[Federal Register Volume 78, Number 86 (Friday, May 3, 2013)]
[Rules and Regulations]
[Pages 26117-26169]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10402]



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Vol. 78

Friday,

No. 86

May 3, 2013

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





50 CFR Part 648





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Magnuson-Stevens Fishery Conservation and Management Act Provisions; 
Fisheries of the Northeastern United States; Northeast (NE) 
Multispecies Fishery; Framework Adjustment 48; Final Rule

Federal Register / Vol. 78, No. 86 / Friday, May 3, 2013 / Rules and 
Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120814336-3408-02]
RIN 0648-BC27


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast (NE) 
Multispecies Fishery; Framework Adjustment 48

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: Through this interim final rule, NMFS announces that it 
partially approves Framework Adjustment 48 to the NE Multispecies 
Fishery Management Plan (FMP) and implements the approved measures in 
the regulations. Framework 48 is the first of two parallel and related 
actions developed by the New England Fishery Management Council 
(Council) to respond to updated stock status information and to adjust 
other management measures in the NE multispecies (groundfish) fishery 
beginning in fishing year (FY) 2013. This action implements new status 
determination criteria for Gulf of Maine (GOM) cod, Georges Bank (GB) 
cod, Southern New England/Mid-Atlantic (SNE/MA) yellowtail flounder, 
and white hake based on new benchmark assessments completed for these 
stocks in 2012 and 2013. NMFS is approving and implementing updated 
status determination criteria for white hake through this interim final 
rule and accepting further comment on this measure since it was not 
available for comment in the Framework 48 proposed rule. NMFS will 
publish a subsequent final rule to respond to any comments received, if 
necessary. Through this action, NMFS has also approved and is 
implementing the following Framework 48 measures: Elimination of 
dockside monitoring requirements for the groundfish fishery; lower 
minimum fish sizes for several groundfish stocks; clarified goals and 
performance standard for groundfish monitoring programs; revisions to 
the allocation of GB yellowtail flounder to the scallop fishery; and 
establishment of sub-annual catch limits (ACLs) of GB yellowtail 
flounder and SNE/MA windowpane flounder for the scallop and other non-
groundfish fisheries. NMFS also approved revisions to recreational and 
commercial accountability measures (AMs), including amendments to 
existing AMs for windowpane flounder, ocean pout, and Atlantic halibut, 
and new ``reactive'' AMs for Atlantic wolffish and SNE/MA winter 
flounder, to address a remand by the U.S. District Court of Appeals. 
NMFS disapproved some measures in Framework 48: A provision for cost-
sharing of monitoring costs between the industry and NMFS; a provision 
to delay industry-funded monitoring to FY 2014; finer scale discard 
rate strata for GB yellowtail flounder; and a provision to remove 
requirements for groundfish trawlers to stow their gear when transiting 
closed areas. Through this interim final rule, NMFS also withdraws a 
proposed correction to the regulations specific to monitoring of the 
Eastern U.S./Canada quotas, and will be accepting additional public 
comment on this issue. These measures are necessary to meet the 
requirements of the FMP and the Magnuson-Stevens Act, most notably 
preventing overfishing, ensuring that management measures are based on 
the best available science, and mitigating, to the extent practicable, 
potential negative economic impacts from reductions in catch limits 
anticipated for fishing year FY 2013.

DATES: Effective May 1, 2013, except for the amendment to Sec.  648.84, 
which is effective July 1, 2013. Comments on the interim final status 
determination criteria for white hake or U.S./Canada quota monitoring 
methods must be received by June 3, 2013.

ADDRESSES: You may submit comments on the new status determination 
criteria for white hake or U.S./Canada quota monitoring, identified by 
NOAA-NMFS-2013-0050, 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-2013-0050, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to John K. Bullard, Regional 
Administrator, National Marine Fisheries Service, 55 Great Republic 
Drive, Gloucester, MA 01930.
     Fax: (978) 281-9135; Attn: Melissa Hooper.
    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.
    Copies of Framework 48, its Regulatory Impact Review (RIR), the 
environmental assessment (EA) prepared for this action, and the Final 
Regulatory Flexibility Analysis (FRFA) prepared by the Council are 
available from Thomas Nies, Executive Director, New England Fishery 
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The 
FRFA assessing the impacts of the measures on small entities and 
describing steps taken to minimize any significant economic impact on 
such entities consists of the Initial Regulatory Flexibility Analysis 
(IRFA), preamble, and the summary of impacts and alternatives contained 
in the Classification section of this final rule and Framework 48. The 
Framework 48 EA/RIR/IRFA are also accessible via the Internet at http://www.nefmc.org/nemulti/index.html or http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Melissa Hooper, Fishery Policy 
Analyst, phone: 978-281-9166, fax: 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The FMP specifies management measures for 16 species of groundfish 
in Federal waters off the New England and Mid-Atlantic coasts, 
including both large-mesh and small-mesh species. Small-mesh species 
include silver hake (whiting), red hake, offshore hake, and ocean pout; 
and large-mesh species (also referred to as ``regulated species'') 
include Atlantic cod, haddock, yellowtail flounder, pollock, American 
plaice, witch flounder, white hake, windowpane flounder, Atlantic 
halibut, winter flounder, redfish, and Atlantic wolffish. Large-mesh 
species, which are referred to as ``regulated species,'' are divided 
into 19 fish stocks, and along with ocean pout, comprise the groundfish 
complex of 20 stocks managed under the NE Multispecies FMP.

[[Page 26119]]

    Amendment 16 to the FMP (Amendment 16) established a process for 
setting acceptable biological catches (ABCs) and ACLs for regulated 
species and ocean pout, as well as distributing the available catch 
among the various components of the groundfish fishery. Amendment 16 
also established AMs for these 20 groundfish stocks in order to prevent 
overfishing of these stocks and correct or mitigate any overages of the 
ACLs. Framework 44 to the FMP (Framework 44) set the ABCs and ACLs for 
FYs 2010-2012. In 2011, Framework 45 to the FMP (Framework 45) revised 
the ABCs and ACLs for five stocks for FYs 2011-2012. Framework 47 to 
the FMP (Framework 47) updated specifications for most stocks for FYs 
2012-2014 and modified management measures in the fishery after more 
than 1 year under ACLs and AMs.
    Framework 48 is one of two actions developed by the Council to 
respond to benchmark and assessment updates completed for all 
groundfish stocks in 2012 and 2013. Updated information in these 
assessments requires revisions to the status determination criteria for 
GOM cod, GB cod, SNE/MA yellowtail flounder, and white hake and 
implementation of updated ABCs and ACLs for most stocks for FYs 2013-
2015. These measures are necessary to prevent overfishing and 
facilitate the rebuilding of groundfish stocks as required by the FMP. 
In Framework 48, the Council proposed administrative changes to the FMP 
to make way for Framework 50, which specifies ABCs and ACLs for all 
stocks for FY 2013-2015. The Council also included several measures in 
Framework 48 intended to mitigate negative economic impacts to the 
groundfish fishery anticipated from the substantial reductions in catch 
limits proposed in Framework 50 to end overfishing. Framework 48 also 
implements AMs for Atlantic halibut, Atlantic wolffish, and SNE/MA 
winter flounder in response to a Court Order and remand in Oceana v. 
Locke et al. 831 F.Supp.2d 95 (D.D.C. 2011) that held that so-called 
``reactive'' AMs had not been developed for the 6 stocks not allocated 
to sectors (``non-allocated stocks'') in Amendment 16. Framework 48 
recommended reactive AMs for 3 of these stocks, for which reactive AMs 
had not been established since Amendment 16. A more extensive 
discussion of the development of Frameworks 48 and 50 is available in 
the proposed rules for these two actions (78 FR 18188; March 25, 2013 
and 78 FR 19368; March 29, 2013, respectively) and is not repeated 
here. NMFS also proposed several corrections to the NE multispecies 
regulations through the Framework 48 proposed rule under the authority 
of section 305(d) of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act), which allows the Secretary of 
Commerce to implement regulations necessary to ensure that fishery 
management plans or amendments are carried out consistent with the 
Magnuson-Stevens Act. These changes are not part of Framework 48, but 
are necessary to clarify existing regulations and achieve the 
objectives of the FMP.
    Public comments were accepted on the Framework 48 proposed rule 
through April 9, 2013. After review of public comments, NMFS has 
partially approved Framework 48 as consistent with the goals and 
objectives of the NE Multispecies FMP, and the requirements of the 
Magnuson-Stevens Act and other applicable law.

Disapproved Measures

    This section summarizes the Framework 48 measures NMFS has 
disapproved as not consistent with goals and objectives of the NE 
Multispecies FMP or the requirements of the Magnuson-Stevens Act and 
other applicable law. NMFS also withdraws a correction to the NE 
multispecies regulations that NMFS proposed in the Framework 48 
proposed rule regarding accounting of catch against quotas established 
for the Eastern U.S./Canada Management Area, for reasons discussed 
below.

1. Delay Industry At-Sea Monitoring Cost Responsibility

    Framework 48 proposed to delay sectors' responsibility to implement 
and pay for their own at-sea monitoring programs to FY 2014. The 
Council included this measure in Framework 48 out of concern that the 
industry would not be able to support this cost burden in FY 2013 due 
to the substantial catch reductions proposed in Framework 50. Coverage 
levels would instead be set at the level that NMFS can fund. The 
Council proposed a similar measure in Framework 45, which NMFS 
disapproved due to concerns that there would not be Federal funds to 
ensure adequate monitoring of sector operations. A complete description 
of the development this measure was included in the Framework 48 
proposed rule (Item 8) and is not repeated here.
    NMFS is disapproving this measure as it did in Framework 45 because 
it is inconsistent with the requirements of the FMP and the Magnuson-
Stevens Act. However, due to fishermen's concerns about their ability 
to pay for at-sea monitoring costs in FY 2013, NMFS intends to cover 
100 percent of the costs of sector at-sea monitoring once again in FY 
2013 using the NMFS At-sea Monitoring Program. But, relying on NMFS 
appropriations to determine an at-sea monitoring coverage rate does not 
ensure that coverage will be sufficient to monitor sector annual catch 
entitlements (ACEs) or to meet the purpose and goals for sector 
monitoring described in Amendment 16 and Framework 48. Because NMFS 
funding depends on Congressional appropriations, funding levels 
fluctuate, and NMFS cannot guarantee sufficient funding to meet the 
coverage levels required by the FMP to monitor ACLs and sector ACEs. If 
sector at-sea monitoring depended on NMFS funding alone and that 
funding fell short of required coverage levels, NMFS may not be able to 
reliably estimate total catch, undermining the effectiveness of ACLs 
and sector ACEs to prevent overfishing and facilitate the rebuilding of 
groundfish stocks as required by National Standard 1 and section 
303(a)(1) of the Magnuson-Stevens Act. NMFS was able to locate funding 
to provide the NMFS At-sea Monitoring Program again in FY 2013, but 
such funding is not certain. Without additional appropriations to 
support sector monitoring specifically, relying solely on the Federal 
Government to provide sector at-sea monitoring coverage could also 
undermine other programs. Inadequate funding could potentially force 
NMFS to spread existing resources too thin, undermining the Standard 
Bycatch Reporting Methodology (SBRM) coverage requirements of section 
303(a)(11) and information used to assess Northeast fish stocks. Thus, 
NMFS has disapproved this measure in Framework 48. Sectors will be 
responsible for any costs of at-sea monitoring that are not covered by 
Federal funding in FY 2013.

2. At-Sea Monitoring Cost-Sharing

    To serve as a more long-term solution to the cost burden of at-sea 
monitoring to sectors, Framework 48 proposed a mechanism for sharing of 
at-sea monitoring costs between sectors and NMFS. Framework 48 proposed 
that the industry would only ever be responsible for paying the direct 
costs of at-sea monitoring, specifically the daily salary of the at-sea 
monitor. All other programmatic costs would be the responsibility of 
NMFS, including, but not limited to: Briefing, debriefing, training and 
certification costs (salary and non-salary); sampling design 
development; data storage, management and security; data quality 
assurance and

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control; administrative costs; maintenance of monitoring equipment; at-
sea monitor recruitment, benefits, insurance and taxes; logistical 
costs associated with deployment; and at-sea monitor travel and 
lodging. This measure was intended to reduce the cost burden of at-sea 
monitoring to sectors and thereby increase their profitability.
    NMFS has disapproved this cost-sharing measure because it is not 
consistent with other applicable laws as developed. Specifically, the 
Anti-Deficiency Act and other appropriations law prohibits Federal 
agencies from obligating the Federal government except through 
appropriations and from sharing the payment of government obligations 
with private entities. Framework 48 proposed to require NMFS to pay for 
some portion of the costs of at-sea activities, such as logistical 
costs generated by deployment, which are outside its statutory 
obligations under the Magnuson-Stevens Act. As written, this measure 
would also have required NMFS and sectors to share payment of 
obligations defined as belonging to one or the other. For example, 
Framework 48 proposed to require NMFS to pay some costs related to at-
sea activities, such as benefits and insurance for at-sea monitors, 
while sectors would pay other portions of at-sea costs, like the salary 
for at-sea monitors. Because such action would be prohibited under the 
law, NMFS has disapproved this measure in Framework 48.
    Although this measure was not approvable as developed, NMFS shares 
the Council and industry's concern about the ability of sectors to bear 
the full costs of monitoring in future fishing years. NMFS believes 
this approach to cost sharing, which defines the items that NMFS versus 
sectors should be responsible for, could be viable if restructured and 
may be worth pursuing in a future action. NMFS is already working with 
the New England and Mid-Atlantic Councils' joint Herring-Mackerel Plan 
Development Team (PDT)/Fishery Management Action Team (FMAT) to pursue 
cost-sharing options such as this one for those fisheries for FY 2014. 
The Council could consider including the NE Multispecies FMP in this 
joint effort to develop a workable and consistent cost-sharing 
mechanism for the Northeast region.

3. GB Yellowtail Flounder Management Measures

    Framework 48 proposed to change the stratification of discard 
estimates for sectors for GB yellowtail flounder, by splitting the GB 
yellowtail flounder trawl discard strata between statistical area 522 
and statistical areas 525/561/562. This measure was intended to revise 
sector discard rates to more closely reflect actual discards of 
yellowtail flounder in different areas of Georges Bank and potentially 
lengthen the fishing season for sector vessels in those areas. Based on 
public comment, NMFS has disapproved this measure in Framework 48, 
because it would complicate and increase the cost and burden of 
monitoring and potentially increase uncertainty of catch estimates 
without any measurable benefits for sectors. Accordingly, this measure 
is inconsistent with or may lead to inconsistency with National 
Standards 5 and 7 of the Magnuson Stevens Act. As more fully discussed 
below, because of the added complications of administering this 
measure, it may increase costs more than it provides benefits to the 
fishing industry or the efficient management and monitoring of catches. 
Although finer scale strata would allow discard rates to more closely 
reflect actual discard rates of yellowtail flounder in different parts 
of Georges Bank, NMFS does not believe this measure would have any real 
benefits for sectors that could not be achieved with existing discard 
rate strata. A separate discard rate in statistical area 522 could 
benefit an individual vessel with a lower GB yellowtail flounder 
discard rate that would not be influenced by higher discards by other 
vessels in its sector fishing elsewhere on Georges Bank. However, the 
sector's fishing season on GB would still be limited by the total catch 
of GB yellowtail flounder by all its member vessels. A finer stratum 
would not eliminate the need for a sector to manage discards of 
yellowtail flounder by all its vessels on Georges Bank to prevent an 
early end to their fishing season.
    In contrast, the proposed measure could have real effects on the 
administrative burden for both NMFS and sectors that NMFS believes are 
not justified in light of the lack of real benefits from this measure. 
Some sector representatives and members of sectors raised these 
concerns in public comments on the Framework 48 proposed rule. Both 
sectors and NMFS would have to modify and reprogram quota monitoring 
programs and reports to accommodate the new strata, increasing the 
administrative burden for sector managers and NMFS, without any 
corresponding benefits for sectors, which could reduce efficiency 
inconsistent with National Standards 5 and 7. Some sectors have 
developed software to calculate and manage catch and compile sector 
weekly reports to NMFS. These sectors would have to retain programmers 
to reprogram this software to accommodate the new strata and method. 
The administrative burden to generate sector weekly reports could be 
even greater for sector managers that do not use software to compile 
their sector's reports, but rather calculate catch manually on a weekly 
basis. NMFS is also concerned about how this revised strata, combined 
with other changes to the discard rate method in FY 2013, will affect 
the variance of discard rates and thereby affect our ability to 
reliably estimate catch to ensure that overfishing is not occurring. 
Concerns that this measure could further complicate monitoring and 
increase uncertainty of catch estimates by creating an incentive to 
misreport catches of GB yellowtail flounder is also justified. There is 
a potential for this measure to create an incentive for sector vessels 
fishing inside and outside statistical area 522 without an observer to 
misreport GB yellowtail catch from outside area 522 as from inside area 
522 in order to get a lower discard rate, thereby jeopardizing NMFS's 
ability to ensure that catches are consistent with preventing 
overfishing and rebuilding fish stocks. This could potentially inflate 
area 522 GB yellowtail discard estimates and negate any benefit of this 
measure. Thus, out of concern that this measure could increase the 
uncertainty of catch estimates and the costs of monitoring and 
administration of sectors without any corresponding benefits to 
sectors, NMFS has disapproved this measure in Framework 48.

4. Requirement to Stow Trawl Gear While Transiting

    The regulations currently specify that fishing gear must be stowed 
in a specific way, as described at 50 CFR 648.23(b), when transiting 
closed areas to facilitate the enforcement of closed areas at sea. 
Framework 48 proposed to remove this requirement for only trawl vessels 
on a groundfish trip because the Council believed that these measures 
are no longer necessary with the use of the vessel monitoring system 
(VMS) on all limited access multispecies vessels.
    After consideration of public comments received on this measure, 
NMFS has disapproved this measure in Framework 48 and is maintaining 
the requirements for all vessels to stow their gear when transiting 
closed areas on the basis that it may lead to difficulties in detecting 
and prosecuting unlawful fishing in closed areas, which would undermine 
the effectiveness of these areas to achieve the objectives for which

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they were established as conservation and management measures in the 
FMP, including the protection of spawning and juvenile fish, habitat, 
and protected species. To the extent that closed areas were established 
to comply with sections 303(a)(1) and (7), and National Standard 9 of 
the Magnuson-Stevens Act to rebuild or ensure the long-term 
sustainability of fish stocks and fisheries, to minimize the adverse 
effects of fishing on habitat, or minimize bycatch of certain stocks or 
protected species, undermining these measures would be inconsistent 
with these provisions. This measure also would have been inconsistent 
with National Standard 4 of the Magnuson-Stevens Act requiring measures 
to be fair and equitable because it does not extend the safety benefits 
to other fisheries without a clear reason for doing so. There is 
insufficient justification in Framework 48 explaining why these 
measures were no longer necessary to enforce the prohibition on fishing 
in closed areas or why VMS data is a sufficient alternative. As the 
U.S. Coast Guard (USCG) noted in its comments on this measure, VMS is 
an effective tool to enforce closed areas when transiting is 
prohibited, but is not sufficient to document possible fishing activity 
in a closed area when transiting is allowed. The gear stowage 
requirements are designed to increase the time required to set and 
recover gear and hide fishing activity. The combination of gear stowage 
and VMS requirements are useful for prosecution of closed area 
incursions. Thus, NMFS and the USCG are seriously concerned that 
eliminating trawl gear stowage requirements for only groundfish vessels 
would undermine enforcement of the prohibition on fishing in closed 
areas and thereby the conservation benefits of closed areas. By 
eliminating the gear stowage requirements for only groundfish vessels, 
this measure would complicate enforcement for the USCG and enforcement 
personnel, and compliance with these requirements for vessels fishing 
in multiple fisheries, thereby potentially further undermining 
enforcement efforts. Abuse of this exemption by groundfish vessels or 
vessels participating in other fisheries without effective enforcement 
would undermine the conservation objectives of closed areas, which 
would undermine the goals and objectives of the FMP and the 
requirements of the Magnuson-Stevens Act for effective conservation and 
management measures to rebuild overfished stocks and to minimize the 
adverse effects of fishing on habitat. Although this measure would have 
some safety benefits, the proposed measure does not meet the criteria 
of a measure that reduces risk while meeting the needs of conservation 
and management, as required by National Standard 10. The Council also 
had available to it alternative modifications to the gear stowage 
requirements, recommended by its VMS/Enforcement Committee, that would 
have addressed safety issues for all vessels, while maintaining the 
integrity of gear stowage requirements for enforcement of the 
prohibition on fishing in closed areas. However, the Council chose to 
recommend these modifications only for other FMPs, and instead to 
eliminate the requirements entirely for groundfish trawlers, without 
addressing the continued need of these measures to satisfy requirements 
of the Magnuson-Stevens Act. For these reasons, NMFS has disapproved 
this measure in Framework 48.
    Although NMFS must disapprove this measure in Framework 48, NMFS 
does remain concerned about the safety risks of the existing trawl gear 
stowage requirements and believes these issues should be addressed for 
all vessels. NMFS believes that the modifications put forward by the 
Council's VMS/Enforcement Committee would address these safety issues, 
while meeting the needs of conservation and management. NMFS is 
considering initiating a separate rulemaking, working with both the New 
England and Mid-Atlantic Councils, which would propose modifications to 
the gear stowage requirements to make them safer for all vessels in all 
FMPs. The regulations at Sec.  648.23(b)(5) allow the Regional 
Administrator to specify a method of stowage in writing and in a 
Federal Register notice. NMFS believes that this approach would be the 
most expeditious method to address the safety issues as soon as 
possible, as opposed to a joint Council action.

5. Correction to Eastern U.S./Canada Quota Monitoring

    In the Framework 48 proposed rule, NMFS proposed a correction to 
the regulations governing fishing activity in the Eastern U.S./Canada 
Area under 305(d) authority of the Magnuson-Stevens Act based on its 
determination that the correction was needed to bring the measure into 
compliance with the perceived Council intent in Amendment 16. The 
regulations at Sec.  648.85(a)(3)(ii)(A) currently state that all catch 
of cod, haddock, and yellowtail flounder caught on a trip that fishes 
both inside and outside of the Eastern U.S./Canada Area shall apply to 
the U.S./Canada total allowable catches (TACs) (in the case of cod and 
haddock, the Eastern U.S./Canada TACs). This method for quota 
monitoring was implemented through Framework 42 as a precautionary way 
to estimate catch to ensure U.S./Canada TACs would not be exceeded, 
while allowing vessels the flexibility to fish both inside and outside 
the Eastern U.S./Canada Area on the same trip. Amendment 16 allocated 
each sector and the common pool a portion of the Eastern U.S./Canada 
TACs, but did not specifically address whether these allocations should 
still be monitored using the precautionary Framework 42 method. NMFS's 
perceived interpretation was that Amendment 16 intended statistical 
areas reported on VMS catch reports and vessel trip reports (VTRs) to 
be used to apportion catch to specific stock allocations. This is how 
NMFS has been monitoring sector and common pool catch of GB cod, 
haddock, and yellowtail since FY 2010. Despite being clear about NMFS's 
perceived interpretation in the Amendment 16 preamble, the original 
provision implemented by Framework 42 was inadvertently left in the 
regulations at Sec.  648.85(a)(3)(ii)(A) by the Amendment 16 final 
rule. In deeming the regulations to be consistent with the Amendment, 
however, the Council did not object to the old language, presumably 
because it reflected its actual intent, as confirmed by the Council's 
comments on this action. Through the Framework 48 proposed rule, NMFS 
proposed to revise the regulations to remove the text that states all 
cod, haddock, and yellowtail flounder on multi-area trips must be 
applied to Eastern U.S./Canada allocations.
    During the public comment period, NMFS received a letter from the 
Council opposing NMFS's proposed change to the regulations. The Council 
questioned NMFS's authority to make this change without explicit 
Council action, and asked NMFS to disapprove this change, particularly 
in light of continued concerns of misreporting of catches of Eastern GB 
stocks. At the request of the Council, NMFS is withdrawing this change 
to the regulations and will return to the Framework 42 method of quota 
monitoring because it reflects the Council's intent. Thus, for common 
pool vessels fishing both inside and outside the Eastern U.S./Canada 
Area, all catch of cod and haddock on that trip will be counted against 
the applicable Eastern U.S./Canada TAC. For sector vessels fishing both 
inside and outside the Eastern U.S./Canada Area, all catch of cod and 
haddock will be counted against its sector's allocations for Eastern GB 
cod and haddock. How GB

[[Page 26122]]

yellowtail flounder should be handled is less clear. Framework 42 and, 
subsequently, the regulations specify all yellowtail flounder caught on 
trips into the Eastern U.S./Canada area should be applied to the GB 
yellowtail flounder TAC. Based on a strict reading of Framework 42, 
yellowtail flounder caught on trips into the Western U.S./Canada Area 
and the Gulf of Maine or Southern New England would appear to be 
allocated according to the vessel's VTRs. At the time Framework 42 was 
developed trips limits were lower in the CC/GOM and SNE/MA yellowtail 
flounder stock areas and if a vessel fished in either area and the 
Georges Bank area the more restrictive trip limit applied. As a result, 
there was little incentive to fish in both the Western U.S./Canada Area 
and these other stock areas on the same trip. Although these incentives 
may have changed, this provision was not explicitly revised by 
Amendment 16, so NMFS believes it must only count all GB yellowtail 
flounder on trips into the Eastern U.S./Canada Area against the 
applicable U.S./Canada TAC, and yellowtail flounder on trips into the 
Western U.S./Canada Area would continue to be allocated according to 
the vessel's VTRs.
    It is also not clear how discard rates should be applied in these 
situations. At the time Framework 42 was developed, there were no 
sector-stock-gear specific discard rates and so Framework 42 and its 
implementing regulations did not address how these rates should be 
applied on trips into the Eastern U.S./Canada Area. Amendment 16 also 
did not provide any explicit guidance on this matter. Since the 
Framework 42 measure was intended to address possible misreporting of 
vessel-reported data, NMFS believes it is appropriate to apply observed 
discards and kept catch from these trips in the computation of discard 
rates according to the area fished as recorded in observer data. 
However, NMFS is still exploring how discard rates should be applied on 
unobserved trips.
    Amendment 16, and the regulations implementing Amendment 16 at 
Sec.  648.87(b)(1)(iii), requires that NMFS use all available 
information, including the Interactive Voice Response system (IVR), 
VTR, VMS, at the end of the fishing year to determine whether a sector 
exceeded any of its ACEs. NMFS must reconcile this measure with the 
requirement in Framework 42 to count all catch on trips into the 
Eastern U.S./Canada Area against U.S./Canada TACs. In absence of any 
explicit language in Amendment 16 as to how to handle this, NMFS 
believes it would be consistent with both provisions to count all cod, 
haddock, and yellowtail on trips declared into the Eastern U.S./Canada 
Area on VMS against the U.S./Canada TACs inseason for the purposes of 
determining whether the Eastern U.S./Canada Area should be closed, or 
that a sector has reached its ACE and must stop fishing. For the 
purposes of year-end reconciliation of sector catches, NMFS will use 
VMS activity data to determine whether a vessel that declared into the 
Eastern U.S./Canada Area actually may have fished there and catch from 
a trip with no VMS activity indicative of fishing in the Eastern U.S./
Canada Area would be reapportioned according to the vessel's VTRs. NMFS 
is still exploring what criteria should be used to define fishing 
activity from VMS data and is interested in public comment on this 
measure.
    Because these details were not available for the public to comment 
on in the Framework 48 proposed rule, NMFS is publishing this measure 
as an interim final rule and will be collecting additional public 
comment on it.

Approved Measures

    This section summarizes the Framework 48 measures NMFS has approved 
as consistent with goals and objectives of the NE Multispecies FMP, and 
the requirements of the Magnuson-Stevens Act and other applicable law. 
This section also contains corrections to inadvertent errors in the NE 
multispecies regulations, under the authority of section 305(d) of the 
Magnuson-Stevens Act, that are necessary to accurately and effectively 
implement the requirements of the NE Multispecies FMP.

6. Status Determination Criteria for GOM and GB Cod, and SNE/MA 
Yellowtail Flounder

    An assessment for SNE/MA yellowtail flounder was completed in June 
2012. New assessments were also completed for GOM and GB cod in 
December 2012. The results of both models accepted in the December 
2012, GOM cod assessment indicated that overfishing is occurring and 
the stock is overfished. In addition, the assessment for GB cod 
indicated that overfishing is occurring and the stock is overfished. 
The status of SNE/MA yellowtail flounder was less clear from the June 
2012 assessment. The assessment considered two recruitment scenarios 
that resulted in very different pictures about the stock's status, but 
favored the recent recruitment scenario, which indicated that the stock 
was not experiencing overfishing and was rebuilt. A more detailed 
discussion of the assessment for these three stocks can be found in 
Item 1 of the preamble of the proposed rule.
    NMFS has approved the proposed status determination criteria for 
these three stocks, because the results of these assessments represent 
the best scientific information available for management. Incorporating 
this information into the FMP will allow the specification of 
appropriate ABCs and ACLs and other management measures beginning in FY 
2013 to prevent overfishing, and continue rebuilding GOM and GB cod, as 
required by the Magnuson-Stevens Act. The final revised status 
determination criteria are presented in Table 1. Numerical estimates of 
these criteria are presented in Table 2. There are two sets of status 
determination criteria approved for GOM cod because two models were 
accepted at the benchmark assessment in December 2012, as described 
above. Although two assessment models were approved, there is only one 
numerical estimate for the maximum fishing mortality threshold for GOM 
cod.

          Table 1--Revised Status Determination Criteria for SNE/MA Yellowtail Flounder, GOM and GB Cod
----------------------------------------------------------------------------------------------------------------
                                                                    Minimum biomass          Maximum fishing
                Stock                       Biomass target             threshold           mortality threshold
----------------------------------------------------------------------------------------------------------------
SNE/MA yellowtail flounder...........  SSB40%MSP..............  \1/2\ Btarget..........  F40%MSP
GOM cod..............................  SSB40%MSP..............  \1/2\ Btarget..........  F40%MSP
GB cod...............................  SSB40%MSP..............  \1/2\ Btarget..........  F40%MSP
----------------------------------------------------------------------------------------------------------------
SSB = spawning stock biomass; MSP = maximum spawning potential; B = biomass; F = fishing mortality rate; MSY =
  maximum sustainable yield.


[[Page 26123]]


  Table 2--Numerical Estimates of the Revised Status Determination Criteria for SNE/MA Yellowtail Flounder, GOM
                                                   and GB Cod
----------------------------------------------------------------------------------------------------------------
                                                                                      Maximum
                                                                      Biomass         fishing
                              Stock                                 target (mt)      mortality       MSY (mt)
                                                                                     threshold
----------------------------------------------------------------------------------------------------------------
SNE/MA yellowtail flounder......................................           2,995            0.31             773
GOM cod (M=0.2 model)...........................................          54,743            0.18           9,399
GOM cod (Mramp model)...........................................          80,200  ..............          13,786
GB cod..........................................................         186,535            0.18          30,622
----------------------------------------------------------------------------------------------------------------

7. Status Determination Criteria for White Hake

    As discussed in Item 1 in the preamble of the Framework 48 proposed 
rule, a benchmark assessment for white hake was scheduled to be 
completed in February 2013, but the results of the assessment were not 
yet available at the time of proposed rule publication. This meant that 
NMFS could not propose new status determination criteria for white 
hake, even though the Council had recommended and analyzed updated 
status determination criteria in Framework 48 in case the assessment 
results became available in time for rulemaking. Thus, NMFS did not 
propose or solicit public comment on revised status determination 
criteria for white hake in the Framework 48 proposed rule, but 
indicated that it may take action at a later date based on the results 
of the assessment when they became available.
    The assessment summary report for Stock Assessment Review Committee 
(SARC) 56 was published on April 2, 2013 (http://www.nefsc.noaa.gov/publications/crd/crd1304/). The results indicate that the white hake 
stock is not overfished or subject to overfishing. The stock is 
estimated to have been at 83 percent of the rebuilding biomass target 
in 2011, the most recent year of data incorporated into the assessment. 
The stock remains under a formal rebuilding program with a rebuilding 
target date of 2014. Current stock projections from the SARC 56 
assessment indicate that the stock is projected to rebuild in 2014. The 
new stock status for white hake is a change from the previous benchmark 
assessment, conducted in 2008 as part of the Groundfish Assessment 
Review Meeting (GARM) III. The GARM III assessment indicated the white 
hake stock was both overfished and subject to overfishing. The SARC 56 
assessment determined that the change in stock biomass since 2007 is 
the result of low fishing mortality and near long-term average 
recruitment. More plainly stated, the changes are not the results of 
changes in the assessment model or methods, but reflective of the 
changes in the data that has been collected and integrated in the 
interim since the last benchmark assessment in 2008. Additional 
information regarding the February assessment data, peer review 
proceedings, and results can be found on the Northeast Fishery Science 
Center's (NEFSC) Web site: http://www.nefsc.noaa.gov/saw/.
    The results of SARC 56 represent the best scientific information 
available and a change from the results of the previous assessment 
available (GARM III). Because the Council included an alternative in 
Framework 48 to implement the results of SARC 56 for white hake in FY 
2013, NMFS is approving and implementing the revised status 
determination criteria for white hake through this final rule. Although 
NMFS did not propose these revisions in the proposed rule because they 
were not yet available, the Council specifically considered and 
analyzed possible scenarios resulting from the assessment and 
recommended updating the white hake status determination criteria for 
FY 2013. Although the public did not have prior opportunity to comment 
on these measures in the Framework 48 proposed rule, the Council's 
analysis was available for public comment throughout the Council 
process. In addition, the SAW/SARC is an open and public process, 
allowing the public and managers to participate and, frequently, to 
have an indication of the results before the assessment report is 
final. Nevertheless, to ensure there is opportunity for public comment 
on this new status determination criteria, NMFS is implementing this 
measure as an interim final rule and collecting public comment on it. 
NMFS will publish another final rule, if necessary, after considering 
additional public comment to finalize these criteria and respond to any 
public comments. Implementing revised status determination criteria 
through this final rule is necessary in order to incorporate the best 
scientific information available into the FMP to allow NMFS to 
implement an appropriate ABC and ACL for white hake in FY 2013.

 Table 3--Updated Status Determination Criteria and Numerical Estimates of the Status Determination Criteria for
                                                   White Hake
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Criteria:
    Biomass Target...................  Minimum Biomass           Maximum Fishing
                                        Threshold.                Mortality Threshold
    SSB40%MSP........................  \1/2\ Btarget...........  F40%MSP
Values:
    Biomass Target (mt)..............  Minimum Biomass           Maximum Fishing           MSY (mt)
                                        Threshold (mt).           Mortality Threshold.
    32,400...........................  16,200..................  0.20....................  5,630
----------------------------------------------------------------------------------------------------------------
SSB = spawning stock biomass; MSP = maximum spawning potential; B = biomass; F = fishing mortality rate; MSY =
  maximum sustainable yield.


[[Page 26124]]

8. SNE/MA Windowpane Flounder sub-ACLs

Scallop Fishery Sub-ACL

    NMFS has approved the allocation of a sub-ACL of SNE/MA windowpane 
flounder to the scallop fishery to better ensure that the ACL is not 
exceeded. The sub-ACL of SNE/MA windowpane flounder allocated to the 
scallop fishery would be 36 percent of the ABC. This allocation is 
based on the 90th percentile of scallop fishery catches (as a percent 
of the total catch) for calendar years 2001 through 2010. The scallop 
fishery's sub-ACL would be calculated by reducing the portion of the 
ABC allocated to the scallop fishery (sub-ABC) to account for 
management uncertainty. The management uncertainty buffer is determined 
each time the groundfish specifications are set. It is anticipated that 
AMs would be developed in a future management action during 2013 
through the Atlantic Sea Scallop FMP in time to be effective by the 
start of scallop FY 2014 (i.e., March 1, 2014), and would retroactively 
apply to account for any overage in FY 2013. If the scallop fishery 
exceeds its sub-ACL for SNE/MA windowpane in FY 2013, the AMs adopted 
in a future management action would be triggered. Also, similar to the 
measure adopted in Framework 47 for the scallop fishery's SNE/MA and GB 
yellowtail flounder sub-ACLs, the scallop fishery AM for SNE/MA 
windowpane flounder would only be triggered if the total ACL is 
exceeded and the scallop fishery's sub-ACL is also exceeded, or if the 
scallop fishery exceeds its sub-ACL by 50 percent or more.
    The total ACL for SNE/MA windowpane was exceeded by more than 100 
percent in FY 2010 and FY 2011, resulting in the ABC and overfishing 
level (OFL) being exceeded. In both years, total catch by sector and 
common pool vessels was below the common pool sub-ACL for this stock 
and arguably did not contribute to the overage of the total ACL. 
However, because the common pool fishery was the only fishery with a 
sub-ACL and an AM for this stock, the overage of the total ACL 
triggered an AM only for the common pool. On the other hand, catch by 
the ``other subcomponent'' fisheries alone, including the scallop and 
other fisheries, exceeded the ABC in FY 2010 and the OFL in FY 2011. 
The large overages in FY 2010 and FY 2011 demonstrate that an AM for 
the groundfish fishery alone is not sufficient to ensure that the ACL 
for this stock is not exceeded, because it is not responsible for the 
majority of catches. Creating a sub-ACL and, subsequently, an AM, for 
the scallop fishery, which accounted for more than 25 percent of the 
total catch in FY 2011 and almost 50 percent of the catch in FY 2010, 
would create accountability for those fisheries responsible for the 
greatest share of the catch and most likely to cause an overage. Thus, 
a sub-ACL for the scallop fishery would help prevent overfishing on 
SNE/MA windowpane flounder as required by the National Standard 1 and 
Section 303(a)(1) of the Magnuson-Stevens Act and create an incentive 
to minimize bycatch of this stock, consistent with National Standard 9.
    NMFS received comments on the proposed rule expressing concern that 
this measure does not maximize the overall net benefit to the nation or 
minimize adverse impacts to communities because it would substantially 
constrain scallop revenue. As further detailed in NMFS's responses to 
these comments later in this final rule, NMFS believes that this 
allocation to the scallop fishery balances the multiple factors taken 
into consideration in achieving optimum yield (OY), while complying 
with the other requirements of the Magnuson-Stevens Act and the goals 
and objectives of the FMP, including preventing overfishing, minimizing 
bycatch, and preserving a directed groundfish fishery. Economic, social 
and ecological factors contributed to the Council's allocation 
decisions for this sub-ACL. In addition to creating a greater incentive 
to minimize bycatch of SNE/MA windowpane flounder while maximizing the 
catch of scallops, as a fixed percentage of the ABC this measure 
ensures that allowable scallop catches of this stock adjust to 
increases or declines in the ABC and the relative health of the stock. 
This allocation is also consistent with historic catches and maintains 
historic participation in the SNE/MA windowpane flounder fishery, is 
fair and equitable, and prevents excessive accumulation of shares of 
this ABC by the scallop fishery as required by National Standard 4 and 
the goals of the FMP, because it is based on recent catch history as a 
proportion of the ABC. Although this allocation may constrain scallop 
catches in future years, depending upon the ABC, to favor the scallop 
industry by maximizing overall benefits to the nation would be 
inconsistent with National Standard 8 which requires that management 
measures must take into account importance of fishery resources to 
fishing communities in order to provide sustained participation of such 
communities in fishing and, to the extent practicable, minimize adverse 
impacts on such communities. For these reasons, NMFS has approved this 
measure through this final rule.

Other Sub-Components Sub-ACL

    NMFS has approved the allocation of a SNE/MA windowpane sub-ACL to 
the other sub-component fisheries. In addition to large catches of SNE/
MA windowpane flounder by the scallop fishery in recent years, other 
non-groundfish fisheries have accounted for approximately half of the 
total SNE/MA windowpane flounder catch in FY 2010 and FY 2011. Up until 
now, any overages of the total ACL caused by this component of the 
fishery have been applied only to the commercial groundfish fishery, 
the only fishery with a sub-ACL and AM for this stock. As a result, 
there have been no measures in place to constrain catches of SNE/MA 
windowpane flounder by other non-groundfish vessels, which has 
undermined the effectiveness of the ACL and AM for this stock. By 
adopting a sub-ACL and, subsequently, an AM for these other fisheries, 
those fisheries responsible for the majority of catches in recent years 
would be held accountable for any overages they cause of the ACL for 
this stock. This measure creates accountability for those fisheries 
most likely to cause an overage, and thereby reduces the risk of 
overfishing. The specific amount of this sub-ACL for FY 2013-2015 was 
proposed in Framework 50 and will be published in the final rule for 
that action. The amount of this allocation would be specified each time 
catch limits are set. This administrative measure makes it possible to 
adopt an AM that applies to those non-groundfish fisheries that fish 
with gear responsible for most of the catch of this stock by the 
``other'' sub-component. The AM for SNE/MA windowpane flounder that 
would apply to commercial vessels is described in Item 12 of this 
preamble.

9. Scallop Fishery Sub-ACL for GB Yellowtail Flounder

    NMFS has approved the revised sub-ACL of GB yellowtail flounder for 
the scallop fishery proposed in Framework 48. In preparation for a 
transition to FY 2014, 40 percent of the U.S. ABC for GB yellowtail 
flounder would be allocated to the scallop fishery in FY 2013 only. In 
FY 2014 and each year after, 16 percent of the U.S. ABC for this stock 
would be allocated to the scallop fishery to better reflect its 
historical portion of total catch of GB yellowtail flounder and to 
provide more predictability. The scallop fishery sub-ACL would be 
calculated by reducing the scallop fishery's portion of the ABC (sub-
ABC)

[[Page 26125]]

to account for management uncertainty. The scallop fishery sub-ACL for 
FY 2013 based on the U.S. ABC for GB yellowtail flounder was proposed 
in the Framework 50 proposed rule and the final sub-ACL will be 
published in the final rule for that action. NMFS would still re-
estimate the expected scallop fishery catch of GB yellowtail flounder 
for the current fishing year by January 15. If the scallop fishery is 
projected to catch less than 90 percent of its GB yellowtail flounder 
sub-ACL, the Regional Administrator may reduce the scallop fishery sub-
ACL to the amount projected to be caught, and increase the groundfish 
fishery sub-ACL by any amount up to the amount reduced from the scallop 
allocation. Overages will be calculated based on the revised sub-ACLs 
for the commercial groundfish fishery and the scallop fishery, and any 
applicable AMs would be triggered. Framework 48 also clarified that the 
overage payback for any overage of the U.S. TAC, as required by the 
Transboundary Resource Sharing Understanding, would be deducted from 
the sub-ACL for the fishery component that caused the overage.
    This measure simplifies the specification of the scallop fishery's 
GB yellowtail flounder allocation each year by basing it formulaically 
on a fixed percentage of the ABC. This would provide stability for both 
the scallop and groundfish fisheries by creating a more predictable 
allocation scheme. NMFS received comments on the proposed rule 
expressing concern that this measure does not maximize the overall net 
benefit to the nation or minimize adverse impacts to communities 
because it would substantially constrain scallop revenue. As discussed 
in NMFS's response to these comments later in this final rule, NMFS 
believes that this allocation to the scallop fishery balances the 
multiple factors taken into consideration in achieving OY, while 
complying with the other requirements of the Magnuson-Stevens Act and 
the goals and objectives of the FMP, including preventing overfishing, 
minimizing bycatch, and preserving a directed groundfish fishery. 
Economic, social and ecological factors concerning the FMP's goals of 
preserving fishing opportunities for groundfish vessels, minimizing 
negative impacts on fishing communities, and reducing bycatch of 
groundfish stocks, contributed to the Council's allocation decisions 
for this sub-ACL and the SNE/MA windowpane flounder sub-ACLs. 
Allocating a fixed percentage of the ABC to the scallop fishery would 
create a greater incentive to avoid yellowtail flounder while 
maximizing the catch of scallops, than an allocation based on projected 
catch. A fixed percentage of the ABC also ensures that allowable 
scallop catches of GB yellowtail flounder adjust to increases or 
declines in the ABC and the relative health of the stock, compared to a 
method based on projected catch. This allocation is also consistent 
with historic catches and maintains historic participation in the 
yellowtail flounder fishery, is fair and equitable, and prevents 
excessive accumulation of shares of this ABC by the scallop fishery as 
required by National Standard 4 and the goals of the FMP, because it is 
based on recent catch history as a proportion of the ABC. Although this 
allocation may constrain scallop catches in future years, depending 
upon the ABC, to favor the scallop industry by maximizing overall 
benefits to the nation would be inconsistent with National Standard 8 
which requires that management measures must take into account 
importance of fishery resources to fishing communities in order to 
provide sustained participation of such communities in fishing and, to 
the extent practicable, minimize adverse impacts on such communities. 
For these reasons, NMFS has approved this measure through this final 
rule.

10. Small-Mesh Fisheries sub-ACL for GB Yellowtail Flounder

    NMFS has approved a sub-ACL of GB yellowtail flounder for small-
mesh fisheries. Small-mesh bottom trawl fisheries are defined as 
vessels fishing with bottom otter trawl gear with a codend mesh size of 
less than 5 inches (12.7 cm). These vessels fishing on Georges Bank 
typically target whiting and squid. Small-mesh fisheries would be 
allocated 2 percent of the U.S. ABC for GB yellowtail flounder each 
year, after a reduction for management uncertainty. Each time the 
groundfish specifications are set, the management uncertainty buffer 
necessary for these small-mesh fisheries would be determined. If the 
small-mesh fisheries catch of GB yellowtail flounder exceeds the sub-
ACL, the pertinent AMs would be triggered. There was not sufficient 
time to develop specific AMs in this action and allow for collaboration 
with the respective FMPs and the Mid-Atlantic Council (e.g., Atlantic 
Mackerel, Squid, and Butterfish; Small-Mesh Multispecies). Although a 
sub-ACL for FY 2013 was needed because of the expected reduction in the 
GB yellowtail flounder ABC in FY 2013, the Council reasoned that 
allowing additional time to work with these respective FMPs to develop 
AMs would not increase the risk of an overage in FY 2013, as long as 
the AMs are developed as soon as possible and applied retroactively to 
be effective for any overage in FY 2013. The small-mesh fisheries have 
not previously caused an overage of the GB yellowtail flounder ACL, so 
the situation was deemed less urgent than for SNE/MA windowpane 
flounder.
    Prior to Framework 48, the quota for GB yellowtail flounder has 
been allocated to only the commercial groundfish and scallop fisheries. 
Although small-mesh fishery catches of GB yellowtail flounder have 
generally been less than 100 mt in recent years, the U.S. ABC for the 
stock has been declining. As a result, the small-mesh fishery catches 
account for an increasing percentage of the total U.S. catch. 
Allocating a sub-ACL and, subsequently, creating an AM for these 
fisheries would help ensure that small-mesh fishery catches would be 
constrained and prevent overages of the annual quota, thereby reducing 
the risk of overfishing, consistent with the requirements of National 
Standard 1 and section 303(a)(1) of the Magnuson-Stevens Act. In 
addition, because GB yellowtail flounder is jointly managed with 
Canada, keeping U.S. catches within the U.S. TAC is important to 
achieve the management and conservation objectives of the 
Understanding. This measure would also further the goals and objectives 
of the FMP and National Standard 9 to minimize bycatch to the extent 
practicable, by creating an incentive for small mesh fisheries to 
reduce bycatch of this stock. A sub-ACL for small-mesh fisheries, and 
associated AMs, would help ensure the component of the fishery that 
causes an overage would be held accountable. This measure would also 
likely prevent inequities that would occur if the commercial groundfish 
and scallop fisheries were held accountable for overages caused by the 
small-mesh fisheries.

11. Recreational Fishery AM

    Framework 48 proposed to revise the recreational AM so that the 
Regional Administrator may proactively adjust recreational management 
measures to ensure the recreational fishery will achieve, but not 
exceed, its sub-ACL. The recreational fishery currently only has a sub-
ACL for GOM cod and for GOM haddock. To the extent possible, any 
changes to the recreational management measures would be made prior to 
the start of the fishing year and adopted through procedures consistent 
with the Administrative Procedure Act (APA). In addition, the Regional

[[Page 26126]]

Administrator would consult with the Council, or the Council's 
designee, and would tell the Council, or its designee, what 
recreational measures are under consideration for the upcoming fishing 
year. If time allows, the Council would also provide its Recreational 
Advisory Panel (RAP) an opportunity to meet and discuss the proposed 
management measures. These AMs require development in consultation with 
the Council, because the appropriate suite of measures (e.g., bag 
limit, minimum fish size, season) depends on the ACL specified. A 
default suite of measures are not automatically triggered, because the 
sub-ACL and, thus, appropriate measures to achieve that sub-ACL, may 
differ between years. Similar to trip limits for the commercial common 
pool fishery, a certain suite of measures are projected to achieve a 
certain catch. To select the appropriate suite of measures, the ACL for 
the fishing year in which they will be used must be known in order to 
ensure the projected catch does not exceed the target. The Council 
provided guidance on its preference of measures that NMFS should 
consider if additional recreational effort controls are necessary to 
reduce GOM cod or GOM haddock catches, though this guidance does not 
restrict NMFS's discretion in selecting management measures that would 
best achieve, but not exceed, the recreational sub-ACL. If additional 
effort controls are necessary to reduce cod catches, the Council's non-
binding preference is that NMFS first consider increases to minimum 
fish sizes, then adjustments to seasons, followed by changes to bag 
limits. If additional effort controls are necessary to reduce haddock 
catches, the Council's non-binding preference is that NMFS first 
consider increases to minimum size limits, then changes to bag limits, 
and adjustments to seasons last.
    NMFS has approved this measure in Framework 48 because it would 
improve accountability in the recreational fishery. Currently, the 
recreational fishery AM only allows the Regional Administrator to 
change recreational measures if an ACL is exceeded. In addition, due to 
the delay in availability of recreational catch data at this time, AMs 
can only be implemented late in the year following an overage, at the 
start of the next recreational fishing season. This measure also gives 
NMFS and the Council the ability to adapt to changing fishery 
conditions, by evaluating recreational measures before the start of the 
fishing year to ensure those measures facilitate a target catch 
consistent with the sub-ACLs specified for the recreational fishery. 
This would help prevent overages of the recreational sub-ACL, and 
prevent substantial underharvests of the recreational sub-ACL. In 
addition, the requirement for NMFS to consult with the Council while 
developing measures allows increased opportunity for public comment, 
and provides states more opportunity to coordinate their recreational 
measures with NMFS.
    Through the Framework 50 proposed rule, NMFS proposed and collected 
public comments on adjustments to recreational measures for FY 2013. 
Final recreational measures for FY 2013 will be announced in the final 
rule for that action.

12. Commercial Groundfish Fishery AMs

Change to AM Timing for Non-Allocated Stocks

    NMFS has approved the revised timing for commercial groundfish 
fishery AMs for stocks not allocated to sectors (GOM/GB windowpane 
flounder, SNE/MA windowpane flounder, ocean pout, Atlantic halibut, 
Atlantic wolffish, and SNE/MA winter flounder), to improve the 
effectiveness of AMs adopted through Frameworks 47 and 48 for these 
stocks. Prior to this action, the AMs for these stocks would be 
implemented in the second year following an overage of the total ACL. 
For example, if the total ACL for ocean pout was exceeded in Year 1, 
the AM would be implemented in Year 3. However, this delay may not be 
needed in all cases. For example, fishery-dependent data is available 
in almost real time in the commercial groundfish fishery. If 
information was available during Year 1 that the commercial groundfish 
fishery had exceeded the overall ACL for ocean pout, under the current 
system an AM would still not be implemented until Year 3. This action 
revises the timing for these AMs, so that if reliable information is 
available during the fishing year (Year 1) that shows the total ACL has 
been exceeded, as in the example above, the respective AM for the stock 
would be implemented at the start of the next fishing year (Year 2). 
After the AM is implemented, if updated catch information shows that 
the total ACL was not exceeded, the AM would be rescinded consistent 
with the APA. This measure increases the effectiveness of the AM and 
would help prevent overfishing in consecutive years, consistent with 
the requirements of National Standard 1 of the Magnuson-Stevens Act.
    The Council, as well as commenters on the Framework 48 proposed 
rule, expressed concerns that final catch data for the non-allocated 
stocks, which include catch from state waters and non-groundfish 
fisheries, could not be reliably available in time to trigger an AM in 
Year 2, or earlier. NMFS has heard the Council and industry's concerns 
with respect to the availability of data, and believes this measure 
balances the need for effective AMs with the need for stability in 
order for fishing businesses to plan for the upcoming fishing year. 
This action modifies the timing of the AMs so that should reliable 
information be available (e.g., the commercial groundfish fishery 
catches exceed the total ACL for a stock) the AM could be implemented 
more quickly. However, to provide stability for groundfish vessels, any 
applicable AMs for the non-allocated stocks would only be implemented 
at the start of a fishing year.
    The Framework 48 proposed rule stated that if this measure was 
approved and implemented on or before May 1, 2013, and reliable 
information shows that the total ACL for a non-allocated stock is 
exceeded in FY 2012, then the respective AM would be implemented on May 
1, 2013, for sector and common pool vessels. NMFS has reviewed 
available catch information as of April 16, 2013 and determined that, 
based on reliable catch information, the overall ACLs for these stocks 
have not been exceeded. Thus, none of the non-allocated stock AMs will 
be implemented for sector and common pool vessels in FY 2013. For this 
determination, NMFS considered commercial groundfish catches calculated 
from the Data Matching and Imputation System (DMIS) reliable due to the 
near real-time availability to estimate discards. To estimate 
commercial scallop fishery catches, NMFS used audited and preliminary 
observer data and fleet-wide scallop data from DMIS through February 
28, 2013. NMFS determined this information to be reliable based on the 
near real-time availability of observer data to estimate discard rates 
in the scallop fishery. NMFS continues to make improvements to its data 
collection programs to improve the timeliness of data, and would 
evaluate the reliability of this information for making such 
determinations on an annual basis. Area-Based AMs for Atlantic Halibut, 
Atlantic Wolffish, and SNE/MA Winter Flounder.
    NMFS has approved the proposed area-based AMs for Atlantic halibut, 
Atlantic wolffish, and SNE/MA winter flounder through this final rule. 
If the

[[Page 26127]]

total ACL is exceeded for any of these stocks by an amount greater than 
the management uncertainty buffer, gear restrictions would be triggered 
in designated areas that have been identified as hotspots for catches 
of these stocks. For overages of the Atlantic halibut and Atlantic 
wolffish ACLs, trawl vessels would be required to use approved 
selective gear, and sink gillnet and longline vessels would not be 
allowed to fish in the applicable AM area. For overages of the SNE/MA 
winter flounder ACL, only trawl gear would be restricted in the 
applicable AM area. As previously adopted in Framework 47, possession 
of non-allocated stocks would also be prohibited at all times, except 
for Atlantic halibut, which would be reduced from one fish per trip to 
zero if the total ACL is exceeded by an amount greater than the 
management uncertainty buffer. Approved selective trawl gears include 
the separator trawl, Ruhle trawl, mini-Ruhle trawl, rope trawl, and 
other gear authorized by the Council in a management action or approved 
for use consistent with the process defined in Sec.  648.85(b)(6). 
Currently, the effective management uncertainty buffer at the overall 
ACL level is 3-7 percent for non-allocated stocks, depending upon the 
stock. The management uncertainty buffer can be changed each time 
groundfish specifications are set. Because these AM areas are designed 
to account for an ACL overage of up to 20 percent, if the total ACL is 
exceeded by 20 percent or more for one of these stocks, the AM would 
still be implemented, but the measure would be reviewed by the Council 
in a future management action. In addition, should a sub-ACL be 
allocated to other fisheries in a future action, and AMs developed for 
those fisheries, the AM for any fishery would be implemented only if 
the total ACL for the stock is exceeded, and the fishery also exceeds 
its sub-ACL. A detailed description of the development of these 
measures was included in Item 6 of the Framework 48 proposed rule and 
is not repeated here.
    Note that Framework 50 allocates SNE/MA winter flounder to the 
groundfish fishery and allows landings beginning in FY 2013. Thus, 
sector-specific inseason AMs will apply for any overage from a sector's 
allocation in the next fishing year, and this area-based AM will apply 
only to common pool vessels if the common pool exceeds its sub-ACL for 
the stock.
    NMFS has approved this measure because it creates effective 
reactive AMs to help prevent overfishing and ensures accountability in 
the commercial groundfish fishery. Proactive AMs implemented by 
Amendment 16 and Framework 47 were intended to prevent ACLs from being 
exceeded. However, reactive AMs are necessary to correct or mitigate 
overages of ACLs if they occur, as explained in the U.S. District Court 
of Appeals decision in Oceana v. Locke et al., which found that the 
lack of sector-specific reactive AMs for the non-allocated stocks 
violated the Magnuson-Stevens Act. These measures are necessary to 
prevent overfishing of non-allocated stocks by adjusting fishery 
measures to reduce the likelihood that an ACL is exceeded in 
consecutive years. These reactive AMs are also necessary to address a 
remand by the Court as a result of that litigation, and to be 
consistent with the National Standard 1 guidelines.
    Commenters on the proposed rule expressed concern that these AMs 
are triggered effectively by an overage of the ABC as opposed to the 
ACL. As NMFS explained in the proposed rule, this trigger level is an 
artifact of how the AMs were designed and not out of any intent to 
provide additional buffers before an AM is triggered. The PDT was not 
able to design an AM that could account for such a small overage of 1-3 
percent that would not be easily undermined by a shift of effort to 
other areas. Furthermore, NMFS considers this to be an issue of 
semantics and one that does not violate the National Standard 1 
guidelines. Defining the trigger as an overage greater than the 
management uncertainty is in concept the same as establishing an annual 
catch target (ACT) and a higher ACL (e.g., an ACL set equal to the ABC) 
that serves as the trigger for AMs, an approach which is allowed under 
National Standard 1 guidelines.
    Commenters were also concerned about the lack of automatic measure 
adjustment that would account for overages larger than 20 percent of 
the ACL. NMFS maintains that these AMs are to account for possible 
overages by non-groundfish fisheries shown to have de minimis catches 
of groundfish. It is not expected that these components themselves are 
likely to exceed the sub-ACL by more than 20 percent, particularly with 
the continued implementation of proactive AMs that appear to have been 
effective at constraining catch below the ACLs in recent years. If zero 
possession continues to be an effective proactive AM, the reactive AM 
will likely not be triggered.

Revised AM for SNE/MA Windowpane Flounder

    NMFS has approved the revised AM for SNE/MA windowpane flounder in 
this final rule. The revised AM now applies to the groundfish fishery 
and the other sub-component fisheries, which have been allocated a sub-
ACL of SNE/MA windowpane flounder through this action (see Item 8 in 
this preamble). If the total ACL for this stock is exceeded by an 
amount greater than the management uncertainty buffer, and the ``other 
sub-component'' sub-ACL is also exceeded, then the area-based AM, 
described above, would apply to all trawl vessels using a codend with a 
mesh size of 5 inches (12.7 cm) or larger.
    Prior to Framework 48, the AM for SNE/MA windowpane flounder only 
applied to commercial groundfish vessels. However, the commercial 
groundfish fishery has typically accounted for less than 25 percent of 
the total SNE/MA windowpane flounder catch in recent years. A large 
portion of the total SNE/MA windowpane flounder catch is caught by 
trawl vessels in non-groundfish fisheries fishing with mesh size of 5 
inches (12.7 cm) or greater. Thus, the current AM may not effectively 
restrict catches of this stock if the total ACL is exceeded, which 
increases the likelihood of consecutive overages in future fishing 
years. This revision helps ensure that, in the event of an overage, 
catches would be effectively restricted to prevent overfishing. In 
addition, this action would remove potential inequities that could 
occur if only the commercial groundfish fishery was subject to an AM 
for SNE/MA windowpane flounder, even though its catches represent a 
small portion of the total catch for this stock.
    As implemented in Framework 47, the area-based AM for commercial 
groundfish vessels is triggered only if the commercial groundfish 
fishery exceeds its sub-ACL and the total ACL is also exceeded by an 
amount greater than the management uncertainty buffer. Similarly, the 
scallop fishery's AM is triggered only if the total ACL is exceeded and 
the scallop fishery sub-ACL is also exceeded. This ensures that each 
fishery is only accountable for any overages it caused and not those 
caused by any other fishery with a sub-ACL of this stock.
    As discussed in the previous section, commenters on the proposed 
rule expressed concern that non-allocated stock AMs are triggered 
effectively by an overage of the ABC as opposed to the ACL, and that 
these AMs do not have

[[Page 26128]]

automatic adjustments sufficient to cover an overage of more than 20 
percent of the ACL. As NMFS explains above and in the response to these 
comments, the smallest effective AM the PDT could design accounts for 
at the least 5 percent of the ACL. Furthermore, NMFS considers this to 
be an issue of semantics and one that does not violate the National 
Standard 1 guidelines. Defining the trigger as an overage greater than 
the management uncertainty is in concept the same as establishing an 
ACT and a higher ACL that serves as the trigger for AMs, an approach 
which is allowed under the National Standard 1 guidelines. NMFS also 
believes that these AMs are sufficient, because fisheries in the other 
sub-component are shown to have de minimis catches of groundfish. It is 
not expected that these components themselves are likely to exceed the 
ACL by more than 20 percent, given that the sub-ACL is based on 
estimated catch and an additional sub-ACL is being specified to 
constrain the catch of the scallop fishery.

Revised Handgear Permit AMs

    The revised handgear AMs are approved through this final rule. This 
measure exempts Handgear A and Handgear B permits from the white hake 
trimester TAC AM. This exemption would remain effective unless a future 
action modified this AM. Handgear A and B common pool vessels would 
still be subject to the trimester TAC for cod, haddock, and pollock. 
This measure also authorizes the Regional Administrator to exempt 
Handgear A and Handgear B common pool vessels from the trimester TAC 
provisions for other stocks if catch by these vessels is less than 1 
percent of the total common pool catch of that species or stock. This 
determination would be made prior to the start of the fishing year, and 
would be implemented through procedures consistent with the APA.
    Currently, all common pool vessels, including vessels using 
handgear, are subject to trimester TACs for allocated stocks. When 90 
percent of the trimester TAC for a stock is projected to be caught, the 
area where the stock is predominately caught will be closed for the 
remainder of the trimester to gear capable of catching that stock. The 
common pool trimester TAC AMs were designed to apply only to gear types 
that caught the pertinent stock. Prior to this action, hook gear was 
subject to the trimester TAC provisions for cod, haddock, white hake, 
and pollock, although hook gear has been shown to very rarely catch 
white hake, making up less than 1 percent of the total common pool 
catch of this stock each year. Thus, NMFS has approved this measure 
because it maintains the original purpose of these inseason AMs while 
providing flexibility to small, handgear vessels that are not 
responsible for much catch of this stock. In addition to the exemption 
for white hake approved through this final rule, this measure allows 
modifications to other trimester TAC AMs in the future, should new 
information become available that shows handgear vessels rarely catch a 
stock or species, or the combined catch of these vessels is less than 1 
percent of the total common pool catch. This would increase the 
effectiveness of the common pool AMs, and would prevent potential 
inequities that may occur by applying an AM to vessels not responsible 
for catching, or exceeding, a trimester TAC.

13. Commercial Fishery Minimum Fish Sizes

    NMFS has approved the reductions to the minimum fish sizes for 
several groundfish stocks to reduce regulatory discards and increase 
revenue from catch. The new minimum sizes are listed in Table 4. In the 
groundfish fishery, all catch, including landings and discards, are 
counted against ACLs. Commercial discards for most stocks are assumed 
to have 100-percent mortality, so 100 percent of discards for these 
stocks are deducted from quota allocations; thus, discards are lost 
revenue for groundfish vessels. Reducing the minimum size for several 
groundfish stocks would reduce waste and allow the commercial industry 
to recoup some revenue from fish that would otherwise be discarded. 
This small amount of additional revenue may help the groundfish 
industry cope with the substantial reductions in catch limits expected 
in FY 2013.

   Table 4--Changes to Minimum Fish Sizes Limits for Groundfish Stocks
------------------------------------------------------------------------
                                  Current Size       Proposed FW 48 Size
           Species                  (inches)              (inches)
------------------------------------------------------------------------
Cod.........................  22 (55.9 cm)........  19 (48.3 cm)
Haddock.....................  18 (45.7 cm)........  16 (40.6 cm)
Pollock.....................  19 (48.3 cm)........  No change
Witch flounder (gray sole)..  14 (35.6 cm)........  13 (33 cm)
Yellowtail flounder.........  13 (33.0 cm)........  12 (30.5 cm)
American plaice (dab).......  14 (35.6 cm)........  12 (30.5 cm)
Atlantic halibut............  41 (104.1 cm).......  No change
Winter flounder (blackback).  12 (30.5 cm)........  No change
Redfish.....................  9 (22.9 cm).........  7 (17.8 cm)
------------------------------------------------------------------------

    NMFS received several comments on the Framework 48 proposed rule 
expressing concern that the revised minimum sizes may increase 
targeting and bycatch of small fish and impact the rebuilding of 
groundfish stocks. As discussed in the proposed rule, the Framework 48 
EA, and in the response to comments, the biological impacts that might 
result from these new minimum fish sizes depend on whether selectivity 
in the fishery shifts to smaller fish and whether catch limits are 
adjusted to account for a shift, which cannot be accurately predicted. 
Although difficult to predict, it is possible that decent prices for 
smaller size classes of fish could incentivize the targeting of smaller 
fish at the new minimum size. According to analysis in Framework 48, 
this is most likely to occur for yellowtail flounder, for which there 
is little difference in price between size classes and a simple change 
in the type of codend used can modify the size of fish caught. However, 
the revised minimum size is only an inch smaller than the existing 
minimum size and still above the length at 50-percent maturity for this 
stock. Analysis in Framework 48 for CC/GOM yellowtail flounder showed 
that a shift in selectivity by one year without a corresponding change 
in ABCs would result in a rebuilding time that is almost the same and a 
higher probability of overfishing. However, if the change in 
selectivity is detected and ABCs are revised, these potential impacts 
are mitigated. In light of these concerns,

[[Page 26129]]

and at the request of the Council, NMFS is exploring ways to monitor 
the length frequency of catch in the commercial groundfish fishery 
beginning in FY 2013 to see if a change in selectivity could be 
detected. If such an analysis could be completed, NMFS could use this 
information to advise the Council if adjustments should be considered 
in a future action.
    The Massachusetts Division of Marine Fisheries (MADMF) submitted a 
comment on the proposed rule raising concerns that if these measures 
are approved and state agencies do not follow suit, sector vessels 
would be forced to discard fish that do not meet the state minimum fish 
size in violation of the federal requirement for them to retain all 
fish of legal size. NMFS is also concerned about discrepancies between 
state and federal minimum fish sizes complicating compliance and 
enforcement of this measure. If a state does not make corresponding 
adjustments to fish sizes, vessels could land their catch in other 
states' ports. NMFS does not favor this result and the impacts it would 
have on the non-conforming state, and, for that reason strongly urges 
all affected states to match these size reductions. To address this 
concern, NMFS is delaying the effective date of these new minimum sizes 
to July 1, 2013, to allow state agencies additional time to consider 
and make corresponding adjustments to their minimum sizes.

14. Sector Monitoring Programs

Eliminate Dockside Monitoring

    NMFS has approved the elimination of dockside monitoring 
requirements for the groundfish fishery. Amendment 16 required sectors 
and the common pool to implement a dockside monitoring program to 
validate dealer-reported landings beginning in FY 2010 and 2012, 
respectively. Framework 45 delayed the implementation of these 
requirements after only a year until FY 2013. Like at-sea monitoring, 
the Council is concerned about the industry's ability to support this 
cost burden in FY 2013 and in future years, particularly in light of 
concerns about its utility, and proposed eliminating the dockside 
monitoring program altogether through Framework 48.
    NMFS approved this measure because it believes that dealer 
reporting combined with dockside intercepts by enforcement personnel 
are sufficient to ensure reliable landings data at this time. Dealer-
reported fish weights are used as the principle source to monitor 
commercial landings. Thus, dockside monitor reports, which verify 
dealer-recorded weights, are somewhat redundant. Random dockside 
intercepts by enforcement personnel, facilitated by trip-end hails, 
provide a deterrent against misreporting of catch and illegal landings. 
In addition, eliminating the program would reduce costs and potentially 
increase the profitability of the commercial industry in future years.
    It was not clear from Framework 48 whether eliminating the dockside 
monitoring program included removing the current dockside monitoring 
hail requirements. NMFS proposed maintaining hail requirements in the 
Framework 48 proposed rule, because they facilitate the monitoring and 
enforcement of sector operations and landings. NMFS did not receive any 
comments from the Council or members of the public opposing this 
proposal, thus NMFS concludes that it is justified in maintaining the 
hail requirements at this time. These hails will be a useful tool for 
both NMFS and sector managers to monitor sector vessels' activities, 
including the use of certain sector exemptions, and to facilitate 
dockside intercepts by enforcement personnel. NMFS is also clarifying 
the regulatory text of this proposed rule at Sec.  648.10(k)(1), 
consistent with Framework 45, so that hails may be modified in the 
future to be streamlined with other reporting requirements that collect 
similar fishery data, such as VTRs and VMS catch reports.

Sector Monitoring Goals and Performance Standard

    NMFS has approved the proposed revisions to the goals and 
objectives, and performance standard, established for sector monitoring 
programs and, relying in part on section 305(d) of the Magnuson-Stevens 
Act, implements new regulatory text to reflect these revised goals and 
objectives and ensure they are carried out in a manner consistent with 
the Act. Amendment 16 did not lay out explicit goals for sector 
monitoring, but described several general purposes for the programs, 
including to provide accurate estimates of sector catch and to verify 
area and gear fished, to ensure sector allocations are not exceeded. 
The lack of well-defined goals and purposes for sector monitoring 
requirements has led to confusion about how to implement these 
requirements and has hindered efforts to improve them. This measure and 
its implementing regulatory text clarify and elaborate on the goals and 
objectives for existing and future groundfish monitoring programs to 
help the Council and NMFS to implement monitoring requirements 
consistent with the goals of the FMP and to evaluate these programs in 
the future. More explicit goals and objectives would also assist NMFS 
and the sectors in designing and evaluating proposals to satisfy 
monitoring requirements in sector operations plans, ensuring the 
reliability of catch estimates and accountability of catches. The new 
goals and objectives include that groundfish monitoring programs 
improve documentation of catch, determining total catch and effort of 
regulated species, and achieve a coverage level sufficient to minimize 
effects of potential monitoring bias to the extent possible, while 
enhancing fleet viability. Monitoring programs should also reduce the 
cost of monitoring, streamlining data management and eliminating 
redundancy, exploring options for cost-sharing, while recognizing the 
opportunity costs of insufficient monitoring. Other goals and 
objectives include incentivizing reducing discards, providing 
additional data streams for stock assessments, reducing management and/
or biological uncertainty, and enhancing the safety of the monitoring 
program. It is also an explicit goal of such programs to periodically 
evaluate them for effectiveness. The complete list of goals and 
objectives for groundfish monitoring programs is specified in the NE 
multispecies regulations at Sec.  648.11(l) and in Framework 48.
    Amendment 16 specified a performance standard that coverage levels 
must be sufficient to at least meet the coefficient of variation (CV) 
specified in SBRM (a CV of 30 percent), but was unclear as to what 
level the CV standard is to be applied to--discard estimates at the 
stock level for all sectors, or for each combination of sector and 
stock. This has resulted in a lack of specific direction and 
specification about the appropriate coverage level needed to 
``accurately monitor sector operations.'' This measure in Framework 48 
clarifies that the CV standard is intended to apply to discard 
estimates at the overall stock level for all sectors combined. As 
discussed in NMFS's response to comments on this measure, the Council 
and NMFS believe this level is sufficient as a minimum standard for 
monitoring sector ACEs, consistent with the goals of Amendment 16 and 
the FMP. Amendment 16 specified that coverage levels should be less 
than 100 percent, which requires that the discard 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

[[Page 26130]]

fishing activities are consistent with National Standard 1 requirements 
to prevent overfishing while achieving on a continuing basis optimum 
yield from each fishery. NMFS's analysis of CVs achieved at the sector-
stock level using a performance standard at the stock level showed that 
the vast majority of ACE level catch figures achieved a CV of 30 
percent or better. This examination revealed 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. A report of this 
analysis is available at: http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/FY2013_Multispecies_Sector_ASM_Requirements_Summary.pdf Discards are only a portion of total catch, thus the 
majority of catch estimates are based on landings information, which is 
obtained by dealer reported data, verified by VTRs, and sector weekly 
reports. In addition, NMFS and sector managers engage in an extensive 
reconciliation process to quality assure and quality check data streams 
used to estimate and monitor sector catch toward ACEs. To further guard 
against possible uncertainty in these estimates resulting in an overage 
at the ACL level, substantial management uncertainty buffers are 
established before the ACL and sub-ACLs are allocated. Based on this 
analysis, we concluded that a CV standard at the stock level provides 
coverage rates that are sufficiently reliable to monitor sector ACEs. 
Thus NMFS has approved this measure in Framework 48.
    NMFS will use this standard to help determine the minimum coverage 
rates for sector at-sea monitoring programs in future fishing years. 
Note that, although the Framework 48 document discusses the clarified 
standard with respect to ``allocated stocks,'' the final regulatory 
text applies the CV standard to all groundfish stocks, allocated and 
non-allocated. This was an inadvertent error in the Framework 48 
document and, thus, the Council has deemed the corrected regulatory 
text as consistent with its intent.
    This measure also makes clear what other factors should be taken 
into account in determining the appropriate level of coverage for 
groundfish monitoring programs, as described in the clarified goals and 
objectives for monitoring programs. NMFS interprets these provisions as 
guidance based on a practicability standard for determining the level 
of at-sea monitoring coverage that is appropriate for monitoring sector 
operations to help ensure that overall catch by sector vessels does not 
exceed ACEs and ACLs. Thus, NMFS has revised the regulatory text with 
respect to sector monitoring requirements to reflect the clarified 
goals and performance standard for sector monitoring programs, and to 
take into account the National Standards and other requirements of the 
Magnuson-Stevens Act. NMFS has revised the regulatory text at Sec.  
648.87(b)(1)(v)(B) to read that coverage levels must at least meet the 
CV standard at the overall stock level and be sufficient to monitor 
sector operations, to the extent practicable, in order to reliably 
estimate overall catch by sector vessels.
    In addition to the revised goals and objectives in Framework 48, 
NMFS will specifically take into account National Standards 2, 7, and 8 
in making its determination of the appropriate level of at-sea 
monitoring coverage for sectors on an annual basis. These National 
Standards specifically speak to using the best scientific information 
available, minimizing costs and avoiding unnecessary duplication where 
practicable, taking into account impacts on fishing communities, and 
minimizing adverse economic impacts to the extent practicable.

Reduce At-Sea Monitoring for Monkfish Trips

    Framework 48 proposed to implement a lower at-sea coverage rate for 
sector vessels fishing on a monkfish day-at-sea (DAS) in the SNE Broad 
Stock Area with extra-large mesh gillnets. Currently, sector monitoring 
requirements are defined to apply to any trip where groundfish catch 
counts against a sector's ACE. Because the Skate and Monkfish FMPs 
require the use of a DAS, including a groundfish DAS, to target these 
species, sector vessels fishing for monkfish and skates are charged ACE 
for any landings or discards of groundfish and are subject to sector 
at-sea monitoring coverage on these trips. When truly targeting 
monkfish or skates, however, sector vessels often use gear that has 
little or no bycatch of groundfish. With limited resources for at-sea 
monitoring, covering trips targeting skate or monkfish is arguably a 
waste of resources and does not contribute to improving the overall 
precision and accuracy of discard estimates. Thus, NMFS has approved 
this measure in Framework 48 that exempts a subset of sector trips that 
are declared into the SNE Broad Stock Area on a monkfish DAS and using 
extra-large mesh gillnets from the standard at-sea monitoring coverage 
rate. This measure should reduce at-sea monitoring costs to sectors, 
particularly to gillnet vessels that fall in this category. It would 
also allow resources to be diverted to monitor trips that catch more 
groundfish, which could improve discard estimates for directed 
groundfish trips, and all other sector trips would still be required to 
meet the CV standard at a minimum.
    NMFS will specify some lower coverage rate for these trips on an 
annual basis when determining coverage rates for all other sector 
trips. At a minimum, these trips would get Northeast Fishery Observer 
Program (NEFOP) coverage. As discussed in Item 8 of the Framework 48 
proposed rule, NMFS has determined that NEFOP coverage is sufficient to 
monitor these trips in FY 2013. Because this subset of trips would have 
a different coverage level than other sector trips in the SNE Broad 
Stock Area, NMFS has determined that these trips require a separate 
discard strata for each stock to ensure the different coverage levels 
do not bias discard estimates. To facilitate deploying appropriate 
coverage levels, a sector vessel must notify NEFOP as to whether it 
intends to fish under this exemption through the Pre-Trip Notification 
System (PTNS). NMFS will provide specific instructions for how to 
declare this option in PTNS in a Fishery Bulletin sent to all sector 
vessels. To minimize the possibility that this measure could be used to 
avoid at-sea monitoring coverage, only vessels meeting the criteria and 
intending to fish exclusively in the SNE Broad Stock Area are eligible 
for lower coverage. Vessels declaring multi-Broad Stock Area trips are 
not eligible for the lower selection probability. In addition, a vessel 
is already prohibited from changing its fishing plan for a trip once a 
waiver from coverage has been issued. NMFS has revised the pre-trip 
notification regulations at Sec.  648.11(k)(1) to make clear that a 
vessel's fishing plan includes the area to be fished, whether a 
monkfish DAS will be used, and gear type to be used.
    This measure also requires that NMFS develop a method for 
identifying these trips in the fishery dependent datasets in order to 
ensure they are appropriately stratified in stock assessments. The NMFS 
Northeast Regional Office is working with the Northeast Fisheries 
Science Center to identify the appropriate method to transmit this 
information to assessment scientists. To assist NMFS in identifying 
these trips

[[Page 26131]]

for appropriate stratification in discard estimates, NMFS may require 
sector vessels intending to use this exemption to submit a trip-start 
hail declaring their intent to NMFS before departing port. If NMFS 
determines a trip-start hail is necessary, detailed instructions for 
submitting hails would be specified in a Fishery Bulletin distributed 
to all sector vessels.

15. List of Allowable Sector Exemption Requests

    NMFS has approved a provision in Framework 48 to allow sectors to 
submit limited requests for exemption from portions of year-round 
closure areas. Framework 48 proposed to amend the list of regulations 
that sectors could not request exemption from. Amendment 16 allowed a 
sector to make requests to the Regional Administrator for exemption 
from some NE multispecies regulations as part of its annual sector 
operations plan. Amendment 16, and later Framework 47, identified a 
list of FMP measures that sectors could not request exemption from, 
including: Year-round closure areas; permitting restrictions (e.g., 
vessel upgrade limits, etc.); gear restrictions designed to minimize 
habitat impacts (e.g., roller gear restrictions, etc.); reporting 
requirements; and AMs for non-allocated stocks. Sectors were prohibited 
from requesting these exemptions because they serve multiple purposes 
and do not necessarily act exclusively as mortality controls.
    Beginning in FY 2013, sectors may request exemption from the year-
round groundfish mortality closures, except for where they overlap 
current or proposed habitat closed areas. These areas are defined as 
the existing habitat closed areas specified at Sec.  648.81(h) and the 
Fippennies Ledge area under consideration as a potential habitat 
management area in the Omnibus EFH Amendment currently under 
development by the Council. Sectors may not request exemption from the 
Western GOM Closed Area, where it overlaps with a GOM Rolling Closure 
Area in effect. At this time, GOM Rolling Closure Area III overlaps the 
northeast corner of the Western GOM Closed Area, so sectors would not 
be allowed to request access to this portion of the Western GOM Closed 
Area during May. Sectors may also not request access to Closed Area I 
and II from February 16th through April 30th.
    Council members, members of the public, the fishing industry, and 
environmental groups expressed a number of concerns during the 
development of Framework 48 and in the public comment period on the 
proposed rule, about allowing additional access to groundfish closed 
areas. Some comments concerned the potential for this measure and any 
proposed sector exemptions to undermine measures under consideration in 
the Omnibus EFH Amendment. Concerns were also raised about potential 
impacts to protected species, spawning groundfish, and to other 
commercial species, like lobsters, from opening these areas to 
additional fishing effort. Some commenters also raised concerns that 
allowing groundfish vessels into these areas, mainly Closed Area II, 
could increase gear conflicts between mobile and lobster gear. To 
address some of these issues, the Council imposed the limitations 
described above, excluding existing and potential habitat closed areas 
to preserve the process under way to evaluate these areas in the 
Omnibus EFH Amendment. The Council also took steps to continue 
protections for spawning groundfish by including seasonal restrictions 
on any sector exemptions. NMFS responds to specific comments submitted 
on the proposed rule for Framework 48 in this final rule.
    As NMFS clarified in the proposed rule, Framework 48 does not 
actually approve the exemptions needed to fish in these closed areas. 
The impacts of any actual fishing effort, including the concerns raised 
in public comments during the development of Framework 48, would be 
evaluated and could be mitigated through the annual review and approval 
of sector operations plans and exemption requests for each fishing 
year. The Council has already asked that the specific issues raised 
during the development of Framework 48 be evaluated by NMFS in the 
consideration of any specific sector exemption requests. In addition, 
many of the issues regarding sector access to closed areas raised in 
public comments on the proposed rule, will be analyzed should NMFS 
propose granting sector exemption closed area access. The sector 
exemption review and approval process also provides better opportunity 
to address specific concerns with the potential impact of actual sector 
proposals. The Regional Administrator may include stipulations and 
constraints on specific exemptions to facilitate the monitoring and 
enforcement of sector operations or as mitigation measures to address 
specific potential impacts.
    After review of public comments, NMFS has approved this measure in 
this final rule. The Council designed this measure to maintain the 
purpose of existing habitat areas to minimize the adverse effects of 
fishing on EFH, and preserve the consideration of additional habitat 
and other management areas in the Omnibus EFH Amendment. The Council 
also took steps to limit potential impacts of requests on spawning 
groundfish. This change to the list of prohibited exemptions would 
allow the consideration and analysis of specific sector exemption 
requests on a case-by-case basis. If approved, sector exemptions to 
portions of these areas may help mitigate the expected reductions in FY 
2013 catch limits by allowing sectors to potentially increase catches 
of healthy groundfish stocks such as GB haddock and pollock that may be 
more abundant in these areas.
    In anticipation of this change being approved for FY 2013, sectors 
submitted requests for exemptions from portions of the year-round 
closed areas in their FY 2013 operations plans. Due to the need for 
additional time to analyze these new exemptions adequately, NMFS 
intends to consider these sector requests in a separate rulemaking from 
the general approval of sector operations plans for FY 2013. The closed 
area exemption requests would be considered as amendments to the sector 
operations plans through a proposed and final rule that would be 
available for public comment with an accompanying National 
Environmental Policy Act (NEPA) analysis. Any closed area exemption 
requests, if approved, would not be in place until after the start of 
the 2013 fishing year.

16. Additional Corrections

    In addition to the changes specified above, the following changes 
to the regulations are approved to correct incorrect references and to 
further clarify the intent of the Council.
    In Sec.  648.4(a)(1)(ii), this rule corrects a misspelling of the 
word ``multispecies.''
    In Sec.  648.80(a)(3)(vii), this rule clarifies that rockhopper and 
roller gear requirements of the GOM/GB Inshore Restricted Roller Gear 
Area apply only to groundfish vessels on a NE multispecies DAS or 
sector trip. This correction is made at the request of the Council, in 
response to a letter sent April 30, 2012.
    In Sec.  648.82(k)(2), language prohibiting sector vessels from 
leasing DAS is removed. This language is left over from Amendment 13 
and should have been removed in the final rule implementing Amendment 
16, which allowed sectors vessels to lease DAS among themselves.
    In Sec.  648.82(n)(2)(i), this rule clarifies that common pool 
trimester TAC area closures are intended to apply to common pool 
vessels using gear capable of catching groundfish only when on a

[[Page 26132]]

NE multispecies DAS, and not when participating in exempted fisheries.
    In Sec.  648.82(n)(2)(ii)(A), this rule corrects the coordinates 
for the GB Cod Trimester TAC Area. Amendment 16 defined the area as 
being composed of statistical areas 521, 522, 525, and 561. However, 
the coordinates used to define the GB Cod Trimester TAC Area were 
incorrectly transposed in the Amendment 16 final rule and included 
statistical area 562; this is rectified by this action.
    In Sec.  648.82(n)(2)(ii)(B), Points 4 and 5 incorrectly list the 
N. Lat. as 43[deg]20', and this action corrects them to read 
43[deg]10'.
    In Sec.  648.82(n)(2)(ii)(H) and (I), the original coordinate AP8 
was unnecessary and is removed by this action.
    In Sec.  648.82(n)(2)(ii)(J), this rule corrects the coordinates 
for the GB Winter Flounder Trimester TAC Area. Amendment 16 defined the 
area as being composed of statistical areas 522, 525, 561, and 562. 
However, the coordinates used to define the GB Winter Flounder 
Trimester TAC Area were incorrectly transposed in the Amendment 16 
final rule and did not include statistical areas 525 and 561; this is 
rectified by this action.
    In Sec.  648.84(e), this rule adds a regulatory definition for the 
rope separator trawl. The definition for the rope separator was 
inadvertently removed from the regulations by the Framework 47 final 
rule. This rule adds the regulatory definition back into the 
regulations.
    In Sec.  648.85(a)(3)(iv)(E), the regulations allow for the 
Regional Administrator to close the Eastern U.S./Canada Area to all 
vessels subject to a particular TAC allocation if that particular TAC 
allocation is projected to be caught. This rule clarifies that this is 
only to apply to allocations to sectors and common pool vessels, and 
not the scallop fishery or other ACL components. Amendment 16 and 
Framework 48 clarified that inseason and reactive accountability 
measures for sub-ACLs for non-groundfish components of ACLs are to be 
developed and administered by those respective FMPs.
    In Sec.  648.85(b)(7)(iv)(H), an explicit reference to possession 
limits for other groundfish stocks, including stocks prohibited from 
being landed, in Sec.  648.86 is added in the description of landings 
limits for the Closed Area I Hook Gear Haddock Special Access Program 
(SAP).
    In Sec.  648.85(b)(8)(v)(C), the timing of the pre-trip 
notification to the observer program for a US/CA trip is revised from 
72 hr to 48 hr. Prior to Amendment 16, vessels taking trips into the 
U.S./Canada were required to notify the observer program of their 
intent to take a trip 72 hr prior to departure. With the implementation 
of Amendment 16, NMFS established a standardized call-in requirement to 
the observer program that reduced this lead time to 48 hr.
    In Sec.  648.85(d), a period that was incorrectly inserted after 
``NE'' is removed.
    In Sec.  648.86(a)(3)(ii), periods that were incorrectly inserted 
after ``NE'' is removed.
    In Sec.  648.86(a)(3)(ii)(A)(3), the table title for the GB Herring 
Haddock AM Area was incorrectly published as the GOM area. This rule 
corrects the table title.
    In Sec.  648.87(b)(1)(ii), sector stock area coordinates that were 
to be implemented by Framework 44 but were inadvertently left out of 
the regulations are added through this rule as paragraphs (A) through 
(F).
    In Sec.  648.90(a)(5)(iii), a period that was incorrectly inserted 
after ``NE'' is removed.
    In Sec.  648.201(a)(2), the prohibition on landing of haddock is 
clarified to apply only to the haddock stock area for which the AM has 
been triggered. An explicit reference is added to the haddock 
possession restrictions in the NE multispecies regulations at Sec.  
648.86(a)(3)(ii)(A).

Comments and Responses

    NMFS received 75,393 comments during the comment period on the 
Framework 48 proposed rule, including 75,263 form letters opposing 
allowing sectors access to groundfish closed areas. Letters were also 
received from the Council, the USCG, MADMF, the Maine Department of 
Marine Resources (MEDMR), 7 environmental organizations, 3 research 
institutions, numerous members of the academic community, a whale watch 
company, 7 commercial fishing industry groups, 2 recreational fishing 
associations, a commercial fish dealer, and 106 individuals. Some of 
the comments did not address the proposed measures and thus they are 
not included here. Where possible, responses to similar comments on the 
proposed measures have been consolidated.
    Comment 1: NMFS received one comment on the economic analysis in 
the draft Framework 48 EA and the IRFA. MADMF commented that the 
economic analysis of measures in Framework 48 should have focused on 
the individual level and that any other level of analysis would not 
result in accurate characterizations about the impacts of Framework 48 
measures on individuals. MADMF also questioned the assumption that 
impacts to vessels would also be applicable to ownership entities and 
noted that the conclusion in the IRFA that Framework 48 measures would 
not have a disproportionate impact on small entities seems to 
contradict the conclusion elsewhere in Framework 48 that small vessels 
would suffer the highest percent reduction in net revenues from sector 
monitoring requirements.
    Response: NMFS believes the commenter may be misunderstanding the 
economic analyses in Framework 48. It appears the commenter has 
misinterpreted the conclusions in the economic analysis for this 
action. Individual measures are analyzed independently relative to the 
no action alternative for each particular measure, because each measure 
must be approved or disapproved based on its individual merits. The 
cumulative impacts of an action and all other foreseeable actions are 
also analyzed in the cumulative effects analysis of the EA. For 
example, the analysis suggested that reducing the commercial minimum 
fish sizes could increase revenues and, thereby, serves as a mitigation 
measure, when compared to not reducing the minimum sizes. Extrapolating 
the conclusion of the economic impact of an individual measure to 
impacts of the entire action is not appropriate. It is not clear what 
MADMF defines as an ``individual'' and, therefore, what analysis it 
believes is missing. The term ``ownership entity,'' as opposed to a 
vessel, has a specific meaning in analyses under the Regulatory 
Flexibility Act (RFA) for Framework 48 and the proposed rule, which is 
where these terms are used. Similarly, small vessels are not the same 
as small entities. A small vessel refers to the relative size or length 
of the vessel itself as some measure of capacity to generate revenue. 
As described in the IRFA, the Small Business Administration (SBA) 
defines a small business as one that is: independently owned and 
operated; not dominant in its field of operation; has annual receipts 
not in excess of $4.0 million in the case of commercial harvesting 
entities, or $7.0 million in the case of for-hire fishing entities; or 
if it has fewer than 500 employees in the case of fish processors, or 
100 employees in the case of fish dealers. This is the definition of a 
small entity used for the purposes of an RFA analysis. Thus, a small or 
large entity could own or control a number of small vessels. The 
assumptions used to aggregate vessels or permits to the ownership 
entity level was explained in the RFA section of Framework 48 (section 
8.11.2), and conforms to NMFS

[[Page 26133]]

internal guidelines and the SBA's guidelines for economic analyses to 
comply with the RFA. The RFA does not require an analysis of 
comparative impacts between small entities, although this has been done 
to a degree for this action, but rather the comparative impact between 
large and small entities and alternatives that may reduce those 
comparative impacts, if they disproportionately affect small entities. 
NMFS's methods for predicting outcomes do not yet include agent-based 
models capable of predicting individual vessel-level outcomes, though 
NMFS is continually improving its data sources and analytical methods. 
In addition, the ability to report on distributional impacts at the 
individual vessel level is hindered by the need to protect the 
confidentiality of individually-reported data at this level. Thus, for 
some measures, such the reduced commercial minimum fish sizes, the 
economic impacts were addressed qualitatively.

Status Determination Criteria

    Comment 2: The Island Institute commented in support of the revised 
status determination criteria and how these measures will make way for 
setting appropriate ABCs and ACLs in Framework 50.
    Response: NMFS agrees that the revised status determination 
criteria represent the best available science and would allow the 
appropriate ABCs and ACLs to be set beginning in FY 2013 to end 
overfishing and continue the rebuilding of groundfish stocks. NMFS has 
approved the revised status determination criteria in this final rule.
    Comment 3: The Conservation Law Foundation (CLF), MADMF, and the 
Northeast Seafood Coalition (NSC) raised questions related to the 
methods and results of the assessments for SNE/MA yellowtail flounder, 
and GOM and GB cod. CLF questioned NMFS and the Council's determination 
that the revised SNE/MA yellowtail flounder status determination 
criteria represent the best available science when the recruitment 
scenarios that were considered by the SARC were almost equally likely, 
but resulted in such different stock status. MADMF pointed out that 
NMFS proposed two numerical values for status determination criteria 
for GOM cod, but did not specify which it preferred and proposed to 
approve. MADMF questioned why the SARC did not conclude that natural 
mortality for GOM cod would be sustained at 0.4 or higher. MADMF also 
asked NMFS to clarify why the GOM and GB cod assessments did not 
conclude there has been a change in productivity for these stocks as 
for SNE/MA yellowtail flounder. NSC challenged that the revised status 
determination criteria do not represent the best available science 
because the assessments did not consider alternate methods for deriving 
FMSY proxies. NSC asked NMFS to ask the Council and SSC to 
consider alternate methods for establishing FMSY other than 
F40%MSP in stock assessments. They challenged that this is a 
policy decision with management implications and therefore should be 
made by the SSC and Council, rather than the NEFSC.
    Response: NMFS first notes that an error was made in the Framework 
48 proposed rule with respect to the overfishing status of SNE/MA 
yellowtail flounder under the two recruitment scenarios. The Framework 
48 proposed rule erroneously stated that SNE/MA yellowtail was 
experiencing overfishing under the ``two-stanza'' recruitment scenario, 
when both recruitment scenarios actually led to the conclusion that 
this stock was not experiencing overfishing.
    With respect to the reference points for GOM cod, two sets of 
status determination criteria were proposed because the SARC accepted 
two models at the assessment. These models resulted in one maximum fish 
mortality threshold, but two sets of biomass reference points. Although 
this approach for determining numerical values for stock status is less 
straightforward, both models concluded that GOM cod is overfished and 
undergoing overfishing. NMFS has approved both sets of revised 
reference points for GOM cod in this final rule.
    NMFS understands CLF and MADMF's concerns about the amount of 
uncertainty in the biomass reference points for SNE/MA yellowtail 
flounder and GOM cod. SARC 54 modeled possible reasons for reduced 
recent recruitment of SNE/MA yellowtail flounder, but could not fully 
explain the low productivity of this stock. SARC 55 reviewed 
information on natural mortality of GOM cod, but was unable to reach a 
decision on which natural mortality values best characterized the 
system. Investigating possible sources of changes in productivity was 
not a specific TOR in the cod assessments, as it was in the SNE/MA 
yellowtail flounder assessment. However, the TORs for these assessments 
were vetted by the Northeast Regional Coordinating Committee (NRCC), 
which includes representatives of the New England and Mid-Atlantic 
Councils and their SSCs. There are basic TORs that are the foundation 
for the TORs of all assessments, but stock-specific TORs may be added 
based on research recommendations, generated by developments in the 
science or politics of a particular stock, and vetted by the NRCC. Even 
without a specific TOR, the SAW working group reviews all available 
information and the public may submit papers to the working group to 
consider in their analyses and deliberations. A detailed discussion of 
the review panels' deliberations are available in the assessment 
reports and review panel summaries on the NEFSC Web site: http://www.nefsc.noaa.gov/saw/reports.html. More exploration is needed, yet 
the results of the SARC 54 and 55 assessments, even with the 
acknowledged uncertainty, represent the best scientific information 
available about the state of SNE/MA yellowtail flounder and GOM cod at 
this time. These reference points were endorsed by both the SSC and 
NEFSC for use in managing these stocks. NMFS has approved the revised 
status determination criteria in this final rule.
    Regarding NSC's assertion that the proposed status determination 
criteria do not represent the best available science because the 
assessments did not consider alternate methods for deriving 
FMSY, the Framework 48 proposed rule did not propose or 
solicit public comment on assessment methods. NMFS can only approve, 
partially approve, or disapprove the status determination criteria 
proposed in Framework 48 based upon an evaluation of its compliance 
with the Magnuson-Stevens Act, the National Standards Guidelines, the 
FMP, and other applicable law. It would not be appropriate or 
permissible for NMFS to choose an alternate FMSY reference 
point through this final rule that was not considered by the SSC or 
Council. That being said, the TORs generated for each assessment, and 
vetted by the NRCC with representations by both Councils and their 
SSCs, specifically direct the SAW/SARC to determine FMSY or, 
if a direct estimate of FMSY cannot be determined, to select 
an appropriate proxy. Thus, FMSY or methods for determining 
its proxy are evaluated and recommended by each SAW and approved by 
each SARC, and are not pre-determined as NSC seems to suggest, although 
an FMSY proxy of 40%MSP may be the result in many 
assessments. The NSC has already forwarded its concerns about the 
determination of FMSY proxies to the Council for 
consideration and the Council may choose to pursue this issue for 
future assessments. However, the numerical estimates of FMSY 
proposed in Framework 48 for SNE/MA yellowtail

[[Page 26134]]

flounder, GOM and GB cod, were reviewed and accepted by the review 
panels at SARC 54 and 55, the SSC, and the Council, as the best science 
available for management of these stocks. Subsequently, NMFS has 
approved these status determination criteria as consistent with the 
requirements of the Magnuson-Stevens Act and the FMP.
    Comment 4: The NEFMC, MEDMR, and Maine Coast Fishermen's 
Association (MCFA) urged NMFS to implement updated status determination 
criteria for white hake as soon as possible based upon the results of 
SARC 56 that recently became available. The results of this latest 
benchmark assessment suggest an increase in the FY 2013 ACL for white 
hake would be warranted, which would provide additional economic 
opportunity to groundfish vessels in FY 2013.
    Response: NMFS agrees that the results of the SARC 56 benchmark 
assessment for white hake represent the best scientific information 
available for this stock and implements updated status determination 
criteria for white hake through this final rule (Item 7). The revised 
status determination criteria were not proposed for public comment in 
the Framework 48 proposed rule because the assessment results were not 
yet available (see Item 1 of the proposed rule). However, NMFS believes 
it is appropriate to implement the updated status determination 
criteria through this final rule because the Council recommended and 
analyzed updated status determination in Framework 48 in case the 
assessment results became available in time for rulemaking. In 
addition, the SARC 56 assessment shows a change in the stock's status, 
from overfished and subject to overfishing to neither overfished nor 
undergoing overfishing, and that is expected to meet its rebuilding end 
date of 2014. NMFS is implementing the revised white hake status 
determination criteria with a post promulgation comment period to allow 
for additional public comment on this measure.

GB Yellowtail Flounder and SNE/MA Windowpane Flounder Sub-ACLs

    Comment 5: Four commenters supported establishing sub-ACLs of SNE/
MA windowpane flounder for the scallop fishery and other sub-component 
fisheries, including revising the SNE/MA windowpane flounder commercial 
groundfish fishery AM to apply to other sub-component fisheries with 
catch of this stock. AFM generally supported the allocation of this 
stock to the scallop fishery. NSC, CLF, and Oceana commented in support 
of both proposed sub-ACLs and the revised AM. CLF commented that these 
measures are justified given the significant overages of the SNE/MA 
windowpane flounder ACL in recent years. Oceana also commented that the 
proposed sub-ACLs increases accountability for fisheries with more than 
a de minimis catch of groundfish.
    Response: NMFS agrees that the proposed measures increase 
accountability among fisheries with a measurable catch of groundfish. 
Sub-ACLs and AMs encourage these fisheries to minimize catches of SNE/
MA windowpane flounder, consistent with the objectives of the FMP and 
National Standard 9 of the Magnuson-Stevens Act. NMFS has approved 
these measures through this final rule.
    Comment 6: NMFS received seven comments in support of the revised 
GB yellowtail flounder sub-ACL for the scallop fishery. One individual 
simply expressed support for the revised sub-ACL as proposed. MEDMR, 
Associated Fisheries of Maine (AFM), NSC, and one individual supported 
the revised sub-ACL, because it improves accountability for the scallop 
fishery and holds each component of the fishery responsible for its own 
catches. NSC and MEDMR commented that the fixed percentage reflects 
historical catch. CLF and MEDMR believe the revised allocation creates 
an incentive for the scallop fishery to reduce bycatch of GB yellowtail 
flounder. AFM and the Portland Fish Exchange also commented that the 
fixed percentage provides more stability for groundfish fishermen 
because it is a more predictable allocation.
    Response: NMFS agrees that the fixed percentage provides stability 
to the scallop and groundfish fisheries by simplifying the allocation 
scheme. NMFS also agrees that the revised sub-ACL provides an incentive 
for the scallop fishery to reduce its catch of GB yellowtail flounder 
and has approved this measure in this final rule.
    Comment 7: Fisheries Survival Fund (FSF) supported the allocation 
of 40 percent of the GB yellowtail flounder U.S. ABC in FY 2013, 
because it provides for most of the scallop fishery's projected need, 
while providing an allocation for the groundfish fishery and 
maintaining an incentive for the scallop fishery to avoid yellowtail 
flounder. However, FSF opposed the allocation of 16 percent of the GB 
yellowtail flounder U.S. ABC in FY 2014 and each year after, and 36 
percent of the SNE/MA windowpane flounder ACL, because they will result 
in lost scallop revenues over the long term. FSF also opposed the 
proposed sub-ACL of SNE/MA windowpane flounder for the other sub-
component fisheries, because it will reduce revenues from the fluke 
fishery. FSF argues that the Council made these allocations in order to 
maintain a directed groundfish fishery for GB yellowtail flounder. As 
an alternative, FSF argues, the Council could have closed the directed 
fishery for GB yellowtail flounder and implemented a zero possession 
limit for GB yellowtail flounder as it has done for SNE/MA windowpane 
flounder to promote the greater good, the prosecution of the more 
valuable scallop and fluke fisheries. FSF argues that by constraining 
the scallop and fluke fisheries with these sub-ACLs, the Council has 
not maximized the overall benefit to the nation and reduced the ability 
of the scallop fishery to achieve optimum yield on a continuing basis, 
violating National Standard 1.
    FSF further contends that these measures do not minimize adverse 
economic impacts on fishing communities as required by National 
Standard 8, because they sacrifice valuable scallop and fluke fishery 
landings for the communities that depend on these revenues, in favor of 
the less valuable GB yellowtail flounder landings. FSF also urged NMFS 
to accelerate access for the scallop fishery to the northern edge of GB 
if it approves these measures to mitigate the economic impacts of the 
proposed measures.
    Response: NMFS disagrees with FSF that the proposed sub-ACLs for 
SNE/MA windowpane flounder and GB yellowtail flounder are not 
consistent with the Magnuson-Stevens Act. FSF suggests that the overall 
benefit to the nation would be to allow the unrestrained prosecution of 
the scallop and fluke fisheries, based solely on their higher economic 
value when compared to the groundfish fishery. However, the concept of 
overall benefit to the nation must be evaluated in the context of 
optimum yield, which requires consideration and balancing of other 
factors in addition to economic values, including food production, 
recreational opportunities, the protection of marine ecosystems, and 
which can only be reduced based on economic, social or ecological 
factors. And even at OY, management measures must still prevent 
overfishing. Economic, social and ecological factors concerning the 
FMPs goals of preserving fishing opportunities for groundfish vessels 
and minimizing negative impacts on fishing communities, and reducing 
bycatch of groundfish stocks, contributed to the Council's allocation 
decisions for these sub-ACLs. OY must also be consistent

[[Page 26135]]

with other National Standards of the Magnuson-Stevens Act, particularly 
in this instance, National Standards 4 and 8. To focus only on OY, 
would potentially run afoul of National Standard 4 which requires that 
management measures should be fair and equitable to all fishermen and 
that no particular entity acquires excessive shares of fishing 
privileges. Also, to favor the scallop industry by maximizing overall 
benefits to the nation would be inconsistent with National Standard 8 
which requires that management measures must take into account 
importance of fishery resources to fishing communities in order to 
provide sustained participation of such communities in fishing and, to 
the extent practicable, minimize adverse impacts on such communities. 
The new sub-ACLs are consistent with these principles.
    Allocating SNE/MA windowpane flounder sub-ACLs to the scallop and 
fluke fisheries was necessary to prevent overfishing and ensure 
accountability for catches of this stock, consistent with the 
requirements of the National Standard 1. This is a non-allocated stock, 
for which possession is prohibited and all catch is discarded. As 
discussed in Item 8 of the preamble, until Framework 47, only the 
commercial groundfish common pool fishery had an AM for this stock. 
However, the lack of accountability for catches in the ``other sub-
component'' fisheries, including the scallop and fluke fisheries, 
resulted in total catches that exceeded the ABC and OFL for this stock 
in FY 2010 and again in FY 2011, despite the implementation of an AM 
for the common pool fishery in FY 2011 to account for the overage in FY 
2010. Catch by non-groundfish fisheries alone exceeded the ABC in FY 
2010 and the OFL in FY 2011. Framework 47, and now Framework 48, 
modified the commercial groundfish fishery AMs to make them more 
effective. However, as these AMs do nothing to constrain total catches 
of SNE/MA windowpane flounder in the scallop and other sub-component 
fisheries where the majority of catch is taken, maintaining a sub-ACL 
and AMs only for the groundfish fishery does not sufficiently reduce 
the risk of overfishing and would not be consistent with National 
Standard 1 or the goals of the FMP. Additional sub-ACLs and 
corresponding AMs for these fisheries are necessary to constrain 
catches of this stock by the scallop and other sub-component fisheries 
and correct any overages, and to prevent overfishing, as is required by 
the Magnuson-Stevens Act. This measure also ensures equity by holding 
the component of the fishery responsible for an overage accountable for 
its catch.
    The Council considered not allowing landings of GB yellowtail 
flounder, meaning it would be considered a non-allocated stock, in this 
action, but rejected this alternative out of concern that there would 
be no incentive to minimize discards of this stock, and unrestrained 
catches would quickly exceed the ABC and ACL being considered for FY 
2013. Taking a stock from allocated to non-allocated and prohibiting 
its possession does not absolve the Council of having to prevent 
overfishing and ensure accountability for catches of this stock. As 
demonstrated by the Court's decision on Amendment 16 in Oceana v. Locke 
et al., prohibited possession may not be a sufficient AM, by itself, 
and if the Council had decided not to allocate this stock in FY 2013, 
it would still have had to ensure accountability of any overages of the 
total ACL, including catches by the scallop fishery. Reducing 
accountability would also be inconsistent with the Council and NMFS' 
obligations under the joint management agreement with Canada for this 
stock, and the goals of the FMP, by undermining the integrity of the 
TACs set under that agreement. The importance of some landings of GB 
yellowtail flounder to some vessels in the groundfish fishery also 
weighed on the Council's decision not to make this stock prohibited. 
Regardless, Framework 48 does not recommend making GB yellowtail 
flounder a non-allocated stock and NMFS cannot unilaterally do so 
because it may only approve or disapprove the measures included in the 
framework.
    This action proposed alternative methods for calculating the 
scallop fishery's sub-ACL, including a method based on an estimate of 
projected catch and a fixed percentage. The Council selected the fixed 
percentage method as its preferred alternative out of concern that, 
with a declining ABC, scallop catches would become a larger part of the 
total catch if the allocation was calculated based on projected catch 
of yellowtail flounder. An allocation based on projected catch does not 
take into account changes in the ABC or the relative health of the 
stock. A fixed percentage also provides a greater incentive for the 
scallop fishery to reduce bycatch of these stocks, than an allocation 
based on projected bycatch, consistent with the goals of the FMP and 
National Standard 9, to reduce bycatch at the extent practicable. In 
addition, the Council believed it would be inequitable to allow scallop 
catches to become a larger portion of the U.S. ABC and thereby reduce 
the groundfish fishery's historic level of participation in this 
fishery. This would not be consistent with the goals and objectives of 
the FMP as described in Amendment 16 to maintain a directed commercial 
groundfish fishery and the shoreside infrastructure and communities 
that rely on it, and the requirements of National Standard 4, which 
requires that allocations be fair and equitable among fishermen. The 
Council took a similar approach with the SNE/MA windowpane flounder 
sub-ACL for the scallop fishery.
    These factors also influenced the Council's decision to select the 
fixed percentages of 16 and 36 percent of the ABCs for GB yellowtail 
flounder and SNE/MA windowpane flounder, respectively. For both stocks, 
the Council based these percentages on recent catch history. For SNE/MA 
windowpane flounder, the Council selected the 90th percentile of the 
highest scallop catches as a proportion of total catches in recent 
years (2010). This was also the year with the highest scallop fishery 
discards by weight in the time series. This resulted in an allocation 
of 36 percent of the ABC. Whether this will be constraining in a 
particular fishing year depends upon the ABC and resultant sub-ACL 
allocation, which was analyzed for FY 2013-2015 in Framework 50, and 
the AM to be developed in a future scallop action. Similarly, the fixed 
percentage allocation for yellowtail flounder was based on the highest 
amount of scallop discards as a proportion of total catches of GB 
yellowtail flounder from 2001-2011. The Council considered a range of 
8-16 percent for this stock, with 8 percent being the average percent 
of total catch in the time series and 16 percent being the highest 
total catch (2006). For both stocks, the Council selected the 
percentages that would provide the greatest allocation for the scallop 
fishery, while still meeting the needs to minimize bycatch to the 
extent practicable, maintain a fair and equitable allocation for the 
groundfish fishery, consistent with the FMP and the Magnuson-Stevens 
Act. In addition, the scallop fishery's AMs for both stocks are only 
triggered if it exceeds its sub-ACL by more than 50 percent, or causes 
an overage of the overall ACL. This effectively provides an additional 
50 percent of the scallop fishery sub-ACL in any given year, if left 
uncaught by other components of the ACL. Although an even larger 
allocation for the scallop and other non-groundfish fisheries would 
seemingly be justified based on

[[Page 26136]]

a strict comparison of the economic values of these fisheries versus 
the groundfish fishery, the Council is expressly prohibited from making 
an allocation decision based solely on economic efficiency by National 
Standard 5 and must take into account other provisions such as fairness 
and equity and impacts on fishing communities. For these reasons, NMFS 
approves the proposed sub-ACLs for SNE/MA windowpane flounder and GB 
yellowtail flounder as consistent with the goals and objectives of the 
FMP and the requirements of the Magnuson-Stevens Act.
    FSF requested that, if NMFS approved these measures in Framework 
48, it should accelerate access for scallop vessels to the northern 
edge of Georges Bank. This area is currently a habitat closed area for 
the purpose of minimizing the adverse effects of fishing on habitat. As 
FSF is already aware, there is not a mechanism in the scallop FMP that 
allows NMFS to grant scallop vessels access to fish in this area 
without explicit Council action. The Council is already reviewing this 
area and allowing access to this area as part of the comprehensive 
review of habitat and other closed areas in the Omnibus EFH Amendment, 
and is targeting implementation of any measures in 2014.
    Comment 8: NMFS received five comments supporting the proposed GB 
yellowtail flounder sub-ACL for small mesh fisheries. NSC and AFM 
commented generally in support of the proposed measure. Oceana and one 
individual supported the allocation because it holds each fishery 
component accountable for its own catch. Oceana also urged NMFS and the 
Council to continue evaluating groundfish catch by other fisheries and 
to establish sub-ACLs whenever catches are above de minimis levels. CLF 
noted that the establishment of a sub-ACL means little without an 
effective AM, and argued that the public should be able to know when 
AMs are to be developed.
    Response: NMFS agrees that the proposed measure increases 
accountability for fisheries responsible for catches of groundfish. By 
providing an incentive for small mesh fisheries to reduce catches of GB 
yellowtail flounder, this measure is consistent with National Standard 
9 and the objectives of the FMP to minimize bycatch of groundfish 
stocks to the extent practicable. NMFS has approved the GB yellowtail 
flounder sub-ACL for small mesh fisheries. NMFS will continue to 
encourage the Council to evaluate groundfish catch in non-groundfish 
fisheries in the biennial review process, as well as on an ad-hoc basis 
if any of these fisheries appear to have caused an overage. NMFS agrees 
with CLF's point that AMs for small mesh fisheries must be developed as 
soon as possible to provide an incentive for small mesh fisheries to 
comply with the new sub-ACL. The Council has begun planning the 
development of the next framework action and AM for this sub-ACL is 
slated to be included for FY 2014 to cover any overage in FY 2013, if 
necessary. NMFS believes this provides a sufficient incentive to 
constrain catches within this sub-ACL in FY 2013, while providing 
opportunity for thorough development and evaluations of AMs with 
participation by small mesh fishery participants.

Recreational Fishery AM

    Comment 9: CLF commented in support of revising the recreational 
fishery AM to allow the Regional Administrator to proactively adjust 
measures to ensure that the recreational fishery sub-ACLs are not 
exceeded. MADMF urged that NMFS should also consult directly with state 
agencies about proactive changes to recreational fishery measures, not 
just as Council members through the Council process.
    Response: NMFS agrees that the proposed revision to the 
recreational fishery AM would improve accountability in the 
recreational fishery. Currently, the recreational fishery AM only 
allows the Regional Administrator to change recreational measures if an 
ACL is exceeded. In addition, due to the delay in availability of 
recreational catch data at this time, AMs can only be implemented in 
the third year following an overage. The Council may initiate a 
management action to revise recreational measures for any given fishing 
year commensurate with the recreational sub-ACLs being proposed or 
implemented for that year. However, this process offers little 
flexibility for the Council or NMFS to revise measures if those in 
place are expected to result in catches higher than the recreational 
allocations specified for the coming year and there is no time to 
complete a framework adjustment. Allowing NMFS to adjust recreational 
fishery measures proactively before the start of a fishing year reduces 
the likelihood that a recreational sub-ACL will be exceeded in that 
fishing year. This allows NMFS and the Council to adapt to changing 
fishery conditions, by evaluating recreational measures before the 
start of the fishing year to ensure those measures facilitate a target 
catch consistent with the sub-ACLs specified for the recreational 
fishery. NMFS has approved the revised recreational fishery AM in this 
final rule. The Regional Administrator may only implement proactive 
measures to ensure that the recreational fishery sub-ACLs are not 
exceeded after consultation with the Council, which includes 
representatives from all the New England states. This consultation 
process built into this measure affords the state directors, or their 
representatives, to voice any concerns that they may have during this 
process.
    Comment 10: NSC opposed revising the recreational fishery AM to 
allow the Regional Administrator to liberalize recreational measures 
inseason to facilitate the recreational fishery catching its sub-ACLs. 
NSC argued that this reflects an inconsistent application of the 
National Standard 1 requirements for AMs between the recreational and 
commercial fisheries. NSC also questioned the data NMFS would use to 
project recreational fishery effort inseason to make such a 
determination, given the limitation on recreational data timeliness.
    Response: NMFS believes that NSC has misunderstood the proposed 
revision to the recreational fishery AM. The intent of the proactive AM 
was not to allow NMFS to project recreational fishery catch and revise 
recreational measures inseason. The intent of the Council in Framework 
48 was for NMFS to follow a procedure similar to the Council's to 
revise recreational measures, using the Bioeconomic Length-structured 
Angler Simulation Tool (BLAST) model to identify suites of measures 
that would achieve but not exceed the recreational sub-ACLs in the 
coming fishing year, to gather input on these measures from the RAP and 
Council, and implement them before the start of the fishing year. The 
text of this measure in Framework 48 and the regulations implementing 
this measure state that the revised measures would be implemented prior 
to the start of the fishing year ``to the extent possible,'' because 
the Council acknowledged the possibility that even this abbreviated, 
adaptable process may not be completed before the start of the fishing 
year in some cases. The measures for FY 2013 are a perfect example, 
where the Council did not take final action on FY 2013 ACLs until 
January 2013 and NMFS and the Council could not develop recreational 
measure alternatives for FY 2013 until February 2013.
    NMFS contends that this change to the recreational AM is consistent 
with the implementation of AMs for the commercial fishery. Sector 
allocations, as hard TACs, are inseason AMs that are

[[Page 26137]]

specified as a proportion of the each groundfish fishery sub-ACL for 
each allocated groundfish stock. This means that, unlike recreational 
fishery measures, they automatically adjust to increases or decreases 
in ACLs from one fishing year to the next. Sectors also receive several 
regulatory exemptions every year to increase operational flexibility 
and facilitate achieving their ACEs. The common pool sub-ACLs also 
automatically adjust from one year to the next, and NMFS has the 
authority to project and revise common pool trip limits before the 
start of each fishing year and inseason to ensure common pool sub-ACLs 
are achieved but not exceeded. Contrary to NSC's opinion, the addition 
of a proactive AM for the recreational fishery would actually result in 
more consistent application of AMs across fishery components.

Commercial Groundfish Fishery AMs

    Comment 11: The Council and a few other commenters pointed out an 
error in the coordinates for the proposed Atlantic halibut AM areas, 
and requested NMFS correct this error in the final rule.
    Response: The coordinates for the Atlantic Halibut Fixed Gear AM 
Area 1 on page 67 of the draft Framework 48 EA and, subsequently, in 
the proposed regulations, located this area overlapping the Atlantic 
Wolffish Fixed Gear AM Area 1 to the northwest of Closed Area 1. 
However, Atlantic Halibut Fixed Gear AM Area 1 actually overlaps 
Atlantic Wolffish Fixed Gear AM Area 2 along the western edge of the 
Western GOM Closed Area. The figure on page 68 of the draft Framework 
48 EA showed the correct halibut AM areas. NMFS has corrected the 
coordinates in the regulations implementing this final rule.
    Comment 12: CLF and Oceana generally supported the proposed changes 
to AMs for non-allocated stocks in Framework 48. CLF and Oceana 
supported the revised timing for these AMs, and the creation of area-
based AMs for Atlantic halibut, Atlantic wolffish, and SNE/MA winter 
flounder, because they increase accountability for and constrain 
catches of these stocks. However, Oceana opposed the fact that these 
AMs would be effectively triggered by an overage of the ABC rather than 
the ACL, arguing that this approach is illegal and not consistent with 
National Standard 1 guidelines. Oceana also took issue with the fact 
that these AMs only account for an overage of up to 20 percent of the 
ACL and that any overage larger than that would require future action 
by the Council. Oceana contended that AMs are required to be automatic 
adjustments to fishery measures and that referring the matter to the 
Council for further action does not satisfy these criteria, especially 
in light of recent overages of the SNE/MA windowpane flounder ACL by 
more than 100 percent. Oceana urged NMFS to partially disapprove these 
portions of the reactive AMs and to refer them back to the Council for 
further modification.
    Response: NMFS agrees with the commenters that the revisions to 
non-allocated stock AMs proposed by Framework 48 would increase 
accountability for catches of these stocks and reduce the likelihood of 
an ACL being exceeded. NMFS understands Oceana's concerns regarding the 
trigger point for these AMs being the ABC, rather than the ACL. As 
discussed in Item 6 of the proposed rule preamble, using the ABC as the 
trigger point for these AMs was not out of any intention to provide an 
additional buffer for catches above the ACL. Rather, this was more an 
artifact of the design of the area-based AMs. The Groundfish PDT was 
not able to design effective area-based AMs that would account for an 
overage of only a few percent, while still being effective. Gear 
restricted areas or closures that small can be easily undermined by a 
shift of effort to other areas. NMFS does not consider the concept of 
this trigger for AMs to be illegal or inconsistent with National 
Standard 1 guidelines. Defining the trigger as an overage greater than 
the management uncertainty is in concept the same as establishing an 
annual catch target (ACT) and a higher ACL (e.g., an ACL set equal to 
the ABC) which serves as the trigger for AMs, which is allowed under 
National Standard 1 guidelines. So, in approving these AMs, NMFS has 
considered the ACL for these stocks, in effect, to be ACTs and the 
trigger based on exceeding the management uncertainty to be, in effect, 
the ACL. In this sense, these AMs are entirely consistent with National 
Standard 1 guidelines. By considering these AMs in this fashion, 
Oceana's comments are really about nomenclature, rather than any 
fundamental inconsistency with the concepts of Magnuson-Stevens Act or 
National Standard 1 guidelines. Furthermore, this is the same design as 
the AMs for windowpane flounder and ocean pout implemented through 
Framework 47, which Oceana supported.
    These AMs are to account for possible overages by non-groundfish 
fisheries shown to have de minimis catches of groundfish. It is not 
expected that these components themselves are likely to exceed the ACL 
by more than 20 percent. When catches by these fisheries have risen 
above de minimis levels, such as in the case of overages of the SNE/MA 
windowpane flounder in FY 2010 and FY 2011, the Council has responded 
by recommending sub-ACLs and fishery/gear-specific AMs for these 
fisheries, as is currently proposed through Framework 48. In addition 
NMFS zero possession for SNE/MA winter flounder and Atlantic wolffish 
appear to have effectively kept catches within allowable levels in 
recent years. If zero possession continues to be an effective proactive 
AM, the reactive AM will likely not be triggered. Subtracting catches 
by the scallop and fluke fisheries, which will now be constrained by 
ACLs, coupled with the proactive AMs for these stocks, it is not clear 
that such large overages by the remainder of the other sub-component 
fisheries is at all likely and, thus, that these AMs would not be 
sufficient.
    Oceana requested that NMFS partially approve these AMs and refer 
the trigger point and AM for large overages of more than 20 percent 
back to the Council. NMFS can only partially approve measures when 
there are distinct, severable components that would not substantively 
affect the measure if one component were approved and another 
disapproved. The trigger point is an integral part of the proposed AMs, 
thus NMFS cannot simply disapprove it without disapproving the whole 
measure thereby leaving these stocks with no reactive AM. And it's not 
clear how disapproving implementing the area-based AMs for large 
overages and referring this back to the Council would be much different 
than what would be required by the AM in the event of a large overage. 
As Oceana points out, these reactive AMs increase accountability for 
catches of these stocks by ensuring adjustments are made to account for 
overages and by providing an incentive to restrain catches of these 
stocks. NMFS believes it would be better to have some reactive AMs in 
place than none, to constrain catches of these stocks and to address 
the court remand. For these reasons, NMFS has approved these measures 
in Framework 48. The Council may continue to modify these measures to 
make them even more effective through a future action.
    Comment 13: NSC, Portland Fish Exchange, CCCHFA, and MCFA opposed 
the proposed revisions to AMs for non-allocated stocks. Specifically, 
NSC did not support revising the AM timing or reactive AMs for non-
allocated stocks, because they argue that the data used for these 
determinations is not reliable or available in a timely manner to 
provide sufficient notification to the

[[Page 26138]]

industry of the implementation of an AM in the following fishing year. 
NSC also questioned whether this modification was necessary, as it was 
not part of the court remand to address non-allocated stock AMs. 
Portland Fish Exchange questioned whether such measures are necessary 
when SNE/MA winter flounder may be allocated by Framework 50, and 
halibut and wolffish are rarely encountered and are returned to the 
water when caught. CCCHFA did not support the application of area-based 
closures in an output based fishery. CCCHFA and the Maine Coast 
Community Sector (MCCS) also stated that Atlantic halibut is in better 
condition than the most recent assessment indicated and, as a result, 
more frequent encounters of this stock could trigger the AMs as soon as 
FY 2013 or 2014. CCCHFA called on NMFS to conduct an assessment for 
this stock and to reevaluate the proposed AM in light of the results of 
that new assessment. MCFA and MCCS expressed concern that the Atlantic 
Halibut Fixed Gear AM Areas would have significant and disproportionate 
economic impacts on fishing businesses from Maine that fish this area, 
with no corresponding benefits to the stock, because the real issue of 
unrestrained state fishery catches remain unaddressed. MCFA and MCCS 
argued that vessels and sectors that fish in these areas have not had 
adequate time to prepare sector exemptions or develop gear 
modifications that would allow continued access to this area with 
reduced catches of halibut. MCCS suggested that the fixed gear AMs are 
too broad, and should instead target sink gillnets using tie-downs to 
target monkfish in this area, which they believe are responsible for 
the most bycatch. MCCS also requested clarification as to how the AMs 
would be in place if triggered.
    Response: NMFS recommended that the Council revise the timing of 
non-allocated stock AMs, not because it was remanded by the Court, but 
because it would improve the effectiveness of these AMs. To be 
consistent with the National Standard 1 Guidelines, AMs should correct 
the problems that caused an overage as soon as possible. Currently, the 
AMs for non-allocated stocks are implemented in the second year 
following an overage of the total ACL. This delay may not be needed in 
all cases, but the current AMs do not allow for the possibility that 
these AMs could be implemented sooner if reliable information is 
available. For example, fishery dependent data is available in almost 
real time in the commercial groundfish fishery. If information was 
available during Year 1 that the commercial groundfish fishery had 
exceeded the overall ACL for ocean pout, under the revised AM timing, 
the respective AM for the stock would be implemented at the start of 
the next fishing year (Year 2). The revised timing would also allow for 
improvements in the timeliness of data streams from other fisheries, 
which NMFS is continually improving. That is why NMFS has approved the 
revised AM timing through this final rule. In addition, NMFS and the 
Council understand the need to provide stability for groundfish 
vessels. Thus, any applicable AMs for the non-allocated stocks would 
only be implemented at the start of a fishing year.
    These reactive AMs for non-allocated stocks are necessary in order 
to rectify overages and reduce the likelihood of overages in 
consecutive fishing years. Although landings of these stocks are 
currently prohibited and, therefore, most catch is made up of discards, 
the Magnuson-Stevens Act requires that all mortality be accounted for. 
This means that even if overages of the ACL are caused by discards, an 
AM must be applied to reduce the likelihood of such an overage 
happening again and to prevent overfishing. Furthermore, the Council's 
inability to directly control state fishery catches, does not absolve 
the Council of doing what it can to prevent overages of the overall 
ACL. The importance of reactive AMs was further clarified by the Court 
decision in Oceana v. Locke et al. The Council designed these AMs 
around hotspots of bycatch for these stocks, so that if the overall ACL 
is exceeded, total catch of that stock might be reduced and, therefore, 
the likelihood that an overage would be repeated would be reduced. 
Locating the AMs in areas with little impact on fishing effort and 
bycatch, although that might reduce the impact on vessels trying to 
target other stocks, would not be effective. During the development of 
Framework 47, the Groundfish Committee briefly considered allocating 
these stocks to sectors, which would provide output-based AMs like 
stocks currently allocated to sectors. However, the Groundfish 
Committee remained concern that allocations of these stocks would be 
too restrictive.
    The Council may consider further modifications to these AMs if 
changes in stock size shift hotspot areas of high bycatch. Currently, a 
benchmark assessment for Atlantic halibut is not scheduled. Revised 
reference points and ABCs for this stock would not negate the need for 
a reactive AM for the commercial groundfish fishery, but may increase 
the ACL and thereby reduce the likelihood that it would be exceeded. 
Assessments are scheduled through the NRCC, which prioritizes them 
based on many factors, including how old the most recent assessment is, 
whether an management action is imminent, whether there is any new 
information or progress in research that would revise the assumptions 
or inputs of the assessment, and other priorities. If the commenters 
are interested in a new assessment for this stock, they may propose it 
to the Council to bring to the NRCC.
    The Council could also refine these AMs to target more specific 
gears, if a specific gear configuration is identified to be responsible 
for most bycatch. The AMs approved in Framework 48 apply to those gears 
identified as having the highest bycatch of these stocks by SBRM 
observer coverage. Trawl gear was found to be responsible for the 
majority of discards of halibut, followed by a much smaller amount 
discarded by gillnet gear. It may be possible that tie-down nets 
targeting monkfish in these areas are responsible for the majority of 
bycatch of Atlantic halibut, as suggested by MCCS, but the SBRM gear 
modes are not defined to this fine a scale. However, these AMs were 
designed based on the best available information about areas and gears 
with the highest bycatch of these stocks. Delaying the implementation 
of these AMs to further refine them would mean that possible overages 
of the overall ACLs for these stocks would not be accounted for in the 
interim, which would not be consistent with National Standard 1. 
Although these AMs may be further refined and improved through future 
Council actions, they would increase accountability for and constrain 
catches of these stocks at this time. For these reasons, NMFS has 
approved these AMs in this final rule.
    The Council expressly prohibited sectors from requesting exemptions 
from the AMs for non-allocated stocks through Framework 47. However, it 
did provide for the possibility that selective gears could be approved 
for use in these areas. If MCCS is successful at identifying gear types 
that could be used in the Atlantic halibut AM areas with little bycatch 
of this stock, it could submit those gears for review through the same 
process used to authorize selective trawl gear at Sec.  
648.85(b)(6)(iv)(J)(2).
    Note that Framework 50 allocates SNE/MA winter flounder to the 
groundfish fishery and allows landings. This means that this stock is 
subject to sector-specific inseason AMs, coupled

[[Page 26139]]

with a pound-for-pound payback of any overage from a sector's 
allocation in the next fishing year. In this case, the area-based AM 
would apply only to common pool vessels if the common pool exceeds its 
sub-ACL for the stock. If triggered, these AMs would be in place for 
only the fishing year in which they are implemented.
    Comment 14: NMFS received one comment, from the Northeast Hook 
Fishermen's Association (NEHFA), supporting the revised trimester TAC 
AMs for handgear vessels. NEHFA supported this measure because it would 
help small handgear vessels, which account for a small percentage of 
catches of groundfish stocks, but for which groundfish provides an 
important revenue stream.
    Response: NMFS agrees with NEHFA that handgear vessels account for 
such a small portion of the white hake catch that exempting them from 
the trimester TAC AMs is justified. This measure would not increase the 
risk of the common pool exceeding its sub-ACL for this stock, but would 
relieve an inequity currently present in the common pool inseason AMs. 
Exempting handgear vessels from these inseason AMs for white hake would 
reduce the costs of these AMs for handgear vessels by allowing them to 
continue fishing for other groundfish stocks when an AM for white hake 
is triggered. That is why NMFS has approved this measure in Framework 
48.

Commercial Fishery Minimum Fish Sizes

    Comment 15: MEDMR, Portland Fish Exchange, AFM, NSC, and two 
individuals supported the proposed reductions in commercial minimum 
fish sizes. Commenters generally supported this measure because it 
would reduce waste. One commenter supported this measure because it 
would help would allow the commercial industry to compete with imports 
from foreign countries, which have lower minimum sizes. One commenter 
supported this measure because it would generate additional revenue for 
groundfish vessels and act as a mitigation measure for FY 2013 catch 
limit reductions. Another commenter suggested the proposed minimum 
sizes are more consistent with the selectivity of existing allowable 
mesh sizes. One commenter noted that these sizes are larger than those 
originally proposed by the Groundfish PDT and take into account the 
maturity and biology of groundfish stocks.
    Response: NMFS agrees with the commenters that reducing the 
commercial minimum fish sizes as proposed in Framework 48 would reduce 
waste, provide more opportunity to achieve OY and provide additional 
revenue to groundfish vessels in FY 2013 that could help mitigate some 
of the negative economic impacts expected from reductions in catch 
limits. As indicated by the analysis in Framework 48, this measure 
would be expected to allow more fish caught and counted against quotas 
to have economic value rather than be wasted. Under a full retention 
scenario, estimated additional gross revenues in the short term could 
be substantial. While reducing the minimum sizes would not be expected 
to generate quite as much additional revenue, it would increase 
revenues from quota used for groundfish vessels, especially sector 
vessels. In addition, these minimum sizes are generally consistent with 
the length at which 50 percent of fish are expected be mature. In this 
way, this measure attempts to balances the benefits of reducing waste, 
with the need to ensure many fish can spawn before being caught. For 
these reasons, NMFS approved this measure in Framework 48.
    Comment 16: CCCHFA, MADMF, MCFA, and CLF opposed the proposed 
reduction in commercial minimum fish sizes. CCCHFA specifically 
expressed concern about reducing the minimum fish sizes for cod and 
haddock, when both GOM and GB cod are overfished and the incoming year 
class of GB haddock may be what sustains the fishery for the next few 
years. These commenters generally opposed the measure because it would 
increase effort on smaller fish, undermine rebuilding programs, and 
reduce long-term productivity of these stocks. MCFA and CLF expressed 
concern that reducing the minimum sizes would reduce the current 
disincentive to target small fish created by counting all discards 
against quotas, which was an objective of sector management. CLF, MCFA, 
and MADMF expressed concern that the reduced minimum sizes would 
encourage fishermen to target smaller fish and potentially increase the 
use of net liners in order to maximize the retention of legal-sized 
fish, and could drive stocks into further decline. Thus, they argue 
that reducing the minimum sizes would increase, rather than reduce, 
discards overall. They believe that the risk of a shift in selectivity 
and potential consequences are too high. MADMF argues that maintaining 
the minimum size above the length at 50 percent maturity is not 
sufficient or defensible, because research has shown that repeat 
spawners are important for spawning success.
    Response: NMFS understands commenters concerns that this measure 
may change incentives in targeting fish but it is not possible to 
accurately predict whether and to the extent that this may actually 
occur, and the consequences on conservation objectives, due in part to 
the context in which these reductions in fish size will apply. As NMFS 
discusses in Item 13 of the preamble, there are two components of 
uncertainty as to the potential impacts from this measure. First, it is 
unclear whether a shift in selectivity is likely. According to analysis 
in Framework 48, this is most likely for yellowtail flounder, for which 
there is little difference in price between size classes and a simple 
change in the type of codend used can modify the size of fish caught. 
The second component to the uncertainty is whether the shift in 
selectivity could be detected and ABCs could be adjusted to account for 
this change. Although a shift in selectivity could affect rebuilding 
time and the probability of overfishing, if this shift is detected and 
ABCs are adjusted, these potential impacts may be mitigated. That is 
why NMFS is exploring ways to monitor the length frequency of catch in 
the commercial groundfish fishery beginning in FY 2013 to see if a 
change in selectivity could be detected. If such an analysis or data 
can be put together, NMFS can advise the Council if adjustments to 
measures may be needed.
    Traditional notions as to likelihood of a shift of fishing behavior 
to target small fish may not be as applicable in the context of the 
sector program. All catch is counted against sector ACE to create an 
incentive to minimize discards in order to maximize the value of a 
sector's quota. However, despite this incentive, sector vessels are 
still experiencing regulatory discards. Analysis by the Groundfish PDT 
showed that the majority of discards of groundfish stocks for which 
size changes are proposed occurred just below the minimum size. The PDT 
concluded that a size reduction of an inch would reduce discards of 
cod, haddock, plaice, and yellowtail flounder. The Council then 
increased the sizes from those proposed to reduce the majority of 
discards to sizes that would be consistent with or above the length at 
50 percent maturity. NMFS believes the proposed reductions to minimum 
sizes represent a balance between the need to reduce waste and maximize 
the value of resources expended, and to need to ensure the continued 
rebuilding of groundfish stocks. All catch would still be counted 
against sector allocations, including

[[Page 26140]]

discards, which should maintain an incentive to reduce discards. It is 
unclear, in light of such severe reductions in catch limits, whether 
the expected shifts in fishing behavior will result, given the need to 
maximize the profitability of every fish caught. Moreover, in light of 
joint and several liabilities of sector vessels, there is increased 
incentive for sectors to self-enforce against any illegal activity, 
such as use of liners or misporting, that facilitate targeting of small 
fish. For these reasons, NMFS has approved this measure in Framework 
48.
    Comment 17: MADMF also stated that if these measures are approved 
and state agencies don't follow suit, sector vessels would be forced to 
discard fish that do not meet the state minimum fish size in violation 
of the federal requirement for them to retain all fish of legal size. 
MADMF also suggested that NMFS should reduce sectors' allocations to 
account for the additional quota gained from reducing the amount of 
discards charged through discard rates.
    Response: NMFS is also concerned about discrepancies between state 
and federal minimum fish sizes complicating compliance and enforcement 
of this measure. To address this concern, NMFS is delaying the 
effective date of these new minimum sizes to July 1, 2013, to allow 
state agencies additional time to consider and make corresponding 
adjustments to their minimum sizes. If a state does not make 
corresponding adjustment to fish sizes, vessels would not be forced to 
illegally discard fish as they could land in other states' ports. NMFS, 
however, would not favor this result and the impacts it would have on 
the non-conforming state, and, for that reason strongly urges all 
affected states to match these size reductions.
    With respect to MADMF's concern that reducing the minimum fish 
sizes increases the amount of available quota to sectors, NMFS believes 
this concern arises from a misunderstanding about how sector discard 
rates are applied. Discard rates generated from observed trips are 
intended to be representative of the discard rates for each stock on 
unobserved trips. So, for example, for a single trip in FY 2012, the 
fish between the current minimum size and new minimum size would have 
been discarded. If the trip was observed, the sector would have been 
charged for these discards based on observer data. If the trip was 
unobserved, the sector would have been charged for these discards based 
on the discard rate calculated from the observed trips. If total catch 
remained the same on that same trip in FY 2013, those fish between the 
current minimum size and new minimum size would be landed instead of 
discarded. Regardless of whether the trip was observed, the sector 
would be charged for those fish based on dealer reports of those 
landings. The sector would then also be charged for the discards below 
the new minimum size, from either observer data or the new reduced 
discard rate. Thus, in this example, total catch would remain the same, 
but fish between the current and new minimum sizes would shift from 
discards to landings. So sectors would not necessarily be able to catch 
more fish overall compared to their allocations. Even if an adjustment 
were somehow appropriate, NMFS does not have the authority to adjust 
sector allocations without Council action. Although initial rates at 
the beginning of the year would be based on previous fishing years, 
once these rates transition to inseason discard rates in FY 2013, they 
would be based on observed discards on trips carrying an observer in FY 
2013. In addition, discards were not used in the computation of vessel 
PSCs, but are charged to sector allocations.
    Comment 18: CCCHFA, MEDMR, and one other individual stated a 
preference for full catch retention to improve data collection and 
minimize the cost of at-sea monitoring to the industry.
    Response: The Council considered a full retention requirement for 
sector vessels, but did not recommend it because it was not 
sufficiently developed for implementation in FY 2013. NMFS, therefore, 
does not have the authority to replace minimum fish sizes with such a 
measure as part of its partial approval and implementation of Framework 
48 measures. However, the Council passed a motion at their December 20, 
2012 meeting to pursue full retention for further development in a 
future action. NMFS encourages the commenters to participate in the 
Council process as it considers this option for a future fishing year.

Sector Monitoring Programs

    Comment 19: AFM, NSC, and the MADMF supported delaying industry's 
responsibility to pay for at-sea monitoring costs to FY 2013. However, 
MADMF expressed concern that approving this measure would lead to 
continued delays of industry cost responsibility in subsequent actions.
    Response: NMFS understands commenters concerns about industry being 
able to bear the cost of monitoring, especially in light of the 
substantial reductions in catch limits expected in FY 2013. That is why 
NMFS intends to cover the full cost of monitoring for sectors in FY 
2013 to the extent that it can, by continuing its NMFS At-sea 
Monitoring Program. Although exact effort levels next year are 
uncertain, NMFS believes that if sector vessels take fewer trips 
overall as expected, NMFS will be able to cover 100 percent of the 
costs of sector monitoring. The availability of these funds makes the 
Framework 48 measure somewhat moot, but NMFS still cannot approve this 
measure in Framework 48. This measure is not consistent with the goals 
of the FMP or the requirements of the Magnuson-Stevens Act, because it 
would not ensure monitoring levels sufficient to monitor ACLs and 
sector ACEs. Rather, coverage levels would be determined by the amount 
of available NMFS funding which, without specific appropriations for 
this purpose, would not guarantee even minimum coverage levels to meet 
the performance standard as required by Amendment 16 and Framework 48. 
NMFS also shares MADMF's concerns that approving this measure in 
Framework 48 would establish an inappropriate precedent for future 
fishing years.
    Comment 20: CLF opposed the proposed delay of industry 
responsibility for the costs of at-sea monitoring. CLF contended that 
the fishing industry should be responsible for the costs of monitoring 
the harvest of a public trust resource and that it is not clear that 
the industry could not actually afford these costs. CLF points out that 
this data is necessary for quality assessments and argues that adequate 
data for assessments and management should not be sacrificed just 
because quota levels are low.
    Response: NMFS agrees with CLF that delaying industry cost 
responsibility to FY 2014 and specifying coverage levels according the 
amount NMFS can fund is not sufficient to ensure the adequate 
monitoring of ACLs and sector ACEs. As CLF notes, adequate at-sea 
monitoring is necessary for quality data for assessments and reliable 
estimates of sector and groundfish fishery catches for the purposes of 
determining if allocations have been exceeded. Basing coverage levels 
on NMFS funds alone would not ensure that levels are sufficient to at 
least meet the performance standard and goals and objectives for 
monitoring programs defined by Amendment 16 and Framework 48. For these 
reasons, NMFS has disapproved this measure in Framework 48.
    Comment 21: MEDMR, AFM, NSC, the Portland Fish Exchange, MCFA, and 
one individual commented in support of the proposed sharing of at-sea 
monitoring costs between NMFS and sectors. Commenters supported this

[[Page 26141]]

measure because they believed that industry could not support these 
costs under reduced catch levels. NSC and MEDMR supported continued 
efforts by NMFS and the Council to develop a workable for the NE 
Multispecies FMP, including joining the Squid/Mackerel/Butterfish and 
Herring FMAT/PDT.
    Response: NMFS agrees with commenters that this cost-sharing 
concept has merit and is worth exploring. However, as explained in Item 
2 of the preamble, this measure is not consistent with the requirements 
of the Anti-Deficiency Act and other appropriations law and policy as 
developed. As defined, this measure would require NMFS to pay for 
portions of at-sea monitoring costs that are beyond its statutory 
obligations and, thus, its appropriations. This measure would also have 
required NMFS to share payment of some obligations with sectors, which 
is prohibited. For these reasons, NMFS disapproved this measure through 
this final rule. However, NMFS believes that a similar measure, if 
modified, could be workable and is available to assist the Council in 
further developing this concept for a future action. In addition, as 
described in the response to Comment 19, NMFS intends to cover the full 
cost of at-sea monitoring for sectors in FY 2013, to the extent that it 
can, to address industry's concerns about their ability to bear this 
burden in FY 2013 in light of the substantial reductions in catch 
limits that are expected.
    Comment 22: One individual commented against the proposed cost-
sharing mechanism, out of a belief that it was not sufficiently 
developed at this time. This commenter stated that the industry should 
work directly with NMFS, and not involve other parties, in the 
development of a workable measure when appropriate.
    Response: NMFS agrees with the commenter that the proposed 
monitoring cost-sharing mechanism was not sufficiently developed in 
this action. That is why NMFS has disapproved this measure through this 
final rule. NMFS is already assisting the mackerel and herring FMPs to 
explore cost sharing mechanisms for those fisheries for FY 2014 and can 
help the Council in further developing this mechanism for the NE 
Multispecies FMP for a future action if interested.
    Comment 23: CLF, NSC, and MCFA supported eliminating dockside 
monitoring requirements for sectors. Commenters generally supported 
eliminating this program because it did not provide useful or timely 
data and, therefore, was not worth its costs. CLF supported eliminating 
this requirement provided that hails requirements are maintained and 
that dockside intercepts are effective and sufficient for enforcement. 
MCFA thought that dockside monitoring should be reconsidered if full 
retention is adopted in a future action. MADMF did not support or 
oppose this measure, but asked that NMFS clarify why it believes that 
dockside intercepts by enforcement personnel will be sufficient to 
monitor sector landings. MADMF and NSC also supported retaining hail 
requirements to assist with the deployment of enforcement personnel, 
but NSC requested that NMFS improve the timeliness of confirmation of 
receipts for hails. NSC also supported NMFS' intent to clarify the 
regulations to allow for streamlining of these reporting requirements 
in the future. MADMF asked whether NMFS and the Office of Law 
Enforcement have adequate capability to compare hails to observed 
landings to monitor sector and common pool landings against 
allocations.
    Response: NMFS agrees with commenters that the dockside monitoring 
program as currently designed is not necessary or sufficiently useful 
in monitoring sector landings. Dealer reports are the principle data 
source for commercial landings information. In addition, eliminating 
the program would reduce costs and potentially increase the 
profitability of the commercial industry in future years. Eliminating 
this program would reduce redundancy and reduce costs for the 
commercial groundfish vessels, thereby increasing net revenues in 
future fishing years. That is why NMFS approved eliminating the 
dockside monitoring program, but maintained hail requirements, through 
this final rule. To the extent that dockside monitoring creates a 
disincentive to misreport or hide landings that may be used for 
monitoring purposes, NMFS believes dockside intercepts by enforcement 
personnel, supported by hail requirements, goes a long way to meet this 
objective. Should the Council consider full retention of fish in a 
future action, dockside monitoring should be reconsidered.
    NMFS understands NSC's concerns regarding latency issues affecting 
the timeliness of confirmations of receipts and vessels' ability to 
comply with this measure. That is why NMFS is continually making 
improvements to its systems to address these types of issues. NMFS 
agrees that redundancy should be avoided and costs should be 
streamlined where possible, thus NMFS has also approved its 
clarification to the regulations that would allow streamlining of hails 
with other similar reporting requirements in the future when 
appropriate.
    Law enforcement personnel, including OLE uniformed officers, 
special agents, and state partners, have access to the data reported in 
trip start and trip end hails through a secure database. Enforcement 
personnel do have the capacity to use this information to plan dockside 
intercepts, and to compare it to other landings data sources. However, 
NMFS would like to caution commenters that hails were instituted for 
the purposes of coordinating deployment of dockside monitors. Estimated 
weights of landings were required to be reported in order to allow the 
monitoring provide to plan for the type catch that would be offloaded 
and monitored and the length of the offload. This information was not 
intended or designed to be used for the verification of dealer reports 
or VTRs. The estimated weights reported are expected to be the 
captain's good faith estimate of catch and would not be expected to 
exactly match a dealer's recorded weights and so are not used for this 
purpose.
    Comment 24: NSC, AFM, and CCCHFA commented in support of the 
proposed revisions to the goals and objectives and performance standard 
for groundfish monitoring programs.
    Response: NMFS agrees that the measures proposed by Framework 48 
clarify the goals and objectives and the performance standard for 
groundfish monitoring programs. This would help the Council, NMFS, and 
sectors implement and evaluate these programs more effectively. NMFS 
has approved these revisions in this final rule.
    Comment 25: CLF and Oceana opposed the proposed revisions to the 
goals and objectives and performance standard for groundfish monitoring 
programs. They argue that these measures are a fundamental component of 
sector AMs and, therefore, cannot be revised through a framework 
adjustment. They argue that adjustments to these requirements through 
the framework process was not contemplated or specified by Amendment 16 
and, thus, urge NMFS to disapprove these proposed changes on procedural 
grounds. The commenters further contend that the effectiveness of 
sector AMs depends on the ability of individual sectors to know and 
manage catch toward their ACEs and thus, for sector AMs to ensure 
accountability as required by the Magnuson-Stevens Act, the appropriate 
level for monitoring these catches is at the sector ACE level, rather 
than the ACL. They urged NMFS to disapprove the proposed action to 
apply the CV standard at the overall

[[Page 26142]]

stock level and instead select the alternative that would apply it at 
the sector-stock level. The commenters were generally supportive of the 
proposed goals and objectives for groundfish monitoring programs as 
consistent with the original purpose of these measures in Amendment 16. 
However, they expressed concern with the inclusion of the terms ``to 
the extent possible'' with respect to minimizing potential monitoring 
bias, and ``cost-effectiveness'' with respect to stratifying discards. 
They argued that this provides too much discretion for the 
implementation of these programs as a component of sector AMs. MADMF 
also expressed concern that the inclusion of a practicability standard 
would result in coverage rates that are not sufficient for accurate 
catch accounting.
    Response: NMFS disagrees that sector monitoring requirements cannot 
be revised through a framework action. Section 4.8.2 of Amendment 16 
expressly states that frameworkable measures are not limited to the 
items listed in that section. In addition, sector monitoring 
requirements, including coverage levels and the performance standard, 
are listed under sector administration provisions in Amendment 16, 
which is listed as a frameworkable measure in section 4.8.2. As the 
commenters note, the regulations at Sec.  648.90(a)(2)(iii) list at-sea 
and dockside monitoring requirements among the measures that may be 
modified through the biennial review process, as well as AMs, changes 
to other administrative measures, and any other measures currently 
included in the FMP. In addition, the Council deemed these regulations 
as consistent with their intent in Amendment 16. These changes are at 
most clarifications and elaborations on how to determine appropriate 
monitoring levels, not wholesale changes to the monitoring 
requirements. So, NMFS believes that these changes are lawful under the 
combination of allowable framework provisions of the FMP and section 
305 (d) of the Magnuson-Stevens Act which authorizes NMFS to implement 
regulations necessary to ensure that Council measures are carried out 
in a manner consistent with the Act.
    Oceana and CLF raised similar concerns that recommended coverage 
rates based on a CV standard that is applied at the overall stock level 
would not provide reliable catch estimates for the purpose of 
implementing AMs at the sector ACE level. As NMFS discussed in its 
summary of the appropriate level of at-sea monitoring on sectors at 
http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/FY2013_Multispecies_Sector_ASM_Requirements_Summary.pdf and in response to 
these same comments on the proposed rule for FY 2013 sector operations 
plans, Amendment 16 specified that ASM coverage levels should be less 
than 100 percent. This means that discards and, thus, total catch by 
definition shall be based on estimates, rather than absolute numbers. 
Thus, NMFS believes that it is appropriate to utilize its stated 
practicability standard in the application of sector monitoring 
requirements. The level of observer coverage combined with the self-
reporting requirements for sectors 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. In the above referenced analysis in response to 
Oceana's comments, NMFS 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. In addition, discard 
estimates provided by required at-sea monitoring coverage rates are not 
the sole source of information for monitoring of sector catch and 
making a determination about whether a sector has exceeded its ACE. 
Discard estimates, to which the CV standard applies, is only a portion 
of total catch. Landings, provided by dealer purchase reports, comprise 
the majority of total catches for groundfish stock. 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). To monitor 
sector catch, not just discards, NMFS and sector managers rely on a 
number of data sources, including observer data, VMS, VTRs, VMS catch 
reports, and dealer reports. Sectors are also required to submit weekly 
reports, which are broken down to the sub-trip level catch and gear 
information, and these reports are stepped up to daily certain catch 
thresholds (for FY 2013 the daily reporting threshold is 90% of any 
ACE) are reached. NMFS conducts weekly reconciliation of NMFS and 
sector reports with sector managers to verify that each sector and NMFS 
have the best available data to monitor catch and sector ACEs. In 
addition, due to the joint and several liability of sector members for 
certain violations, including illegal discarding and misreporting of 
catch, there is a strong incentive for sector members to self-enforce 
monitoring and reporting requirements and ensure the sector has the 
most accurate information available. Based on the totality of this 
information, NMFS concludes that the performance standard implemented 
at the overall stock level results in reliable catch estimates for 
monitoring sector ACEs.
    The monitoring program, including the application of the 
performance standard, must be implemented consistent with the different 
goals and objectives of sector monitoring programs, as well as the 
requirements of the other National Standards, which requires a 
balancing of competing objectives. As NMFS discussed in Item 14 of the 
preamble, in addition to the revised goals and objectives in Framework 
48, NMFS will specifically take into account National Standards 2, 7, 
and 8 in making its determination of the appropriate level of at-sea 
monitoring coverage for sectors on an annual basis. These National 
Standards specifically speak to using the best scientific information 
available, minimizing costs and avoiding unnecessary duplication where 
practicable, taking into account impacts on fishing communities, and 
minimizing adverse economic impacts to the extent practicable. In 
addition, to account for any lack of absolute precision and accuracy in 
estimating overall catch by sector vessels, uncertainty buffers are 
deducted before specifying commercial groundfish fishery sub-ACLs. In 
light of all these requirements, and in absence of any evidence 
provided by the commenters to the contrary, NMFS concludes that sector 
monitoring requirements overall, including the performance standard 
applied at the overall stock level, are sufficient to monitor sector 
catch toward ACEs.
    Comment 26: CLF, NSC, and CCCHFA supported the provision to reduce 
at-sea monitoring coverage on trips targeting

[[Page 26143]]

monkfish in the Southern New England. Commenters supported this measure 
because it would reallocate limited resources and coverage to trips 
that catch groundfish. CLF called for the development of a full 
retention/electronic monitoring program for such trips, because it 
would provide valuable catch data and compliance incentives, rather 
than reducing coverage. CLF also urged NMFS to monitor this exemption 
to ensure it does not create a loophole for groundfish discards.
    Response: NMFS agrees that this measure would prioritize limited 
resources and monitoring coverage for trips that catch groundfish. 
Currently these trips that catch little to no groundfish are receiving 
the same level of coverage as other sector trips, with no resultant 
benefits to the overall precision and accuracy of groundfish discard 
estimates. By exempting these trips from some level of at-sea 
monitoring coverage, those resources can be directed to cover trips 
with actual catches of groundfish and, thereby, improve the estimates 
of groundfish discards. For these reasons, has approved this measure 
through this final rule.
    NMFS understands CLF's concerns that this measure could create a 
loophole for increased discards of groundfish. However, given the size 
of mesh used on these trips (10 in, 25.4 cm), it is unlikely that catch 
of groundfish on these trips would increase beyond those analyzed in 
the development of Framework 48.

GB Yellowtail Flounder Management Measures

    Comment 27: NMFS received three comments opposing a separate GB 
yellowtail flounder discard rate stratum for statistical area 522. NSC, 
CLF, and one individual opposed this measure because it would 
complicate monitoring and increase administrative burden to NMFS and 
sectors without any real benefit. CLF expressed concern that this 
measure would create another loophole for misreporting of catch of GB 
yellowtail flounder by vessels on unobserved trips and urged NMFS not 
to approve this measure until it can implement measures to reduce 
misreporting.
    Response: NMFS shares the commenters concerns that this measure 
could complicate monitoring and increase the administrative burden for 
sectors and NMFS without any measurable benefits. Because of the 
potential added cost of implementing and administering this measure, it 
may increase costs more than it provides benefits to the fishing 
industry or the efficient management and monitoring of catches, which 
would not be consistent with National Standards 5 and 7 of the 
Magnuson-Stevens Act. Both sectors and NMFS would have to modify quota 
monitoring programs and reports to accommodate the new strata, 
increasing the administrative burden for sector managers and NMFS. NMFS 
also remains concerned about how this revised strata, combined with 
other changes to the discard rate method in FY 2013, will affect the 
variance of discard rates and thereby affect our ability to achieve the 
performance standard for sector monitoring at recommended coverage 
rates. As CLF notes, it is also possible that this measure could 
further complicate monitoring and increase uncertainty of catch 
estimates by creating an incentive to misreport catches of GB 
yellowtail flounder on unobserved trips as having been caught in 
statistical area 522 in order to get a reduced discard rate.
    On the other hand, this measure would have no real benefits for a 
sector that could not be achieved under the existing discard rate 
scheme. A separate discard rate in statistical area 522 could benefit 
an individual vessel fishing in deeper water in this area with a lower 
GB yellowtail flounder discard rate that would not be influenced by 
higher GB yellowtail flounder discards by other vessels in its sector 
fishing elsewhere on Georges Bank. However, the sector's fishing season 
on GB would still be limited by the total catch of GB yellowtail 
flounder by all its member vessels. If some vessels in the sector 
continued to have high discard rates of GB yellowtail flounder on other 
parts of Georges Bank, the entire stock area could still close early in 
the season, including statistical area 522. This finer stratum would 
not free a sector from having to manage its vessels' effort to extend 
its fishing season next year.
    Thus, NMFS agrees with commenters approving this measure would 
increase the cost and administrative burden of sector monitoring for 
sectors and NMFS without any corresponding benefits to sectors. NMFS 
has concluded that this would not be consistent with the requirements 
of National Standard 5 and 7 and NMFS has disapproved this measure in 
Framework 48.
    Comment 28: AFM, the Portland Fish Exchange, and one individual 
commented in support of the revised GB yellowtail flounder discard rate 
strata for sector vessels. Commenters believed this measure would more 
accurately reflect actual discard rates of GB yellowtail flounder in 
statistical area 522, and enable sector vessels to have a longer 
fishing season on Georges Bank.
    Response: NMFS agrees that finer scale strata would allow discard 
rates to more closely reflect actual discard rates over smaller areas. 
However, as discussed fully in NMFS's response to Comment 27, NMFS 
disagrees that this measure would have any real benefits for a sector 
that could not be achieved with existing discard rate strata. A 
separate discard rate in statistical area 522 could benefit an 
individual vessel fishing in this area with a lower GB yellowtail 
flounder discard rate. However, this measure alone would not prevent a 
sector's fishing season on GB from ending prematurely. As a result of 
this new strata, GB yellowtail discard rates in the rest of GB would be 
higher and, thus, if the sector did not also manage yellowtail flounder 
discards on other parts of GB, it would still be limited by the total 
catch of GB yellowtail flounder by all its member vessels. As analysis 
showed in the Framework 48 EA, the new strata are unlikely to affect 
the overall discard estimates of GB yellowtail flounder, meaning that 
sector vessels would still have to avoid GB yellowtail flounder in 
order to prolong their fishing season. The most effective way to 
prolong a sector's fishing season on GB would be through active 
management of effort and catch by its member vessels. If a sector 
wanted to incentivize its vessels to fish in deeper water and avoid 
yellowtail flounder, or ensure that one member's high yellowtail 
flounder discard rate does not penalize another vessel that avoids 
yellowtail flounder, they could differentially charge individual member 
shares based on discard behavior. Sectors can do this under the 
existing discard strata scheme, without unnecessarily complicating 
monitoring for other sectors. In contrast, the proposed measure could 
have real effects on monitoring practices for both NMFS and sectors. 
Implementing this measure would increase administrative costs and 
burden associated with monitoring and without any real benefits for 
sectors, which would reduce efficiency and would not be consistent with 
National Standards 5 and 7. NMFS believes the reduced efficiency is not 
justified in light of the lack of real benefits from this measure as 
discussed in the response to the previous comment on this measure. For 
these reasons, NMFS has disapproved this measure in Framework 48.

List of Allowable Sector Exemption Requests

    Comment 29: Over 75,000 comments were received from various groups 
and individuals opposing the proposed change to allowable sector 
exemption

[[Page 26144]]

requests as it pertained to year-round groundfish closure areas. Many 
of these comments were form letters submitted through online 
nongovernment organization campaigns. By comparison, a limited amount 
of comments were received supporting the proposed change to allowable 
sector exemption requests.
    The comments opposing the exemption proposal that would allow 
sectors to request access to year-round closure areas raise several 
objections. While some of the specific comments raise slightly 
different points, the major issues raised are enumerated below. Some of 
the topics have a great deal of interrelatedness. By categorizing the 
issues in this manner, NMFS can provide a focused series of responses. 
The primary issues raised are:
    1. Commenters stated the areas should not be opened because they 
provide important protection for critical life stages and spawning 
activities of critically depressed fish stocks. Many comments also 
stated the stocks in question warrant additional closed area 
protections, not less.
    2. Commenters stated that access to closed areas would provide only 
short-term nominal economic gain but could cause long-term biological 
impacts. Commenters assert that because of this the areas should remain 
closed.
    3. Many commenters presented arguments alleging the Framework 48 
action illegally segments the required NEPA analysis from the Council's 
ongoing Omnibus Habitat Amendment. Commenters assert that NMFS and the 
Council are seeking to avoid development of an Environmental Impact 
Statement (EIS) to evaluate the potential impact of providing potential 
access to closed areas.
    4. Some commenters allege the decision to provide sector exemptions 
for closed area access was made before the results of analysis were 
available.
    5. Many comments were received stating the closed area 
consideration requires an EIS analysis under NEPA as it is significant 
as defined by NEPA criteria, the Framework 48 analysis is insufficient, 
and the Framework 48 EA's Finding of No Significant Impact (FONSI) 
conclusions are not supported by the available analysis.
    6. Commenters stated the impacts to Marine Mammal Protection Act 
(MMPA) and Endangered Species Act (ESA) protected species are 
inadequate and, in some regards, completely absent from the Framework 
48 analyses.
    7. Commenters state the rulemaking and analytical procedure used 
for Framework 48 was inappropriately conducted, insufficient, and 
circumvented necessary public participation and comment.
    8. Commenters stated the closed areas in question are 
mischaracterized as redundant mortality control closures in Framework 
48. Commenters state that the areas under consideration were created 
for and provide much broader benefits than just controlling fishing 
mortality.
    9. Commenters allege Framework 48 analysis did not analyze a 
sufficient range of alternatives when considering closed area access 
through sector exemption.
    10. Commenters assert the scope and scale of the action requires an 
FMP amendment, stating the action cannot be taken through a framework 
adjustment to the FMP.
    Response: The comments opposing modification of the allowable 
sector exemption request provisions are misapplied with respect to the 
Framework 48 rulemaking process. NMFS is not permitting access to year-
round closed areas through the measures implemented in this final rule. 
Nor is NMFS modifying or changing any closed areas or essential fish 
habitat areas or boundaries. This rule only modifies the list of 
allowable sector exemptions under current regulations. This 
modification itself does not provide any access to groundfish closed 
areas at this time. This action merely allows sectors the opportunity 
to request access to portions of year-round closed areas through their 
annual sector operations plans by removing the prohibition on granting 
such requests. A more extensive analysis than was conducted for 
Framework 48 is necessary for NMFS to make any determination on 
potential sector access to closed areas for FY 2013, or in subsequent 
fishing years.
    The Regional Administrator, in conjunction with requesting sectors, 
is obligated under the sector exemption process established in 
Amendment 16 to consider whether to approve sector exemption requests 
that are not prohibited under the FMP. To do so, analysis of the 
requested exemptions is necessary to determine if the exemption in 
question can be approved. From the Amendment 16 final rule preamble (75 
FR 18276; April 9, 2010):

    Sectors may [still] request and analyze additional exemptions as 
part of their yearly operations plans, but such exemptions need to 
be approved by the Regional Administrator.

    The accompanying regulations for the sector exemption approval 
process are found at Sec.  648.87(c)(1) and(2). Summarized, these 
regulations specify that NMFS, through the Regional Administrator, will 
allow exemptions that are consistent with the goals and objectives of 
the FMP and conduct the approval process consistent with the 
Administrative Procedure Act (APA) and other applicable law. The other 
applicable law includes, among others, NEPA, the Magnuson-Stevens Act, 
MMPA, ESA, and the Regulatory Flexibility Act.
    By lifting the prohibition on sectors requesting access to year-
round closed areas, NMFS will evaluate requests in the same process as 
any exemption request consistent with the process outlined in Amendment 
16 and past practices. Sector requests were made in the sector's 
respective 2013 operations plans submitted in September 2012 in 
anticipation of this prohibition being lifted in this action to meet a 
May 1, 2013 effective date. However, NMFS reiterates that no decisions 
on sector exemption requests have been made to access closed areas in 
conjunction with Framework 48 since this framework simply addresses a 
procedural issue pertaining to closed area openings. Further, since the 
necessary analyses have not yet been completed, an additional sector 
rule to consider and potentially approve any year-round closure 
openings would be delayed beyond May 1. Indeed, NMFS must still decide 
which, if any, exemptions will be granted, and, if granted, whether 
seasonal, area, gear or other types of limitations are necessary to 
ensure any exemption will be consistent with the conservation and 
management requirements of the groundfish FMP and the Magnuson-Stevens 
Act. The analysis in Framework 48 is based, in part, on a preliminary 
analysis by the Closed Area Technical Team (CATT) that provides an 
initial overview of potential impacts. However, the analysis did not 
specifically analyze the actual impacts of granting any exemptions 
because Framework 48 is not intended to make decisions concerning the 
closed area exemption requests. The level of detail in these analyses 
for Framework 48 was sufficient for the type of change implemented in 
Framework 48 but is not sufficient to determine if, when, or how 
sectors may be permitted closed area access through exemptions. 
Accordingly, the change implemented by Framework 48 to allow NMFS to 
consider granting sectors access to closed areas has no actual impacts.
    NMFS and the Council initiated the process of evaluating potential 
sector access to closed areas late in 2012 when the issue was first 
raised at the Council level. The CATT was formed in part for this 
purpose and provided a cursory

[[Page 26145]]

analysis of closed areas and the potential impacts of allowing fishing 
in these areas for Framework 48. CATT analysis is ongoing and continues 
to evaluate in greater detail the appropriate areas needed to provide 
protection to rebuilding groundfish stocks. Many of the issues and 
concerns raised in the extensive public comments submitted for 
Framework 48 are important considerations in NMFS' ongoing analysis. In 
response to the concerns raised, the Council limited the potential 
access to the closed areas only to the portions that did not infringe 
on currently defined habitat areas or any currently proposed areas 
included in the draft Omnibus Habitat Amendment. NMFS is concerned that 
any access provided to closed areas must be done in a responsible 
manner such that stock recovery is not impeded, protected species are 
not negatively impacted, and sensitive habitat and life stages are 
protected. This ongoing analysis, when complete, will be provided to 
the public with opportunity for review and additional comment, 
consistent with the sector exemption review process conducted for all 
sector exemption requests and APA.
    NMFS has initiated an EA in connection with the separate rulemaking 
process concerning these requests to conduct the specific environmental 
impact evaluations for the closed area sector exemption requests. In 
connection with the separate rulemaking concerning these requests, if 
the ongoing analysis determines that a FONSI cannot be supported for 
access to the closed areas, the agency may elect to develop an EIS 
prior to proceeding or cease closed area access consideration until 
such time that the Council's Omnibus Habitat Amendment is completed.
    Once informed by analysis, NMFS will also publish a proposed rule 
outlining what type of access, if any, may be granted to sectors as 
exemptions in the 2013 fishing year. The proposed rulemaking would also 
outline any conditions required for exemption use, if granted.
    For example, as was stated publically by the Northeast Regional 
Administrator in the December 2012 and January 2013 Council meetings, 
NMFS is analyzing the potential to provide seasonal access with 
selective gears to Closed Areas I and II, and the Nantucket Lightship 
Closed Area, to target healthy fish stocks. Generally, NMFS is 
analyzing in what months closed areas may be accessed to avoid peak 
spawning activity of depressed fish stocks, gear conflicts, and 
encounters with MMPA and ESA protected species. NMFS is also evaluating 
habitat-related impacts. The analysis is examining what selective gears 
may better minimize catch of depressed fish stocks while providing 
strong catches of healthy stocks. The initial analysis along with 
substantial public opposition to opening closed areas in the Gulf of 
Maine, i.e., the Western Gulf of Maine and Cashes Ledge Closed Areas, 
suggest that it may not be possible or desired to provide access to 
these areas in FY 2013.
    NMFS has also stated in the proposed sector operations plan 
approval rule (78 FR 16220; March 14, 2013) that it is considering a 
100-percent monitoring requirement for participation in any closed area 
exemption granted for FY 2013. NMFS acknowledges the potential costs 
associated with monitoring are substantial and may limit the utility of 
closed area access, if provided for FY 2013. NMFS views this 
requirement as a necessary component to responsibly monitor activity in 
closed areas, if access is permitted in FY 2013. NMFS has already 
committed to providing funding for required at-sea monitoring for 
general fisheries and is looking into other possible means to fund all, 
or part, of the monitoring requirements being considered for potential 
approval of requests for access to year-round closure areas.
    NMFS has been clear that the specific evaluation of closed area 
access would occur as a separate step through an independently 
severable analysis and, if warranted, rulemaking. NMFS currently 
anticipates that the ongoing analysis will continue through mid-June. 
Should the analysis support responsible alternatives for sector access 
to closed areas, proposed rulemaking would occur this summer.
    The issues raised in public comment for this rule, as NMFS has 
pointed out, will be analyzed if and when NMFS decides to propose 
granting any sectors access to closed areas. Most of the issues raised 
in these comments already have been identified by NMFS as part of the 
closed area sector exemption analysis initiated in early 2013 and 
helped inform the Council in limiting closed areas access to avoid 
conflicts with existing and future habitat concerns.
    The removal of the prohibition on requesting access to specific 
portions of closed areas as a sector exemption implemented by this rule 
is not self-actuating and in that sense is more procedural in nature. 
It removes a regulatory impediment to granting such requests but does 
not, itself, provide closed area access or predetermine that such 
access would be granted when requested. NMFS has determined, however, 
that the concept of allowing access to closed areas on a limited and 
controlled basis that NMFS can prescribe through the sector exemption 
process is supportable and necessary, consistent with Magnuson-Stevens 
Act, National Standards and other requirements, to provide possible 
mitigation of negative impacts resulting from severe cutbacks in catch 
limits by facilitating achieving optimum yield (OY) for some groundfish 
stocks. For that reason, NMFS does not believe it is necessary to fully 
analyze potential, speculative impacts that do not result from this 
action nor to disapprove the procedural measure allowing sectors to 
request and be granted access based on the specific objections raised 
by public comment. As long as the types of concerns raised by the 
public regarding access to closed areas can be adequately addressed or 
accounted for in the sector exemption process, there is no basis for 
disapproving the procedural measure in Framework 48 allowing access to 
be granted. To illustrate that potential, the following provides NMFS' 
preliminary responses to each enumerated objection based on NMFS' 
ongoing analysis on whether to grant limited access to closed areas to 
sectors:
    1. The areas should not be opened because they provide important 
protection for critical life stages and spawning activities of 
critically depressed stocks. NMFS acknowledges that the status of many 
key NE groundfish stocks is poor. NMFS is concerned about potential 
impact on stock recovery that may result from access to closed areas 
and this is a key investigation being developed in the ongoing closed 
area sector exemption analysis. However, no decision has been made at 
this time on whether sectors will be granted access to closed areas in 
FY 2013, nor has a decision been made on how access may be structured 
if granted.
    The CATT is deeply involved in ascertaining how potential changes 
in closed areas as part of the Omnibus Habitat Amendment may impact 
fish stocks. NMFS is an active member of the CATT and has already been 
making use of CATT-generated analyses in its sector exemption 
evaluation. NMFS is conducting independent evaluation of the specific 
impact of seasonal access with selective gear in Closed Areas I and II, 
and the Nantucket Lightship Closed Area, as part of the closed area 
sector exemption evaluation process. NMFS's analysis is geared toward 
identifying key times in which access to closed areas may potentially 
disrupt or otherwise impact spawning activities with the intent of not 
providing closed area access during such times. The

[[Page 26146]]

analysis is ongoing and will be provided to the public with an 
anticipated availability of mid-summer, 2013.
    2. Access to closed areas would provide only short-term nominal 
economic gain but could cause long-term biological impacts. NMFS agrees 
that the limited analysis conducted for Framework 48 indicates that 
economic benefit is difficult to predict one way or the other. If 
economic benefit is small, that may mean that the closed areas are not 
that important to groundfish stocks and access to the closed areas is 
not detrimental. On the other hand, if there are significant amounts of 
groundfish stocks in the closed areas, it may be important to allow 
fishing on a controlled and conservative basis in order to maximize OY 
for those stocks. To be sure, as indicated in these analyses, the long-
term impact on recovering stocks in these closed areas is of paramount 
importance. But to deny any opportunity to fish in the closed areas 
unnecessarily limits the possibility of providing the fishing industry 
the opportunity to catch as much fish as possible as long as the long-
term health of groundfish stocks is protected.
    3. The action illegally segments the required NEPA analysis from 
the Council's ongoing Omnibus Habitat Amendment. NMFS disagrees that 
either Framework 48 or the as-of-yet completed closed area sector 
exemption request evaluation segments the NEPA analysis. Classic 
segmentation concerns raised by commenters pertain only to situations 
wherein the responsible agency seeks to avoid development of an EIS. 
This is not the case here. In its broadest sense, segmentation occurs 
when an agency impermissibly narrows the scope of its NEPA analysis by 
either failing to evaluate the environmental impacts of an entire 
multi-stage decision where irreversible commitments are made at the 
initial decision point without consideration of the environmental 
impacts of later stages; or, where the agency excludes connected 
actions (i.e. those that are interrelated or interdependent) from the 
scope of its NEPA analysis. Neither of those circumstances is present 
in this case. In addition, the initial decision to allow sectors to 
request exemptions from closed sectors does not make any irretrievable 
commitment. That is, it would not commit the agency to any future 
course of action that will cause adverse consequences to the 
environment. Again, prior to approving or disapproving any specific 
request for access, the agency will consider the environmental impacts 
and prepare the appropriate level of NEPA analysis; i.e. an EA or EIS. 
Moreover, the actions at issue are not interdependent or interrelated; 
each is supported by its own rationale and has independent utility as 
explained below. The EA for Framework 48 rightly supports a FONSI, in 
large part, because rescinding the prohibition on sectors requesting 
specific closed area exemptions does not itself result in actual 
impacts on the environment, nor does it cause indirect effects that are 
later in time but reasonably foreseeable. Any potential indirect 
effects are merely speculative. NMFS has acknowledged that an EIS will 
be completed if a FONSI cannot be supported based on the EA evaluating 
the closed area sector exemption requests. The EA is serving its 
intended purpose to facilitate our determination as to whether any 
significant impacts will result from a decision on closed area 
exemption requests, and thus whether an EIS may be required for that 
action. If NMFS determines that the impacts from a later action to 
grant some level of access to closed areas would necessitate 
consideration in an EIS, and NMFS decides to move forward with said 
action rather than wait for completion of the ongoing Omnibus Habitat 
Amendment, a Notice of Intent would be published in the FR to make the 
public aware of the agencies intent to prepare an EIS. As indicated 
here, NMFS is interested in developing potential alternatives for 
closed area sector exemption analysis that seek to minimize potential 
impacts. To the extent that commenters contend that this Framework 48 
measure is an attempt to unlawfully ``segment'' the larger Omnibus 
Habitat Amendment to avoid an EIS, those concerns are misplaced. In 
support of their comments, they cite to federal court decisions that 
define segmentation as splitting federal actions into smaller units to 
avoid developing an EIS. The Council and NMFS have every intention to 
and are preparing an EIS for the Omnibus Amendment. Moreover, the 
inclusion of the procedural measure to allow access to closed areas is 
not being ``split off'' from the Omnibus Habitat Amendment. The measure 
is a discrete action, independently justified and analyzed that does 
not foreclose any consideration of alternatives in the Omnibus Habitat 
EIS nor does it result in obviating the need to prepare an EIS for the 
Omnibus Habitat Amendment. While the Framework 48 measure may involve 
similar issues as the Omnibus Habitat Amendment, they are not directly 
connected actions. NEPA is a procedural statute intended to require 
full analysis of environmental impacts and is not intended to dictate 
outcomes. All actions that related to closed areas do not have to be 
evaluated within the scope of a single NEPA document. The fact that the 
Omnibus Habitat Amendment is examining closed areas in a separate 
action through an EIS does not preclude the Council and NMFS' 
consideration and adoption of independent measures in the meantime that 
are tangentially related to the amendment, as long as those actions 
independently satisfy NEPA requirements. Moreover, even if there were a 
credible basis for concluding that the Framework 48 measures was a 
splitting off of an action from the Omnibus Habitat Amendment, for 
which there is not, the Framework 48 measure meets the test cited by 
commenters concerning segmentation. The measure is a discrete action, 
independently justified and analyzed that does not foreclose any 
consideration of alternatives in the EIS being prepared for the Omnibus 
Habitat Amendment nor does it irretrievably commit resources. Thus, 
NMFS considers the scope of the EA supporting the implementation of the 
Framework 48 measure allowing the granting of access to closed areas to 
be consistent with NEPA.
    4. The decision on closed areas was made before the results of 
analysis were available. NMFS disagrees that any decision to grant 
access to closed areas has been made. As has been stated previously, 
the action in Framework 48 only removes the prohibition on sectors 
requesting year-round closed area exemptions. It does not grant or 
guarantee any such exemptions will be provided much less how any 
exemptions would be structured, if granted. NMFS has stated multiple 
times its intent to conduct thorough analyses to inform decision-making 
on the requests for closed area sector exemptions. This analysis is 
ongoing and, as such, no decisions on closed area access have been made 
at the time of this rule's publication. Any access proposed will be 
fully informed by rigorous analysis that began early in 2013 and is 
anticipated to be completed during the summer of 2013. Rulemaking, 
consistent with APA, will also occur as needed.
    5. The action requires an EIS analysis under NEPA as it is 
significant as defined by NEPA criteria, the Framework 48 analysis is 
insufficient, and the FONSI conclusions are not supported by the 
available analysis. NMFS disagrees with the assertions made by the 
commenters. Given the action implemented in Framework 48 to allow 
sectors to request exemption from

[[Page 26147]]

closed areas not designated for habitat conservation, the analysis was 
wholly appropriate. In fact, it went beyond what was necessary given 
that the procedural change involved with the Framework 48 action does 
not itself result in any impacts on the environment. Because the action 
in Framework 48 merely removes a regulatory prohibition and does not 
actually provide any closed area access, the FONSI determinations are 
appropriate. NMFS acknowledges that the analysis conducted by the 
Council in the Framework 48 EA does discuss potential impacts if closed 
area access is granted. However, NMFS asserts that the potential 
impacts discussed are applicable to the cumulative impacts of the 
action, but are not determinative in the FONSI, nor are they 
specifically relevant to the Framework 48 measure because no actual 
impacts will occur.
    As previously stated, NMFS has initiated an EA for evaluation of 
potential closed area sector exemptions in FY 2013. However, the 
substantive analyses needed to determine if a FONSI can be supported 
have not yet been completed. NEPA process is clear that if a FONSI 
cannot be supported, then an EIS must be developed if the agency wishes 
to continue the development of the action. NMFS is aware of the timing 
considerations involved with the Council's initial request to consider 
sector closed area access exemptions in FY 2013. If analyses conclude 
that a FONSI determination cannot be made for potential closed area 
exemptions, even if the access is constrained in a manner to reduce or 
eliminate potential impacts, NMFS and the Council will need to evaluate 
what is the most logical next step: To develop a separate EIS to 
consider only potential sector closed area exemptions or to defer any 
access considerations until such time that the Council's Omnibus 
Habitat Amendment is completed. It is neither possible nor appropriate 
at this time to try and determine if a FONSI can be supported for 
sector year-round closed area exemptions.
    6. The impacts to species afforded protections under MMPA and ESA 
are inadequate and, in some regards, completely absent from the 
Framework 48 analyses. NMFS acknowledges that substantial additional 
analyses are necessary to fully evaluate potential marine mammal and 
ESA listed, threatened, and candidate species impacts associated with 
potential closed area access prior to considering if, when, and how 
access may be provided. Much of the Framework 48 analysis was a cursory 
evaluation of potential future impacts if sectors were provided access 
to closed areas. The impacts on MMPA and ESA species cannot be 
specifically considered or determined until it is known what 
limitations may be prescribed on closed area access if access is 
granted (see preceding response pertaining to analysis). However, the 
conclusions reached for cumulative effects analysis and FONSI statement 
determinations consider the procedural nature of the actual change 
implemented by Framework 48. Specifically, the action to rescind the 
prohibition on sectors requesting exemptions from closed areas without 
providing any actual access to such areas. NMFS has initiated an ESA-
mandated Section 7 consultation and is reviewing potential impacts to 
marine mammals in the closed area sector exemption consideration. As 
previously stated, these analyses will be made available for review and 
comment in conjunction with proposed rulemaking this summer. NMFS was 
aware of many of the issues and concerns raised in public comment on 
Framework 48 and will make use of all the comments received to better 
ensure that the ongoing sector exemption review thoroughly examines the 
potential impacts for use in decision-making.
    7. The rulemaking and analytical procedure used was inappropriately 
conducted, insufficient, and circumvented necessary public 
participation and comment. NMFS disagrees with assertions made by the 
commenters. NMFS reiterates that it has been forthright about the 
potential closed area sector exemption process since outlining the 
sector exemption approach as a possibility for considering closed area 
access in FY 2013. For clarity, here is the process as it has been 
described and occurred: First, the Council considered and ultimately 
recommended to remove the prohibition on sector exemption requests on a 
limited basis for year-round closed area access not designated as 
habitat areas in Framework 48. This component was developed though the 
Council process and provided substantial opportunity for public 
participation and input. Many of the same objections and comments 
raised in connection with this rule were considered in the Council's 
decision to include the Framework 48 measure and influenced its 
decision to limit access to non-habitat areas. NMFS has conducted 
Framework 48 rulemaking consistent with the APA by providing 
opportunity for public comment.
    Concurrent to NMFS review and rulemaking for the Framework 48 
component, sectors were informed that they could submit closed area 
exemption requests in their FY 2013 sector operations plans in the fall 
of 2012 in anticipation that access could be potentially approved as 
early as the start of FY 2013, if the Framework 48 procedural measure 
was approved. This was done even though the prohibition on such 
requests was still in effect. The purpose of this was twofold: To 
better understand the scope and scale of potential requests moving 
forward in the exemption review and analysis and to help streamline the 
review process so that if closed area access was provided at some point 
in FY 2013, some of the administrative process could be frontloaded.
    Finally, NMFS explained that the agency would undertake the 
necessary review and analysis of closed area sector exemption requests 
if the provisions in Framework 48 were approved. Now, with this rule, 
NMFS has approved the Framework 48 provisions that allow sectors to 
request closed area exemptions, interested sectors have submitted 
requests for FY 2013, and NMFS is continuing the process of reviewing 
and analyzing those requests. This is not dissimilar to the normal 
process undertaken for sector exemption review except that a regulatory 
change was needed to make the requests in question legal.
    Another difference in the closed area consideration that differs 
from the standard sector exemption review process is that there is no 
time certain needed for completion of the review process. Closed area 
exemption analysis was anticipated to be extensive and it was doubtful 
from the onset that analysis would be complete for the May 1, 2013, 
start of the fishing year. Because the closed area sector exemption 
evaluation is not tied to the start of the fishing year, this affords 
additional time for review, analysis, and action development and, 
because the concerns raised in the Framework 48 public comment, 
additional time for public review and comment through normal APA 
rulemaking. NMFS is proceeding as quickly as possible; however, there 
are substantial analyses that need to be completed as part of the 
closed area access consideration process.
    We are hopeful that analyses will be completed in time to allow the 
public and Council an opportunity to review the analytical work prior 
to the June Council meeting.
    8. The areas in question are mischaracterized as redundant 
mortality control closures. NMFS acknowledges that the mortality 
control characterization of those portions of closed areas not 
specifically designated

[[Page 26148]]

as habitat conservation areas has become a misapplied term of art. The 
record clearly shows that the areas in question were created with 
several considerations in mind, including protection for spawning 
stocks and improvement of benthic habitats. The argument that any 
additional constraints on mortality under a ``hard TAC'' or ACL system 
are redundant is unsubstantiated. By the logic implied by this 
statement, no additional management constraints other than a catch 
limit would be necessary to successfully manage fisheries. Clearly, 
there are benefits to establishing additional controls on fisheries 
such as gear restrictions to minimize take of juvenile fish or to 
reduce take of other more depleted stocks. NMFS and the Council's CATT 
are conducting analyses that seek to provide information on the 
potential stock benefits of providing protections to critical life 
stages and/or spawning periods through restricted time and area access 
to existing closed areas.
    9. An insufficient range of alternatives were analyzed. NMFS 
disagrees. In considering whether a sufficient range of alternatives 
have been examined in the context of fishery management, it must be 
acknowledged that each framework or amendment is incremental in nature 
and builds on extensive examination of myriads of alternatives of how 
best to manage a fishery. So, any consideration of specific new measure 
has benefitted from the examination of many alternatives in previous 
actions. For example, one commenter claims that exempted fishing 
permits (EFPs) should have been considered as an alternative for 
accessing closed areas. This option was discussed and considered by the 
Agency in the initial discussions on how to potentially provide closed 
area access in FY 2013. EFPs can be issued by NMFS under existing 
regulations and, as such, are an option that requires no specific 
Council analysis. If used, the EFP process would conduct the necessary 
analyses.
    During the development of Framework 48, the Council considered and 
rejected potential access to habitat closed areas as well as several 
modifications to closed area boundaries. The status quo, wherein no 
modification to the sector exemption prohibition list was made, was 
analyzed in Framework 48. The remaining alternative analyzed was, as 
previously described, the procedural change in the sector exemption 
prohibition list to allow sectors to request exemptions for access to 
year-round closure areas not defined as habitat closure areas. Having 
rejected alternatives that modified closed area boundaries, the 
remaining option of adopting the procedural change considering the non-
habitat areas that remained for consideration was sufficient. As 
previously stated, this was the only action undertaken by Framework 48.
    Potential alternatives for actual closed area exemptions will be 
developed by NMFS as part of the sector exemption review. NMFS has 
previously stated it is considering a sub-set of the available so-
called ``mortality'' closed areas for potential sector exemptions. To 
date, NMFS has indicated it is interested in examining alternatives 
that permit seasonal access to select areas with selective gear types 
designed to increase access to healthy stocks while minimizing impacts 
on depressed fish stocks and ESA-listed, threatened, and candidate 
species, and marine mammals.
    10. The action cannot be undertaken by a framework adjustment to 
the FMP. NMFS disagrees that consideration of closed area sector 
exemption access cannot be undertaken through framework adjustment to 
the FMP. Furthermore, NMFS asserts that the Oceana v. Evans (389 
F.Supp.2d 4 (2005)) decision is not applicable in the context raised by 
commenters.
    Section 648.90 of the NE Multispecies regulations contains among 
other things, a description of the Council's FMP framework adjustment 
process. Section 648.90(a)(2)(iii) lists items that may be addressed 
through a framework adjustment. This list includes changes to closed 
areas, management boundaries, essential fish habitat, and, most on 
point for this action, sector administration provisions and sector 
allocation requirements and specifications.
    Several commenters assert that the adjustment contemplated access 
to year round closed areas through sector exemption requests, is beyond 
the scope of what is permissible in a framework adjustment. They cite 
in support of their position that the action cannot be undertaken 
through framework adjustment, citing Oceana v. Evans that states that 
allowing access to closed areas is a fundamental change to the FMP and 
is also inconsistent with the goals and objectives established for the 
FMP.
    Oceana v. Evans specified that an FMP amendment would be necessary 
when a new concept or radical changes to an existing concept were made 
in a way not considered in the previous FMP, prior amendments, or in 
hearings held in preparation of such actions. The findings in that case 
are distinguishable from the facts in Framework 48. The FMP involved in 
that case, as contrasted to the framework, did not have specific 
listing of a frameworkable measure to alter the boundaries of EFH. 
Moreover, closed area access is not a new concept in the FMP, nor is it 
a radical change to procedurally change the prohibition on sectors 
requesting closed area access exemptions. Various levels of access and 
modification of closed areas has occurred on numerous occasions since 
the inception of the FMP and though several subsequent amendments. As 
previously stated, all the Framework 48 action does is remove the 
prohibition on sectors requesting access to closed areas through 
exemptions. It does not change the boundaries of the closed areas or 
EFH, nor does it fully open the closed areas. It only permits the 
potential for limited access to year-round closed areas by sectors. 
Additional analysis is necessary to determine if, when, and how sectors 
may be exempted to access these closed areas.
    Beyond the Framework 48 action, the areas where NMFS is examining 
potential sector access through exemptions are all areas that are open 
seasonally and to specific gears through either Special Access Programs 
or scallop rotational access areas. Inherent in the process previously 
outlined for review and analysis of potential sector exemptions, i.e., 
the next phase under consideration by NMFS, is the need to ensure 
consistency with the goals and objectives of the FMP. If the action 
eventually contemplated by NMFS were inconsistent with the goals and 
objectives, then it would be a fair assertion that the action in 
question should be developed through an FMP amendment. Because NMFS 
intends to analyze alternatives that seek to minimize potential 
negative impacts and, as a result, remain wholly consistent with the 
FMP objectives, it asserts that the sector exemption evaluation for 
closed area access can be developed through a framework adjustment.
    In summary, NMFS asserts that the action implemented by Framework 
48 is primarily procedural in nature with no actual environmental 
impacts, and, as such, the majority of comments and issues raised do 
not apply. Rather, they are issues to be addressed moving forward in 
the sector exemption review process. NMFS has determined that the 
concept of allowing access to closed areas on a limited and controlled 
basis through the sector exemption process is supportable and 
necessary, consistent with Magnuson-Stevens Act, National Standards and 
other requirements. The access, if ultimately granted is designed

[[Page 26149]]

to provide possible mitigation of negative impacts resulting from low 
FY 2013 catch limits by facilitating achieving OY for some groundfish 
stocks. NMFS intends to only consider potential access to the closed 
areas in areas that do not infringe on currently defined habitat areas 
or any currently proposed areas included in the draft Omnibus Habitat 
Amendment. Furthermore, NMFS is developing the analyses around 
alternatives that provide potential seasonal access to Georges Bank and 
Southern New England with selective gear. NMFS has been and continues 
to work on analyses that seek to address many of the issues raised. 
NMFS anticipates providing information on the status of the analysis 
and rulemaking at the June 2013 Council meeting.

Requirement To Stow Trawl Gear While Transiting

    Comment 30: Eight commenters, including the Council, the Portland 
Fish Exchange, AFM, NSC, MEDMR, and three individuals, supported 
removing trawl gear stowage requirements for groundfish vessels. 
Commenters stated that the gear stowage requirements are no longer 
useful and that VMS is sufficient to enforce transiting of closed 
areas. Some commenters urged NMFS to approve this measure because the 
existing requirements are unsafe. One commenter suggested that the 
existing requirements actually make it easier for a vessel to illegally 
fish in a closed area, because it gives the illusion that trawl gear is 
properly stowed from the air. The Council also noted that neither the 
USCG nor NMFS representatives opposed the proposed measure when it came 
up for vote at Council meetings.
    Response: NMFS disagrees that the existing trawl gear stowage 
requirements are no longer useful and that VMS is a sufficient 
alternative tool for enforcement of closed areas. As discussed in Item 
4 of the preamble to this final rule, a few VMS positions or a reduced 
calculated speed in a closed area is not sufficient to enforce the 
prohibition on fishing when vessels are allowed to transit a closed 
area. The purpose of gear stowage requirements were not just to make 
stowed gear visible from the air, but to increase the time it would 
take for vessels to hide illegal fishing activity before a boarding by 
enforcement personnel at sea. They could also be a deterrent by 
increasing the likelihood of being caught. Eliminating these 
requirements for only some vessels would complicate enforcement and 
could make it difficult to detect and prosecute unlawful fishing in 
closed areas, which would undermine the effectiveness of these areas to 
achieve the objectives for which they were established as conservation 
and management measures in the FMP, including the protection of 
spawning and juvenile fish, habitat, and protected species. To the 
extent that closed areas were established to comply with sections 
303(a)(1) and (7), and National Standard 9 of the Magnuson-Stevens Act 
to rebuild or ensure the long-term sustainability of fish stocks and 
fisheries, to minimize the adverse effects of fishing on habitat, or 
minimize bycatch of certain stocks or protected species, undermining 
these measures would be inconsistent with these provisions. Although 
the Council commented that the requirements are a relic of an earlier 
management regime, it did not provide any additional rationale to 
address NMFS concerns that eliminating these requirements would 
undermine the conservation objectives of closed areas and be 
inequitable to vessels in other FMPs. It is also not clear why the 
Council believes these measures do not apply in a sector management or 
ACL and AM system, when sector vessels are still prohibited from 
fishing in closed areas.
    Although this measure would have some safety benefits for 
groundfish vessels, it would have been inconsistent with National 
Standard 4 of the Magnuson-Stevens Act requiring measures to be fair 
and equitable because it does not extend the safety benefits to other 
fisheries. Framework 48 also did not provide sufficient rationale as to 
why eliminating these requirements, rather than modifying them, 
satisfied the criteria of National Standard 10 to reduce risk while 
meeting the needs of conservation and management. For these reasons, 
NMFS has disapproved this measure in Framework 48.
    NMFS does share commenters concerns, however, that the existing 
trawl gear stowage requirement can be unsafe for crew in bad weather. 
That is why NMFS will be initiating a separate management action to 
consider modifications to the gear stowage definition recommended by 
the Council's VMS/Enforcement Committee to address safety concerns 
while still meeting the needs of conservation and management. With 
respect to one commenter's concern that this measure actually makes it 
easier for vessels to hide illegal fishing activity, the VMS/
Enforcement Committee considered this issue during its deliberations 
and examined different materials that could be used to cover the net 
while still making it visible from the air. NMFS intends to consider 
these materials and other ideas the Council or industry may have to 
improve the enforcement of these requirements from the air in its 
separate rulemaking.
    Comment 31: The USCG and CLF opposed eliminating gear stowage 
requirements for groundfish trawlers and urged NMFS to disapprove this 
measure. The USCG commented that the proposed measure would make 
current and future closed areas virtually unenforceable. While VMS is 
an effective tool to enforce closed areas when transits are not 
allowed, it is not sufficient to document vessel activities when 
transiting is allowed. The USCG contends that eliminating these 
measures would reduce the time required to set and recover fishing 
gear, and thereby undermine enforcement of transiting restrictions at 
sea. The USCG also maintains that inconsistent gear stowage 
requirements would unnecessarily complicate enforcement, undermining 
the conservation objectives of closed areas. Furthermore, the USCG is 
concerned that this measure does not extend safety benefits to vessels 
in other FMPs, raising serious equity issues. CLF noted this measure 
was adopted against the advice of the Council's VMS/Enforcement 
Committee, and is concerned that removing these requirements would 
further exacerbate what it believes to be already an extensive problem 
of illegal fishing activity and misreporting of catch.
    Response: NMFS agrees with the commenters that the proposed measure 
does not adequately balance the needs of safety with those of 
conservation and management, which is one reason why NMFS has 
disapproved this measure in Framework 48. NMFS agrees that these 
requirements are still needed to enforce the prohibition on fishing in 
closed areas and do not wish eliminating these requirements in the name 
of safety to open up a loophole for illegal fishing that would 
undermine the conservation benefits of closed areas for protecting 
spawning fish and habitat. Given that NMFS is initiating a separate 
rulemaking to address safety issues while ensuring and even improving 
the effectiveness of the requirements for enforcement, NMFS has 
disapproved this measure in Framework 48.

Correction to Eastern U.S./Canada Quota Monitoring

    Comment 32: The Council, CLF, Earthjustice, and CCCHFA commented 
against NMFS proposed correction to the regulations. The Council and 
other commenters questioned NMFS' authority to make this change without 
explicit Council action, and asked NMFS to disapprove this change,

[[Page 26150]]

particularly in light of continued concerns of misreporting of catches 
of Eastern GB stocks. The Council also noted that NMFS proposed change 
would not be consistent with the regulations that the Council deemed as 
consistent with Amendment 16. The commenters urged NMFS to return to 
the former method of monitoring, counting all catch of cod, haddock, 
and yellowtail against Eastern GB TACs, to eliminate possible 
incentives to misreport these stocks that may have arisen by NMFS 
change to its monitoring practices since 2010. Earthjustice also 
requested that NMFS apply its correction retroactively and adjust 
catches for FY 2010-2012 and payback any overages that result to be 
consistent with the regulations.
    Response: NMFS acknowledges the clarification provided by the 
Council and has disapproved its proposed correction in this final rule. 
In light of this clarified interpretation of Amendment 16, NMFS will 
revise its quota monitoring methods beginning with FY 2013 to be 
consistent with the regulations and will count all catch of cod, 
haddock, and yellowtail caught on trips inside and outside the Eastern 
U.S./Canada Area against the U.S./Canada TACs, sub-ACLs, and ACEs. The 
details of how NMFS intends to implement this monitoring method are 
described in Item 4 of the preamble. NMFS does not intend to apply this 
measure retroactively to FY 2010-2012, because that would unfairly 
penalize sector vessels and the common pool by changing the rules long 
past the time they could do anything to comply with them. NMFS 
disagrees that adjusting catches in FY 2010-2012 would result in more 
accurate catch estimates, but rather estimates that are consistent with 
the letter of the regulations. Estimates under the precautionary method 
may be more accurate, if one believes estimates of Eastern GB catches 
are biased low because vessels report some catch as from GOM or Western 
GB. Neither the Council nor NMFS, however, believe that all catches of 
cod, haddock, or yellowtail on all multi-area trips into the Eastern 
U.S./Canada Area are actually caught in Eastern GB. The purpose of this 
measure is not to apportion catch more accurately, but to provide a 
disincentive to fish in both the Eastern Area and Western GB/GOM and 
thereby be able to misreport catch. One would expect that if this 
measure had been in place during FY 2010-2012, fewer trips would have 
been fished in both the Eastern Area and other areas. Thus, applying 
this measure retroactively would not necessarily result in catch 
estimates that are more accurate, but rather estimates that are perhaps 
biased high instead of low. Retroactively adjusting catch estimates 
would also have implications for other stocks, biasing low catches of 
Western GB stocks and GOM cod and haddock, which would potentially 
underestimate mortality on those stocks. NMFS maintains that catch 
estimates in FY 2010-2012 were consistent with NMFS interpretation of 
Amendment 16 at the time, as NMFS described in the preamble to the 
Amendment 16 final rule, and the guidance NMFS provided to common pool 
and sector vessels for complying with the regulations. NMFS will revise 
its monitoring protocol for FY 2013 going forward, which would allow 
sector and common pool vessels to plan their fishing seasons based on 
the new rate of utilization of their Eastern allocations.
    Comment 33: MEDMR, NSC, AFM, and one individual commented in 
support of NMFS proposed change to the regulations. The commenters 
believed that NMFS existing monitoring method was consistent with the 
Council's intent in Amendment 16 to increase operational flexibility 
for vessels to fish in multiple areas and to apportion catch according 
the area reported fished. Some commenters argued that there is no 
evidence of widespread misreporting, and emphasized that even if there 
was it would have management and not biological implications. Some 
commenters expressed concerns that returning to the Framework 42 method 
of catch attribution would not fix misreporting issues, but would only 
reduce flexibility for vessels, thereby making trips to Eastern GB too 
costly and reducing vessels' ability to target GB haddock. One 
commenter was concerned that the Framework 42 method would actually 
result in less accurate catch estimates by incorrectly apportioning 
catch.
    Response: NMFS understands commenters concerns, but in light of the 
clarification received from the Council, NMFS is disapproving its 
proposed correction in this final rule and will instead revise its 
monitoring protocol to be consistent with the regulations. NMFS does 
not believe it has authority in the context of this action to 
reconsider and override the Council's clarified intent in Amendment 16 
regarding this measure. A detailed description of how NMFS intends to 
implement the requirements is available in Item 5 of the preamble. NMFS 
agrees that the intent of Amendment 16 was to attribute catch to stock 
based on all available information (see 4.2.3.5.3 of Amendment 16). 
This would seem to conflict with the language of Framework 42. As 
discussed in the preamble, NMFS intends to implement both of these 
requirements by counting all catch of cod, haddock, and yellowtail on 
trips that declare into the Eastern U.S./Canada area inseason for the 
purpose of determining when a TAC has been reached and a closure is 
necessary. At the end of the fishing year, for the purposes of 
determining if a TAC has been exceeded and an AM is triggered, NMFS 
will subtract any catches on trips that declared into the Eastern U.S./
Canada but showed no fishing activity in those areas on VMS. NMFS 
believes this would satisfy the intent of Framework 42 and Amendment 
16, and meet our obligations to ensure the integrity of US/Canada TACs. 
Although there may be no conclusive evidence of misreporting of Eastern 
GB catches, the Council chose through Framework 42 to address a 
management problem with a policy decision to count catch in 
precautionary inseason to maintain the integrity of TACs agreed to with 
Canada. As noted in the response to Comment 32, this measure is not 
intended to necessarily attribute catch more accurately but to address 
a specific management problem, which is to ensure the U.S./Canada TACs 
are not exceeded. Because NMFS did not provide details of this 
monitoring method in the proposed rule for Framework 48, NMFS will 
collect additional public comment on it at this time.

Changes From the Proposed Rule

    NMFS has made three changes from the proposed rule. Based upon 
public comment, the coordinates for the Atlantic Halibut Fixed Gear AM 
Area 1 was revised to correct errors contained in the proposed rule. In 
addition, NMFS withdrew its proposed correction to the regulations 
pertaining to monitoring the Eastern U.S./Canada TACs, and will instead 
be returning to the Framework 42 method of monitoring (see Item 5 of 
the preamble). Finally, NMFS implements revised status determination 
criteria for white hake through this interim final rule (see Item 7 of 
the preamble).

Classification

    The Administrator, Northeast Region, NMFS, determined that the 
approved measures of Framework 48 are necessary for the conservation 
and management of the NE multispecies fishery and that it is consistent 
with the Magnuson-Stevens Fishery Conservation and Management Act and 
other applicable laws.

[[Page 26151]]

    This final rule has been determined to be not significant for the 
purposes of Executive Order (E.O.) 12866.
    This final rule does not contain policies with Federalism or 
``takings'' implications as those terms are defined in E.O. 13132 and 
E.O. 12630, respectively.
    The Assistant Administrator for Fisheries finds good cause to waive 
the notice and comment provisions in 5 U.S.C. 553(b)(B) for the status 
determination criteria for white hake because it is impracticable and 
contrary to the public interest. As discussed more fully in Item 7 of 
the preamble, the purpose of implementing the revised status 
determination criteria for white hake make solicitation of public 
comment contrary to the public interest. The results of the February 
2013 benchmark assessment for white hake are a change from the previous 
assessment and indicate that the stock is no longer overfished or 
undergoing overfishing. These criteria represent the best scientific 
information available and support an increase to the FY 2013 ABC and 
ACL for this stock. Implementing revised status determination criteria 
through this final rule is necessary in order to incorporate the best 
scientific information available into the FMP and to allow NMFS 
potentially to take separate action to implement an appropriate ABC and 
ACL for white hake in FY 2013. This could result in the benefit of 
revenues associated with a higher white hake catch limit in FY 2013, 
including increased landings of white hake and other groundfish species 
caught with it. Because a sector vessel must stop fishing in a stock 
area once its sector has reached its allocation for that particular 
stock, additional allocation of white hake extends the fishing season 
for sector vessels in the white hake stock area, including for other 
species. This is particularly true for unit stocks like white hake, for 
which the stock area encompasses the entire region. Additional white 
hake quota could also extend the fishing season for common pool 
vessels, which have a sub-ACL for this stock.
    This action could not allow for prior public comment because the 
scientific review process and determination could not have been 
completed any earlier due to the inherent time constraints associated 
with such process. The benchmark assessment for white hake was 
completed in February 2013, but a summary report documenting the 
assessment results was not released until April 2, 2013, after 
publication of the Framework 48 proposed rule. However, because the 
Council included and recommended an alternative in Framework 48 to 
implement the revised status determination criteria in FY 2013, should 
it become available in time for rulemaking, NMFS is approving the 
revised status determination criteria through this final rule. The time 
necessary to provide for prior notice and opportunity for public 
comment would delay the incorporation of the best scientific 
information available into the FMP for management. It would also extend 
the time necessary to develop an action to implement a revised quota 
for this stock for FY 2013, should NMFS decide to do so. In the 
interest of receiving public input on this action, NMFS is publishing 
the revised status determination criteria as an interim final measure 
and is requesting public comments on it in this rule.
    The Assistant Administrator for Fisheries finds that the need to 
implement these measures in a timely manner to incorporate the best 
scientific information available to establish appropriate quotas to 
prevent overfishing in FY 2013, constitutes good cause under authority 
contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in effective 
date. This action incorporates the best scientific information 
available from recent stocks assessments into the FMP to allow 
Framework 50, a parallel action, to specify appropriate catch limits to 
prevent overfishing and achieve optimum yield. There is a need to 
implement this action in timely manner, because the 2013 fishing year 
begins on May 1, 2013. Without this action, appropriate quotas based on 
the best available science would not be set, and virtually the entire 
groundfish fishery would not receive allocations of groundfish stocks 
to begin fishing, which would have significant negative economic 
impacts on fishery participants and the communities that depend on 
them. In addition, there were unavoidable time constraints outside the 
agency's control, because the Council took final action and submitted 
Framework 48 much later than originally scheduled. As a result, review 
of the framework, and the entire rulemaking process was delayed.
    A Final Regulatory Flexibility Analysis (FRFA) was prepared 
pursuant to 5 U.S.C. 604(a), and incorporates the IRFA, a summary of 
the significant issues raised by the public comments in response to the 
IRFA, NMFS's responses to those comments, and a summary of the analyses 
completed to support the action. A copy of the EA/RIR/IRFA is available 
from the both the Council and NMFS (see ADDRESSES).
    The preamble to the proposed rule included a detailed summary of 
the analyses contained in the IRFA, and that discussion is not repeated 
here.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being taken, and 
the objectives of and legal basis for this final rule, is contained in 
the preambles to the proposed rule and this final rule and is not 
repeated here.

Summary of Significant Issues Raised in Public Comments

    NMFS's response to all comments received on the proposed rule, 
including those that raised significant issues or commented on the 
economic analyses summarized in the IRFA can be found in the ``Comments 
and Responses'' section of this rule. As outlined in that section, 
significant issues were raised by the public with respect to:
     The procedural-type change allowing sectors to request 
access to year-round closed areas;
     Reactive AMs for non-allocated stocks;
     Modifications to sector at-sea monitoring requirements;
     Reduction in minimum fish sizes, and;
     Sub-ACLs for GB yellowtail flounder and SNE/MA windowpane 
flounder for the scallop fishery.
    Detailed responses are provided to the specific significant issues 
raised by the public comment and are not repeated here. The proposed 
change to GB discard strata was disapproved as a result of the public 
comments received. No other changes to the proposed rule measures were 
necessary as a result of public comments.

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

    The information analyzed in the RFA analysis indicated for 2011, 
the most recent complete year of data available, there were 1,370 
distinct ownership entities identified. Of these, 1,312 are categorized 
as small and 58 are large entities as per SBA guidelines. As stated in 
the IRFA, a definition of dependence was also used to examine potential 
impact of this rule on small entities. Dependence was defined as 
entities deriving greater than 50 percent of gross sales from sales of 
either regulated groundfish or from scallops. This definition was used 
to identify those ownership groups most likely to be impacted by the 
proposed regulations. Using this threshold, 135 entities are 
groundfish-dependent, with 131 small

[[Page 26152]]

and 4 large. Forty-seven entities are scallop-dependent, with 39 small 
and 8 large.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This final rule contains a revision to collection-of-information 
requirement subject to the Paperwork Reduction Act (PRA) and which has 
been approved by the Office of Management and Budget (OMB) under 
control number 0648-0605 (Amendment 16 reporting requirements). 
Framework 48 adjusts the sector at-sea monitoring pre-trip notification 
and NEFOP notification implemented through Amendment 16, by adding a 
question to allow fishermen to indicate what fishery they intend to 
participate in. This change is necessary to identify monkfish trips in 
Southern New England that may qualify for the exemption from sector at-
sea monitoring coverage, in order to deploy at-sea monitors 
appropriately to achieve the coverage levels required by the FMP. 
Currently, all groundfish vessels make these notifications to the NEFOP 
through the PTNS via an online form, a telephone call, or email to 
NEFOP. When sector at-sea monitoring programs become established, the 
pre-trip notification may be made to NEFOP or other at-sea monitoring 
provider, via a telephone call or email or through a secure database. 
Public reporting burden for the Amendment 16 reporting requirements is 
estimated to average two minutes per individual response for sector at-
sea monitoring pre-trip notification and NEFOP notification, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Framework 48 only adds a question to 
these notifications and would not affect the number of entities 
required to comply with these notifications (approximately 900 permits 
enrolled in sectors and 1482 limited access NE multispecies permits). 
The revision to these requirements is not expected to change this 
burden estimate.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

Description of the Steps Taken To Minimize Economic Impact on Small 
Entities

    Introduction. The Regulatory Flexibility Act (RFA) analysis is 
required to evaluate the impact of Federal proposed and final rules on 
small business entities. Federal agencies are required in this analysis 
to identify reasonable alternatives that may mitigate impacts on small 
business entities. The RFA does not compel specific regulatory 
outcomes. Moreover, the RFA does not require agencies to consider or 
adopt alternatives that are inconsistent with law or outside the scope 
and purpose of the regulations.
    NMFS's ability to minimize economic impacts is constrained, in 
part, by recommendations of the Council. NMFS has only the ability to 
approve, partially approve, or disapprove Council-recommended measures. 
The Agency cannot revise or substitute Council-recommended measures in 
the framework review and implementation process. This limits the range 
of alternatives that can be considered in Framework 48 to the suite of 
preferred and non-preferred alternatives forwarded by the Council. NMFS 
does have the ability through independent rulemaking under specifically 
defined Magnuson-Stevens Act criteria to implement alternative measures 
that respond to emergencies or end overfishing. In situations where 
Council recommendations are determined consistent with the Magnuson-
Stevens Act and other applicable law, NMFS is obligated to implement 
the measures in question.
    Framework 48 measures. NMFS is disapproving the provision to 
eliminate trawl gear stowage requirements as recommended by the Council 
along with measures pertaining to at-sea monitoring industry cost 
sharing, at-sea monitoring cost responsibility of sectors, and discard 
rate strata for GB yellowtail flounder. The rationale for disapproving 
these Council-recommended Framework 48 measures is outlined in detail 
in the preamble and not repeated here. For all other Framework 48 
measures described in the preamble, NMFS has determined the Council 
recommendations are consistent with applicable requirements of the 
Magnuson-Stevens Act and other law. As a result, NMFS is implementing 
the measures, as proposed by the Council, and the available mitigation 
is limited as a result.
    The approved measures change status determination criteria, modify 
management measures for at-sea monitoring, allow exemption requests 
from sectors to year-round closures, change minimum size restrictions 
for allocated fish, and modify some AMs. The IRFA concluded the 
Framework 48 alternatives have the potential to impact a large number 
of small entities, and while some of the options may significantly 
alter profitability, none of them would have a disproportionate impact 
on small entities.
    The new status determination criteria impacts the catch limits set 
for each species. In situations where the revised status determination 
criteria result in much lower catch limits than under the no action 
alternative considered in the IRFA, then the measures implemented by 
this rule would reduce fishing revenues. NMFS is required by the 
Magnuson-Stevens Act National Standard 2 to use the best available 
scientific information in setting catch limits. The new stock status 
determination criteria implemented by NMFS have been certified as the 
best available scientific information by the NEFSC. The no action 
alternative is inconsistent with the Magnuson-Stevens Act because it 
would continue to use outdated stock assessment data that is not the 
best available scientific information and; therefore, it cannot be 
implemented.
    Establishing sub-ACLs for SNE/MA windowpane flounder and for GB 
yellowtail flounder impacts both the groundfish and scallop fisheries 
by shifting accountability for overages or changing the method of sub-
ACL calculation. SNE/MA windowpane sub-ACLs for the scallop and other 
sub-components fisheries can reduce the likelihood of an overage and 
overfishing. Avoiding overages and overfishing may, in turn, lower 
operating costs and result in higher future revenues. If sub-ACLs are 
set below average yearly landings for a given fishery, and if AMs are 
severely restrictive, the impacted vessels could experience a 
substantial reduction in their profitability.
    The modifications to the scallop fishery GB yellowtail flounder 
sub-ACL would use a fixed percentage to determine the scallop fishery 
allocation of the GB yellowtail flounder--40 percent in FY 2013 and 16 
percent in each subsequent year. The economic impacts to fishing 
businesses will depend on the overall GB yellowtail flounder ABC and 
the probability of an overage, both of which are currently 
unquantifiable. The 16-percent fixed rate may be prohibitive to 
maximizing the value from scallop landings. In the worst-case scenario, 
if an overage occurred that closed a valuable access area to the 
scallop fishery, the scallop

[[Page 26153]]

industry could suffer a $16.9 million dollar loss in economic benefits. 
A non-preferred alternative was considered by the Council to use a set 
90-percent of estimated scallop catch as the determinant of the scallop 
sub-ACL. Since the allocation method of the 90 percent alternative does 
not adjust for changes in the ABC, it could lead to a very low 
groundfish fishery sub-ACL for GB yellowtail flounder but mitigate 
potential impact to the scallop fishery. The measure to establish a 
small-mesh fishery sub-ACL for GB yellowtail flounder would use a fixed 
percentage, based on previous catch history, to set the allocation. 
This measure is expected to have similar impacts and unknowns as the 
other sub-ACLs, but with respect to the small-mesh groundfish vessels. 
The sub-ACL modifications implemented by this rule provide overall 
benefit to the nation in terms of the broader concept of optimum yield 
and further ensure the likelihood of overfishing is prevented. The non-
preferred GB yellowtail flounder scallop sub-ACL determinant or not 
establishing additional sub-ACLs would not be consistent with National 
Standards 1, 4, 5, or 8 and the goals and objectives of the FMP. As 
such, these non-preferred approaches that may mitigate impacts to the 
scallop, small-mesh, and Mid-Atlantic fisheries were not favored by the 
Council and not approved by NMFS.
    Modifying the groundfish sector monitoring requirements would 
impact all sector vessels. The removal of dockside monitoring 
implemented in this rule for FY 2013 has a positive economic impact by 
lowering operating costs and increasing probability. As such, it 
provides the maximum economic impact mitigation in comparison to the 
alternative that would require industry funded dockside monitoring to 
be in place for FY 2013 and beyond. The disapproved cost-sharing 
provision was intended to reduce the overall cost of at-sea monitoring 
paid for by the industry and would have provided similar positive 
impacts by lowering costs and increasing profits; however, the measure 
as recommended by the Council was not consistent with anti-deficiency 
and other Federal laws and policies and could not be implemented by 
NMFS. Similarly, eliminating the industry's responsibility to pay for 
at-sea monitoring would have positive economic impacts. This 
alternative would not ensure that coverage levels are sufficient to 
monitor sector allocations and satisfy the Amendment 16 monitoring 
requirements and, as a result, could not be approved. NMFS has 
committed to fully funding the required at-sea monitoring cost for FY 
2013. This will provide a 1-year short-term relief to sector vessels 
until FY 2014. Had this funding not been made available, industry would 
have been required to fully fund at-sea monitoring in FY 2013 at a 
substantial economic impact. As modified by Amendment 16, the FMP 
requires industry to fully fund at-sea monitoring; however, NMFS has 
provided this funding each fishing year since 2010.
    Modifying the minimum size limits for commercially allocated 
groundfish species would be expected to positively impact sector 
vessels. The lower minimum size restrictions will allow a portion of 
previously wasted regulated discards to become landings. This is 
expected to provide a positive economic impact on net trip revenues, as 
more fish will be landed for the same amount of expended quota as under 
the no action alternative. Under the full-retention alternative, there 
could have been unforeseen consequences from targeting smaller fish 
that could have long-term negative impacts on future landings and 
revenue. This could also occur under the changed minimum fish sizes. 
Maintaining minimum mesh sizes may help to mitigate some of this 
effect.
    Based on public comment received, the modification of sector 
discard strata for GB yellowtail flounder in Federal statistical area 
522 was not approved in this rule. This had the potential for positive 
impacts on revenue for large trawl vessels that predominantly fish this 
area.
    The measure to modify AM timing for stocks not allocated to sectors 
is expected to help prevent overfishing. Controlling overfishing 
ensures long-term positive impacts. Under this provision, AMs would not 
be implemented mid-season, which will be beneficial to business 
planning. There is, however, the potential for short-term decreases in 
revenue based on implementation of AMs as catches may be reduced in the 
year AMs are enacted. The ability to implement AMs as soon as possible 
to correct the operational issue that caused the ACL overage, 
consistent with the National Standard 1 Guideline recommendations, is 
constrained in this case by the timing of data availability. The 
approach implemented by this rule provides a balance of ensuring AMs 
are enacted on the best available information in as timely a manner as 
possible. In that regard, little else could be done with respect to AM 
timing that remains consistent with National Standard 1.
    Framework 48 would also create area-based AMs for Atlantic halibut, 
Atlantic wolffish, and SNE/MA winter flounder. In the event these AMs 
are triggered, trawl vessels would be forced to use selective gears 
within designated closure areas and fixed-gear vessels would be forced 
to cease fishing entirely inside designated closure areas. If 
triggered, these areas could have economic impacts in the $4 million to 
$5 million dollars for trawl vessels, and around $1 million for fixed-
gear vessels, based on FY 2010 information. These AMs were 
nondiscretionary as they were required by a remand from Federal 
appellate court.
    The measures to revise the recreational AM and to allow sectors to 
request year-round closed area exemptions has no immediate direct 
economic impact, because these measures only confer authority on the 
Regional Administrator to take action at a later date. Subsequent 
actions to implement specific adjustments to recreational measures or 
to consider sector exemption requests will fully analyze potential 
economic impacts to small entities, consistent with RFA requirements.

Small Entity Compliance Guide

    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, a small entity compliance guide will be sent 
to all holders of Federal permits issued for the NE multispecies 
fishery. In addition, copies of this final rule and guide (i.e., 
information bulletin) are available from NMFS (see ADDRESSES) and at 
the following Web site: http://www.nero.noaa.gov/.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 29, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 648 is amended 
as follows:

[[Page 26154]]

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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


0
1. In Sec.  648.4, revise paragraph (a)(1)(ii) to read as follows:


Sec.  648.4  Vessel permits.

    (a) * * *
    (1) * * *
    (ii) Open access permits. A vessel of the United States that has 
not been issued and is not eligible to be issued a limited access 
multispecies permit is eligible for and may be issued an ``open access 
multispecies'', ``handgear'', or ``charter/party'' permit, and may fish 
for, possess on board, and land multispecies finfish subject to the 
restrictions in Sec.  648.88. A vessel that has been issued a valid 
limited access scallop permit, but that has not been issued a limited 
access multispecies permit, is eligible for and may be issued an open 
access scallop multispecies possession limit permit and may fish for, 
possess on board, and land multispecies finfish subject to the 
restrictions in Sec.  648.88. The owner of a vessel issued an open 
access permit may request a different open access permit category by 
submitting an application to the Regional Administrator at any time.
* * * * *


0
2. In Sec.  648.7, remove and reserve paragraph (a)(4), revise 
paragraph (e)(3), and remove paragraph (h) and redesignate paragraph 
(i) as paragraph (h).
    The revision reads as follows:


Sec.  648.7  Recordkeeping and reporting requirements.

* * * * *
    (e) * * *
    (3) At-sea monitor reports. Any record, as defined in Sec.  648.2, 
related to fish observed by an at-sea monitor, including any reports 
provided to NMFS, sector managers, or another third-party service 
provider specified in paragraph (h) of this section, must be retained 
and made available for immediate review for a total of 3 years after 
the date the fish were first observed. At-sea monitor providers must 
retain the required records and reports at their principal place of 
business.
* * * * *

0
3. In Sec.  648.10, revise paragraph (k)(1)(iii) and add paragraph 
(k)(1)(iv) to read as follows:


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

* * * * *
    (k) * * *
    (1) * * *
    (iii) Trip-start hail report. If instructed by the Regional 
Administrator or required by a sector operations plan approved pursuant 
to Sec.  648.87(b)(2) and (c), the operator of a vessel must submit a 
trip-start hail report prior to departing port at the beginning of each 
trip notifying the sector manager and/or NMFS of the vessel permit 
number; trip ID number in the form of the VTR serial number of the 
first VTR page for that trip, or another trip identifier specified by 
NMFS; an estimate of the date and time of arrival to port; and any 
other information as instructed by the Regional Administrator. Trip-
start hail reports by vessels operating less than 6 hr or within 6 hr 
of port must also include estimated date and time of offload. The trip-
start hail report may be submitted via VMS or some other method, as 
instructed by the Regional Administrator or required by a sector 
operations plan approved pursuant to Sec.  648.87(b)(2) and (c). If the 
vessel operator does not receive confirmation of the receipt of the 
trip-start hail report from the sector manager or NMFS, the operator 
must contact the intended receiver to confirm the trip-start hail 
report via an independent back-up system, as instructed by the Regional 
Administrator. To the extent possible, NMFS shall reduce unnecessary 
duplication of the trip-start hail report with any other applicable 
reporting requirements..
    (iv) Trip-end hail report. Upon its return to port and prior to 
crossing the VMS demarcation line as defined in Sec.  648.10, the owner 
or operator of any vessel issued a limited access NE multispecies 
permit that is subject to the VMS requirements specified in paragraph 
(b)(4) of this section must submit a trip-end hail report to NMFS via 
VMS, as instructed by the Regional Administrator. The trip-end hail 
report must include at least the following information, as instructed 
by the Regional Administrator: The vessel permit number; VTR serial 
number, or other applicable trip ID specified by NMFS; intended 
offloading location(s), including the dealer name/offload location, 
port/harbor, and state for the first dealer/facility where the vessel 
intends to offload catch and the port/harbor, and state for the second 
dealer/facility where the vessel intends to offload catch; estimated 
date/time of arrival; estimated date/time of offload; and the estimated 
total amount of all species retained, including species managed by 
other FMPs (in pounds, landed weight), on board at the time the vessel 
first offloads its catch from a particular trip. The trip-end hail 
report must be submitted at least 6 hr in advance of landing for all 
trips of at least 6 hr in duration or occurring more than 6 hr from 
port. For shorter trips, the trip-end hail reports must be submitted 
upon the completion of the last tow or hauling of gear, as instructed 
by the Regional Administrator. To the extent possible, NMFS shall 
reduce unnecessary duplication of the trip-end hail reports with any 
other applicable reporting requirements.
* * * * *

0
4. In Sec.  648.11, revise paragraphs (k)(1) and (2) and add paragraph 
(l) to read as follows:


Sec.  648.11  At-sea sampler/observer coverage.

* * * * *
    (k) * * *
    (1) Pre-trip notification. Unless otherwise specified in this 
paragraph (k), or notified by the Regional Administrator, the owner, 
operator, or manager of a vessel (i.e., vessel manager or sector 
manager) issued a limited access NE multispecies permit that is fishing 
under a NE multispecies DAS or on a sector trip, as defined in this 
part, must provide advanced notice to NMFS of the vessel name, permit 
number, and sector to which the vessel belongs, if applicable; contact 
name and telephone number for coordination of observer deployment; 
date, time, and port of departure; and the vessel's trip plan, 
including area to be fished, whether a monkfish DAS will be used, and 
gear type to be used at least 48 hr prior to departing port on any trip 
declared into the NE multispecies fishery pursuant to Sec.  648.10 or 
Sec.  648.85, as instructed by the Regional Administrator, for the 
purposes of selecting vessels for observer deployment. For trips 
lasting 48 hr or less in duration from the time the vessel leaves port 
to begin a fishing trip until the time the vessel returns to port upon 
the completion of the fishing trip, the vessel owner, operator, or 
manager may make a weekly notification rather than trip-by-trip calls. 
For weekly notifications, a vessel must notify NMFS by 0001 hr of the 
Friday preceding the week (Sunday through Saturday) that it intends to 
complete at least one NE multispecies DAS or sector trip during the 
following week and provide the date, time, port of departure, area to 
be fished, whether a monkfish DAS will be used, and gear type to be 
used for each trip during that week. Trip notification calls must be 
made no more than 10 days in advance

[[Page 26155]]

of each fishing trip. The vessel owner, operator, or manager must 
notify NMFS of any trip plan changes at least 24 hr prior to vessel 
departure from port. A vessel may not begin the trip without being 
issued an observer notification or a waiver by NMFS.
    (2) Vessel selection for observer coverage. NMFS shall notify the 
vessel owner, operator, or manager whether the vessel must carry an 
observer, or if a waiver has been granted, for the specified trip 
within 24 hr of the vessel owner's, operator's or manager's 
notification of the prospective trip, as specified in paragraph (k)(1) 
of this section. All trip notifications shall be issued a unique 
confirmation number. A vessel may not fish on a NE multispecies DAS or 
sector trip with an observer waiver confirmation number that does not 
match the trip plan that was called in to NMFS. Confirmation numbers 
for trip notification calls are valid for 48 hr from the intended sail 
date. If a trip is interrupted and returns to port due to bad weather 
or other circumstance beyond the operator's control, and goes back out 
within 48 hr, the same confirmation number and observer status remains. 
If the layover time is greater than 48 hr, a new trip notification must 
be made by the operator, owner, or manager of the vessel.
    (l) NE multispecies monitoring program goals and objectives. 
Monitoring programs established for the NE multispecies are to be 
designed and evaluated consistent with the following goals and 
objectives:
    (1) Improve documentation of catch:
    (i) Determine total catch and effort, for each sector and common 
pool, of target or regulated species; and
    (ii) Achieve coverage level sufficient to minimize effects of 
potential monitoring bias to the extent possible while maintaining as 
much flexibility as possible to enhance fleet viability.
    (2) Reduce the cost of monitoring:
    (i) Streamline data management and eliminate redundancy;
    (ii) Explore options for cost-sharing and deferment of cost to 
industry; and
    (iii) Recognize opportunity costs of insufficient monitoring.
    (3) Incentivize reducing discards:
    (i) Determine discard rate by smallest possible strata while 
maintaining cost-effectiveness; and
    (ii) Collect information by gear type to accurately calculate 
discard rates.
    (4) Provide additional data streams for stock assessments:
    (i) Reduce management and/or biological uncertainty; and
    (ii) Perform biological sampling if it may be used to enhance 
accuracy of mortality or recruitment calculations.
    (5) Enhance safety of monitoring program.
    (6) Perform periodic review of monitoring program for 
effectiveness.


0
5. In Sec.  648.14:
0
a. Revise paragraph (e)(1);
0
b. Remove paragraph (k)(14)(x);
0
c. Redesignate paragraphs (k)(14)(xi) and (xii) as paragraphs 
(k)(14)(x) and (xi), respectively, and revise them;
0
d. Remove and reserve paragraphs (k)(18)(i)(B) through (D); and
0
e. Revise paragraphs (k)(19) introductory text, (k)(19)(i), and 
(k)(20).
    The revisions read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (e) * * *
    (1) Assault, resist, oppose, impede, harass, intimidate, or 
interfere with or bar by command, impediment, threat, or coercion any 
NMFS-approved observer or sea sampler conducting his or her duties; any 
authorized officer conducting any search, inspection, investigation, or 
seizure in connection with enforcement of this part; any official 
designee of the Regional Administrator conducting his or her duties, 
including those duties authorized in Sec.  648.7(g).
* * * * *
    (k) * * *
    (14) * * *
    (x) Leave port to begin a trip before an at-sea monitor has arrived 
and boarded the vessel or before electronic monitoring equipment has 
been properly installed if assigned to carry either an at-sea monitor 
or electronic monitoring equipment for that trip, as prohibited by 
Sec.  648.87(b)(5)(iii)(A).
    (xi) Leave port to begin a trip if a vessel has failed a review of 
safety issues by an at-sea monitor and has not successfully resolved 
any identified safety deficiencies, as prohibited by Sec.  
648.87(b)(5)(iv)(A).
* * * * *
    (19) At-sea/electronic monitoring service providers. It is unlawful 
for any at-sea/electronic monitoring service provider, including 
individual at-sea monitors, to do any of the following:
    (i) Fail to comply with the operational requirements, including the 
recordkeeping and reporting requirements, specified in Sec.  
648.87(b)(5).
* * * * *
    (20) AMs for both stocks of windowpane flounder, ocean pout, 
Atlantic halibut, Atlantic wolffish, and SNE/MA winter flounder. It is 
unlawful for any person, including any owner or operator of a vessel 
issued a valid Federal NE multispecies permit or letter under Sec.  
648.4(a)(1)(i), unless otherwise specified in Sec.  648.17, to fail to 
comply with the restrictions on fishing and gear specified in Sec.  
648.90(a)(5)(i)(D).
* * * * *

0
6. In Sec.  648.80, revise paragraph (a)(3)(vii) to read as follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

* * * * *
    (a) * * *
    (3) * * *
    (vii) Rockhopper and roller gear restrictions. For all trawl 
vessels fishing on a NE multispecies DAS or sector trip in the GOM/GB 
Inshore Restricted Roller Gear Area, the diameter of any part of the 
trawl footrope, including discs, rollers, or rockhoppers, must not 
exceed 12 inches (30.5 cm). The GOM/GB Inshore Restricted Roller Gear 
Area is defined by straight lines connecting the following points in 
the order stated:

                   Inshore Restricted Roller Gear Area
------------------------------------------------------------------------
                  Point                     N. Latitude    W. Longitude
------------------------------------------------------------------------
1.......................................      42[deg]00'           (\1\)
2.......................................      42[deg]00'           (\2\)
3.......................................      42[deg]00'           (\3\)
4.......................................      42[deg]00'      69[deg]50'
5.......................................      43[deg]00'      69[deg]50'
6.......................................      43[deg]00'      70[deg]00'
7.......................................      43[deg]30'      70[deg]00'
8.......................................      43[deg]30'           (\4\)
------------------------------------------------------------------------
\1\ Massachusetts shoreline.
\2\ Cape Cod shoreline on Cape Cod Bay.
\3\ Cape Cod shoreline on the Atlantic Ocean.
\4\ Maine shoreline.

* * * * *

0
7. In Sec.  648.82:
0
a. Revise paragraphs (k)(2)(i), (n)(1) introductory text, (n)(2)(ii) 
introductory text, (n)(2)(ii)(A) and (B), (n)(2)(ii)(H) through (J), 
and (n)(2)(ii)(M);
0
b. Remove and reserve paragraph (n)(2)(iv); and
0
c. Revise paragraph (n)(2)(vi).
    The revisions read as follows:


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

* * * * *
    (k) * * *
    (2) * * *
    (i) A vessel issued a valid limited access NE multispecies permit 
is eligible to lease Category A DAS to or from another such vessel, 
subject to the conditions and requirements of this part, unless the 
vessel was issued a valid Small Vessel or Handgear A

[[Page 26156]]

permit specified under paragraphs (b)(5) and (6) of this section, 
respectively.
* * * * *
    (n) * * *
    (1) Differential DAS counting AM for fishing years 2010 and 2011. 
Unless otherwise specified pursuant to Sec.  648.90(a)(5), based upon 
catch and other information available to NMFS by February of each year, 
the Regional Administrator shall project the catch of regulated species 
or ocean pout by common pool vessels for the fishing year ending on 
April 30 to determine whether such catch will exceed any of the sub-
ACLs specified for common pool vessels pursuant to Sec.  
648.90(a)(4)(iii). This initial projection of common pool catch shall 
be updated shortly after the end of each fishing year, once information 
becomes available regarding the catch of regulated species and ocean 
pout by vessels fishing for groundfish in state waters outside of the 
FMP, vessels fishing in exempted fisheries, and vessels fishing in the 
Atlantic sea scallop fishery; and the catch of Atlantic halibut, SNE/MA 
winter flounder, ocean pout, windowpane flounder, and Atlantic wolffish 
by sector vessels to determine if excessive catch by such vessels 
resulted in the overall ACL for a particular stock to be exceeded. If 
such catch resulted in the overall ACL for a particular stock being 
exceeded, the common pool's catch of that stock shall be increased by 
an amount equal to the amount of the overage of the overall ACL for 
that stock multiplied by the common pool's share of the overall ACL for 
that stock calculated pursuant to Sec.  648.90(a)(4)(iii)(H)(2). For 
example, if the 2010 overall ACL for GOM cod was exceeded by 10,000 lb 
(4,536 kg) due to excessive catch of that stock by vessels fishing in 
state waters outside the FMP, and the common pool's share of the 2010 
overall GOM cod ACL was 5 percent, then the common pool's 2010 catch of 
GOM cod shall be increased by 500 lb (226.8 kg) (10,000 lb (4,536 kg) x 
0.05 of the overall GOM cod ACL). If, based on the initial projection 
completed in February, the Regional Administrator projects that any of 
the sub-ACLs specified for common pool vessels will be exceeded or 
underharvested, the Regional Administrator shall implement a 
differential DAS counting factor to all Category A DAS used within the 
stock area in which the sub-ACL was exceeded or underharvested, as 
specified in paragraph (n)(1)(i) of this section, during the following 
fishing year, in a manner consistent with the Administrative Procedure 
Act. Any differential DAS counting implemented at the start of the 
fishing year will be reevaluated and recalculated, if necessary, once 
updated information is obtained. The differential DAS counting factor 
shall be based upon the projected proportion of the sub-ACL of each NE 
multispecies stock caught by common pool vessels, rounded to the 
nearest even tenth, as specified in paragraph (n)(1)(ii) of this 
section, unless otherwise specified pursuant to Sec.  648.90(a)(5). For 
example, if the Regional Administrator projects that common pool 
vessels will catch 1.18 times the sub-ACL for GOM cod during fishing 
year 2010, the Regional Administrator shall implement a differential 
DAS counting factor of 1.2 to all Category A DAS used by common pool 
vessels only within the Inshore GOM Differential DAS Area during 
fishing year 2011 (i.e., Category A DAS will be charged at a rate of 
28.8 hr for every 24 hr fished--1.2 times 24-hr DAS counting). If it is 
projected that catch in a particular fishing year will exceed or 
underharvest the sub-ACLs for several regulated species stocks within a 
particular stock area, including both exceeding and underharvesting 
several sub-ACLs within a particular stock area, the Regional 
Administrator shall implement the most restrictive differential DAS 
counting factor derived from paragraph (n)(1)(ii) of this section for 
the sub-ACLs exceeded or underharvested to any Category A DAS used by 
common pool vessels within that particular stock area. For example, if 
it is projected that common pool vessels will be responsible for 1.2 
times the GOM cod sub-ACL and 1.1 times the CC/GOM yellowtail flounder 
sub-ACL, the Regional Administrator shall implement a differential DAS 
counting factor of 1.2 to any Category A DAS fished by common pool 
vessels only within the Inshore GOM Differential DAS Area during the 
following fishing year. For any differential DAS counting factor 
implemented in fishing year 2011, the differential DAS counting factor 
shall be applied against the DAS accrual provisions specified in 
paragraph (e)(1)(i) of this section for the time spent fishing in the 
applicable differential DAS counting area based upon the first VMS 
position into the applicable differential DAS counting area and the 
first VMS position outside of the applicable differential DAS counting 
area, pursuant to Sec.  648.10. For example, if a vessel fished 12 hr 
inside a differential DAS counting area where a differential DAS 
counting factor of 1.2 would be applied, and 12 hr outside of the 
differential DAS counting area, the vessel would be charged 48 hr of 
DAS use because DAS would be charged in 24-hr increments ((12 hr inside 
the area x 1.2 = 14.4 hr) + 12 hr outside the area, rounded up to the 
next 24-hr increment to determine DAS charged). For any differential 
DAS counting factor implemented in fishing year 2012, the differential 
DAS counting factor shall be applied against the DAS accrual provisions 
in paragraph (e)(1)(i) of this section, or if a differential DAS 
counting factor was implemented for that stock area during fishing year 
2011, against the DAS accrual rate applied in fishing year 2011. For 
example, if a differential DAS counting factor of 1.2 was applied to 
the Inshore GOM Differential DAS Area during fishing year 2011 due to a 
20-percent overage of the GOM cod sub-ACL, yet the GOM cod sub-ACL was 
exceeded again, but by 50 percent during fishing year 2011, an 
additional differential DAS factor of 1.5 would be applied to the DAS 
accrual rate applied during fishing year 2012 (i.e., the DAS accrual 
rate in the Inshore GOM Differential DAS Counting Area during fishing 
year 2012 would be 43.2 hr charged for every 24-hr fished--1.2 x 1.5 x 
24-hr DAS charge). If the Regional Administrator determines that 
similar DAS adjustments are necessary in all stock areas, the Regional 
Administrator will adjust the ratio of Category A:Category B DAS 
specified in paragraph (d)(1) of this section to reduce the number of 
available Category A DAS available based upon the amount of the 
overage, rather than apply a differential DAS counting factor to all 
Category A DAS used in all stock areas.
* * * * *
    (2) * * *
    (ii) Stock area closures. Unless otherwise specified in this 
paragraph (n)(2)(ii), if the Regional Administrator projects that 90 
percent of the trimester TACs specified in paragraph (n)(2)(i) of this 
section will be caught based upon available information, the Regional 
Administrator shall close the area where 90 percent of the catch for 
each such stock occurred to all common pool vessels on a NE 
multispecies DAS using gear capable of catching such stocks for the 
remainder of that trimester, as specified in paragraphs (n)(2)(ii)(A) 
through (N) of this section, in a manner consistent with the 
Administrative Procedure Act. For example, if the Regional 
Administrator projects that 90 percent of the CC/GOM yellowtail 
flounder Trimester 1 TAC will be caught, common pool vessels using 
trawl and gillnet gear shall be prohibited from fishing in the CC/GOM 
Yellowtail Flounder Closure Area

[[Page 26157]]

specified in paragraph (n)(2)(ii)(G) of this section until the 
beginning of Trimester 2 on September 1 of that fishing year. Based 
upon all available information, the Regional Administrator is 
authorized to expand or narrow the areas closed under this paragraph 
(n)(2)(ii) in a manner consistent with the Administrative Procedure 
Act. If it is not possible to identify an area where only 90 percent of 
the catch occurred, the Regional Administrator shall close the smallest 
area possible where greater than 90 percent of the catch occurred. 
Common pool vessels holding either a Handgear A or B permit and fishing 
with handgear or tub trawls are exempt from stock area closures for 
white hake. The Regional Administrator may exempt Handgear A and B 
permitted vessels from stock area closures for other stocks pursuant to 
this paragraph (n)(2)(ii) if it is determined that catches of the 
respective species or stock by these vessels are less than 1 percent of 
the common pool catch of that species or stock. The Regional 
Administrator shall make such determination prior to the start of the 
fishing year through a notice published in the Federal Register, 
consistent with the Administrative Procedure Act, and any such 
determination shall remain in effect until modified.
    (A) GB Cod Trimester TAC Area. For the purposes of the trimester 
TAC AM closure specified in paragraph (n)(2)(ii) of this section, the 
GB Cod Trimester TAC Area shall apply to common pool vessels using 
trawl gear, sink gillnet gear, and longline/hook gear within the area 
bounded by straight lines connecting the following points in the order 
stated:

                        GB Cod Trimester TAC Area
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  42[deg] 20'           70[deg] 00'
2...........................  42[deg] 20'           (\1\)
3...........................  41[deg] 50'           (\1\)
4...........................  41[deg] 50'           67[deg] 40'
5...........................  41[deg] 10'           67[deg] 40'
6...........................  41[deg] 10'           67[deg] 10'
7...........................  41[deg] 00'           67[deg] 10'
8...........................  41[deg] 00'           67[deg] 00'
9...........................  40[deg] 50'           67[deg] 00'
10..........................  40[deg] 50'           66[deg] 50'
11..........................  40[deg] 40'           66[deg] 50'
12..........................  40[deg] 40'           66[deg] 40'
13..........................  39[deg] 50'           66[deg] 40'
14..........................  39[deg] 50'           68[deg] 50'
15..........................  41[deg] 00'           68[deg] 50'
16..........................  41[deg] 00'           69[deg] 30'
17..........................  41[deg] 10'           69[deg] 30'
18..........................  41[deg] 10'           69[deg] 50'
19..........................  41[deg] 20'           69[deg] 50'
20..........................  41[deg] 20'           (\2\)
21..........................  (\3\)                 70[deg] 00'
22..........................  (\4\)                 70[deg] 00'
23..........................  (\5\)                 70[deg] 00'
------------------------------------------------------------------------
\1\ U.S./Canada maritime boundary.
\2\ East-facing shoreline of Nantucket, MA.
\3\ North-facing shoreline of Nantucket, MA.
\4\ South-facing shoreline of Cape Cod, MA.
\5\ North-facing shoreline of Cape Cod, MA.

    (B) GOM Cod Trimester TAC Area. For the purposes of the trimester 
TAC AM closure specified in paragraph (n)(2)(ii) of this section, the 
GOM Cod Trimester TAC Area shall apply to common pool vessels using 
trawl gear, sink gillnet gear, and longline/hook gear within the area 
bounded on the south, west, and north by the shoreline of the United 
States and bounded on the east by straight lines connecting the 
following points in the order stated:

                       GOM Cod Trimester TAC Area
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  (\1\)                 69[deg] 20'
2...........................  43[deg] 40'           69[deg] 20'
3...........................  43[deg] 40'           69[deg] 00'
4...........................  43[deg] 10'           69[deg] 00'
5...........................  43[deg] 10'           69[deg] 10'
6...........................  43[deg] 00'           69[deg] 10'
7...........................  43[deg] 00'           69[deg] 20'
8...........................  42[deg] 50'           69[deg] 20'
9...........................  42[deg] 50'           69[deg] 40'
10..........................  42[deg] 20'           69[deg] 40'
11..........................  42[deg] 20'           70[deg] 00'
12..........................  (\2\)                 70[deg] 00'
------------------------------------------------------------------------
\1\ Intersection with ME shoreline.
\2\ North-facing shoreline of Cape Cod, MA.

* * * * *
    (H) American Plaice Trimester TAC Area. For the purposes of the 
trimester TAC AM closure specified in paragraph (n)(2)(ii) of this 
section, the American Plaice Trimester TAC Area shall apply to common 
pool vessels using trawl gear within the area bounded by straight lines 
connecting the following points in the order stated:

                   American Plaice Trimester TAC Area
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  (\1\)                 68[deg]00'
2...........................  44[deg]10'            67[deg]50'
3...........................  44[deg]00'            67[deg]50'
4...........................  44[deg]00'            67[deg]40'
5...........................  (\2\)                 67[deg]40'
6...........................  42[deg]53.1'          67[deg]44.4'
7...........................  (\2\)                 67[deg]40'
8...........................  41[deg]10'            67[deg]40'
9...........................  41[deg]10'            67[deg]10'
10..........................  41[deg]00'            67[deg]10'
11..........................  41[deg]00'            67[deg]00'
12..........................  40[deg]50'            67[deg]00'
13..........................  40[deg]50'            66[deg]50'
14..........................  40[deg]40'            66[deg]50'
15..........................  40[deg]40'            66[deg]40'
16..........................  39[deg]50'            66[deg]40'
17..........................  39[deg]50'            68[deg]50'
18..........................  41[deg]00'            68[deg]50'
19..........................  41[deg]00'            69[deg]30'
20..........................  41[deg]10'            69[deg]30'
21..........................  41[deg]10'            69[deg]50'
22..........................  41[deg]20'            69[deg]50'
23..........................  41[deg]20'            (\3\)
24..........................  (\4\)                 70[deg]00'
25..........................  (\5\)                 70[deg]00'
------------------------------------------------------------------------
\1\ Intersection with ME shoreline.
\2\ U.S./Canada maritime boundary.
\3\ East-facing shoreline of Nantucket, MA.
\4\ North-facing shoreline of Nantucket, MA.
\5\ South-facing shoreline of Cape Cod, MA.

    (I) Witch Flounder Trimester TAC Area. For the purposes of the 
trimester TAC AM closure specified in paragraph (n)(2)(ii) of this 
section, the Witch Flounder Trimester TAC Area shall apply to common 
pool vessels using trawl gear within the area bounded by straight lines 
connecting the following points in the order stated:

                    Witch Flounder Trimester TAC Area
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  (\1\)                 68[deg]00'
2...........................  44[deg]10'            67[deg]50'
3...........................  44[deg]00'            67[deg]50'
4...........................  44[deg]00'            67[deg]40'
5...........................  (\2\)                 67[deg]40'
6...........................  42[deg]53.1'          67[deg]44.4'
7...........................  (\2\)                 67[deg]40'
8...........................  41[deg]10'            67[deg]40'
9...........................  41[deg]10'            67[deg]10'
10..........................  41[deg]00'            67[deg]10'
11..........................  41[deg]00'            67[deg]00'
12..........................  40[deg]50'            67[deg]00'
13..........................  40[deg]50'            66[deg]50'
14..........................  40[deg]40'            66[deg]50'
15..........................  40[deg]40'            66[deg]40'
16..........................  39[deg]50'            66[deg]40'
17..........................  39[deg]50'            68[deg]50'
18..........................  41[deg]00'            68[deg]50'
19..........................  41[deg]00'            69[deg]30'
20..........................  41[deg]10'            69[deg]30'
21..........................  41[deg]10'            69[deg]50'
22..........................  41[deg]20'            69[deg]50'
23..........................  41[deg]20'            (\3\)
24..........................  (\4\)                 70[deg]00'
25..........................  (\5\)                 70[deg]00'
------------------------------------------------------------------------
\1\ Intersection with ME shoreline.
\2\ U.S./Canada maritime boundary.
\3\ East-facing shoreline of Nantucket, MA.
\4\ North-facing shoreline of Nantucket, MA.
\5\ South-facing shoreline of Cape Cod, MA.

    (J) GB Winter Flounder Trimester TAC Area. For the purposes of the 
trimester TAC AM closure specified in paragraph (n)(2)(ii) of this 
section, the GB Winter Flounder Trimester TAC Area shall

[[Page 26158]]

apply to common pool vessels using trawl gear within the area bounded 
by straight lines connecting the following points in the order stated:

                  GB Winter Flounder Trimester TAC Area
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  42[deg]20'            68[deg]50'
2...........................  42[deg]20'            (\1\)
3...........................  40[deg]30'            (\1\)
4...........................  40[deg]30'            66[deg]40'
5...........................  39[deg]50'            66[deg]40'
6...........................  39[deg]50'            68[deg]50'
------------------------------------------------------------------------
\1\ U.S./Canada maritime boundary

* * * * *
    (M) White Hake Trimester TAC Area. For the purposes of the 
trimester TAC AM closure specified in paragraph (n)(2)(ii) of this 
section, the White Hake Trimester TAC Area shall apply to common pool 
vessels using trawl gear, sink gillnet gear, and longline/hook gear, 
except for Handgear A and B permitted vessels using handgear or tub 
trawls, within the area bounded by straight lines connecting the 
following points in the order stated:

                      White Hake Trimester TAC Area
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  (\1\)                 69[deg]20'
2...........................  43[deg]40'            69[deg]20'
3...........................  43[deg]40'            69[deg]00'
4...........................  43[deg]20'            69[deg]00'
5...........................  43[deg]20'            67[deg]40'
6...........................  (\2\)                 67[deg]40'
7...........................  42[deg]53.1'          67[deg]44.4'
8...........................  (\2\)                 67[deg]40'
9...........................  41[deg]20'            67[deg]40'
10..........................  41[deg]20'            68[deg]10'
11..........................  41[deg]10'            68[deg]10'
12..........................  41[deg]10'            68[deg]20'
13..........................  41[deg]00'            68[deg]20'
14..........................  41[deg]00'            69[deg]30'
15..........................  41[deg]10'            69[deg]30'
16..........................  41[deg]10'            69[deg]50'
17..........................  41[deg]20'            69[deg]50'
18..........................  41[deg]20'            (\3\)
19..........................  (\4\)                 70[deg]00'
20..........................  (\5\)                 70[deg]00'
------------------------------------------------------------------------
\1\ Intersection with ME shoreline.
\2\ U.S./Canada maritime boundary.
\3\ East-facing shoreline of Nantucket, MA.
\4\ North-facing shoreline of Nantucket, MA.
\5\ South-facing shoreline of Cape Cod, MA.

* * * * *
    (vi) Trip limit adjustment. When 60 percent of the northern or 
southern windowpane flounder, ocean pout, or Atlantic halibut sub-ACLs 
specified for common pool vessels pursuant to Sec.  
648.90(a)(4)(iii)(H)(2) is projected to be caught, the Regional 
Administrator may specify, consistent with the APA, a possession limit 
for these stocks that is calculated to prevent the yearly sub-ACL from 
being exceeded prior to the end of the fishing year.
* * * * *

0
8. In Sec.  648.83, revise paragraph (a)(1) to read as follows:


Sec.  648.83  Multispecies minimum fish sizes.

    (a) * * *
    (1) Minimum fish sizes for recreational vessels and charter/party 
vessels that are not fishing under a NE multispecies DAS are specified 
in Sec.  648.89. Except as provided in Sec.  648.17, all other vessels 
are subject to the following minimum fish sizes, determined by total 
length (TL):

             Minimum Fish Sizes (TL) for Commercial Vessels
------------------------------------------------------------------------
                Species                           Size (inches)
------------------------------------------------------------------------
Cod....................................  19 (48.3 cm)
Haddock................................  16 (40.6 cm)
Pollock................................  19 (48.3 cm)
Witch flounder (gray sole).............  13 (33 cm)
Yellowtail flounder....................  12 (30.5 cm)
American plaice (dab)..................  12 (30.5 cm)
Atlantic halibut.......................  41 (104.1 cm)
Winter flounder (blackback)............  12 (30.5 cm)
Redfish................................  7 (17.8 cm)
------------------------------------------------------------------------

* * * * *

0
9. In Sec.  648.84, add paragraph (e) to read as follows:


Sec.  648.84  Gear-marking requirements and gear restrictions.

* * * * *
    (e) Rope separator trawl. A rope separator trawl is defined as a 
four-seam bottom trawl net (i.e., a net with a top and bottom panel and 
two side panels) modified to include both a horizontal separator panel 
and an escape opening in the bottom belly of the net below the 
separator panel, as further specified in paragraphs (e)(1) through (3) 
of this section.
    (1) Mesh size. The minimum mesh size applied throughout the body 
and extension of a rope separator trawl must be 6-inch (15.2-cm) 
diamond mesh or 6.5-inch (16.5-cm) square mesh, or any combination 
thereof. Mesh in the bottom belly of the net must be 13-inch (33-cm) 
diamond mesh. Unless otherwise specified in this part, the codend mesh 
size must be consistent with mesh size requirements specified in Sec.  
648.80. The mesh size of a particular section of the rope separator 
trawl is measured in accordance with Sec.  648.80(f)(2), unless 
insufficient numbers of mesh exist, in which case the maximum total 
number of meshes in the section will be measured (between 2 and 20 
meshes).
    (2) Separator panel. The separator panel must consist of parallel 
lines made of fiber rope, the ends of which are attached to each side 
of the net starting at the forward edge of the square of the net and 
running aft toward the extension of the net. The leading rope must be 
attached to the side panel at a point at least \1/3\ of the number of 
meshes of the side panel above the lower gore, and the panel of ropes 
shall slope downward toward the extension of the net. For example, if 
the side panel of the net is 42 meshes tall, the leading rope must be 
attached at least 14 meshes above the lower gore. The forward \2/3\ of 
the separator ropes that comprise the separator panel must be no 
farther than 26 inches (66 cm) apart, with the after \1/3\ of the 
separator ropes that comprise the separator panel being no farther than 
13 inches (33 cm) apart. The ends of the aftermost rope shall be 
attached to the bottom belly at a point \1/6\ of the number of meshes 
of the after end of the bottom belly below the lower gore. The 
separator ropes should be of sufficient length not to impinge upon the 
overall shape of the net without being too long to compromise the 
selectivity of the net. The separator ropes may not be manipulated in 
any way that would inhibit the selectivity of the net by causing the 
separator ropes to dip toward the bottom belly of the net and obscure 
the escape opening, as defined in paragraph (e)(3) of this section.
    (3) Escape opening. The escape opening must be positioned in the 
bottom belly of the net behind the sweep and terminate under the 
separator panel, as described in paragraph (e)(2) of this section. 
Longitudinal lines may be used to maintain the shape of the escape 
opening, as necessary. The escape opening shall be at least 18 meshes 
in both length and width.

0
10. In Sec.  648.85, revise paragraphs (a)(2)(ii) and (iii), 
(a)(3)(iv)(E), (b)(7)(iv)(H), (b)(8)(v)(C), and (d) to read as follows:


Sec.  648.85  Special management programs.

    (a) * * *
    (2) * * *
    (ii) Adjustments to TACs. Any overages of the overall Eastern GB 
cod, Eastern GB haddock, and GB yellowtail flounder U.S. TACs caused by 
an overage of the component of the U.S. TAC specified for either the 
common pool, individual sectors, the scallop fishery, or any other 
fishery, pursuant to this paragraph (a)(2) and Sec.  648.90(a)(4), that 
occur in a given fishing year shall be subtracted from the respective 
TAC component responsible for the overage in the following fishing year 
and may be

[[Page 26159]]

subject to the overall groundfish AM provisions as specified in Sec.  
648.90(a)(5)(ii) if the overall ACL for a particular stock in a given 
fishing year, specified pursuant to Sec.  648.90(a)(4), is exceeded.
    (iii) Distribution of TACs. For stocks managed by the U.S./Canada 
Resource Sharing Understanding, as specified in paragraph (a)(1) of 
this section, the TAC allocation determined pursuant to this paragraph 
(a)(2) shall be distributed between sectors approved pursuant to Sec.  
648.87(c), common pool vessels, scallop vessels, and other applicable 
fisheries, as specified in Sec.  648.90(a)(4). Approved sectors will be 
allocated ACE for Eastern GB cod and Eastern GB haddock proportional to 
the sector's allocation of the overall ACL for these stocks, based upon 
the fishing histories of sector vessels, as specified in Sec.  
648.87(b)(1)(i). Any ACE for Eastern GB cod and Eastern GB haddock 
allocated to an individual sector is considered a subset of the overall 
GB cod and GB haddock ACE allocated to that sector and may only be 
harvested from the Eastern U.S./Canada Area, while the remaining ACE 
for GB cod and GB haddock available to that sector may only be 
harvested outside of the Eastern U.S./Canada Area. For example, if a 
sector is allocated 10 percent of the GB haddock ACL, it will also be 
allocated 10 percent of the Eastern GB haddock TAC for that particular 
fishing year.
    (3) * * *
    (iv) * * *
    (E) Closure of Eastern U.S./Canada Area. Based upon available 
information, when the Regional Administrator projects that any 
individual TAC allocation for NE multispecies common pool or sectors 
specified in paragraph (a)(2)(iii) of this section will be caught, NMFS 
shall close, in a manner consistent with the Administrative Procedure 
Act, the Eastern U.S./Canada Area to all vessels subject to that 
particular TAC allocation, unless otherwise allowed under this 
paragraph (a)(3)(iv)(E). For example, if the Eastern GB cod TAC 
specified for common pool vessels is projected to be caught, NMFS shall 
close the Eastern U.S./Canada Area to all common pool vessels operating 
under a NE multispecies DAS. Should the Eastern U.S./Canada Area close 
as described in this paragraph (a)(3)(iv)(E), common pool vessels 
fishing under a DAS may continue to fish in a SAP within the Eastern 
U.S./Canada Area, provided that the TAC for the target stock identified 
for that particular SAP (i.e., haddock for the Eastern U.S./Canada 
Haddock SAP or haddock or yellowtail flounder for the CA II Yellowtail 
Flounder/Haddock SAP) has not been fully harvested. A vessel fishing on 
a sector trip may only fish in a SAP if that vessel's sector has ACE 
available for all stocks caught in that SAP. For example, should the GB 
cod TAC allocation specified for common pool vessels in paragraph 
(a)(2)(iii) of this section be attained, and the Eastern U.S./Canada 
Area closure implemented for common pool vessels, common pool vessels 
could continue to fish for yellowtail flounder within the SAP 
identified as the Closed Area II Yellowtail Flounder/Haddock SAP, 
described in paragraph (b)(3) of this section, in accordance with the 
requirements of that program. Upon closure of the Eastern U.S./Canada 
Area, vessels may transit through this area as described in paragraph 
(a)(1)(ii) of this section, provided that its gear is stowed in 
accordance with the provisions of Sec.  648.23(b), unless otherwise 
restricted under this part.
* * * * *
    (b) * * *
    (7) * * *
    (iv) * * *
    (H) Landing limits. For all vessels legally declared into the CA I 
Hook Gear Haddock SAP described in paragraph (b)(7)(i) of this section, 
landing limits for NE multispecies are specified in paragraphs 
(b)(7)(v)(B) and (b)(7)(vi)(C) of this section, respectively. Unless 
otherwise restricted by Sec.  648.86, such vessels are prohibited from 
discarding legal-sized regulated species and ocean pout, and must exit 
the SAP and cease fishing if any trip limit is achieved or exceeded.
* * * * *
    (8) * * *
    (v) * * *
    (C) Observer notifications. For the purpose of selecting vessels 
for observer deployment, a vessel must provide notice to NMFS of the 
vessel name; contact name for coordination of observer deployment; 
telephone number for contact; areas to be fished; and date, time, and 
port of departure at least 48 hours prior to the beginning of any trip 
that it declares into the Eastern U.S./Canada Haddock SAP Program 
specified in paragraph (b)(8)(i) of this section, as required under 
paragraph (b)(8)(v)(D) of this section, and in accordance with 
instructions provided by the Regional Administrator.
* * * * *
    (d) Haddock incidental catch allowance for some Atlantic herring 
vessels. The haddock incidental catch allowance for a vessel issued a 
Federal Atlantic herring permit and fishing with midwater trawl gear in 
Management Areas 1A, 1B, and/or 3, as defined in Sec.  648.200(f)(1) 
and (3), is 1 percent of each of the ABCs for GOM haddock and GB 
haddock (U.S. catch only) specified according to Sec.  648.90(a)(4) for 
a particular NE multispecies fishing year. Such haddock catch will be 
determined as specified in Sec.  648.86(a)(3)(ii).
* * * * *

0
11. In Sec.  648.86, revise paragraphs (a)(3)(ii)(A)(1), (3), and (4), 
to read as follows:


Sec.  648.86  NE Multispecies possession restrictions.

* * * * *
    (a) * * *
    (3) * * *
    (ii) * * *
    (A) * * *
    (1) When the Regional Administrator has determined that the 
incidental catch allowance for a given haddock stock, as specified in 
Sec.  648.85(d), has been caught, no vessel issued an Atlantic herring 
permit and fishing with midwater trawl gear in the applicable stock 
area, i.e., the Herring GOM Haddock Accountability Measure (AM) Area or 
Herring GB Haddock AM Area, as defined in paragraphs (a)(3)(ii)(A)(2) 
and (3) of this section, may fish for, possess, or land herring in 
excess of 2,000 lb (907.2 kg) per trip in or from that area, unless all 
herring possessed and landed by the vessel were caught outside the 
applicable AM Area and the vessel complies with the gear stowage 
provisions specified in Sec.  648.23(b) while transiting the AM Area. 
Upon this determination, the haddock possession limit is reduced to 0 
lb (0 kg) for a vessel issued a Federal Atlantic herring permit and 
fishing with midwater trawl gear or for a vessel issued an All Areas 
Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access 
Herring Permit fishing on a declared herring trip, regardless of area 
fished or gear used, in the applicable AM area, unless the vessel also 
possesses a NE multispecies permit and is operating on a declared 
(consistent with Sec.  648.10(g)) NE multispecies trip. In making this 
determination, the Regional Administrator shall use haddock catches 
observed by NMFS-approved observers by herring vessel trips using 
midwater trawl gear in Management Areas 1A, 1B, and/or 3, as defined in 
Sec.  648.200(f)(1) and (3), expanded to an estimate of total haddock 
catch for all such trips in a given haddock stock area.
* * * * *
    (3) The Herring GB Haddock Accountability Measure Area. The Herring 
GB Haddock AM Area is defined by the straight lines connecting

[[Page 26160]]

the following points in the order stated (copies of a map depicting the 
area are available from the Regional Administrator upon request):

             Herring GB Haddock Accountability Measure Area
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  42[deg] 20'           70[deg] 00'
2...........................  42[deg] 20'           (\1\)
3...........................  40[deg] 30'           (\1\)
4...........................  40[deg] 30'           66[deg] 40'
5...........................  39[deg] 50'           66[deg] 40'
6...........................  39[deg] 50'           68[deg] 50'
7...........................  (\2\)                 68[deg] 50'
8...........................  41[deg] 00'           (\3\)
9...........................  41[deg] 00'           69[deg] 30'
10..........................  41[deg] 10'           69[deg] 30'
11..........................  41[deg] 10'           69[deg] 50'
12..........................  41[deg] 20'           69[deg] 50'
13..........................  41[deg] 20'           (\4\)
14..........................  (\5\)                 70[deg] 00'
15..........................  (\6\)                 70[deg] 00'
16..........................  (\7\)                 70[deg] 00'
------------------------------------------------------------------------
\1\ The intersection of the U.S./Canada maritime boundary.
\2\ The intersection of the boundary of Closed Area I and 68[deg] 50' W.
  long.
\3\ The intersection of the boundary of Closed Area I and 41[deg] 00' N.
  lat.
\4\ The intersection of the east-facing shoreline of Nantucket, MA, and
  41[deg] 20' N. lat.
\5\ The intersection of the north-facing shoreline of Nantucket, MA, and
  70[deg] 00' W. long.
\6\ The intersection of the south-facing shoreline of Cape Cod, MA, and
  70[deg] 00' W. long.
\7\ The intersection of the north-facing shoreline of Cape Cod, MA, and
  70[deg] 00' W. long.

    (4) The haddock incidental catch caps specified are for the NE 
multispecies fishing year (May 1-April 30), which differs from the 
herring fishing year (January 1-December 31). If the haddock incidental 
catch allowance is attained by the herring midwater trawl fishery for 
the GOM or GB, as specified in Sec.  648.85(d), the 2,000-lb (907.2-kg) 
limit on herring possession in the applicable AM Area, as described in 
paragraph (a)(3)(ii)(A)(2) or (3) of this section, shall be in effect 
until the end of the NE multispecies fishing year. For example, the 
2011 haddock incidental catch cap is specified for the period May 1, 
2011-April 30, 2012, and the 2012 haddock catch cap would be specified 
for the period May 1, 2012-April 30, 2013. If the catch of haddock by 
herring midwater trawl vessels reached the 2011 incidental catch cap at 
any time prior to the end of the NE. multispecies fishing year (April 
30, 2012), the 2,000-lb (907.2-kg) limit on possession of herring in 
the applicable AM Area would extend through April 30, 2012. Beginning 
May 1, 2012, the 2012 catch cap would go into effect.
* * * * *

0
12. In Sec.  648.87:
0
a. Add paragraphs (b)(1)(ii)(A) through (F);
0
b. Revise paragraphs (b)(1)(v)(B), (b)(1)(vi)(B), (b)(2)(xi), (b)(4) 
introductory text, (b)(4)(i)(F) and (G), (b)(4)(i)(I), and (J), and 
(b)(4)(ii);
0
c. Remove paragraphs (b)(4)(iii);
0
d. Redesignate paragraph (b)(4)(iv) as paragraph (b)(4)(iii);
0
e. Remove paragraph (b)(5);
0
f. Redesignate paragraph (b)(6) as paragraph (b)(5) and revise it; and
0
g. Revise paragraph (c)(2)(i); and
    The revisions and additions read as follows:


Sec.  648.87  Sector allocation.

* * * * *
    (b) * * *
    (1) * * *
    (ii) * * *
    (A) CC/GOM Yellowtail Flounder Stock Area. The CC/GOM Yellowtail 
Flounder Stock Area, for the purposes of identifying stock areas for 
trip limits specified in Sec.  648.86, and for determining areas 
applicable to sector allocations of CC/GOM yellowtail flounder ACE 
pursuant to paragraph (b) of this section, is defined as the area 
bounded on the north and west by the coastline of the United States, on 
the east by the U.S./Canadian maritime boundary, and on the south by 
rhumb lines connecting the following points in the order stated:

                  CC/GOM Yellowtail Flounder Stock Area
------------------------------------------------------------------------
             Point                   N. Latitude         W. Longitude
------------------------------------------------------------------------
1..............................  (\1\).............  70[deg] 00'
2..............................  (\2\).............  70[deg] 00'
3..............................  41[deg] 20'.......  (\3\)
4..............................  41[deg] 20'.......  69[deg] 50'
5..............................  41[deg] 10'.......  69[deg] 50'
6..............................  41[deg] 10'.......  69[deg] 30'
7..............................  41[deg] 00'.......  69[deg] 30'
8..............................  41[deg] 00'.......  68[deg] 50'
9..............................  42[deg] 20'.......  68[deg] 50'
10.............................  42[deg] 20'.......  (\4\)
------------------------------------------------------------------------
\1\ Intersection of south-facing coastline of Cape Cod, MA, and 70[deg]
  00' W. long.
\2\ Intersection of north-facing coastline of Nantucket, MA, and 70[deg]
  00' W. long.
\3\ Intersection of east-facing coastline of Nantucket, MA, and 41[deg]
  20' N. lat.
\4\ U.S./Canada maritime boundary.

    (B) SNE/MA Yellowtail Flounder Stock Area. The SNE/MA Yellowtail 
Flounder Stock Area, for the purposes of identifying stock areas for 
trip limits specified in Sec.  648.86, and for determining areas 
applicable to sector allocations of SNE/MA yellowtail flounder ACE 
pursuant to paragraph (b) of this section, is the area bounded by rhumb 
lines connecting the following points in the order stated:

                  SNE/MA Yellowtail Flounder Stock Area
------------------------------------------------------------------------
             Point                   N. Latitude         W. Longitude
------------------------------------------------------------------------
1..............................  35[deg] 00'.......  (\1\)
2..............................  35[deg] 00'.......  (\2\)
3..............................  39[deg] 00'.......  (\2\)
4..............................  39[deg] 00'.......  69[deg] 00'
5..............................  39[deg] 50'.......  69[deg] 00'
7..............................  39[deg] 50'.......  68[deg] 50'
8..............................  41[deg] 00'.......  68[deg] 50'
9..............................  41[deg] 00'.......  69[deg] 30'
10.............................  41[deg] 10'.......  69[deg] 30'
11.............................  41[deg] 10'.......  69[deg] 50'
12.............................  41[deg] 20'.......  69[deg] 50'
13.............................  41[deg] 20'.......  (\3\)
14.............................  (\4\).............  70[deg] 00'
15.............................  (\5\).............  70[deg] 00'
------------------------------------------------------------------------
\1\ Intersection of east-facing coastline of Outer Banks, NC, and
  35[deg] 00' N. lat.
\2\ U.S./Canada maritime boundary.
\3\ Intersection of east-facing coastline of Nantucket, MA, and 41[deg]
  20' N. lat.
\4\ Intersection of north-facing coastline of Nantucket, MA, and 70[deg]
  00' W. long.
\5\ Intersection of south-facing coastline of Cape Cod, MA, and 70[deg]
  00' W. long.

    (C) GOM Haddock Stock Area. The GOM Haddock Stock Area, for the 
purposes of identifying stock areas for trip limits specified in Sec.  
648.86 and for determining areas applicable to sector allocations of 
GOM haddock ACE pursuant to paragraph (b) of this section, is defined 
as the area bounded on the north and west by the coastline of the 
United States, on the east by the U.S./Canadian maritime boundary, and 
on the south by straight lines connecting the following points in the 
order stated:

                         GOM Haddock Stock Area
------------------------------------------------------------------------
             Point                   N. Latitude         W. Longitude
------------------------------------------------------------------------
1..............................  (\1\).............  70[deg] 00'
2..............................  42[deg] 20'.......  70[deg] 00'
3..............................  42[deg] 20'.......  67[deg] 40'
4..............................  (\2\).............  67[deg] 40'
5..............................  (\3\).............  67[deg] 40'
6..............................  43[deg] 50'.......  67[deg] 40'
7..............................  43[deg] 50'.......  (\4\)
8..............................  (\4\).............  67[deg] 00'
9..............................  (\5\).............  67[deg] 00'
------------------------------------------------------------------------
\1\ Intersection of the north-facing coastline of Cape Cod, MA, and
  70[deg] 00' W. long.
\2\ U.S./Canada maritime boundary southern intersection with 67[deg] 40'
  W. long.).
\3\ U.S./Canada maritime boundary northern intersection with 67[deg] 40'
  W. long.).
\4\ U.S./Canada maritime boundary.
\5\ Intersection of the south-facing ME coastline and 67[deg] 00' W.
  long.

    (D) GB Haddock Stock Area. The GB Haddock Stock Area, for the 
purposes of identifying stock areas for trip limits specified in Sec.  
648.86 and for determining areas applicable to sector allocations of GB 
haddock ACE pursuant to paragraph (b) of this section, is defined as 
the area bounded on the west by the coastline of the United

[[Page 26161]]

States, on the south by a line running from the east-facing coastline 
of North Carolina at 35[deg] N. lat. until its intersection with the 
EEZ, on the east by the U.S./Canadian maritime boundary, and bounded on 
the north by straight lines connecting the following points in the 
order stated:

                          GB Haddock Stock Area
------------------------------------------------------------------------
             Point                   N. Latitude         W. Longitude
------------------------------------------------------------------------
1..............................  (\1\).............  70[deg] 00'
2..............................  42[deg] 20'.......  70[deg] 00'
3..............................  42[deg] 20'.......  (\2\)
------------------------------------------------------------------------
\1\ Intersection of the north-facing coastline of Cape Cod, MA, and
  70[deg] 00' W. long.
\2\ U.S./Canada maritime boundary.

    (E) Redfish Stock Area. The Redfish Stock Area, for the purposes of 
identifying stock areas for trip limits specified in Sec.  648.86 and 
for determining areas applicable to sector allocations of redfish ACE 
pursuant to paragraph (b) of this section, is defined as the area 
bounded on the north and west by the coastline of the United States, on 
the east by the U.S./Canadian maritime boundary, and bounded on the 
south by a rhumb line running from the east-facing coastline of North 
Carolina at 35[deg] N. lat. until its intersection with the EEZ.
    (F) GOM Winter Flounder Stock Area. The GOM Winter Flounder Stock 
Area, for the purposes of identifying stock areas for trip limits 
specified in Sec.  648.86 and for determining areas applicable to 
sector allocations of GOM winter flounder ACE pursuant to paragraph (b) 
of this section, is the area bounded by straight lines connecting the 
following points in the order stated:

                     GOM Winter Flounder Stock Area
------------------------------------------------------------------------
             Point                   N. Latitude         W. Longitude
------------------------------------------------------------------------
1..............................  (\1\).............  70[deg] 00'
2..............................  42[deg] 20'.......  70[deg] 00'
3..............................  42[deg] 20'.......  67[deg] 40'
4..............................  (\2\).............  67[deg] 40'
5..............................  (3)...............  67[deg] 40'
6..............................  43[deg] 50'.......  67[deg] 40'
7..............................  43[deg] 50'.......  (\4\)
8..............................  (\4\).............  67[deg] 00'
9..............................  (\5\).............  67[deg] 00'
------------------------------------------------------------------------
\1\ Intersection of the north-facing coastline of Cape Cod, MA, and
  70[deg] 00' W. long.
\2\ U.S./Canada maritime boundary southern intersection with 67[deg] 40'
  N. lat.).
\3\ U.S./Canada maritime boundary northern intersection with 67[deg] 40'
  N. lat.).
\4\ U.S./Canada maritime boundary.
\5\ Intersection of the south-facing ME coastline and 67[deg] 00' W.
  long.

* * * * *
    (v) * * *
    (B) Independent third-party monitoring program. Beginning in 
fishing year 2013 (May 1, 2013), a sector must develop and implement an 
at-sea or electronic monitoring program to verify area fished, as well 
as catch and discards by species and gear type, and that is consistent 
with the goals and objectives of groundfish monitoring programs at 
Sec.  648.11(l). The details of any at-sea or electronic monitoring 
program must be specified in the sector's operations plan, pursuant to 
paragraph (b)(2)(xi) of this section, and must meet the operational 
standards specified in paragraph (b)(5) of this section. Electronic 
monitoring may be used in place of actual observers if the technology 
is deemed sufficient by NMFS for a specific trip type based on gear 
type and area fished, in a manner consistent with the Administrative 
Procedure Act. The level of coverage for trips by sector vessels is 
specified in paragraph (b)(1)(v)(B)(1) of this section. The at-sea/
electronic monitoring program shall be reviewed and approved by the 
Regional Administrator as part of a sector's operations plans in a 
manner consistent with the Administrative Procedure Act. A service 
provider providing at-sea or electronic monitoring services pursuant to 
this paragraph (b)(1)(v)(B) must meet the service provider standards 
specified in paragraph (b)(4) of this section, and be approved by NMFS 
in a manner consistent with the Administrative Procedure Act.
    (1) Coverage levels. Except as specified in paragraph 
(b)(1)(v)(B)(1)(i) of this section, any service provider providing at-
sea or electronic monitoring services required under this paragraph 
(b)(1)(v)(B)(1) must provide coverage that is fair and equitable, and 
distributed in a statistically random manner among all trips such that 
coverage is representative of fishing activities by all vessels within 
each sector and by all operations of vessels operating in each sector 
throughout the fishing year. Coverage levels for an at-sea monitoring 
program shall be specified by NMFS, pursuant to paragraph 
(b)(1)(v)(B)(1)(i) of this section, but shall be less than 100 percent 
of all sector trips. In the event that a NMFS-sponsored observer and a 
third-party at-sea monitor are assigned to the same trip, only the NMFS 
observer must observe that trip. If either an at-sea monitor or 
electronic monitoring is assigned to a particular trip, a vessel may 
not leave port without the appropriate at-sea monitor or electronic 
monitoring equipment on board.
    (i) At-sea/electronic monitoring. Unless otherwise specified in 
this paragraph (b)(1)(v)(B)(1)(i), beginning in fishing year 2013, 
coverage levels must be sufficient to at least meet the coefficient of 
variation specified in the Standardized Bycatch Reporting Methodology 
at the overall stock level for each stock of regulated species and 
ocean pout, and to monitor sector operations, to the extent 
practicable, in order to reliably estimate overall catch by sector 
vessels. In making its determination, NMFS shall take into account the 
goals and objective of groundfish monitoring programs at Sec.  
648.11(l), the National Standards and requirements of the Magnuson-
Stevens Act, including but not limited to the costs to sector vessels 
and NMFS, and any other relevant factors. For FYs 2013 and beyond, NMFS 
shall specify a separate coverage rate, lower than the coverage rate 
for all other sector trips, for sector trips fishing with 10-inch 
(25.4-cm) mesh or larger gillnets on a monkfish DAS, pursuant to Sec.  
648.91(c)(1)(iii), and only in the SNE Broad Stock Area, as defined at 
Sec.  648.10(k)(3)(iv).
    (2) Hail reports. For the purposes of the at-sea monitoring 
requirements specified in paragraph (b)(1)(v)(B) of this section, 
sector vessels must submit all hail reports for a sector trip in which 
the NE multispecies catch applies against the ACE allocated to a 
sector, as specified in this part, to service providers offering at-sea 
monitoring services. The mechanism and timing of the transmission of 
such hail reports must be consistent with instructions provided by the 
Regional Administrator for any at-sea or electronic monitoring program 
required by paragraph (b)(1)(v)(B) of this section, or specified in the 
annual sector operations plan, consistent with paragraph (b)(5) of this 
section.
    (3) Notification of service provider change. If, for any reason, a 
sector decides to change approved service providers used to provide at-
sea or electronic monitoring services required in this paragraph 
(b)(1)(v), the sector manager must first inform NMFS in writing in 
advance of the effective date of the change in approved service 
providers in conjunction with the submission of the next weekly sector 
catch report specified in paragraph (b)(1)(vi)(B) of this section. A 
sector may employ more than one service provider at any time, provided 
any service provider employed by a sector meets the standards specified 
in paragraph (b)(4) of this section.
    (vi) * * *
    (B) Weekly catch report. Each sector must submit weekly reports to 
NMFS stating the remaining balance of ACE allocated to each sector 
based upon

[[Page 26162]]

regulated species and ocean pout landings and discards of vessels 
participating in that sector and any compliance/enforcement concerns. 
These reports must include at least the following information, as 
instructed by the Regional Administrator: Week ending date; species, 
stock area, gear, number of trips, reported landings (landed pounds and 
live pounds), discards (live pounds), total catch (live pounds), status 
of the sector's ACE (pounds remaining and percent remaining), and 
whether this is a new or updated record of sector catch for each NE 
multispecies stock allocated to that particular sector; sector 
enforcement issues; and a list of vessels landing for that reporting 
week. These weekly catch reports must be submitted no later than 0700 
hr on the second Monday after the reporting week, as defined in this 
part. The frequency of these reports must be increased to more than a 
weekly submission when the balance of remaining ACE is low, as 
specified in the sector operations plan and approved by NMFS. If 
requested, sectors must provide detailed trip-by-trip catch data to 
NMFS for the purposes of auditing sector catch monitoring data based 
upon guidance provided by the Regional Administrator.
* * * * *
    (2) * * *
    (xi) Detailed plans for the monitoring and reporting of landings 
and discards by sector participants, including, but not limited to, 
detailed information describing the sector's at-sea/electronic 
monitoring program for monitoring utilization of ACE allocated to that 
sector; identification of the independent third-party service providers 
employed by the sector to provide at-sea/electronic monitoring 
services; the mechanism and timing of any hail reports; a list of 
specific ports where participating vessels will land fish, with 
specific exemptions noted for safety, weather, etc., allowed, provided 
the sector provides reasonable notification to NMFS concerning a 
deviation from the listed ports; and any other information about such a 
program required by NMFS;
* * * * *
    (4) Independent third-party monitoring provider standards. Any 
service provider intending to provide at-sea/electronic monitoring 
services described in paragraph (b)(1)(v) of this section must apply to 
and be approved/certified by NMFS in a manner consistent with the 
Administrative Procedure Act. NMFS shall approve/certify service 
providers and/or at-sea monitors as eligible to provide sector 
monitoring services specified in this part and can disapprove/decertify 
service providers and/or individual monitors through notice in writing 
to individual service providers/monitors if the following criteria are 
no longer being met:
    (i) * * *
    (F) A description of the applicant's ability to carry out the 
responsibilities and duties of a sector monitoring/reporting service 
provider and the arrangements to be used, including whether the service 
provider is able to offer at-sea monitoring services;
    (G) Evidence of adequate insurance (copies of which shall be 
provided to the vessel owner, operator, or vessel manager, when 
requested) to cover injury, liability, and accidental death to cover 
at-sea monitors (including during training); vessel owner; and service 
provider;
* * * * *
    (I) Proof that the service provider's at-sea monitors have passed 
an adequate training course sponsored by the service providers to the 
extent not funded by NMFS that is consistent with the curriculum used 
in the current yearly NEFOP training course, unless otherwise specified 
by NMFS;
    (J) An Emergency Action Plan describing the provider's response to 
an emergency with an at-sea monitor, including, but not limited to, 
personal injury, death, harassment, or intimidation; and
* * * * *
    (ii) Service provider performance requirements. At-sea monitoring 
service providers must be able to document compliance with the 
following criteria and requirements:
    (A) A service provider must establish and carry out a comprehensive 
plan to deploy NMFS-certified at-sea monitors, or other at-sea 
monitoring mechanism, such as electronic monitoring equipment that is 
approved by NMFS, according to a prescribed coverage level (or level of 
precision for catch estimation), as specified by NMFS, including all of 
the necessary vessel reporting/notice requirements to facilitate such 
deployment, as follows:
    (1) A service provider must be available to industry 24 hr per day, 
7 days per week, with the telephone system monitored a minimum of four 
times daily to ensure rapid response to industry requests;
    (2) A service provider must be able to deploy at-sea monitors, or 
other approved at-sea monitoring mechanism to all ports in which 
service is required by sectors, or a subset of ports as part of a 
contract with a particular sector;
    (3) A service provider must report at-sea monitors and other 
approved at-sea monitoring mechanism deployments to NMFS and the sector 
manager in a timely manner to determine whether the predetermined 
coverage levels are being achieved for the appropriate sector;
    (4) A service provider must assign at-sea monitors and other 
approved at-sea monitoring mechanisms without regard to any preference 
by the sector manager or representatives of vessels other than when the 
service is needed and the availability of approved/certified monitors 
and other at-sea monitoring mechanisms;
    (5) A service provider's at-sea monitor assignment must be fair, 
equitable, representative of fishing activities within each sector, and 
able to monitor fishing activity throughout the fishing year;
    (6) For service providers offering catch estimation or at-sea 
monitoring services, a service provider must be able to determine an 
estimate of discards for each trip and provide such information to the 
sector manager and NMFS, as appropriate and as required by this 
section;
    (B) The service provider must ensure that at-sea monitors remain 
available to NMFS, including NMFS Office for Law Enforcement, for 
debriefing for at least 2 weeks following any monitored trip/offload;
    (C) The service provider must report possible at-sea monitor 
harassment; discrimination; concerns about vessel safety or marine 
casualty; injury; and any information, allegations, or reports 
regarding at-sea monitor conflict of interest or breach of the 
standards of behavior to NMFS and/or the sector manager, as specified 
by NMFS;
    (D) The service provider must submit to NMFS, if requested, a copy 
of each signed and valid contract (including all attachments, 
appendices, addendums, and exhibits incorporated into the contract) 
between the service provider and those entities requiring services 
(i.e., sectors and participating vessels) and between the service 
provider and specific dockside, roving, or at-sea monitors;
    (E) The service provider must submit to NMFS, if requested, copies 
of any information developed and used by the service providers 
distributed to vessels, such as informational pamphlets, payment 
notification, description of duties, etc.;
    (F) A service provider may refuse to deploy an at-sea monitor or 
other approved at-sea monitoring mechanism on a requesting fishing 
vessel for any reason including, but not limited to, the following:

[[Page 26163]]

    (1) If the service provider does not have an available at-sea 
monitor or other at-sea monitoring mechanism approved by NMFS within 
the advanced notice requirements established by the service provider;
    (2) If the service provider is not given adequate notice of vessel 
departure or landing from the sector manager or participating vessels, 
as specified by the service provider;
    (3) For the purposes of at-sea monitoring, if the service provider 
has determined that the requesting vessel is inadequate or unsafe 
pursuant to the reasons described in Sec.  600.746; and
    (4) Failure to pay for previous deployments of at-sea monitors, or 
other approved at-sea monitoring mechanism.
    (G) With the exception of a service provider offering reporting, 
dockside, and/or at-sea monitoring services to participants of another 
fishery managed under Federal regulations, a service provider must not 
have a direct or indirect interest in a fishery managed under Federal 
regulations, including, but not limited to, fishing vessels, dealers, 
shipping companies, sectors, sector managers, advocacy groups, or 
research institutions and may not solicit or accept, directly or 
indirectly, any gratuity, gift, favor, entertainment, loan, or anything 
of monetary value from anyone who conducts fishing or fishing-related 
activities that are regulated by NMFS, or who has interests that may be 
substantially affected by the performance or nonperformance of the 
official duties of service providers;
    (H) A system to record, retain, and distribute the following 
information to NMFS, as requested, for a period specified by NMFS, 
including:
    (1) At-sea monitor and other approved monitoring equipment 
deployment levels, including the number of refusals and reasons for 
such refusals;
    (2) Incident/non-compliance reports (e.g., failure to offload 
catch); and
    (3) Hail reports, landings records, and other associated 
interactions with vessels and dealers.
    (I) A means to protect the confidentiality and privacy of data 
submitted by vessels, as required by the Magnuson-Stevens Act; and
    (J) A service provider must be able to supply at-sea monitors with 
sufficient safety and data-gathering equipment, as specified by NMFS.
* * * * *
    (5) At-sea/electronic monitoring operational standards. In addition 
to the independent third-party monitoring provider standards specified 
in paragraph (b)(4) of this section, any at-sea/electronic monitoring 
program developed as part of a sector's yearly operations plan pursuant 
to paragraph (b)(1)(v)(B) of this section must meet the following 
operational standards to be approved by NMFS:
    (i) Gear. Each at-sea monitor must be provided with all of the 
equipment specified by the Northeast Fisheries At-sea Monitoring 
Program. A list of such equipment is available from the Northeast 
Fisheries Science Center upon request. At-sea/electronic monitoring 
service providers are responsible for the cost of providing such gear 
to at-sea monitors to the extent not funded by NMFS. This gear shall be 
inspected by NMFS upon the completion of training required pursuant to 
paragraph (b)(4)(i)(I) of this section.
    (ii) Vessel selection protocol. An at-sea/electronic monitoring 
program service provider must develop a formal vessel-selection 
protocol to deploy at-sea monitors and electronic monitoring equipment 
in a statistically random manner consistent with the coverage levels 
required pursuant to paragraph (b)(1)(v)(B)(1) of this section. This 
protocol must include a method to allow for waivers in specific 
circumstances, including how waivers would be requested, assessed, and 
recorded.
    (iii) Reporting/recordkeeping requirements--(A) Vessel 
requirements. In addition to all other reporting/recordkeeping 
requirements specified in this part, to facilitate the deployment of 
at-sea monitors and electronic monitoring equipment pursuant to 
paragraph (b)(1)(v)(B)(1) of this section, the operator of a vessel 
fishing on a sector trip must provide at-sea/electronic monitoring 
service providers with at least the following information: The vessel 
name, permit number, trip ID number in the form of the VTR serial 
number of the first VTR page for that trip or another trip identifier 
specified by NMFS, whether a monkfish DAS will be used, and an estimate 
of the date/time of departure in advance of each trip. The timing of 
such notice shall be sufficient to allow ample time for the service 
provider to determine whether an at-sea monitor or electronic 
monitoring equipment will be deployed on each trip and allow the at-sea 
monitor or electronic monitoring equipment to prepare for the trip and 
get to port, or to be installed on the vessel, respectively. The 
details of the timing, method (e.g., phone, email, etc.), and 
information needed for such pre-trip notifications shall be included as 
part of a sector's yearly operations plan. If a vessel has been 
informed by a service provider that an at-sea monitor or electronic 
monitoring equipment has been assigned to a particular trip pursuant to 
paragraph (b)(6)(iii)(B)(1) of this section, the vessel may not leave 
port to begin that trip until the at-sea monitor has arrived and 
boarded the vessel, or the electronic monitoring equipment has been 
properly installed.
    (B) At-sea/electronic monitoring service provider requirements--(1) 
Confirmation of pre-trip notification. Upon receipt of a pre-trip 
notification pursuant to paragraph (b)(5)(iii)(A) of this section, the 
service provider shall inform the vessel operator whether the vessel 
will be monitored by an at-sea observer or electronic monitoring 
equipment for that trip, or will be issued an at-sea/electronic 
monitoring waiver for that trip based upon the vessel selection 
protocol specified in paragraph (b)(5)(ii) of this section.
    (2) At-sea/electronic monitoring report. A report detailing area 
fished and the amount of each species kept and discarded shall be 
submitted electronically in a standard acceptable form to the 
appropriate sector and NMFS within 48 hr of the completion of the trip, 
as instructed by the Regional Administrator. The data elements to be 
collected and the format for submission shall be specified by NMFS and 
distributed to all approved at-sea/electronic monitoring service 
providers and sectors. At-sea/electronic monitoring data shall not be 
accepted until such data pass automated NMFS data quality checks.
    (iv) Safety hazards--(A)Vessel requirements. The operator of a 
sector vessel must detail and identify any safety hazards to any at-sea 
monitor assigned pursuant to paragraph (b)(5)(iii)(B)(1) of this 
section prior to leaving port. A vessel cannot begin a trip if it has 
failed a review of safety issues pursuant to paragraph (b)(5)(iv)(B) of 
this section, until the identified safety deficiency has been resolved, 
pursuant to Sec.  600.746(i).
    (B) At-sea/electronic monitoring service provider requirements. An 
at-sea monitor must complete a pre-trip vessel safety checklist 
provided by NMFS before an at-sea monitor can leave port onboard a 
vessel on a sector trip. If the vessel fails a review of safety issues 
pursuant to this paragraph (b)(5)(iv)(B), an at-sea monitor cannot be 
deployed on that vessel for that trip.
    (v) Adjustment to operational standards. The at-sea/electronic 
monitoring operational standards specified in paragraph (b)(5) of this 
section may be revised by the Regional Administrator in a manner 
consistent with the Administrative Procedure Act.
    (c) * * *
    (2) * * *

[[Page 26164]]

    (i) Regulations that may not be exempted for sector participants. 
The Regional Administrator may not exempt participants in a sector from 
the following Federal fishing regulations: Specific time and areas 
within the NE multispecies year-round closure areas; permitting 
restrictions (e.g., vessel upgrades, etc.); gear restrictions designed 
to minimize habitat impacts (e.g., roller gear restrictions, etc.); 
reporting requirements; and AMs specified at Sec.  648.90(a)(5)(i)(D). 
For the purposes of this paragraph (c)(2)(i), the DAS reporting 
requirements specified at Sec.  648.82; the SAP-specific reporting 
requirements specified at Sec.  648.85; and the reporting requirements 
associated with a dockside monitoring program specified in paragraph 
(b)(5)(i) of this section are not considered reporting requirements, 
and the Regional Administrator may exempt sector participants from 
these requirements as part of the approval of yearly operations plans. 
For the purpose of this paragraph (c)(2)(i), the Regional Administrator 
may not grant sector participants exemptions from the NE multispecies 
year-round closures areas defined as Essential Fish Habitat Closure 
Areas as defined at Sec.  648.81(h); the Fippennies Ledge Area as 
defined in paragraph (c)(2)(i)(A) of this section; Closed Area I and 
Closed Area II, as defined at Sec.  648.81(a) and (b), respectively, 
during the period February 16 through April 30; and the Western GOM 
Closure Area, as defined at Sec.  648.81(e), where it overlaps with any 
Sector Rolling Closure Areas, as defined at Sec.  648.81(f)(2)(vi). 
This list may be modified through a framework adjustment, as specified 
in Sec.  648.90.
    (A) Fippennies Ledge Area. The Fippennies Ledge Area is bounded by 
the following coordinates, connected by straight lines in the order 
listed:

                          Fippennies Ledge Area
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  42[deg]50.0'          69[deg]17.0'
2...........................  42[deg]44.0'          69[deg]14.0'
3...........................  42[deg]44.0'          69[deg]18.0'
4...........................  42[deg]50.0'          69[deg]21.0'
------------------------------------------------------------------------

     (B) [Reserved]
* * * * *

0
13. In Sec.  648.89, revise paragraph (f)(2) and add paragraph (f)(3) 
to read as follows:


Sec.  648.89  Recreational and charter/party vessel restrictions.

* * * * *
    (f) * * *
    (2) Reactive AM adjustment. If it is determined that any 
recreational sub-ACL was exceeded, as specified in paragraph (f)(1) of 
this section, the Regional Administrator, after consultation with the 
New England Fishery Management Council, shall develop measures 
necessary to prevent the recreational fishery from exceeding the 
appropriate sub-ACL in future years. Appropriate AMs for the 
recreational fishery, including adjustments to fishing season, minimum 
fish size, or possession limits, may be implemented in a manner 
consistent with the Administrative Procedure Act, with final measures 
published in the Federal Register no later than January when possible. 
Separate AMs shall be developed for the private and charter/party 
components of the recreational fishery.
    (3) Proactive AM adjustment. When necessary, the Regional 
Administrator, after consultation with the New England Fishery 
Management Council, may adjust recreational measures to ensure the 
recreational fishery achieves, but does not exceed any recreational 
fishery sub-ACL in a future fishing year. Appropriate AMs for the 
recreational fishery, including adjustments to fishing season, minimum 
fish size, or possession limits, may be implemented in a manner 
consistent with the Administrative Procedure Act, with final measures 
published in the Federal Register prior to the start of the fishing 
year where possible. In specifying these AMs, the Regional 
Administrator shall take into account the non-binding prioritization of 
possible measures recommended by the Council: for cod, first increases 
to minimum fish sizes, then adjustments to seasons, followed by changes 
to bag limits; and for haddock, first increases to minimum size limits, 
then changes to bag limits, and then adjustments to seasons.

0
14. In Sec.  648.90:
0
a. Revise paragraphs (a)(4)(iii) introductory text and (a)(4)(iii)(B), 
(C), and (E);
0
b. Add paragraphs (a)(4)(iii)(F) through (H); and
0
c. Revise paragraphs (a)(4)(iv)(B) and (a)(5).
    The revisions and additions read as follows:


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

* * * * *
    (a) * * *
    (4) * * *
    (iii) ABC/ACL distribution. The ABCs/ACLs adopted by the Council 
for each regulated species or ocean pout stock pursuant to this 
paragraph (a)(4) shall be subdivided among the various sub-components 
of the fishery, as specified in paragraphs (a)(4)(iii)(A) through (H) 
of this section. For transboundary stocks managed by the Understanding, 
pursuant to Sec.  648.85(a), the distribution of ABC/ACLs described in 
paragraphs (a)(4)(iii)(A) through (H) of this section shall be based 
upon the catch available to U.S. fishermen. The Council may revise its 
recommendations for the distribution of ABCs and ACLs among these and 
other sub-components through the process to specify ABCs and ACLs, as 
described in this paragraph (a)(4).
* * * * *
    (B) Regulated species or ocean pout catch by exempted fisheries. 
Unless otherwise specified in paragraphs (a)(4)(iii)(F) or (G) of this 
section, regulated species or ocean pout catch by other, non-specified 
sub-components of the fishery, including, but not limited to, exempted 
fisheries that occur in Federal waters and fisheries harvesting 
exempted species specified in Sec.  648.80(b)(3) shall be deducted from 
the ABC/ACL of each regulated species or ocean pout stock, pursuant to 
the process to specify ABCs and ACLs described in this paragraph 
(a)(4). The catch of these non-specified sub-components of the ACL 
shall be monitored using data collected pursuant to this part. If catch 
from such fisheries exceeds the amount specified in this paragraph 
(a)(4)(iii)(B), AMs shall be developed to prevent the overall ACL for 
each stock from being exceeded, pursuant to the framework adjustment 
process specified in this section.
    (C) Yellowtail flounder catch by the Atlantic sea scallop fishery. 
Yellowtail flounder catch in the Atlantic sea scallop fishery, as 
defined in subpart D of this part, shall be deducted from the ABC/ACL 
for each yellowtail flounder stock pursuant to the restrictions 
specified in subpart D of this part and the process to specify ABCs and 
ACLs, as described in paragraph (a)(4) of this section. Unless 
otherwise specified in this paragraph (a)(4)(iii)(C), or subpart D of 
this part, the specific value of the sub-components of the ABC/ACL for 
each stock of yellowtail flounder distributed to the Atlantic sea 
scallop fishery shall be specified pursuant to the biennial adjustment 
process specified in paragraph (a)(2) of this section. The Atlantic sea 
scallop fishery shall be allocated 40 percent of the GB yellowtail ABC 
(U.S. share only) in fishing year 2013, and 16 percent in fishing year 
2014 and each fishing year thereafter, pursuant to the process for 
specifying ABCs and ACLs described in this paragraph (a)(4). An ACL 
based on

[[Page 26165]]

this ABC shall be determined using the process described in paragraph 
(a)(4)(i) of this section. Based on information available, NMFS shall 
project the expected scallop fishery catch of GB yellowtail flounder 
for the current fishing year by January 15. If NMFS determines that the 
scallop fishery will catch less than 90 percent of its GB yellowtail 
flounder sub-ACL, the Regional Administrator may reduce the scallop 
fishery sub-ACL to the amount projected to be caught, and increase the 
groundfish fishery sub-ACL by any amount up to the amount reduced from 
the scallop fishery sub-ACL. The revised groundfish fishery sub-ACL 
shall be distributed to the common pool and sectors based on the 
process specified in paragraph (a)(4)(iii)(H)(1) of this section.
* * * * *
    (E) SNE/MA windowpane flounder catch by the Atlantic sea scallop 
fishery. SNE/MA windowpane flounder catch in the Atlantic sea scallop 
fishery, as defined in subpart D of this part, shall be deducted from 
the ABC/ACL for SNE/MA windowpane flounder pursuant to the restrictions 
specified in subpart D of this part and the process to specify ABCs and 
ACLs, as described in paragraph (a)(4) of this section. The Atlantic 
sea scallop fishery shall be allocated 36 percent of the GB yellowtail 
ABC (U.S. share only) in fishing year 2013 and each fishing year after, 
pursuant to the process for specifying ABCs and ACLs described in this 
paragraph (a)(4). An ACL based on this ABC shall be determined using 
the process described in paragraph (a)(4)(i) of this section.
    (F) SNE/MA windowpane flounder catch by exempted fisheries. SNE/MA 
windowpane flounder catch by other, non-specified sub-components of the 
fishery, including, but not limited to, exempted fisheries that occur 
in Federal waters and fisheries harvesting exempted species specified 
in Sec.  648.80(b)(3), shall be deducted from the ABC/ACL for SNE/MA 
windowpane flounder pursuant to the process to specify ABCs and ACLs, 
as described in this paragraph (a)(4). The specific value of the sub-
components of the ABC/ACL for SNE/MA windowpane flounder distributed to 
these other fisheries shall be specified pursuant to the biennial 
adjustment process specified in paragraph (a)(2) of this section.
    (G) GB yellowtail flounder catch by small mesh fisheries. GB 
yellowtail flounder catch by bottom trawl vessels fishing with a codend 
mesh size of less than 5-inch (12.7-cm) in other, non-specified sub-
components of the fishery, including, but not limited to, exempted 
fisheries that occur in Federal waters and fisheries harvesting 
exempted species specified in Sec.  648.80(b)(3), shall be deducted 
from the ABC/ACL for GB yellowtail flounder pursuant to the process to 
specify ABCs and ACLs, as described in this paragraph (a)(4). This 
small mesh fishery shall be allocated 2 percent of the GB yellowtail 
ABC (U.S. share only) in fishing year 2013 and each fishing year after, 
pursuant to the process for specifying ABCs and ACLs described in this 
paragraph (a)(4). An ACL based on this ABC shall be determined using 
the process described in paragraph (a)(4)(i) of this section.
    (H) Regulated species or ocean pout catch by the NE multispecies 
commercial and recreational fisheries. Unless otherwise specified in 
the ACL recommendations developed pursuant to paragraph (a)(4)(i) of 
this section, after all of the deductions and considerations specified 
in paragraphs (a)(4)(iii)(A) through (G) of this section, the remaining 
ABC/ACL for each regulated species or ocean pout stock shall be 
allocated to the NE multispecies commercial and recreational fisheries, 
pursuant to this paragraph (a)(4)(iii)(H).
    (1) Recreational allocation. Unless otherwise specified in 
paragraph (a)(5) of this section, recreational catches shall be 
compared to the ACLs allocated pursuant to this paragraph 
(a)(4)(iii)(H)(1) for the purposes of determining whether adjustments 
to recreational measures are necessary, pursuant to the recreational 
fishery AMs specified in Sec.  648.89(f).
    (i) Stocks allocated. Unless otherwise specified in this paragraph 
(a)(4)(iii)(H)(1), the ABCs/ACLs for GOM cod and GOM haddock available 
to the NE multispecies fishery pursuant to paragraph (a)(4)(iii)(H) of 
this section shall be divided between commercial and recreational 
components of the fishery, based upon the average proportional catch of 
each component for each stock during fishing years 2001 through 2006.
    (ii) Process for determining if a recreational allocation is 
necessary. A recreational allocation may not be made if it is 
determined that, based upon available information, the ACLs for these 
stocks are not being fully harvested by the NE multispecies fishery, or 
if the recreational harvest, after accounting for state waters catch 
pursuant to paragraph (a)(4)(iii)(A) of this section, is less than 5 
percent of the overall catch for a particular stock of regulated 
species or ocean pout.
    (2) Commercial allocation. Unless otherwise specified in this 
paragraph (a)(4)(iii)(H)(2), the ABC/ACL for regulated species or ocean 
pout stocks available to the commercial NE multispecies fishery, after 
consideration of the recreational allocation pursuant to paragraph 
(a)(4)(iii)(H)(1) of this section, shall be divided between vessels 
operating under approved sector operations plans, as described at Sec.  
648.87(c), and vessels operating under the provisions of the common 
pool, as defined in this part, based upon the cumulative PSCs of 
vessels participating in sectors calculated pursuant to Sec.  
648.87(b)(1)(i)(E). For fishing years 2010 and 2011, the ABC/ACL of 
each regulated species or ocean pout stocks not allocated to sectors 
pursuant to Sec.  648.87(b)(1)(i)(E) (i.e., Atlantic halibut, SNE/MA 
winter flounder, ocean pout, windowpane flounder, and Atlantic 
wolffish) that is available to the commercial NE multispecies fishery 
shall be allocated entirely to the common pool. Unless otherwise 
specified in paragraph (a)(5) of this section, regulated species or 
ocean pout catch by common pool and sector vessels shall be deducted 
from the sub-ACL/ACE allocated pursuant to this paragraph 
(a)(4)(iii)(H)(2) for the purposes of determining whether adjustments 
to common pool measures are necessary, pursuant to the common pool AMs 
specified in Sec.  648.82(n), or whether sector ACE overages must be 
deducted, pursuant to Sec.  648.87(b)(1)(iii).
    (3) Revisions to commercial and recreational allocations. 
Distribution of the ACL for each stock available to the NE multispecies 
fishery between and among commercial and recreational components of the 
fishery may be implemented through a framework adjustment pursuant to 
this section. Any changes to the distribution of ACLs to the NE 
multispecies fishery shall not affect the implementation of AMs based 
upon the distribution in effect at the time of the overage that 
triggered the AM.
    (iv) * * *
    (B) Discards. Unless otherwise specified in this paragraph 
(a)(4)(iv)(B), regulated species or ocean pout discards shall be 
monitored through the use of VTRs, observer data, VMS catch reports, 
and other available information, as specified in this part. Regulated 
species or ocean pout discards by vessels on a sector trip shall be 
monitored pursuant to Sec.  648.87(b)(1)(v)(A).
    (v) * * *
    (5) AMs. Except as specified in paragraphs (a)(4)(iii)(A) through 
(G) of this section, if any of the ACLs specified in paragraph (a)(4) 
of this section are exceeded based upon available catch information, 
the AMs specified in paragraphs (a)(5)(i) and (ii) of this section 
shall take effect in the following

[[Page 26166]]

fishing year, or as soon as practicable, thereafter, once catch data 
for all affected fisheries are available, as applicable.
    (i) AMs for the NE multispecies commercial and recreational 
fisheries. If the catch of regulated species or ocean pout by a sub-
component of the NE multispecies fishery (i.e., common pool vessels, 
sector vessels, or private recreational and charter/party vessels) 
exceeds the amount allocated to each sub-component, as specified in 
paragraph (a)(4)(iii)(H) of this section, then the applicable a.m. for 
that sub-component of the fishery shall take effect, pursuant to 
paragraphs (a)(5)(i)(A) through (C) of this section. In determining the 
applicability of AMs specified for a sub-component of the NE 
multispecies fishery in paragraphs (a)(5)(i)(A) through (C) of this 
section, the Regional Administrator shall consider available 
information regarding the catch of regulated species and ocean pout by 
each sub-component of the NE multispecies fishery, plus each sub-
component's share of any overage of the overall ACL for a particular 
stock caused by excessive catch by vessels outside of the FMP, exempted 
fisheries, or the Atlantic sea scallop fishery, as specified in this 
paragraph (a)(5), as appropriate.
    (A) Excessive catch by common pool vessels. If the catch of 
regulated species and ocean pout by common pool vessels exceeds the 
amount of the ACL specified for common pool vessels pursuant to 
paragraph (a)(4)(iii)(H)(2) of this section, then the AMs described in 
Sec.  648.82(n) shall take effect. Pursuant to the distribution of 
ABCs/ACLs specified in paragraph (a)(4)(iii)(H)(2) of this section, for 
the purposes of this paragraph (a)(5)(i)(A), the catch of each 
regulated species or ocean pout stock not allocated to sectors pursuant 
to Sec.  648.87(b)(1)(i)(E) (i.e., Atlantic halibut, SNE/MA winter 
flounder, ocean pout, windowpane flounder, and Atlantic wolffish) 
during fishing years 2010 and 2011 shall be added to the catch of such 
stocks by common pool vessels to determine whether the differential DAS 
counting AM described in Sec.  648.82(n)(1) shall take effect. If such 
catch does not exceed the portion of the ACL specified for common pool 
vessels pursuant to paragraph (a)(4)(iii)(H)(2) of this section, then 
no AMs shall take effect for common pool vessels.
    (B) Excessive catch by sector vessels. If the catch of regulated 
species and ocean pout by sector vessels exceeds the amount of the ACL 
specified for sector vessels pursuant to paragraph (a)(4)(iii)(H)(2) of 
this section, then the AMs described in Sec.  648.87(b)(1)(iii) shall 
take effect. For the purposes of this paragraph (a)(5)(i)(B), the catch 
of regulated species and ocean pout for each sector approved pursuant 
to Sec.  648.87 shall be based upon the catch of vessels participating 
in each approved sector. If such catch does not exceed the portion of 
the ACL specified for an individual sector pursuant to paragraph 
(a)(4)(iii)(H)(2) of this section, then no AMs shall take effect for 
that sector.
    (C) Excessive catch by the NE multispecies recreational fishery. If 
the catch of regulated species and ocean pout by private recreational 
and charter/party vessels exceeds the amount of the ACL specified for 
the recreational fishery pursuant to paragraph (a)(4)(iii)(H)(1) of 
this section, then the AMs described in Sec.  648.89(f) shall take 
effect. If such catch does not exceed the portion of the ACL specified 
for the recreational fishery pursuant to paragraph (a)(4)(iii)(H)(1) of 
this section, then no AMs shall take effect for the recreational 
fishery.
    (D) AMs for both stocks of windowpane flounder, ocean pout, 
Atlantic halibut, Atlantic wolffish, and SNE/MA winter flounder. At the 
end of each fishing year, NMFS shall determine if the overall ACL for 
northern windowpane flounder, southern windowpane flounder, ocean pout, 
Atlantic halibut, Atlantic wolffish, or SNE/MA winter flounder was 
exceeded. If the overall ACL for any of these stocks is exceeded, NMFS 
shall implement the appropriate AM, as specified in this paragraph 
(a)(5)(i)(D), in a subsequent fishing year, consistent with the APA. If 
reliable information is available, the AM shall be implemented in the 
fishing year immediately following the fishing year in which the 
overage occurred. Otherwise, the AM shall be implemented in the second 
fishing year after the fishing year in which the overage occurred. For 
example, if NMFS determined before the start of fishing year 2013 that 
the overall ACL for northern windowpane flounder was exceeded by the 
groundfish fishery in fishing year 2012, the applicable AM would be 
implemented for fishing year 2013. If NMFS determined after the start 
of fishing year 2013 that the overall ACL for northern windowpane 
flounder was exceeded in fishing year 2012, the applicable AM would be 
implemented for fishing year 2014. If updated catch information becomes 
available subsequent to the implementation of an AM that indicates that 
an ACL was not exceeded, the AM will be rescinded, consistent with the 
Administrative Procedure Act.
    (1) Windowpane flounder and ocean pout. If NMFS determines the 
overall ACL for either stock of windowpane flounder or ocean pout is 
exceeded, as described in this paragraph (a)(5)(i)(D)(1), by any amount 
greater than the management uncertainty buffer, the applicable small AM 
area for the stock shall be implemented, as specified in paragraph 
(a)(5)(i)(D) of this section. If the overall ACL is exceeded by 21 
percent or more, the applicable large AM area(s) for the stock shall be 
implemented, as specified in paragraph (a)(5)(i)(D) of this section, 
and the Council shall revisit the AM in a future action. The AM areas 
defined below are bounded by the following coordinates, connected in 
the order listed by rhumb lines, unless otherwise noted. Vessels 
fishing with trawl gear in these areas may only use a haddock separator 
trawl, as specified in Sec.  648.85(a)(3)(iii)(A); a Ruhle trawl, as 
specified in Sec.  648.85(b)(6)(iv)(J)(3); a rope separator trawl, as 
specified in Sec.  648.84(e); or any other gear approved consistent 
with the process defined in Sec.  648.85(b)(6). If an overage of the 
overall ACL for SNE/MA windowpane flounder is as a result of an overage 
of the sub-ACL allocated to exempted fisheries pursuant to paragraph 
(a)(4)(iii)(F) of this section, the applicable AM area(s) shall be in 
effect for any trawl vessel fishing with a codend mesh size of greater 
than or equal to 5-inch (12.7-cm) in other, non-specified sub-
components of the fishery, including, but not limited to, exempted 
fisheries that occur in Federal waters and fisheries harvesting 
exempted species specified in Sec.  648.80(b)(3). If an overage of the 
overall ACL for SNE/MA windowpane flounder is as a result of an overage 
of the sub-ACL allocated to the groundfish fishery pursuant to 
paragraph (a)(4)(iii)(H)(2) of this section, the applicable AM Area(s) 
shall be in effect for any limited access NE multispecies permitted 
vessel fishing on a NE multispecies DAS or sector trip. If an overage 
of the overall ACL for SNE/MA windowpane flounder is as a result of 
overages of both the groundfish fishery and exempted fishery sub-ACLs, 
the applicable AM area(s) shall be in effect for both the groundfish 
fishery and exempted fisheries. If a sub-ACL for either stock of 
windowpane flounder or ocean pout is allocated to another fishery, 
consistent with the process specified at Sec.  648.90(a)(4), and AMs 
are otherwise developed for that fishery, the groundfish fishery AM 
shall only be implemented if the sub-ACL allocated to the groundfish 
fishery is exceeded (i.e., the sector and common pool catch for a 
particular stock, including the common

[[Page 26167]]

pool's share of any overage of the overall ACL caused by excessive 
catch by other sub-components of the fishery pursuant to Sec.  
648.90(a)(5) exceeds the common pool sub-ACL) and the overall ACL is 
also exceeded.

        Northern Windowpane Flounder and Ocean Pout Small AM Area
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  41[deg]10[min]        67[deg]40[min]
2...........................  41[deg]10[min]        67[deg]20[min]
3...........................  41[deg]00[min]        67[deg]20[min]
4...........................  41[deg]00[min]        67[deg]00[min]
5...........................  40[deg]50[min]        67[deg]00[min]
6...........................  40[deg]50[min]        67[deg]40[min]
1...........................  41[deg]10[min]        67[deg]40[min]
------------------------------------------------------------------------


        Northern Windowpane Flounder and Ocean Pout Large AM Area
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  42[deg]10[min]        67[deg]40[min]
2...........................  42[deg]10[min]        67[deg]20[min]
3...........................  41[deg]00[min]        67[deg]20[min]
4...........................  41[deg]00[min]        67[deg]00[min]
5...........................  40[deg]50[min]        67[deg]00[min]
6...........................  40[deg]50[min]        67[deg]40[min]
1...........................  42[deg]10[min]        67[deg]40[min]
------------------------------------------------------------------------


        Southern Windowpane Flounder and Ocean Pout Small AM Area
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  41[deg]10[min]        71[deg]30[min]
2...........................  41[deg]10[min]        71[deg]20[min]
3...........................  40[deg]50[min]        71[deg]20[min]
4...........................  40[deg]50[min]        71[deg]30[min]
1...........................  41[deg]10[min]        71[deg]30[min]
------------------------------------------------------------------------


       Southern Windowpane Flounder and Ocean Pout Small AM Area 1
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  41[deg]10[min]        71[deg]50[min]
2...........................  41[deg]10[min]        71[deg]10[min]
3...........................  41[deg]00[min]        71[deg]10[min]
4...........................  41[deg]00[min]        71[deg]20[min]
5...........................  40[deg]50[min]        71[deg]20[min]
6...........................  40[deg]50[min]        71[deg]50[min]
1...........................  41[deg]10[min]        71[deg]50[min]
------------------------------------------------------------------------


       Southern Windowpane Flounder and Ocean Pout Large AM Area 2
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  (\1\)                 73[deg]30[min]
2...........................  40[deg]30[min]        73[deg]30[min]
3...........................  40[deg]30[min]        73[deg]50[min]
4...........................  40[deg]20[min]        73[deg]50[min]
5...........................  40[deg]20[min]        (\2\)
6...........................  (\3\)                 73[deg]58.5[min]
7...........................  (\4\)                 73[deg]58.5[min]
8...........................  40[deg]32.6[min]      73[deg]56.4[min]
                               (\5\)                 (\5\)
1...........................  (\1\)                 73[deg]30[min]
------------------------------------------------------------------------
\1\ The southern-most coastline of Long Island, NY at 73[deg]30' W.
  longitude.
\2\ The eastern-most coastline of NJ at 40[deg]20' N. latitude, then
  northward along the NJ coastline to Point 6.
\3\ The northern-most coastline of NJ at 73[deg]58.5' W. longitude.
\4\ The southern-most coastline of Long Island, NY at 73[deg]58.5' W.
  longitude.
\5\ The approximate location of the southwest corner of the Rockaway
  Peninsula, Queens, NY, then eastward along the southern-most coastline
  of Long Island, NY (excluding South Oyster Bay), back to Point 1.

    (2) Atlantic halibut. If NMFS determines the overall ACL for 
Atlantic halibut is exceeded, as described in this paragraph 
(a)(5)(i)(D)(2), by any amount greater than the management uncertainty 
buffer, the applicable AM areas shall be implemented, as specified in 
paragraph (a)(5)(i)(D) of this section. If the overall ACL is exceeded 
by 21 percent or more, the applicable large AM area(s) for the stock 
shall be implemented, as specified in paragraph (a)(5)(i)(D) of this 
section, and the Council shall revisit the AM in a future action. The 
AM areas defined below are bounded by the following coordinates, 
connected in the order listed by straight lines, unless otherwise 
noted. Any vessel issued a limited access NE multispecies permit and 
fishing with trawl gear in the Atlantic Halibut Trawl Gear AM Area may 
only use a haddock separator trawl, as specified in Sec.  
648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in Sec.  
648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in Sec.  
648.84(e); or any other gear approved consistent with the process 
defined in Sec.  648.85(b)(6). When in effect, a limited access NE 
multispecies permitted vessel with gillnet or longline gear may not 
fish or be in the Atlantic Halibut Fixed Gear AM Areas, unless 
transiting with its gear stowed in accordance with Sec.  648.23(b), or 
such gear was approved consistent with the process defined in Sec.  
648.85(b)(6). If a sub-ACL for Atlantic halibut is allocated to another 
fishery, consistent with the process specified at Sec.  648.90(a)(4), 
and AMs are developed for that fishery, the groundfish fishery AM shall 
only be implemented if the sub-ACL allocated to the groundfish fishery 
is exceeded (i.e., the sector and common pool catch for a particular 
stock, including the common pool's share of any overage of the overall 
ACL caused by excessive catch by other sub-components of the fishery 
pursuant to Sec.  648.90(a)(5) exceeds the common pool sub-ACL) and the 
overall ACL is also exceeded.

                   Atlantic Halibut Trawl Gear AM Area
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  42[deg]00[min]        69[deg]20[min]
2...........................  42[deg]00[min]        68[deg]20[min]
3...........................  41[deg]30[min]        68[deg]20[min]
4...........................  41[deg]30[min]        69[deg]20[min]
------------------------------------------------------------------------


                  Atlantic Halibut Fixed Gear AM Area 1
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  42[deg]30[min]        70[deg]20[min]
2...........................  42[deg]30[min]        70[deg]15[min]
3...........................  42[deg]20[min]        70[deg]15[min]
4...........................  42[deg]20[min]        70[deg]20[min]
------------------------------------------------------------------------


                  Atlantic Halibut Fixed Gear AM Area 2
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  43[deg]10[min]        69[deg]40[min]
2...........................  43[deg]10[min]        69[deg]30[min]
3...........................  43[deg]00[min]        69[deg]30[min]
4...........................  43[deg]00[min]        69[deg]40[min]
------------------------------------------------------------------------

    (3) Atlantic wolffish. If NMFS determines the overall ACL for 
Atlantic wolffish is exceeded, as described in this paragraph 
(a)(5)(i)(D)(3), by any amount greater than the management uncertainty 
buffer, the applicable AM areas shall be implemented, as specified in 
paragraph (a)(5)(i)(D) of this section. If the overall ACL is exceeded 
by 21 percent or more, the applicable large AM area(s) for the stock 
shall be implemented, as specified in paragraph (a)(5)(i)(D) of this 
section, and the Council shall revisit the AM in a future action. The 
AM areas defined below are bounded by the following coordinates, 
connected in the order listed by straight lines, unless otherwise 
noted. Any vessel issued a limited access NE multispecies permit and 
fishing with trawl gear in the Atlantic Wolffish Trawl Gear AM Area may 
only use a haddock separator trawl, as specified in Sec.  
648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in Sec.  
648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in Sec.  
648.84(e); or any other gear approved consistent with the process 
defined in Sec.  648.85(b)(6). When in effect, a limited access NE 
multispecies permitted vessel with gillnet or longline gear may not 
fish or be in the Atlantic Wolffish Fixed Gear AM Areas, unless 
transiting with its gear stowed in accordance with Sec.  648.23(b), or 
such gear was approved

[[Page 26168]]

consistent with the process defined in Sec.  648.85(b)(6). If a sub-ACL 
for Atlantic wolffish is allocated to another fishery, consistent with 
the process specified at Sec.  648.90(a)(4), and AMs are developed for 
that fishery, the groundfish fishery AM shall only be implemented if 
the sub-ACL allocated to the groundfish fishery is exceeded (i.e., the 
sector and common pool catch for a particular stock, including the 
common pool's share of any overage of the overall ACL caused by 
excessive catch by other sub-components of the fishery pursuant to 
Sec.  648.90(a)(5) exceeds the common pool sub-ACL) and the overall ACL 
is also exceeded.

                  Atlantic Wolffish Trawl Gear AM Area
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  42[deg]30[min]        70[deg]30[min]
2...........................  42[deg]30[min]        70[deg]15[min]
3...........................  42[deg]15[min]        70[deg]15[min]
4...........................  42[deg]15[min]        70[deg]10[min]
5...........................  42[deg]10[min]        70[deg]10[min]
6...........................  42[deg]10[min]        70[deg]20[min]
7...........................  42[deg]20[min]        70[deg]20[min]
8...........................  42[deg]20[min]        70[deg]30[min]
------------------------------------------------------------------------


                 Atlantic Wolffish Fixed Gear AM Area 1
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  41[deg]40[min]        69[deg]40[min]
2...........................  41[deg]40[min]        69[deg]30[min]
3...........................  41[deg]30[min]        69[deg]30[min]
4...........................  41[deg]30[min]        69[deg]40[min]
------------------------------------------------------------------------


                 Atlantic Wolffish Fixed Gear AM Area 2
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  42[deg]30[min]        70[deg]20[min]
2...........................  42[deg]30[min]        70[deg]15[min]
3...........................  42[deg]20[min]        70[deg]15[min]
4...........................  42[deg]20[min]        70[deg]20[min]
------------------------------------------------------------------------

    (4) SNE/MA winter flounder. If NMFS determines the overall ACL for 
SNE/MA winter flounder is exceeded, as described in this paragraph 
(a)(5)(i)(D)(4), by any amount greater than the management uncertainty 
buffer, the applicable AM areas shall be implemented, as specified in 
paragraph (a)(5)(i)(D) of this section. If the overall ACL is exceeded 
by 21 percent or more, the applicable large AM area(s) for the stock 
shall be implemented, as specified in paragraph (a)(5)(i)(D) of this 
section, and the Council shall revisit the AM in a future action. The 
AM areas defined below are bounded by the following coordinates, 
connected in the order listed by straight lines, unless otherwise 
noted. Any vessel issued a limited access NE multispecies permit and 
fishing with trawl gear in the SNE/MA Winter Flounder Trawl Gear AM 
Area may only use a haddock separator trawl, as specified in Sec.  
648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in Sec.  
648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in Sec.  
648.84(e); or any other gear approved consistent with the process 
defined in Sec.  648.85(b)(6). If a sub-ACL for SNE/MA winter flounder 
is allocated to another fishery, consistent with the process specified 
at Sec.  648.90(a)(4), and AMs are developed for that fishery, the 
groundfish fishery AM shall only be implemented if the sub-ACL 
allocated to the groundfish fishery is exceeded (i.e., the sector and 
common pool catch for a particular stock, including the common pool's 
share of any overage of the overall ACL caused by excessive catch by 
other sub-components of the fishery pursuant to Sec.  648.90(a)(5) 
exceeds the common pool sub-ACL) and the overall ACL is also exceeded.

               SNE/MA Winter Flounder Trawl Gear AM Area 1
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  41[deg]10[min]        71[deg]40[min] (\1\)
2...........................  41[deg]10[min]        71[deg]20[min]
3...........................  41[deg]00[min]        71[deg]20[min]
4...........................  41[deg]00[min]        71[deg]40[min]
------------------------------------------------------------------------
\1\ Point 1 connects to Point 2 along 41[deg]10[min]N or the southern
  coastline of Block Island, RI, whichever is further south.


               SNE/MA Winter Flounder Trawl Gear AM Area 2
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  41[deg]20[min]        70[deg]30[min]
2...........................  41[deg]20[min]        70[deg]20[min]
3...........................  41[deg]00[min]        70[deg]20[min]
4...........................  41[deg]00[min]        70[deg]30[min]
------------------------------------------------------------------------


               SNE/MA Winter Flounder Trawl Gear AM Area 3
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  41[deg]20'            69[deg]20'
2...........................  41[deg]20'            69[deg]10'
3...........................  41[deg]10'            69[deg]10'
4...........................  41[deg]10'            69[deg]20'
------------------------------------------------------------------------


               SNE/MA Winter Flounder Trawl Gear AM Area 4
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  41[deg]20'            69[deg]20'
2...........................  41[deg]20'            (\1\)
3...........................  (\1\)                 69[deg]00'
4...........................  41[deg]00'            69[deg]00'
5...........................  41[deg]00'            69[deg]10'
6...........................  41[deg]10'            69[deg]10'
7...........................  41[deg]10'            69[deg]20'
------------------------------------------------------------------------
\1\ The southwest-facing boundary of Closed Area I.

    (E) [Reserved].
    (ii) AMs if the overall ACL for a regulated species or ocean pout 
stock is exceeded. If the catch of any stock of regulated species or 
ocean pout by vessels fishing outside of the NE multispecies fishery; 
vessels fishing in state waters outside of the FMP; or vessels fishing 
in exempted fisheries, as defined in this part, exceeds the sub-
component of the ACL for that stock specified for such fisheries 
pursuant to paragraphs (a)(4)(iii)(A) through (G) of this section, and 
the overall ACL for that stock is exceeded, then the amount of the 
overage of the overall ACL for that stock due to catch from vessels 
fishing outside of the NE multispecies fishery shall be distributed 
among components of the NE multispecies fishery based upon each 
component's share of that stock's ACL available to the NE multispecies 
fishery pursuant to paragraph (a)(4)(iii)(H) of this section. Each 
component's share of the ACL overage for a particular stock would be 
then added to the catch of that stock by each component of the NE 
multispecies fishery to determine if the resulting sum of catch of that 
stock for each component of the fishery exceeds that individual 
component's share of that stock's ACL available to the NE multispecies 
fishery. If the total catch of that stock by any component of the NE 
multispecies fishery exceeds the amount of the ACL specified for that 
component of the NE multispecies fishery pursuant to paragraph 
(a)(4)(iii)(H) of this section, then the AMs specified in paragraphs 
(a)(5)(i)(A) through (C) of this section shall take effect, as 
applicable. If the catch of any stock of regulated species or ocean 
pout by vessels outside of the FMP exceeds the sub-component of the ACL 
for that stock specified pursuant to paragraphs (a)(4)(iii)(A) through 
(C) of this section, but the overall ACL for that stock is not 
exceeded, even after consideration of the catch of that stock by other 
sub-components of the fishery, then the AMs specified in this paragraph 
(a)(5)(ii) shall not take effect.
    (iii) AMs if the incidental catch cap for the Atlantic herring 
fishery is exceeded. At the end of the NE

[[Page 26169]]

multispecies fishing year, NMFS shall evaluate Atlantic herring fishery 
catch using VTR, VMS, IVR, observer data, and any other available 
information to determine whether a haddock incidental catch cap has 
been exceeded based upon the cumulative catch of vessels issued an 
Atlantic herring permit and fishing with midwater trawl gear in 
Management Areas 1A, 1B, and/or 3. If the catch of haddock by all 
vessels issued an Atlantic herring permit and fishing with midwater 
trawl gear in Management Areas 1A, 1B, and/or 3, exceeds the amount of 
the incidental catch cap specified in Sec.  648.85(d) of this section, 
then the appropriate incidental catch cap shall be reduced by the 
overage on a pound-for-pound basis during the following fishing year. 
Any overage reductions shall be announced by the Regional Administrator 
in the Federal Register, accordance with the Administrative Procedure 
Act, prior to the start of the next NE multispecies fishing year after 
which the overage occurred, if possible, or as soon as possible 
thereafter if the overage is not determined until after the end of the 
NE multispecies fishing year in which the overage occurred.
* * * * *

0
15. In Sec.  648.201, revise paragraph (a)(2) to read as follows:


Sec.  648.201  AMs and harvest controls.

* * * * *
    (a) * * *
    (2) When the Regional Administrator has determined that the GOM 
and/or GB incidental catch cap for haddock in Sec.  648.85(d) has been 
caught, no vessel issued a Federal Atlantic herring permit and fishing 
with midwater trawl gear in the applicable Accountability Measure (AM) 
Area, i.e., the Herring GOM Haddock AM Area or Herring GB Haddock AM 
Area, as defined in Sec.  648.86(a)(3)(ii)(A)(2) and (3) of this part, 
may not fish for, possess, or land herring in excess of 2,000 lb (907.2 
kg) per trip in or from the applicable AM Area, unless all herring 
possessed and landed by a vessel were caught outside the applicable AM 
Area and the vessel complies with the gear stowage provisions specified 
in Sec.  648.23(b) while transiting the applicable AM Area. Upon this 
determination, the haddock possession limit is reduced to 0 lb (0 kg) 
in the applicable AM area, for a vessel issued a Federal Atlantic 
herring permit and fishing with midwater trawl gear or for a vessel 
issued an All Areas Limited Access Herring Permit and/or an Areas 2 and 
3 Limited Access Herring Permit fishing on a declared herring trip, 
regardless of area fished or gear used, in the applicable AM area, 
unless the vessel also possesses a Northeast multispecies permit and is 
operating on a declared (consistent with Sec.  648.10(g)) Northeast 
multispecies trip.
* * * * *
[FR Doc. 2013-10402 Filed 4-30-13; 4:15 pm]
BILLING CODE 3510-22-P