[Federal Register Volume 78, Number 85 (Thursday, May 2, 2013)]
[Rules and Regulations]
[Pages 25591-25619]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10281]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120912442-3395-02]
RIN 0648-XC240


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; 2013 Sector Operations 
Plans and Contracts and Allocation of Northeast Multispecies Annual 
Catch Entitlements

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

ACTION: Interim final rule; request for comments.

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SUMMARY: We are partially approving 17 sector operations plans and 
contracts for fishing year (FY) 2013, providing allocations of 
Northeast (NE) multispecies to these sectors, and granting 23 
regulatory exemptions. Approval of sector operations plans is necessary 
to allocate quotas to the sectors and for the sectors to operate. The 
NE Multispecies Fishery Management Plan (FMP) allows limited access 
permit holders to form sectors, and requires sectors to submit their 
operations plans and contracts to us, NMFS, for approval or 
disapproval. Approved sectors are exempt from certain effort control 
regulations and receive allocation of NE multispecies (groundfish) 
based on their members' fishing history. We are accepting additional 
public comment on the revised explanation of at-sea monitoring (ASM) 
coverage for FY 2013 for a 30-day period, and revisions to the 
exemption from the limits on the number of gillnets imposed on Day 
gillnet vessels for a 15-day period.

DATES: Effective May 1, 2013, through April 30, 2014. Written comments 
on the revised explanation of at-sea monitoring (ASM) coverage for FY 
2013 must be received on or before June 3, 2013. Written comments on 
revisions to the exemption from the limits on the number of gillnets 
imposed on Day gillnet vessels must be received on or before May 17, 
2013.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2013-0007, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0007, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Allison Murphy, 55 Great 
Republic Drive, Gloucester, MA 01930.
     Fax: 978-281-9135; Attn: Allison Murphy.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Allison Murphy, Sector Policy Analyst, 
phone (978) 281-9122, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    Amendment 13 to the FMP (69 FR 22906, April 27, 2004) established a 
process for forming sectors within the NE multispecies fishery, 
implemented restrictions applicable to all sectors, and authorized 
allocations to a sector of a total allowable catch (TAC) for specific 
NE multispecies species. Amendment 16 to the FMP (74 FR 18262, April 9, 
2010) expanded sector management, revised the two existing sectors to 
comply with the expanded sector rules (summarized below), and 
authorized 17 new sectors. Framework Adjustment (FW) 45 to the FMP (76 
FR 23042, April 25, 2011) further revised the rules for sectors and 
authorized 5 new sectors (for a total of 24 sectors). The final rule 
implementing FW 48, which is expected to be published soon after this 
final rule and to be effective on May 1, 2013, will include the 
approval or disapproval of several requirements, including a measure 
that would eliminate dockside monitoring (DSM) requirements, revisions 
to ASM requirements, and modifications to the minimum sizes for several 
NE multispecies stocks. The final rule implementing FW 50, which is 
also expected to be published soon after this final rule, will include 
the approval or disapproval of several requirements, including 
commercial annual catch limits (ACLs) and the allocation of southern 
New England/Mid-Atlantic (SNE/MA) winter flounder to sectors.
    The FMP defines a sector as ``[a] group of persons (three or more 
persons, none of whom have an ownership interest in the other two 
persons in the sector) holding limited access vessel permits who have 
voluntarily entered into a contract and agree to certain fishing 
restrictions for a specified period of time, and which has been granted 
a TAC(s) [sic] in order to achieve objectives consistent with 
applicable FMP goals and objectives.'' Sectors are self-selecting, 
meaning each sector can choose its members.
    The NE multispecies sector management system allocates a portion of 
the NE multispecies stocks to each sector. These annual sector 
allocations are known as annual catch entitlements (ACE). These 
allocations are a portion of a stock's ACL that is available to 
commercial NE multispecies vessels, and are based on the collective 
fishing history of a sector's members. Currently, sectors may receive 
allocations of most large-mesh NE multispecies stocks with the 
exception of Atlantic halibut, windowpane flounder, SNE/MA winter 
flounder, and Atlantic wolffish. Ocean pout, a small mesh NE 
multispecies and part of the NE multispecies complex, is also not an 
allocated stock. Non-allocated stocks may not be landed or sold. A 
sector determines how to harvest its ACEs and may decide to consolidate 
operations to fewer vessels.
    Because sectors receive an allocation under a quota-based system, 
the FMP grants sector vessels several ``universal'' exemptions from the 
FMP's effort controls. These universal exemptions apply to: Trip limits 
on allocated stocks; the Georges Bank (GB) Seasonal Closure Area; NE 
multispecies days-at-sea (DAS) restrictions; the requirement to use a 
6.5-inch (16.5-cm) mesh codend when fishing with selective gear on GB; 
and portions of the Gulf of Maine (GOM) Rolling Closure Areas. The FMP 
currently prohibits sectors from requesting exemptions from year-round 
mortality closed areas (CA), permitting restrictions, gear restrictions 
designed to minimize habitat impacts, and reporting requirements 
(excluding DAS reporting requirements or DSM requirements). The final 
rule implementing FW 48, which is expected to be published soon after 
this final rule and to be effective May 1, 2013, proposes a measure to 
allow sectors to request access to portions of the year-round mortality 
CAs that were not designed to protect essential fish habitat, and not 
being considered for designation as essential fish habitat in the 
Omnibus Habitat Amendment action currently being developed. Sectors 
consequently have requested exemptions from year-round mortality CAs in 
their FY 2013 operations plans.
    Of the 24 approved sectors, we received operations plans and 
contracts for FY 2013 from 18 sectors. One of the 18 operations plans 
and contracts was submitted by the Tri-State Sector. Because no vessels 
elected to join the Tri-State Sector, it does not meet the three member 
minimum requirement for sectors. Therefore, its proposed operations 
plan and contract were disapproved. Six of the 24 sectors did not 
submit operations plans or contracts for FY 2013: The GB Cod Hook 
Sector; Northeast Fishery Sector I; the State of Maine Permit Bank 
Sector; the State of New Hampshire Permit Bank Sector; the

[[Page 25593]]

Commonwealth of Massachusetts Permit Bank Sector; and the State of 
Rhode Island Permit Bank Sector. Amendment 17 to the FMP allows a 
state-operated permit bank to receive an allocation without needing to 
comply with the administrative and procedural requirements for sectors 
(77 FR 16942, March 23, 2012). These permit banks are required to 
submit a list of participating permits to us by a date specified in the 
permit bank's Memorandum of Agreement, typically April 1. The State of 
Maine Permit Bank and the New Hampshire Permit Bank are currently 
operating under the Amendment 17 requirements.
    We determined that the remaining 17 sector operations plans and 
contracts, and 23 of the 39 regulatory exemptions, are consistent with 
the goals of the FMP and meet sector requirements outlined in the 
regulations at Sec.  648.87. The remaining 17 operations plans are 
similar to previously-approved versions, but include new exemption 
requests, proposals for industry-funded ASM plans, and two sectors 
submitted proposals to fish when one or more of their NE multispecies 
allocations are exhausted. Copies of the operations plans and 
contracts, and the EA, are available at http://www.regulations.gov and 
from NMFS (see ADDRESSES). Of the 17 approved operations plans and 
contracts, the Northeast Fishery Sector IV and Sustainable Harvest 
Sector 3 are approved to operate as lease-only sectors. The Sustainable 
Harvest Sector 3 operation plan has not explicitly prohibited fishing 
activity, and it may transfer permits to active vessels. We summarize 
many of the sector requirements in this final rule and grant 23 of the 
requested regulatory exemptions, but deny the remaining 16 requests for 
the reasons noted in this rule.

Sector Allocations

    Sectors typically submit membership information to us on December 1 
prior to the start of the next FY. Due to uncertainty regarding ACLs 
for several stocks in FY 2013 and a corresponding delay in distributing 
a letter describing each vessel's potential contribution to a sector's 
quota for FY 2013, we extended the deadline to join a sector to March 
29, 2013. Based on sector enrollment as of March 29, 2013, we have 
calculated the FY 2013 projected allocations in this final rule. In 
addition to the membership delay, all permits that change ownership 
after December 1, 2012, retain the ability to join a sector through 
April 30, 2013. All permits enrolled in a sector, and the vessels 
associated with those permits, have until April 30, 2013, to withdraw 
from a sector and fish in the common pool for FY 2013. We will publish 
final sector ACEs and common pool sub-ACL totals, based upon final 
rosters, as soon as possible after the start of FY 2013.
    We calculate the sector's allocation for each stock by summing its 
members' potential sector contributions (PSC) for a stock and then 
multiplying that total percentage by the available commercial sub-ACL 
for that stock, as approved in FW 50. Table 1 shows the projected total 
PSC for each sector by stock for FY 2013. Table 2 shows the total 
percentage of each commercial sub-ACL each sector would receive for FY 
2013, based on their preliminary FY 2013 rosters. Tables 3 and 4 show 
the allocations each sector would be allocated for FY 2013, also based 
on their preliminary FY 2013 rosters. At the start of the FY, we 
provide the final allocations, to the nearest pound, to the individual 
sectors, and we use those final allocations to monitor sector catch. 
While the common pool does not receive a specific allocation, the 
common pool sub-ACLs have been included in each of these tables for 
comparison.
    We do not assign an individual permit a PSC for Eastern GB cod or 
Eastern GB haddock; instead, we assign a total PSC for these GB stocks 
to a permit. Each sector's GB cod and GB haddock allocation is then 
divided into an Eastern ACE and a Western ACE, based on each sector's 
percentage of the GB cod and haddock ACLs. For example, if a sector is 
allocated 4 percent of the GB cod ACL and 6 percent of the GB haddock 
ACL, the sector is allocated 4 percent of the commercial Eastern U.S./
Canada Area GB cod TAC and 6 percent of the commercial Eastern U.S./
Canada Area GB haddock TAC as its Eastern GB cod and haddock ACEs. 
These amounts are then subtracted from the sector's overall GB cod and 
haddock allocations to determine its Western GB cod and haddock ACEs. A 
sector may only harvest its Eastern GB cod and haddock ACEs in the 
Eastern U.S./Canada Area.
    At the start of FY 2013, we will withhold 20 percent of each 
sector's FY 2013 allocation until we finalize FY 2012 catch 
information. Further, we will allow sectors to transfer ACE for 2 weeks 
to reduce or eliminate any FY 2012 overages. If necessary, we will 
reduce any sector's FY 2013 allocation to account for a remaining 
overage in FY 2012. We will notify the Council and sector managers of 
two-week transfer window in writing and will announce this decision on 
our Web site at http://www.nero.noaa.gov/.
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C

Sector Operations Plans and Contracts

    We received 18 sector operations plans and contracts by the 
September 4, 2012, deadline. Each sector elected to submit a single 
document that is both its contract and operations plan. Therefore, 
these submitted operations plans not only contain the rules under which 
each sector would fish, but also provide the legal contract that binds 
each member to the sector. The sector formerly known as the Port Clyde 
Community Groundfish Sector has submitted its operations plan under a 
new name, the Maine Coast Community Sector. While the Tri-State Sector 
submitted an operations plan for FY 2013, no members elected to join 
the sector. The Tri-State Sector's operations plan is therefore 
disapproved because the sector did not meet membership requirements. 
Most sectors proposed operations plans are for a single FY, i.e., FY 
2013. NEFS 4 submitted a 2-yr operations plan. Because the EA only 
analyzes operations in FY 2013, NEFS 4 is only approved to operate in 
FY 2013. Each sector's operations plan, and sector members, must comply 
with the regulations governing sectors, which are found at Sec.  
648.87. In addition, each sector and sector member must conduct fishing 
activities as detailed in its approved operations plan.
    Any permit holder with a limited access NE multispecies permit that 
was valid as of May 1, 2008, is eligible to participate in a sector, 
including any inactive permit currently held in confirmation of permit 
history (CPH). If a permit holder officially enrolls a permit in a 
sector and the FY begins, then that permit must remain in the sector 
for the entire FY, and cannot fish in the NE multispecies fishery 
outside of the sector (i.e., in the common pool) during the FY. 
Participating vessels are required to comply with all pertinent Federal 
fishing regulations, except as specifically exempted and detailed in 
the letter of authorization (LOA) issued by the Regional Administrator. 
If, during a FY, a sector requests an exemption that we have already 
approved, or proposes a change to administrative provisions, we may 
amend the sector operations plans. Should any amendments require 
modifications to LOAs, we would include these changes in updated LOAs 
and provide the updated LOAs to the appropriate sector's members.
    Each sector is required to ensure that it does not exceed its ACE 
during the FY. Sector vessels are required to retain all legal-sized 
allocated NE multispecies stocks, unless a sector is granted an 
exemption allowing its member vessels to discard legal-sized 
unmarketable fish at sea. Catch (defined as landings and discards) of 
all allocated NE multispecies stocks by a sector's vessels count 
against the sector's allocation. Catch from a sector trip (e.g., not 
fishing under provisions of a regulatory NE multispecies exempted 
fishery or with exempted gear) targeting dogfish, monkfish, skate, or 
lobster (with non-trap gear) would be deducted from the sector's ACE, 
because these trips use gear capable of catching groundfish. Catch from 
a trip in an exempted fishery does not count against a sector's 
allocation, because the catch is assigned to a separate ACL sub-
component.
    We provide sectors with calculated discard rates to apply to 
unobserved sector trips, based on discard rates from observed trips. 
Amendment 16 required sectors to develop independent third-party DSM 
programs to verify landed weights reported by the dealer. We previously 
funded DSM for FY 2010 and part of FY 2011, but suspended DSM for the 
remainder of FY 2011 and 2012. The FW 48 proposed rule has proposed the 
elimination of the requirement for DSM for FY 2013.
    For FYs 2010 and 2011, there was no requirement for an industry-
funded ASM program, but NMFS was able to fund an ASM program with a 
target ASM coverage rate of 30 percent of all trips. For FY 2012, we 
conducted an analysis to determine the FY 2012 ASM coverage rate that 
would be necessary to achieve the same level of precision as attained 
by the target 30-percent ASM coverage rate used for FY's 2010 and 2011, 
and ultimately set a target ASM coverage rate for FY 2012 of 25 
percent, which was 17 percent more than the 8-percent Northeast Fishery 
Observer Program (NEFOP) coverage that supports the Standardized 
Bycatch Reporting Methodology (SBRM) and stock assessments.
    The regulations require sectors to design, implement, and fund an 
ASM program in FY 2013 that will provide a level of ASM coverage 
specified by NMFS. Amendment 16 regulations require NMFS to specify a 
level of ASM coverage that is sufficient to at least meet the same 
coefficient of variation (CV) specified in the SBRM and also to 
accurately monitor sector operations. The final rule implementing FW 
48, should it be approved, clarifies what level of ASM coverage is 
expected to meet these goals. Regarding meeting the SBRM CV level, FW 
48 states that this determination should be made at the overall stock 
level, which is consistent with the level NMFS determined was necessary 
in FY 2012. FW 48 also proposes to amend the goals of the sector 
monitoring program to achieve an accuracy level sufficient to minimize 
effects of potential monitoring bias to the extent practicable, while 
maintaining as much flexibility as possible to enhance fleet vitality.
    Taking these provisions of FW 48 into account, and interpreting the 
ASM monitoring provision in the context of Magnuson-Stevens Act 
requirements and National Standards, we have determined that the 
appropriate level of ASM coverage should be set to meet the CV 
requirement specified in the SBRM, and minimize the cost burden to the 
extent practicable, while still providing a reliable estimate of 
overall catch by sectors needed to sufficiently monitor ACEs and ACLs. 
Based on this standard, NMFS has determined that the appropriate ASM 
coverage rate for FY 2013 is 14 percent, in addition to the expected 8-
percent coverage rate provided under NEFOP. We expect these two 
programs to result in coverage of 22 percent of all sector trips, and 
we will use the discards from these observed and monitored trips to 
calculate discards for unobserved sector trips. We have published a 
more detailed summary of the supporting information, explanation and 
justification for this decision at: http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/FY2013_Multispecies_Sector_ASM_Requirements_Summary.pdf. This summary has since been updated to address additional 
comments received from Oceana on the settlement agreement.
    This summary, in addition to providing sectors and the public with 
a full and transparent explanation of the appropriate level of ASM 
coverage of sector operations, complies with a settlement agreement 
entered into by NMFS and Oceana, Inc. The settlement agreement resolved 
a lawsuit brought by Oceana challenging the approval of the 2012 sector 
operations plans primarily on grounds that the agency failed to 
adequately justify and explain that the ASM coverage rate specified for 
FY 2012 would accurately monitor the catch to effectively enforce catch 
limits in the groundfish fishery. We are providing additional 
opportunity to comment on this provision through this interim final 
rule.
    Prior to the publication of the proposed rule, we did not have 
confirmation on funding resources for FY 2013. We have since announced 
that we will pay for ASM coverage of sector trips during FY 2013. 
Therefore, the sector's ASM programs for FY 2013 are no longer 
applicable, and have been removed from the sector's operations plans.

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    Sectors are required to monitor their allocations and catch, and 
submit weekly catch reports to us. If a sector reaches an ACE threshold 
(specified in the operations plan), the sector must provide sector 
allocation usage reports on a daily basis. Once a sector's allocation 
for a particular stock is caught, that sector is required to cease all 
fishing operations in that stock area until it acquires more fish, 
unless that sector has an approved plan to fish without ACE for that 
stock. ACE may be transferred between sectors, but a transfer to or 
from common pool vessels are prohibited. Within 60 days of when we 
complete year-end catch accounting, each sector is required to submit 
an annual report detailing the sector's catch (landings and discards), 
enforcement actions, and pertinent information necessary to evaluate 
the biological, economic, and social impacts of each sector.
    Each sector contract provides procedures to enforce the sector 
operations plan, explains sector monitoring and reporting requirements, 
presents a schedule of penalties, and provides sector managers with the 
authority to issue stop fishing orders to sector members who violate 
provisions of the operations plan and contract. A sector, permit/vessel 
owner, and vessel operator participating in the sector may be held 
jointly and severally liable for ACE overages, discarding legal-sized 
fish, and/or misreporting catch (landings or discards). Each sector 
operations plan submitted for FY 2013 states that the sector would 
withhold an initial reserve from the sector's ACE sub-allocation to 
each individual member to prevent the sector from exceeding its ACE. 
Each sector contract details the method for initial ACE sub-allocation 
to sector members. For FY 2013, each sector has proposed that each 
sector member could harvest an amount of fish equal to the amount each 
individual member's permit contributed to the sector.

Approved FY 2013 Exemptions

Previously Approved Exemptions Approved for FY 2013 (1-16)

    We approve exemptions from the following requirements for FY 2013, 
all of which have been previously requested and approved: (1) 120-day 
block out of the fishery required for Day gillnet vessels; (2) 20-day 
spawning block out of the fishery required for all vessels; (3) 
prohibition on a vessel hauling another vessel's gillnet gear; (4) 
limits on the number of gillnets that may be hauled on GB when fishing 
under a NE multispecies/monkfish DAS; (5) limits on the number of hooks 
that may be fished; (6) DAS Leasing Program length and horsepower 
restrictions; (7) prohibition on discarding; (8) daily catch reporting 
by sector managers for sector vessels participating in the CA I Hook 
Gear Haddock Special Access Program (SAP); (9) powering vessel 
monitoring systems (VMS) while at the dock; (10) DSM for vessels 
fishing west of 72[deg]30' W. long.; (11) DSM for Handgear A-permitted 
sector vessels; (12) DSM for monkfish trips in the monkfish Southern 
Fishery Management Area (SFMA); (13) prohibition on fishing inside and 
outside of the CA I Hook Gear Haddock SAP while on the same trip; (14) 
6.5-inch (16.5-cm) minimum mesh size requirement for trawl nets to 
target redfish in the GOM, including the use of codend mesh as small as 
4.5-inch (11.4-cm); (15) prohibition on a vessel hauling another 
vessel's hook gear; and (16) the requirement to declare intent to fish 
in the Eastern U.S./Canada SAP and the CA II Yellowtail Flounder/
Haddock SAP prior to leaving the dock. These exemptions were used 
successfully, consistent with the purpose for which they were approved, 
and benefitted sector operations. The rationale for their approval 
remains valid. A detailed description of these 16 previously approved 
exemptions can be found in the FY 2012 proposed rule for sector 
operations (77 FR 8780, February 15, 2012), which is also available at: 
http://www.nero.noaa.gov/sfd/multifr/77FR8780.pdf.
    We approved one of the exemptions above with modifications from its 
initial approval. We expanded the exemption from using 6.5-inch (16.5-
cm) minimum mesh size requirement for trawl nets to target redfish in 
the GOM. The exemption originally allowed fishing with 6.0-inch (15.2-
cm) codend mesh, and was modified to allow the use of codend mesh size 
as small as 4.5-inch (11.4-cm) (78 FR 14226, March 5, 2013). The 
modified exemption as designed to allow more opportunity to catch 
underutilized redfish ACE. This final rule is available at: http://www.nero.noaa.gov/regs/2013/March/13redfishfr.pdf.
    We approved this exemption with several requirements, based on 
catch information from ongoing research. Monthly catch thresholds (80-
percent redfish requirement and no more than 5 percent NE multispecies 
discard requirement) are used to ensure that fishing under this 
exemption will not adversely affect other NE multispecies stocks. Along 
with allowing sectors to use a codend with mesh as small as 4.5 inches 
(11.4 cm) when an observer or at-sea monitor is onboard, we require 
sectors to develop industry-funded at-sea monitoring programs for trips 
specifically targeting redfish because monitoring all trips targeting 
redfish is necessary to adequately monitor bycatch thresholds.
    To facilitate monitoring of trips under this exemption, the 
approved redfish exemption includes a requirement for a vessel to 
declare whether or not it intends to use the exemption through the trip 
start hail. A vessel intending to take a redfish trip is required to 
enter ``R1'' into the free text field of the trip start hail to 
identify the trip. This hail report will help NMFS, and the sector 
manager, to identify a trip fishing under the redfish exemption for 
monitoring purposes.
    We will monitor the impacts of the 4.5-inch (11.4-cm) redfish 
exemption, compliance with monthly catch thresholds, and the impacts of 
the industry-funded monitoring program on required monitoring programs. 
We will revoke the 4.5-inch (11.4-cm) redfish exemption during the FY, 
if necessary, to mitigate negative impacts, and notify sectors and the 
public, as described later in this rule. Additional information on the 
requirements for 100-percent industry-funded monitoring programs for 
exemptions is provided below under Additional Industry-Funded ASM.

Exemptions of Concern That are Approved for FY 2013 (17-18)

    In FY 2012, we granted sectors exemptions from the following 
requirements, which we again approve for FY 2013: (17) Limits on the 
number of gillnets imposed on Day gillnet vessels; and (18) gear 
requirements in the Eastern U.S./Canada Management Area. We raised 
concern with continuing to grant these requests based on data analyzed 
for this rule and requested additional comment on these exemptions.
17. Limits on the Number of Gillnets Imposed on Day Gillnet Vessels
    The NE Multispecies FMP limits the number of gillnets a Day gillnet 
vessel may fish in the groundfish regulated mesh areas (RMA) to prevent 
an uncontrolled increase in the number of nets being fished that would 
undermine the applicable DAS effort controls. The limits are specific 
to the type of gillnet within each RMA: 100 gillnets (of which no more 
than 50 can be roundfish gillnets) in the GOM RMA (Sec.  
648.80(a)(3)(iv)); 50 gillnets in the GB RMA (Sec.  648.80(a)(4)(iv)); 
and 75 gillnets in the SNE and MA RMAs (Sec.  648.80(b)(2)(iv)). We 
previously approved this exemption in FYs 2010,

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2011, and 2012 to allow sector vessels to fish up to 150 nets (any 
combination of flatfish or roundfish nets) in any RMA to provide 
greater operational flexibility to sector vessels in deploying gillnet 
gear. Sectors argued that gillnet limits designed to control fishing 
effort are no longer necessary because sectors' ACEs limit overall 
fishing mortality. In the proposed rule we stated that a preliminary 
effort analysis of all sector vessels using gillnet gear indicates an 
increase in gear used in the RMAs with no corresponding increase in 
catch efficiency. The result was more gear being deployed, thereby 
increasing the opportunity for interactions with protected species 
without the benefit of increased catch. We raised concern that 
continued approval of the exemption on gillnet limits could ultimately 
lead to a rise in interactions with protected species.
    Industry, sectors, Maine Department of Marine Resources (DMR), and 
the Council all supported the continued approval of the exemption, 
noting negative financial impacts if the exemption were not approved, 
and efforts made to increase pinger compliance to mitigate concerns for 
harbor porpoise. However, as several commenters indicated, available 
data indicate that harbor porpoise interactions have decreased since 
the approval of this exemption. The Conservation Law Foundation (CLF), 
Pew, the Union of Concerned Scientists, and Massachusetts Division of 
Marine Fisheries (MA DMF) raised additional concerns for cod, impacts 
to non-target species, and the risk for lost gear. We note the reduced 
interactions with harbor porpoise and approve this exemption again for 
FY 2013. Based on our concern for spawning cod and the comment by MA 
DMF, after consulting with the NMFS Northeast Fisheries Science Center 
(NEFSC) about this concern, we are restricting the use of this 
exemption to seasons with minimal cod spawning in the GOM, i.e., late 
spring. Therefore, a vessel fishing in the GOM RMA may use this 
exemption seasonally, but will be restricted to the 100-net gillnet 
limit in blocks 124 and 125 in May, and in blocks 132 and 133 in June. 
A vessel fishing in GB RMA, SNE RMA, and MA RMA, the GOM outside of 
these times and areas will have no additional restrictions. We will 
continue to consider potential protected species concerns in the annual 
approval of this exemption.
18. Gear Requirements in the Eastern U.S./Canada Management Area
    The regulations require a NE multispecies vessel fishing with trawl 
gear in the Eastern U.S./Canada Area to use either a Ruhle trawl, a 
haddock separator trawl, or a flounder trawl (Sec.  648.85(a)(3)(iii)) 
to ensure that the U.S./Canada quotas of Eastern GB cod and haddock, 
and GB yellowtail flounder are not exceeded. We approved an exemption 
from this requirement in FYs 2011 and 2012 to enhance operational 
flexibility of sectors, reasoning that their overall fishing mortality 
would continue to be restrained by the sector ACEs.
    We raised concern with the continued approval of this exemption 
because the proposed FY 2013 ACLs for GB cod and GB yellowtail flounder 
proposed by the Council in FW 50 are dramatically lower than previous 
years when we granted this exemption. Several comments were submitted 
supporting the approval of this gear exemption. Commenters argued that 
effort controls, such as selective gear requirements, are no longer 
necessary, since sectors are restricted by an ACE. They also stated 
that sectors should be given the ability to manage their operations to 
maximize harvest of their ACEs, and the decision to restrict vessels to 
selective gear should be left to the sector. Based on these comments, 
we are again approving this exemption for FY 2013.

Approved Exemptions That Had Previously Been Disapproved (19-21)

    We approve three previously disapproved exemption requests from the 
following requirements for FY 2013: (19) Seasonal restrictions for the 
Eastern U.S./Canada Haddock SAP; (20) seasonal restrictions for the CA 
II Yellowtail Flounder/Haddock SAP; and (21) DSM requirements for a 
vessel using hand-operated jig gear. A detailed description of each 
exemption is included below:
19. Seasonal Restriction for the Eastern U.S./Canada Haddock SAP
    The Eastern U.S./Canada Haddock SAP consists of a portion of the 
Eastern U.S./Canada Area and a portion of CA II. We implemented this 
SAP in FW 40A to provide a vessel with additional opportunity to target 
haddock while fishing on a Category B DAS in, and near, CA II (69 FR 
67780, November 19, 2004). The May 1 through December 31 opening of the 
SAP allowed a vessel to fish in the area using gear that reduces the 
catch of cod and other stocks of concern. In FW 42 (71 FR 62156; 
October 23, 2006), we extended the approval of this SAP and shortened 
the season to August 1 through December 31 to further reduce cod catch. 
We subsequently approved additional gear types for use in this SAP 
through other actions.
    For FY 2012, sectors requested an exemption from the seasonal 
restrictions of the Eastern U.S./Canada Haddock SAP, to access the SAP 
area year-round. Because NMFS was unclear whether the Council intended 
to allow sector exemptions from the SAP seasonal restrictions, we 
disapproved these exemptions in FY 2012. We subsequently proposed the 
exemption in FY 2013, but expressed concern that an exemption from the 
seasonal restrictions of SAPs could have negative effects on allocated 
stocks by allowing an increase in effort in a time and place where 
those stocks, particularly haddock, aggregate to spawn. The Council 
subsequently discussed these exemptions in June 2012. In a letter dated 
June 22, 2012, the Council asked us to open the Eastern U.S./Canada 
Haddock SAP to trawl vessels using restrictive gear on May 1 of a given 
FY in order to provide additional fishing opportunities for the NE 
multispecies fishery to target a healthy stock--GB haddock.
    Sectors argued that, because their catch is restricted by ACE, 
their access to the SAP area, including the northern tip of CA II, 
should not be seasonally restricted. Sectors further argued that 
impacts to the physical environment and essential fish habitat (EFH) 
will be negligible, because any increase in effort will be minor and 
the portion of CA II included in this SAP is outside any habitat areas 
of particular concern (HAPC).
    The proposed rule stated that data initially provided by the NEFSC 
suggested that fishing activity in CA II may disrupt spawning stocks of 
GB winter flounder between March and May, and GB cod between February 
and April. Because of this, we raised a concern in the proposed rule 
that granting this exemption year round, as requested by the sectors, 
may negatively affect allocated stocks by allowing an increase in 
effort in a time and place where those stocks aggregate to spawn, and 
proposed to open the SAP from June 1 through December 31.
    The Council submitted comments regarding seasonal access to the 
Eastern U.S./Canada Haddock SAP, citing a recently-completed study 
conducted by Smolowitz et al. in 2012, which indicates that peak GB 
winter flounder spawning occurs in February and March in CA II, and 
that found low densities of winter flounder in the area in May. We 
concur that the updated Smolowitz et al. 2012 study shows that GB 
winter flounder spawning generally does not occur in May. Thus, it is 
appropriate to

[[Page 25600]]

provide access to this SAP beginning in May.
    We also received a comment that we should provide access to the SAP 
in January, given that we raised concern for GB cod from only February 
through April. The proposed rule incorrectly cited the season of 
concern for GB cod raised by the NEFSC as beginning in February when it 
actually is January through April for the Eastern U.S./Canada Haddock 
SAP (Berrien and Sibunka, 1999). Therefore, we do not believe it is 
appropriate to extend the season beyond the closure of the SAP on 
December 31. Based on this information presented by the Council and the 
general public, we approve an exemption to extend the SAP season to 
allow access to this area from May 1 through December 31.
    For FYs 2011 and 2012, we granted sectors an exemption from the 
selective trawl gear requirements of the Eastern U.S./Canada Area, 
allowing sector vessels to use a standard otter trawl in this SAP. For 
FY 2013, we proposed limiting a sector vessel to use the gear approved 
for sector vessels in the Eastern U.S/Canada Haddock SAP, which 
includes: Hook gear, gillnet gear, haddock separator trawl, Ruhle 
trawl, and flounder net. However, based on comments received noting the 
need for flexibility and the limitations on fishing mortality in sector 
ACEs, we are extending the exemption from gear requirements in the 
Eastern U.S./Canada area (exemption 18) to the SAP, and we are allowing 
vessels to access the Eastern U.S./Canada SAP with any gear approved 
for the Eastern U.S./Canada area because sectors are restricted by 
their ACEs. Given the low ACL proposed for GB yellowtail flounder and 
the likelihood that it will be a limiting stock, we expect that many 
sectors will continue to use selective gear to target GB haddock in 
this SAP.
20. Seasonal Restriction for the CA II Yellowtail Flounder/Haddock SAP
    We implemented the CA II Yellowtail Flounder SAP through Amendment 
13 in 2004 to provide an opportunity for vessels to target yellowtail 
flounder in CA II on a Category B DAS. This SAP requires a vessel to 
use either a flounder net or other gears approved for use in the 
Eastern U.S./Canada Area during the open season from June 1 through 
December 31. In 2005, we extended the approval of this SAP though FW 
40B, but shortened the season to July 1 through December 31 to reduce 
interference with spawning yellowtail flounder (70 FR 31323, June 1, 
2005).
    Through Amendment 16, we further revised this SAP in 2010 by 
opening the SAP to target haddock from August 1 through January 31, 
when the SAP is not open for targeting of GB yellowtail flounder. 
Sectors are currently required to comply with the SAP reporting 
requirements and the restricted season of August 1 through January 31 
(Sec.  648.85(b)(3)(iii)). When the season is open only to target 
haddock, a vessel may only use approved trawl gear or hook gear; the 
flounder net is not authorized. We implemented these gear requirements 
to limit vessels from catching yellowtail flounder when the SAP was 
open only for targeting haddock.
    Unlike the Eastern U.S./Canada Haddock SAP, the CA II Yellowtail 
Flounder/Haddock SAP provides access to a large area of CA II. Sectors 
are required to use the same approved gears as the common pool (i.e., 
haddock separator trawl, Ruhle trawl, or hook gear) to reduce the 
advantage sector vessels have over common pool vessels. We initially 
put the seasonal restriction in place to allow vessels to target denser 
populations of yellowtail flounder and haddock while avoiding cod in 
the summer, and spawning NE multispecies in the spring. Sectors argue 
that their catch is restricted by ACE, and their access to the SAP area 
in CA II should not be restricted. Sectors further argue that impacts 
to the physical environment will be negligible because any increase in 
effort will be minor, and the portion of CA II included in this SAP is 
outside any HAPC.
    The proposed rule for this action stated that data initially 
provided by the NEFSC suggested that fishing activity in CA II may 
disrupt spawning stocks of GB winter flounder between March and May, 
and GB cod between February and April. Because of this, we raised 
concern our in the proposed rule that granting this exemption year 
round, as requested by the sectors, may negatively affect allocated 
stocks by allowing an increase in effort in a time and place where 
those stocks aggregate to spawn, and proposed to open the SAP from June 
1 through December 31.
    The Council submitted comments regarding seasonal access to the CA 
II Yellowtail Founder/Haddock SAP, citing a recently completed study 
conducted by Smolowitz et al. in 2012, which indicates that peak GB 
winter flounder spawning occurs in February and March in CA II, and 
that found low densities of winter flounder in the area in May. We 
concur that the updated Smolowitz et al. 2012 study shows that GB 
winter flounder spawning generally does not occur in May. Thus, it is 
appropriate to provide access to this SAP beginning in May. Based on 
this new information presented by the Council and the general public, 
we approve an exemption to extend the SAP season to allow access to 
this area from May 1 through January 31.
    For FYs 2011 and 2012, we granted sectors an exemption from the 
selective trawl gear requirements of the Eastern U.S./Canada Area, 
allowing sector vessels to use a standard otter trawl in this SAP. For 
FY 2013, we proposed limiting a sector vessel to use the gear approved 
for sector vessels in the CA II Yellowtail Flounder/Haddock SAP, which 
includes hook gear, haddock separator trawl, and Ruhle trawl. However, 
based on public comments, we are extending the exemption from gear 
requirements in the Eastern U.S./Canada area (exemption 18) to the SAP, 
also allowing vessels to use a standard otter trawl in the CA II 
Yellowtail Flounder/Haddock SAP because sectors are restricted by their 
ACEs,. Given the low ACL proposed for GB yellowtail flounder and the 
likelihood that it will be a limiting stock, we expect that many 
sectors will continue to use selective gear to target GB haddock in 
this SAP.
21. DSM Requirements for Vessel Using Hand-Operated Jig Gear
    In the NE multispecies fishery, we define jigging as fishing with 
handgear, handline, or rod and reel gear using a jig, which is a 
weighted object attached to the bottom of the line used to sink the 
line and/or imitate a baitfish, and which is moved with an up and down 
motion (Sec.  648.2). Jigging gear is not exempted gear; therefore, a 
vessel using this gear is required to participate in the DSM program so 
that offload of all NE multispecies trips are adequately monitored.
    We received a request to exempt sector vessels using jig gear from 
DSM requirements, noting that vessels utilizing this gear type are able 
to target cod with little incidental catch of other allocated 
groundfish species. The sector argues that the cost of monitoring these 
trips is disproportionately high, due to the comparatively small amount 
of catch that this gear type yields.
    To gauge the potential impact of approving this exemption, we 
reviewed observer and ASM data from the 12 monitored trips in FYs 2010 
and 2011 that used jig gear. For these trips, discards accounted for 
approximately 6 percent of the roughly 16,000 lb (7,257 kg) of catch. 
We believe these discards to be a de minimis amount, and are therefore 
approving this exemption. Because FW 48 is considering the elimination 
of the DSM program, the approval of this exemption, as well as the 
previously approved DSM

[[Page 25601]]

exemptions, may be superseded by final decisions on FW 48 measures. 
Should the FW 48 measure to eliminate the DSM program be approved, 
exemptions from all DSM requirements become unnecessary.

New Exemptions Approved for FY 2013 (22-23)

    Two new exemption requests from the following requirements are 
approved for FY: (22) The prohibition on fishing in the SNE/MA winter 
flounder stock area with winter flounder onboard; and (23) sampling 
exemption. A detailed description of each exemption is included below:
22. Prohibition on Fishing in the SNE/MA Winter Flounder Stock Area 
With Winter Flounder on Board
    Amendment 16 prohibited all NE multispecies vessels from fishing 
for, possessing, or landing SNE/MA winter flounder (Sec.  648.6(l)) to 
help rebuild the stock beginning in FY 2010. Currently, a vessel with 
GOM or GB winter flounder on board can transit through the SNE/MA 
winter flounder stock area, but cannot fish in the SNE/MA winter 
flounder stock area, and its gear must be stowed in accordance with the 
provisions of Sec.  648.23(b). This restriction is in place to ensure 
that the winter flounder on board the vessel did not come from the SNE/
MA winter flounder stock area.
    Sectors requested an exemption from the prohibition on fishing in 
the SNE/MA winter flounder stock area when GOM or GB winter flounder is 
onboard the vessel, provided a NEFOP observer or at-sea monitor is 
assigned to the trip. Sectors asserted that the data collection 
protocols used by observers and at-sea monitors, including 
documentation of catch (both landings and discards), as well as stock 
area, would provide the data necessary to differentiate and correctly 
apportion the winter flounder catch onboard to the appropriate stock 
area. Sectors believe that, if approved, this exemption would increase 
flexibility and efficiency of fishing vessels, allowing vessels to move 
freely between stock areas when an observer or at-sea monitor is 
onboard, increase gross revenue per trip, and decrease operating costs. 
We agree, and, we are approving this exemption for FY 2013. Please note 
that FW 50 has proposed a measure to allocate this stock to sectors 
beginning in FY 2013. Thus, this exemption will no longer be necessary 
if this provision is approved in FW 50.
    For 2013, we have received requests to use several new exemptions 
when only an observer or at-sea monitor is onboard, and are approving 
several of these requests, provided an industry-funded monitor is 
deployed on 100 percent of trips using the exemptions, including the 
exemption from the prohibition on fishing in the SNE/MA winter flounder 
stock area with winter flounder onboard. Additional information on the 
requirements for 100-percent industry-funded monitoring programs for 
exemptions is provided below under Additional Industry-Funded ASM.
    This approved exemption includes a requirement for a vessel to 
declare whether or not it intends to use the exemption through the trip 
start hail. A vessel intending to take a trip in the SNE/MA winter 
flounder stock area with winter flounder onboard is required to enter 
``F4'' in the free text field of the trip start hail to identify the 
trip for monitoring purposes.
23. Sampling Exemption
    Conducting scientific research on regulated fishing trips may 
require special permits, depending on the activities proposed. A 
temporary research permit authorizes a federally permitted fishing 
vessel that is accompanied by a research technician, typically staff 
for the principal investigator, to temporarily retain fish that are not 
compliant with applicable fishing regulations to collect catch data 
such as length and weight. Under a temporary possession permit, a 
vessel may be exempt from specific regulations, including minimum fish 
sizes, closures, and possession limits. Sampled fish are returned to 
the sea as soon as practicable after sampling.
    Some sectors proposed independent sampling programs, where data 
would be collected from fish that otherwise must be immediately 
discarded, as described above. Sectors already provided the information 
required in an application as part of the sector's operations plan. 
Through this rule, we are approving sectors for temporary possession 
permits for research purposes. This provision would be included in a 
sector vessel's LOA, which will aid enforcement officials in 
determining approved activities, with the same restrictions as when a 
temporary permit is obtained through the application process.

Disapproved FY 2013 Exemption Requests

Previously Approved Exemption Disapproved for FY 2013

    Sectors again requested the GOM sink gillnet mesh exemption in May, 
and January through April. This exemption was previously approved to 
provide seasonal access to target GOM haddock. Given the small ACL 
proposed for GOM haddock in FW 50, we are disapproving this exemption. 
A detailed description of this exemption is included below:
24. GOM Sink Gillnet Mesh Exemption in May, and January Through April
    The minimum mesh size requirements of 6.5 inches (16.5 cm) in the 
GOM RMA was implemented to reduce overall mortality on groundfish 
stocks, to reduce discarding, and improve survival of sub-legal 
groundfish. We previously approved two separate seasonal exemptions 
from the minimum mesh size requirement in the GOM for FYs 2010-2012 to 
allow a sector vessel to use 6-inch (15.2-cm) mesh stand-up gillnets in 
the GOM RMA. The initial exemption, approved in FY 2010, allowed the 
use of the exemption in January-April. The second exemption, approved 
in FY 2011, added the month of May. In the proposed rule for FY 2013, 
we combined these requests into a single exemption. This exemption 
provides the opportunity to catch more GOM haddock, a stock previously 
considered rebuilt, during the months that haddock are most prevalent.
    We raised two concerns regarding the status of GOM haddock and 
potential impacts to protected species in the proposed rule, and 
received numerous comments. Most industry members, one sector, sector 
support groups, and the Maine Department of Marine Resources (ME DMR) 
commented in favor of granting the exemption. One sector and the MA DMF 
recommended disapproval, agreeing with our concerns highlighted in the 
proposed rule.
    As discussed in the proposed rule, we officially notified the 
Council on May 30, 2012, that the GOM haddock stock is subject to 
overfishing and is approaching an overfished condition, based on 
results from an operational stock assessment. As the GOM haddock ACL 
and corresponding sector ACEs are reduced, GOM haddock will likely 
become a limiting stock, and an exemption that encourages targeting of 
such a limiting stock is not justifiable. Therefore, we disapprove this 
exemption for FY 2013.

New Exemption Request That Is Disapproved for FY 2013

    Sectors submitted an exemption request from the prohibition on 
combining small-mesh exempted fishery and sector trips for FY 2013. Due 
to monitoring and enforcement concerns, we are disapproving this 
exemption. A detailed description of this exemption is included below:

[[Page 25602]]

25. Prohibition on Combining Small-Mesh Exempted Fishery and Sector 
Trips
    We reduced minimum mesh size restrictions for the GOM, GB, and SNE 
regulated mesh areas (RMAs) (Sec.  648.80(a)(3)(i), (a)(4)(i), 
(b)(2)(i)) under Amendment 13 (69 FR 22906, 4/27/04) and FW 42, to 
reduce overall mortality on groundfish stocks, change the selection 
pattern of the fishery to target larger fish, improve survival of 
sublegal fish, and allow sublegal fish more opportunity to spawn before 
entering the fishery. FW 42 set requirements for trawl codends in the 
SNE RMA to be made of either square or diamond mesh no smaller than 6.5 
inches (16.5 cm), in an effort to reduce discards of yellowtail 
flounder and increase the rate of yellowtail flounder rebuilding.
    Approved large and small-mesh exempted fisheries, as described in 
the regulations, allow a vessel to fish for particular non-regulated NE 
multispecies, such as whiting or northern shrimp, in designated areas 
using mesh sizes smaller than the NE multispecies minimum mesh size 
allowed in each RMA. To approve an exempted fishery, after consultation 
with the Council, we must determine the level of bycatch of regulated 
NE multispecies (i.e., the regulatory standard requires that bycatch of 
regulated species must be less than 5 percent, by weight, of total 
catch), and that the exempted fishery will not jeopardize fishery 
mortality objectives, solicit comment, and publish implementing 
rulemaking. Exempted fishery regulations allow vessels to fish with 
small mesh, but prohibit the retention of regulated NE multispecies.
    Sectors requested an exemption that would allow their vessels to 
possess and use both small mesh in an exempted fishery, and large mesh 
as they normally would on a standard sector trip, on the same fishing 
trip for the following small-mesh exemption areas: The Cultivator Shoal 
Whiting Fishery Exemption Area, the SNE Exemption Area, and the MA 
Exemption Area. The goal was to allow a vessel to engage in exempted 
fisheries while on a sector trip and to increase efficiency of time at 
sea and gross revenue per trip while decreasing vessel-operating costs. 
Sectors stated that they would only utilize this exemption when either 
a NEFOP observer or an at-sea monitor is aboard the vessel. The sectors 
proposed to count any allocated NE multispecies caught on these 
combined trips against the sector's allocation. We received numerous 
comments in support of this exemption from industry, sectors, and ME 
DMR.
    We raised several concerns with this exemption in the proposed 
rule, including concerns about potential monitoring requirements, 
discussed previously under Exemption 22. We expressed concern that, 
through this exemption, a vessel could circumvent the regulations and 
target allocated NE multispecies with small mesh, and therefore 
increase catch of juvenile fish, negatively affecting fish stocks. 
Currently, large and small-mesh exempted fishery trips are only subject 
to the 8-percent NEFOP monitoring requirements, and do not receive ASM 
coverage. Because exempted fishery trips are only subject to the 8-
percent NEFOP monitoring requirements, only a subset of NEFOP observers 
receive training for these small mesh fisheries, which is further 
discussed in the response to Comment 45. Therefore, the vast majority 
of NEFOP observers and at-sea monitors do not receive the training 
necessary to accurately observe the small-mesh portion of these trips 
as proposed, and we are concerned about accurately monitoring both 
portions of these proposed trips. In addition, we have some concern 
that observers and at-sea monitors could be viewed as taking on an 
enforcement role when monitoring these trips as proposed. The U.S. 
Coast Guard expressed concern that approval of this exemption would 
render minimum fish and mesh sizes unenforceable. Several environmental 
groups and one sector echoed our concern for potential impacts to 
juvenile fish. Given these concerns, we are disapproving an exemption 
from the prohibition on combining small-mesh exempted fishery and 
sector trips for FY 2013.

Exemptions That Are Disapproved for FY 2013 Due to Separate Rulemaking 
(26-30)

    Amendment 16 prohibited sectors from requesting access to year-
round closed areas. To increase operational flexibility for vessels 
participating in sectors as mitigation for reduced ACLs, FW 48 proposes 
allowing a sector to request access to year-round mortality closure 
areas through its sector operations plan. Sectors would not be allowed 
to request access to areas that are closed to protect EFH.
    In their FY 2013 operations plans, sectors have requested 
exemptions for access to the following five year round CAs: (26) Year-
round access to the Cashes Ledge Closure Area; (27) year-round access 
to CA I; (28) year-round access to CA II; (29) year-round access to the 
Western GOM Closure Area; and (30) year-round access to the Nantucket 
Lightship Closed Area. Consideration of these requests is contingent 
upon approval of the FW 48 measure allowing sectors to request access 
to year-round closed areas. Also, because additional analysis is 
needed, and this analysis would likely delay the approval of sector 
operations plans and allocations beyond May 1, 2013, we are 
disapproving all exemption requests for access to year-round mortality 
CAs through this rule. We intend to consider these exemption requests 
for access to year-round mortality closed areas in a separate action, 
and anticipate implementation of that action early in FY 2013.

Requested Exemptions Are Disapproved Because They Are Prohibited

    We are disapproving, and did not analyze in the EA, the following 
five exemption requests, because they are prohibited or not authorized 
by the NE multispecies regulations: (31) ASM requirements; (32) ASM 
requirements for vessels using jig gear; (33) ASM requirements for 
handgear vessels; (34) year-round access to the Eastern U.S./Canada 
Area for trawl vessels; and (35) the prohibition on a vessel hauling 
another vessel's trap gear.
    Sectors may not be exempted from permitting restrictions, gear 
restrictions designed to minimize habitat impacts, and reporting 
requirements (excluding DAS reporting requirements and DSM 
requirements). In a letter dated September 1, 2010, we notified the 
Council that we interpret the reporting requirement exemption 
prohibition broadly to apply to all monitoring requirements, including 
ASM, DSM, ACE monitoring, and the counting of discards against sector 
ACE. In this letter (copies are available from NMFS, see ADDRESSES), we 
also requested that the Council define which reporting requirements 
sectors may not be exempted from. On November 18, 2010, the Council 
addressed this letter by voting to include in FW 45 the removal of DSM 
from the list of regulations that sectors may not be exempted from, but 
did not take such action for ASM. Therefore, we did not consider 
requests for exemptions from ASM.
    We are disapproving two additional FY 2013 exemption requests 
(year-round access to the Eastern U.S./Canada Area for trawl vessels 
and the prohibition on a vessel hauling another vessel's trap gear) 
because they fall outside the authorization for exemptions provided in 
the NE multispecies regulations. The Regional Administrator may impose 
restrictions or in-season adjustments on a vessel

[[Page 25603]]

fishing in the Eastern U.S./Canada Area, consistent with the 
Administrative Procedure Act (APA), including: Gear restrictions; 
modification of access to the area or the number of trips in the area; 
or closure of the area to prevent over-harvesting or to facilitate 
achieving a quota. Since this discretion is left to the Regional 
Administrator, this request will be considered when determining access 
to the Eastern U.S./Canada Area, but cannot be considered under the 
exemption process. Also, a request for an exemption from tagging 
requirements for trap gear is disapproved because the tagging 
requirement regulations are not included in the NE multispecies 
regulations. Vessels holding an American lobster permit are bound by 
the American lobster tagging requirements.

Requested Exemptions We Propose To Deny Because They Were Previously 
Rejected and No New Information Was Provided

    We are disapproving the following four exemption requests because 
they were previously rejected, and the requesting sectors provided no 
new information that would change our previous decision: (36) Minimum 
hook size for demersal longline; (37) access to the April GOM Rolling 
Closure (Blocks 124 and 132); (38) access to the May GOM Rolling 
Closure (Block 138); and (39) all DSM requirements. We did not analyze 
these exemptions in the FY 2013 sector EA because no new information 
was available to change the analyses previously published in past EAs. 
Detailed information on these exemption requests and the reasons they 
were previously denied is contained in the proposed and final sector 
rule for FY 2012 (77 FR 8780, February 15, 2012; and 77 FR 26129, May 
2, 2012, respectively), and its accompanying EA (as well as previous 
years' rules and EAs).

Additional Sector Provisions

    A sector may also include additional provisions in its operations 
plan, including additional requirements for or restrictions of fishing 
practices. A detailed description of these provisions is included 
below:

Provisions To Fish Without ACE

    Under regulations at Sec.  648.87(b)(2)(xiv), a sector may propose 
a program that would allow fishing on a sector trip in fisheries that 
are known to have a bycatch of NE multispecies when it does not have 
ACE for certain NE multispecies stocks, if the sector can show that the 
limiting NE multispecies stock(s) will be avoided. The regulations 
currently restrict this provision to participation in other fisheries 
(e.g., dogfish, monkfish, and skate) that have a bycatch of groundfish 
that would count against the sector's ACE. We had intended to make a 
correction to this regulation to make it consistent with Section 
4.2.3.4 (Mortality/Conservation Controls) of Amendment 16, which would 
allow a sector to request authorization to target allocated NE 
multispecies under this provision in FY 2013. That section of Amendment 
16 specified that a sector operations plan should detail ``. . . a plan 
for operations or stopping once the ACEs of one or more species are 
taken.'' That paragraph concluded by stating, ``The plan must provide 
assurance that the sector would not exceed the ACEs allocated to it 
(either through landings or discards).'' Knowing that we intended to 
make this correction, sectors submitted requests to target allocated NE 
multispecies stocks. However, based on a review of Amendment 16, we 
believe that additional impacts analysis may be necessary, and intend 
to make this correction in a future action for FY 2014.
    Prior to developing requests to fish with no ACE for a particular 
stock, we provided sectors with guidance that they must provide 
specific operational requirements (location, time, and gear), the 
species or stocks they intend to target, and demonstrate zero catch of 
any stock for which they do not have ACE (``limiting stock'') using 
their observer and ASM data from FY 2011. We received multiple requests 
from the GB Cod Fixed Gear Sector and NEFS 5 to fish under this 
provision.
    We reviewed both vessel trip report (VTR) and observer/ASM data 
from FYs 2010 and 2011 for all requests to fish without ACE. These data 
indicated that very few sector trips from FYs 2010 and 2011 met the 
Amendment 16 standard of zero catch of the limiting stock outlined in 
the guidance we issued to sectors. However, the data for several of the 
requests indicate that catch of the limiting stock was less than 1 
percent of the total catch. We proposed the provision that sectors 
could fish without ACE when targeting other species of which they have 
caught less than1 percent, provided the sector adheres to certain 
criteria. Unlike approved exemptions, which may be granted to any 
interested sector, these provisions to fish without ACE are sector-
specific, and therefore are only approved for the sectors as shown in 
Table 4.

                           Table 4--Requests To Fish Without ACE Proposed for Approval
----------------------------------------------------------------------------------------------------------------
                                                   Stat
            Sector              Limiting stock     area         Gear          Target stock        Time period
----------------------------------------------------------------------------------------------------------------
GB Cod Fixed Gear Sector.....  All ACE Stocks..      526  Extra Large Mesh  Monkfish,         Year Round.
                                                           Gillnet.          Dogfish, Winter
                                                                             Skate.
                                                     537  Extra Large Mesh  Monkfish........  May-March.
                                                           Gillnet.         Winter Skate....  Year Round.
                                                 .......  Large Mesh        Winter Skate....  Year Round.
                                                           Gillnet.
NEFS 5.......................  GB West Cod.....      611  Standard Otter    Summer Flounder.  Oct-April
                                                           Trawl.
                                                     613                    Summer Flounder,
                                                                             Monkfish.
----------------------------------------------------------------------------------------------------------------

    For this provision, NEFS 5 proposed to require its participating 
vessels to submit trip start and trip end hails to the sector manager. 
If an NEFS 5 vessel encounters a limiting stock, the sector proposes 
requiring the vessel to land any amount of that limiting stock of legal 
sized fish, and prevent that vessel from taking a subsequent fishing 
trip until that specific ACE is accounted for through a transfer. Under 
this proposal, the NEFS 5 may charge the member additional fees for 
encountering the limiting stock. These sector requirements are approved 
for NEFS 5, as described, provided the sector meets additional 
requirements detailed below.
    To aid in identifying these trips, a vessel in NEFS 5 and the Fixed 
Gear Sector that intends to use this provision on a sector trip is 
required to submit through its VMS a trip start hail with ``A2'' 
entered in the free text field to

[[Page 25604]]

identify the trip as one that will fish in an approved program to fish 
with no ACE for a given stock. This hail report will help us, as well 
as the sector manager, to identify a trip fishing under these 
provisions for monitoring purposes. Either sector may also require its 
participating vessels to submit a trip end hail, as detailed in the 
operations plan.
    We proposed and are approving these provisions with the flexibility 
for the sectors to catch a de minimis amount of the limiting stock (up 
to 100 lb (45.4 kg)). The sector will be required to account for any 
amount of the limiting stock that is caught, and therefore would need 
to transfer-in additional ACE by the end of the FY to cover such an 
overage. Once a sector reaches the de minimis threshold of 100 lb (45.4 
kg), the sector may transfer-in additional ACE and resume normal 
fishing activity, but may not attempt to fish under this provision for 
the remainder of the FY.
    We are concerned about approving a provision to allow a sector to 
fish without ACE. We believe that 100-percent ASM coverage is necessary 
for accurate monitoring, given the very low 2013 quotas for some of the 
stocks. In addition, all sector trips that currently are not assigned 
an observer or monitor receive a calculated discard rate based on the 
total catch from that trip and actual discards from monitored trips in 
the same area with the same gear based on trips that were monitored. We 
cannot apply a calculated discard rate for the limiting stock or the 
sector could automatically exceed its ACE for the limiting stock on 
every trip. Requiring 100-percent monitoring ensures that the trip will 
have complete and accurate discard information. Therefore, we are 
approving this provision, provided an industry-funded monitor is 
deployed on 100 percent of these trips. Additional information on the 
requirements for 100-percent industry-funded monitoring programs for 
this provision is provided below under Additional Industry-Funded ASM.

Inshore GOM Restrictions

    Several sectors (with the exception of the Northeast Coastal 
Communities Sector, NEFS 4, Port Clyde Community Groundfish Sector, and 
the Tri-State Sector) proposed a provision to limit and more accurately 
document a vessel's behavior when fishing in a part of the GOM Broad 
Stock Area (BSA) in what they consider to be the inshore portion of the 
GOM BSA, or the area to the west of 70[deg]15' W. long. We approve this 
provision, but note that a sector may elect to remove this provision in 
the final version of its operations plan. A trip that is carrying an 
observer or at-sea monitor remains free to fish in all areas, including 
the inshore GOM without restriction. As approved under the Inshore GOM 
Restriction provision, if a vessel is not carrying an observer or at-
sea monitor and fishes any part of its trip in the GOM west of 
70[deg]15' W. long., the vessel would be prohibited from fishing 
outside of the GOM BSA. Also, if a vessel is not carrying an observer 
or at-sea monitor and fishes any part of its trip outside the GOM BSA, 
this provision prohibits the vessel from fishing west of 70[deg]15' W. 
long. in the GOM BSA. The approved provision includes a requirement for 
a vessel to declare whether or not it intends to fish in the inshore 
GOM area through the trip start hail. A vessel intending to utilize 
this provision on a sector trip is required to enter ``M3'' in the free 
text field of the trip start hail through VMS to identify the trip. 
This hail report will help the sector manager identify a trip fishing 
under this provision for monitoring purposes. We are providing sector 
managers with the ability to monitor this provision through the Sector 
Information Management Module (SIMM), a Web site where we currently 
provide roster, trip, discard, and observer information to sector 
managers. A sector vessel may use a federally funded NEFOP observer or 
at-sea monitor on these trips because we do not believe it will create 
bias in coverage or discard estimates, as fishing behavior is not 
expected to change as a result of this provision.

Additional Industry-Funded ASM

    We are approving several exemptions that will require 100-percent 
ASM coverage funded by the industry. However, we are currently looking 
into possible ways to provide funding for these trips. Should funding 
be secured, we will alert the public of this and explain how money 
would be dispersed.
    For any trip for which sectors are required to pay for a monitor, 
sectors will only be required to pay for the at-sea portion of the 
costs. Sectors will not be responsible to pay for data processing, 
monitoring gear, or training. Sectors may contract directly with any of 
the four monitoring providers approved to provide ASM services (A.I.S., 
Inc.; Atlantic Catch Data, Ltd.; East West Technical Services, LLC; and 
MRAG Americas) for any of the required exemptions or provisions.
    Any sector interested in using an exemption requiring industry-
funded ASM will be required to develop and submit a monitoring plan as 
part of its operation plan for approval by NMFS. Industry-funded ASM 
proposals should detail call-in procedures to the provider (timing, 
method, and information needed), selection protocols used to ensure 
that ASM coverage on standard sector trips will not be impacted, 
mandatory coverage requirements, refusal procedures, safety 
requirements, and trip start hail requirements. Many of these 
procedures will remain consistent with the guidance developed for an 
industry-funded monitoring program summarized in: http://www.nero.noaa.gov/sfd/sectordocs/SectorOpsEAGuideFY2013.pdf. If we 
determine the plan is sufficient, we will approve it along with the 
rest of the sector's operations plan. For FY 2013, any approved 
monitoring program will be included as an amendment to the sector's 
operations plan.
    The proposed rule highlighted several concerns regarding impacts of 
100-percent industry-funded monitoring to the reliability of and 
potential bias of discard estimates, our ability to achieve adequate 
NEFOP and ASM coverage levels, monitor availability, and our ability to 
cover the administrative costs associated with NMFS-funded monitors on 
trips using these exemptions. Given these concerns, we will monitor the 
impacts of these exemptions, compliance with catch thresholds and other 
exemption requirements, as well as the associated industry-funded 
monitoring on stocks and required monitoring programs. Approved 
exemptions include a requirement for a vessel to declare whether or not 
it intends to use certain exemptions through the trip start hail. This 
hail report will help us, and the sector manager, identify a trip 
fishing under these exemptions for monitoring purposes. If necessary to 
mitigate negative impacts, we will revoke these exemptions during the 
FY after notifying sectors and the public, consistent with APA 
requirements.

Withdrawing a Sector Exemption In-Season

    Previously, we have retained the right to revoke several exemptions 
in-season if a sector is not meeting certain requirements. To date, we 
have not used this authority, but include a procedure to revoke an 
exemption, if necessary, in this rulemaking. A sector exemption may be 
revoked, however, if we determine that it jeopardizes management 
measures, objectives, or rebuilding efforts; results in unforeseen 
negative impacts on other managed fish stocks, habitat, or protected 
resources; causes enforcement concerns; or if catch from trips 
utilizing the exemption cannot properly be monitored. At that time, 
consistent with APA

[[Page 25605]]

requirements, we will weigh the need to revoke the exemption as quickly 
as possible to prevent conservation or management objectives from being 
undermined, with the necessity or practicability of, or public interest 
in, a delay to receive comments.

Comments and Responses

    Thirty-seven letters, each containing several comments, were 
submitted by several entities: Associated Fisheries of Maine, the 
Conservation Law Foundation (CLF), Oceana, Earthjustice, the Maine 
Division of Marine Resources (ME DMR), the Maine Coast Community Sector 
(MCCS), the Maine Coast Fishermen's Association (MCFA), the 
Massachusetts Division of Marine Fisheries (MA DMF), the New England 
Fishery Management Council (Council), Northeast Fishery Sector 5, the 
Northeast Seafood Coalition (NSC), the Northeast Sector Service Network 
(NESSN), the Pew Charitable Trusts (Pew), the Portland Fish Exchange, 
the Seacoast Science Center, the U.S. Coast Guard, the Union of 
Concerned Scientists and numerous individuals. Only comments that were 
applicable to the proposed measures, including the analyses used to 
support these measures, are responded to below.

General Sector Issues

    Comment 1: The Portland Fish Exchange raised concern about the 
sectors, noting that they were promoted to increase stock abundance and 
ex-vessel prices, and that sectors have not been successful in 
accomplishing either.
    Response: Since sectors were introduced to the NE multispecies FMP 
in Amendment 13, numerous stocks previously experiencing overfishing or 
that were overfished are no longer experiencing overfishing, nor are 
they overfished, including: SNE/MA yellowtail flounder, GB winter 
flounder, SNE winter flounder, white hake, and pollock. GOM winter 
flounder is no longer subject to overfishing. In addition, the biomass 
of CC/GOM Yellowtail Flounder, SNE/MA yellowtail flounder, GB winter 
flounder, SNE winter flounder, redfish, white hake, and Pollock have 
increased, though some to a minimal extent. At the conclusion of FYs 
2010 and 2011, we evaluated the performance of both sectors and the 
common pool. The 2011 Final Report on the Performance of the Northeast 
Multispecies (Groundfish) Fishery (May 2011-April 2012) (http://www.nefsc.noaa.gov/publications/crd/crd1230/crd1230.pdf) indicates that 
while landings have decreased from 69,774,688 lb (31,649,266 kg) to 
61,721,659 lbs (27,996,474 kg), the average price per pound of NE 
multispecies increased from $1.21/lb in 2009 to $1.46/lb in 2011.
    Comment 2: The MCCS commented that the proposed rule incorrectly 
named the sector as the ``Maine Coast Community Groundfish Sector'' 
instead of the Maine Coast Community Sector.
    Response: Based on the comment received, we have corrected the name 
in this final rule.
    Comment 3: MA DMF commented that we have approved sectors to 
operate as a de facto IFQ by allowing all sectors to assign each member 
the ACE that it brings to a sector. MA DMF also commented that it is 
unrealistic to expect sector vessels to consolidate operations onto 
fewer vessels.
    Response: Amendment 16, developed by the Council and approved by 
NMFS, allows each sector to determine which vessels will actively fish 
and how best to harvest its allocation, including decisions regarding 
consolidation. Amendment 16 did not place restrictions on a sector's 
decision of how to allocate ACE to its members. Thus, each sector is 
free to determine how ACE will be assigned to its member vessels. For 
FY 2013, all sectors have elected to assign each member the ACE that it 
brings to a sector. The sector's allocation of ACE is not considered an 
IFQ since it is not a permanent allocation. A sector's ACE is a 
temporary, 1 yr amount of fish allocated to that sector based on the 
collective fishing history of the sector's members.

ASM Coverage Level for FY 2013

    Comment 4: The Portland Fish Exchange contends that observer 
coverage should be provided by NMFS.
    Response: Amendment 16, enacted in 2010, required that sectors 
develop an adequate industry-funded ASM program, beginning in FY 2012. 
Implementation of this requirement was intended to be phased in so that 
sectors would have time to develop monitoring systems, locate qualified 
vendors, and have their programs approved by NMFS (Amendment 16). 
During FYs 2010 and 2011, we implemented a federally-funded ASM program 
to collect the data required that would be sufficient to reliably 
estimate discards for ACEs and ACLs. In FY 2012, we again committed to 
paying for ASM in FY 2012 to help mitigate overall costs and negative 
impacts to the industry due to lower catch limits and informed the 
industry that it may not be possible for NMFS to continue funding the 
ASM program. Given the very low catch limits for FY 2013, in March 
2012, we announced that we would pay for the required 14-percent level 
of ASM in FY 2013. NMFS has provided funding since the implementation 
of Amendment 16. However, we cannot guarantee that we will continue 
funding in future years, nor are we required to do so.
    Comment 5: CLF, PEW, MA DMF, MCFA, and Oceana all submitted 
comments asserting that the proposed level of ASM for FY 2013 is too 
low for the reasons that follow. PEW and CLF commented that higher 
levels of observer coverage are essential to the future of this fishery 
and, that, although the proposed coverage may be sufficient to estimate 
discard rates on the observed trips, this level would not be adequate 
for quota management and assessment science. MA DMF broadly commented 
that catch share programs cannot be justified with such low coverage. 
MCFA highlighted that the proposed coverage rate may be sufficient for 
monitoring discards, but that higher coverage rates ensure all 
fishermen are held to the same standards of compliance with 
regulations. Oceana commented that the 30-percent CV is an 
inappropriate standard for ASM monitoring and that the proposed ASM 
coverage rate was insufficient to support ACE-level accountability 
measures (AM). Oceana also asserted that ACE-based AMs (sectors must 
cease fishing when an ACE is fully harvested) are the only AMs for 
allocated stocks, therefore requiring higher levels of ASM coverage. 
Oceana expressed concern that the 30 percent CV, when applied to catch, 
resulted in a range of estimates that could allow a sector to continue 
to fish after its ACE was exhausted.
    Response: We have determined that 22 percent at-sea monitoring/
observer coverage of sector trips is sufficient, to the extent 
practicable in light of Magnuson-Stevens Act requirements; to reliably 
estimate catch for purposes of monitoring sector ACEs and ACLs for 
groundfish stocks. This determination is based not only on the 
statistical sufficiency of the level of coverage as summarized in more 
detail at: http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/FY2013_Multispecies_Sector_ASM_Requirements_Summary.pdf, but also on the 
totality of how data and information is collected and analyzed 
including obligations on sectors to self-monitor and self-report which 
is linked to agency monitoring. For the most part, these commenters 
have generally asserted that this system and level of monitoring is not 
adequate without providing any specific justification or information to 
support their assertion.
    Amendment 16 specified that ASM coverage levels should be less than 
100 percent, which requires that the discard

[[Page 25606]]

portion of catch, and thus total catch, be an estimate. The level of 
observer coverage, ultimately, should provide confidence that the 
overall catch estimate is accurate enough to ensure that sector fishing 
activities are consistent with National Standard 1 requirements to 
prevent overfishing while achieving on a continuing basis optimum yield 
from each fishery. To that end, significant additional uncertainty 
buffers are established in the setting of ACLs that help make up for 
any lack of absolute precision and accuracy in estimating overall catch 
by sector vessels.
    We rely on a number of data sources to monitor groundfish catch: 
Sector vessels are required to have an operational Vessel Monitoring 
System (VMS) and must use VMS to notify us when they are taking a 
groundfish trip; vessels must also submit vessel logbook reports (VTR), 
which are used to determine catch (landings and discards), gear and 
fishing area; depending upon their fishing activity, some vessels are 
also required to submit daily VMS catch reports to further refine catch 
by fishing area; dealers are required to report all purchases from 
groundfish vessels, which are used to determine landings; and sectors 
are required to submit sub-trip level catch and gear information 
weekly, or daily when certain catch thresholds (for FY 2013 the daily 
reporting threshold is 90 percent of any ACE) are reached. The detailed 
discard information provided by at-sea observers is critical for 
determining total catch (pounds, gear used, stock area). We conduct 
weekly reconciliation with sector-reported data, verifying that each 
sector and the agency have the same set of data to monitor catch and 
sector ACEs.
    The Sector Manager Report submitted to us comprises three separate 
reports. The Sector Manager Detail Report provides information about 
each fishing trip down to the stock area. The Sector Manager Trip Issue 
Report provides information about any enforcement or reporting 
compliance issues that arose during the fishing week. The ACE Status 
Report provides the means for sector managers to report their ACE 
status calculations. This allows us to cross-check totals, as 
stipulated in Amendment 16. The Daily ACE Status Report provides the 
means for sector managers to report their ACE status calculations on a 
daily basis if a threshold has been reached in the current fishing 
year. Sector reports and reconciliation have led to the highest level 
of VTR compliance ever recorded in the Northeast multispecies fishery. 
It is in the best interest of each sector to accurately report the 
required information not only to foster effective ACE monitoring, but 
because sector members may be held jointly and severally liable for 
violations. Sectors have demonstrated their willingness to self-report 
enforcement or reporting compliance issues (10 incidents reported in FY 
2010, 18 in FY 2011) and have established mechanisms for investigating, 
adjudicating, and punishing member violations in addition to 
enforcement actions that may be taken by us.
    Oceana specifically expressed concern that the 30 percent CV, when 
applied to catch, resulted in a range of estimates that could allow a 
sector to continue to fish after its ACE was exhausted. However, the 30 
percent CV standard is not applied to catch, it is applied to discard 
estimates. Catch is the sum of landings and discards, and landings are 
derived from dealer purchase reports. The CV analysis is conducted to 
evaluate the calculation of discards, which are typically less than 10 
percent of the overall catch of the allocated groundfish stocks, and in 
FY 2011 were less than 5 percent of the catch for most allocated stocks 
(while discards were a higher percentage of total catch for GOM 
yellowtail flounder, GB East cod, and American plaice, the total catch 
of those stocks were less than 90 percent of the sub-ACLs and the CVs 
for those stocks ranged from 4.4 to 15.4). The discard calculations 
include actual discard poundage reported by at-sea observers, and 
discards estimated by applying the stratum discard rate to the pounds 
kept on an unobserved trip. NOAA Fisheries has further examined the 256 
sector ACE level catch figures (16 fishing sectors *16 ACE allocations) 
in comparison to the CV30 standard for FY 2011. This examination 
reveals that for 207 of the 256 ACE allocations, the percent of discard 
pounds for which the CV was greater than 30 percent was less than 1 
percent. For 43 of the remaining ACE allocations, the percent of 
discard pounds for which the CV was greater than 30 percent ranged from 
1-9.9 percent. There were 6 ACE allocations for which the percent of 
discard pounds with a CV greater than 30 percent ranged from 10-66 
percent. Based on this analysis, we conclude that we the monitoring 
program for sector ACE allocations is reliable.
    Our Fisheries Sampling Branch (FSB) at the NEFSC collects, 
maintains, and distributes data from fishing trips that carry at-sea 
observers. FSB manages two separate but related programs: The NEFOP and 
the ASM program. Although each program is tailored to meet specific 
monitoring objectives, the programs function similarly. Priorities for 
the NEFOP observer program are determined by national priorities (e.g., 
endangered or protected species), fishery management priorities, and 
scientific priorities related to stock assessments. NEFOP observers 
collect the same fishing vessel catch information, but with an 
additional focus on biological sampling of catch, including any 
incidental take of a marine mammal, seabird, or sea turtle. The NEFOP 
program's resources are finite, and the allocation of NEFOP coverage to 
fishing trips is guided by program priorities that include those 
determined by using a SBRM that identifies relative fleet contribution 
to discards. The ASM program was implemented in FY 2010 to support the 
NE multispecies sector management program, and collects data to verify 
fishing vessel catch (landings and discards), by species, gear type and 
area, for the purpose of monitoring sector catch.
    In developing Amendment 16, the Council anticipated that NEFOP 
might not have sufficient resources to fund sector catch monitoring, so 
Amendment 16 specified that starting in FY 2012 sectors would be 
required to develop an industry-funded ASM program to monitor sector 
catch. The NEFOP program provides at-sea observers, and the coverage 
provided to sectors by that program partially satisfies the sector-
specific ASM provision. Collectively, the at-sea coverage provided by 
the ASM and NEFOP programs is providing more data for quota management 
and assessment science than was available to NMFS prior to 
implementation of Amendment 16.
    The agency has determined the level of monitoring coverage that is 
necessary to accurately monitor sector operations in the context of the 
national standards and other requirements of the MSA. We have 
determined that the appropriate level of observer coverage should be 
set at the level that meets the 30-percent CV requirement (at a 
minimum) at the overall stock level for all sectors and gears combined, 
to reliably estimate catch for purposes of monitoring ACEs and ACLs. 
This level of coverage minimizes the cost burden, while still providing 
a reliable estimate of overall catch by sectors to monitor annual catch 
levels.
    This interpretation is justified in light of the requirement for 
conservation and management measures to be consistent with all national 
standards. Specifically, National Standards 2, 7, and 8, which speak, 
respectively, to the need to use the best scientific information 
available; the need to minimize costs and avoid

[[Page 25607]]

unnecessary duplication, where practicable; and the need to take into 
account impacts on fishing communities and minimize adverse economic 
impacts, to the extent practicable. We have conducted analyses, and 
considered both precision and accuracy issues in determining the 
appropriate level of coverage that minimizes the cost burden to sectors 
and NMFS, while still providing a reliable estimate of overall catch. 
As stated previously, we have published a more detailed summary of the 
supporting analyses, and an explanation and justification supporting 
our determination that an at-sea coverage rate of 22 percent (14 
percent ASM + 8 percent NEFOP). Summary tables of the data used in the 
analyses were also posted on our Web site. A table of information by 
stock, gear, and sector was posted at: http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/asmcvdata2.html. A table of information that can be 
sorted by stock and gear (without sector affiliation) was posted at: 
http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/asmcvdata.html.
    Oceana's claim that ACE-level AMs are the only AMs that apply to 
allocated stocks is inaccurate. Amendment 16 included many AMs for 
various portions of the groundfish fishery, including specific AMs to 
address the possibility that sector catches might at some point exceed 
their ACEs. Among the AM's instituted for sectors are: (1) Catch 
allocated to each sector is based on the stock ACL established by the 
Council. The ACL takes into account biological and management 
uncertainty to reduce the risk of overfishing. (2) Sectors are required 
to stop groundfish fishing when they are projected to have caught their 
allocation for any groundfish stock. (3) Reporting requirements are 
implemented to ensure that monitoring of sector catches is timely and 
accurate. (4) Sectors are provided opportunities to balance catches 
with their allocation through the trading of ACEs between sectors. (5) 
If a sector exceeds its allocation in a given year, and cannot balance 
its catch and allocation through ACE trading, then its allocation in 
the following year is reduced by the overage.
    Sector ACEs are only one of several sub-allocations of each 
allocated stock's ACL. In addition to the sector-specific AMs, there 
are additional AMs that apply to each allocated stock's ACL and AMs 
that apply to other sub-ACLs and sub-components of each stock. A ``hard 
TAC'' backstop was adopted for the common pool, under which the fishery 
would be suspended upon reaching the year's sub-ACL for a stock. For 
the recreational fishery, AMs include adjustments to seasons, 
adjustments to minimum fish sizes, or adjustments to bag limits. 
Amendment 16 specifically contemplated the roles of AMs at the ACL, 
sub-ACL, and sub-component level, noting that with more than one sub-
component, and with ACLs set lower than the ABC (due to scientific and 
management buffers), it is possible that an overage by one component 
and not the others may not lead to a depressed stock size that requires 
adjusting ACLs. Accordingly, it sets up an entire process of evaluating 
any ACL overage to determine if an AM is necessary or sufficient to 
account for the overage and the current biological condition of the 
stock. This exists above and beyond the AMs set for sectors which are 
designed to engender responsibility and accountability in the sector 
system. The overall context is to allow adjustments (AMs) at the sub-
component level so that components not responsible for any overage at 
the ACL level are not subject to reductions in their sub-ACL and 
resultant changes in fishing opportunities.
    Oceana's concern about monitoring at the ACE level needs to be 
distinguished from the determination of ASM coverage requirements. The 
sector monitoring program described previously provides reliable 
information for ACE monitoring.
    Comment 6: MA DMF urged that we base ASM coverage rates on a non-
random stratification of the fleet based on sub-allocations made 
available to individual fishermen by their sectors and the fishing 
power of individual fishing vessels. MA DMF contended this is a 
necessary measure to counter the impact of not having a high ASM 
coverage rate.
    Response: ASM selections are made randomly to achieve the target 
coverage rate we have determined will meet the CV standard and 
effectively monitor catch at the ACL level. The pre-trip notification 
system (PTNS) used by NEFOP to make coverage selections does not 
stratify trips, but makes random selections for monitor assignment for 
each sector. Random selection is used because sector behavior and 
allocations can change at any time during a fishing year. The CV 
measures the precision of the calculated discards, and varies depending 
on the consistency of individual trip activity in comparison to the 
average trip activity within a stratum (i.e., sector, area fished, and 
gear type used). For example, all trips by members of Northeast Fishery 
Sector III in statistical area 521 using 6.5-inch sink gillnets are in 
the same stratum. This is consistent with the Council's proposed 
Framework 48, which specifies that the CV should be applied at the 
stock level.
    Establishing individual ASM coverage rates for each sector vessel 
would greatly complicate the deployment of observers on appropriate 
trips. As described in more detail in Appendix A at:  http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/FY2013_Multispecies_Sector_ASM_Requirements_Summary.pdf, all at-sea coverage selections 
are made by NEFOP to ensure that trip selection is random within a 
sector, and that the ASM coverage is integrated into overall coverage 
level needs. Requiring the ASM selection process to achieve different 
coverage rates for each individual vessel is not practical. It would 
add a substantial amount of complexity to the program, and establishing 
such a complex system would require substantial program changes with 
associated costs, but likely only marginal improvement in our 
estimation of catch at the ACL level. For example, for this approach to 
work, it would require coverage allocations to be specified for each 
vessel as a starting point for distributing coverage. This approach 
would also require that individual vessels be limited to fishing 
specified allocations in order to allow for ASM selection based on the 
allocation. Without fixed allocations to vessels, it would be 
impossible to base an individual vessel's coverage rate on the vessel's 
available sub-allocation from the sector because ACE leasing between 
sectors and share trading among a sector's vessels occur throughout the 
year. This approach would require fundamental modifications to the more 
flexible system in place. These modifications would be inconsistent 
with the sector system modified by Amendment 16 and beyond the scope of 
this action. The sampling strata would have to be based on knowledge of 
each sector's allotment of catch to individual vessels, and would 
establish a monitoring program based on landing capacity. This would 
require ASM levels to be specified after the sector membership rosters 
are final, and after the sector operating plans are approved. Such an 
approach would have to assume that the relative performance level of 
each individual vessel remained constant provided the vessel remained 
in a specified sector. Such a program would represent a major change to 
the current sector program, and could not be accomplished at this time.
    Comment 7: The Council commented in support of using a stock-
specific CV rate across all sectors (i.e., at the stock level rather 
than the ACE level) as

[[Page 25608]]

proposed in FW 48. The application of the CV rate across sectors is 
explained in more detail in the response to comment 8.
    Response: We agree that the correct standard for determining 
precision of catch estimates from ASM is at the stock level.
    Comment 8: The Council expressed concern that the 22-percent 
coverage rate for FY 2013 is based on achieving the 30-percent CV for 
GB winter flounder, and that the coverage rate is therefore 10 
percentage points higher than necessary to achieve the CV standard for 
all other stocks. The Council commented that there are several sectors 
with little to no catch of GB winter flounder, which made that stock 
inappropriate as the basis for determining those sectors' coverage 
rate.
    Response: The required coverage rate is set for each year based on 
analyses using the most recent available data. We have interpreted the 
requirement to accurately monitor sector operations in the context of 
the national standards and other requirements of the MSA, as explained 
in the response to Comment 5. We have, determined that the appropriate 
level of observer coverage should be set at the level that meets the CV 
requirement at the overall stock level, and also minimizes the cost 
burden, while still providing a reliable estimate of overall catch by 
sectors to effectively monitor annual catch levels. GB winter flounder 
is the stock that has the highest variability based on FY 2011 catch. 
However, in FY 2010, a review of the data indicated (see Table 1A in 
Summary document) that GB winter flounder would have required a 
coverage level of 9 percent to achieve a CV of 30. Given only two 
fishing years of data to determine the level of ASM coverage, NMFS 
concludes it is premature to assume these values are determinative. 
Instead, data was used as an indication that variability is likely to 
be high for GB winter flounder or some other stock(s). A coverage rate 
of 22 percent of trips is intended to account for this variability in 
the fishery and ensure that GB winter flounder (as well as all other 
stocks) meets the CV standard.
    Comment 9: CLF and PEW commented that illegal discarding and use of 
small mesh are well known in New England. Oceana commented that they 
agree with the statements by the Council's NE multispecies Plan 
Development Team that low ACLs increase incentives to illegally discard 
fish, potentially resulting in long-term effects to the fishery larger 
than the cost of adequate ASM.
    Response: There is no evidence to support the assertion that 
illegal discarding and use of small mesh are currently widespread in 
the groundfish fishery. Both practices have been documented by sectors 
and the enforcement agents, but we believe that they are not the norm, 
due, in large part, to the requirements of the sector system and to the 
efforts of enforcement agents. The Sector Manager Report submitted to 
us comprises three separate reports, including the Sector Manager Trip 
Issue Report that provides information about any enforcement or 
reporting compliance issues that arose during the fishing week. It is 
in the best interest of each sector to accurately report the required 
information not only to foster effective ACE monitoring, but because 
sector members may be held jointly and severally liable for violations. 
Sectors have demonstrated their willingness to self-report enforcement 
or reporting compliance issues (10 incidents reported in FY 2010, 18 in 
FY 2011, including discarding violations) and have established 
mechanisms for investigating, adjudicating, and punishing member 
violations in addition to enforcement action taken by us.

ASM Costs

    Comment 10: The Council commented that we should compromise between 
administering an uncomplicated program for ASM selection and reducing 
industry-wide ASM costs. MA DMF commented that balancing monitoring 
levels with costs was a conundrum and stated that industry cannot 
afford to pay for monitoring due to low quotas going into effect. CLF 
and Pew stated that monitoring should be accepted as a cost of doing 
business for those fishing on a public resource. The Council commented 
that setting the coverage rate based on meeting the CV standard for GB 
winter flounder removes any incentive for sectors to reduce the 
variability of their discards to reduce observer costs because it would 
not necessarily impact their future coverage rates. The Council 
suggested a compromise approach using one coverage rate for sectors 
catching substantial amounts of GB winter flounder and a different 
coverage rate for other sectors.
    Response: We agree that, under Magnuson-Stevens Act requirements, 
we must balance administration of the ASM program and reducing overall 
costs and that the level of ASM coverage adopted for this year in 
combination with the overall sector program requirements does just 
that. Regulations specify that ASM costs are the responsibility of 
sectors, beginning in FY 2012. We interpret this to mean that sectors 
will be responsible to pay for the at-sea portions of the ASM costs. 
For FY 2012, we secured funding to pay for all ASM costs. Because of 
the Secretary's disaster declaration in the groundfish fishery we 
committed to covering these costs again in FY 2013, knowing that it 
would be difficult for the industry to pay those costs due to the low 
quotas set for many of the NE multispecies stocks. As stated in Comment 
5, we have determined that the appropriate level of observer coverage 
should be set at the level that meets the CV requirement at the overall 
stock level, and also minimizes the cost burden, while still providing 
a reliable estimate of overall catch by sectors to monitor annual catch 
levels. The response also notes that, given only two years of data, 
NMFS does not view the FY 2011 variability of GB winter flounder as 
predictive, and believes it would be inappropriate to tailor the 
coverage requirements to address that one data point, rather than the 
fishery as a whole. As more data and information become available each 
year, we can further hone the appropriate level of ASM coverage that 
best balances the cost and need of such coverage.
    Comment 11: CLF and Pew suggested that electronic monitoring (EM) 
and full retention of fish could provide more complete information on 
mortality and bycatch while reducing industry costs.
    Response: Along with other monitoring systems such as observers, 
at-sea monitors, vessel trip reports, biological sampling and dealer 
reports, electronic monitoring (EM) technologies hold promise as 
additional data collection tools. When supplemented by other data 
collection methods, accountability practices, business rules, and on-
board practices, EM may be an important means of supporting full catch 
accounting. We encourage and endorse the use of EM, where and when 
appropriate, in the Northeast Region. Currently, we are in the third 
phase of a pilot study researching the possible role of EM in the 
Northeast groundfish fishery. As we develop and implement EM for 
monitoring fisheries in the Northeast, we have identified two models 
that hold promise for effective use in Northeast fisheries: 1. Full 
retention of catch with EM used to ensure compliance, and 2. EM as a 
means of validation of the vessel trip report discard data in place of 
using calculated discards.
    The Council would need to assess the practical and biological 
issues associated with this and may need to revise its fishery 
management plan. It is

[[Page 25609]]

important to note that requiring vessels to retain all fish would 
require full consideration of a number of issues related to the 
retention of non-groundfish species, and related to the monitoring and 
disposition of fish landed under such a program. It is also unknown at 
this point whether EM would be more cost effective than monitors.
    Comment 12: In their comments Oceana made a number of requests for 
action to address their concerns about the ASM coverage level for FY 
2013 and the process for determining the appropriate level. Their 
requests were that we:
    1. Disclose the data required to be published under ASM settlement 
agreement.
    2. Have the Council's Scientific and Statistical Committee (SSC) 
review the observer coverage analyses.
    3. Extend the comment period until the data are disclosed and SSC 
review is published.
    4. Analyze how much coverage is necessary to meet the 30-percent CV 
for every ACE.
    5. Analyze how much discard rates would need to increase on 
unobserved trips to exceed an ACE.
    6. Analyze how much discard rates would need to increase on 
unobserved trips to avoid exceeding an ACL with a 0-percent probability 
of an overage.
    7. Repropose ASM coverage rates based on the requested analyses.
    Response: Our response to comment 5 refers to summary tables that 
were included in the ``Summary of Analyses Conducted to determine at-
Sea Monitoring Requirements for Multispecies Sectors FY 2013.'' The 
initial summary tables were posted on March 13, 2013, and additional 
summary tables were posted on April 12, 2013, and included the data 
used in the analyses, as agreed in the settlement agreement between 
Oceana and NMFS. A table of information by stock, gear, and sector was 
posted at: http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/asmcvdata2.html. A table of information by stock and gear (without 
sector affiliation) was posted at: http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/asmcvdata.html. These data sets have been truncated 
to protect confidentiality, as required by the Magnuson-Stevens Act.
    Amendment 16 requires us to set sufficient coverage levels and, as 
required, we have undertaken analyses and made a determination of the 
coverage level. Through the proposed rule for this action we announced 
our determination and sought comment. In accordance with the 2012 ASM 
settlement agreement we have posted a detailed summary of our analyses, 
and the data used, for the public. The Council commented on the 
proposed rule, including proposed ASM coverage levels, and we respond 
to those comments in this interim final rule.
    As discussed in the preamble of this rule, we will continue to 
accept comments on the final rule about the required ASM coverage 
levels, and supporting analyses and data.
    Oceana's comments on the analyses of bias (numbers 4 and 5 in 
Comment 12) are based on the incorrect premise that an examination of 
bias must be made at the sector level. The Summary Document posted 
online presents our current analyses of bias. The analyses concluded 
that while there are indicators of observer bias for the overall 
fishery, the results are not specific enough to support any 
quantitative adjustments at the stock ACL level. The sensitivity 
analyses indicates, however, that it is unlikely that observer bias 
will cause ``true'' catch to exceed stock ACLs.
    By extension, this is also likely true for monitoring most of the 
ACE poundage because ACL accounting is a compilation of ACE accounting.
    Oceana's request that we analyze how much discard rates would need 
to increase on unobserved trips to avoid exceeding an ACL with a 0-
percent probability of an overage is based on a misunderstanding of the 
statistical method employed. All measurements of catch will have some 
error. AMs are triggered when the estimate exceeds the allocation. 
Accordingly, a 50-percent measure of probability of an overage is 
appropriate as it represents a neutral risk of over-estimating or 
underestimating the catch. In our bias analyses we used an 
exceptionally risk-averse 5-percent probability that takes into account 
the error estimate and ensures that the estimate is not wrong about ACL 
overages more than 5 percent of the time. The notion of risk in 
estimates underlies the system of OFLs, ABCs, ACLs and ACEs set up in 
the Magnuson-Stevens Act and the NE multispecies FMP. Amendment 16 
includes a layered approach to AMs at different levels, including a 
requirement that sectors cease fishing when they exhaust their ACE. The 
monitoring system is also layered, including not only ASM to estimate 
discards on unobserved trips, but sector buffers and progressive 
reporting requirements that increase in frequency as sectors approach 
end of their allocation. Further, Amendment 16 specified that sector 
vessels would have less than 100 percent ASM coverage, which requires 
that catch information be an estimate. By its nature, using an estimate 
of catch precludes Oceana's assertion that the tolerance for the 
potential of an ACL or ACE overage should be zero. Accordingly, we will 
not be conducting the additional analyses requested by Oceana, and 
therefore will not repropose ASM coverage requirements based on those 
requested analyses.
    Comment 13: Oceana commented that the proposed rule did not discuss 
timeliness of catch data and that the proposed ASM coverage levels did 
not include standards for temporal distributions of observers and at-
sea monitors that will distribute coverage throughout the fishing year 
in a manner sufficient to monitor ACEs in real time.
    Response: Monitoring data can be grouped into three main forms of 
data: electronic, paper, and biological. Each form of data has a 
submission time as defined in contracts with monitoring providers. Both 
at-sea monitors and observers adhere to the same data submission times 
related to catch monitoring. The electronic form of data is used for 
the weekly sector catch report and must be submitted within 48 hours of 
landing. Electronic data are reported through a secure Web site and 
include trip statistics such as dates and times, gear type, and haul by 
haul information on catch (location, species, weight, and fish 
disposition). The paper logs must be received within 5 calendar days. 
The paper logs have more detailed information that supports the 
calculations and sampling methods. The electronic data are verified, 
including plotting tow locations, comparing gear types to past trips, 
and testing general ranges of species complexes and weights for 
accuracy, and species identification photographs are confirmed. The 
electronic data are verified by a trained editor and loaded to an 
Oracle database that is shared with sector managers and vessel owners 
within 24 hours of receiving it. Once the paper logs are received, a 
second-level data quality check is performed, comparing the paper data 
to the electronic data in the database. Biological specimens (collected 
for tagging studies, to support trainings, or to validate species 
identifications), must be received within 5 calendar days. A more 
detailed discussion of data timeliness is provided in Appendix F at: 
http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/FY2013_Multispecies_Sector_ASM_Requirements_Summary.pdf.
    Sectors are required to report their catch, at the sub-trip level, 
on a weekly basis. However, as sectors approach the end of their ACE 
(90 percent of any ACE

[[Page 25610]]

in FY 2013) the reporting requirement becomes daily. This ensures that 
NMFS and the sectors have more timely data when it is most necessary.
    The PTNS system which selects trips for coverage by at-sea monitors 
and observers continually selects trips throughout the year on a random 
basis to achieve the target coverage. The PTNS system uses a systematic 
sampling design and continuous updating of coverage rates to prevent 
cost overruns. This balances the available amount of monitoring sea-
days (based on budget) throughout the year as we achieve the target 
coverage rate. This ensures that coverage occurs throughout the year in 
a fair and equitable way that is distributed in a statistically random 
manner among all trips to assure coverage is representative of fishing 
activities by all sector vessels, and by all operations through the 
fishing year, as required by the regulations at 648.87(b)(1)(v)(B)(3).

Sector ASM Proposals

    Comment 14: Pew, CLF, MCFA, and MCCS do not support the use of a 
fixed discard rate method in place of an ASM program. Pew and CLF 
argued that the fixed discard rate method does not comply with the 14-
percent coverage rate requirement. MCFA and MCCS noted that the data 
collected by monitors contributes to stock assessment science, and also 
noted the valuable role of observers beyond discard accounting.
    Response: We agree with the concerns raised above. Because we have 
pledged to pay for the required 14-percent coverage in FY 2013, all 
sector-proposed ASM plans have been removed from final operations plan, 
and are not considered further in this final rule. Several data sources 
are integral to monitoring the NE multispecies fishery, including 
dealer data, self-reported vessel trip reports, and observer/monitor 
data. Observers and at-sea monitors also collect important information, 
on location, about target species and protected species interactions.

Industry-Funded Monitoring Requirements for Exemptions

    Comment 15: Industry, the Council, ME DMR, the Portland Fish 
Exchange, and one sector submitted comments pertaining to the proposed 
requirement for industry-funded monitoring on 100 percent of trips 
using certain exemptions or provisions (for targeting redfish with 
small mesh, fishing in the SNE/MA winter flounder stock area with 
winter flounder onboard, and fishing without ACE). All stated that 
industry cannot afford to pay for monitoring in FY 2013. Several 
speculated that requiring industry to pay for monitoring will render 
these exemptions useless, and may remove the advantage to participate 
in sectors.
    Response: As discussed in greater detail in the preamble to the 
proposed rule, we have several concerns regarding the reliability of 
discard estimates and the potential effects of any bias on observed 
trips, our ability to achieve required coverage levels, monitor 
availability, and our ability to cover the administrative costs 
associated with NMFS-funded monitors on trips using these exemptions. 
Given the low ACLs proposed for FY 2013, we acknowledge that the 
decision to join a sector or remain in the common pool will be a 
difficult decision for a vessel owner. We also understand that this 
industry-funded requirement may limit the usage of these exemptions. 
For these reasons, we are actively exploring ways to fund monitoring 
costs for these exemptions, and will provide additional information as 
it becomes available.
    Comment 16: Industry, the Council, and ME DMR commented we should 
have informed the Council that we were considering 100-percent 
industry-funded monitoring for these exemptions and explained our 
rationale for proposing this prior to the proposed rule being 
published. The Council commented that they did not recommend 100-
percent monitoring to be a condition of access to closed areas. They 
also commented that the coverage rate analysis indicates that 22-
percent coverage is sufficient for monitoring ACLs and, therefore, 
additional coverage for certain exemptions may not be necessary.
    Response: Sectors first proposed that several of these approved 
exemptions (for targeting redfish with small mesh and fishing in the 
SNE/MA winter flounder stock area with winter flounder onboard) be 
allowed only when a NMFS-funded monitor is assigned to the trip. During 
internal review and discussion of these exemptions, we determined that 
current funding levels would not allow us to support NMFS-funded 
monitoring of 100-percent coverage of trips under these exemptions; 
however, we agreed to provide the opportunity for industry to use these 
exemptions, provided industry would pay for at-sea costs. Although our 
monitoring coverage analysis indicates that 22-percent coverage is 
sufficient to monitor discards for most sector trips; we believe that 
certain exemptions will require additional monitoring. The redfish 
exemption includes catch thresholds and the use of smaller mesh nets, 
which requires monitoring to ensure that catch thresholds are not 
exceeded. Fishing with no ACE requires monitoring because calculated 
discard rates for these strata cannot be assigned to such trips without 
causing the sector to have discards associated with the limiting stock. 
Requiring a monitor on trips in the SNE/MA winter flounder stock area 
with winter flounder onboard will help to ensure that catch of winter 
flounder has not come from the SNE/MA winter flounder stock area. We 
believe that these coverage requirements are necessary to monitor the 
use and effectiveness of these exemptions in FY 2013. Based on the 
information acquired in FY 2013, we will reconsider the need for 
additional monitoring in future years.
    Comment 17: We received several comments seeking alterations to, or 
revocation of, exemptions requiring 100-percent industry-funded 
monitoring. CLF and Pew recommended disapproval of exemptions that may 
compromise monitoring. ME DMR stated that we should work with sectors 
to develop triggers to recalibrate coverage.
    Response: We plan to monitor these exemptions and have proposed 
catch triggers for targeted redfish trips and fishing without ACE that, 
if exceeded, may result in the removal of that exemption for a given 
sector during the FY. We will continue to assess our ability to 
adequately cover standard sector trips with monitors and ensure that 
the 100-percent monitoring requirement for exemptions does not impact 
coverage for standard sector trips. We intend to notify and work 
collaboratively with monitoring providers and sectors in advance of 
revoking any of these exemptions, to develop mutually agreeable 
solutions to any problems encountered.
    Comment 18: One sector agreed with our concern that our proposal to 
require 100-percent industry-funded monitoring coverage of certain 
exemptions could limit monitor availability. If federally funded 
monitors were approved for use on exemption trips, this sector also 
questioned how assigning a federally funded observer would reduce the 
number of observers available to cover standard sector trips.
    Response: We expressed concern in the proposed rule that using 
NMFS-funded monitors or observers on exemption trips could reduce the 
number of observers or monitors available to cover standard sector 
trips, specifically that: (1) Vessels would call into PTNS indicating 
their intent to use an exemption and, once given a waiver from having 
to carry an observer or

[[Page 25611]]

monitor, the vessel would not take a trip, but wait to be selected for 
an observer or monitor which could require divert resources away from 
standard sector trips for these exemption trips, effectively 
undermining random selection; and (2) that vessels would call into PTNS 
to use an exemption, be selected for NMFS-funded coverage, affecting 
the number of observers and monitors available to cover standard sector 
trips, given that there is a limited pool of observers and monitors 
based on available funding to meet the 22-percent coverage level. Based 
on these concerns, we proposed requiring sectors to develop an 
industry-funded ASM program for use in these exemptions.

Sector Exemptions

    Comment 19: We received comments from one industry member 
supporting the extension of approved exemptions to sectors for FY 2013. 
The U.S. Coast Guard commented that approved exemptions should be 
granted to all sectors, to facilitate enforcement.
    Response: During FYs 2011 and 2012, we analyzed, proposed, and 
approved each sector exemption so that it would be available for all 
sectors to request, or modify inseason, without requiring additional 
analysis. In FY 2013, each sector exemption was proposed and analyzed 
as if all sectors were using the exemption. Therefore, all sectors may 
elect any approved exemption in its final operations plan, and it is up 
to the sector's discretion to determine which exemptions will most 
benefit its members. However, for FY 2013, two sectors proposed an 
operations plan provision to fish when the ACE for an allocated stock 
had been reached. Because each sector may have different fishing 
practices that may influence our ability to approve or disapprove these 
provisions (i.e., practices that meet the NMFS-imposed limiting stock 
1-percent bycatch threshold), our analysis focused on each individual 
sector's catch history. Therefore, provisions to fish without ACE will 
only be granted to the requesting sectors, which meet the 1-percent 
threshold.
    Comment 20: ME DMR commented that gear restrictions in the CA II 
SAPs are unnecessary because a sector's activities are controlled by 
its ACE. ME DMR also stated its opposition to any further efforts that 
restrict efficiency and flexibility (i.e., imposing modifications from 
sector requests or disapproving an exemption). MA DMF urged caution in 
the approval of many of the exemptions, stating that the removal of 
some effort controls are unwise, counterproductive, and provide uneven 
distribution of benefits between fishermen.
    Response: We agree that many gear restrictions may no longer be 
necessary in a catch-limit based system. During FYs 2010 through 2012, 
sectors were granted exemptions from numerous gear requirements, 
including seasonal closures for gillnet gear, gear hauling 
requirements, net limits, and minimum mesh size requirements. We 
support granting additional flexibility to sectors through exemptions, 
provided that these exemptions do not negatively impact protected 
species, habitat, spawning aggregations of fish, or other stocks. For 
FY 2013, we are again approving a number of exemptions from gear 
restrictions, given that a sector's activity is limited by its 
allocated quota. We believe the approved exemptions and provisions will 
provide sectors with needed flexibility in a year when some quotas may 
be dramatically reduced.
    The 2011 Final Report on the Performance of the Northeast 
Multispecies (Groundfish) Fishery (May 2011-April 2012) (http://www.nefsc.noaa.gov/publications/crd/crd1230/crd1230.pdf) supports the 
assertion that benefits have been distributed unevenly but it does not 
attribute the uneveneness to exemptions. Most NE states experienced 
increases in nominal revenues from the landings of all species in 2011 
from 2010, and were at a 3-yr high in Massachusetts, New Jersey, New 
York, and Rhode Island. However, for several states (Connecticut and 
Maine), revenue from all species declined between 2010 and 2011. While 
the number of groundfish trips declined for all vessel size categories 
over a 3-yr period, the largest decline occurred in the 30-ft (9.1-m) 
to 50-ft (15.2-m) vessel length class. The smallest decline occurred in 
the largest vessel size class (over 75 ft (22.9 m)). There is no clear 
connection between a particular exemption and these effects. Further, 
it is unclear if these changes result from exemptions granted to sector 
vessels, changes in ACLs, or some other reason(s).
    Comment 21: NESSN and one sector supported the approval of all 
previously approved exemptions for FY 2013.
    Response: Most previously approved exemptions have been approved 
again in FY 2013. Many of these exemptions provide flexibility by 
eliminating effort controls, while other exemptions will help to reduce 
costs or allow a vessel to target healthy NE multispecies stocks. We 
believe these approved exemptions are warranted, given the fact that 
sectors are allocated an ACE, which will constrain their impacts. One 
exemption that was previously approved was disapproved for FY 2013. The 
GOM sink gillnet mesh exemption was approved in previous years to 
encourage vessels to target GOM haddock, a relatively healthy stock. 
However, given that GOM haddock is experiencing overfishing and 
approaching an overfished status, this exemption is not justifiable, 
and has been disapproved.
    Comment 22: Several individuals submitted comments pertaining to 
the development of exemptions. One sector noted industry's time and 
effort spent in the development of exemptions that would afford more 
flexibility, allow sectors to more fully utilize their ACEs, and 
mitigate low catch limits, and raised concern with NMFS's modifications 
to these requests. The Council also claimed that NMFS's modifications 
to these exemptions have wasted the time taken to develop these 
exemptions by the Council, public, and NMFS. NESSN commented that it 
was worried that we are applying a ``one size fits all'' approach to 
exemption approval. NESSN also recommended that we should communicate 
exemption concerns with the sectors to find reasonable, workable 
alternatives prior to publishing a proposed rule.
    Response: We acknowledge each sector's efforts in the development 
of operations plans, weekly reports, and summation of the sectors 
activity in the sector annual report. Through the sector operations 
plan review process, we have attempted to establish a collaborative 
process. Each summer, we encourage sectors to submit exemptions for 
initial NMFS review and comment, and we attempt to provide sectors with 
feedback on regulation citations and additional issues to address. 
Sectors submit operations plans, including exemptions, on September 1, 
and we provide sectors with comprehensive comments. Once reviewed, we 
provide feedback to sectors on those plans and exemption requests, and 
allow time for sectors to address our concerns. We meet with/Regional 
Office and NEFSC staff to discuss ideas and, if there is significant 
concern with a proposed exemption, we collaborate to find a way we 
could approve such exemption.
    Comment 23: DMR, the Portland Fish Exchange, NSC, and a number of 
industry members raised concern that we did not involve the Council in 
the development of the proposed rule, in particular that we are 
changing Council recommendations for exemptions, and that exemption 
concerns should have been addressed and evaluated through the Council 
process.
    Response: Amendment 16 established the current process for a sector 
to submit a preliminary operations plan to the Council for approval to 
form as a sector; and a final operations plan,

[[Page 25612]]

including exemption requests and membership information to NMFS for 
approval to operate. Our process to approve a sector to operate and to 
allocate ACE falls outside of the Council process. We have specifically 
sought the input or clarification of the Council on two exemptions, and 
will continue to do so as necessary. In addition, we have worked with 
sectors in the development process of exemptions (see response to 
Comment 22), and have provided feedback through the review of the 
operations plans.

6.5-inch (16.5-cm) Minimum Mesh Size Requirement for Trawl Nets To 
Target Redfish in the GOM

    Comment 24: We received numerous comments regarding the 
requirements associated with the redfish exemption, specifically the 
requirement for 100-percent industry-funded monitoring. Individual 
industry members and one sector contended that sector vessels should 
have the option to take a federally funded observer, and that changing 
this requirement from how it was approved for FY 2012 came too late in 
the year for vessels to plan for FY 2013. Industry and ME DMR commented 
that it is inappropriate to make alterations from the Council's 
original request for this exemption. The Council noted its opposition 
to industry funding of all observer coverage for this exemption.
    Response: As described in the proposed rule, and explained in 
comments in this preamble, we cannot provide NMFS-funded monitors for 
use on exemption trips requiring 100-percent monitoring. Use of NMFS-
funded monitors was allowed in the redfish exemption for FY 2012 in 
part because it was a short-term exemption; however, after additional 
consideration by NMFS following the publication of the FY 2012 proposed 
rule about its use over an entire fishing year in combination with 
other exemptions requiring additional monitoring, we became concerned 
about the reliability of and potential bias of discard estimates, our 
ability to achieve required coverage levels, monitor availability, and 
our ability to cover the administrative costs associated with NMFS-
funded monitors on trips using these exemptions. While it was too late 
to withdraw this provision in the final rule for FY 2012, it was 
necessary to modify this provision for FY 2013. Should we receive 
additional money to fund monitors, we will promptly alert the public of 
this and explain how money would be dispersed.
    Comment 25: Industry and ME DMR questioned the two NMFS-proposed 
threshold requirements that will be used to monitor this exemption.
    Response: The final rule implementing the 4.5-in (11.4-cm) redfish 
exemption in FY 2012 included two performance requirements to ensure 
that the exemption does not negatively impact fish stocks: A monthly 
catch total of NE multispecies (including landings and discards) that 
must be comprised of at least 80 percent redfish; and a requirement 
that total NE multispecies discards (including redfish discards), may 
not exceed 5 percent of all NE multispecies caught monthly with small-
mesh nets. These thresholds were specified to help ensure that vessel 
do not target other stocks, to help mitigate catch of sub-legal NE 
multispecies (including redfish) and were determined to be consistent 
with catch information from REDNET research trips. We believe that 
these requirements are necessary to ensure that vessels target redfish 
while using this small-mesh exemption. In future years, we could 
consider altering these thresholds, based on the data collected from 
trips using this exemption in FY 2012 and FY 2013.
    Comment 26: We received several comments in opposition to the 
redfish exemption. CLF, Earthjustice, Pew, and one sector raised 
concern regarding the life history of redfish, noting that the species 
is slow growing and long lived, making it susceptible to overharvest. 
CLF, Earthjustice, and Pew raised concern about the allowance of small 
mesh nets and the impacts on juvenile NE multispecies, which could 
impact rebuilding. Earthjustice opposed granting the exemption, noting 
that approval of 4.5-inch (11.4-cm) mesh is a substantial deviation 
from the current minimum mesh size.
    Response: We understand the concerns raised by these groups, and 
have therefore set monthly thresholds to ensure that vessels using 
small mesh do not adversely impact the redfish stock, or other 
groundfish stocks. We will monitor these thresholds on a monthly basis, 
and will revoke the exemption inseason, if necessary to sustain the 
FMPs fishing mortality objectives. We agree that the use of 4.5-in 
(11.4-cm) mesh is a substantial deviation from the current minimum mesh 
sizes; however, we believe that the additional restrictive measures 
that the vessel must adhere to when directing on redfish with small 
mesh, will help address these concerns.

Limits on the Number of Gillnets Imposed on Day Gillnet Vessels

    Comment 27: We received several comments from industry, two 
sectors, the Council, and ME DMR supporting the exemption from the 
limits on the number of gillnets imposed on Day gillnet vessels, 
arguing that harbor porpoise interactions have decreased since the 
approval of this exemption, that it is more appropriate to allow 
sectors to determine if the use of selective gear is necessary, and 
that effort controls are not necessary in a quota-based fishery. One 
sector also noted that extra nets allowed by this exemption provides 
the flexibility to experiment with mesh-size and placement to avoid 
limiting stocks, while still maintaining nets to fish normally.
    Response: In the proposed rule, we raised concern about the 
potential for impacts from this exemption on protected species. We have 
since confirmed public comment indicating that the number of harbor 
porpoise interactions has decreased recently, and approved the 
exemption.
    Comment 28: CLF, Earthjustice, MA DMF, Pew, and the Union of 
Concerned Scientists raised concerns about the continued approval of 
the exemption from the limit on the number of gillnets imposed on Day 
gillnet vessels. The environmental organizations were specifically 
concerned with the impacts to non-target and protected species, as well 
as the potential for increased gear loss. MA DMF commented that they 
are concerned about the impacts of an unlimited number of gillnets on 
spawning cod, citing a MA DMF scientific paper published in the North 
American Journal of Fisheries Management 2012.
    Response: As stated above regarding this exemption, we do not 
believe concern for harbor porpoise warrants its disapproval at this 
time. We will continue to evaluate the impacts of this exemption, and 
will reconsider the approval of this exemption in future years, as 
needed. Based on concerns for spawning cod raised by MA DMF, we do 
believe that gillnet restrictions are warranted to protect this 
vulnerable fishery and, therefore, are restricting the use of this 
exemption to periods when cod spawning does not take place, as 
described above in Exemption 17 (Limits on the Number of Gillnets 
Imposed on Day Gillnet Vessels). Sectors vessels would be limited to 
fish the number of gillnets allowed by each RMA in the times and areas 
described where cod spawn.
    Comment 29: Industry and one sector commented on the negative 
economic impacts if this exemption were disapproved. Industry stated 
that vessels cannot afford gear reductions in light of lower ACLs. One 
sector commented that revoking this

[[Page 25613]]

exemption would disproportionately impact smaller, inshore vessels.
    Response: We understand industry's concern about revoking this 
exemption, given that vessel owners may have invested in additional 
gillnet gear, and that it is likely that there will be limited return 
on this investment in FY 2013, given the low ACLs. However, data in 
section 4.1.4.2 of the Sector EA indicates that catch per unit effort 
for gillnet vessels is decreasing. In other words, gillnet vessels are 
fishing harder and catching less fish. This is not the intended outcome 
of this exemption. A decrease in available fish, such as GOM cod, could 
explain this analyses and why the commenters are arguing that they need 
the exemption. Vessels need the ability to fish additional nets to 
catch enough fish that the trip is profitable. Because of these 
concerns, we are approving this exemption to provide some flexibility 
for smaller, inshore vessels. We are approving this exemption 
seasonally in FY 2013 due to concern over the affect that decreased 
catch per unit effort and increased gear in the water could have on 
spawning cod.

Gear Requirements in the Eastern U.S./Canada Area

    Comment 30: We received several comments from industry, one sector, 
the Council, and ME DMR supporting the exemption from the selective 
gear requirements of the Eastern U.S./Canada Area, arguing that 
approval of this exemption will allow sectors to more fully harvest 
their Eastern GB allocations, and that it is more appropriate to allow 
sectors to determine if the use of selective gear is necessary.
    Response: The exemption from this gear requirement was approved in 
FYs 2011 and 2012, and is again approved for FY 2013. We believe that 
these restrictions are no longer necessary under sector management 
because sectors are restricted to an ACE for each NE multispecies 
stock, which limits overall fishing mortality. We agree that sectors 
should be allowed the flexibility to determine if, and when, selective 
gear should be used.

Seasonal Restrictions for the Eastern U.S./Canada Haddock SAP and the 
CA II Yellowtail/Haddock SAP

    Comment 31: We received several comments on the exemption request 
for year-round access to the Eastern U.S./Canada Haddock SAP and the CA 
II Yellowtail/Haddock SAP. Industry and the Council commented that the 
exemption should not be altered from the Council's original request to 
extend the opening to May (for a May through December opening for the 
Eastern U.S./Canada Haddock SAP, and May through January for the CA II 
Yellowtail Flounder/Haddock SAP). The Council also submitted comments 
regarding seasonal access to the Eastern U.S./Canada Haddock SAP, 
rejecting NMFS's position that this area should not be opened in May 
due to GB winter flounder spawning, and citing a study by Smolowitz et 
al. in 2012, which indicates that peak GB winter flounder spawning 
occurs in February and March in CA II; the study found low densities of 
winter flounder in the area in May. Industry reaffirmed the Council's 
comment on spawning with anecdotal evidence. In addition, industry 
noted that we did not raise concern with providing access to the 
Eastern U.S./Canada Haddock SAP in January and, consequently access 
should be allowed at this time. Industry also noted that the use of 
selective gear should prevent catch of certain stocks, which were noted 
with concern in the proposed rule.
    Response: We concur with the updated Smolowitz et al. 2012 study 
that GB winter flounder spawning generally does not occur in May. Based 
on this updated information, we have expanded access to both SAP areas 
from May through the seasonal closure of each SAP. The proposed rule 
incorrectly cited the GB cod spawning season raised by the NEFSC, which 
is January through April for the Eastern U.S./Canada Haddock SAP 
(Berrien and Sibunka, 1999). Therefore, we do not believe it is 
appropriate to extend the season beyond the closure of the SAP, on 
December 31.
    After reviewing numerous comments on these exemptions, we are 
approving them without the selective trawl gear requirement, given that 
sectors are limited by their ACE and because these areas are closed 
during peak spawning periods. Vessels may use any gear approved for the 
respective SAPs, as well as the standard otter trawl. Given the low ACL 
proposed for GB yellowtail flounder and the likelihood that it will be 
a limiting stock, we expect that many sectors will continue to use 
selective gear to target GB haddock in this SAP.
    Comment 32: MA DMF supported the SAP exemptions as proposed, 
asserting that opening these areas year-round may have negative 
effects, especially on spawning fish. MA DMF also requested that we 
provide the Council with data on the performance of selective gear.
    Response: We agree that protecting spawning fish is critical, 
especially in light of declines in some NE multispecies stocks. 
Therefore, we have limited access to seasons where spawning is not of 
concern. For reasons described in the response to Comment 29 above, we 
are extending the exemption from the trawl restrictions in the Eastern 
U.S./Canada Area to these two SAPs.

DSM Requirements for Vessels Using Hand-Operated Jig Gear

    Comment 33: The MFCA and MCCS support exemptions from DSM for jig 
and handgear vessels, arguing that these vessels catch minimal amounts 
of fish. They also note that the gear used by these vessels is the same 
as gear used by the recreational fleet, which does not receive 
monitoring. MCFA and MCCS also state that resources could be better 
used by monitoring the vessels that catch larger volumes of fish.
    Response: Regulations implementing Amendment 16 established DSM 
requirements for the commercial fishing fleet. The Council did not 
elect to impose monitoring requirements on other segments of the 
fishery. The Council has considered and approved regulatory exemptions 
from DSM for certain categories of common pool vessels because the 
vessels encounter small amounts of NE multispecies, and we have 
provided similar exemptions for sector vessels (for Handgear-A 
permitted, for vessels fishing exclusively west of 72[deg]30' W. long., 
and for monkfish Category C- and D-permitted vessels fishing on a 
monkfish trip in the monkfish SFMA when such vessels are required to 
fish with nets containing 10-inch (25.4-cm) mesh codends or gillnets. 
For FY 2013, we received a request to exempt hand-operated jig vessels 
from DSM requirements, and believe the data summarized in the proposed 
rule demonstrate that only small amount of NE multispecies is discarded 
by vessels using this gear; therefore, the exemption is warranted. FW 
48 proposes eliminating the DSM program. However, because FW 48 
measures have not been approved at this time, we are approving this 
additional exemption from DSM requirements for hand-operated jig 
vessels.

Prohibition on Fishing in the SNE/MA Winter Flounder Stock Area With 
Winter Flounder on Board

    Comment 34: We received several comments from industry and ME DMR 
supporting the ability of vessels to fish in multiple BSAs.
    Response: The Council has not supported, nor have we implemented, 
regulations that universally restrict a vessel's ability to fish in 
multiple BSAs. To clarify the current requirements,

[[Page 25614]]

Amendment 16 prohibited all NE multispecies vessels from fishing for, 
possessing, or landing SNE/MA winter flounder. Therefore, a vessel with 
GOM or GB winter flounder on board could only transit through the SNE/
MA winter flounder stock area with its gear stowed in accordance with 
the provisions of Sec.  648.23(b), and would be prohibited from fishing 
in the SNE/MA winter flounder stock area. This restriction is in place 
to ensure that the winter flounder on board the vessel did not come 
from the SNE/MA winter flounder stock area. We are approving an 
exemption from the prohibition against fishing in this area, provided a 
monitor is onboard all trips using the exemption. The monitor will be 
able to verify and accurately attribute winter flounder to the 
appropriate stock. See the response to Comment 16 for specifics on 100-
percent industry-funded monitoring.
    Comment 35: One sector and NESSN commented on the SNE/MA winter 
flounder exemption, noting that this exemption would provide efficiency 
by allowing a vessel to combine two trips into one trip, because 
currently, they are prohibited from fishing in the SNE/MA winter 
flounder stock area, if they have winter flounder onboard from another 
stock area. Fishing fewer trips may have the added benefit of reducing 
declarations or requests for monitors.
    Response: We agree that approval of this exemption would increase a 
vessel's efficiency. We have approved this exemption, provided that 
these vessels comply with the 100-percent industry-funded ASM 
requirement, and note the possibility that this increase in efficiency 
may result in increased availability of monitors. Achievement of 
required monitoring coverage levels and observer availability will be 
monitored throughout the year and adjusted as needed.
    Comment 36: One sector and NESSN questioned the basis and clarity 
of our concern that bias could be created by including data collected 
from these exemption trips in the calculated discard rate that is 
applied to unobserved trips. They contend that the order of fishing in 
areas should not matter, and that this exemption more closely mirrors 
historic fishing practices prior to the approval of Amendment 16 (i.e., 
prior to FY 2010).
    Response: Historically (prior to 2010), vessels were allowed to 
retain SNE/MA winter flounder and therefore were free to fish between 
stock areas. However, the 2010 prohibition on retaining SNE/MA winter 
flounder, and the associated prohibition on fishing in the SNE/MA 
winter flounder stock area with winter flounder onboard, changed 
fishing practices. After additional consideration of the comments 
received and further review of the exemption request, we agree that 
trips using this exemption are representative of standard sector trips, 
and that the order that areas are fished will not introduce bias to 
discard rates. Also, having a monitor onboard will help to ensure that 
catch of winter flounder from other stock areas is properly recorded, 
and document SNE/MA winter flounder that is not retained.
    Comment 37: CLF and Pew commented in opposition to the winter 
flounder exemption, stating that SNE/MA winter flounder is overfished, 
and approval of the exemption risks additional mortality to this stock 
if there is an increase in misreporting.
    Response: We approved this exemption, provided an industry-funded 
monitor observes 100 percent of these trips. Having a monitor onboard 
will help to ensure that catch of winter flounder from other stock 
areas is properly recorded, and document SNE/MA winter flounder that is 
not retained.

Sampling Exemption

    Comment 38: The U.S. Coast Guard recommended disapproval of the 
sampling exemption in order to increase the enforceability of LOAs and 
exempted fishing permits, expressing concern about allowing vessels to 
retain undersized fish, access closed areas, and exceed possession 
limits for research purposes without advanced notice. They argued that 
notice is needed to ensure that research requirements are understood 
and uniformly enforced.
    Response: We value the input provided by our partners in fisheries 
enforcement. However, this exemption has been approved for only two 
sectors, the Fixed Gear Sector and the Northeast Coastal Communities 
Sector, to facilitate information collection programs included in each 
sector's operations plans. We believe that allowing only temporary 
possession through the sector operations plan minimizes the application 
burden to the public and that the proposed rule provided advanced 
notice of these research activities. Should another sector request the 
exemption, we will share this information with the U.S. Coast Guard and 
NMFS's Office of Law Enforcement. The sectors have requested, and are 
only being granted, temporary relief from the requirement to 
immediately discard under-sized or prohibited species, for the purposes 
of collecting scientific information. Vessels conducting this research 
must return fish to the sea as soon as practicable after sampling. To 
aid in enforcement, a sector vessel's LOA would detail these research 
activities.

GOM Sink Gillnet Mesh Exemption in May, and January Through April

    Comment 39: MA DMF, MCCS, and MCFA opposed granting this exemption 
in FY 2013, given that GOM haddock is experiencing overfishing, and is 
approaching an overfished condition.
    Response: This exemption was previously approved to provide sector 
vessels with an additional opportunity to target what was then a 
relatively healthy stock--GOM haddock. However, a 2012 operational 
assessment of the GOM haddock stock showed that the stock is 
experiencing overfishing and is approaching an overfished condition. We 
agree that it is inappropriate to approve an exemption that would allow 
increased targeting of a stock in poor condition, and therefore have 
disapproved this exemption for FY 2013.
    Comment 40: Several industry members, ME DMR, and NESSN supported 
approval of the GOM sink gillnet mesh exemption. Industry argued that 
the sector's ACE, including the ACE for GOM haddock, will constrain the 
sector's impact when fishing under this exemption, and that it is the 
sector's responsibility to ensure that the behavior of its members 
results in appropriate usage of ACE. In addition, industry and NESSN 
asserted that it is difficult for gillnet vessels to catch haddock 
using mesh larger than 6 inches (15.2 cm) due to its shape. Finally, 
industry stated that disapproval of this exemption will make it more 
difficult to get a return on the investment of new nets.
    Response: We generally agree that a sector's impacts are limited by 
an ACE, and that sectors should be free to decide how to maximize their 
usage of ACE, including through the use of selective gear, as 
necessary. However, given that GOM haddock is approaching an overfished 
condition, and may be considered a limiting stock for vessels fishing 
in the GOM, we believe it is inappropriate to grant an exemption that 
encourages increased targeting of this stock. Sectors may again request 
this exemption in future years, and we will reconsider granting this 
exemption based on updated GOM haddock stock information.
    Comment 41: MA DMF acknowledged our concern for GOM haddock, but 
recommended that we reexamine net mesh selectivity, given that FW 48 
proposes to decrease the minimum fish size for most stocks.
    Response: We acknowledge MA DMF's concern about net mesh

[[Page 25615]]

selectivity; however, the Council recommended decreasing the minimum 
size for NE multispecies as a way to reduce discards and provide more 
revenue for sector vessels using current mesh sizes, and not to 
increase catch of smaller fish. Given the status of GOM haddock, it 
would not be prudent to allow a vessel to increase effort on GOM 
haddock. Therefore, we do not believe a review of selectivity of net 
mesh is warranted at this time.

Prohibition on Combining Small-Mesh Exempted Fishery and Sector Trips

    Comment 42: The U.S. Coast Guard opposed this exemption, stating 
that allowing legal-sized NE multispecies and small mesh onboard would 
render minimum fish and mesh sizes unenforceable because the proper use 
of small mesh nets is only verifiable during a Coast Guard boarding. 
They also raised concern that, if approved, a monitor would be placed 
in an enforcement role. CLF and Pew raised concern that approval could 
increase mortality of juvenile fish and may increase the risk that gear 
will be deployed incorrectly.
    Response: We share the U.S. Coast Guard's concern about 
enforceability. With different mesh sizes available vessels can too 
easily alter their nets or fishing behavior in anticipation of boarding 
to avoid detection of illegal fishing. We are therefore disapproving 
this exemption. We also raised concern in the proposed rule that at-sea 
monitors lacked training to monitor the small-mesh portion of the trip. 
Based on these concerns, this exemption was not approved. We also share 
the concern of CLF and Pew, as the proposed rule raised concern that a 
vessel could circumvent the rules and target allocated NE multispecies 
with small mesh, thereby increasing the catch of juvenile fish.
    Comment 43: We received several comments regarding potential 
implementation of this exemption. ME DMR stated that it would be 
inconsistent with the current exempted fisheries to adjust NE 
multispecies bycatch levels below 5 percent. ME DMR also recommended 
that we not exclude data collected on trips using this exemption from 
the calculated discard rates for unobserved trips.
    Response: This exemption has been disapproved.
    Comment 44: NESSN and one sector commented that approval of this 
exemption could help minimize costs.
    Response: We support the sectors' ability to request exemptions 
that will increase flexibility and lower operations costs, and have 
approved numerous exemptions to that end. However, due to enforcement 
concerns raised above in Comment 42, we are not approving this 
exemption for FY 2013.
    Comment 45: NESSN and one sector asserted that our justification 
for requiring 100-percent industry funded monitoring was weak given our 
acknowledgement of the minimal bycatch of regulated NE multispecies in 
the small-mesh fisheries. They also stated that their proposal to 
deduct all bycatch of NE multispecies from their ACE further undermines 
our reason for disapproval. They further commented that we did not 
provide sufficient explanation as to the additional training required 
to deploy monitors on small-mesh exempted fishery trips. Finally, in 
place of monitoring requirements, the sectors claimed that selective 
gear requirements would have been more reasonable.
    Response: The sectors' initial request for this exemption included 
a requirement that the exemption could only be used on a monitored 
trip. They argued that the monitor would be able to correctly attribute 
and confirm catch from small-mesh tows and from large-mesh tows. In 
addition, given our concerns about the potential for directed trips to 
skew discard estimates for unobserved trips and the potential to not 
achieve required coverage levels, we proposed this exemption with 100-
percent industry-funded monitoring. We also noted that monitors do not 
receive training for exempted fisheries, as exempted fisheries are only 
subject to NEFOP coverage specified by SBRM. NEFOP observers certified 
to be deployed on small-mesh exempted fishery trips receive additional 
training in small-mesh fisheries, which covers gear modifications and 
methods for measurement, sampling scenarios, fish identification, 
incidental take sampling, and reporting requirements. While deducting 
the bycatch of regulated NE multispecies from the sector's ACE helps to 
address some concern, this exemption is not approved for use in FY 2013 
due to enforcement and monitoring concerns highlighted in response to 
Comment 42 above. No further gear modifications were considered.

Closed Area Exemptions

    Comment 46: Numerous individuals submitted comments on the 
Council's approval of a measure proposed in FW 48 that would allow 
sectors to request access to year-round mortality closed areas, and on 
the requests that will be considered in a future rulemaking. Many of 
these comments were specific to our consideration of requiring 
industry-funded ASM on 100 percent of trips, and commenters encouraged 
us to conduct a full analysis of these exemptions.
    Response: This final rule disapproves exemptions from closed areas, 
because including these exemptions in this rulemaking could have 
delayed the approval of sector operations plans and allocations beyond 
May 1, due to needed analysis for these exemptions. We are in the 
process of evaluating the impacts of these requests. We intend to 
publish a proposed rule and accompanying analysis in the coming months, 
for potential implementation during FY 2013. These comments, therefore, 
are not relevant to this action, and the public is encouraged to 
comment on the upcoming rule proposing exemptions to year-round 
mortality closed areas for approval.

Provisions To Fish Without ACE

    Comment 47: NESSN and NEFS 5 submitted several comments in support 
of their request to fish without ACE, stating that the data that they 
submitted demonstrates that the sector's catch of the limiting stock is 
minimal. MCCS supported the program, in theory, but believed additional 
development is needed before such a program is implemented.
    Response: We support providing sectors additional opportunities to 
target healthy NE multispecies stocks and other non-groundfish stocks 
in light of low ACLs for FY 2013. We proposed and are approving several 
of the sectors' requests, based on our ability to verify minimal catch 
of the limiting stock (using a threshold of less than 1 percent) in 
observer/ASM and VTR data. We believe that the requirements of these 
programs, additional reporting and monitoring requirements, and a plan 
to revoke this provision if the sector encounters more than 100 lb 
(45.4 kg) of the limiting stock are adequate to monitor this exemption; 
however, we will monitor the usage of this provision closely and, if 
necessary, will develop additional requirements for future FYs.
    Comment 48: CLF and Pew expressed concern that the approval of this 
provision could result in additional mortality on depleted stocks, and 
increase incentives to discard. They also believe that additional 
analysis is necessary prior to approving these programs.
    Response: The proposed rule raised serious concern with these 
provisions, given the very low 2013 quotas for some stocks. However, we 
are approving these programs under conditions designed to address these 
concerns. These programs are granted only for the two requesting

[[Page 25616]]

sectors to target other species (i.e., non-NE multispecies stocks) when 
they have a limiting NE multispecies stock. We have established 
additional reporting and monitoring requirements for sector vessels to 
aid in our own monitoring of these programs. We believe requiring 100-
percent monitoring on these trips minimizes misreporting concerns, and 
will help to collect information on encountered stocks. There are also 
other measures designed to maintain close control over and monitor 
catch, such as the 100-lb (45.4-kg) threshold on catching the limit 
stock, revoking the program once this threshold is reached, and 
requiring acquisition of ACE to account for any catch of the limiting 
stock.
    These two requesting sectors originally sought numerous provisions 
to fish without ACE. We reviewed observer/ASM and VTR data, and only 
proposed provisions where the data indicated that the limiting stock 
was less than 1 percent of the total catch. Through historical 
practices, we believe that the sectors have adequately demonstrated 
their ability to target other species, while avoiding the limiting 
stock.
    Comment 49: MA DMF supported the monitoring requirements proposed 
for this program, but recommended limiting the amount of time gillnets 
may be fished. In addition, MA DMF questioned whether the approval of 
these programs would result in a shift in effort away from the NE 
multispecies fishery and into other fisheries.
    Response: Provisions to fish without ACE have been approved, 
provided 100 percent of the trips receive an ASM. This is necessary to 
sufficiently monitor these programs and also ensures that trips fishing 
without ACE are assigned observed discards (an unobserved trip would be 
assigned calculated discards, including for the limiting stock that 
must be avoided). As highlighted above, these provisions were approved 
based on our ability to verify very minimal catch of the limiting stock 
in FY 2010 and 2011 observer/ASM and VTR data for the requesting 
sectors and are approving these programs without restrictions on the 
amount of time that gear may be set. We will monitor the sectors using 
this provision, and may consider additional restrictions, if necessary.
    We support providing sectors additional opportunities to target 
healthy NE multispecies stocks and other non-groundfish stocks in light 
of low ACLs for FY 2013, but note the importance of monitoring the use 
of this provision for impacts on other species. We request information 
on anticipated effort shifts in each sector's operations plan, and 
require catch and effort information in each sector's annual report. We 
will monitor the use and impact of this provision in FY 2013, and will 
reconsider approval and will consider additional restrictions in future 
FYs, if necessary.

Inshore GOM Restrictions

    Comment 50: Pew and CLF expressed support for the inshore GOM 
restrictions proposed by most sectors, stating that monitoring 
requirements will help to address impacts of fishing inshore and help 
to minimize misreporting. MA DMF also expressed support for the 
restriction, but noted that allowing vessels to fish in the offshore 
portion of GOM and GB on the same trip will not address misreporting. 
Additionally, MA DMF expressed some concern that it may be difficult to 
get members to agree to this policy.
    Response: Most sectors have proposed a provision to restrict a 
vessel's fishing activity in the GOM, unless an observer is onboard. We 
support the sector's proposal, which attempts to address both 
misreporting and area access issues. We think that this measure 
addresses some reports of misattributing catch, but acknowledge that, 
as approved, it may not address all concerns because it does not 
completely restrict fishing between the GOM BSA and other BSAs. Given 
that this provision would provide help addressing misreporting, we are 
approving this provision for use in FY 2013. Through SIMM, we have 
provided information to sector managers to aid in the identification of 
such trips, and expect the sectors to enforce this operations plan 
provision within the sector. Several sectors have retained the right to 
remove the inshore GOM restrictions from their final operations plans.

Formalizing a Process To Revoke an Exemption Inseason

    Comment 51: NSC and NESSN expressed concern about our attempt to 
broaden the authority to revoke an exemption inseason. NSC recommended 
withdrawing this proposal until it can be fully vetted by the Council.
    Response: In prior proposed and final rules for sector operations, 
we have identified our potential need to revoke several exemptions 
inseason if certain concerns arose or conditions were not met. Our 
intention was to provide additional information in the proposed rule on 
the administrative process for revoking an exemption through notice in 
the Federal Register, consistent with APA, and not to expand our 
authority to do so. Several exemptions have again been approved for FY 
2013 with conditions to ensure that they operate consistent with their 
objectives and do not jeopardize fishing mortality objectives. 
Additionally, we will inform sectors of any concerns prior to 
considering an exemption revocation to allow time for the sector to 
address those concerns.
    Comment 52: NSC and NESSN also commented that we should proactively 
communicate with sectors when considering revoking an exemption. Not 
doing so would weaken sectors and harm sector participants, especially 
as upfront collaboration has previously proven successful.
    Response: We agree. We communicate with sector managers on a 
regular basis on issues including data management, quota management, 
membership changes, and questions regarding regulations. Joint 
monitoring has been an integral part of sector management for FYs 2010 
through 2012. We intend to continue this communication and will attempt 
to address any issues as they arise. Any action taken to revoke a 
sector exemption would require communication with the sector throughout 
the process of notifying the public. Again, our intent was to provide 
additional information on the administrative process for revoking an 
exemption and to provide advance notice of this to the public through 
the Federal Register in the FY 2013 proposed rule.
    Comment 53: MA DMF questions the thresholds that would be used for 
revoking an exemption, and sought clarification on whether exemptions 
would be disapproved individually or as a whole. CLF and Pew supported 
the idea of taking inseason action if data indicated that an exemption 
increased mortality, or if issues resulted from monitoring 
requirements.
    Response: As in previous years, we intend to monitor usage of 
exemptions to ensure that they operate consistently with their 
objectives and conditions and do not jeopardize fishing mortality 
objectives. We also intend to monitor compliance with certain exemption 
requirements during the FY. The RA has previously retained the right to 
rescind an exemption if sectors were determined to be out of compliance 
with the requirements of the exemption (e.g., bycatch requirements, 
catch composition requirements, VMS requirements, ASM coverage 
requirements, etc.). We will continue to monitor the use of and 
compliance with exemption requirements, and would only consider 
revoking an exemption if certain exemption requirements,

[[Page 25617]]

outlined in the proposed rule are not met.

Sector EA

    Comment 54: Pew and CLF commented that sector operations and 
exemptions are being considered with only limited analysis in the 
sector EA.
    Response: We prepared the required NEPA documentation to accompany 
the 17 sector operations plans we received for FY 2013, and the EA 
describes the potential impacts of approving FY 2013 sector operations 
plans on the human, physical, and biological environment and concludes 
that all beneficial and adverse impacts of this action have been 
addressed to reach the conclusion of no significant impacts. We believe 
that the sector EA includes sufficient analysis to support the approved 
sector measures. The Council established a process requiring sectors to 
develop operations plans and EAs to analyze their proposed operations. 
Since FY 2010, NMFS has either paid a contractor drafted the supporting 
analysis. We have signed a FONSI stating that sector operations will 
not significantly impact the quality of the human environment, and all 
beneficial and adverse impacts of the Proposed Action have been 
addressed to reach the conclusion of no significant impacts.

APA Comments

    Comment 55: CLF and Pew noted that the proposed rules for FWs 48 
and 50 and for sector operations plans were published out of logical 
sequence, contrary to the requirements of the APA. Finally, one 
industry member urged us to publish a final rule as early as possible 
to allow industry the maximum amount of planning time in advance of FY 
2013.
    Response: Due to unexpected changes in stock status, the Council 
required additional time to determine stock allocations for FY 2013, 
which delayed our ability to publish the proposed sector rule and the 
proposed rules for FWs 48 and 50 in the Federal Register. Each proposed 
rule was published as soon as possible, to provide the maximum amount 
of time for the public to comment for sectors to plan in advance of FY 
2013. This resulted in the proposed rule for sector operations 
publishing first, followed by the proposed rules for FWs 48 and 50. We 
provided a 15-day comment period for this rule; a longer comment period 
would have been impracticable and contrary to the public interest since 
we must publish a final rule prior to the start of FY 2013 on May 1 to 
enable sectors to fish. A vessel enrolled in a sector may not fish in 
FY 2013 unless its sector operations plan is approved. If the final 
rule is not published prior to May 1, the permits enrolled in sectors 
must either stop fishing until their operations plan is approved, or 
elect to fish in the common pool for the entirety of FY 2013. Both of 
these options would have negative impacts for the permits enrolled in 
the sectors.
    To ensure that the final rule published in advance of the start of 
FY 2013, we reduced the comment period to 15 days. We published this 
rule as quickly as possible following the close of the comment period, 
while taking the appropriate amount of time to carefully consider the 
approval or disapproval of each exemption or measure, and review and 
respond to each comment.
    Comment 56: CLF, Pew, and DMF stated there was limited opportunity 
to comment on several interrelated rules (this action, FW 48, and FW 
50). Oceana requested an extension of the comment period associated 
with the proposed rule to allow time for an external review of the 
analysis supporting ASM coverage rate determination. They recommended 
that the Council or the Council's Science and Statistical Committee 
review the analysis to ensure that it is suitable.
    Response: As stated above, we provided a 15-day comment period for 
this rule; a longer comment period would be impracticable and contrary 
to the public interest since we must publish a final rule prior to the 
start of FY 2013 on May 1 to enable sectors to fish. We have posted 
additional information on our Web site responding to Oceana's request 
for additional information on data timeliness and the analysis 
conducted to determine the required level of ASM coverage for FY 2013. 
Based on these comments, we are providing the public additional 
opportunity to comment on the ASM coverage level. In addition, we are 
also accepting additional comment on revisions to the exemption from 
the limits on the number of gillnets imposed on Day gillnet vessels in 
this interim final rule.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator for Fisheries (AA) has determined that 
this final rule is consistent with the NE Multispecies FMP, other 
provisions of the Magnuson-Stevens Act, and other applicable law.
    This action is exempt from review under Executive Order (E.O) 
12866.
    The AA finds good cause under 5 U.S.C. 553(d)(1) and (3) to waive 
the 30-day delay in effectiveness so that this final rule may become 
effective upon filing because this rule relieves several restrictions. 
Sector Operation Plan exemptions grant exemptions or relieve 
restrictions that provide operational flexibility and efficiency that 
help avoid short-term adverse economic impacts on NE multispecies 
sector vessels. When the 17 approved Sector Operations Plans become 
effective, sector vessels are exempted from common pool trip limits, 
DAS limits, and seasonal closed areas. These exemptions provide vessels 
with flexibility in choosing when to fish, how long to fish, what 
species to target, and how much catch they may land. They also relieve 
some gear restrictions, reporting and monitoring requirements, and 
provide access to additional fishing grounds through the authorization 
of 23 exemptions from NE multispecies regulations for FY 2013. This 
flexibility increases efficiency and reduces costs.
    In addition to relieving restrictions and granting exemptions, 
avoiding a delay in effectiveness avoids significant adverse economic 
impacts. A delay in implementing this rule would prevent owners who 
joined a sector in FY 2013 (854 permits, 58 percent of eligible 
groundfish permits accounting for 99 percent of the historical NE 
multispecies catch) from fishing during the delay and would diminish 
the advantage of the flexibility in vessel operations, thereby 
undermining the intent of the rule. During any delay, sector vessels 
would be prohibited from fishing for groundfish. Being prohibited from 
fishing for up to 30 days would have a significant adverse economic 
impact on these vessels because vessels would be prevented from fishing 
in a month when sector vessels landed approximately 10 percent of 
several allocations, including GB cod east and GB winter flounder. 
Further, sector vessels could only fish during this delay if they chose 
to fish in the common pool. Once they switched to the common pool, 
however, they could not return to a sector for the entire fishing year 
and would forego the flexibility and economic efficiency afforded by 
sector exemptions. Vessels choosing to fish in the common pool to avoid 
a 30 day delay in the beginning of their season would then forego 
potential increased flexibility and efficiencies for an entire fishing 
year. For the reasons outlined above, good cause exists to waive the 
otherwise applicable requirement to delay implementation of this rule 
for a period of 30 days.
    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires 
agencies to assess the economic impacts of their proposed regulations 
on small entities. The objective of the RFA is to consider

[[Page 25618]]

the impacts of a rulemaking on small entities, and the capacity of 
those affected by regulations to bear the direct and indirect costs of 
regulation. Size standards have been established for all for-profit 
economic activities or industries in the North American Industry 
Classification System. The Small Business Administration (SBA) defines 
a small business in the commercial fishing and recreational fishing 
sector, as a firm with receipts (gross revenues) of up to $4 million. 
The Small Business Act defines affiliation as: Affiliation may arise 
among two or more persons with an identity of interest. Individuals or 
firms that have identical or substantially identical business or 
economic interests (such as family members, individuals or firms with 
common investments, or firms that are economically dependent through 
contractual or other relationships) may be treated as one party with 
such interests aggregated (13 CFR 121.103(f)).
    A Final Regulatory Flexibility Analysis (FRFA) was prepared for 
this final rule, as required by section 604 of the RFA. The FRFA 
consists of the Initial Regulatory Flexibility Analysis (IRFA); the 
relevant portions of the proposed rule describing sector operations 
plans and requested exemptions; the corresponding analysis in the EA 
prepared for this action; the discussions, including responses to 
public comments included in this final rule; and this summary of the 
FRFA. A copy of this analysis is available from NMFS (see ADDRESSES).

Need for, and Objectives of, This Rule

    Approval of sector operations plans is necessary to allocate quota 
to the sectors and to grant the sectors regulatory exemptions. The 
intended effect is to provide vessels participating in sectors with 
increased operational flexibility. The flexibility afforded sectors 
includes exemptions from certain regulations, as well as the ability to 
request additional exemptions. The objective of the action is to 
authorize the operations of 17 sectors in FY 2013, and to allow the 
permits enrolled in sectors and the NE communities where they dock and 
land to benefit from sector operations.

Summary of Public Comments

    All public comments, including those in response to the IRFA and 
comments regarding the economic effects of the rule not specifically 
addressed in the IRFA, and our response to those comments, are 
contained in this preamble. We received several comments on the 
economic impacts of monitoring. These are summarized in Comments 10 
through 13 and their responses.

Description and Estimate of the Number of Small Entities Affected

    We have recently worked to identify ownership affiliations, and 
incorporated that data into this analysis; consequently, this analysis 
may differ from analysis conducted in previous years. Efforts to more 
accurately identify ownership affiliations are ongoing. For the 
purposes of this analysis, ownership entities are defined as an 
association of fishing permits held by common ownership personnel as 
listed on permit application documentation. For example, only permits 
with identical ownership personnel are categorized as an ownership 
entity.
    The maximum number of entities that could be affected by the 
proposed exemptions is expected to be approximately 303 ownership 
entities (301 qualifying as small entities)--the number of entities 
anticipated to enroll in the 17 sectors that have submitted operations 
plans for FY 2013. Since individuals may withdraw from a sector at any 
time prior to the beginning of FY 2013, the number of permits 
participating in sectors on May 1, 2013, and the resulting sector ACE 
allocations, are likely to change slightly. Additionally, new permit 
holders who acquire their permits through an ownership change that 
occurred after December 1, 2012, may enroll their permit in a sector or 
change the permit's sector affiliation through April 30, 2013.
    The economic impact resulting from this action on these small 
entities is positive, since the action, if implemented, would provide 
additional operational flexibility to vessels participating in NE 
multispecies sectors for FY 2013. In addition, this action would 
further mitigate negative impacts from the implementation of Amendment 
16, FW 44, and FW 45, and upcoming FW 48, and FW 50, which have placed 
additional effort restrictions on the NE multispecies fleet.

Reporting, Recordkeeping and Other Compliance Requirements

    This final rule contains no collection-of-information requirement 
subject to the Paperwork Reduction Act. This action reduces reporting 
requirements compared to the no-action alternative. Exemptions 
implemented through this action will be documented in an LOA issued to 
each vessel participating in an approved sector. The exemptions from 
the 20-day spawning block and the 120-day gillnet block will reduce the 
reporting burden for ownership entities with sector vessels, because 
exemptions from these requirements eliminate the need to report the 
blocks to the NMFS Interactive Voice Response system.
    Ownership entities that include any sector vessels receiving an 
exemption from the gillnet limit (up to 150 nets) will also be exempt 
from current tagging requirements, and will instead be required to tag 
gillnets with one tag per net. Compliance with the tagging requirement 
will not necessarily require ownership entities with sector vessels to 
purchase additional net tags, as each vessel is already issued up to 
150 tags. However, ownership entities with sector vessels that have not 
previously purchased the maximum number of gillnet tags may need to 
purchase additional tags to comply with this requirement, at a cost of 
$1.20 per tag.
    The exemption to allow a vessel to haul another vessel's gillnet 
gear requires each ownership entity to tag all gear it is authorized to 
haul. Because of the existing 150-tag limit, no additional tags could 
be purchased.
    The exemption from the limit on the number of hooks does not 
involve reporting requirements, but may result in increased costs for 
hooks and rigging (groundline, gangions, anchors) if an ownership 
entity chooses to increase the amount of gear fished. Circle hooks of 
the legal minimum size (12/0) cost about $0.19 each, without rigging.
    In order to utilize the exemption from the minimum trawl mesh size 
to target redfish, an ownership entity would need to purchase or 
utilize a codend of small mesh. At the time the FRFA was prepared, no 
cost information was available for a 4.5-inch (11.4-cm) mesh codend. 
The purchase of a 4.5-inch (11.4-cm) mesh codend would depend on an 
ownership entities' perceived economic benefit of utilizing the 
exemption, which may be based on market conditions.
    Exempting sectors from the requirement to submit a daily catch 
report for all vessels participating in the CA I Hook Gear Haddock SAP 
will not change the reporting burden of individual participating 
ownership entities, as vessels would merely change the recipient of 
their current daily report.
    Other exemptions in this action involve no additional reporting 
requirements. Sector reporting and recordkeeping regulations do not 
exempt participants from state and Federal reporting and recordkeeping 
requirements, but are mandated above and beyond current state and 
Federal requirements. A full list of compliance, recording, and 
recordkeeping requirements can be found in the final rule implementing 
Amendment 16, each

[[Page 25619]]

approved FY 2012 sector operations plan, and in the draft FY 2013 
sector operations plans.

Duplication, Overlap or Conflict With Other Federal Rules

    This action is authorized by the regulations implementing the NE 
Multispecies FMP. It does not duplicate, overlap, or conflict with 
other Federal rules.

Steps the Agency Has Taken To Minimize Significant Economic Impacts on 
Small Entities

    This action will create a positive economic impact for the 
participating ownership entities that include sector vessels because it 
mitigates the impacts from restrictive management measures implemented 
under the FMP. Few quantitative data on the precise economic impacts to 
individual ownership entities are available. The 2011 Final Report on 
the Performance of the Northeast Multispecies (NE multispecies) Fishery 
(May 2010-April 2011) (copies are available from NMFS, see ADDRESSES) 
documents that all measures of gross nominal revenue per trip and per 
day absent in 2011 were higher for the average sector vessel than in 
2010, and lower for the average common pool vessel than in 2010, except 
for average revenue per day on a groundfish trip for vessels under 30 
ft (9.1 m) in length and for vessels 75 ft (22.9 m) and above. However, 
the report stipulates that this comparison is not useful for evaluating 
the relative performance of DAS and sector-based management because of 
fundamental differences between these groups of vessels, which were not 
accounted for in the analyses. Accordingly, quantitative analysis of 
the impacts of sector operations plans is still limited. NMFS 
anticipates that by switching from effort controls of the common pool 
regime to operating under a sector ACE, sector members will have a 
greater opportunity to remain economically viable while adjusting to 
changing economic and fishing conditions. Thus, the final action 
provides benefits to sector members that they would not have under the 
No Action Alternative. This preamble discusses reasons for approval or 
disapproval of each requested exemption.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, an LOA, or letter of authorization, for each 
permit holder enrolled in a sector that also serves as small entity 
compliance guide (the guide) was prepared.
    Copies of this final rule are available from the Northeast Regional 
Office, and the guide, i.e., permit holder letter or bulletin, will be 
sent to all holders of NE multispecies permits enrolled in a sector. 
The guide and this final rule will be available upon request (see 
ADDRESSES).

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

    Dated: April 26, 2013.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, performing the 
functions and duties of the Assistant Administrator for Fisheries, 
National Marine Fisheries Service.
[FR Doc. 2013-10281 Filed 4-30-13; 4:15 pm]
BILLING CODE 3510-22-P