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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-24511

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** September 29, 2011
- **Citation:** 76 FR 60606

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 100902424-1331-03]
RIN 0648-BA23
Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Annual Catch Limits and Accountability Measures

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

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

DATES:

Effective October 31, 2011.

ADDRESSES:

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

FOR FURTHER INFORMATION CONTACT:

Michael Ruccio, Fishery Policy Analyst, (978) 281-9104.

SUPPLEMENTARY INFORMATION:

Background

NMFS published a Notice of Availability (NOA) soliciting public input on the Omnibus Amendment in the
Federal Register
on May 23, 2011 (76 FR 29717). NMFS published a proposed rule in the
Federal Register
on June 17, 2011 (76 FR 35578), proposing regulations that would implement the Omnibus Amendment measures. The NOA specifically solicited input on whether NMFS, acting on the behalf of the Secretary of Commerce (Secretary), should approve, partially approve, or disapprove the Omnibus Amendment. Comments were accepted through July 22, 2011, on the NOA. The proposed rule outlined the Acceptable Biological Catch (ABC) control rules for use by the Scientific and Statistical Committee (SSC) in recommending ABC to the Council, a risk policy for use in conjunction with the ABC control rules to inform the SSC of the Council's preferred tolerance for the risk of overfishing a stock, ACLs for all Council-managed stocks except
Loligo
and
Illex
squids, which are exempt from the ACL/AM requirements because they are not overfished and have annual life cycles, comprehensive AMs for all established ACLs, descriptions of the process to review ACL and AM performance, and information on the processes for the future modification of the measures established through the Omnibus Amendment. Comments were accepted on the proposed rule measures through July 18, 2011. Additional background information and detail on why and how the Omnibus Amendment was developed and the overarching requirements the amendment satisfies were provided in the Omnibus Amendment proposed rule (76 FR 35578, June 17, 2011) and are not repeated here.

The Council reviewed the proposed Omnibus Amendment regulations as drafted by NMFS and deemed them to be necessary and appropriate as required by section 303(c) of the MSA. The Omnibus Amendment established the measures described later in this final rule through the following specific FMP amendments: Amendment 13 to the Atlantic Mackerel, Squids, and Butterfish FMP; Amendment 3 to the Atlantic Bluefish FMP; Amendment 2 to the Spiny Dogfish FMP; Amendment 15 to the Summer Flounder, Scup, and Black Sea Bass FMP; Amendment 16 to the Surfclam and Ocean Quahog FMP; and Amendment 3 to the Tilefish FMP.

Approved Omnibus Amendment Measures

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

ABC Control Rules

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

Council Risk Policy

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

risk of overfishing. The risk policy uses a combination of the ratio of biomass (B)/B
Maximum Sustainable Yield (MSY)
and the life history traits of any given species to set the tolerance for overfishing anywhere from zero (for stocks with a B/B
MSY
of 0.10 or lower, irrespective of life history traits) to a maximum of a 40-percent probability of overfishing for stocks with a typical life history as determined by the SSC and a B/B
MSY
of 1.0 or higher.

The probability of overfishing, as determined by the risk policy, will be applied by the SSC to stocks with either an OFL distribution from the stock assessment or generated by the SSC. If no OFL is available from a stock assessment and no OFL proxy is provided by the SSC when an ABC recommendation is made, the risk policy does not permit increases in ABC until an acceptable OFL has been identified.

For stocks under a rebuilding plan, the risk policy requires that the probability of exceeding the rebuilding target F (F
REBUILD
) would be 50 percent, unless modified to a lesser value (
i.e.,
a higher probability that F
REBUILD
would not be exceeded) through a stock rebuilding plan amendment. In instances where the rebuilding plan risk policy and general risk policy result in different approaches and potential ABCs, the SSC will forward the lower of the two resulting ABCs to the Council as a more risk averse approach.

Annual Catch Limits and Accountability Measures

This final rule implements the ACL and AM measures, as proposed, along with the minor changes outlined in the Changes from the Proposed Rule Section later in this preamble. Under the implemented approach established by the Omnibus Amendment, the Council will rely on the SSC to set ABC at or below OFL, with the reduction from OFL dependent on the amount of scientific uncertainty identified by the SSC. Where applicable, Canadian catch estimates will be removed from the overall ABC to establish a domestic ABC for U.S. catch. The Council will recommend to NMFS ACLs set equal to ABC for all species, with some further subdivision to sector-level ACLs where stocks have pre-existing allocations for both commercial and recreational fisheries. The sum of these sector ACLs will equal the ABC. Annual Catch Targets (ACTs) will be used to address management uncertainty. Council staff or species-specific monitoring committees will review available information and recommend to the Council the amount of reduction from ACL to ACT necessary to address management uncertainty. Where ACLs are divided into sector-specific ACLs, comparable sector ACTs that address the associated sector-specific management uncertainties will be used. Finally, estimated discards (
i.e.,
dead discarded catch) will be removed from ACTs to yield either commercial or recreational landing targets, as applicable. In summary, the structure for all Council FMPs is: OFL ≥ ABC = ACL(s) ≥ ACT(s), with scientific uncertainty addressed at the ABC level by the SSC as an offset from OFL, and management uncertainty addressed by the Council following recommendations from Council staff or species-specific monitoring committees at the ACT level as an offset from the ABC/ACL level.

Existing proactive accountability measures, including commercial trip and possession limits, commercial fishery closure authority, and commercial fishery overage repayments are being retained and codified as AMs through the Omnibus Amendment. In addition, new AMs are established to close recreational fisheries when data in hand indicate ACLs have been met or exceeded, as well as establishing lb-for-lb repayment of any catch above established ACLs for all fisheries. Recreational ACLs will be evaluated on a 3-yr rolling average comparison of ACLs to 3-yr average catch. The Omnibus Amendment also provides for adjustments to future ACTs when the causes of ACL overages are not related to landings (
i.e.,
dead discards, a combination of landings and discards, or other sources of stock mortality that may be tracked and subsequently quantified).

Review and Future Modification of Omnibus Amendment Measures

The Omnibus Amendment establishes that ACL and AM performance reviews will occur at least every 5 yr if ACLs are not routinely exceeded. Consistent with the NS1 guidelines, if the ACL is exceeded for any species with a frequency greater than 25 percent of the time (
i.e.,
more than 1 in 4 yr, or in any 2 consecutive years), the Omnibus Amendment requires the Council to initiate a review of the ACL, ACT, and AM approaches used.

The Omnibus Amendment implements the comprehensive listing of items that may be modified through the Council's specification or framework adjustment processes, as proposed.

Comments and Responses

NMFS received 11 combined comments on the May 23, 2011 (76 FR 29717), NOA requesting input on the Secretary's amendment approval decision and the Omnibus Amendment proposed rule (76 FR 35578; June 17, 2011). Comments were submitted by private citizens, a recreational party/charter vessel operator, a commercial fish processing plant operator, a commercial fisheries advocacy group, and the following nongovernmental organizations (NGOs): Environmental Defense Fund; Pew Environmental Group; Marine Fish Conservation Network; National Coalition for Marine Conservation; and Oceana. Some of the comments did not provide input on the amendment approval decision, nor did they address the proposed measures; thus no response to these comments is provided here. Where possible, responses to similar comments on the amendment approval decision and proposed measures have been consolidated.

Comment 1:
One NGO commented that the Council and NMFS appeared to exempt
Loligo
and
Illex
squids from all the required provisions of the MSA and NS1 guidelines. Specifically, the commenter stated that ABC must be established for both squid species using the ABC control rules and Council risk policy.

Response:
The Omnibus Amendment only exempts
Loligo
and
Illex
squid from the ACL and AM components of the amendment; all other NS1 guideline requirements apply to these two species. Both the Omnibus Amendment document and the proposed rule state that
Loligo
and
Illex
squid are exempt from the ACL and AM requirements. Neither document provides any additional exemptions from the NS1 guidelines for these species. The Omnibus Amendment approach for both squids is wholly consistent with the annual life cycle exemption found in the note to section 303 of the MSA and the NS1 guidelines at § 600.300(h)(2) and, as such, they are exempt from ACL and AM requirements, but must have status determination criteria, MSY, OY, ABC, and ABC control rules as part of their FMP. As both species already have these required elements in their FMP, NMFS is implementing the Omnibus Amendment as proposed.

Comment 2:
One NGO raised concerns about the process to modify the ABC control rules and risk policy established by the Omnibus Amendment. The commenter asserted that these two components of the Omnibus Amendment could be modified through the Council's specification process. Specific concerns were raised that the specification process could inappropriately be used to modify the ABC control rules and/or

risk policy, which could minimize public participation and analysis of alternatives. The commenters stated that the Omnibus Amendment must be disapproved until such time that the potential adjustment processes are clarified by the Council.

Response:
NMFS disagrees that the Omnibus Amendment should be disapproved, as these concerns are unfounded. The Omnibus Amendment and its implementing regulations do not authorize the Council to make such changes through the specification process. Minor adjustments, within a narrowly defined scope, are permitted as outlined in each species-specific framework adjustment process regulation. For all other changes, the Council would be required to utilize an FMP amendment process.

Comment 3:
One NGO stated that the preferred Omnibus Amendment risk policy (Alternative G, a two-tiered approach based on species life history) provides too great a risk of overfishing and should be disapproved in favor of one of the other proposed risk alternatives (Alternative D, a four-tiered approach considering stock status, replenishment threshold, and productivity, as well as an approach for the maximum permissible risk of overfishing allowed at a B/B
MSY
inflection point higher than 1.0). In addition, the commenter expressed concern about the vague life history criteria in the two-tiered Alternative G approach that will be used to distinguish typical and atypical species. The commenter also asserted that the risk policy is largely superfluous, as many of the Council stocks will not have the necessary OFL probability distributions needed to apply the risk policy in a meaningful way. These comments on the risk policy were suggested as grounds upon which NMFS should disapprove the Omnibus Amendment (
i.e.,
allegations that the risk policy will not prevent overfishing.)

Response:
NMFS disagrees that the amendment should be disapproved and also disagrees that one risk policy alternative must be substituted over another. NMFS has approved and is implementing the Council-preferred risk alternative (Alternative G). NMFS considers that the risk policy, in conjunction with the comprehensive system for deriving ABC and establishing ACL(s) and ACT(s), will provide a sufficiently high probability that overfishing will not occur.

The risk policy under Alternative G establishes a maximum permissible risk of overfishing stocks. For a stock that has a B/B
MSY
ratio over 1.0 and has a typical life history, a maximum 40-percent probability of overfishing or, alternatively expressed as a 60-percent probability that overfishing will not occur, is permitted. This probability is 10 percent lower than the precedent established for rebuilding probability of success, wherein a 50-percent probability of not exceeding the F
REBUILD
target was established for summer flounder (see
NRDC
v.
Daley
). The maximum probability of overfishing for a SSC-determined atypical life history species is 35 percent, which is a 65-percent probability that overfishing will not occur. The NS1 guidelines indicate that the risk tolerance for overfishing a stock is an important component of the ABC control rule and derivation process; however, it is not a requirement that must be specified in an FMP. The NS1 guidelines make clear that a minimum threshold of a 50-percent probability of overfishing is required; thus, NMFS would only have grounds to disapprove the Council's risk policy approach if it permitted a higher probability that overfishing would occur.

All the risk policy alternatives were developed through a comprehensive, collaborative effort of the Council's SSC and the Council. The alternative implemented in the final rule provides a useful and appropriate system to inform the SSC of the Council's tolerance for the risk of overfishing. It is a more robust approach than selecting a fixed percentage, and is more restrictive than the minimum requirement, and sets a maximum probability thereby providing some flexibility to consider current information and circumstances when setting catch levels. NMFS acknowledges that the risk policy is only applicable for stocks assigned to ABC control rule levels 1-3 when an acceptable OFL probability is provided as an assessment output or can be generated by the SSC for level 3 stocks. NMFS also acknowledges that the expert judgment of the SSC will play a critical role in deriving ABC for stocks for which no OFL exists or for which OFL is not viewed as adequate. These stocks will either have the default control rule applied (75 percent of the F
MSY
rate for level 3 stocks) or will have thoroughly documented, more conservative approaches designed to ensure overfishing does not occur (level 4 stocks). Additionally, deference is given to the SSC to make determinations as to which Council-managed species have typical or atypical life histories. In all the aforementioned scenarios wherein the SSC may utilize judgment, the process will occur in open meetings and will include documentation and justification for the decisions reached. This is not inconsistent with the approach contemplated under NS1. The SSC recently applied the risk policy in developing ABC recommendations for the summer flounder, scup, and bluefish stocks. NMFS disagrees that the risk policy is a “paper exercise,” as the SSC has begun using both the ABC control rules and risk policy.

Comment 4:
Some commenters expressed concern that the ABC control rule for deriving ABC for stocks categorized as level 3 and 4, and the conditions for when the SSC might deviate from the ABC control rule framework, are too vague. Some of these comments recommended disapproving the amendment until such time that more information and criteria were added to how ABC would be derived for level 3 and 4 stocks and rules established for when the SSC could deviate from the ABC control rule framework.

Response:
NMFS disagrees. NS1 guidelines contemplate and authorize SSCs to deviate from ABC control rule calculations, but require the SSC to provide an explanation of why an alternative ABC is more appropriate (§ 600.310(f)(3)). Because the authority to deviate from ABCs calculated using the control rules is explicitly provided under the NS1 guidelines, there was no need to include the generic description of this possibility in the Omnibus Amendment and proposed rule; however, a brief description was included, designed to echo the language of § 600.310(f)(3), for better transparency of the process. In fact, given the language in the NS1 guidelines, the SSC may deviate from any ABC control rule level at any time, provided it can satisfactorily explain why the deviation was necessary and how the alternative methods used are the best approach.

In addition, the level 3 and 4 control rule approaches provide a meaningful framework for the SSC to evaluate the quality of assessment information and uncertainty in deriving an ABC recommendation for the Council. The SSC is expected to conduct its ABC recommendation process in an open, transparent public forum and to provide detailed documentation for the Council and public that provides the information considered, the approaches taken, and why the ABC recommended is consistent with the best available scientific information, to satisfy National Standard 2 requirements. For these reasons, the level 3 and 4 ABC control rules and the description process for recommending alternatively derived ABCs are sufficient to approve the Omnibus Amendment. NMFS

expects that the ABC control rule provides a sufficiently robust approach that utilizes the best available scientific information, and that the ABC recommendations from the SSC will provide a low risk of overfishing any given stock, irrespective of that stock's level assignment. There remain some stock assessments that are limited by the available data and/or understanding of species status. The four-level ABC control rule framework is designed to encourage scientific examination so that stocks may be advanced to levels indicative of more robust understanding. The proposed rule did not repeat that the ABC control rules are a spectrum from least uncertain to most uncertain for levels 1 to 4; this description is in the Omnibus Amendment.

Comment 5:
Several commenters with recreational fishing interests stated that no recreational ACL overages should be required to pay back lb-for-lb the overage amount through AMs until such time that the Marine Recreational Information Program (MRIP) is operational.

Response:
NMFS expects the MRIP system for estimating recreational catches to be available for the first year of ACL performance evaluation (
i.e.,
the 2012 FY).

Comment 6:
One commenter raised concern that the Omnibus Amendment's planned 5-year review of ABC control rules and ACL performance is too long. The commenter was concerned about lost yield if ACLs and ACTs are set “too conservatively,” stating that the only opportunity to potentially see less conservative approaches applied may not occur until the 5-yr review.

Response:
The Omnibus Amendment affords flexibility for the Council to re-examine the performance of any of the measures at any time it deems such a review appropriate. The selection of a planned 5-year detailed performance review was deliberately selected to ensure that ABC, ACL, and ACT setting approaches and subsequent performance will be formally reviewed by the Council on a fixed schedule; however, this does not preclude additional review on a more frequent basis. In addition, the Omnibus Amendment requires a thorough performance review should an ACL be exceeded more than once in a 4-year period, or if an ACL is exceeded in 2 consecutive years. These latter criteria for review may well occur if ACLs have been set “too conservatively,” as suggested by the commenter. Were no period expressed for the formal review, the Council would not be obligated to perform any performance review unless the more than 1-in-4 or 2-consecutive-year ACL overages occurred. The SSC has been reviewing the establishment process and the performance of ABC recommendations annually. It is expected that the level of review involved with the first few years of operation under the ACL management system will require more intensive examination of performance, until such time that the system becomes more stable.

Comment 7:
One commenter stated that the potential economic impacts of the Omnibus Amendment implemented frameworks should have been prepared by the Council and NMFS. Specifically, the commenter called on NMFS and the Council to prepare a more thorough analysis of potential changes in yield, by species, and the resultant potential economic impacts.

Response:
NMFS disagrees. The Omnibus Amendment outlines a framework for how catch levels will be established consistent with NS1 requirements and, as such, does not provide information on actual catch levels, by species, the application of risk tolerances, or scientific or management uncertainties. The Council's approach, supported by NMFS, has been that the application of the Omnibus Amendment's framework for setting ABC, ACLs, and ACTs will be fully evaluated as individual species specification processes occur in 2011 for the 2012 FY. These evaluations will provide economic impact analysis of the ABCs, ACLs, ACTs, and other Omnibus Amendment elements, specific to the measures being proposed.

Comment 8:
One commenter requested clarification on whether the decision to close fisheries will be made based on exceeding the ACL, ACT, or other levels within the Omnibus Amendment framework. The commenter also asked for clarification on why commercial and recreational sector landing-based closure evaluations are different.

Response:
Closures are tied to the established commercial fishing quotas and recreational harvest limits (for fisheries with recreational sectors) under the Omnibus Amendment. Landings will be monitored during the fishing seasons and proactive AMs utilized to close the respective sectors when landing limits are reached. The commercial closure approaches vary from species to species, but generally the level of commercial landings are monitored in-season on a weekly or daily basis, based on dealer-reported data, and the commercial fishery may be closed when landings projections indicate that the established level will be reached or exceeded. Some commercial fisheries also have possession or trip limit reductions that occur when specified amounts of landings are reached. For example, the scup Winter I season possession limit is reduced when 80 percent of the Winter I landing limit is reached. Many of these commercial fishery management systems previously existed and were adopted as proactive AMs in the Omnibus Amendment.

Recreational fisheries landings will also be monitored during the fishing season, but because recreational data are available much less frequently (
i.e.,
updates provided in 2-month waves, delivered some 6 weeks after the end of the wave period), the Omnibus Amendment establishes that recreational fishery closures will occur only when data in hand indicate a landing level has already been reached or exceeded. This is to help mitigate the uncertainty that occurs in trying to project recreational landings. The authority to close recreational fisheries based on landings evaluations is a new component adopted in the Omnibus Amendment.

There is not currently the ability to monitor dead discards in season for the purposes of inseason monitoring and potential closure. There will be a post-fishing year accounting to determine dead discards and, in combination with the final landings data, an evaluation of ACL and ACT performance. If in the future, the ability to monitor total catch becomes available on a real-time basis, the Council may consider modifying an FMP to specify when closures will be enacted at either the ACT or ACL level.

Comment 9:
One commenter stated that Atlantic mackerel and spiny dogfish ABCs should not be reduced to account for Canadian catch.

Response:
These stocks are managed on a stock-wide basis, including the portion of the stock distributed in Canadian waters. The specification setting process for the two species currently accounts for Canadian catch on the stock prior to establishing catch levels. The Omnibus Amendment established an approach wherein this stock-wide management is preserved and, because the MSA is inapplicable within Canadian jurisdiction, removes the estimated Canadian catch before establishing a domestic ABC, ACL, and ACT for the U.S. portion of the fishery. NMFS agrees that this is a logical approach and accomplishes management of the stocks throughout their range, which is a biologically sound approach.

Comment 10:
Some commenters alleged that NMFS failed to ensure that

the Omnibus Amendment's EA provided alternatives to the proposed action, and that an Environmental Impact Statement (EIS) should have been required for the Omnibus Amendment. The commenters cited several instances wherein they alleged that additional reasonable and/or feasible alternatives should have been developed and instances where they believe the analyses were incomplete or otherwise insufficient. Alleged instances of insufficient alternatives include an alleged failure to consider additional approaches for dealing with Canadian catch in the Atlantic mackerel and spiny dogfish fisheries, lack of additional alternatives beyond setting ACL = ABC, with emphasis that ACL < ABC should have been developed as an alternative for consideration and analysis, an alleged failure to provide sufficient measures to ensure accountability, including insufficient alternatives for proactive AMs besides ACT. Most of the comments on inadequate analyses centered on alleged insufficient description of the fisheries, species captured, and consideration of stocks in the fishery.

Response:
Consistent with NEPA, Council for Environmental Quality (CEQ) regulations, and NOAA administrative policy, the Council and NMFS collaborated to prepare an EA to evaluate the significance of the environmental impacts expected as a result of the actions proposed in the Omnibus Amendment. The results of this assessment are provided in section 7.0 of the EA signed by NMFS on July, 28, 2011. The FONSI concludes that because the Omnibus Amendment will merely be formalizing the process of addressing scientific uncertainty and management uncertainty when setting catch limits with a comprehensive system of accountability for catch for each of the managed resources that the impacts of the considered alternatives are administrative in nature. Thus because the measures contained in the Omnibus Amendment largely build on measures already contained in the FMP, which have been in place for many years, NMFS does not expect that the new actions taken in the Omnibus Amendment will have any significant impacts. The commenters provided no evidence, nor even any claims, that the conclusions in the FONSI are not supported by the evidence provided in the EA for this finding.

According to the CEQ regulations, and guidance on the subject, an EIS need only be prepared when an EA or other related analysis identifies significant effects on the environment or if the facts available to the action agency cannot support the conclusions required in order to make a FONSI. The EA associated with the Omnibus Amendment evaluated the expected direct, indirect, and cumulative impacts likely to result from implementation of the proposed action. The EA, in both form and scope, followed all agency guidelines for an EA associated with an FMP amendment. Had a FONSI determination not been supportable, based on the analyses, then an EIS would have been prepared, consistent with the process outlined in CEQ regulations. Future FMP actions that make use of the Omnibus Amendment processes to establish fishing quotas will evaluate the impacts of those actions as part of the specification setting process.

The Omnibus Amendment considered a reasonable range of alternatives for the decisions made. The EA clearly lays out the alternatives considered for each decision point and explains the reasoning behind the development of those alternatives, and for the ultimate decision between those alternatives. Additionally, Appendix A to the EA provides a discussion of the alternatives that were initially developed, but not given further consideration because they were determined to be either infeasible or insufficient.

The response to comment 9 provides additional information on why NMFS considers the Omnibus Amendment approach for addressing Canadian catch of Atlantic mackerel and spiny dogfish to be acceptable. The response to comment 11 outlines NMFS' response that additional treatment of species captured in target fisheries, and designation of non-target stocks and ecosystem components was not required.

NMFS has determined that the Council's analysis in setting ABCs, ACLs, and AMs was consistent with the NS1 guidelines and met the requirements of NEPA. The NS1 guidelines instruct that in order to prevent overfishing and achieve, on a continuing basis, OY all sources of uncertainty—both scientific and management uncertainty—must be addressed. Scientific uncertainty should be addressed in reducing the ABC from the ACL and management uncertainty can either be addressed in reducing the ACL from the ABC, or through the use of AMs, including ACTs. The purpose of utilizing an ACT is so that, given uncertainty in the amount of catch that will result from the conservation and management measures in the fishery, the ACL will not be exceeded.

The Council acted consistently with these guidelines in deciding to set ACL=ABC for all managed species and to address management uncertainty by setting ACTs. Commenters argue that the decision to set ACL=ABC precludes the Council for considering OY factors when setting the ACL and for that reason that the Council was required to consider alternatives that set the ACL at a level less than the ABC. The response to comment 12 below further explains the Council's approach for considering OY factors. Because the Council, consistent with the NS1 guidelines, chose to address those OY factors that are not considered in setting ABC when setting the ACT, there was no need to consider setting the ACL at a level lower than the ABC; such an alternative would have been superfluous.

Moreover, the Council fully complied with NEPA in developing a reasonable range of alternatives for the processes of setting ABCs, ACLs, and AMs (including ACTs). Where it was feasible, the Council developed multiple proactive and reactive accountability measures designed to prevent the ACLs from being exceeded. Notably while one commenter argues that more proactive accountability measures were required to be considered, the commenter does not point to any specific measures that were overlooked by the Council. The Council considered all reasonable and feasible alternatives, consistent with NEPA.

Comment 11:
Many of the NGOs alleged that the Omnibus Amendment fails to adequately analyze non-target species captured by fisheries for Mid-Atlantic FMP species and does not adequately consider all fisheries requiring conservation and management. These commenters indicated that the Omnibus Amendment should be disapproved and additional analyses conducted to indicate all species captured in Mid-Atlantic fisheries, reclassification of stocks as target, non-target, stocks in the fishery, and ecosystem components, as needed. One commenter indicated that this information is contained in existing Standardized Bycatch Reporting Methodology (SBRM) reports and should have been used by the Council in the Omnibus Amendment development. Further comments on this topic stated that the Omnibus Amendment should be disapproved because it fails to establish appropriate sub-ACLs for FMP-managed species captured incidentally in Council-managed target fisheries. One commenter stated, as an example, that swordfish captured in the squid trawl

fishery should be managed through a sub-ACL.

Response:
NMFS disagrees with these interpretations of the NS1 guidelines and disagrees that the Omnibus Amendment's approach to stocks in the fishery, incidentally captured species, and sub-ACLs is deficient and must be disapproved. Section 302(h) of the MSA authorizes each Council to prepare and submit a fishery management plan and amendments for “each fishery under its authority that requires conservation and management.” The NS1 guidelines provide that, by default, species managed under FMPs are considered to be stocks in the fishery. 50 CFR 600.310(d). The NS1 guidelines do not require Councils to change which species are or are not included in FMPs, nor do the NS1 guidelines require FMPs to incorporate ecosystem component species classifications. Councils may, but are not required to, use an “ecosystem component species” classification. 50 CFR 600.310(c)-(d). Thus, Councils have had, and continue to have under the MSA and NS1 Guidelines, considerable discretion to define the managed “fishery.”

Consistent with the MSA and the NS1 Guidelines, the Council determined that the stocks managed under its FMPs should all continue to be considered stocks in the fishery, exercised its discretion not to add other species in the fishery, and decided against pursuing potential ecosystem component species classification. While the NS1 guidelines explain that a Council should determine which target and non-target species to include in a fishery, the guidelines do not require FMPs to list species in target and non-target species “classifications.”
See
50 CFR 600.310(d). The main point of classifying stocks is distinguishing between “stocks in the fishery” versus the ecosystem component species category.
See
50 CFR 600.310(c)-(d). The MSA also does not require classification into target and non-target classifications. Section 303(a)(2) of the MSA merely requires that an FMP contain a description of the species of fish involved in the fishery; this is not a new requirement, nor is that requirement modified by the NS1 guidelines. The Mid-Atlantic FMPs have, since their inception, approval, and implementation, contained these required descriptions. Amendments to the FMPs, including the Omnibus Amendment, update these listings. The Omnibus Amendment's affected environment incorporates, by reference, detailed analyses of species involved in each fishery. NMFS supports the Council's approach in the Omnibus Amendment. The level of analyses requested by these collective comments would be wholly appropriate if the Council had elected to add new stocks to the fishery or include them as ecosystem component species. As the Council did not, the level of fishery information provided is sufficient and not grounds for disapproving the amendment.

The designation of sub-ACLs is not required by the MSA or NS1 Guidelines. Although sub-ACLs are utilized in some fisheries in other regions, the Council decided that sub-ACLs were neither reasonable or practical here, given the current constraints on fishery monitoring for Mid-Atlantic stocks. All managed species catch, regardless of whether the FMP is a Mid-Atlantic, South Atlantic, New England, or Secretarial FMP, is fully accounted for under the respective ACLs, irrespective of whether the catch is directed landings, dead discards in the directed fishery, or dead discards incurred while targeting other species. With regard to swordfish, the Secretary of Commerce, and not the Councils, directly manages the fishery under an Atlantic Highly Migratory Species FMP. 16 U.S.C. 1854(g). That Secretarial FMP accounts for the total catch of swordfish, including that which occurs in the squid fishery both as authorized retention for sale and as dead discards (if any). The NS1 guidelines do not require the Secretary and the Council to establish a swordfish sub-ACL in the Atlantic Mackerel, Squids, and Butterfish FMP.

Comment 12:
Several NGOs commented that NMFS should disapprove or partially disapprove the Omnibus Amendment until approaches to OY are revised by the Council consistent with the NS1 Guidelines. Specifically, these commenters asserted that the Omnibus Amendment must include OY evaluations for all Council-managed species, with specific determination of where OY lies within the overall ABC/ACL/ACT framework for each species. These commenters stated that more specificity must be included in the process descriptions for how ACL or ACTs may be adjusted for OY considerations (
i.e.,
relevant economic, social, or ecological factors), and provide that ACL should be reduced from ABC for OY considerations. In addition, one commenter said it would not be appropriate for OY considerations to be applied at the ACT level, as it is a target, not a limit. Another commenter indicated that specification of OY is missing from several Mid-Atlantic FMP implementing regulations.

Response:
The Omnibus Amendment's approach to OY is consistent with the MSA and the NS1 guidelines. National Standard 1 of the MSA requires that a fishery management plan or amendment prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. 16 U.S.C. 1851(a)(1). The MSA defines “optimum” with respect to yield from a fishery as being prescribed on the basis of maximum sustainable yield from the fishery, as reduced by relevant economic, social or ecological factor. 16 U.S.C. 1802(33). The Omnibus Amendment amends existing FMPs to address new annual catch limit and other requirements, but retains the FMPs' existing, previously-approved processes for specifying and assessing OY. The Council's FMPs all contain a process for assessing, specifying, identifying, and adjusting OY, as needed, based on relevant economic, social, and ecological factors for each species. The reauthorized MSA did not change National Standard 1 or the definition of OY, and the basic approach to OY is unchanged in the NS1 guidelines. Thus, there is no need to revise the OY processes in the Omnibus Amendment.

The NS1 Guidelines provide that OY can be described at a fishery, stock complex, or stock level and the OY specification process must be included in FMPs or amendments. 50 CFR 600.310(c), (e)(3). While the Councils have codified OY identification approaches for some individual stocks, for other stocks, the Councils address OY at the fishery level, consistent with what is required under the MSA and allowed under the NS1 guidelines. Providing a clear description of OY considerations is an important part of the specification process, and the existing FMPs provide such descriptions.

Because the reauthorized MSA added ACLs and ABC, the NS1 guidelines were revised to clarify the relationships between MSY, OY, ABC, and ACL(s), and these relationships were also discussed in the Omnibus Amendment (p. 27-28). The guidelines state that achieving OY on a continuing basis means producing a long-term series of catches such that the average catch is equal to OY and other conservation objectives of the MSA are met. 50 CFR 600.310(e)(3)(i)(B). The guidelines further state that an FMP must contain measures, including ACLs and AMs, to achieve OY on a continuing basis. However, the MSA and guidelines do not require that OY considerations be addressed when developing ACLs. A

Council may set an ACL lower than ABC to take into account factors related to preventing overfishing or achieving OY, or it may set the ACL equal to ABC and take these additional factors into account when establishing ACTs. See final NS1 guidelines, 74 FR 3178, 3189 (explaining OY, ABC, ACT, ACL relationships in response 33).

Here, the Omnibus Amendment takes the latter approach. The Omnibus Amendment rightly describes OY as the long-term average desired yield from a fishery; OY is not, and should not be confused with, an annual catch limit. Yield to a fishery and total catch are not interchangeable; it is expected that the OY level will vary over time, as scientific and management uncertainties, as well as dead discards are reduced.

NMFS disagrees that the lack of an OY process description or specific criteria for the monitoring committees' consideration to specify OY is grounds for disapproving the amendment. The Omnibus Amendment is designed to provide flexibility to the Council and their committees to adapt their practices over time and in response to changing fishery conditions while meeting its obligations under the MSA, NS1 guidelines, and their FMPs. NMFS considers that the Omnibus Amendment processes lend themselves to a transparent, participatory process that will allow the public and interested parties a mechanism to understand the concerns and issues raised by these commenters with respect to OY.

Comment 13:
One NGO stated that the Omnibus Amendment lacks required ACT control rules and that the process for how management uncertainty will be addressed is deficient, as it lacks a clearly articulated policy. For these reasons, the commenter states the amendment must be disapproved and these components revised.

Response:
NMFS disagrees. The Council directed the monitoring committees and staff to set ACTs on a sector-specific basis so that the ACTs would accurately reflect the interannual and intrannual variability in the sources of management uncertainty that vary by sector. ACTs are not required under the NS1 guidelines but are discretionary provisions that can be used as proactive AMs. Similarly, ACT control rules are not required to be specified in the FMP by either the MSA or the NS1 guidelines. The lack of a single over-arching formulaic control rule does not weaken the Omnibus Amendment's approaches for addressing management uncertainty through a descriptive process. The sector-specific committees will consider all sources of management uncertainty within their respective fisheries and provide the technical basis, including any necessary control rules, along with a recommendation for the necessary ACT. NMFS finds this approach to be consistent with the NS1 guidelines that merely state that an ACT control rule may be utilized as part of the ACT-setting process. Thus, NMFS finds the Council's ACT approach wholly consistent with the NS1 guidelines' intent, and sufficient to provide the Council, through its monitoring committees, a robust mechanism for categorizing and quantifying applicable management uncertainty.

Comment 14:
Several NGOs stated that the Omnibus Amendment is deficient because it does not establish sufficient bycatch and catch monitoring processes. Within these comments, one NGO stated that failure to propose more extensive catch monitoring programs violates NEPA. The commenters claim the Omnibus Amendment is fatally flawed, as a result, and must be disapproved.

Response:
NMFS disagrees that the Omnibus Amendment must consider new or additional at-sea or other catch monitoring programs. NMFS also disagrees that the Omnibus Amendment's approach for assessing total catch is insufficient and does not agree that the amendment needs to be disapproved based on the grounds raised by these comments. The Omnibus Amendment considering a reasonable range of alternatives to address the monitoring needs of the fisheries. Neither the MSA nor the NS1 guidelines require real-time catch monitoring or discard controls as contemplated in the comment letters. Currently, such programs are beyond the scope of existing resources. The Omnibus Amendment did not explore these options as alternatives, as the alternatives would have been neither reasonable nor feasible.

In lieu of monitoring total catch on a real-time basis, the Omnibus Amendment contemplates a two-part examination of the fisheries: Inseason monitoring of landings (through commercial dealer reports for commercial landings and MRIP for recreational landings) and post-fishing year accounting of dead discards. The monitoring committees will consider the estimated discards for a given specification period (annual or multi-year) and recommend any necessary reductions for uncertainty associated with discard performance to the Council to establish ACT(s). The estimated discards will then be removed from the Council-adjusted ACT to set the landing level, by sector, to be monitored inseason. Following the completion of the fishing year, the final landings will be added to the re-estimated dead discards to provide total catch. If this total catch exceeds the ACL, AMs will be imposed as soon as possible, consistent with the Omnibus Amendment approach for the species in question.

NMFS acknowledges that this accounting exercise to derive total catch contains some uncertainty, particularly if the discard estimates utilized to offset the ACT or to derive the landing limits before the fishery occurs are variable. However, this is largely why the Council elected to utilize ACTs, so that the likelihood of exceeding ACLs if changes in discard estimates occur could be mitigated. This process is consistent with NS1 guidance. While the Omnibus Amendment establishes a strong process to ensure the likelihood of exceeding ACLs is infrequent by requiring consideration of both scientific and management uncertainty, there are AMs that will be imposed if this does occur, a formal process for examining performance if ACLs are frequently exceeded, and no requirement that catch be set so that ACL is never exceeded. How robust discard estimates are also influences scientific uncertainty as imprecise fishery-related mortality can alter the perception of fishing mortality and stock size.

NMFS considers that the process for catch accounting will be iterative as management under ACLs occurs over the next few years. The process may well require adjustments, and the descriptive nature of the Omnibus Amendment processes is such that the Council and NMFS have some flexibility to make modifications that improve the process and management such that advancements are realized and overfishing is prevented. In addition, should greater monitoring resources or systems become available, the Omnibus Amendment does not require modification to incorporate the information generated by such systems. The data could be utilized as soon as they become operational.

Comment 15:
One commenter alleged that the Omnibus Amendment fails to satisfy the MSA deadline of establishing ACLs and AMs by the 2011 FY, particularly because the Omnibus Amendment establishes a process for setting catch, but does not actually provide specific limits for the 2011 FY.

Response:
NMFS asserts that the implementation of the final Omnibus Amendment before the end of the 2011 FY satisfies the MSA requirement.

Comment 16:
One commenter stated that the Omnibus Amendment must be disapproved because ACT will not leave a margin for management uncertainty and that ACTs are inadequate because they do not have AMs.

Response:
NMFS disagrees. The use of ACTs in the Omnibus Amendment is wholly consistent with NS1 guidelines. The NS1 guidelines do not require that ACL be set lower than ABC, nor that ACT be used. ACTs are not required in the MSA, but only ACLs and appropriate AMs. The Secretary may assume that, if OFL = ABC = ACL = ACT, overfishing will not be prevented, but the Council's process will likely include some reductions at either the OFL to ABC level for scientific uncertainty, at the ACL to ACT level for management uncertainty, or both. This provides a strong system to prevent overfishing, consistent with the NS1 guidelines.

Under the Omnibus Amendment measures, the Council is expected to reduce catch from the ACL to the ACT to account for management uncertainty. In years when an ACT is exceeded but the ACL is not, the management buffer may be adjusted in subsequent years, but no AMs in the form of lb-for-lb payback of the ACT overage are required. If the ACL is exceeded in any year, AMs will be invoked as described in the Omnibus Amendment for the FMP and species in question. There is no requirement that lb-for-lb overage repayment AMs be triggered if ACTs are exceeded. However, there are AMs operative within the ACT as there will be closures when commercial and recreational landing limits are reached. As such, ACTs will be used as proactive measures, to reduce the likelihood that ACLs will be exceeded. The ACT is, in fact, itself an AM (§ 600.310(f)(2)(v)).

Comment 17:
One NGO stated that the Omnibus Amendment must be disapproved because NMFS's proposed AM measures are not an accurate reflection of the Council's intent. The commenters alleged that recreational sector fishery lb-for-lb overage repayments must occur in the year following the overage.

Response:
The commenter may have misinterpreted the description of the overage repayment system. The operation of the overage repayment system is clarified here and is consistent with the Council's intent.

NMFS attempted to explain, in the proposed rule, that the data for both commercial and recreational landings and discards will not likely be available immediately following the FY conclusion. For example, when ACLs are set for the 2013 FY, the final commercial and recreational landings and discard information is not expected to be available until after the first quarter of 2014. Given that the specification process for 2014 will begin in mid-2013 and culminate in rulemaking for January 1 implementation the last quarter of 2013, it will not be possible to make adjustments for any ACL overage when the initial 2014 specifications are established.

The Omnibus Amendment retains the existing commercial overage repayments that were in place prior to the development of ACLs. NMFS routinely makes adjustments to specifications for known commercial overages and will continue to do so in the Omnibus Amendment process. Using the prior example, if known commercial overages are available by October 31, 2013, NMFS can adjust the 2014 commercial specifications accordingly through rulemaking. Then, in late 2014, the totality of the 2013 commercial FY data will be examined to ensure that any additional overages or adjustments resulting from incorporation of final commercial landings information, if needed, will be performed for the 2015 commercial specifications. The system is configured so double counting does not occur, but, as the example illustrates, it is possible that commercial overage repayment AMs may occur 1 full year removed from the FY in which they occurred. As stated before, this is not new. Under the Omnibus Amendment, there will also be an examination of commercial catch data (
i.e.,
landings + dead discards). This process may function similarly to the example or, using the example timeframe, may occur in 2014 for application to the 2015 FY for a 2013 catch overage of the ACL (
i.e.,
dead discard caused overage of the ACL).

Recreational fisheries have not been managed in a system analogous to the commercial example provided above. Landings data are not available in as timely a fashion as commercial data. Using the example years previously discussed, NMFS may only be able to evaluate 2013 recreational landings through June 2013 during the 2014 specification rulemaking process. While it is possible that a recreational overage may have occurred by that date, historic data indicate such an occurrence should be rare. As a result, NMFS may not be able to make informed examination of 2013 recreational overages until after the first quarter in 2014. NMFS may make adjustments to the recreational harvest limit when this information becomes available, through the recreational management measures rulemaking, typically conducted in the first and second quarters. However, if the final data are not available until later in 2014, if there is no ongoing regulatory mechanism to adjust the recreational harvest limit and recreational measures concurrently or for other as of yet unforeseen reasons, NMFS may have to wait to adjust the 2015 FY recreational sector ACL during 2014 for an overage accrued in the 2013 recreational fishery.

The Omnibus Amendment provides the flexibility in describing how AMs will function so that NMFS can ensure that any necessary adjustments will occur consistent with the data necessary to evaluate ACL performance. It is expected that these data systems and delivery timing may improve in the future. Should this be the case, the Omnibus Amendment provides flexibility for NMFS to modify the AM repayment process, as needed, without needing to amend the ACL process. NMFS considers that this system will function best if ACL overages are avoided by well-established sector ACLs, mitigating the need to trigger AMs all together. See response to comment 18 for additional information.

Comment 18:
One NGO commented that the description of the AM process indicates that adjustments, through overage repayments, will be made through the Council's specification process. The commenter states that the Omnibus Amendment must be disapproved for this reason, asserting that AMs must be automatic and non-discretionary.

Response:
This is an apparent misunderstanding by the commenter. As explained in the response to Comment 17, NMFS, not the Council, will make automatic lb-for-lb overage repayments for ACL overages through the specification rulemaking. The AMs are automatic and do not involve discretion on either NMFS's or the Council's part. For this reason, the AMs implemented by the Omnibus Amendment are consistent with the NS1 guidelines.

Comment 19:
One commenter stated that the Omnibus Amendment must be disapproved because it does not consider catch outside its jurisdiction. The example cited was summer flounder, a Council-managed species, which is captured and landed in the Atlantic sea scallop fishery, managed by the New England Fishery Management Council. The commenter alleged that the Omnibus Amendment fails to consider catch from all sources and, thus, must be disapproved. The commenter also indicated that the Omnibus Amendment failed to adequately examine alternatives for sub-ACLs in examples such as the one

provided. In so doing, the commenter alleged that the Omnibus Amendment violates NEPA.

Response:
NMFS disagrees with the contention that the Omnibus Amendment's approach for addressing total catch is fatally flawed. All federally managed fish landed for commercial sale within the region, irrespective of whether the fish are captured in a Council-managed fishery or in a fishery managed by another Council or the Secretary, will be counted toward the total annual landings for that species. This method of accounting is not new, and will continue under the Omnibus Amendment. Similarly, all dead discards of a species such as summer flounder will be attributed to the total catch estimation of summer flounder. Thus, the Omnibus Amendment's system of catch accounting does, in fact, consider catch from all directed fishery and other sources. The NS1 guidelines do not require the establishment of sub-ACLs for species captured incidentally in other directed fisheries. See response to comment 11 for additional information.

Comment 20:
One commenter alleged that the decisions made to implement the Omnibus Amendment are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law and, as such, are a violation of the Administrative Procedure Act (APA) and must be set aside as unlawful. The commenter did not provide specific information in support of their general assertion that the APA had been violated by implementing the Omnibus Amendment.

Response:
NMFS disagrees. The Omnibus Amendments measures are in accordance with the requirements of NS1 guidelines and the MSA and, as such, are not arbitrary. The Omnibus Amendment measures were not impulsively derived or implemented; instead, a lengthy, transparent process was utilized by the Council, its committees, and the Fishery Management Action Team (FMAT) tasked with developing alternatives and measures. NMFS undertook all required elements of announcing the amendment and proposed rule availability for review and comment and is responding, in full, to all relevant comments provided on the amendment and proposed measures. Neither the Council nor NMFS has abused discretion in following the required development and implementation processes required for the amendment. NMFS is confident that the APA has not been violated in any manner and the Omnibus Amendment is being implemented consistent with applicable laws.

Changes and Clarifications From the Proposed Rule

Atlantic bluefish.
The process for deriving ACT and Total Allowable Landings (TAL) was clarified. The proposed rule correctly outlined the process required to derive ACT and TAL from the recommended ABC; however, additional language on where the commercial and recreational allocation shall be addressed was added for a more clear description. These changes are consistent with both the proposed rule and the Omnibus Amendment.

Atlantic mackerel.
As was noted in the Omnibus Amendment proposed rule, the Council took final action on Amendment 11 to the Atlantic Mackerel, Squids, and Butterfish FMP (Amendment 11) in October 2010 and NMFS published an Amendment 11 NOA and proposed rule on August 1, 2011 (76 FR 45742). While the proposed rule for Amendment 11 does contain a proposed recreational fishery allocation for mackerel, the final approval decision and final rule for Amendment 11 measures will occur after the final Omnibus Amendment measures in this rule are effective. Therefore, the final Omnibus Amendment measures reflect the various Atlantic mackerel measures designed to function without a formal recreational allocation. If the final Amendment 11 measures, when approved, contain the recreational allocation for Atlantic mackerel, the final rule to implement Amendment 11 measures will also modify Omnibus Amendment measures, as needed.

Butterfish.
In the interim between deeming the proposed Omnibus Amendment regulations and this final rule, the Council initiated the process to develop 2012 specifications for the Atlantic Mackerel, Squids, and Butterfish FMP. During this process, the Council discovered that the method for deriving the butterfish cap in the
Loligo
fishery with respect to the OFL/ABC/ACT framework was not entirely clear in either the Omnibus Amendment document or the proposed regulations. The Council held discussion during its June 2011 meeting to clarify the intent of the butterfish cap to be derived as a percentage of the ACT rather than the ABC. Following this discussion, the Council provided a comment on the proposed rule to clarify how the butterfish cap should be devised under the OFL/ABC/ACT framework. NMFS agrees with the Council's clarification and is implementing, though this final rule, revisions to the butterfish regulations that are consistent with the Council-revised information.

Summer flounder.
In the interim between the publication of the NOA and Omnibus Amendment proposed rule, the 2011 recreational management measures were finalized (76 FR 38387, June 30, 2011). The amendatory language with respect to summer flounder recreational management measures has been revised from the proposed rule to reflect the final 2011 recreational management measures.

Relationship of ABC to ACL.
NMFS has modified several erroneous regulations for spiny dogfish, summer flounder, scup, black sea bass, Atlantic bluefish, surfclam, ocean quahog, and tilefish that indicated ACL could be set less than or equal to ABC. Several public comments were received about the Omnibus Amendment's treatment of ABC in relation to ACL, specifically if ACL could be reduced from the ABC level. The Council's Omnibus Amendment EA document contains some conflicting language on this matter, with language under the discussion of OY (page 27-8) contemplating that adjustments based on OY considerations could occur at either the ACL or ACT level; however, examination of the species-specific information contained in the document clearly articulates that ACL will be set equal to ABC. The final regulations issued by this rule correctly indicate that ABC=ACL for all species. Additional discussion of OY occurs in the Comment and Responses section of this preamble.

Additional Editorial and Corrective Changes.
Minor changes in language not affecting the content or intent of the regulations have been made between the proposed and final rules. These changes are designed to improve readability, grammar, and punctuation; maintain consistency between FMPs; and generally improve the final implementing regulations.

Classification

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

This final rule has been determined to be not significant for purposes of Executive Order 12866.

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

List of Subjects in 50 CFR Part 648

Fisheries, Fishing, Reporting and recordkeeping requirements.

Dated: September 20, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

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

PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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

Authority:

16 U.S.C. 1801
et seq.

§ 648.13
[Amended]

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

§ 648.14
Prohibitions.

(u) * * *

(2) * * *

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

3. Section 648.20 is revised to read as follows:

§ 648.20
Mid-Atlantic Fishery Management Council ABC control rules.
The SSC shall review the following criteria, and any additional relevant information, to assign managed stocks to a specific control rule level when developing ABC recommendations. The SSC shall review the ABC control rule level assignment for stocks each time an ABC is recommended. The ABC may be recommended for up to 3 years for all stocks, with the exception of 5 years for spiny dogfish. The SSC may deviate from the control rule methods or level criteria and recommend an ABC that differs from the result of the ABC control rule calculation; however, any such deviation must include the following: A description of why the deviation is warranted, description of the methods used to derive the alternative ABC, and an explanation of how the deviation is consistent with National Standard 2.

(a)
Level 1 criteria.
(1) Assignment of a stock to Level 1 requires the SSC to determine the following:

(i) All important sources of scientific uncertainty are captured in the stock assessment model;

(ii) The probability distribution of the OFL is calculated within the stock assessment and provides an adequate description of the OFL uncertainty;

(iii) The stock assessment model structure and treatment of the data prior to use in the model includes relevant details of the biology of the stock, fisheries that exploit the stock, and data collection methods;

(iv) The stock assessment provides the following estimates: Fishing mortality rate (F) at MSY or an alternate maximum fishing mortality threshold (MFMT) to define OFL, biomass, biological reference points, stock status, OFL, and the respective uncertainties associated with each value; and

(v) No substantial retrospective patterns exist in the stock assessment estimates of fishing mortality, biomass, and recruitment.

(2)
Level 1 ABC determination.
Stocks assigned to Level 1 by the SSC will have the ABC derived by applying acceptable probability of overfishing from the MAFMC's risk policy found in § 648.21(a) through (d) to the probability distribution of the OFL.

(b)
Level 2 criteria.
(1) Assignment of a stock to Level 2 requires the SSC to determine the following:

(i) Key features of the stock biology, the fisheries that exploit it, and/or the data collection methods for stock information are missing from the stock assessment;

(ii) The stock assessment provides reference points (which may be proxies), stock status, and uncertainties associated with each; however, the uncertainty is not fully promulgated through the stock assessment model and/or some important sources of uncertainty may be lacking;

(iii) The stock assessment provides estimates of the precision of biomass, fishing mortality, and reference points; and

(iv) The accuracy of the minimum fishing mortality threshold and projected future biomass is estimated in the stock assessment using ad hoc methods.

(2)
Level 2 ABC determination.
Stocks assigned to Level 2 by the SSC will have the ABC derived by applying acceptable probability of overfishing from the MAFMC's risk policy found in § 648.21(a) through (d) to the probability distribution of the OFL.

(c)
Level 3 criteria.
(1) Assignment of a stock to Level 3 requires the SSC to determine that the stock assessment attributes are the same as those for a Level 2 assessment listed in § 648.20(d)(1) through (4), except that the stock assessment does not contain an estimated probability distribution of OFL or the stock assessment provided OFL probability distribution is judged by the SSC to not adequately reflect uncertainty in the OFL estimate.

(2)
Level 3 ABC determination.
Stocks assigned to Level 3 will have ABC derived by one of the following two methods:

(i) The SSC will derive the ABC by applying the acceptable probability of overfishing from the MAFMC's risk policy found in § 648.21(a) through (d) to an SSC-adjusted OFL probability distribution. The SSC will use default levels of uncertainty in the adjusted OFL probability distribution based on literature review and evaluation of control rule performance; or,

(ii) If the SSC cannot develop an OFL distribution, a default control rule of 75 percent of the F
MSY
value will be applied to derive ABC.

(d)
Level 4 criteria.
(1) Assignment of a stock to Level 4 requires the SSC to determine that none of the criteria for Levels 1-3 found in § 648.20(a) through (c) were met.

(2)
Level 4 ABC determination.
Stocks assigned to Level 4 will have ABC derived using control rules developed on a case-by-case basis by the SSC based on biomass and catch history and

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

4. Section 648.21 is revised to read as follows:

§ 648.21
Mid-Atlantic Fishery Management Council risk policy.
The risk policy shall be used by the SSC in conjunction with the ABC control rules in § 648.20(a) through (d) to ensure the MAFMC's preferred tolerance for the risk of overfishing is addressed in the ABC development and recommendation process.

(a)
Stocks under a rebuilding plan.
The probability of not exceeding the F necessary to rebuild the stock within the specified time frame (rebuilding F or F
REBUILD
) must be at least 50 percent, unless the default level is modified to a higher probability for not exceeding the rebuilding F through the formal stock rebuilding plan. A higher probability of not exceeding the rebuilding F would be expressed as a value greater than 50 percent (
e.g.,
75-percent probability of not exceeding rebuilding F, which corresponds to a 25-percent probability of exceeding rebuilding F).

(b)
Stocks not subject to a rebuilding plan.
(1) For stocks determined by the SSC to have an atypical life history, the maximum probability of overfishing as informed by the OFL distribution will be 35 percent for stocks with a ratio of biomass (B) to biomass at MSY (B
MSY
) of 1.0 or higher (
i.e.,
the stock is at B
MSY
or higher). The maximum probability of overfishing shall decrease linearly from the maximum value of 35 percent as the B/B
MSY
ratio becomes less than 1.0 (
i.e.,
the stock biomass less than B
MSY
) until the probability of overfishing becomes zero at a B/B
MSY
ratio of 0.10. An atypical life history is generally defined as one that has greater vulnerability to exploitation and whose characteristics have not been fully addressed through the stock assessment and biological reference point development process.

(2) For stocks determined by the SSC to have a typical life history, the maximum probability of overfishing as informed by the OFL distribution will be 40 percent for stocks with a ratio of B to B
MSY
of 1.0 or higher (
i.e.,
the stock is at B
MSY
or higher). The maximum probability of overfishing shall decrease linearly from the maximum value of 40 percent as the B/B
MSY
ratio becomes less 1.0 (stock biomass less than B
MSY
) until the probability of overfishing becomes zero at a B/B
MSY
ratio of 0.10. Stocks with typical life history are those not meeting the criteria in paragraph (b)(1) of this section.

(c) For instances in which the application of the risk policy approaches in either paragraph (b)(1) or (2) of this section using OFL distribution, as applicable given life history determination, results in a more restrictive ABC recommendation than the calculation of ABC derived from the use of F
REBUILD
at the MAFMC-specified overfishing risk level as outlined in paragraph (a) of this section, the SSC shall recommend to the MAFMC the lower of the ABC values.

(d) If an OFL cannot be determined from the stock assessment, or if a proxy is not provided by the SSC during the ABC recommendation process, ABC levels may not be increased until such time that an OFL has been identified.

5. Section 648.22 is revised to read as follows:

§ 648.22
Atlantic mackerel, squid, and butterfish specifications.

(a)
Initial recommended annual specifications.
The Atlantic Mackerel, Squid, and Butterfish Monitoring Committee (Monitoring Committee) shall meet annually to develop and recommend the following specifications for consideration by the Squid, Mackerel, and Butterfish Committee of the MAFMC:

(1) Initial OY (IOY), including Research Set-Aside (RSA), DAH, and DAP for
Illex
squid, which, subject to annual review, may be specified for a period of up to 3 years;

(2) ACL; ACT including RSA, DAH, DAP; bycatch level of the TALFF, if any; and butterfish mortality cap for the
Loligo
fishery for butterfish; which, subject to annual review, may be specified for a period of up to 3 years;

(3) ACL; commercial ACT, including RSA, DAH, DAP; JVP if any; TALFF, if any; and recreational ACT, including RSA for mackerel; which, subject to annual review, may be specified for a period of up to 3 years. The Monitoring Committee may also recommend that certain ratios of TALFF, if any, for mackerel to purchases of domestic harvested fish and/or domestic processed fish be established in relation to the initial annual amounts.

(4) IOY, including RSA, DAH, and DAP for
Loligo
squid, which, subject to annual review, may be specified for a period of up to 3 years; and

(5) Inseason adjustment, upward or downward, to the specifications for
Loligo
squid, as specified in paragraph (e) of this section.

(b)
Guidelines.
As the basis for its recommendations under paragraph (a) of this section, the Monitoring Committee shall review the best available data to recommend specifications consistent with the following:

(1)
Loligo and/or Illex squid.
(i) The ABC for any fishing year must be either the maximum OY, or a lower amount, if stock assessments indicate that the potential yield is less than the maximum OY. The OYs specified during a fishing year may not exceed the following amounts:

(A)
Loligo
—The catch associated with a fishing mortality rate of F
Threshold.

(B)
Illex
—Catch associated with a fishing mortality rate of F
MSY.

(ii) IOY is a modification of ABC based on social and economic factors. The IOY is composed of RSA and DAH. RSA will be based on requests for research quota as described in paragraph (g) of this section. DAH will be set after deduction for RSA, if applicable.

(2)
Mackerel
—(i)
ABC.
The MAFMC's SSC shall recommend an ABC to the MAFMC, as described in § 648.20. The mackerel ABC is reduced from the OFL based on an adjustment for scientific uncertainty; the ABC must be less than or equal to the OFL.

(ii)
ACL.
The ACL or Domestic ABC is calculated using the formula ACL = ABC − C, where C is the estimated catch of mackerel in Canadian waters for the upcoming fishing year.

(iii)
OY.
OY may not exceed the ACL, and must take into account the need to prevent overfishing while allowing the fishery to achieve OY on a continuing basis. OY is prescribed on the basis of MSY, as reduced by social, economic, and ecological factors.

(iv)
ACT.
The Monitoring Committee shall identify and review relevant sources of management uncertainty to recommend ACTs for the commercial and recreational fishing sectors as part of the specifications process.

(A)
Commercial sector ACT.
Commercial ACT is composed of RSA, DAH, dead discards, and TALFF. RSA will be based on requests for research quota as described in paragraph (g) of this section. DAH, DAP, and JVP will be set after deduction for RSA, if applicable, and must be projected by reviewing data from sources specified in paragraph (b) of this section and other relevant data, including past domestic landings, projected amounts of mackerel necessary for domestic processing and for joint ventures during the fishing year, projected recreational landings, and other data pertinent for such a projection. The JVP component of DAH is the portion of DAH that domestic processors either cannot or will not use. Economic considerations for the establishment of JVP and TALFF include:

(
1
) Total world export potential of mackerel producing countries.

(
2
) Total world import demand of mackerel consuming countries.

(
3
) U.S. export potential based on expected U.S. harvests, expected U.S. consumption, relative prices, exchange rates, and foreign trade barriers.

(
4
) Increased/decreased revenues to the U.S. from foreign fees.

(
5
) Increased/decreased revenues to U.S. harvesters (with/without joint ventures).

(
6
) Increased/decreased revenues to U.S. processors and exporters.

(
7
) Increases/decreases in U.S. harvesting productivity due to decreases/increases in foreign harvest.

(
8
) Increases/decreases in U.S. processing productivity.

(
9
) Potential impact of increased/decreased TALFF on foreign purchases of U.S. products and services and U.S.-caught fish, changes in trade barriers, technology transfer, and other considerations.

(B)
Recreational sector ACT.
Recreational ACT is composed of RSA, dead discards, and the Recreational Harvest Limit (RHL).

(v)
Performance review.
The Squid, Mackerel, and Butterfish Committee shall conduct a detailed review of fishery performance relative to the mackerel ACL at least every 5 years.

(A) If the ACL is exceeded with a frequency greater than 25 percent (
i.e.,
more than once in 4 years or any two consecutive years), the Squid, Mackerel, and Butterfish Monitoring Committee will review fishery performance information and make recommendations to the MAFMC for changes in measures intended to ensure ACLs are not exceeded as frequently.

(B) The MAFMC may specify more frequent or more specific ACL performance review criteria as part of a stock rebuilding plan following a determination that a stock has become overfished.

(C) Performance reviews shall not substitute for annual reviews that occur to ascertain if prior year ACLs have been exceeded, but may be conducted in conjunction with such reviews.

(3)
Butterfish
—(i)
ABC.
The MAFMC's SSC shall recommend an ABC to the MAFMC, as described in § 648.20. The butterfish ABC is reduced from the OFL based on an adjustment for scientific uncertainty; the ABC must be less than or equal to the OFL.

(ii)
ACL.
The butterfish ACL will be set equal to the butterfish ABC.

(iii)
OY.
OY may not exceed the ACL, and must take into account the need to prevent overfishing while allowing the fishery to achieve OY on a continuing basis. OY is prescribed on the basis of MSY, as reduced by social, economic, and ecological factors.

(iv)
ACT.
The Monitoring Committee shall identify and review relevant sources of management uncertainty to recommend the butterfish ACT as part of the specifications process. The ACT is composed of RSA, DAH, dead discards, and bycatch TALFF that is equal to 0.08 percent of the allocated portion of the mackerel TALFF. RSA will be based on requests for research quota as described in paragraph (g) of this section. DAH and bycatch TALFF will be set after deduction for RSA, if applicable.

(v) The butterfish mortality cap will be based on the ACT and allocated to the
Loligo
fishery as follows: Trimester I—65 percent; Trimester II—3.3 percent; and Trimester III—31.7 percent.

(vi) Any underages of the butterfish mortality cap for Trimesters I or II will be applied to Trimester III of the same year, and any overages of the butterfish mortality cap for Trimesters I and II will be applied to Trimester III of the same year.

(vii)
Performance review.
The Squid, Mackerel, and Butterfish Committee shall conduct a detailed review of fishery performance relative to the butterfish ACL in conjunction with review for the mackerel fishery, as outlined in this section.

(c)
Recommended measures.
Based on the review of the data described in paragraph (b) of this section and requests for research quota as described in paragraph (g) of this section, the Monitoring Committee will recommend to the Squid, Mackerel, and Butterfish Committee the measures from the following list that it determines are necessary to ensure that the specifications are not exceeded:

(1) RSA set from a range of 0 to 3 percent of:

(i) The IOY for
Loligo
and/or
Illex.

(ii) The commercial and/or recreational ACT for mackerel.

(iii) The ACT for butterfish.

(2) Commercial quotas, set after reductions for research quotas.

(3) The amount of
Loligo, Illex,
and butterfish that may be retained, possessed, and landed by vessels issued the incidental catch permit specified in § 648.4(a)(5)(ii).

(4) Commercial minimum fish sizes.

(5) Commercial trip limits.

(6) Commercial seasonal quotas/closures for
Loligo
and
Illex.

(7) Minimum mesh sizes.

(8) Commercial gear restrictions.

(9) Recreational harvest limit, set after reductions for research quotas.

(10) Recreational minimum fish size.

(11) Recreational possession limits.

(12) Recreational season.

(13) Changes, as appropriate, to the Northeast Region SBRM, including the coefficient of variation (CV) based performance standard, fishery stratification, and/or reports.

(14) Modification of existing accountability measures (AMs) utilized by the Monitoring Committee.

(d)
Annual fishing measures.
(1) The Squid, Mackerel, and Butterfish Committee will review the recommendations of the Monitoring Committee. Based on these recommendations and any public comment received thereon, the Squid, Mackerel, and Butterfish Committee must recommend to the MAFMC appropriate specifications and any measures necessary to assure that the specifications will not be exceeded. The MAFMC will review these recommendations and, based on the recommendations and any public comment received thereon, must recommend to the Regional Administrator appropriate specifications and any measures necessary to assure that the ACL will not be exceeded. The MAFMC's recommendations must include supporting documentation, as appropriate, concerning the environmental, economic, and social impacts of the recommendations. The Regional Administrator will review the recommendations and will publish a proposed rule in the
Federal Register
proposing specifications and any measures necessary to assure that the specifications will not be exceeded and providing a 30-day public comment period. If the proposed specifications differ from those recommended by the MAFMC, the reasons for any differences must be clearly stated and the revised specifications must satisfy the criteria set forth in this section. The MAFMC's recommendations will be available for inspection at the office of the Regional Administrator during the public comment period. If the annual specifications for squid, mackerel, and butterfish are not published in the
Federal Register
prior to the start of the fishing year, the previous year's annual specifications, excluding specifications of TALFF, will remain in effect. The previous year's specifications will be superceded as of the effective date of the final rule implementing the current year's annual specifications.

(2) The Regional Administrator will make a final determination concerning the specifications for each species and any measures necessary to assure that the specifications will not be exceeded. After the Regional Administrator considers all relevant data and any

public comments, notification of the final specifications and any measures necessary to assure that the specifications will not be exceeded and responses to the public comments will be published in the
Federal Register
. If the final specification amounts differ from those recommended by the MAFMC, the reason(s) for the difference(s) must be clearly stated and the revised specifications must be consistent with the criteria set forth in paragraph (b) of this section.

(e)
Inseason adjustments.
The specifications established pursuant to this section may be adjusted by the Regional Administrator, in consultation with the MAFMC, during the fishing year by publishing notification in the
Federal Register
.

(f)
Distribution of annual Loligo squid commercial quota.
(1) A commercial quota for
Loligo
squid will be allocated annually into trimester periods, based on the following percentages: Trimester I (January-April)—43.0 percent; Trimester II (May-August)—17.0 percent; and Trimester III (September-December)—40.0 percent.

(2) Any underages of commercial period quota for Trimester I that are greater than 25 percent of the Trimester I quota will be reallocated to Trimesters II and III of the same year. The reallocation of quota from Trimester I to Trimester II is limited, such that the Trimester II quota may only be increased by 50 percent; the remaining portion of the underage will be reallocated to Trimester III. Any underages of commercial period quota for Trimester I that are less than 25 percent of the Trimester I quota will be applied to Trimester III of the same year. Any overages of commercial quota for Trimesters I and II will be subtracted from Trimester III of the same year.

(g)
Research set-aside (RSA) quota.
Prior to the MAFMC's quota-setting meetings:

(1) NMFS will publish a Request for Proposals (RFP) in the
Federal Register
, consistent with procedures and requirements established by the NOAA Grants Office, to solicit proposals from industry for the upcoming fishing year, based on research priorities identified by the MAFMC.

(2) NMFS will convene a review panel, including the MAFMC's Comprehensive Management Committee and technical experts, to review proposals submitted in response to the RFP.

(i) Each panel member will recommend which research proposals should be authorized to utilize research quota, based on the selection criteria described in the RFP.

(ii) The NEFSC Director and the NOAA Grants Office will consider each panel member's recommendation, and provide final approval of the projects. The Regional Administrator may, when appropriate, exempt selected vessel(s) from regulations specified in each of the respective FMPs through written notification to the project proponent.

(3) The grant awards approved under the RFPs will be for the upcoming fishing year. Proposals to fund research that would start prior to, or that would end after the fishing year, will not be eligible for consideration. All research and/or compensation trips must be completed within the fishing year for which the research grant was awarded.

(4) Research projects will be conducted in accordance with provisions approved and provided in an Exempted Fishing Permit (EFP) issued by the Regional Administrator.

(5) If a proposal is disapproved by the NEFSC Director or the NOAA Grants Office, or if the Regional Administrator determines that the allocated research quota cannot be utilized by a project, the Regional Administrator shall reallocate the unallocated or unused amount of research quota to the respective commercial and recreational fisheries by publication of a notice in the
Federal Register
in compliance with the Administrative Procedure Act, provided:

(i) The reallocation of the unallocated or unused amount of research quota is in accord with National Standard 1, and can be available for harvest before the end of the fishing year for which the research quota is specified; and

(ii) Any reallocation of unallocated or unused research quota shall be consistent with the proportional division of quota between the commercial and recreational fisheries in the relevant FMP and allocated to the remaining quota periods for the fishing year proportionally.

(6) Vessels participating in approved research projects may be exempted from certain management measures by the Regional Administrator, provided that one of the following analyses of the impacts associated with the exemptions is provided:

(i) The analysis of the impacts of the requested exemptions is included as part of the annual quota specification packages submitted by the MAFMC; or

(ii) For proposals that require exemptions that extend beyond the scope of the analysis provided by the MAFMC, applicants may be required to provide additional analysis of impacts of the exemptions before issuance of an EFP will be considered, as specified in the EFP regulations at § 648.12(b).

6. Section 648.23 is revised to read as follows:

§ 648.23
Mackerel, squid, and butterfish gear restrictions.

(a)
Mesh restrictions and exemptions.
(1) Vessels subject to the mesh restrictions in this paragraph (a) may not have available for immediate use any net, or any piece of net, with a mesh size smaller than that required.

(2) Owners or operators of otter trawl vessels possessing 1,000 lb (0.45 mt) or more of butterfish harvested in or from the EEZ may only fish with nets having a minimum codend mesh of 3 inches (76 mm) diamond mesh, inside stretch measure, applied throughout the codend for at least 100 continuous meshes forward of the terminus of the net, or, for codends with less than 100 meshes, the minimum mesh size codend shall be a minimum of one-third of the net, measured from the terminus of the codend to the headrope.

(3) Owners or operators of otter trawl vessels possessing
Loligo
harvested in or from the EEZ may only fish with nets having a minimum mesh size of 2
1/8
inches (54 mm) during Trimesters I (Jan-Apr) and III (Sept-Dec), or 1
7/8
inches (48 mm) during Trimester II (May-Aug), diamond mesh, inside stretch measure, applied throughout the codend for at least 150 continuous meshes forward of the terminus of the net, or, for codends with less than 150 meshes, the minimum mesh size codend shall be a minimum of one-third of the net measured from the terminus of the codend to the headrope, unless they are fishing consistent with exceptions specified in paragraph (b) of this section.

(i)
Net obstruction or constriction.
Owners or operators of otter trawl vessels fishing for and/or possessing
Loligo
shall not use any device, gear, or material, including, but not limited to, nets, net strengtheners, ropes, lines, or chafing gear, on the top of the regulated portion of a trawl net that results in an effective mesh opening of less than 2
1/8
inches (54 mm) during Trimesters I (Jan-Apr) and III (Sept-Dec), or 1
7/8
inches (48 mm) during Trimester II (May-Aug), diamond mesh, inside stretch measure. “Top of the regulated portion of the net” means the 50 percent of the entire regulated portion of the net that would not be in contact with the ocean bottom if, during a tow, the regulated portion of the net were laid flat on the ocean floor. However, owners or operators of otter trawl vessels fishing for and/or possessing
Loligo
may use net strengtheners (covers), splitting straps, and/or bull ropes or wire around the entire circumference of the codend,

provided they do not have a mesh opening of less than 5 inches (12.7 cm) diamond mesh, inside stretch measure. For the purposes of this paragraph (a)(3)(i), head ropes are not to be considered part of the top of the regulated portion of a trawl net.

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

Point
N. lat.
W. long.

M1
43°58.0′
67°22.0′

M2
43°50.0′
68°35.0′

M3
43°30.0′
69°40.0′

M4
43°20.0′
70°00.0′

M5
42°45.0′
70°10.0′

M6
42°13.0′
69°55.0′

M7
41°00.0′
69°00.0′

M8
41°45.0′
68°15.0′

M9
42°10.0′
67°10.0′

M10
41°18.6′
66°24.8′

M11
40°55.5′
66°38.0′

M12
40°45.5′
68°00.0′

M13
40°37.0′
68°00.0′

M14
40°30.0′
69°00.0′

M15
40°22.7′
69°00.0′

M16
40°18.7′
69°40.0′

M17
40°21.0′
71°03.0′

M18
39°41.0′
72°32.0′

M19
38°47.0′
73°11.0′

M20
38°04.0′
74°06.0′

M21
37°08.0′
74°46.0′

M22
36°00.0′
74°52.0′

M23
35°45.0′
74°53.0′

M24
35°28.0′
74°52.0′

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

Oceanographer Canyon

Point
N. lat.
W. long.

OC1
40°10.0′
68°12.0′

OC2
40°24.0′
68°09.0′

OC3
40°24.0′
68°08.0′

OC4
40°10.0′
67°59.0′

OC1
40°10.0′
68°12.0′

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

Lydonia Canyon

Point
N. lat.
W. long.

LC1
40°16.0′
67°34.0′

LC2
40°16.0′
67°42.0′

LC3
40°20.0′
67°43.0′

LC4
40°27.0′
67°40.0′

LC5
40°27.0′
67°38.0′

LC1
40°16.0′
67°34.0′

(b)
Definition of “not available for immediate use.”
Gear that is shown not to have been in recent use and that is stowed in conformance with one of the following methods is considered to be not available for immediate use:

(1)
Nets
—(i)
Below-deck stowage.
(A) The net is stored below the main working deck from which it is deployed and retrieved;

(B) The towing wires, including the leg wires, are detached from the net; and

(C) It is fan-folded (flaked) and bound around its circumference.

(ii)
On-deck stowage.
(A) The net is fan-folded (flaked) and bound around its circumference;

(B) It is securely fastened to the deck or rail of the vessel; and

(C) The towing wires, including the leg wires, are detached from the net.

(iii)
On-reel stowage.
(A) The net is on a reel, its entire surface is covered with canvas or other similar opaque material, and the canvas or other material is securely bound;

(B) The towing wires are detached from the net; and

(C) The codend is removed and stored below deck.

(iv)
On-reel stowage for vessels transiting the Gulf of Maine Rolling Closure Areas, the Georges Bank Seasonal Area Closure, and the Conditional Gulf of Maine Rolling Closure Area.

(A) The net is on a reel, its entire surface is covered with canvas or other similar opaque material, and the canvas or other material is securely bound;

(B) The towing wires are detached from the doors; and

(C) No containment rope, codend tripping device, or other mechanism to close off the codend is attached to the codend.

(2)
Scallop dredges.
(i) The towing wire is detached from the scallop dredge, the towing wire is completely reeled up onto the winch, the dredge is secured, and the dredge or the winch is covered so that it is rendered unusable for fishing; or

(ii) The towing wire is detached from the dredge and attached to a bright-colored poly ball no less than 24 inches (60.9 cm) in diameter, with the towing wire left in its normal operating position (through the various blocks) and either is wound back to the first block (in the gallows) or is suspended at the end of the lifting block where its retrieval does not present a hazard to the crew and where it is readily visible from above.

(3)
Hook gear (other than pelagic).
All anchors and buoys are secured and all hook gear, including jigging machines, is covered.

(4)
Sink gillnet gear.
All nets are covered with canvas or other similar material and lashed or otherwise securely fastened to the deck or rail, and all buoys larger than 6 inches (15.24 cm) in diameter, high flyers, and anchors are disconnected.

(5)
Other methods of stowage.
Any other method of stowage authorized in writing by the Regional Administrator and subsequently published in the
Federal Register
.

(c)
Mesh obstruction or constriction.
The owner or operator of a fishing vessel shall not use any mesh construction, mesh configuration, or other means that effectively decreases the mesh size below the minimum mesh size, except that a liner may be used to close the opening created by the rings in the aftermost portion of the net, provided the liner extends no more than 10 meshes forward of the aftermost portion of the net. The inside webbing of the codend shall be the same circumference or less than the outside webbing (strengthener). In addition, the inside webbing shall not be more than 2 ft (61 cm) longer than the outside webbing.

7. Section 648.24 is revised to read as follows:

§ 648.24
Fishery closures and accountability measures.

(a)
Fishery closure procedures
—(1)
Loligo.
NMFS shall close the directed fishery in the EEZ for
Loligo
when the Regional Administrator projects that 90 percent of the
Loligo
quota is harvested in Trimesters I and II, and when 95 percent of the
Loligo
DAH has been harvested in Trimester III. The closure of the directed fishery shall be in effect for the remainder of that fishing period, with incidental catches allowed as specified at § 648.26.

(i) If the Regional Administrator determines that the Trimester I closure threshold has been under-harvested by 25 percent or more, then the amount of the underharvest shall be reallocated to Trimester II and Trimester III, as specified at § 648.22(f)(2), through notice in the
Federal Register
.

(ii) [
Reserved
]

(2)
Illex.
NMFS shall close the directed
Illex
fishery in the EEZ when the Regional Administrator projects that 95 percent of the
Illex
DAH is harvested. The closure of the directed fishery shall be in effect for the remainder of that fishing period, with incidental catches allowed as specified at § 648.26.

(b)
Mackerel AMs.
(1)
Mackerel commercial sector EEZ closure.
NMFS shall close the commercial mackerel fishery in the EEZ when the Regional Administrator projects that 90 percent of the mackerel DAH is harvested, if such a closure is necessary to prevent the DAH from being exceeded. The closure of the commercial fishery shall be in effect for the remainder of that fishing year, with incidental catches allowed as specified in § 648.26. When the Regional Administrator projects that the DAH for mackerel shall be landed, NMFS shall close the commercial mackerel fishery in the EEZ, and the incidental catches specified for mackerel in § 648.26 will be prohibited.

(2)
Mackerel commercial landings overage repayment.
If the mackerel ACL is exceeded, and commercial fishery landings are responsible for the overage, then landings in excess of the DAH will be deducted from the DAH the following year, as a single-year adjustment to the DAH.

(3)
Mackerel recreational sector EEZ closure.
NMFS shall close the recreational mackerel fishery in the EEZ when the Regional Administrator determines that recreational landings have exceeded the RHL. This determination shall be based on observed landings and will not utilize projections of future data.

(4)
Mackerel recreational landings overage repayment.
If the mackerel ACL is exceeded, and the recreational fishery landings are responsible for the overage, then landings in excess of the RHL will be deducted from the RHL for the following year, as a single-year adjustment.

(5)
Non-landing AMs, by sector.
In the event that the ACL is exceeded, and that the overage has not been accommodated through other landing-based AMs, but is attributable to either the commercial or recreational sector (such as research quota overages, dead discards in excess of those otherwise accounted for in management uncertainty, or other non-landing overages), then the exact amount, in pounds, by which the sector ACT was exceeded will be deducted from the following year, as a single-year adjustment.

(6)
Mackerel ACL overage evaluation.
The ACL will be evaluated based on a single-year examination of total catch (landings and discards). Both landings and dead discards will be evaluated in determining if the ACL has been exceeded. NMFS shall make determinations about overages and implement any changes to the ACL, in accordance with the Administrative Procedure Act, through notification in the
Federal Register
, by March 31 of the fishing year in which the deductions will be made.

(c)
Butterfish AMs
—(1)
Butterfish EEZ closure.
NMFS shall close the directed butterfish fishery in the EEZ when the Regional Administrator projects that 80 percent of the butterfish DAH has been harvested. The closure of the directed fishery shall be in effect for the remainder of that fishing year, with incidental catches allowed as specified at § 648.26.

(2)
Butterfish ACL overage repayment.
If the butterfish ACL is exceeded, then catch in excess of the ACL will be deducted from the ACL the following year, as a single-year adjustment.

(3)
Butterfish mortality cap on the Loligo fishery.
NMFS shall close the directed fishery in the EEZ for
Loligo
when the Regional Administrator projects that 80 percent of the butterfish mortality cap has been harvested in Trimester I, and/or when 90 percent of the butterfish mortality cap has been harvested in Trimester III.

(4)
Butterfish ACL overage evaluation.
The ACL will be evaluated based on a single-year examination of total catch (landings and discards). Both landings and dead discards will be evaluated in determining if the ACL has been exceeded. NMFS shall make determinations about overages and implement any changes to the ACL, in accordance with the Administrative Procedure Act, through notification in the
Federal Register
, by March 31 of the fishing year in which the deductions will be made.

(d)
Notification.
Upon determining that a closure is necessary, the Regional Administrator will notify, in advance of the closure, the Executive Directors of the MAFMC, NEFMC, and SAFMC; mail notification of the closure to all holders of mackerel, squid, and butterfish fishery permits at least 72 hours before the effective date of the closure; provide adequate notice of the closure to recreational participants in the fishery; and publish notification of closure in the
Federal Register
.

8. Section 648.25 is revised to read as follows:

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

(a)
Within season management action.
The MAFMC may, at any time, initiate action to add or adjust management measures within the Atlantic Mackerel, Squid, and Butterfish FMP if it finds that action is necessary to meet or be consistent with the goals and objectives of the FMP.

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

regional season restrictions (including option to split seasons); restrictions on vessel size (LOA and GRT) or shaft horsepower; changes to the Northeast Region SBRM (including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, reports, and/or industry-funded observers or observer set-aside programs); any other management measures currently included in the FMP, set aside quota for scientific research, regional management, and process for inseason adjustment to the annual specification. Measures contained within this list that require significant departures from previously contemplated measures or that are otherwise introducing new concepts may require amendment of the FMP instead of a framework adjustment.

(2)
MAFMC recommendation.
After developing management actions and receiving public testimony, the MAFMC shall make a recommendation to the Regional Administrator. The MAFMC's recommendation must include supporting rationale, if management measures are recommended, an analysis of impacts, and a recommendation to the Regional Administrator on whether to issue the management measures as a final rule. If the MAFMC recommends that the management measures should be issued as a final rule, the MAFMC must consider at least the following factors, and provide support and analysis for each factor considered:

(i) Whether the availability of data on which the recommended management measures are based allows for adequate time to publish a proposed rule, and whether the regulations would have to be in place for an entire harvest/fishing season.

(ii) Whether there has been adequate notice and opportunity for participation by the public and members of the affected industry in the development of the recommended management measures.

(iii) Whether there is an immediate need to protect the resource.

(iv) Whether there will be a continuing evaluation of management measures following their implementation as a final rule.

(3)
NMFS action.
If the MAFMC's recommendation includes adjustments or additions to management measures and, after reviewing the MAFMC's recommendation and supporting information:

(i) If NMFS concurs with the MAFMC's recommended management measures and determines that the recommended management measures should be issued as a final rule based on the factors specified in paragraph (a)(2) of this section, the measures will be issued as a final rule in the
Federal Register
.

(ii) If NMFS concurs with the MAFMC's recommended management measures and determines that the recommended management measures should be published first as a proposed rule, the measures will be published as a proposed rule in the
Federal Register
. After additional public comment, if NMFS concurs with the MAFMC recommendation, the measures will be issued as a final rule in the
Federal Register
.

(iii) If NMFS does not concur, the MAFMC will be notified in writing of the reasons for the non-concurrence.

(4)
Emergency actions.
Nothing in this section is meant to derogate from the authority of the Secretary to take emergency action under section 305(e) of the Magnuson-Stevens Act.

(b) [
Reserved
]

9. Section 648.26 is revised to read as follows:

§ 648.26
Mackerel, squid, and butterfish possession restrictions.

(a)
Atlantic mackerel.
During a closure of the commercial Atlantic mackerel fishery that occurs prior to June 1, vessels may not fish for, possess, or land more than 20,000 lb (9.08 mt) of Atlantic mackerel per trip at any time, and may only land Atlantic mackerel once on any calendar day, which is defined as the 24-hr period beginning at 0001 hours and ending at 2400 hours. During a closure of the commercial fishery for mackerel that occurs on or after June 1, vessels may not fish for, possess, or land more than 50,000 lb (22.7 mt) of Atlantic mackerel per trip at any time, and may only land Atlantic mackerel once on any calendar day.

(b)
Loligo.
During a closure of the directed fishery for
Loligo,
vessels may not fish for, possess, or land more than 2,500 lb (1.13 mt) of
Loligo
per trip at any time, and may only land
Loligo
once on any calendar day, which is defined as the 24-hr period beginning at 0001 hours and ending at 2400 hours. If a vessel has been issued a
Loligo
incidental catch permit (as specified at § 648.4(a)(5)(ii)), then it may not fish for, possess, or land more than 2,500 lb (1.13 mt) of
Loligo
per trip at any time and may only land
Loligo
once on any calendar day.

(c)
Illex.
During a closure of the directed fishery for
Illex,
vessels may not fish for, possess, or land more than 10,000 lb (4.54 mt) of
Illex
per trip at any time, and may only land
Illex
once on any calendar day, which is defined as the 24-hr period beginning at 0001 hours and ending at 2400 hours. If a vessel has been issued an
Illex
incidental catch permit (as specified at § 648.4(a)(5)(ii)), then it may not fish for, possess, or land more than 10,000 lb (4.54 mt) of
Illex
per trip at any time, and may only land
Illex
once on any calendar day.

(d)
Butterfish.
(1) During a closure of the directed fishery for butterfish that occurs prior to October 1, vessels may not fish for, possess, or land more than 250 lb (0.11 mt) of butterfish per trip at any time, and may only land butterfish once on any calendar day, which is defined as the 24-hr period beginning at 0001 hours and ending at 2400 hours. During a closure of the directed fishery for butterfish that occurs on or after October 1, vessels may not fish for, possess, or land more than 600 lb (0.27 mt) of butterfish per trip at any time, and may only land butterfish once on any calendar day. If a vessel has been issued a butterfish incidental catch permit (as specified at § 648.4(a)(5)(ii)), it may not fish for, possess, or land more than 600 lb (0.27 mt) of butterfish per trip at any time, and may only land butterfish once on any calendar day, unless the directed fishery for butterfish closes prior to October 1, then a vessel that has been issued a butterfish incidental catch permit may not fish for, possess, or land more than 250 lb (0.11 mt) of butterfish per trip at any time, and may only land butterfish once on any calendar day.

(2) A vessel issued a butterfish moratorium permit (as specified at § 648.4(a)(5)(i)) may not fish for, possess, or land more than 5,000 lb (2.27 mt) of butterfish per trip at any time, and may only land butterfish once on any calendar day, which is defined as the 24-hr period beginning at 0001 hours and ending at 2400 hours.

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

§ 648.27
Observer requirements for the Loligo fishery.

(a) A vessel issued a
Loligo
and butterfish moratorium permit, as specified at § 648.4(a)(5)(i), must, for the purposes of observer deployment, have a representative provide notice to NMFS of the vessel name, vessel permit number, contact name for coordination of observer deployment, telephone number or e-mail address for contact; and the date, time, port of departure, and approximate trip duration, at least 72 hr, but no more than 10 days, prior to beginning any fishing trip, unless it complies with the possession restrictions in paragraph (c) of this section.

(b) A vessel that has a representative provide notification to NMFS as

described in paragraph (a) of this section may only embark on a
Loligo
trip without an observer if a vessel representative has been notified by NMFS that the vessel has received a waiver of the observer requirement for that trip. NMFS shall notify a vessel representative whether the vessel must carry an observer, or if a waiver has been granted, for the specified
Loligo
trip, within 24 hr of the vessel representative's notification of the prospective
Loligo
trip, as specified in paragraph (a) of this section. Any request to carry an observer may be waived by NMFS. A vessel that fishes with an observer waiver confirmation number that does not match the
Loligo
trip plan that was called in to NMFS is prohibited from fishing for, possessing, harvesting, or landing
Loligo
except as specified in paragraph (c) of this section. Confirmation numbers for trip notification calls are only valid for 48 hr from the intended sail date.

(c) A vessel issued a
Loligo
and butterfish moratorium permit, as specified in § 648.4(a)(5)(i), that does not have a representative provide the trip notification required in paragraph (a) of this section is prohibited from fishing for, possessing, harvesting, or landing 2,500 lb (1.13 mt) or more of
Loligo
per trip at any time, and may only land
Loligo
once on any calendar day, which is defined as the 24-hr period beginning at 0001 hours and ending at 2400 hours.

(d) If a vessel issued a
Loligo
and butterfish moratorium permit, as specified in § 648.4(a)(5)(i), intends to possess, harvest, or land 2,500 lb (1.13 mt) or more of
Loligo
per trip or per calendar day, has a representative notify NMFS of an upcoming trip, is selected by NMFS to carry an observer, and then cancels that trip, the representative is required to provide notice to NMFS of the vessel name, vessel permit number, contact name for coordination of observer deployment, and telephone number or e-mail address for contact, and the intended date, time, and port of departure for the cancelled trip prior to the planned departure time. In addition, if a trip selected for observer coverage is cancelled, then that vessel is required to carry an observer, provided an observer is available, on its next trip.

11. Section 648.70 is revised to read as follows:

§ 648.70
Surfclam and ocean quahog Annual Catch Limit (ACL).
(a) The MAFMC staff shall recommend to the MAFMC ACLs for the surfclam and ocean quahog fisheries, which shall be equal to the ABCs recommended by the SSC.

(1)
Sectors.
The surfclam and ocean quahog ACLs will be established consistent with the guidelines contained in the Atlantic Surfclam and Ocean Quahog FMP. The ACL for ocean quahog will then be allocated to the Maine and non-Maine components of the fishery according to the allocation guidelines of the Atlantic Surfclam and Ocean Quahog FMP as specified in § 648.78(b).

(2)
Periodicity.
The surfclam and ocean quahog ACLs may be established on an annual basis for up to 3 years at a time, dependent on whether the SSC provides single or multiple year ABC recommendations.

(b)
Performance review.
The MAFMC staff shall conduct a detailed review of the fishery performance relative to the ACLs at least every 5 years.

(1) If the surfclam or the ocean quahog ACL is exceeded with a frequency greater than 25 percent (
i.e.,
more than once in 4 years or any 2 consecutive years), the MAFMC staff will review fishery performance information and make recommendations to the MAFMC for changes in measures intended to ensure the ACL is not exceeded as frequently.

(2) The MAFMC may specify more frequent or more specific ACL performance review criteria as part of a stock rebuilding plan following a determination that a stock has become overfished.

(3) Performance reviews shall not substitute for annual reviews that occur to ascertain if prior year ACLs have been exceeded, but may be conducted in conjunction with such reviews.

12. Section 648.71 is revised to read as follows:

§ 648.71
Surfclam and ocean quahog Annual Catch Targets (ACT).
(a) The MAFMC staff shall identify and review the relevant sources of management uncertainty to recommend ACTs to the MAFMC as part of the surfclam and ocean quahog specification process. The MAFMC staff recommendations shall identify the specific sources of management uncertainty that were considered, technical approaches to mitigating these sources of uncertainty, and any additional relevant information considered in the ACT recommendation process.

(1)
Sectors.
The surfclam ACT and the sum of the Maine and non-Maine ocean quahog ACTs shall be less than or equal to the ACL for the corresponding stock. The MAFMC staff shall recommend any reduction in catch necessary to address management uncertainty, consistent with paragraph (a) of this section.

(2)
Periodicity.
ACTs may be established on an annual basis for up to 3 years at a time, dependent on whether the SSC provides single or multiple year ABC recommendations.

(b)
Performance review.
The MAFMC staff shall conduct a detailed review of fishery performance relative to ACTs in conjunction with any ACL performance review, as outlined in § 648.70(b)(1) through (3).

13. Section 648.72 is revised to read as follows:

§ 648.72
Surfclam and ocean quahog sp

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2011-24511. Public record. Not legal advice.