrictions on vessel size (LOA and GRT) or shaft
horsepower; operator permits; any other commercial or recreational
management measures; any other management measures currently included
in the FMP; and set aside quota for scientific research.
(2) MAFMC recommendation. See Sec. 648.110(a)(2)(i) through (iv).
(3) NMFS action. See Sec. 648.110(a)(3)(i) through (iii).
(4) Emergency actions. See Sec. 648.110(a)(4).

[[Page 60636]]

(b) [Reserved]

0
42. Section 648.140 is revised to read as follows:

Sec. 648.140 Black sea bass Annual Catch Limit (ACL).

(a) The Black Sea Bass Monitoring Committee shall recommend to the
MAFMC separate ACLs for the commercial and recreational scup fisheries,
the sum total of which shall be equal to the ABC recommended by the
SSC.
(1) Sector allocations. The commercial and recreational fishing
sector ACLs will be established consistent with the allocation
guidelines contained in the Summer Flounder, Scup, and Black Sea Bass
Fishery Management Plan.
(2) Periodicity. The black sea bass commercial and recreational
sector ACLs may be established on an annual basis for up to 3 years at
a time, dependent on whether the SSC provides single or multiple year
ABC recommendations.
(b) Performance review. The Black Sea Bass Monitoring Committee
shall conduct a detailed review of fishery performance relative to the
sector ACLs at least every 5 years.
(1) If one or both of the sector-specific ACLs is exceeded with a
frequency greater than 25 percent (i.e., more than once in 4 years or
any 2 consecutive years), the Black Sea Bass Monitoring Committee will
review fishery performance information and make recommendations to the
MAFMC for changes in measures intended to ensure ACLs are not exceeded
as frequently.
(2) The MAFMC may specify more frequent or more specific ACL
performance review criteria as part of a stock rebuilding plan
following a determination that the black sea bass stock has become
overfished.
(3) Performance reviews shall not substitute for annual reviews
that occur to ascertain if prior year ACLs have been exceeded but may
be conducted in conjunction with such reviews.

0
43. Section 648.141 is revised to read as follows:

Sec. 648.141 Black sea bass Annual Catch Target (ACT).

(a) The Black Sea Bass Monitoring Committee shall identify and
review the relevant sources of management uncertainty to recommend ACTs
for the commercial and recreational fishing sectors as part of the
black sea bass specification process. The Black Sea Bass Monitoring
Committee recommendations shall identify the specific sources of
management uncertainty that were considered, technical approaches to
mitigating these sources of uncertainty, and any additional relevant
information considered in the ACT recommendation process.
(1) Sectors. Commercial and recreational specific ACTs shall be
less than or equal to the sector-specific ACLs. The Black Sea Bass
Monitoring Committee shall recommend any reduction in catch necessary
to address sector-specific management uncertainty, consistent with
paragraph (a) of this section.
(2) Periodicity. ACTs may be established on an annual basis for up
to 3 years at a time, dependent on whether the SSC provides single or
multiple-year ABC recommendations.
(b) Performance review. The Black Sea Bass Monitoring Committee
shall conduct a detailed review of fishery performance relative to ACTs
in conjunction with any ACL performance review, as outlined in Sec.
648.140(b)(1)-(3).

0
44. Section 648.142 is revised to read as follows:

Sec. 648.142 Black sea bass specifications.

(a) Commercial quota, recreational landing limit, research set-
aside, and other specification measures. The Black Sea Bass Monitoring
Committee will recommend to the Demersal Species Committee of the MAFMC
and the ASMFC, through the specification process, for use in
conjunction with the ACL and ACT, sector-specific research set-asides,
estimates of the sector-related discards, a recreational harvest limit,
a commercial quota, along with other measures, as needed, that are
projected to ensure the sector-specific ACL for an upcoming year or
years will not be exceeded. The following measures are to be consisted
by the Black Sea Bass Monitoring Committee:
(1) Research quota set from a range of 0 to 3 percent of the
maximum allowed.
(2) A commercial quota, allocated annually.
(3) A commercial possession limit for all moratorium vessels, with
the provision that these quantities be the maximum allowed to be landed
within a 24-hour period (calendar day).
(4) Commercial minimum fish size.
(5) Minimum mesh size in the codend or throughout the net and the
catch threshold that will require compliance with the minimum mesh
requirement.
(6) Escape vent size.
(7) A recreational possession limit set after the reduction for
research quota.
(8) Recreational minimum fish size.
(9) Recreational season.
(10) Restrictions on gear other than otter trawls and pots or
traps.
(11) Total allowable landings on an annual basis for a period not
to exceed 3 years.
(12) Changes, as appropriate, to the Northeast Region SBRM,
including the CV-based performance standard, fishery stratification,
and/or reports.
(13) Modification of the existing AM measures and ACT control rules
utilized by the Black Sea Bass Monitoring Committee.
(b) Specification fishing measures. The Demersal Species Committee
shall review the recommendations of the Black Sea Bass Monitoring
Committee. Based on these recommendations and any public comment, the
Demersal Species Committee shall make its recommendations to the MAFMC
with respect to the measures necessary to assure that the ACLs are not
exceeded. The MAFMC shall review these recommendations and, based on
the recommendations and public comment, make recommendations to the
Regional Administrator with respect to the measures necessary to assure
that sector ACLs are not exceeded. Included in the recommendation will
be supporting documents, as appropriate, concerning the environmental
and economic impacts of the final rule. The Regional Administrator will
review these recommendations and any recommendations of the ASMFC.
After such review, the Regional Administrator will publish a proposed
rule in the Federal Register to implement a commercial quota, a
recreational harvest limit, and additional management measures for the
commercial fishery. If the Regional Administrator determines that
additional recreational measures are necessary to assure that the
recreational sector ACL is not exceeded, he or she will publish a
proposed rule in the Federal Register to implement additional
management measures for the recreational fishery. After considering
public comment, the Regional Administrator will publish a final rule in
the Federal Register to implement the measures necessary to ensure that
recreational sector ACL is not exceeded.
(c) Distribution of annual commercial quota. The black sea bass
commercial quota will be allocated on a coastwide basis.
(d) Research quota. See Sec. 648.21(g).

0
45. Section 648.143 is revised to read as follows:

Sec. 648.143 Black sea bass Accountability Measures.

(a) Commercial sector fishery closure. The Regional Administrator
will monitor the harvest of commercial quota based on dealer reports,
state data, and other available information. All black

[[Page 60637]]

sea bass landed for sale in the states from North Carolina through
Maine by a vessel with a moratorium permit issued under Sec.
648.4(a)(7) shall be applied against the commercial annual coastwide
quota, regardless of where the black sea bass were harvested. All black
sea bass harvested north of 35[deg]15.3' N. lat., and landed for sale
in the states from North Carolina through Maine by any vessel without a
moratorium permit and fishing exclusively in state waters, will be
counted against the quota by the state in which it is landed, pursuant
to the FMP for the black sea bass fishery adopted by the ASMFC. The
Regional Administrator will determine the date on which the annual
coastwide quota will have been harvested; beginning on that date and
through the end of the calendar year, the EEZ north of 35[deg]15.3' N.
lat. will be closed to the possession of black sea bass. The Regional
Administrator will publish notification in the Federal Register
advising that, upon, and after, that date, no vessel may possess black
sea bass in the EEZ north of 35[deg]15.3' N. lat. during a closure, nor
may vessels issued a moratorium permit land black sea bass during the
closure. Individual states will have the responsibility to close their
ports to landings of black sea bass during a closure, pursuant to the
FMP for the black sea bass fishery adopted by the ASMFC.
(1) Commercial ACL overage evaluation. The commercial sector ACL
will be evaluated based on a single-year examination of total catch
(landings and dead discards). Both landings and dead discards will be
evaluated in determining if the commercial sector ACL has been
exceeded.
(2) Commercial landings overage repayment. Landings in excess of
the annual coastwide quota will be deducted from the quota allocation
for the following year in the final rule that establishes the annual
quota. The overage deduction will be based on landings for the current
year through September 30, and landings for the previous calendar year
were not included when the overage deduction was made in the final rule
that established the annual coastwide quota for the current year. If
the Regional Administrator determines during the fishing year that any
part of an overage deduction was based on erroneous landings data that
were in excess of actual landings for the period concerned, he/she will
restore the overage that was deducted in error to the appropriate quota
allocation. The Regional Administrator will publish notification in the
Federal Register announcing the restoration.
(b) Recreational landings sector closure. The Regional
Administrator will monitor recreational landings based on the best
available data and shall determine if the recreational harvest limit
has been met or exceeded. The determination will be based on observed
landings and will not utilize projections of future landings. At such
time that the available data indicate that the recreational harvest
limit has been met or exceeded, the Regional Administrator shall
publish notification in the Federal Register advising that, effective
on a specific date, the black sea bass recreational fishery in the EEZ
shall be closed for remainder of the calendar year.
(1) Recreational ACL overage evaluation. The recreational sector
ACL will be evaluated based on a 3-year moving average comparison of
total catch (landings and dead discards). Both landings and dead
discards will be evaluated in determining if the 3-year average
recreational sector ACL has been exceeded. The 3-year moving average
will be phased in over the first 3 years, beginning with 2012: Total
recreational total catch from 2012 will be compared to the 2012
recreational sector ACL; the average total catch from both 2012 and
2013 will be compared to the average of the 2012 and 2013 recreational
sector ACLs; the average total catch from 2012, 2013, and 2014 will be
compared to the average of the 2012, 2013, and 2014 recreational sector
ACLs and, for all subsequent years, the preceding 3-year average
recreational total catch will be compared to the preceding 3-year
average recreational sector ACL.
(2) Recreational landing overage repayment. If available data
indicate that the recreational sector ACL has been exceeded and the
landings have exceeded the recreational harvest limit, the exact amount
of the landings overage (in pounds) will be deducted, as soon as
possible, from a subsequent single fishing year recreational sector
ACT.
(c) Non-landing accountability measures, by sector. In the event
that a sector ACL has been exceeded and the overage has not been
accommodated through landings-based AMs, then the exact amount of the
overage in pounds by which the sector ACL was exceeded will be
deducted, as soon as possible, from a subsequent single fishing year
applicable sector ACL.
(d) State/Federal disconnect AM. If the total catch, allowable
landings, commercial quotas, and/or recreational harvest limit measures
adopted by the ASMFC Black Sea Bass Management Board and the MAFMC
differ for a given fishing year, administrative action will be taken as
soon as is practicable to revisit the respective recommendations of the
two groups. The intent of this action shall be to achieve alignment
through consistent state and Federal measures so no differential
effects occur to Federal permit holders.

0
46. Section 648.144 is revised to read as follows:

Sec. 648.144 Black sea bass gear restrictions.

(a) Trawl gear restrictions--(1) General. (i) Otter trawlers whose
owners are issued a black sea bass moratorium permit and that land or
possess 500 lb (226.8 kg) or more of black sea bass from January 1
through March 31, or 100 lb (45.4 kg) or more of black sea bass from
April 1 through December 31, must fish with nets that have a minimum
mesh size of 4.5-inch (11.43-cm) diamond mesh applied throughout the
codend for at least 75 continuous meshes forward of the terminus of the
net, or for codends with less than 75 meshes, the entire net must have
a minimum mesh size of 4.5-inch (11.43-cm) diamond mesh throughout.
(ii) Mesh sizes shall be measured pursuant to the procedure
specified in Sec. 648.104(a)(2).
(2) Net modifications. No vessel subject to this part shall use any
device, gear, or material, including, but not limited to, nets, net
strengtheners, ropes, lines, or chafing gear, on the top of the
regulated portion of a trawl net except that one splitting strap and
one bull rope (if present) consisting of line or rope no more than 3
inches (7.6 cm) in diameter may be used if such splitting strap and/or
bull rope does not constrict, in any manner, the top of the regulated
portion of the net, and one rope no greater than 0.75 inches (1.9 cm)
in diameter extending the length of the net from the belly to the
terminus of the codend along the top, bottom, and each side of the net.
``Top of the regulated portion of the net'' means the 50 percent of the
entire regulated portion of the net that (in a hypothetical situation)
will not be in contact with the ocean bottom during a tow if the
regulated portion of the net were laid flat on the ocean floor. For the
purpose of this paragraph, head ropes shall not be considered part of
the top of the regulated portion of a trawl net.
(3) Mesh obstruction or constriction. (i) A fishing vessel may not
use any mesh configuration, mesh construction, or other means on or in
the top of the net, as defined in paragraph (a)(2) of this section,
that obstructs the meshes of the net in any manner, or otherwise causes
the size of the meshes of the net while in use to diminish to a size
smaller than

[[Page 60638]]

the minimum established pursuant to paragraph (a)(1)(i) of this
section.
(ii) No person on any vessel may possess or fish with a net capable
of catching black sea bass in which the bars entering or exiting the
knots twist around each other.
(4) Stowage of nets. Otter trawl vessels subject to the minimum
mesh-size requirement of paragraph (a)(1)(i) of this section may not
have ``available for immediate use'' any net or any piece of net that
does not meet the minimum mesh size requirement, or any net, or any
piece of net, with mesh that is rigged in a manner that is inconsistent
with the minimum mesh size requirement. A net that is stowed in
conformance with one of the methods specified in Sec. 648.23(b) and
that can be shown not to have been in recent use, is considered to be
not ``available for immediate use.''
(5) Roller gear. Rollers used in roller rig or rock hopper trawl
gear shall be no larger than 18 inches (45.7 cm) in diameter.
(b) Pot and trap gear restrictions--(1) Gear marking. The owner of
a vessel issued a black sea bass moratorium permit must mark all black
sea bass pots or traps with the vessel's USCG documentation number or
state registration number.
(2) All black sea bass traps or pots must have two escape vents
placed in lower corners of the parlor portion of the pot or trap that
each comply with one of the following minimum size requirements: 1.375
inches by 5.75 inches (3.49 cm by 14.61 cm); a circular vent of 2.5
inches (6.4 cm) in diameter; or a square vent with sides of 2 inches
(5.1 cm), inside measure; however, black sea bass traps constructed of
wooden laths instead may have escape vents constructed by leaving
spaces of at least 1.375 inches (3.49 cm) between two sets of laths in
the parlor portion of the trap. These dimensions for escape vents and
lath spacing may be adjusted pursuant to the procedures in Sec.
648.140.
(3) Ghost panel. (i) Black sea bass traps or pots must contain a
ghost panel affixed to the trap or pot with degradable fasteners and
hinges. The opening to be covered by the ghost panel must measure at
least 3.0 inches (7.62 cm) by 6.0 inches (15.24 cm). The ghost panel
must be affixed to the pot or trap with hinges and fasteners made of
one of the following degradable materials:
(A) Untreated hemp, jute, or cotton string of \3/16\ inches (4.8
mm) diameter or smaller; or
(B) Magnesium alloy, timed float releases (pop-up devices) or
similar magnesium alloy fasteners; or
(C) Ungalvanized or uncoated iron wire of 0.094 inches (2.4 mm)
diameter or smaller.
(ii) The use of a single non-degradable retention device designed
to prevent loss of the ghost panel after the degradable materials have
failed is permitted, provided the device does not impair the egress
design function of the ghost panel by obstructing the opening or by
preventing the panel from opening at such time that the degradable
fasteners have completely deteriorated.

0
47. Section 648.145 is revised to read as follows:

Sec. 648.145 Black sea bass possession limit.

(a) No person shall possess more than 25 black sea bass in, or
harvested from the EEZ unless that person is the owner or operator of a
fishing vessel issued a black sea bass moratorium permit, or is issued
a black sea bass dealer permit. Persons aboard a commercial vessel that
is not eligible for a black sea bass moratorium permit are subject to
this possession limit. The owner, operator, and crew of a charter or
party boat issued a black sea bass moratorium permit are subject to the
possession limit when carrying passengers for hire or when carrying
more than five crew members for a party boat, or more than three crew
members for a charter boat. This possession limit may be adjusted
pursuant to the procedures in Sec. 648.142.
(b) If whole black sea bass are processed into fillets, an
authorized officer will convert the number of fillets to whole black
sea bass at the place of landing by dividing fillet number by two. If
black sea bass are filleted into a single (butterfly) fillet, such
fillet shall be deemed to be from one whole black sea bass.
(c) Black sea bass harvested by vessels subject to the possession
limit with more than one person aboard may be pooled in one or more
containers. Compliance with the daily possession limit will be
determined by dividing the number of black sea bass on board by the
number of persons aboard, other than the captain and the crew. If there
is a violation of the possession limit on board a vessel carrying more
than one person, the violation shall be deemed to have been committed
by the owner and operator of the vessel.
(d) Owners or operators of otter trawl vessels issued a moratorium
permit under Sec. 648.4(a)(7) and fishing with, or possessing on
board, nets or pieces of net that do not meet the minimum mesh
requirements specified in Sec. 648.144(a) and that are not stowed in
accordance with Sec. 648.144(a)(4) may not retain more than 500 lb
(226.8 kg) of black sea bass from January 1 through March 31, or more
than 100 lb (45.4 kg) of black sea bass from April 1 through December
31. Black sea bass on board these vessels shall be stored so as to be
readily available for inspection in a standard 100-lb (45.4-kg) tote.

0
48. Section 648.146 is revised to read as follows:

Sec. 648.146 Black sea bass recreational fishing season.

Vessels that are not eligible for a moratorium permit under Sec.
648.4(a)(7), and fishermen subject to the possession limit specified in
Sec. 648.145(a), may possess black sea bass from May 22 through
October 11 and November 1 through December 31, unless this time period
is adjusted pursuant to the procedures in Sec. 648.142.

0
49. Section 648.147 is revised to read as follows:

Sec. 648.147 Black sea bass minimum fish sizes.

(a) Moratorium (commercially) permitted vessels. The minimum size
for black sea bass is 11 inches (27.94 cm) total length for all vessels
issued a moratorium permit under Sec. 648.4(a)(7) that fish for,
possess, land or retain black sea bass in or from U.S. waters of the
western Atlantic Ocean from 35[deg]15.3' N. Lat., the latitude of Cape
Hatteras Light, North Carolina, northward to the U.S.-Canadian border.
The minimum size may be adjusted for commercial vessels pursuant to the
procedures in Sec. 648.142.
(b) Party/Charter permitted vessels and recreational fishery
participants. The minimum fish size for black sea bass is 12.5 inches
(31.75 cm) TL for all vessels that do not qualify for a moratorium
permit, and for party boats holding a moratorium permit, if fishing
with passengers for hire or carrying more than five crew members, and
for charter boats holding a moratorium permit, if fishing with more
than three crew members.
(c) The minimum size in this section applies to the whole fish or
any part of a fish found in possession (e.g., fillets), except that
party or charter vessels possessing valid state permits authorizing
filleting at sea may possess fillets smaller than the size specified if
skin remains on the fillet and all other state requirements are met.

0
50. Section 648.148 is added to subpart I to read as follows:

Sec. 648.148 Special management zones.

The recipient of a U.S. Army Corps of Engineers permit for an
artificial reef, fish attraction device, or other modification of
habitat for purposes of fishing may request that an area

[[Page 60639]]

surrounding and including the site be designated by the MAFMC as a
special management zone (SMZ). The MAFMC may prohibit or restrain the
use of specific types of fishing gear that are not compatible with the
intent of the artificial reef or fish attraction device or other
habitat modification within the SMZ. The establishment of an SMZ will
be effected by a regulatory amendment, pursuant to the following
procedure:
(a) A SMZ monitoring team comprised of members of staff from the
MAFMC, NMFS Northeast Region, and NMFS Northeast Fisheries Science
Center will evaluate the request in the form of a written report,
considering the following criteria:
(1) Fairness and equity;
(2) Promotion of conservation;
(3) Avoidance of excessive shares;
(4) Consistency with the objectives of Amendment 9 to the Summer
Flounder, Scup, and Black Sea Bass Fishery Management Plan, the
Magnuson-Stevens Act, and other applicable law;
(5) The natural bottom in and surrounding potential SMZs; and
(6) Impacts on historical uses.
(b) The MAFMC Chairman may schedule meetings of MAFMC's industry
advisors and/or the SSC to review the report and associated documents
and to advise the MAFMC. The MAFMC Chairman may also schedule public
hearings.
(c) The MAFMC, following review of the SMZ monitoring teams's
report, supporting data, public comments, and other relevant
information, may recommend to the Regional Administrator that a SMZ be
approved. Such a recommendation will be accompanied by all relevant
background information.
(d) The Regional Administrator will review the MAFMC's
recommendation. If the Regional Administrator concurs in the
recommendation, he or she will publish a proposed rule in the Federal
Register in accordance with the recommendations. If the Regional
Administrator rejects the MAFMC's recommendation, he or she shall
advise the MAFMC in writing of the basis for the rejection.
(e) The proposed rule to establish a SMZ shall afford a reasonable
period for public comment. Following a review of public comments and
any information or data not previously available, the Regional
Administrator will publish a final rule if he or she determines that
the establishment of the SMZ is supported by the substantial weight of
evidence in the record and consistent with the Magnuson-Stevens Act and
other applicable law.

0
51. Section 648.149 is added to subpart I to read as follows:

Sec. 648.149 Black sea bass framework adjustments to management
measures.

(a) Within season management action. See Sec. 648.110(a).
(1) Adjustment process. See Sec. 648.110(a)(1).
(2) MAFMC recommendation. See Sec. 648.110(a)(2)(i) through (iv).
(3) Regional Administrator action. See Sec. 648.110(a)(3)(i)
through (iii).
(4) Emergency actions. See Sec. 648.110(a)(4).
(b) [Reserved]

0
52. Section 648.160 is revised to read as follows:

Sec. 648.160 Bluefish Annual Catch Limit (ACL).

(a) The Bluefish Monitoring Committee shall recommend to the MAFMC
an ACL for the bluefish fishery, which shall be equal to the ABC
recommended by the SSC.
(1) Periodicity. The bluefish fishery ACL may be established on an
annual basis for up to 3 years at a time, dependent on whether the SSC
provides single or multiple-year ABC recommendations.
(2) [Reserved]
(b) Performance review. The Bluefish Monitoring Committee shall
conduct a detailed review of fishery performance relative to the ACL at
least every 5 years.
(1) If the ACL is exceeded with a frequency greater than 25 percent
(i.e., more than once in 4 years or any 2 consecutive years), the
Bluefish Monitoring Committee will review fishery performance
information and make recommendations to the MAFMC for changes in
measures intended to ensure the ACL is not exceeded as frequently.
(2) The MAFMC may specify more frequent or more specific ACL
performance review criteria as part of a stock rebuilding plan
following the determination that the bluefish stock has become
overfished.
(3) Performance reviews shall not substitute for annual reviews
that occur to ascertain if prior year ACLs have been exceeded, but may
be conducted in conjunction with such reviews.

0
53. Section 648.161 is revised to read as follows:

Sec. 648.161 Bluefish Annual Catch Targets (ACTs).

(a) The Bluefish Monitoring Committee shall identify and review the
relevant sources of management uncertainty to recommend ACTs for the
commercial and recreational fishing sectors as part of the bluefish
specification process. The Bluefish Monitoring Committee
recommendations shall identify the specific sources of management
uncertainty that were considered, technical approaches to mitigating
these sources of uncertainty, and any additional relevant information
considered in the ACT recommendation process.
(1) Sectors. The sum of the commercial and recreational sector-
specific ACTs shall be less than or equal to the fishery level ACL. The
Bluefish Monitoring Committee shall recommend any reduction in catch
necessary to address management uncertainty, consistent with paragraph
(a) of this section. A total of 83 percent of the fishery-level ACT
will be allocated to the recreational fishery. A total of 17 percent of
the fishery-level ACT will be allocated to the commercial fishery.
(2) Periodicity. ACTs may be established on an annual basis for up
to 3 years at a time, dependent on whether the SSC provides single or
multiple-year ABC recommendations.
(b) Performance review. The Bluefish Monitoring Committee shall
conduct a detailed review of fishery performance relative to ACTs in
conjunction with any ACL performance review, as outlined in Sec.
648.160(b)(1) through (3).

0
54. Section 648.162 is revised to read as follows:

Sec. 648.162 Bluefish specifications.

(a) Recommended measures. Based on the annual review and requests
for research quota as described in paragraph (h) of this section, the
Bluefish Monitoring Committee shall recommend to the Coastal Migratory
Committee of the MAFMC and the ASMFC the following measures to ensure
that the ACL specified by the process outlined in Sec. 648.160(a) will
not be exceeded:
(1) A fishery-level ACT;
(2) Research quota set from a range of 0 to 3 percent of TALs;
(3) Commercial minimum fish size;
(4) Minimum mesh size;
(5) Recreational possession limit set from a range of 0 to 20
bluefish;
(6) Recreational minimum fish size;
(7) Recreational season;
(8) Restrictions on gear other than otter trawls and gill nets;
(9) Changes, as appropriate, to the Northeast Region SBRM,
including the CV-based performance standard, fishery stratification,
and/or reports; and
(10) Modification of existing AM measures and ACT control rules
utilized by the Bluefish Monitoring Committee.
(b) TAL--(1) Recreational harvest limit. If research quota is
specified as

[[Page 60640]]

described in paragraph (g) of this section, the recreational harvest
limit will be based on the TAL remaining after the deduction of the
research quota.
(2) Commercial quota. If 17 percent of the TAL is less than 10.5
million lb (4.8 million kg) and the recreational fishery is not
projected to land its harvest limit for the upcoming year, the
commercial fishery may be allocated up to 10.5 million lb (4.8 million
kg) as its quota, provided that the combination of the projected
recreational landings and the commercial quota does not exceed the TAL.
If research quota is specified as described in paragraph (g) of this
section, the commercial quota will be based on the TAL remaining after
the deduction of the research quota.
(c) Annual fishing measures. The MAFMC's Coastal Migratory
Committee shall review the recommendations of the Bluefish Monitoring
Committee. Based on these recommendations and any public comment, the
Coastal Migratory Committee shall recommend to the MAFMC measures
necessary to ensure that the ACL will not be exceeded. The MAFMC shall
review these recommendations and, based on the recommendations and any
public comment, recommend to the Regional Administrator by September 1
measures necessary to ensure that the applicable ACL will not be
exceeded. The MAFMC's recommendations must include supporting
documentation, as appropriate, concerning the environmental, economic,
and social impacts of the recommendations. The Regional Administrator
shall review these recommendations and any recommendations of the
ASMFC. After such review, NMFS will publish a proposed rule in the
Federal Register as soon as practicable, to implement an ACL, ACTs,
research quota, a coastwide commercial quota, individual state
commercial quotas, a recreational harvest limit, and additional
management measures for the commercial and recreational fisheries to
ensure that the ACL will not be exceeded. After considering public
comment, NMFS will publish a final rule in the Federal Register.
(d) Distribution of annual commercial quota.--(1) The annual
commercial quota will be distributed to the states, based upon the
following percentages; state each followed by its allocation in
parentheses: ME (0.6685); NH (0.4145); MA (6.7167); RI (6.8081); CT
(1.2663); NY (10.3851); NJ (14.8162) DE (1.8782); MD (3.0018); VA
(11.8795); NC (32.0608); SC (0.0352); GA (0.0095); and FL (10.0597).
Note: The sum of all state allocations does not add to 100 because of
rounding.
(2) [Reserved]
(e) Quota transfers and combinations. Any state implementing a
state commercial quota for bluefish may request approval from the
Regional Administrator to transfer part or all of its annual quota to
one or more states. Two or more states implementing a state commercial
quota for bluefish may request approval from the Regional Administrator
to combine their quotas, or part of their quotas, into an overall
regional quota. Requests for transfer or combination of commercial
quotas for bluefish must be made by individual or joint letter(s)
signed by the principal state official with marine fishery management
responsibility and expertise, or his/her previously named designee, for
each state involved. The letter(s) must certify that all pertinent
state requirements have been met and identify the states involved and
the amount of quota to be transferred or combined.
(1) Within 10 working days following the receipt of the letter(s)
from the states involved, the Regional Administrator shall notify the
appropriate state officials of the disposition of the request. In
evaluating requests to transfer a quota or combine quotas, the Regional
Administrator shall consider whether:
(i) The transfer or combination would preclude the overall annual
quota from being fully harvested;
(ii) The transfer addresses an unforeseen variation or contingency
in the fishery; and
(iii) The transfer is consistent with the objectives of the
Bluefish FMP and Magnuson-Stevens Act.
(2) The transfer of quota or the combination of quotas will be
valid only for the calendar year for which the request was made.
(3) A state may not submit a request to transfer quota or combine
quotas if a request to which it is party is pending before the Regional
Administrator. A state may submit a new request when it receives
notification that the Regional Administrator has disapproved the
previous request or when notification of the approval of the transfer
or combination has been published in the Federal Register.
(f) Based upon any changes in the landings data available from the
states for the base years 1981-89, the ASMFC and the MAFMC may
recommend to the Regional Administrator that the states' shares
specified in paragraph (d)(1) of this section be revised. The MAFMC's
and the ASMFC's recommendation must include supporting documentation,
as appropriate, concerning the environmental and economic impacts of
the recommendation. The Regional Administrator shall review the
recommendation of the ASMFC and the MAFMC. After such review, NMFS will
publish a proposed rule in the Federal Register to implement a revision
in the state shares. After considering public comment, NMFS will
publish a final rule in the Federal Register to implement the changes
in allocation.
(g) Research quota. See Sec. 648.21(g).

0
55. Section 648.163 is revised to read as follows:

Sec. 648.163 Bluefish Accountability Measures (AMs).

(a) ACL overage evaluation. The ACL will be evaluated based on a
single-year examination of total catch (landings and dead discards).
Both landings and dead discards will be evaluated in determining if the
ACL has been exceeded.
(b) Commercial sector EEZ closure. NMFS shall close the EEZ to
fishing for bluefish by commercial vessels for the remainder of the
calendar year by publishing notification in the Federal Register if the
Regional Administrator determines that the inaction of one or more
states will cause the ACL specified in Sec. 648.160(a) to be exceeded,
or if the commercial fisheries in all states have been closed. NMFS may
reopen the EEZ if earlier inaction by a state has been remedied by that
state, or if commercial fisheries in one or more states have been
reopened without causing the ACL to be exceeded.
(c) State commercial landing quotas. The Regional Administrator
will monitor state commercial quotas based on dealer reports and other
available information and shall determine the date when a state
commercial quota will be harvested. NMFS shall publish notification in
the Federal Register advising a state that, effective upon a specific
date, its commercial quota has been harvested and notifying vessel and
dealer permit holders that no commercial quota is available for landing
bluefish in that state.
(1) Commercial landings overage repayment. All bluefish landed for
sale in a state shall be applied against that state's annual commercial
quota, regardless of where the bluefish were harvested. Any overages of
the commercial quota landed in any state will be deducted from that
state's annual quota for the following year, irrespective of whether
the fishery-level ACL is exceeded. If a state has increased or reduced
quota through the transfer process described in Sec. 648.162, then any

[[Page 60641]]

overage will be measured against that state's final adjusted quota.
(2) If there is a quota overage at the end of the fishing year
among states involved in the combination of quotas, the overage will be
deducted from the following year's quota for each of the states
involved in the combined quota, irrespective of whether the fishery-
level ACL is exceeded. The deduction will be proportional, based on
each state's relative share of the combined quota for the previous
year. A transfer of quota or combination of quotas does not alter any
state's percentage share of the overall quota specified in Sec.
648.162(d)(1).
(d) Recreational landings AM when the ACL is exceeded and no
sector-to-sector transfer of allowable landings has occurred. If the
fishery-level ACL is exceeded and landings from the recreational
fishery are determined to be the sole cause of the overage, and no
transfer between the commercial and recreational sector was made for
the fishing year, as outlined in Sec. 648.162(b)(2), then the exact
amount, in pounds, by which the ACL was exceeded will be deducted, as
soon as possible, from a subsequent single fishing year recreational
ACT.
(e) AM for when the ACL is exceeded and a sector-to-sector transfer
of allowable landings has occurred. If the fishery-level ACL is
exceeded and landings from the recreational fishery and/or the
commercial fishery are determined to have caused the overage, and a
transfer between the commercial and recreational sector has occurred
for the fishing year, as outlined in Sec. 648.162(b)(2), then the
amount transferred between the recreational and commercial sectors may
be reduced by the ACL overage amount (pound-for-pound repayment) in a
subsequent, single fishing year if the Bluefish Monitoring Committee
determines that the ACL overage was the result of too liberal a
landings transfer between the two sectors.
(f) Non-landing AMs. In the event that the ACL has been exceeded
and the overage has not been accommodated through the AM measures in
paragraphs (a) through (d) of this section, then the exact amount, in
pounds, by which the ACL was exceeded shall be deducted, as soon as
possible, from a subsequent, single fishing year ACL.
(g) State/Federal disconnect AM. If the total catch, allowable
landings, commercial quotas, and/or recreational harvest limit measures
adopted by the ASMFC Bluefish Management Board and the MAFMC differ for
a given fishing year, administrative action will be taken as soon as is
practicable to revisit the respective recommendations of the two
groups. The intent of this action shall be to achieve alignment through
consistent state and Federal measures so no differential effects occur
to Federal permit holders.

0
56. Section 648.164 is revised to read as follows:

Sec. 648.164 Bluefish possession restrictions.

(a) No person shall possess more than 15 bluefish in, or harvested
from, the EEZ unless that person is the owner or operator of a fishing
vessel issued a bluefish commercial permit or is issued a bluefish
dealer permit. Persons aboard a vessel that is not issued a bluefish
commercial permit are subject to this possession limit. The owner,
operator, and crew of a charter or party boat issued a bluefish
commercial permit are not subject to the possession limit when not
carrying passengers for hire and when the crew size does not exceed
five for a party boat and three for a charter boat.
(b) Bluefish harvested by vessels subject to the possession limit
with more than one person on board may be pooled in one or more
containers. Compliance with the daily possession limit will be
determined by dividing the number of bluefish on board by the number of
persons on board, other than the captain and the crew. If there is a
violation of the possession limit on board a vessel carrying more than
one person, the violation shall be deemed to have been committed by the
owner and operator of the vessel.

0
57. Section 648.165 is revised to read as follows:

Sec. 648.165 Bluefish minimum fish sizes.

If the MAFMC determines through its annual review or framework
adjustment process that minimum fish sizes are necessary to ensure that
the fishing mortality rate is not exceeded, or to attain other FMP
objectives, such measures will be enacted through the procedure
specified in Sec. 648.162(c) or 648.167.

0
58. Section 648.166 is added to subpart J to read as follows:

Sec. 648.166 Bluefish gear restrictions.

If the MAFMC determines through its annual review or framework
adjustment process that gear restrictions are necessary to ensure that
the ACL is not exceeded, or to attain other FMP objectives, such
measures, subject to the gear other than trawls and gillnets
restrictions in Sec. 648.162 regarding specifications, will be enacted
through the procedure specified in Sec. 648.162(c) or 648.167.

0
59. Section 648.167 is added to subpart J to read as follows:

Sec. 648.167 Bluefish framework adjustment to management measures.

(a) Within-season management action. The MAFMC may, at any time,
initiate action to add or adjust management measures if it finds that
action is necessary to meet or be consistent with the goals and
objectives of the Bluefish FMP.
(1) Adjustment process. After a management action has been
initiated, the MAFMC shall develop and analyze appropriate management
actions over the span of at least two MAFMC meetings. The MAFMC shall
provide the public with advance notice of the availability of both the
proposals and the analysis and the opportunity to comment on them prior
to and at the second MAFMC meeting. The MAFMC's recommendation on
adjustments or additions to management measures must come from one or
more of the following categories: Adjustments within existing ABC
control rule levels; adjustments to the existing MAFMC risk policy;
introduction of new AMs, including sub-ACTs; minimum fish size; maximum
fish size; gear restrictions; gear requirements or prohibitions;
permitting restrictions; recreational possession limit; recreational
season; closed areas; commercial season; description and identification
of EFH; fishing gear management measures to protect EFH; designation of
habitat areas of particular concern within EFH; changes to the
Northeast Region SBRM (including the CV-based performance standard, the
means by which discard data are collected/obtained, fishery
stratification, reports and/or industry-funded observers or observer
set-aside programs); and any other management measures currently
included in the FMP. Measures that require significant departures from
previously contemplated measures or that are otherwise introducing new
concepts may require an amendment of the FMP instead of a framework
adjustment.
(2) MAFMC recommendation. After developing management actions and
receiving public testimony, the MAFMC shall make a recommendation to
the Regional Administrator. The MAFMC's recommendation must include
supporting rationale and, if management measures are recommended, an
analysis of impacts and a recommendation to the Regional Administrator
on whether to issue the management measures as a final rule. If the
MAFMC recommends that the management measures should be issued as a
final rule, the MAFMC must consider at least the following

[[Page 60642]]

factors and provide support and analysis for each factor considered:
(i) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether regulations have to be in place for an
entire harvest/fishing season;
(ii) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the MAFMC's recommended management measures;
(iii) Whether there is an immediate need to protect the resource;
and
(iv) Whether there will be a continuing evaluation of management
measures adopted following their implementation as a final rule.
(3) Action by NMFS. If the MAFMC's recommendation includes
adjustments or additions to management measures and, after reviewing
the MAFMC's recommendation and supporting information:
(i) If NMFS concurs with the MAFMC's recommended management
measures and determines that the recommended management measures should
be issued as a final rule based on the factors specified in paragraph
(a)(2) of this section, the measures will be issued as a final rule in
the Federal Register.
(ii) If NMFS concurs with the MAFMC's recommendation and determines
that the recommended management measures should be published first as a
proposed rule, the measures will be published as a proposed rule in the
Federal Register. After additional public comment, if NMFS concurs with
the MAFMC's recommendation, the measures will be issued as a final rule
in the Federal Register.
(iii) If NMFS does not concur, the MAFMC will be notified in
writing of the reasons for the non-concurrence.
(b) Emergency action. Nothing in this section is meant to derogate
from the authority of the Secretary to take emergency action under
section 305(e) of the Magnuson-Stevens Act.

0
60. Section 648.230 is revised to read as follows:

Sec. 648.230 Spiny dogfish Annual Catch Limits (ACLs).

(a) The Spiny Dogfish Monitoring Committee shall recommend to the
Joint Spiny Dogfish Committee, an ACL for the commercial spiny dogfish
fishery, which shall equal to the domestic ABC (i.e., the ABC minus
Canadian catch) recommended by the SSC as specified in Sec. 648.20.
(1) Periodicity. The spiny dogfish ACL may be established on an
annual basis for up to 5 years at a time, dependent on whether the SSC
provides single or multiple-year ABC recommendations.
(2) [Reserved]
(b) Performance review. The Spiny Dogfish Monitoring Committee
shall conduct a detailed review of fishery performance relative to the
ACL at least every 5 years.
(1) If an ACL is exceeded with a frequency greater than 25 percent
(i.e., more than once in 4 years or any 2 consecutive years), the Spiny
Dogfish Monitoring Committee will review fishery performance
information and make recommendations to the Councils for changes in
measures intended to ensure ACLs are not exceeded as frequently.
(2) The Councils may specify more frequent or more specific ACL
performance review criteria as part of a stock rebuilding plan
following a determination that the spiny dogfish stock has become
overfished.
(3) Performance reviews shall not substitute for annual reviews
that occur to ascertain if prior year ACLs have been exceeded, but may
be conducted in conjunction with such reviews.

0
61. Section 648.231 is revised to read as follows:

Sec. 648.231 Spiny dogfish Annual Catch Target (ACT) and Total
Allowable Level of Landings (TAL).

(a) The Spiny Dogfish Monitoring Committee shall identify and
review the relevant sources of management uncertainty to recommend an
ACT and a TAL for the fishery as part of the spiny dogfish
specification process specified in Sec. 648.232. The Spiny Dogfish
Monitoring Committee recommendations shall identify the specific
sources of management uncertainty that were considered, technical
approaches to mitigating these sources of uncertainty, domestic
commercial and recreational discards, and any additional relevant
information considered in the ACT and TAL recommendation process.
(1) The ACT shall be identified as less than or equal to the ACL.
(2) The Spiny Dogfish Monitoring Committee shall recommend a TAL to
the Joint Spiny Dogfish Committee, which accounts for domestic
commercial and recreational discards (ACT minus domestic dead
discards). The TAL is equivalent to the annual coastwide commercial
quota.
(b) Periodicity. The TAL may be established on an annual basis for
up to 5 years at a time, dependent on whether the SSC provides single
or multiple year ABC recommendations.
(c) Performance review. The Spiny Dogfish Monitoring Committee
shall conduct a detailed review of fishery performance relative to TALs
in conjunction with any ACL performance review, as outlined in Sec.
648.230(b).

0
62. Reserved Sec. 648.232 is amended by revising the section heading
and adding text to read as follows:

Sec. 648.232 Spiny dogfish specifications.

(a) Commercial quota and other specification measures. The Spiny
Dogfish Monitoring Committee shall recommend to the Joint Spiny Dogfish
Committee a TAL (i.e., annual coastwide commercial quota) and any other
measures, including those in paragraphs (a)(1) through (7) of this
section, that are necessary to ensure that the commercial ACL will not
be exceeded in any fishing year (May 1-April 30), for a period of 1-5
fishing years. The measures that may be recommended include, but are
not limited to:
(1) Minimum or maximum fish sizes;
(2) Seasons;
(3) Mesh size restrictions;
(4) Trip limits;
(5) Changes to the Northeast Region SBRM, including the CV-based
performance standard, fishery stratification, and/or reports;
(6) Other gear restrictions; and
(7) Changes to AMs and ACT control rules.
(b) Joint Spiny Dogfish Committee recommendation. The Councils'
Joint Spiny Dogfish Committee shall review the recommendations of the
Spiny Dogfish Monitoring Committee. Based on these recommendations and
any public comments, the Joint Spiny Dogfish Committee shall recommend
to the Councils a TAL, and possibly other measures, including those
specified in paragraphs (a)(1) through (7) of this section, necessary
to ensure that the ACL specified in Sec. 648.230 will not be exceeded
in any fishing year (May 1-April 30), for a period of 1-5 fishing
years.
(c) Council recommendations. (1) The Councils shall review these
recommendations and, based on the recommendations and any public
comments, recommend to the Regional Administrator a TAL and other
measures necessary to ensure that the ACL specified in Sec. 648.230
will not be exceeded in any fishing year, for a period of 1-5 fishing
years. The Councils' recommendations must include supporting
documentation, as appropriate, concerning the environmental, economic,
and other

[[Page 60643]]

impacts of the recommendations. The Regional Administrator shall
initiate a review of these recommendations and may modify the
recommended quota and other management measures to ensure that the ACL
specified in Sec. 648.230 will not be exceeded in any fishing year,
for a period of 1-5 fishing years. The Regional Administrator may
modify the Councils' recommendations using any of the measures that
were not rejected by both Councils.
(2) After such review, NMFS shall publish a proposed rule in the
Federal Register specifying a TAL, adjustments to ACL, ACT, and TAL
resulting from the accountability measures specified in Sec. 648.233,
and other measures necessary to ensure that the ACL will not be
exceeded in any fishing year, for a period of 1-5 fishing years. After
considering public comments, NMFS shall publish a final rule in the
Federal Register to implement the TAL and other measures.
(d) [Reserved]
(e) Distribution of annual quota. (1) The TAL (i.e., annual
coastwide commercial quota) specified according to the process outlined
section Sec. 648.231 shall be allocated between two semi-annual quota
periods as follows: May 1 through October 31 (57.9 percent); and
November 1 through April 30 (42.1 percent).
(2) All spiny dogfish landed for a commercial purpose in the states
from Maine through Florida shall be applied against the applicable
semi-annual commercial quota, regardless of where the spiny dogfish
were harvested.

0
63. Reserved Sec. 648.233 is amended by revising the section heading
and adding text to read as follows:

Sec. 648.233 Spiny dogfish Accountability Measures (AMs).

(a) Commercial EEZ closure. The Regional Administrator shall
determine the date by which the quota for each semi-annual period
described in Sec. 648.232(e)(1) will be harvested and shall close the
EEZ to fishing for spiny dogfish on that date for the remainder of that
semi-annual period by publishing notification in the Federal Register.
Upon the closure date, and for the remainder of the semi-annual quota
period, no vessel may fish for or possess spiny dogfish in the EEZ, nor
may vessels issued a spiny dogfish permit under this part land spiny
dogfish, nor may dealers issued a Federal permit purchase spiny dogfish
from vessels issued a spiny dogfish permit under this part.
(b) ACL overage evaluation. The ACL will be evaluated based on a
single-year examination of total catch (including both landings and
dead discards) to determine if the ACL has been exceeded.
(c) Overage repayment. In the event that the ACL has been exceeded
in a given fishing year, the exact amount in pounds by which the ACL
was exceeded shall be deducted, as soon as possible from a subsequent
single fishing year ACL.

0
64. Section 648.235 is revised to read as follows:

Sec. 648.235 Spiny dogfish possession and landing restrictions.

(a) Quota Period 1. From May 1 through October 31, vessels issued a
valid Federal spiny dogfish permit specified under Sec. 648.4(a)(11)
may:
(1) Possess up to 3,000 lb (1.36 mt) of spiny dogfish per trip; and
(2) Land only one trip of spiny dogfish per calendar day.
(b) Quota Period 2. From November 1 through April 30, vessels
issued a valid Federal spiny dogfish permit specified under Sec.
648.4(a)(11) may:
(1) Possess up to 3,000 lb (1.36 mt) of spiny dogfish per trip; and
(2) Land only one trip of spiny dogfish per calendar day.
(c) Regulations governing the harvest, possession, landing,
purchase, and sale of shark fins are found at part 600, subpart N, of
this chapter.

Sec. 648.237 [Removed and reserved]

0
65. Section 648.237 is removed and reserved.

Sec. 648.238 [Added and reserved]

0
66. Section 648.238 is added to subpart L and reserved.

0
67. Section 648.239 is added to subpart L to read as follows:

Sec. 648.239 Spiny dogfish framework adjustments to management
measures.

(a) Within season management action. The Councils may, at any time,
initiate action to add or adjust management measures if they find that
action is necessary to meet or be consistent with the goals and
objectives of the Spiny Dogfish FMP.
(1) Adjustment process. After the Councils initiate a management
action, they shall develop and analyze appropriate management actions
over the span of at least two Council meetings. The Councils shall
provide the public with advance notice of the availability of both the
proposals and the analysis for comment prior to, and at, the second
Council meeting. The Councils' recommendation on adjustments or
additions to management measures must come from one or more of the
following categories: Adjustments within existing ABC control rule
levels; adjustments to the existing MAFMC risk policy; introduction of
new AMs, including sub-ACTs; minimum fish size; maximum fish size; gear
requirements, restrictions, or prohibitions (including, but not limited
to, mesh size restrictions and net limits); regional gear restrictions;
permitting restrictions, and reporting requirements; recreational
fishery measures (including possession and size limits and season and
area restrictions); commercial season and area restrictions; commercial
trip or possession limits; fin weight to spiny dogfish landing weight
restrictions; onboard observer requirements; commercial quota system
(including commercial quota allocation procedures and possible quota
set-asides to mitigate bycatch, conduct scientific research, or for
other purposes); recreational harvest limit; annual quota specification
process; FMP Monitoring Committee composition and process; description
and identification of essential fish habitat; description and
identification of habitat areas of particular concern; overfishing
definition and related thresholds and targets; regional season
restrictions (including option to split seasons); restrictions on
vessel size (length and GRT) or shaft horsepower; target quotas;
measures to mitigate marine mammal entanglements and interactions;
regional management; changes to the Northeast Region SBRM, including
the CV-based performance standard, the means by which discard data are
collected/obtained, fishery stratification, reports, and/or industry-
funded observers or observer set-aside program; any other management
measures currently included in the Spiny Dogfish FMP; and measures to
regulate aquaculture projects. Measures that require significant
departures from previously contemplated measures or that are otherwise
introducing new concepts may require an amendment of the FMP instead of
a framework adjustment.
(2) Councils' recommendation. After developing management actions
and receiving public testimony, the Councils shall make a
recommendation approved by a majority of each Council's members,
present and voting, to the Regional Administrator. The Councils'
recommendation must include supporting rationale, an analysis of
impacts and, if management measures are recommended, a recommendation
to the Regional Administrator on whether to issue the management
measures as a final rule. If the Councils recommend that the management
measures should be issued as a final rule, they must

[[Page 60644]]

consider at least the following factors and provide support and
analysis for each factor considered:
(i) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule and whether regulations have to be in place for an entire
harvest/fishing season;
(ii) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Councils' recommended management measures;
(iii) Whether there is an immediate need to protect the resource;
and
(iv) Whether there will be a continuing evaluation of management
measures adopted following their implementation as a final rule;
(3) NMFS action. If the Councils' recommendation includes
adjustments or additions to management measures, then:
(i) If NMFS concurs with the Councils' recommended management
measures and determines that the recommended management measures should
be issued as a final rule based on the factors specified in paragraph
(b)(2) of this section, then the measures will be issued as a final
rule in the Federal Register.
(ii) If NMFS concurs with the Councils' recommendation and
determines that the recommended management measures should be published
first as a proposed rule, then the measures will be published as a
proposed rule in the Federal Register. After additional public comment,
if NMFS concurs with the Councils' recommendation, then the measures
will be issued as a final rule in the Federal Register.
(iii) If NMFS does not concur, the Councils will be notified in
writing of the reasons for the non-concurrence.
(iv) Framework actions can be taken only in the case where both
Councils approve the proposed measure.
(b) Emergency action. Nothing in this section is meant to derogate
from the authority of the Secretary to take emergency action under
section 305(e) of the Magnuson-Stevens Act.

0
68. Section 648.290 is revised to read as follows:

Sec. 648.290 Tilefish Annual Catch Limit (ACL).

(a) The Tilefish Monitoring Committee shall recommend to the MAFMC
an ACL for the commercial tilefish fishery, which shall be equal to the
ABC recommended by the SSC.
(1) [Reserved]
(2) Periodicity. The tilefish commercial ACL may be established on
an annual basis for up to 3 years at a time, dependent on whether the
SSC provides single or multiple-year ABC recommendations.
(b) Performance review. The Tilefish Monitoring Committee shall
conduct a detailed review of fishery performance relative to the sector
ACLs at least every 5 years.
(1) If the ACL is exceeded with a frequency greater than 25 percent
(i.e., more than once in 4 years or in any 2 consecutive years), the
Tilefish Monitoring Committee will review fishery performance
information and make recommendations to the MAFMC for changes in
measures intended to ensure ACLs are not as frequently exceeded.
(2) The MAFMC may specify more frequent or more specific ACL
performance review criteria as part of a stock rebuilding plan
following a determination that the tilefish stock has become
overfished.
(3) Performance reviews shall not substitute for annual reviews
that occur to ascertain if prior year ACLs have been exceeded, but may
be conducted in conjunction with such reviews.

0
69. Section 648.291 is revised to read as follows:

Sec. 648.291 Tilefish Annual Catch Target (ACT).

(a) The Tilefish Monitoring Committee shall identify and review the
relevant sources of management uncertainty to recommend an ACT as part
of the tilefish specification process. The Tilefish Monitoring
Committee recommendations shall identify the specific sources of
management uncertainty that were considered, technical approaches to
mitigating these sources of uncertainty, and any additional relevant
information considered in the ACT recommendation process.
(1) Sectors. The ACT shall be less than or equal to the ACL. The
Tilefish Monitoring Committee shall include the fishing mortality
associated with the recreational fishery in its ACT recommendations
only if this source of mortality has not already been accounted for in
the ABC recommended by the SSC. The Tilefish Monitoring Committee shall
recommend any reduction in catch necessary to address sector-specific
management uncertainty, consistent with paragraph (a) of this section.
(2) Periodicity. ACTs may be established on an annual basis for up
to 3 years at a time, dependent on whether the SSC provides single or
multiple-year ABC recommendations.
(b) Performance review. The Tilefish Monitoring Committee shall
conduct a detailed review of fishery performance relative to ACTs in
conjunction with any ACL performance review, as outlined in Sec.
648.290(b)(1) through (3).

0
70. Section 648.292 is added to read as follows:

Sec. 648.292 Tilefish specifications.

The fishing year is the 12-month period beginning with November 1,
annually.
(a) Annual specification process. The Tilefish Monitoring Committee
shall review the ABC recommendation of the SSC, tilefish landings and
discards information, and any other relevant available data to
determine if the ACL, ACT, or total allowable landings (TAL) requires
modification to respond to any changes to the stock's biological
reference points or to ensure that the rebuilding schedule is
maintained. The Monitoring Committee will consider whether any
additional management measures or revisions to existing measures are
necessary to ensure that the TAL will not be exceeded. Based on that
review, the Monitoring Committee will recommend ACL, ACT, and TAL to
the Tilefish Committee of the MAFMC. Based on these recommendations and
any public comment received, the Tilefish Committee shall recommend to
the MAFMC the appropriate ACL, ACT, TAL, and other management measures
for a single fishing year or up to 3 years. The MAFMC shall review
these recommendations and any public comments received, and recommend
to the Regional Administrator, at least 120 days prior to the beginning
of the next fishing year, the appropriate ACL, ACT, TAL, the percentage
of TAL allocated to research quota, and any management measures to
ensure that the TAL will not be exceeded, for the next fishing year, or
up to 3 fishing years. The MAFMC's recommendations must include
supporting documentation, as appropriate, concerning the environmental
and economic impacts of the recommendations. The Regional Administrator
shall review these recommendations, and after such review, NMFS will
publish a proposed rule in the Federal Register specifying the annual
ACL, ACT, TAL and any management measures to ensure that the TAL will
not be exceeded for the upcoming fishing year or years. After
considering public comments, NMFS will publish a final rule in the
Federal Register to implement the ACL, ACT, TAL and any management
measures. The previous year's specifications will

[[Page 60645]]

remain effective unless revised through the specification process and/
or the research quota process described in paragraph (e) of this
section. NMFS will issue notification in the Federal Register if the
previous year's specifications will not be changed.
(b) TAL. (1) The TAL for each fishing year will be 1.995 million lb
(905,172 kg) unless modified pursuant to paragraph (a) of this section.
(2) The sum of the TAL and estimated discards shall be less than or
equal to the ACT.
(c) TAL allocation. For each fishing year, up to 3 percent of the
TAL may be set aside for the purpose of funding research. Once a
research amount, if any, is set aside, the TAL will first be reduced by
5 percent to adjust for the incidental catch. The remaining TAL will be
allocated to the individual IFQ permit holder as described in Sec.
648.294(a).
(d) Adjustments to the quota. If the incidental harvest exceeds 5
percent of the TAL for a given fishing year, the incidental trip limit
of 500 lb (226.8 kg) may be reduced in the following fishing year. If
an adjustment is required, a notification of adjustment of the quota
will be published in the Federal Register.
(e) Research quota. See Sec. 648.21(g).

0
71. Section 648.293 is revised to read as follows:

Sec. 648.293 Tilefish accountability measures.

(a) If the ACL is exceeded, the amount of the ACL overage that
cannot be directly attributed to IFQ allocation holders having exceeded
their IFQ allocation will be deducted from the ACL in the following
fishing year. All overages directly attributable to IFQ allocation
holders will be deducted from the appropriate IFQ allocation(s) in the
subsequent fishing year, as required by Sec. 648.294(f).
(b) [Reserved]

0
72. Section 648.294 is revised to read as follows:

Sec. 648.294 Individual fishing quota (IFQ) program.

(a) IFQ allocation permits. After adjustments for incidental catch,
research set asides, and overages, as appropriate, pursuant to Sec.
648.292(c), the Regional Administrator shall divide the remaining TAL
among the IFQ allocation permit holders who held an IFQ permit as of
September 1 of a giving fishing year. Allocations shall be made by
applying the allocation percentages that exist on September 1 of a
given fishing year to the IFQ TAL pursuant to Sec. 648.292(c), subject
to any deductions for overages pursuant to paragraph (f) of this
section. Amounts of IFQ of 0.5 lb (0.23 kg) or smaller created by this
allocation shall be rounded downward to the nearest whole number, and
amounts of IFQ greater than 0.5 lb (0.23 kg) created by this division
shall be rounded upward to the nearest whole number, so that IFQ
allocations are specified in whole pounds. These allocations shall be
issued in the form of an annual IFQ allocation permit.
(b) Application--(1) General. Applicants for a permit under this
section must submit a completed application on an appropriate form
obtained from NMFS. The application must be filled out completely and
signed by the applicant. Each application must include a declaration of
all interests in IFQ allocations, as defined in Sec. 648.2, listed by
IFQ allocation permit number, and must list all Federal vessel permit
numbers for all vessels that an applicant owns or leases that would be
authorized to possess tilefish pursuant to the IFQ allocation permit.
The Regional Administrator will notify the applicant of any deficiency
in the application.
(i) [Reserved]
(ii) Renewal applications. Applications to renew an IFQ allocation
permit must be received by September 15 to be processed in time for the
November 1 start of the fishing year. Renewal applications received
after this date may not be approved, and a new permit may not be issued
before the start of the next fishing year. An IFQ allocation permit
holder must renew his/her IFQ allocation permit on an annual basis by
submitting an application for such permit prior to the end of the
fishing year for which the permit is required.
(2) Issuance. Except as provided in subpart D of 15 CFR part 904,
and provided an application for such permit is submitted by September
15, as specified in paragraph (b)(1)(ii) of this section, NMFS shall
issue annual IFQ allocation permits on or before October 31 to those
who hold permanent allocation as of September 1 of the current fishing
year. During the period between September 1 and October 31, transfer of
IFQ is not permitted, as described in paragraph (e)(4) of this section.
The IFQ allocation permit shall specify the allocation percentage of
the IFQ TAL which the IFQ permit holder is authorized to harvest.
(3) Duration. An annual IFQ allocation permit is valid until
October 31 of each fishing year unless it is suspended, modified, or
revoked pursuant to 15 CFR part 904, or revised due to a transfer of
all or part of the allocation percentage under paragraph (e) of this
section. All Federal vessel permit numbers that are listed on the IFQ
allocation permit are authorized to possess tilefish pursuant to the
IFQ allocation permit until the end of the fishing year or until NMFS
receives written notification from the IFQ allocation permit holder
that the vessel is no longer authorized to possess tilefish pursuant to
the subject permit. An IFQ allocation permit holder that wishes to
authorize an additional vessel(s) to possess tilefish pursuant to the
IFQ allocation permit must send written notification to NMFS that
includes the vessel permit number, and the dates on which the IFQ
allocation permit holder desires the vessel to be authorized to land
IFQ tilefish pursuant to the IFQ allocation permit to be effective.
(4) Alteration. An annual IFQ allocation permit that is altered,
erased, or mutilated is invalid.
(5) Replacement. The Regional Administrator may issue a replacement
permit upon written application of the annual IFQ allocation permit
holder.
(6) Transfer. The annual IFQ allocation permit is valid only for
the person to whom it is issued. All or part of the allocation
specified in the IFQ allocation permit may be transferred in accordance
with paragraph (e) of this section.
(7) Abandonment or voluntary relinquishment. Any IFQ Allocation
permit that is voluntarily relinquished to the Regional Administrator,
or deemed to have been voluntarily relinquished for failure to pay a
recoverable cost fee, in accordance with the requirements specified in
paragraph (h)(2) of this section, or for failure to renew in accordance
with paragraph (b)(1)(ii) of this section, shall not be reissued or
renewed in a subsequent year.
(c) [Reserved]
(d) [Reserved]
(e) Transferring IFQ allocations--(1) Temporary transfers. Unless
otherwise restricted by the provisions in paragraph (e)(3) of this
section, the owner of an IFQ allocation may transfer the entire IFQ
allocation, or a portion of the IFQ allocation, to any person or entity
eligible to own a documented vessel under the terms of 46 U.S.C.
12102(a). Temporary IFQ allocation transfers shall be effective only
for the fishing year in which the temporary transfer is requested and
processed, unless the applicant specifically requests that the transfer
be processed for the subsequent fishing year. The Regional
Administrator has final approval authority for all temporary IFQ

[[Page 60646]]

allocation transfer requests. The approval of a temporary transfer may
be rescinded if the Regional Administrator finds that an emergency has
rendered the lessee unable to fish for the transferred IFQ allocation,
but only if none of the transferred allocation has been landed.
(2) Permanent transfers. Unless otherwise restricted by the
provisions in paragraph (e)(3) of this section, an owner of an IFQ
allocation may permanently transfer the entire IFQ allocation, or a
portion of the IFQ allocation, to any person or entity eligible to own
a documented vessel under the terms of 46 U.S.C. 12102(a). The Regional
Administrator has final approval authority for all permanent IFQ
allocation transfer requests.
(3) IFQ allocation transfer restrictions. (i) If IFQ allocation is
temporarily transferred to any eligible entity, it may not be
transferred by the transferee again within the same fishing year,
unless the transfer is rescinded due to an emergency, as described in
paragraph (e)(1) of this section.
(ii) A transfer of IFQ will not be approved by the Regional
Administrator if it would result in an entity owning, or having an
interest in, a percentage of IFQ allocation exceeding 49 percent of the
total tilefish adjusted TAL.
(iii) If the owner of an IFQ allocation leases additional quota
from another IFQ allocation permit holder, any landings associated with
this transferred quota will be deducted from the total yearly landings
of the lessee, before his/her base allocation, if any exists, for the
purpose of calculating the appropriate cost-recovery fee. As described
in paragraph (h) of this section, a tilefish IFQ allocation permit
holder with a permanent allocation shall incur a cost-recovery fee,
based on the value of landings of tilefish authorized under his/her
tilefish IFQ allocation permit, including allocation that he/she leases
to another IFQ allocation permit holder.
(4) Application for an IFQ allocation transfer. Any IFQ allocation
permit holder applying for either permanent or temporary transfer of
IFQ allocation must submit a completed IFQ Allocation Transfer Form,
available from NMFS. The IFQ Allocation Transfer Form must be submitted
to the NMFS Northeast Regional Office at least 30 days before the date
on which the applicant desires to have the IFQ allocation transfer
effective. The Regional Administrator shall notify the applicants of
any deficiency in the application pursuant to this section.
Applications for IFQ allocation transfers must be received by September
1 to be processed for the current fishing year.
(i) Application information requirements. An application to
transfer IFQ allocation must include the following information: The
type of transfer (either temporary or permanent); the signature of both
parties involved; the price paid for the transfer; indicate eligibility
to receive IFQ allocation; the amount of allocation to be transferred;
and a declaration; by IFQ Allocation permit number, of all the IFQ
allocations that the person or entity receiving the IFQ allocation has
an interest. The person or entity receiving the IFQ allocation must
indicate the permit numbers of all federally permitted vessels that
will possess or land their IFQ allocation. Information obtained from
the IFQ Allocation Transfer Form is confidential pursuant to 16 U.S.C.
1881a.
(ii) Approval of IFQ transfer applications. Unless an application
to transfer IFQ is denied according to paragraph (e)(4)(iii) of this
section, the Regional Administrator shall issue confirmation of
application approval in the form of a new or updated IFQ allocation
permit to the parties involved in the transfer within 30 days of
receipt of a completed application.
(iii) Denial of transfer application. The Regional Administrator
may reject an application to transfer IFQ allocation for the following
reasons: The application is incomplete; the transferor does not possess
a valid tilefish IFQ allocation permit; the transferor's or
transferee's vessel or tilefish IFQ allocation permit has been
sanctioned, pursuant to an enforcement proceeding under 15 CFR part
904; the transfer will result in the transferee having a tilefish IFQ
allocation that exceeds 49 percent of the adjusted TAL allocated to IFQ
allocation permit holders; the transfer is to a person or entity that
is not eligible to own a documented vessel under the terms of 46 U.S.C.
12102(a); or any other failure to meet the requirements of this
subpart. Upon denial of an application to transfer IFQ allocation, the
Regional Administrator shall send a letter to the applicant describing
the reason(s) for the denial. The decision by the Regional
Administrator is the final decision of the Department of Commerce;
there is no opportunity for an administrative appeal.
(f) IFQ allocation overages. Any IFQ allocation that is exceeded,
including amounts of tilefish landed by a lessee in excess of a
temporary transfer of IFQ allocation, will be reduced by the amount of
the overage in the subsequent fishing year(s). If an IFQ allocation
overage is not deducted from the appropriate allocation before the IFQ
allocation permit is issued for the subsequent fishing year, a revised
IFQ allocation permit reflecting the deduction of the overage shall be
issued by NMFS. If the allocation cannot be reduced in the subsequent
fishing year because the full allocation has already been landed or
transferred, the IFQ allocation permit will indicate a reduced
allocation for the amount of the overage in the next fishing year.
(g) IFQ allocation acquisition restriction. No person or entity may
acquire more than 49 percent of the annual adjusted tilefish TAL,
specified pursuant to Sec. 648.294, at any point during a fishing
year. For purposes of this paragraph, acquisition includes any
permanent or temporary transfer of IFQ. The calculation of IFQ
allocation for purposes of the restriction on acquisition includes IFQ
allocation interests held by: A company in which the IFQ holder is a
shareholder, officer, or partner; an immediate family member; or a
company in which the IFQ holder is a part owner or partner.
(h) IFQ cost recovery. A fee shall be determined as described in
paragraph (h)(1) of this section, and collected to recover the
government costs associated with management, data collection and
analysis, and enforcement of the IFQ program. A tilefish IFQ allocation
permit holder shall be responsible for paying the fee assessed by NMFS.
A tilefish IFQ allocation permit holder with a permanent allocation
shall incur a cost-recovery fee, based on the value of landings of
tilefish authorized under his/her tilefish IFQ allocation permit,
including allocation that he/she leases to another IFQ allocation
permit holder. A tilefish IFQ allocation permit holder, with a
permanent allocation, shall be responsible for submitting this payment
to NMFS once per year, as specified in paragraph (h)(2) of this
section. For the purpose of this section, the cost-recovery billing
period is defined as the full calendar year, beginning with January 1,
2010. NMFS will create an annual IFQ allocation bill for each cost-
recovery billing period and provide it to each IFQ allocation permit
holder. The bill will include annual information regarding the amount
and value of IFQ allocation landed during the prior cost-recovery
billing period, and the associated cost-recovery fees. NMFS will also
create a report that will detail the costs incurred by NMFS, for the
management, enforcement, and data collection and analysis associated
with the IFQ allocation program during the prior cost-recovery billing
period.
(1) NMFS determination of the total annual recoverable costs of the
tilefish IFQ program. The Regional Administrator shall determine the
costs

[[Page 60647]]

associated with the management, data collection and analysis, and
enforcement of the IFQ allocation program. The recoverable costs will
be divided by the amount of the total ex-vessel value of all tilefish
IFQ landings during the cost-recovery billing period to derive a
percentage. IFQ allocation permit holders will be assessed a fee based
on this percentage multiplied by the total ex-vessel value of all
landings under their permanent IFQ allocation permit, including
landings of allocation that is leased. This fee shall not exceed 3
percent of the total value of tilefish landings of the IFQ allocation
permit holder. If NMFS determines that the costs associated with the
management, data collection and analysis, and enforcement of the IFQ
allocation program exceed 3 percent of the total value of tilefish
landings, only 3 percent are recoverable.
(i) Valuation of IFQ allocation. The 3-percent limitation on cost-
recovery fees shall be based on the ex-vessel value of landed
allocation. The ex-vessel value for each pound of tilefish landed by an
IFQ allocation holder shall be determined from Northeast Federal dealer
reports submitted to NMFS, which include the price per pound paid to
the vessel at the time of dealer purchase.
(ii) [Reserved]
(2) Fee payment procedure. An IFQ allocation permit holder who has
incurred a cost-recovery fee must pay the fee to NMFS within 45 days of
the date of the bill. Cost-recovery payments shall be made
electronically via the Federal Web portal, http://www.pay.gov or other
Internet sites designated by the Regional Administrator. Instructions
for electronic payment shall be available on both the payment Web site
and the cost-recovery fee bill. Electronic payment options shall
include payment via a credit card, as specified in the cost-recovery
bill, or via direct automated clearing house (ACH) withdrawal from a
designated checking account. Alternatively, payment by check may be
authorized by Regional Administrator if he/she determines that
electronic payment is not possible.
(3) Payment compliance. If the cost-recovery payment, as determined
by NMFS, is not made within the time specified in paragraph (h)(2) of
this section, the Regional Administrator will deny the renewal of the
appropriate IFQ allocation permit until full payment is received. If,
upon preliminary review of a fee payment, the Regional Administrator
determines that the IFQ allocation permit holder has not paid the full
amount due, he/she shall notify the IFQ allocation permit holder in
writing of the deficiency. NMFS shall explain the deficiency and
provide the IFQ allocation permit holder 30 days from the date of the
notice, either to pay the amount assessed or to provide evidence that
the amount paid was correct. If the IFQ allocation permit holder
submits evidence in support of the appropriateness of his/her payment,
the Regional Administrator shall determine whether there is a
reasonable basis upon which to conclude that the amount of the tendered
payment is correct. This determination shall be in set forth in a Final
Administrative Determination (FAD) that is signed by the Regional
Administrator. A FAD shall be the final decision of the Department of
Commerce. If the Regional Administrator determines that the IFQ
allocation permit holder has not paid the appropriate fee, he/she shall
require payment within 30 days of the date of the FAD. If a FAD is not
issued until after the start of the fishing year, the IFQ allocation
permit holder may be issued a letter of authorization to fish until the
FAD is issued, at which point the permit holder shall have 30 days to
comply with the terms of the FAD or the tilefish IFQ allocation permit
shall not be issued, and the letter of authorization shall not be valid
until such terms are met. Any tilefish landed pursuant to the above
authorization will count against the IFQ allocation permit, if issued.
If the Regional Administrator determines that the IFQ allocation permit
holder owes additional fees for the previous cost-recovery billing
period, and the renewed IFQ allocation permit has already been issued,
the Regional Administrator shall issue a FAD and will notify the IFQ
allocation permit holder in writing. The IFQ allocation permit holder
shall have 30 days from the date of the FAD to comply with the terms of
the FAD. If the IFQ allocation permit holder does not comply with the
terms of the FAD within this period, the Regional Administrator shall
rescind the IFQ allocation permit until such terms are met. If an
appropriate payment is not received within 30 days of the date of a
FAD, the Regional Administrator shall refer the matter to the
appropriate authorities within the U.S. Department of the Treasury for
purposes of collection. No permanent or temporary IFQ allocation
transfers may be made to or from the allocation of an IFQ allocation
permit holder who has not complied with any FAD. If the Regional
Administrator determines that the terms of a FAD have been met, the IFQ
allocation permit holder may renew the tilefish IFQ allocation permit.
If NMFS does not receive full payment of a recoverable cost fee prior
to the end of the cost-recovery billing period immediately following
the one for which the fee was incurred, the subject IFQ allocation
permit shall be deemed to have been voluntarily relinquished pursuant
to paragraph (b)(7) of this section.
(4) Periodic review of the IFQ program. A formal review of the IFQ
program must be conducted by the MAFMC within 5 years of the effective
date of the final regulations. Thereafter, it shall be incorporated
into every scheduled MAFMC review of the FMP (i.e., future amendments
or frameworks), but no less frequently than every 7 years.

0
73. Section 648.295 is revised to read as follows:

Sec. 648.295 Tilefish incidental trip limits.

(a) Incidental trip limit for vessels not fishing under an IFQ
allocation. Any vessel of the United States fishing under a tilefish
permit, as described at Sec. 648.4(a)(12), is prohibited from
possessing more than 500 lb (226.8 kg) of tilefish at any time, unless
the vessel is fishing under a tilefish IFQ allocation permit, as
specified at Sec. 648.294(a). Any tilefish landed by a vessel fishing
under an IFQ allocation permit, on a given fishing trip, count as
landings under the IFQ allocation permit.
(b) In-season closure of the incidental fishery. The Regional
Administrator will monitor the harvest of the tilefish incidental TAL
based on dealer reports and other available information, and shall
determine the date when the incidental tilefish TAL has been landed.
The Regional Administrator shall publish a notice in the Federal
Register notifying vessel and dealer permit holders that, effective
upon a specific date, the incidental tilefish fishery is closed for the
remainder of the fishing year.

0
74. Section 648.296 is revised to read as follows:

Sec. 648.296 Tilefish recreational possession limit.

Any person fishing from a vessel that is not fishing under a
tilefish vessel permit issued pursuant to Sec. 648.4(a)(12), may land
up to eight tilefish per trip. Anglers fishing onboard a charter/party
vessel shall observe the recreational possession limit.

0
75. Section 648.297 is added to subpart N to read as follows:

Sec. 648.297 Tilefish gear restricted areas.

No vessel of the United States may fish with bottom-tending mobile
gear within the areas bounded by the following coordinates:

[[Page 60648]]

----------------------------------------------------------------------------------------------------------------
N. lat. W. long.
Canyon -----------------------------------------------------------------
Degrees Min Seconds Degrees Min Seconds
----------------------------------------------------------------------------------------------------------------
Oceanographer................................. 40.0 29.0 50.0 68.0 10.0 30.0
40.0 29.0 30.0 68.0 8.0 34.8
40.0 25.0 51.6 68.0 6.0 36.0
40.0 22.0 22.8 68.0 6.0 50.4
40.0 19.0 40.8 68.0 4.0 48.0
40.0 19.0 5.0 68.0 2.0 19.0
40.0 16.0 41.0 68.0 1.0 16.0
40.0 14.0 28.0 68.0 11.0 28.0
Lydonia....................................... 40.0 31.0 55.2 67.0 43.0 1.2
40.0 28.0 52.0 67.0 38.0 43.0
40.0 21.0 39.6 67.0 37.0 4.8
40.0 21.0 4.0 67.0 43.0 1.0
40.0 26.0 32.0 67.0 40.0 57.0
40.0 28.0 31.0 67.0 43.0 0.0
Veatch........................................ 40.0 0.0 40.0 69.0 37.0 8.0
40.0 0.0 41.0 69.0 35.0 25.0
39.0 54.0 43.0 69.0 33.0 54.0
39.0 54.0 43.0 69.0 40.0 52.0
Norfolk....................................... 37.0 5.0 50.0 74.0 45.0 34.0
37.0 6.0 58.0 74.0 40.0 48.0
37.0 4.0 31.0 74.0 37.0 46.0
37.0 4.0 1.0 74.0 33.0 50.0
36.0 58.0 37.0 74.0 36.0 58.0
37.0 4.0 26.0 74.0 41.0 2.0
----------------------------------------------------------------------------------------------------------------

Sec. 648.298 [Added and reserved]

0
76. Section 648.298 is added to subpart N and reserved.

0
77. Section 648.299 is added to subpart N to read as follows:

Sec. 648.299 Tilefish framework specifications.

(a) Within-season management action. The MAFMC may, at any time,
initiate action to add or adjust management measures if it finds that
action is necessary to meet or be consistent with the goals and
objectives of the Tilefish FMP.
(1) Specific management measures. The following specific management
measures may be adjusted at any time through the framework adjustment
process:
(i) Minimum fish size;
(ii) Minimum hook size;
(iii) Closed seasons;
(iv) Closed areas;
(v) Gear restrictions or prohibitions;
(vi) Permitting restrictions;
(vii) Gear limits;
(viii) Trip limits;
(ix) Adjustments within existing ABC control rule levels;
(x) Adjustments to the existing MAFMC risk policy;
(xi) Introduction of new AMs, including sub ACTs;
(xii) Annual specification quota setting process;
(xiii) Tilefish FMP Monitoring Committee composition and process;
(xiv) Description and identification of EFH;
(xv) Fishing gear management measures that impact EFH;
(xvi) Habitat areas of particular concern;
(xvii) Set-aside quotas for scientific research;
(xviii) Changes to the Northeast Region SBRM, including the CV-
based performance standard, the means by which discard data are
collected/obtained, fishery stratification, reports, and/or industry-
funded observers or observer set-aside programs;
(xix) Recreational management measures, including the bag limit,
minimum fish size limit, seasons, and gear restrictions or
prohibitions; and
(xx) IFQ program review components, including capacity reduction,
safety at sea issues, transferability rules, ownership concentration
caps, permit and reporting requirements, and fee and cost-recovery
issues.
(xxi) Measures that require significant departures from previously
contemplated measures or that are otherwise introducing new concepts
may require a formal amendment of the FMP instead of a framework
adjustment.
(2) Adjustment process. If the MAFMC determines that an adjustment
to management measures is necessary to meet the goals and objectives of
the FMP, it will recommend, develop, and analyze appropriate management
actions over the span of at least two MAFMC meetings. The MAFMC will
provide the public with advance notice of the availability of the
recommendation, appropriate justifications and economic and biological
analyses, and opportunity to comment on the proposed adjustments prior
to and at the second MAFMC meeting on that framework action.
(3) MAFMC recommendation. After developing management actions and
receiving public testimony, the MAFMC will make a recommendation to the
Regional Administrator. The MAFMC's recommendation must include
supporting rationale and, if management measures are recommended, an
analysis of impacts and a recommendation to the Regional Administrator
on whether to issue the management measures as a final rule. If the
MAFMC recommends that the management measures should be issued as a
final rule, it must consider at least the following factors and provide
support and analysis for each factor considered:
(i) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether regulations have to be in place for an
entire harvest/fishing season;
(ii) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the MAFMC's recommended management measures;
(iii) Whether there is an immediate need to protect the resource;
and
(iv) Whether there will be a continuing evaluation of management
measures adopted following their implementation as a final rule.
(4) Regional Administrator action. If the MAFMC's recommendation
includes adjustments or additions to management measures and, after
reviewing the

[[Page 60649]]

MAFMC's recommendation and supporting information:
(i) If the Regional Administrator concurs with the MAFMC's
recommended management measures and determines that the recommended
management measures should be issued as a final rule based on the
factors specified in paragraphs (a)(2) and (a)(3) of this section, the
measures will be issued as a final rule in the Federal Register.
(ii) If the Regional Administrator concurs with the MAFMC's
recommendation and determines that the recommended management measures
should be published first as a proposed rule, the measures will be
published as a proposed rule in the Federal Register. After additional
public comment, if the Regional Administrator concurs with the MAFMC's
recommendation, the measures will be issued as a final rule in the
Federal Register.
(iii) If the Regional Administrator does not concur with the
MAFMC's recommendation, the MAFMC will be notified in writing of the
reasons for the non-concurrence.
(b) Emergency action. Nothing in this section is meant to derogate
from the authority of the Secretary to take emergency action under
section 305(e) of the Magnuson-Stevens Act.

Sec. Sec. 648.1, 648.2, 648.4, 648.6, 648.7, 648.8, 648.12, 648.13,
648.14, 648.15, and 648.94 [Amended]

0
78. In the table below, for each section in the left column, remove the
text from whenever it appears throughout the section and add the text
indicated in the right column.

----------------------------------------------------------------------------------------------------------------
Section Remove Add Frequency
----------------------------------------------------------------------------------------------------------------
Sec. 648.1(a).......................... surf clam................... surfclam................... 1
Sec. 648.1(a).......................... Surf Clam................... Surfclam................... 1
Sec. 648.2............................. surf clam................... surfclam................... 6
Sec. 648.2............................. surf clams.................. surfclams.................. 3
Sec. 648.2............................. Surf clams.................. Surfclams.................. 1
Sec. 648.2............................. Sec. 648.70............... Sec. 648.74.............. 1
Sec. 648.2............................. Sec. 648.291(e)(1)........ Sec. 648.294(e)(1)....... 2
Sec. 648.4(a)(3) introductory text..... Sec. 648.105.............. Sec. 648.106............. 1
Sec. 648.4(a)(3)(i)(A)................. Sec. 648.105.............. Sec. 648.106............. 1
Sec. 648.4(a)(3)(i)(L)(ii)............. Sec. 648.105.............. Sec. 648.106............. 1
Sec. 648.4(a)(3)(i)(L)(iii)............ Sec. 648.104(b)(1)........ Sec. 648.108(b)(1)....... 1
Sec. 648.4(a)(4)....................... Surf clam................... Surfclam................... 1
Sec. 648.4(a)(4)....................... surf clams.................. surfclams.................. 2
Sec. 648.4(a)(4)....................... surf clam................... surfclam................... 1
Sec. 648.4(a)(5)(ii)................... Sec. 648.21............... Sec. 648.22.............. 1
Sec. 648.4(a)(6) introductory text..... Sec. 648.125.............. Sec. 648.128............. 1
Sec. 648.4(a)(12) introductory text.... Sec. 648.291.............. Sec. 648.294............. 1
Sec. 648.4(a)(12) introductory text.... Sec. 648.293.............. Sec. 648.295............. 1
Sec. 648.4(a)(12)(i)................... Sec. 648.295.............. Sec. 648.296............. 1
Sec. 648.6(a)(1)....................... surf clam................... surfclam................... 2
Sec. 648.6(c).......................... surf clam................... surfclam................... 1
Sec. 648.7(b)(1)(ii)................... Surf clam................... Surfclam................... 1
Sec. 648.7(b)(1)(ii)................... surf clam................... surfclam................... 2
Sec. 648.7(b)(1)(ii)................... surf clams.................. surfclams.................. 1
Sec. 648.7(b)(2)(ii)................... Sec. 648.291(a)........... Sec. 648.294(a).......... 1
Sec. 648.8(e).......................... surf clam................... surfclam................... 2
Sec. 648.12 introductory text.......... surf clam................... surfclam................... 1
Sec. 648.12(c)......................... surf clams.................. surfclams.................. 1
Sec. 648.14(g)(1) introductory text.... Sec. 648.21(g)............ Sec. 648.22(g)........... 1
Sec. 648.14(g)(1)(iii)................. Sec. 648.26............... Sec. 648.27.............. 1
Sec. 648.14(g)(2) introductory text.... Sec. 648.21(g)............ Sec. 648.22(g)........... 1
Sec. 648.14(g)(2)(i)................... Sec. 648.21............... Sec. 648.22.............. 1
Sec. 648.14(g)(2)(ii)(C)............... Sec. 648.25............... Sec. 648.26.............. 1
Sec. 648.14(g)(3) introductory text.... Sec. 648.21(g)............ Sec. 648.22(g)........... 1
Sec. 648.14(g)(3)(i)................... Sec. 648.21(d)............ Sec. 648.22(d)........... 1
Sec. 648.14(h) introductory text....... Sec. 648.21(g)............ Sec. 648.22(g)........... 1
Sec. 648.14(n)(1) introductory text.... Sec. 648.21(g)............ Sec. 648.22(g)........... 1
Sec. 648.14(n)(1)(i)................... Sec. 648.105.............. Sec. 648.106............. 1
Sec. 648.14(n)(1)(i)................... Sec. 648.102.............. Sec. 648.105............. 1
Sec. 648.14(n)(1)(ii)(B)............... Sec. 648.105.............. Sec. 648.106............. 1
Sec. 648.14(n)(1)(iii)................. Sec. 648.104.............. Sec. 648.108............. 1
Sec. 648.14(n)(1)(iii)................. Sec. 648.105(a)........... Sec. 648.106(a).......... 1
Sec. 648.14(n)(2) introductory text.... Sec. 648.100(f)........... Sec. 648.102(e).......... 1
Sec. 648.14(n)(2)(i)(A)................ Sec. 648.104.............. Sec. 648.108............. 1
Sec. 648.14(n)(2)(i)(B)................ Sec. 648.105(d)........... Sec. 648.106(d).......... 1
Sec. 648.14(n)(2)(i)(B)................ Sec. 648.104(a)........... Sec. 648.108(a).......... 1
Sec. 648.14(n)(2)(i)(B)................ Sec. 648.104(b)........... Sec. 648.108(b).......... 1
Sec. 648.14(n)(2)(iii)(A).............. Sec. 648.104.............. Sec. 648.108............. 1
Sec. 648.14(n)(2)(iii)(A).............. Sec. 648.104(e)........... Sec. 648.108(e).......... 1
Sec. 648.14(n)(2)(iii)(B).............. Sec. 648.104.............. Sec. 648.108............. 1
Sec. 648.14(n)(2)(iii)(B).............. Sec. 648.104(f)........... Sec. 648.108(f).......... 1
Sec. 648.14(n)(2)(iii)(C).............. Sec. 648.104(b)(1)........ Sec. 648.108(b)(1)....... 1
Sec. 648.14(n)(2)(iii)(C).............. Sec. 648.104.............. Sec. 648.108............. 1
Sec. 648.14(n)(3) introductory text.... Sec. 648.100(f)........... Sec. 648.102(e).......... 1
Sec. 648.14(n)(3)(ii).................. Sec. 648.105.............. Sec. 648.106............. 1
Sec. 648.14(n)(3)(iii)................. Sec. 648.102.............. Sec. 648.105............. 1
Sec. 648.14(o)(1) introductory text.... Sec. 648.120(e)........... Sec. 648.122(e).......... 1

[[Page 60650]]

Sec. 648.14(o)(1)(ii)(A)............... Sec. 648.122(g)........... Sec. Sec. 648.124 and 1
648.127.
Sec. 648.14(o)(1)(ii)(D)............... Sec. 648.123.............. Sec. 648.125............. 2
Sec. 648.14(o)(1)(ii)(E)............... Sec. 648.120(b)(3), (4), Sec. 648.122(a).......... 1
and (7).
Sec. 648.14(o)(1)(iii)................. Sec. 648.124.............. Sec. 648.126............. 1
Sec. 648.14(o)(1)(v)................... Sec. 648.123.............. Sec. 648.125............. 1
Sec. 648.14(o)(1)(vi).................. Sec. 648.122 (a) or (b)... Sec. 648.124 (a) or (b).. 1
Sec. 648.14(o)(1)(vi).................. Sec. 648.123(b)........... Sec. 648.125(a)(5)....... 1
Sec. 648.14(o)(2) introductory text.... Sec. 648.120(e)........... Sec. 648.122(e).......... 1
Sec. 648.14(o)(2)(i) introductory text. Sec. 648.123.............. Sec. 648.125............. 2
Sec. 648.14(o)(2)(i)(C)................ Sec. 648.122.............. Sec. 648.124............. 1
Sec. 648.14(o)(3) introductory text.... Sec. 648.120(e)........... Sec. 648.122(e).......... 1
Sec. 648.14(o)(3)(ii).................. Sec. 648.125.............. Sec. 648.128............. 1
Sec. 648.14(o)(3)(iii)................. Sec. 648.122.............. Sec. 648.124............. 1
Sec. 648.14(o)(3)(v)................... Sec. 648.124(b)........... Sec. 648.126(b).......... 1
Sec. 648.14(p)(1) introductory text.... Sec. 648.140(e)........... Sec. 648.142(d).......... 1
Sec. 648.14(p)(1)(i)................... Sec. 648.142.............. Sec. 648.146............. 1
Sec. 648.14(p)(1)(v)................... Sec. 648.143.............. Sec. 648.147............. 1
Sec. 648.14(p)(2) introductory text.... Sec. 648.140(e)........... Sec. 648.142(d).......... 1
Sec. 648.14(p)(3) introductory text.... Sec. 648.140.............. Sec. 648.142............. 1
Sec. 648.14(p)(2)(ii)(D)(3)............ Sec. 648.140(e)........... Sec. 648.142(d).......... 1
Sec. 648.14(p)(3)(iii)................. Sec. 648.142.............. Sec. 648.146............. 1
Sec. 648.14(q) introductory text....... Sec. 648.160(h)........... Sec. 648.162(g).......... 1
Sec. 648.14(q)(2)(i)................... Sec. 648.161(b)........... Sec. 648.163(b).......... 1
Sec. 648.14(q)(2)(ii).................. Sec. 648.161(a)........... Sec. 648.163(a).......... 1
Sec. 648.14(u)(2)(ii).................. Sec. 648.293.............. Sec. 648.295............. 1
Sec. 648.14(u)(2)(ii).................. Sec. 648.291(a)........... Sec. 648.294(a).......... 1
Sec. 648.14(u)(2)(iii)................. Sec. 648.291(a)........... Sec. 648.294(a).......... 1
Sec. 648.15(b)(1)...................... Sec. 648.70............... Sec. 648.74.............. 1
Sec. 648.15(b)(2)...................... Sec. 648.76............... Sec. 648.78.............. 1
Sec. 648.94(c)(3)(iv).................. Sec. 648.104(a)(1)........ Sec. 648.108(a)(1)....... 1
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2011-24511 Filed 9-28-11; 8:45 am]
BILLING CODE 3510-22-P