# Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast (NE) Multispecies Fishery; Framework Adjustment 45 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-9705 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 25, 2011 - **Citation:** 76 FR 23042 ## Text DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 100923469-1211-02] RIN 0648-BA27 Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast (NE) Multispecies Fishery; Framework Adjustment 45 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: This final rule partially approves Framework Adjustment (FW) 45 to the NE Multispecies Fishery Management Plan (FMP) and implements the approved measures. FW 45 was developed by the New England Fishery Management Council (Council) to make adjustments necessary to ensure that conservation and management objectives of the FMP, including preventing overfishing, rebuilding overfished stocks, achieving optimum yield (OY), and minimizing the economic impact of management measures on affected vessels, are being met in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Specifically, this action revises the biological reference points and stock status for pollock, updates annual catch limits (ACLs) for several stocks for fishing years (FYs) 2011-2012, adjusts the rebuilding program for Georges Bank (GB) yellowtail flounder, increases scallop vessel access to the Great South Channel Exemption Area, approves five new sectors, modifies the existing dockside and at-sea monitoring requirements, revises several sector administrative provisions, establishes a Gulf of Maine (GOM) Cod Spawning Protection Area, and refines measures affecting the operations of NE multispecies vessels fishing with handgear. This action approves the Council's proposed FY 2011 U.S./Canada Management Area total allowable catch (TAC), acceptable biological catch (ABC), and ACL for GB yellowtail flounder, but replaces them with new catch limits for this stock through a parallel emergency action, included as part of this final rule, based on the International Fisheries Agreement Clarification Act (IFACA) that provides new flexibility in setting catch limits for this stock. In addition, this action disapproves a measure to delay fishing industry responsibility for paying for at-sea monitoring coverage costs in FY 2012. This action is necessary to ensure that the fishery is managed on the basis of the best available science, to comply with the ABC control rules adopted in Amendment 16 to the FMP, and to enhance the viability of the fishery. DATES: This rule is effective at 0001 hr on May 1, 2011. The specification of the GB yellowtail flounder ABC and ACL and their distribution are effective May 1, 2011, through October 24, 2011. ADDRESSES: Copies of FW 45, its Regulatory Impact Review (RIR), a draft of the environmental assessment (EA) prepared for this action, and the draft Initial Regulatory Flexibility Act (IRFA) analysis prepared by the Council are available from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. A supplemental EA was also prepared for this action that outlines analysis in support of increased FY 2011 GB yellowtail flounder U.S./Canada Management Area TAC, ABC, and ACL implemented by this action. Also, an errata sheet was prepared to augment the FW 45 EA's analysis of the impacts of the proposed action on distinct population segments of Atlantic sturgeon and loggerhead sea turtles. The draft IRFA prepared by the Council was expanded upon in the preamble to the proposed rule for this action. The Final Regulatory Flexibility Act (FRFA) analysis consists of the IRFA, public comments and responses, and the summary of impacts, and alternatives contained in the Classification section of the preamble of this final rule and applicable sections of Framework 45. Copies of the small entity compliance guide, the errata sheet for the FW 45 EA, and the supplemental EA associated with this action are available from Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930-2298. The FW 45 EA/RIR/IRFA, errata sheet, supplemental EA prepared for this action, and the relevant analyses for Amendment 16 and other recent actions are also accessible via the Internet at http://www.nefmc.org/nemulti/index.html or http://www.nero.noaa.gov. Copies of recent stock assessments for stocks managed by the FMP are also accessible via the Internet at http://www.nefsc.noaa.gov/groundfish . Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule should be submitted to the Regional Administrator at the address above and to the Office of Management and Budget (OMB) by e-mail at OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285. FOR FURTHER INFORMATION CONTACT: Douglas W. Christel, Fishery Policy Analyst, phone: 978-281-9141, fax: 978-281-9135. SUPPLEMENTARY INFORMATION: Background Amendment 13 (April 27, 2004; 69 FR 22906) included the establishment of rebuilding programs for stocks managed by the FMP and measures necessary to end overfishing, rebuild overfished stocks, and help mitigate the economic impacts of effort reductions in the fishery to the extent practicable. In addition to revising existing days-at-sea (DAS) measures and substantially expanding sector measures, Amendment 16 (April 9, 2010; 75 FR 18262) established a process for specifying ABCs and ACLs and distributing available catch among components of the fishery that catch regulated species and ocean pout, and also specified accountability measures (AMs) necessary to prevent overfishing on these stocks and address overages of ACLs, as required by the Magnuson-Stevens Act. 16 U.S.C. 1801 et seq. In another action, FW 44 (April 9, 2010; 75 FR 18356), NMFS set the ACLs for FYs 2010 through 2012, and distributed such allocations among the various components of the fishery that catch these stocks. The Council developed FW 45 as part of the established framework adjustment process to revise measures necessary to ensure consistency with the FMP in order to prevent overfishing and rebuild overfished stocks, while achieving OY in the fishery and minimizing economic impact to the extent practicable. Updated stock assessments for pollock and GB yellowtail flounder conducted in 2010 require the ACLs originally established under FW 44 pursuant to the ABC/ACL process established in Amendment 16 to be updated based upon revised stock status for pollock and a revised rebuilding program for GB yellowtail flounder. Further, following the transition to sectors under Amendment 16, the Council realized that several changes to existing measures are necessary to make the Amendment 16 measures work more effectively, as described below. This rule also implements the parallel, but separate, emergency action that replaces the FW 45 FY 2011 GB yellowtail flounder TAC, ABC, and ACL based on the flexibility to increase catch limits provided by the IFACA, which President Obama signed into law on January 4, 2011. This Act provides authority to the Council and NMFS to increase the FY 2011 U.S./Canada Management Area TAC, ABC, and ACL for GB yellowtail flounder originally proposed by the Council under FW 45 and approved by this action. Specifically, the new statute recognizes the U.S./Canada Resource Sharing Understanding (Understanding) as an international agreement for the purposes of section 304(e)(4)(A)(ii) of the Magnuson-Stevens Act. Based on this recognition, the IFACA provides for additional flexibility regarding the range of catch levels that may be considered for GB yellowtail flounder, and allows for a higher yearly TAC and, therefore, ABC and ACL for this stock in FY 2011, provided that overfishing is ended immediately and that the fishing mortality rate (F) ensures rebuilding consistent with the Understanding. The justification for implementing these increases through emergency action, as provided for in section 305(c) of the Magnuson-Stevens Act, is explained in the preamble to the proposed rule and is not repeated here. Following the passage of the IFACA, NMFS requested a special meeting of the Transboundary Management Guidance Committee (TMGC), a group that consists of NMFS, Council members and staff, and United States fishing industry representatives and their counterparts in the Department of Fisheries and Ocean of Canada (DFO) that makes recommendations of the yearly TACs for stocks managed by the Understanding, to reconsider the FY 2011 U.S./Canada Management Area TAC for GB yellowtail flounder pursuant to the IFACA and the Understanding. On February 9, 2011, the TMGC held a conference call to consider revising the FY 2011 TAC for this stock, and concluded that the original combined U.S./Canada Management Area TAC for GB yellowtail flounder (1,900 mt) could be increased to 2,650 mt for FY 2011. A proposed rule to implement measures proposed in FW 45 was published on March 3, 2011 (76 FR 11858), with public comments accepted through March 18, 2011. That proposed rule included a detailed description of the proposed management measures, and other factors that influenced the development of this action. Specifically, that rule indicated that NMFS was considering disapproving the FY 2011 GB yellowtail flounder U.S./Canada Management Area TAC adopted by the Council under FW 45, and implementing the increased TAC for this stock agreed to by the TMGC on February 9, 2011, through a parallel, but separate emergency action pursuant to section 305(c) of the Magnuson-Stevens Act. This parallel emergency action was proposed and justified in the same Federal Register notice as the proposed rule for this action, and is being promulgated as a final rule in this action as well. NMFS also published, at the same time as and in conjunction with the proposed rule for FW 45, a proposed rule to approve the FY 2011 operations plans and sector contracts for 19 sectors authorized by Amendment 16 and FW 45 (February 28, 2011; 76 FR 10852). Public comments on that rule were accepted through March 15, 2011. If approved, that rule would also specify the annual catch entitlements (ACEs, or sector quotas) for each stock allocated to each sector pursuant to Amendment 16 and sector rosters submitted to NMFS on December 1, 2010. This roster deadline was later extended to allow vessels involved in an ownership change to either join a sector or change its sector affiliation. A final rule implementing approved FY 2011 sector operations plans and ACE is expected to publish in conjunction with this final rule and become effective on May 1, 2011. Disapproved Measures Delay in Industry Responsibility for At-Sea Monitoring Coverage In Amendment 16, the Council established monitoring measures to ensure that sector allocations of the ACLs for particular species could be accurately monitored. These measures included the requirement for sectors to develop and pay for an at-sea monitoring program beginning in FY 2012 that meet a minimum level of coverage based on the precision of bycatch estimates. In the development of these measures, the Council noted that “effective management of sectors requires that catch be accurately known.” Thus, the at-sea monitoring provisions were developed to ensure that landings were accurately monitored for each sector. To reduce monitoring costs to industry, the Council proposed to delay the requirement for the fishing industry to pay for at-sea monitoring coverage in FW 45 by one year. However, without industry funding, NMFS funding would be the sole source for any at-sea or observer monitoring coverage during FY 2012. During the deliberation of this measure, NMFS expressed continued concern about the Council's reliance upon NMFS funding to fully support a provision required by the FMP, particularly the specific at-sea monitoring coverage levels outlined for sector-developed at-sea monitoring programs in Amendment 16 for FY 2012. Because NMFS' funding is not guaranteed and depends upon Congressional appropriations, it is likely that funding levels will fluctuate on a yearly basis and may not be sufficient to fully fund the at-sea monitoring coverage requirements in the FMP. The NMFS budget for FY 2012 has yet to be finalized. Accordingly, NMFS remains uncertain whether sufficient funding will exist in FY 2012 to provide sufficient coverage to accurately monitor sector catch, as required under Amendment 16. NMFS has determined, therefore, that the proposed delay of industry funding for at-sea monitoring coverage in FY 2012 is inconsistent with the FMP and the requirements of the Magnuson-Stevens Act. First, such a delay, without sufficient federal funding for at-sea monitoring, would likely fail to maintain conservation and management measures that are necessary and appropriate for the conservation and management of the fishery to prevent overfishing and rebuild overfished stocks, as required by section 303(a)(1) of the Magnuson-Stevens Act. As noted above, Amendment 16 indicated that sufficient at-sea monitoring coverage is necessary to ensure that catch is accurately known. Without the requirement for the industry to fund at sea monitoring in the absence of sufficient federal funding, it would not likely be possible to obtain sufficient accurate catch information, including information on discards that is most reliably acquired through observer and at-sea monitoring coverage. As a result, it would not likely be possible to effectively estimate F, evaluate whether overfishing is occurring, and develop ACLs and other measures that would prevent overfishing and rebuild overfished stocks. Further, by reducing the likelihood that sufficient funding will be available to provide adequate at-sea monitoring coverage necessary to accurately monitor catch in the fishery, the disapproved measure would have undermined measures in Amendment 16 that helped to ensure that the standardized reporting methodology is capable of assessing the amount and type of bycatch occurring in the fishery, as required in section 303(a)(11). Accordingly, NMFS has disapproved the measure to delay making the industry responsible for the costs associated with at-sea monitoring in FY 2012 to the extent that the federal funds are not available. NMFS intends to pay for at least some level of at-sea monitoring coverage in 2012, as it has done every year, based on the amount of available funding, and will work toward trying to secure the funds necessary to fully support such coverage in 2012. However, industry shall be responsible for that balance of at-sea monitoring coverage costs that are not covered by available Federal funding starting in FY 2012. Approved Measures The following summarizes the approved FW 45 measures, based on the order in which applicable provisions appear in the regulations at 50 CFR part 648. These measures build upon the provisions implemented by previous management actions, and are intended to either supplement or replace existing regulations, as described for each measure. This final rule also includes, through authority granted to NMFS by section 305(d) of the Magnuson-Stevens Act, revisions to regulations that are not specifically identified in FW 45, but that are necessary to implement measures to achieve, but not exceed the sub-ACLs available to the common pool fishery during FY 2011 and to correct errors in, or clarify, existing provisions, as described further below. A more detailed explanation of the rationale for each approved measure can be found in the proposed rule for this action. Although NMFS proposed to disapprove the FY 2011 GB yellowtail flounder U.S./Canada Management Area TAC, ABC, and ACL originally adopted by the Council under FW 45, NMFS ultimately decided not to disapprove these measures through this final rule, based upon further review of the FW 45 measures and applicable law. Disapproval of the TAC, ABC, and ACL proposed by FW 45 was not appropriate, because disapproval of a measure is only permissible if it is inconsistent with Magnuson-Stevens Act requirements and other applicable law. In the context of FW 45, these catch limits are consistent with the FMP and the Magnuson-Stevens Act requirements and other applicable law. These catch limits comply with the Magnuson-Stevens Act requirements to end overfishing and rebuild overfished stocks within 10 years. In addition, the FW 45 catch limits comply with the advice of the Council's Scientific and Statistical Committee in setting an ABC for this stock using the ABC control rule specified in the FMP and the best available scientific information. Further, the FW 45 ABC and ACL for GB yellowtail flounder incorporate both scientific and management uncertainty, consistent with the National Standard 1 guidelines. The fact that these proposed specifications for GB yellowtail flounder could be increased pursuant to IFACA does not undermine their approvability in FW 45. Moreover, if the emergency rule increasing the ACL expires before the Council has recommended a new ACL for FY 2012, the approved Framework 45 measure could go into place automatically, thereby avoiding a gap in TACs, ABCs and ACLs for this stock. Accordingly, this final rule approves the FY 2011 GB yellowtail flounder TAC, ABC, and ACL in FW 45, but temporarily replaces them, through NMFS' emergency action authority provided in section 305(c) of the Magnuson-Stevens Act, with the revised TAC, ABC, and ACL described further below in Item 5 of this preamble. This parallel emergency action increasing FW 45's specifications of FY 2011 GB yellowtail flounder U.S./Canada Management Area TAC, ABC, and ACL is justifed by, and based on, new legal authority stemming from the January 4, 2011, enactment of the IFACA, as more fully explained in the preamble to the proposed rule for this action. Pursuant to the requirements of IFACA that any new catch levels still prevent overfishing and are consistent with the U.S. Canada Understanding, NMFS held a TMGC conference call. As noted in the preamble of the proposed rule for this action, based on this TMGC conference call, a report was generated that concluded that the higher FY 2011 TAC for this stock specified in the proposed rule for this action and described further in Item 5 of this preamble would still likely prevent overfishing (i.e., result in a F below F at maximum sustainable yield (F MSY , or F ref , as listed in the Understanding)) and result in a 5 percent increase in median biomass from 2011 to 2012. Therefore, the increased TAC is consistent with the provisions of the IFACA and National Standards 1 and 8 of the Magnuson-Stevens Act because it prevents overfishing, is consistent with the F outlined in the Understanding, continues to rebuild this overfished stock, optimizes OY, and minimizes adverse economic impacts to fishing communities through higher catch limits and increased revenues, without compromising conservation objectives of the FMP and applicable law. Further, consistent with National Standard 9 of the Magnuson-Stevens Act, an increased TAC reduces bycatch and associated bycatch mortality in the fishery by increasing the amount of GB yellowtail flounder that can be caught during FY 2011 and minimizing incentives to discard this stock and others caught concurrently. However, this increase in catch limits for GB yellowtail flounder is only valid for the duration of the emergency and one extension (i.e., FY 2011). To justify comparable increases in catch limits for future fishing years, the Council must adjust the FMP to establish a new rebuilding program and timeline consistent with IFACA as more fully discussed below in item 2. 1. Status Determination Criteria for Pollock Based upon an updated peer-reviewed benchmark stock assessment conducted in July 2010 (Stock Assessment Workshop, or SAW, 50), pollock is not overfished or subject to overfishing. Thus, this species no longer requires the rebuilding program established in Amendment 16. As noted in the preamble of the proposed rule for this action, NMFS implemented an emergency action on July 20, 2010 (75 FR 41996) to incorporate the results of this assessment and update the status determination criteria and the associated FY 2010 ABC and ACL for this species. These increased catch limits were renewed through July 17, 2011, or until replaced by another action through a notice published on December 1, 2010 (75 FR 74661). Therefore, formally integrating the results of the 2010 pollock stock assessment, updated status determination criteria, ABC, and ACLs for this species into the FMP through this final rule is necessary to replace the measures implemented by the emergency action that would expire in July 2011. Table 1 lists the revised status determination criteria, with numerical estimates of these parameters listed in Table 2. The revised biomass target parameter for pollock, where spawning stock biomass is at maximum sustainable yield (SSB MSY ) or its proxy, is SSB at 40 percent maximum spawning potential (MSP). The maximum F threshold is the F MSY proxy, or F 40%MSP . Table 1—Description of the Updated Pollock Status Determination Criteria Species Biomass target (B target ) Minimum biomass threshold Maximum fishing mortality threshold Pollock SSB MSY : SSB/R (40%MSP) 1/2 B target F 40%MSP Table 2—Numerical Estimates for the Updated Pollock Status Determination Criteria Species Biomass target (SSB MSY or proxy) in mt Maximum fishing mortality threshold (F MSY or proxy) MSY in mt Pollock 91,000 0.41 16,200 2. Rebuilding Program for GB Yellowtail Flounder Recent estimates of the status of GB yellowtail flounder conducted by the Transboundary Resource Assessment Committee (TRAC) in July 2010 indicate that overfishing is not occurring, but that the stock is still in an overfished condition (TRAC 2010/05). This report concludes that it is not possible to rebuild this stock by 2014, the end of the eight-year rebuilding period originally adopted in FW 42 (October 23, 2006; 71 FR 62156), with a 75 percent probability of success even at F = 0. Accordingly, this action revises the GB yellowtail flounder rebuilding program to rebuild the stock by 2016, with a 50-percent probability of success. This revision extends the rebuilding program for this stock out to a 10-year rebuilding period and lowers the probability of success from 75 percent to 50 percent in order to maximize the amount of GB yellowtail flounder that could be caught while the stock rebuilds. IFACA allows the Secretary and the Council to extend the rebuilding period for stocks, or portions of stocks, managed by the Understanding. However, because IFACA was enacted after FW 45 was developed and approved by the Council, the extension of the rebuilding period for GB yellowtail flounder was restricted to 10 years. To maintain increases in GB yellowtail flounder catch comparable to the emergency increase for FY 11 after the emergency increase for FY 2011 expires, the Council would need to consider revising the FMP's rebuilding program and timeline for this stock consistent with the flexibility provided by IFACA. This would allow the Council to further mitigate the adverse economic impacts of efforts to rebuild this stock beyond that which was considered by the Council in the development of the revised GB yellowtail flounder rebuilding program included in FW 45. Therefore, NMFS recommends that the Council reevaluate the GB yellowtail flounder rebuilding program approved under FW 45, and consider extending the rebuilding program for this stock consistent with IFACA and implementing, if justified, the higher catch limits for this stock for future FYs. 3. Overfishing Levels and ABCs for Particular Stocks This action revises the OFLs and ABCs of particular stocks, including GB cod, GB haddock, GB yellowtail flounder, and pollock for FYs 2011 and 2012. Revisions to the OFLs and ABCs for pollock and GB yellowtail flounder are based upon the updated assessments and revised rebuilding strategies for these stocks, as described in Items 1 and 2 of this preamble, respectively, and on the flexibility afforded by IFACA for GB yellowtail flounder, as described in Item 5 of this preamble. Revisions to the OFLs and ABCs for the GB cod and GB haddock stocks are based upon updated TRAC assessments of the eastern components of the stock. It is anticipated that the FY 2012 values of the ABCs for GB cod, GB haddock, and GB yellowtail flounder will be revised during 2011, based on new transboundary stock assessments conducted by the TRAC, and will likely be specified again in conjunction with the FY 2012 U.S./Canada Management Area TAC levels, as further described in Item 5 of this preamble. Table 3 contains the OFLs and ABCs for FYs 2011 and 2012 approved under FW 45, with the exception of GB yellowtail flounder. For GB yellowtail flounder, the FY 2011 U.S. ABC shown in Table 3 represents a revised shared U.S./Canada Management Area TAC based upon, and consistent with, determinations and decisions about this stock by the TMGC, pursuant to the Understanding and the flexibility afforded by the IFACA. Because the U.S./Canada Management Area represents the entire stock area for GB yellowtail flounder, the shared U.S./Canada Management Area TAC for this stock that is available to the U.S. fishery also represents the ABC for this stock. The revised ABC agreed to by the TMGC is consistent with the provisions of IFACA and the harvest strategy of the Understanding that requires overfishing to be prevented and the facilitation of the rebuilding of overfished stocks. NMFS is implementing the revised FY 2011 ABC for this stock as a separate, but parallel, action to FW 45 pursuant to its emergency action authority specified in section 305(c) of the Magnuson-Stevens Act, as further described in the proposed rule for this action. As noted above, the duration of this proposed revision to the GB yellowtail flounder ABC is limited by the Magnuson-Stevens Act to 180 days (i.e., through October 24, 2011), but may be extended to make the revised ABC and ACL effective for the duration of FY 2011 (through April 30, 2012). Table 3—Revisions to Overfishing Levels and Acceptable Biological Catches Stock OFL (mt, live weight) FY 2011 FY 2012 U.S. ABC (mt, live weight) FY 2011 FY 2012 GB cod 7,311 * 8,090 4,766 * 5,364 GB haddock 59,948 * 51,150 34,244 * 29,016 GB yellowtail flounder: Proposed in FW 45 3,495 * 4,335 ** 1,458 * 1,222 Emergency Action 3,495 * 4,335 1,099 * 1,222 White hake 4,805 5,306 3,295 3,638 Pollock 21,853 19,887 16,900 15,400 * Preliminary estimates that may be revised in 2012 based on TRAC and TMGC considerations. ** This value represents the flexibility afforded by IFACA and described further in Item 5 of this preamble that supersedes the 1,099 mt FY 2011 GB yellowtail flounder U.S. ABC originally adopted by the Council in FW 45. 4. Revisions to ACLs Similar to adjustments in the OFLs and ABCs described in Item 3 of this preamble, this action revises the ACLs for several stocks, including GB cod, GB haddock, GB yellowtail flounder, white hake, and pollock. Pursuant to Magnuson-Stevens Act requirements and the process specified in Amendment 16, the ACLs adopted in this action are lower than the ABCs listed above for these stocks to account for management uncertainty, as detailed in Appendix II of FW 45 ( see ADDRESSES ) and summarized in the proposed rule for this action. For most stocks and components of the fishery (ABC components), the default adjustment (reduction) to the catch level for a fishery component to account for management uncertainty was 5 percent. For stocks with less management uncertainty, the adjustment was 3 percent, and for those stocks or components with more management uncertainty, the adjustment was 7 percent. The total ACL for a stock represents the catch limit for a particular FY, considering both biological and management uncertainty, and the limit includes all sources of catch (landed and discards) and all fisheries (commercial and recreational groundfish fishery, state-waters catch, and non-groundfish fisheries). The allocation of yellowtail flounder to the scallop fishery is not changed by this action. Thus, the SNE/MA yellowtail flounder allocations to the scallop fishery listed in Tables 5 and 6 are the same amounts implemented under FW 44, with the allocation of SNE/MA yellowtail flounder remaining at 82 and 127 mt, live weight, during FYs 2011 and 2012, respectively; the GB yellowtail flounder allocations to the scallop fishery listed in Tables 11 and 12 remain at 200.8 and 307.5 mt, live weight, during FYs 2011 and 2012, respectively. No specific allocation of Cape Cod (CC)/GOM yellowtail flounder is made to the scallop fishery, because the incidental catches of this stock by the scallop fishery are relatively low. Catches of this stock will be considered part of the “other sub-component” of the ACL. Current regulations set a cap on the amount of yellowtail flounder that may be harvested from the scallop access areas in the SNE/MA and GB yellowtail flounder stock areas. Specifically, current regulations cap yellowtail flounder harvest from scallop access areas at 10 percent of the “total TAC” for each of the stock areas. In light of the ACL components, “total TAC” means “total ACL.” For FY 2011, this means 10 percent of 1,416 mt (141.6 mt) for GB yellowtail flounder, as listed in Table 11. This action updates the existing allocation of 0.2 percent of the U.S. ABC for GB and GOM haddock to the mid-water trawl fishery based on changes to the GB haddock ABC described above. The values for the allocations to the mid-water trawl fishery listed in Table 5 are slightly less than 0.2 percent, due to the 7-percent reduction of these allocations to account for management uncertainty for this stock. For example, the FY 2011 ABC of 32,244 mt was multiplied by 0.002 (32,244 mt × .002 = 68.5 mt), and then reduced by 4.79 mt (68.5 mt × 0.07 = 4.79 mt) to arrive at the proposed allocation of 64 mt. Because the herring fishery already has AMs associated with this allocation that were developed as part of FW 43 (August 15, 2006; 71 FR 46871), all of the haddock allocations to the mid-water trawl fishery are characterized as sub-ACLs. Tables 5 through 8 list the distribution of the total ACL for stocks affected by measures in FW 45 to the groundfish fishery, the scallop fishery, the mid-water trawl herring fishery, state waters fisheries, and other fishery sub-components, such as exempted fisheries. A full list of the FY 2011 ACLs will be sent to NE multispecies permit holders and posted on the NMFS Northeast Regional Office Web site ( http://www.nero.noaa.gov ). As noted in the FW 44 final rule, while ACLs are specified through FY 2012 for most stocks, it is likely that the Council will adopt ACLs for FYs 2012 through 2014 though a future Council action. Therefore, ACLs specified through FY 2012 in FW 44 and this action will only be implemented if the anticipated Council action is delayed. In contrast, the pollock ACLs are not expected to be revisited until FY 2013, with any changes effective for FY 2014. The ACL listed in Table 5 for white hake corrects an error published in Table 4 of both the FW 44 proposed (February 1, 2010; 75 FR 5021) and final rules, respectively, that listed the commercial sub-ACL for white hake for FY 2011 as 2,566 mt (the FY 2010 value) instead of the correct value of 2,974 mt. Table 5—Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011 [Mt, live weight] Stock Total ACL Groundfish sub-ACL Scallop fishery Mid-water trawl herring fishery State waters ACL sub- component Other ACL sub- components GB cod 4,540 4,301 0 0 48 191 GB haddock 32,616 30,840 0 64 342 1,370 SNE/MA yellowtail flounder 641 524 82 0 0 27 White hake 3,138 2,974 0 0 33 132 Pollock 16,166 13,952 0 0 769 1,445 Table 6—Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2012 [Mt, live weight] Stock Total ACL Groundfish sub-ACL Scallop fishery Mid-water trawl herring fishery State waters ACL sub- component Other ACL sub- components GB cod * 5,109 4,841 0 0 54 215 GB haddock * 27,637 26,132 0 54 290 1,161 SNE/MA Yellowtail flounder 936 759 127 0 0 40 White hake 3,465 3,283 0 0 36 146 Pollock 14,736 12,612 0 0 754 1,370 * Preliminary estimate that may be revised in 2012 based on TRAC and TMGC considerations. Table 7—Pollock Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2013 [Mt, live weight] Stock Total ACL Groundfish sub-ACL Scallop fishery Mid-water trawl herring fishery State waters ACL sub- component Other ACL sub- components Pollock 14,927 12,791 0 0 756 1,380 Table 8—Pollock Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2014 [Mt, live weight] Stock Total ACL Groundfish sub-ACL Scallop fishery Mid-water trawl herring fishery State waters ACL sub- component Other ACL sub- components Pollock 15,308 13,148 0 0 760 1,400 The commercial groundfish sub-ACL is further divided into the non-sector (common pool vessels) sub-ACL and the sector sub-ACL, based on the total vessel/permit enrollment in all sectors and the cumulative Potential Sector Contributions (PSCs) associated with those sectors. Table 9 lists the preliminary distribution of the groundfish sub-ACL between common pool and sectors based on rosters submitted to NMFS as of December 1, 2010. FY 2011 sector rosters will not be finalized until May 1, 2011, because the owners of individual permits signed up to participate in sectors have until April 30, 2011, to drop out of a sector and fish in the common pool and can either join a sector or change its sector affiliation based on an ownership change that occurred after December 1, 2011. Therefore, it is possible that the FY 2011 sector sub-ACL listed in Table 9 and the final rule to approve the FY 2011 sector operations plans will be changed at a later date. Based on the final sector rosters, NMFS intends to publish a rule in early May 2011 to modify these sub-ACLs, and notify the public if these numbers change. In addition, it is almost certain that all of the FY 2012 sub-ACLs for the common pool and sectors will change and be re-specified prior to FY 2012 due to annual changes to the sector rosters and changes to the ABCs for GB cod, GB haddock, and GB yellowtail flounder based on the specification of Canadian TACs for these stocks, as described above in Item 5 of this preamble. Table 9—Preliminary Distribution of Groundfish Sub-ACL Between Common Pool and Sector Vessels [Mt, live weight]* Stock Groundfish sub-ACL FY 2011 FY 2012 Common pool sub-ACL FY 2011 FY 2012 Sector sub-ACL FY 2011 FY 2012 GB cod 4,301 4,841 99 111 4,202 4,730 GB haddock 30,840 26,132 129 109 30,711 26,023 GB yellowtail flounder: Proposed in FW 45 ** 790.7 686.3 23.7 20.6 767 665.7 Emergency Action *** 1,142 1,142 17.4 17.4 1,124.6 1,124.6 White hake 2,974 3,283 35 39 2,939 3,244 Pollock 13,952 12,612 138 125 13,814 12,487 * Preliminary estimate that may be revised based on updated sector rosters and TRAC and TMGC considerations. ** These values represent an increase from the ACLs adopted by the Council in FW 45, as described further in Item 5 of this preamble. *** These values represent an estimate of the ACLs adopted by the Council in FW 45 based upon preliminary sector roster information and do not reflect updated rosters submitted to NMFS. 5. Annual Specifications for the U.S./Canada Management Area Annual TACs for transboundary stocks jointly managed with Canada as part of the Understanding (Eastern GB cod, Eastern GB haddock, and GB yellowtail flounder) are determined through a process involving the Council, the TMGC, and the U.S./Canada Steering Committee. The recommended FY 2011 TACs for Eastern GB cod and Eastern GB haddock were based on the most recent stock assessments (TRAC Status Reports for 2010), and the fishing mortality strategy shared by NMFS and the DFO. The TMGC concluded that the most appropriate combined U.S./Canada TAC for Eastern GB cod and Eastern GB haddock for FY 2011 is 1,050 mt and 22,000 mt, respectively. The annual allocation shares between countries for FY 2011 are based on a combination of historical catches (10-percent weighting) and resource distribution based on trawl surveys (90-percent weighting). Applying this formula results in an allocation of 19 percent of the shared Eastern GB cod TAC to the U.S. and 81 percent for Canada, or a FY 2011 quota of 200 mt for the U.S. and 850 mt for Canada. Applying the same formula for Eastern GB haddock results in an allocation of 43 percent of the shared TAC to the U.S. and 57 percent to Canada, or a FY 2011 quota of 9,640 mt for the U.S. and 12,540 mt for Canada. For GB yellowtail flounder, the TMGC originally recommended, the Council adopted, and NMFS approved under FW 45, a combined U.S./Canada Management Area TAC of 1,900 mt, resulting in a FY 2011 quota of 1,045 mt for the U.S. and an 855 mt quota for Canada. However, the TMGC agreed to a revised shared GB yellowtail flounder TAC for FY 2011 of 2,650 mt that is being implemented through a parallel emergency action, based on the new flexibility provided by IFACA for FY 2011, as discussed above in this preamble. Table 10 lists the FY 2011 U.S./Canada Management Area TACs for all stocks managed by the Understanding, with the FY 2011 GB yellowtail flounder TAC reflecting the increased TAC recommended by the TMGC following its February 9, 2011, conference call. Table 10—2011 U.S./Canada TACs (Mt, Live Weight) and Percentage Shares [In parentheses] Eastern GB cod Eastern GB haddock GB Yellowtail flounder Proposed in FW 45 Total Shared TAC 1,050 22,000 1,900 U.S. TAC 200 (19%) 9,640 (43%) 1,045 (55%) Canada TAC 850 (81%) 12,540 (57%) 855 (45%) Emergency Action Total Shared TAC 1,050 22,000 2,650 U.S. TAC 200 (19%) 9,640 (43%) 1,458 (55%) Canada TAC 850 (81%) 12,540 (57%) 1,193 (45%) Because the U.S./Canada Management Area represents the entire stock area for GB yellowtail flounder, the U.S./Canada Management Area TAC that is available to the U.S. fishery also represents the ABC for this stock. After management uncertainty is deducted from the ABC, the amount that is available to the U.S. fishery represents the ACL for this stock. Thus, the revised GB yellowtail flounder TAC specified in this action also requires applicable changes to the ACL, and how the ACL for this stock is distributed to the various components of the fishery that catch this stock that were adopted by the Council in FW 45. The revised GB yellowtail flounder ACL, sub-ACL, and ACL sub-components are specified in Tables 11 and 12 for FYs 2011 and 2012, respectively. The revised U.S./Canada TAC for GB yellowtail flounder does not affect the sub-ACL for the scallop fishery specified by FW 45 as 200.8 mt. Table 11—GB Yellowtail Flounder Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2011 [Mt, live weight] Action Total ACL * Groundfish sub-ACL Scallop fishery Mid-water trawl herring fishery State waters ACL sub- component Other ACL sub- components Proposed in FW 45 1,045 790.7 200.8 0 0 53.5 Emergency Action 1,416 1,142 200.8 0 0 73 Table 12—Revised GB Yellowtail Flounder Total ACL, Sub-ACL, and ACL-Subcomponents for FY 2012 [Mt, live weight] Action Total ACL Groundfish sub-ACL Scallop fishery Mid-water trawl herring fishery State waters ACL sub- component Other ACL sub- components Proposed in FW 45 1,045 686.3 307.5 0 0 51.2 Emergency Action 1,426 1,046 307.5 0 0 77 * Preliminary estimate that may be revised in 2011 based on TRAC and TMGC considerations. The regulations related to the Understanding, promulgated by the final rule implementing Amendment 13, state that “any overages of the GB cod, haddock, or yellowtail flounder TACs that occur in a given fishing year will be subtracted from the respective TAC in the following fishing year.” Therefore, if an analysis of the catch of the shared stocks by U.S. vessels indicates that an over-harvest occurred during FY 2010, the pertinent components of the ACL would be adjusted downward in order to be consistent with the FMP and Understanding. If an adjustment to one of the FY 2011 TACs of cod, haddock, or yellowtail flounder is necessary, it will be done consistent with the Administrative Procedure Act, and the fishing industry will also be notified. 6. Incidental Catch TACs and Allocations to Special Management Programs Incidental catch TACs are specified for certain stocks of concern (i.e., stocks that are overfished or subject to overfishing) for common pool vessels fishing in the special management programs (i.e., special access programs (SAPs) and the Regular B DAS Program), in order to limit the amount of catch of these stocks caught under such programs. The incidental catch TACs apply to catch (landings and discards) on trips that end on a Category B DAS (either Regular or Reserve B DAS). Catch of such stocks on trips that start under a Category B DAS and then flip to a Category A DAS do not accrue toward incidental catch TACs, but rather the overall common pool sub-ACL for that stock. Because pollock is no longer considered overfished or subject to overfishing, this action removes this species from the list of stocks of concern, and eliminates the incidental catch TAC for this stock. This final rule specifies incidental catch TACs applicable to the NE multispecies special management programs for FYs 2011 and 2012, based on the common pool sub-ACLs listed in Item 4 of this preamble (see Tables 13-15). As noted above, FY 2011 sector rosters will not be finalized until May 1, 2011. Therefore, the amount of the common pool sub-ACL may change based upon changes to the number of vessels participating in the common pool during FY 2011. Based on the final rosters, NMFS will publish a rule in early May 2011 to modify these sub-ACLs, and notify the public if these numbers change. Table 13—Preliminary Common pool Incidental Catch TACs by Stock for FY 2011—2012 [Mt, live weight] Stock Percentage of sub-ACL 2011 Incidental catch TAC 2012 Incidental catch TAC GB cod 2 2.0 2.2 GOM cod 1 1.3 1.3 GB yellowtail flounder 2 0.3 0.3 CC/GOM yellowtail flounder 1 0.3 0.4 SNE/MA yellowtail flounder 1 1.1 1.7 American plaice 5 3.9 4.1 Witch flounder 5 1.2 1.2 SNE/MA winter flounder 1 7.3 7.6 GB winter flounder 2 0.3 0.3 White hake 2 0.7 0.8 Table 14—Distribution of Incidental Catch TACs Among Special Management Programs [Mt, live weight] Stock Regular B DAS program Closed area I hook gear haddock SAP (%) Eastern U.S./Canada haddock SAP (%) GB cod 50 16 34 GOM cod 100 na na GB yellowtail flounder 50 na 50 CC/GOM yellowtail flounder 100 na na SNE/MA yellowtail flounder 100 na na Plaice 100 na na Witch flounder 100 na na SNE/MA winter flounder 100 na na GB winter flounder 50 na 50 White hake 100 na na Pollock 50 16 34 Table 15—Incidental Catch TACs for Special Management Programs by Stock for FY 2011-2012 [Mt, live weight] Stock Regular B DAS program FY 2011 FY 2012 Closed area I hook gear haddock SAP FY 2011 FY 2012 Eastern U.S./Canada haddock SAP FY 2011 FY 2012 GB cod 1.0 1.1 0.3 0.4 0.7 0.8 GOM cod 1.3 1.3 na na na na GB yellowtail flounder 0.15 0.15 na na 0.1 0.1 CC/GOM yellowtail flounder 0.3 0.4 na na na na SNE/MA yellowtail flounder 1.1 1.7 na na na na American plaice 3.9 4.1 na na na na Witch flounder 1.2 1.2 na na na na SNE/MA winter flounder 7.3 7.6 na na na na GB winter flounder 0.1 0.2 na na 0.1 0.2 White hake 0.7 0.8 na na na na In addition to the incidental catch TAC for GB cod, overall fishing effort by both common pool and sector vessels in the Closed Area I Hook Gear Haddock SAP is also controlled by an overall TAC for GB haddock, the target species for this SAP. For FY 2011, the overall haddock TAC for the Closed Area I Hook Gear Haddock SAP applicable to both common pool and sector vessels participating in this SAP is 3157.5 mt (6,961,096 lb or 3,157,553 kg) based on TACs specified in FW 44. Once this overall haddock TAC is caught, the Closed Area I Hook Gear Haddock SAP will be closed to all groundfish vessels for the remainder of FY 2011. 7. Great South Channel Exemption Area This action eliminates the yellowtail flounder spawning closure areas within the Great South Channel Exemption Area, and allows all scallop vessels, including limited access general category (LAGC) scallop vessels, to fish within this area throughout the entire year in accordance with applicable scallop regulations. Since the August 31, 2006, rulemaking (71 FR 51779) that created the Great South Channel Exemption Area and the associated yellowtail flounder spawning closure areas, the general category scallop permits have become limited access permits subject to an individual fishing quota (IFQ) that limit the amount of scallops and, therefore, regulated species and ocean pout, particularly yellowtail flounder, caught by these vessels. Thus, the main justification for the spawning protection areas for LAGC scallop vessels is no longer relevant. 8. GOM Cod Spawning Protection Area To protect spawning aggregations of GOM cod and prevent fishing from interfering with spawning activity, this final rule creates the GOM Cod Spawning Protection Area. This area is rectangular in shape and is located just south of the Isle of Shoals off the New Hampshire coastline, with its long axis oriented in a northwest to southeast direction. All commercial fishing vessels using gear capable of catching groundfish are prohibited from fishing within the proposed area from June 1 through June 30 of each year, while all recreational vessels (private and charter/party vessels) are prohibited from using gear capable of catching groundfish in the area from April 1 through June 30 of each year. For commercial vessels, only vessels fishing with “exempted gear,” as defined in the current regulations, are allowed into this area during the closure periods. Exempted gear includes pelagic hook and line gear, pelagic longline gear, spears, rakes, diving gear, cast nets, tongs, harpoons, weirs, dipnets, stop nets, pound nets, pelagic gillnets, pots and traps, shrimp trawls with a properly configured grate, and surfclam and ocean quahog dredges. Therefore, because midwater trawl gear and purse seine gear is not listed as exempted gear, vessels fishing with these gear types may not fish in this area during June of each year. Only pelagic hook-and-line gear, as defined in the current regulations, is allowed to be used in the area by recreational vessels. The catch or possession of any regulated species or ocean pout by vessels using the exempted gear from April 1 through June 30 of each year is prohibited. Both recreational and commercial vessels are allowed to transit the proposed area, provided all gear is stowed according to existing regulations. 9. Handgear A and B Measures Cod Trip Limit Through this final rule, the cod trip limits applicable to NE multispecies Handgear A (limited access) and B (open access) vessels are revised to be specific to either the GOM or GB cod stock, including any adjustments to such trip limits. Handgear A vessels are subject to an initial cod limit of 300 lb (135 kg) per trip for both the GOM and GB cod stocks, until NMFS adjusts the cod trip limit applicable to common pool vessels fishing under a NE multispecies DAS for either of these stocks below 300 lb (135 kg) per trip. Once either the GOM or the GB cod trip limit for common pool DAS vessels is reduced below 300 lb (135 kg) per DAS, the applicable cod trip limit for Handgear A vessels will be adjusted to be the same as the daily limit for common pool DAS vessels. For example, if only the GOM cod trip limit for NE multispecies DAS vessels was reduced to 250 lb (113.4 kg) per DAS, then the cod trip limit for a vessel issued a Handgear A category permit that is fishing in the GOM Regulated Mesh Area (i.e., the area specified for the GOM cod trip limit) would also be reduced to 250 lb (113.4 kg) per trip; however, under this example, the cod trip limit for a Handgear A vessel fishing for GB cod south of the GOM Regulated Mesh Area (RMA) (the GB cod stock area is considered the GB, SNE, and MA RMAs) would be maintained at 300 lb (135 kg) per trip. The initial Handgear B cod limit for both the GOM and GB stocks is maintained at 75 lb (90.7 kg) per trip, but will be adjusted proportional (rounded up to the nearest 25 lb (11.4 kg)) to any changes in the daily GOM or GB cod trip limits for DAS vessels in the future, as necessary. For example, if the GOM cod trip limit was reduced by 50 percent from 800 lb (362.9 kg) per DAS to 400 lb (181.4 kg) per DAS, then the cod trip limit for a Handgear B vessel fishing in the GOM Regulated Mesh Area would also be reduced by 50 percent to 37.5 lb (17 kg), rounded to the nearest 25 lb (11.3 kg), or 50 lb (22.7 kg) per trip. In this example, the cod trip limit for a Handgear B vessel fishing for GB cod south of the GOM RMA would be maintained at 75 lb (90.7 kg) per trip. To fish for GB cod south of the GOM Regulated Mesh Area for a particular period of time, the owner or operator of a Handgear A or B vessel must obtain and retain on board a paper letter of authorization (LOA) from the Regional Administrator (RA) to fish, unless otherwise noted below. The minimum participation period for this LOA is 7 consecutive days to minimize the administrative burden of this provision, consistent with existing practice for LOAs issued to DAS vessels. Once a vessel owner or operator has obtained a paper LOA to fish south of the GOM RMA, the owner or operator may not fish in the GOM RMA for the duration of the LOA. This requirement is necessary to more effectively enforce this measure. Alternatively, the owner or operator of a Handgear A permitted vessel, who does not obtain the paper LOA, but elects or is required to have a VMS may fish for GB cod south of the GOM RMA by declaring an intent to fish for GB cod south of the GOM RMA prior to each trip via a vessel monitoring system (VMS) (i.e., when fishing in multiple broad stock areas on the same trip). If a vessel declares via VMS instead of obtaining a paper LOA, this VMS declaration is required on a trip-by-trip basis, and no minimum participation period is necessary. These declarations enable at-sea enforcement personnel to identify the applicable cod trip limits and effectively enforce the appropriate regulations during boarding operations. Access to Seasonal Closure Areas To ensure that handgear-permitted vessels are provided an opportunity to fish during at least the early part of the FY, this action exempts both Handgear A and B vessels from the GB Seasonal Closure Area defined in § 648.81(g), and allows Handgear A vessels to also fish in the Sector Rolling Closure Areas defined in § 648.81(f)(2)(vi)(A) through (C), and depicted in section 4.3.3 of FW 45. These latter areas represent smaller portions of the GOM Rolling Closure Areas, and enable Handgear A vessels fishing in the GOM a greater chance at catching some of the available sub-ACLs for cod and haddock during a particular FY before such trip limits are reduced to prevent the ACL from being exceeded. 10. Dockside/Roving Monitor Requirements Delay in Requirement for Industry To Fund Dockside/Roving Monitors To address concerns regarding the ability of the fishing industry to pay for the costs of a dockside/roving monitoring program, as originally implemented under Amendment 16 in 2010, this action delays the industry's responsibility for paying for dockside/roving monitoring coverage until FY 2013. None of the costs associated with dockside/roving monitors during FYs 2011 and 2012 will be imposed upon the owner or operator of a NE multispecies vessel. NMFS will attempt to provide sufficient dockside/roving monitoring coverage to observe the offloads of up to 100 percent of sector trips and, starting in FY 2012, common pool trips as well, if funds are available. If funds are not available for monitoring 100 percent of commercial groundfish trips, NMFS must first provide dockside/roving monitor coverage to trips that do not have an observer, at-sea monitor, or an approved electronic monitoring program. To enable dockside/roving monitors to more easily identify trips that are assigned an observer or at-sea monitor, vessels must declare whether an observer or at-sea monitor has been assigned to that trip via the trip-start hail report. For FY 2011, NMFS estimates that it has sufficient funding to cover approximately 100 percent of sector trips that are not assigned an observer or at-sea monitor. NMFS will specify coverage levels for FY 2012 based upon available NMFS funding. Dockside/Roving Monitoring Program Requirements Beginning in FY 2013 Starting in 2013, sectors must develop and pay for a dockside/roving monitoring program as part of their annual operations plans, common pool vessels will be subject to dockside/roving monitoring upon the transition to a trimester TAC AM, vessels must comply with the trip-start and trip-end hail reporting requirements associated with at-sea and dockside monitoring programs, and dockside/roving monitoring service providers must observe the landings of 20 percent of all common pool and sector trips in a statistically random manner. To facilitate administration and compliance with the dockside/roving monitoring operational standards specified at § 648.87(b)(5), this action revises the regulations at § 648.82(n)(2)(iv) to clearly state that the owner or operator of each common pool vessel subject to dockside/roving monitoring requirements must contract for such services with a service provider approved by NMFS by 2013. The need for vessel owners to contract with a specific service provider is necessary in the absence of any NMFS-controlled dockside/roving monitoring program in which NMFS can act as a mediator between the fishing industry and approved service providers. Further, because each individual permit is considered a separate legal entity, NMFS is not inclined to mandate that common pool vessels use a particular service provider in a particular FY in order to increase competition among service providers and potentially decrease costs to the affected vessel owners. Groups of vessel owners, however, may elect to contract with the same service provider to help lower the costs associated with such requirements. Exemption of the Dockside/Roving Monitor Requirements for Certain Permit Categories Vessels issued a limited access NE multispecies Handgear A, Handgear B, and Small Vessel category permit are exempt from any dockside/roving monitoring requirements when operating in the common pool. Given this exemption, it is not possible for dockside/roving monitor service providers to provide statistically random coverage of all common pool trips, as required under Amendment 16, because not all common pool trips are subject to dockside/roving monitoring requirements. Therefore, the dockside/roving monitoring coverage regulations have been revised to accommodate this exemption, and specify that service providers must provide random coverage of all trips subject to the dockside/roving monitoring requirements. Trip-End Hail Requirement To facilitate dockside intercepts by both state and Federal enforcement personnel, beginning in FY 2011, all sector vessels and common pool vessels fishing under a DAS must submit a trip-end hail report via VMS prior to returning to port on each trip. Vessels subject to dockside monitoring (i.e., sector vessels starting in FY 2010 and common pool vessels starting in FY 2012) are required to submit both a trip-start and a trip-end hail report for that trip, consistent with current practice. The trip-end hail report must contain the same information as the trip-end hail report implemented by Amendment 16. Inspection of Fish Holds Amendment 16 established approval requirements for entities providing dockside/roving monitoring services. These standards included hiring individual dockside monitors that were capable of climbing ladders and inspecting fish holds. For FY 2010, NMFS developed operational standards necessary to implement the Amendment 16 dockside monitoring provisions, based on a pilot dockside/roving monitoring program conducted during the summer of 2009. These standards did not require dockside monitors to inspect fish holds for FY 2010. However, based on further evaluation of the performance of the dockside monitoring program and consideration of concerns expressed by enforcement personnel, this action now requires that dockside monitors inspect the fish holds for any trip that is assigned a dockside/roving monitor beginning in FY 2011. This requirement will enhance the enforceability of existing provisions and minimize the incentives to under-report/misreport the amount of regulated species landed. 11. Sector Measures Distribution of the PSC From Cancelled Permits As described in Amendment 16, a PSC represents an individual permit's portion of the total historical landings of each regulated species or ocean pout stock during FYs 1996-2006 by all permits, including those in confirmation of permit history (CPH), that were eligible to participate in the NE multispecies fishery as of May 1, 2008. If a permit had been cancelled after May 1, 2008, its historic landings between FYs 1996-2006 have still been used to calculate the total landings by eligible permits. As noted above, the current regulations calculate the ACL available to sector and common pool vessels based on the cumulative PSCs of each permit participating in each sector. By default, if the owner of a particular permit has not elected to participate in a sector, that permit is considered to be participating in the common pool, and its PSC contributes to the sub-ACL available to the common pool at large. Similarly, if a permit or CPH is permanently cancelled for any reason, that permit or CPH cannot participate in sectors, or any fishery, and the PSC is used to contribute to the sub-ACL available to the common pool. Thus, the PSCs of cancelled permits artificially inflate the PSCs of those permits operating in the common pool and are not equitably distributed among all permits remaining in the fishery. Beginning in FY 2011, the PSC of all valid permits, including those held in CPH, that are eligible to participate in the fishery must be recalculated as of June 1 of each year, unless another date is specified by the RA, to redistribute the landings histories of cancelled permits to all remaining eligible permits. To do so, the PSCs for each stock calculated pursuant to the process specified in Amendment 16 must be multiplied by a factor of “1/PSC of the remaining permits.” These recalculated PSCs shall then be used to calculate ACEs for each sector during the following FY. For FY 2012 and beyond, a PSC that is calculated on June 1, shall affect sector ACE for the FY that begins on May 1, of the following year. This provision means that each permit's PSC may increase on a yearly basis to reflect its higher portion of the historic landings of each regulated species and ocean pout stock due to the removal of the landings histories of any permits that were cancelled by June 1 of each year. This will ensure that the yearly PSC calculations reflect eligible permits at the beginning of each FY (May 1), and allow NMFS time to process such renewals. On or about July 1 of each year, NMFS will inform permit holders of updated PSCs through a permit holder letter sent to owners of a valid limited access NE multispecies permit or CPH. The FW 45 proposed rule specified that the RA would recalculate FY 2011 PSCs for each permit using valid permits as of May 1, 2011, to update PSCs for FY 2011 and reflect permits cancelled through FY 2010. However, to ensure that permit owners had sufficient information to make informed decisions about whether or not to participate in sectors before the start of FY 2011 on May 1, 2011, the RA recalculated FY 2011 PSCs for each permit using valid permits as of February 11, 2011, to reflect permits cancelled through that date. This information was sent out to permit holders on February 11, 2011, to facilitate their decision to join a sector based on measures proposed in FW 45. The RA will recalculate PSCs for each permit as of June 1, 2011, to account for permits cancelled through FY 2010 and determine the PSCs that will be used to calculate FY 2012 sector ACE for each stock, consistent with the procedures outlined above. Operations Plan Requirements Amendment 16 specified that sectors must submit final rosters, proposed operations plans, including rosters and associated environmental analyses by September 1, so that NMFS could review such documents as part of the process to approve sector operations for the following FY. Based on industry input, this action increases the flexibility of these deadlines by requiring sectors to submit preliminary rosters and proposed operations plans to NMFS by September 1, and final rosters by December 1 of each year. Following further industry input submitted during the public comment period for this action and ongoing discussions with industry participants, NMFS will allow for a limited opportunity for additional changes to FY 2011 sector rosters to accommodate changes in vessel ownership that occurred after the submission of final sector rosters on December 1, 2010. This window to reopen FY 2011 sector rosters began on March 24, 2011, and will end on April 30, 2011. A sector is not required to accept additional changes to sector rosters during this window; each sector may decide whether or not a member may leave the sector, and whether or not to accept new members. Reopening the rosters is intended to provide additional flexibility to new permit holders without disrupting the organization of sectors. An announcement of this limited opportunity to reopen sector rosters was sent out to all sector managers on March 16, 2011, and to all limited access NE multispecies permit holders on March 23, 2011. In future years, a window for additional sector roster changes would begin with the publication of proposed measures for the common pool for the following year and end on April 30, and would be limited to ownership changes occurring after the December 1 roster deadline. These measures are designed to provide NMFS with the information it needs to review or conduct environmental analyses associated with draft sector operations plans, while allowing vessel owners additional time to decide whether to participate in sectors, or which sector to join during the following FY. Sector Exemptions To reduce dockside/roving monitoring costs, especially due to infrequent landings of regulated species in more southerly ports, this action allows sectors to request an exemption from the dockside/roving monitoring requirements implemented under Amendment 16. Therefore, because Amendment 16 specified that sectors cannot request an exemption from the existing reporting requirements, this rule removes dockside/roving monitoring requirements from the list of reporting requirements at § 648.87(c)(2)(i). This enables sectors to request exemptions, or at least partial exemptions, from the dockside/roving monitoring requirements to minimize monitoring costs for sector trips targeting monkfish in southern waters, for example. 12. Authorization of New Sectors This final rule authorizes the creation of five new sectors, include the State of Maine Permit Banking Sector, the State of Rhode Island Permit Bank Sector, the State of New Hampshire Permit Bank Sector, the Commonwealth of Massachusetts Permit Bank Sector, and the Sustainable Harvest Sector III, as described in Section 4.2.1 of the FW 45 EA. All operational aspects of these sectors are specified in their annual operations plans, as submitted to NMFS. Details of these operations plans were published in a parallel rulemaking, as noted above. Vessels/permits participating in these sectors must comply with the existing sector provisions, unless otherwise exempted by a future action. 13. Measures for FY 2011 Under RA Authority The FMP provides authority for the RA to implement certain types of inseason management measures for the common pool fishery, the U.S./Canada Management Area, and Special Management Programs, as described further below. Although these measures were not proposed by the Council for implementation through FW 45, this final rule makes the public aware of measures implemented for FY 2011 by the RA. Once effective, the RA may revise these measures, as necessary, to ensure that the objectives of the FMP, including preventing the sub-ACLs from being exceeded, are met during FY 2011. Any necessary adjustments will be implemented through an inseason action consistent with the Administrative Procedures Act and communicated to the affected public. Initial FY 2011 Common Pool Trip Limits The current regulations at § 648.86(o) allow the RA to revise trip limits applicable to common pool vessels if the RA projects that the catch of any NE multispecies stock allocated to common pool vessels will exceed the pertinent sub-ACL in order to prevent exceeding the common pool sub-ACL. Table 16 summarizes the initial FY 2011 common pool trip limits as adjusted by the RA. These initial trip limits were developed after considering changes to the FY 2011 common pool sub-ACLs and sector rosters, catch rates of these stocks during FY 2010, price of fish during FY 2010, bycatch considerations, the potential for differential DAS counting during FY 2011, public comment on proposed trip limits, and other available information. Although the slow catch rate of SNE/MA yellowtail flounder by common pool vessels in FY 2010 suggests that the trip limit could be increased substantially to increase the catch of this stock in FY 2011, due to concerns that a potential increased SNE/MA yellowtail flounder trip limit would increase the bycatch and discard of SNE/MA winter flounder (a stock that cannot be possessed by any vessel to help ensure this stock rebuilds according to the approved rebuilding program), only a small increase in the trip limit for this stock is implemented at this time. Table 16—Initial FY 2011 Trip Limits for the Common Pool Stock Initial FY 2011 limit GOM cod 500 lb (226.8 kg) per DAS, up to 2,000 lb (907.2 kg) per trip. GB cod 2,000 lb (907.2 kg) per DAS, up to 20,000 lb (9,072 kg) per trip. GOM haddock 1,000 lb (453.6 kg) per trip. GB haddock 10,000 lb (4,535.9 kg) per trip. GOM winter flounder 250 lb (113.4 kg) per trip. GB winter flounder 1,000 lb (453.6 kg) per trip. CC/GOM yellowtail flounder 500 lb (226.8 kg) per DAS, up to 2,000 (907.2 kg) per trip. GB yellowtail flounder 1,500 (680.4 kg) per trip. SNE/MA yellowtail flounder 500 lb (226.8 kg), up to 2,000 (907.2 kg) per trip. American plaice unrestricted. Pollock unrestricted. Witch flounder 250 lb (113.4 kg) per trip. White hake 1,500 lb (680.4 kg) per trip. Redfish unrestricted. Differential DAS Counting for Common Pool Vessels Following the implementation of Amendment 16 measures, the FMP requires that the RA implement a differential DAS counting rate for FY 2011 if the catch of the relevant stocks by common pool vessels is projected to exceed the pertinent common pool groundfish sub-ACLs during FY 2010. The differential DAS counting factor that will apply to common pool vessels is based on the proportion of the sub-ACL projected to be caught by common pool vessels during FY 2010, rounded to the nearest tenth. If the RA projects that common pool catch will exceed the sub-ACL for multiple regulated species within a particular area, then the most restrictive differential DAS counting factor will apply. Catch information available through March 19, 2011, indicates that common pool catch of witch flounder during FY 2010 has exceeded the witch flounder sub-ACL by 32 percent. As defined at § 648.82(n)(1)(i), any differential DAS counting rate to address an overage of the witch flounder sub-ACL shall be applied to Category A DAS used in the Offshore GOM Differential DAS Area, the Offshore GB Differential DAS Area, and the Inshore GB Differential DAS Area. Therefore, beginning on May 1, 2011, any Category A DAS used by common pool vessels in the Offshore GOM Differential DAS Area, the Offshore GB Differential DAS Area, and the Inshore GB Differential DAS Area shall be charged at a rate of 1.3:1, or 31 hours for each 24 hr fished (i.e., 1.3 times 24-hr DAS counting), for the time spent fishing in the applicable DAS counting areas specified above. Differential DAS shall accrue based upon the first VMS position into the applicable differential DAS counting area, and the first VMS position outside of the applicable differential DAS counting area. NMFS provides an estimate of the status of the common pool catch throughout the year at the following address: http://www.nero.noaa.gov/ro/fso/reports/common_pool/Common_Pool_Summary.html . Delayed Opening of the Eastern U.S./Canada Area The regulations at § 648.85(a)(3)(iv)(D) provide the RA the authority to adjust various measures in order to optimize the harvest of the transboundary stocks managed under the Understanding. Pursuant to this authority, NMFS is postponing the opening of the Eastern U.S./Canada Area for common pool vessels fishing with trawl gear in FY 2011 from May 1, 2011, through July 31, 2011. This measure delays trawl fishing in the Eastern U.S./Canada Area during the time when cod bycatch is likely to be very high, and should prolong access to this area in order to maximize the catch of available cod, haddock, and yellowtail flounder, as well as other valuable stocks such as winter flounder. Similar to restrictions implemented in FY 2009 and FY 2010, the proposed rule for this action proposed to limit the amount of cod that could be caught by common pool vessels fishing with non-trawl gear in the Eastern U.S./Canada Area prior to August 1, 2011, to 5 percent of the Eastern GB cod TAC available for common pool vessels. This was intended to further constrain fishing mortality on GB cod and prolong access to this area. The proposed rule for this action inaccurately specified this cod bycatch limit as 10 mt, but, inadvertently, that was based upon 5 percent of the Eastern GB cod TAC available to all groundfish vessels, not just common pool vessels as intended. The correct number for cod bycatch for just common pool vessels in FY 2011 is 477 lb (216.4 kg), based on a calculation of vessels that will be in the common pool according to sector rosters submitted to NMFS as of December 1, 2010. Because this bycatch amount is very low and difficult to effectively monitor in a timely manner and because no common pool vessels actually fished in the Eastern U.S./Canada Area during FY 2010, NMFS has not implemented the proposed cod bycatch limitation for common pool vessels fishing with non-trawl gear in the Eastern U.S./Canada Area from May 1, 2011, through July 31, 2011. Closed Area II Yellowtail Flounder/Haddock SAP The current regulations provide the RA with the authority to determine the total number of allowed trips by common pool vessels into the Closed Area II Yellowtail Flounder/Haddock SAP to target yellowtail flounder based on several criteria, including the GB yellowtail flounder TAC and the amount of GB yellowtail flounder caught outside of the SAP. As implemented in 2005 by FW 40B (June 1, 2005; 70 FR 31323), no trips to this SAP should be allocated if the available GB yellowtail flounder catch, after considering the amount of catch of this stock that would occur outside of the SAP, is insufficient to support at least 150 trips with a 15,000-lb (6,804-kg) trip limit (i.e., 2,250,000 lb (1,020,600 kg)). The difference between the minimum level of GB yellowtail flounder sub-ACL necessary to allow targeting of yellowtail flounder within the Closed Area II Yellowtail Flounder/Haddock SAP and the updated FY 2011 GB yellowtail flounder sub-ACL of 1,142 mt (2,517,679 lb; or 1,142,019 kg) specified in Table 11 is only 267,679 lb (121,419 kg). Based on past fishing practices, it is likely that catch rates outside of this SAP are more than adequate to fully harvest the FY 2011 GB yellowtail flounder sub-ACL, leaving little, if any, quota available to open this SAP to targeting GB yellowtail flounder. Thus, the FY 2011 GB yellowtail flounder sub-ACL is considered insufficient to warrant opening of this SAP to targeting yellowtail flounder. Therefore, based on existing authority, no trips are allocated by this final rule to target yellowtail flounder within the Closed Area II Yellowtail Flounder/Haddock SAP for FY 2011. Further, as required at § 648.85(a)(3)(iii)(B) and (x)(A), this final rule specifies that the SAP is open from August 1, 2011, through January 31, 2012, and prohibits the use of the flounder net by both common pool and sector vessels in this SAP during FY 2011. All limited access NE multispecies vessels can still fish in this SAP during FY 2011, but must only fish with a haddock separator trawl, a Ruhle trawl, or hook gear while in the SAP area. 14. Corrections and Clarifications This final rule corrects or clarifies a number of inadvertent errors, omissions, and provisions in existing regulations in order to ensure consistency with, and accurately reflect the intent of previous actions under the FMP, or to more effectively administer and enforce existing provisions pursuant to the authority provided to the Secretary in section 305(d) of the Magnuson-Stevens Act. The following measures are listed in the order in which they appear in the regulations. The proposed rule for this action discusses the reason why such corrections are necessary. Amendment 16 requires the owner or operator of any vessel issued a limited access NE multispecies permit fishing on either a common pool or a sector trip to declare its intent to fish within one or more of the NE multispecies broad stock areas (BSAs) and provide the vessel trip report (VTR) serial number for the first page of the VTR for that particular trip via VMS or interactive voice response (IVR) system prior to leaving port at the start of a fishing trip and to submit a VMS catch report detailing the amount of each species retained in each BSA for trips that fish in more than one BSA per trip. To eliminate duplicative reporting requirements, this final rule modifies the timing requirements for the submission of the VMS catch report in § 648.10(k)(1) to require all limited access NE multispecies vessels, regardless of the number of broad stock areas fished, to submit the VMS catch report listing the VTR serial number applicable for that trip prior to crossing the VMS demarcation line upon its return to port following each fishing trip on which regulated species were caught. To further clarify the administration and enforcement of dockside/roving monitoring provisions originally implemented under Amendment 16 and revised by this action, this action adds a prohibition at § 648.14(k)(18)(i)(D) to state that, if the offloads of a particular trip are assigned to be monitored by a dockside/roving monitor, the vessel cannot offload its catch until the assigned dockside/roving monitor arrives at the designated offloading site specified by the vessel owner or operator. To close a perceived loophole that could have allowed a vessel carrying passengers for hire to possess and land fish smaller than the minimum fish size specified for commercial vessels and to sell their catch from such operations, this action revises the regulations at § 648.82(a)(2) to also state that, in addition to a vessel fishing under a NE multispecies DAS, a vessel issued a NE multispecies limited access permit may not fish under a sector trip or under the limited access NE multispecies Small Vessel Category or Handgear A permits, if such vessel carries passengers for hire for any portion of a fishing trip. This action modifies the phrase “vessels participating in sectors” to read “vessels/permits participating in sectors” in the regulations at §§ 648.87(b)(1)(i)(A) and 648.90(a)(4)(iii)(E)( 2 ) to reflect that vessels issued permits, including those held in CPH, can participate in sectors. To provide more flexibility to sectors, Amendment 16 allowed the transfer of ACE between sectors, and also permitted carrying over ACE from one FY to the next. To clarify how the ACE carry over provision shall be applied, this action revises the regulations at § 648.87(b)(1)(i)(C) to state that a NE multispecies sector may carry over up to 10 percent of its allocated ACE for each stock, with the exception of GB yellowtail flounder, into the following FY. This provision limits the applicability of ACE carry over to only 10 percent of the ACE allocated to a sector at the start of a FY and not 10 percent of the total ACE available to a sector at the end of the fishing year, which may include any ACE acquired from another sector as part of an ACE transfer. The preamble of the proposed rule for this action included text that could be interpreted to mean that a sector could not carry over any ACE if it had harvested more than 90 percent of its original ACE allocation for that stock by the end of the FY. This interpretation does not reflect the intent of NMFS in clarifying the amount of ACE that can be carried over into the next FY. Consistent with the proposed regulatory text, the intent of NMFS was to merely clarify that the amount of ACE that can be carried over for each stock shall be calculated based upon the amount of ACE originally allocated to that sector. For example, if a sector was originally allocated 100 mt of GOM cod at the beginning of FY 2010, that sector would be allowed to carry over up to 10 mt of GOM cod into FY 2011, even if it had acquired an additional 50 mt from another sector through an ACE transfer. Thus, the amount of ACE that could be carried over into FY 2011 would be based upon the 100 mt originally allocated to that sector for FY 2010, not the 150 mt that the sector had ultimately acquired by the end of FY 2010. Finally, NMFS clarifies that it interprets the term “unused ACE” in the context of the regulations at § 648.87(b)(1)(i)(C) to mean any ACE that has not been fished by the sector originally allocated that ACE, or leased to another sector during that FY. In addition to the revisions to the calculation of PSCs noted above for cancelled permits, this final rule revises the regulatory text describing the calculation of PSCs at § 648.87(b)(1)(i)(E)( 1 ) and (b)(1)(i)(E)( 2 ) to clarify and more accurately reflect the processes that were, and continue to be, applied to implement such calculations. Specifically, this rule clarifies that the landings histories of any limited access NE multispecies permit, including those that were put into CPH, and those of an open access NE multispecies handgear permit that eventually qualified for, and resulted in, the issuance of a limited access NE multispecies Handgear A permit during FYs 1996 through 2006 shall be used to calculate the PSCs for each valid permit as of June 1 each year. In addition, these revisions include an example of the landings of regulated species and ocean pout that may not be used to calculate PSC; namely, any landings of yellowtail flounder by scallop vessels operating under a scallop DAS. Finally, this rule clarifies that the PSC that results from such a calculation is considered the PSC for each stock. The regulations at §§ 648.87(b)(1)(iii)(C) and (viii) allow sectors to transfer ACE for up to 2 weeks into the subsequent FY, and provide NMFS with 61 days to process ACE transfers and determine whether a sector has exceeded its ACE for the previous FY. Such measures are dependent upon the completion of NMFS' evaluation of year-end sector catch, including sector ACE overages, and may not fully account for the timing of NMFS' year-end evaluation process. Therefore, to allow for additional time to complete these tasks, if necessary, the phrase “unless otherwise instructed by NMFS” is being added to reference to the 2-week and 61-day deadlines in the regulatory text. Comments and Responses on Measures Proposed in the FW 45 Proposed Rule Twenty-four comments were received during the comment period on the proposed rule for this action from 13 individuals, 4 fishing industry groups (the Northeast Hook Fisherman's Association (NEHFA), the Associated Fisheries of Maine (AFM), the Northeast Seafood Coalition (NSC), and the Northeast Sector Support Network (NSSN)), 4 conservation groups (Center for Biological Diversity (CBD), Oceana, Food and Water Watch (FWW), and PEW Environmental Trusts (PEW)), 1 dockside/roving monitor service provider (AIS, Inc.), 1 community group (Penobscot East Resource Center (PERC)), and the Council. Only comments that were applicable to the proposed measures, including the analyses used to support these measures, are addressed in this preamble. Comments on the overarching sector measures implemented in 2010 by Amendment 16, or the anticipated or realized impacts of those measures, are not addressed in this preamble. Please note in considering the responses to comments below that NMFS may only approve or disapprove measures proposed in a fishery management plan, amendment, or framework adjustment and may not change or substitute any measure in a substantive way, pursuant to section 304(a)(3) of the Magnuson-Stevens Act. General Comments Comment 1: The CBD commented that the EAs prepared in support of both FW 45 and the 2011 sector operations plans do not adequately evaluate the impacts on a number of species proposed for listing under the Endangered Species Act (ESA), particularly Atlantic sturgeon and loggerhead sea turtles. The CBD noted that the GOM distinct population segment (DPS) and the New York Bight and Chesapeake Bay DPSs of Atlantic sturgeon were proposed to be listed as threatened and endangered under the ESA, respectively, by NMFS' Northeast Regional Office on October 6, 2010 (75 FR 61872), while the Northwest Atlantic loggerhead sea turtle DPS was proposed to be listed as endangered under the ESA on March 16, 2010 (75 FR 12598). They contend that the FW 45 and FY 2011 sector operations plans EAs rely upon previous assessments of impacts to protected species specified in the Amendment 16 EIS that was completed on October 16, 2009. Therefore, they claimed that the analysis for these actions is not appropriate, given the proposed listings of Atlantic sturgeon and loggerhead sea turtles occurred after previous analysis was completed. Further, they indicated that the FW 45 EA does not consider impacts of eliminating the yellowtail flounder closure areas in the Great South Channel Exemption Area, noting that sea turtles are present in this area at the time that the yellowtail flounder spawning protection areas were in effect. Response: NMFS agrees that the analysis originally included in the FW 45 EA did not describe the impacts to DPS of Atlantic sturgeon and loggerhead sea turtles. To meet the ESA requirements of § 402.12(a), NMFS has updated the analysis supporting this action in an addendum to the FW 45 EA to include analysis of FW 45 measures on the DPS for these species in light of their proposed listings. This impacts analysis concluded that the measures implemented under this final rule are not likely to jeopardize the continued existence of Atlantic sturgeon between now and the time a final listing determination will be made, and concludes that there will be no significant impact on Atlantic sturgeon or loggerhead sea turtles for the duration of this regulation. It also concluded that a conference, per the ESA regulations, for the proposed loggerhead sea turtle DPS is not required based on the determinations and the incidental take statement in the 2010 Biological Opinion for the Multispecies FMP. For Atlantic sturgeon, NMFS Sustainable Fisheries Division engaged in an informal conference with NMFS Protected Resources per the ESA regulations, and no additional measures were recommended by NMFS Protected Resources. While it is possible that there may be interactions between Atlantic sturgeon or loggerhead sea turtles on the one hand and, on the other, gear used in the NE multispecies fishery, based on prior analyses and current observer bycatch data for the groundfish fishery, the number of interactions that will occur between now and the time a final listing determination will be made is not likely to cause an appreciable reduction in survival and recovery. A final listing determination for the Atlantic sturgeon DPS is expected by October 6, 2011. With the publication of a final listing rule, the existing Section 7 consultation for the NE multispecies fishery would need to be reinitiated, consistent with the requirement to reinitiate formal consultation where discretionary Federal agency involvement or control of the action has been retained and a new species is listed that may be affected by the action. During the reinitiation, the effects of the NE multispecies fishery on the five DPS for Atlantic sturgeon would be fully examined. Comment 2: Oceana stated that there are no effective AMs for several stocks managed by the FMP, and that FW 45 must include AMs for all stocks managed under the FMP, including stocks not allocated to sectors under Amendment 16 (SNE/MA winter flounder, ocean pout, windowpane flounder, Atlantic halibut, and Atlantic wolffish). Oceana cited the January 21, 2010, letter from NMFS to the Council informing the Council that AMs for these stocks should be implemented as quickly as possible through a future Council action, and stated that the FW 45 final rule is the first opportunity to implement such measures. Response: Because of the timing needed to more fully account for the bycatch of haddock in the Atlantic herring fishery before herring fishing operations began to increase rapidly during the early fall, the Council elected to develop FW 46 to revise the existing allocations of portions of the GOM and GB haddock ACL to the herring fishery before they worked on any other actions in 2011. Further, because the Council intended to develop an action later on in 2011 that would implement NE multispecies ACLs for FYs 2012-2014, the Council decided to address outstanding issues associated with AMs for ocean pout, windowpane flounder and Atlantic halibut through the next action, or FW 47. Consistent with the Magnuson-Stevens Act, Amendment 16 implemented AMs that would be sufficient to prevent overfishing of any stock managed by the FMP in FYs 2010 and 2011. However, because Amendment 16 did not provide a specific allocation of Atlantic halibut, SNE/MA winter flounder, ocean pout, windowpane flounder, or Atlantic wolffish to sectors, these stocks are not subject to any sector-specific AMs, which is acknowledged by NMFS in the letter cited in the comment. The ACL available to the commercial NE multispecies fishery for each of these stocks is allocated entirely to common pool vessels, and the only specific AM established for these stocks during FYs 2011 and 2012 is the differential DAS counting AM specified for common pool vessels at § 648.82(n). NMFS has determined there is no immediate need for FW 45 to implement AMs for these stocks, as overfishing is prevented during FYs 2010 and 2011, and any overages of the FY 2010 or 2011 ACLs would be addressed, at least partially, through differential DAS counting applicable to common pool vessels in FY 2011 or 2012, respectively ( see § 648.90(a)(5)(ii)). In making this determination, NMFS points out that, pursuant to section 304(a)(3) of the Magnuson-Stevens Act, it may only approve or disapprove measures proposed in a fishery management plan, amendment, or framework action, and may not change or substitute any measure in a substantive way. Therefore, since FW 45 does not include any measure to disapprove regarding AMs for these stocks, NMFS finds that it should approve the measures that are consistent with the Magnuson-Stevens Act and other applicable law for all of the other stocks with the understanding that the Council has committed to address the lack of specific AMs for these stocks in FW 47. This leads to the functional equivalence of disapproving and remanding the entire framework to address the lack of a required measure, but without sacrificing the implementation of those measures that are needed to ensure conservation for all of the other stocks. Comment 3: Oceana suggested that FW 45 must include AMs for yellowtail flounder caught by the Atlantic sea scallop fishery, based on the premise that the FMP must include measures that account for all catches of regulated species and ocean pout stocks by other fisheries. Oceana acknowledged that the Council developed AMs to account for yellowtail flounder catch in the scallop fishery as part of Amendment 15 to the Atlantic Sea Scallop FMP. However, they are concerned that such AMs will not become effective until at least 6 months into FY 2011 for the scallop fishery (the scallop FY begins on March 1 of each year) and may not be adequate to ensure that any overages of the FY 2010 yellowtail flounder sub-ACLs allocated to the scallop fishery are addressed during FY 2011. Further, they claimed that it is unclear how the proposed Amendment 15 yellowtail flounder AMs for the scallop fishery would be implemented in FY 2011, particularly if preliminary data indicate that the yellowtail flounder sub-ACLs for the scallop fishery may be exceeded. They suggested that NMFS should better explain how such AMs would be implemented during FY 2011. In addition, Oceana recommended that NMFS implement an inseason closure provision as an interim measure to prevent excessive harvest of yellowtail flounder until the Amendment 15 AMs become effective, pursuant to the National Standard 1 Guidelines at § 600.310(g)(2). Response: The AMs applicable to the NE multispecies fishery are consistent with the National Standard 1 Guidelines and sufficient to prevent overfishing on each stock by all components of the fishery that catch regulated species and ocean pout, including yellowtail flounder catch by scallop vessels prior to the implementation of measures proposed in Amendment 15 to the Atlantic Sea Scallop FMP. If these components of the fishery exceed their allocations, and the overall ACL for a particular stock is exceeded, the AMs applicable to the NE multispecies fishery, including those specified for sectors and the common pool, will be triggered to ensure that overfishing does not occur on the stock as a whole ( see § 648.90(a)(5)(ii)). The proposed rule for Amendment 15 to the Atlantic Sea Scallop FMP published on April X, 2011 (76 FR XXXXX). This rule, and its associated EIS, contains a complete description of the yellowtail flounder AMs for the scallop fishery, including the closure of specific statistical areas that have the highest bycatch of yellowtail flounder by the scallop fishery if either the GB or SNE/MA yellowtail flounder sub-ACL allocated to the scallop fishery is exceeded in the previous FY. This rule also clarifies the Council proposal that any overage of either the GB or SNE/MA yellowtail flounder sub-ACLs allocated to the scallop fishery for FY 2010 shall have a resulting AM applied as soon as Amendment 15 is implemented during FY 2011, but only if the FY 2010 overall ACL for SNE/MA yellowtail flounder is exceeded. As explained in the response to Comment 2 above, pursuant to section 304(a)(3) of the Magnuson-Stevens Act, NMFS may only approve or disapprove measures proposed in a fishery management plan or amendment, and may not change or substitute any measure in a substantive way. Therefore, NMFS does not have the legal authority to implement AMs to account for potentially excessive yellowtail flounder bycatch in the scallop fishery through this final rule. Such AMs were not adopted by the Council in FW 45, and the AMs in place for yellowtail flounder stocks for FY 2011 are sufficient to address any excessive catch by the scallop fishery until the AMs proposed in Amendment 15, if approved, become effective. Finally, both the common pool and sector AMs currently in place are adequate to ensure that overfishing does not occur on yellowtail flounder, even if the implementation of Amendment 15 is delayed until later in FY 2011. As of March 22, 2011, available data indicated that the scallop fishery caught 76,508 lb of GB yellowtail flounder and 401,313 lb of SNE/MA yellowtail flounder during FY 2010 in the scallop fishery (March 1, 2010, through February 28, 2011). This represents 24 percent of the GB yellowtail flounder and 135 percent of the SNE/MA yellowtail flounder allocated to the scallop fishery in the FW 44 final rule. It is projected that the common pool will only harvest 7.7 mt (16,976 lb) of its 75-mt (165,347-lb) sub-ACL for SNE/MA yellowtail flounder, leaving 148,371 lb of SNE/MA yellowtail flounder unharvested during FY 2010. In addition, all sectors have cumulatively caught only 42.6 percent (100 mt, or 220, 462 lb) of the overall sub-ACL of this stock allocated to sectors (234.7 mt, or 517,425 lb) through March 12, 2011. Therefore, even after incorporating the 103,689 lb (47 mt) of SNE/MA yellowtail flounder caught by the scallop fishery in excess of the allocation to that fishery during FY 2010, it is highly unlikely that the overall FY 2010 ACL for SNE/MA yellowtail flounder will be exceeded, and that the implementation of any AMs to prevent overfishing of this stock will be necessary. While it is still too early to accurately predict future bycatch rates, based upon available data, it is unlikely that the scallop fishery bycatch of yellowtail flounder during FY 2011 will exceed allocated sub-ACLs before Amendment 15 AMs, if approved, become effective. Thus, the current lack of scallop-specific AMs is not a serious conservation or management problem in the fishery. Finally, Oceana's recommendation to establish an interim in-season closure AM is not required by applicable law. Neither the Magnuson-Stevens Act nor the National Standard 1 Guidelines mandate the use of fishery closures or the use of in-season controls as AMs. Reactionary AMs similar to the differential DAS counting AM may be used and can be are just as valid as inseason AMs. Although an FMP can include in-season closures, under the cited national standard guideline, neither NMFS nor the Council is obligated to institute such closures. In-season closures are merely one tool that may be used by the Council and NMFS to prevent overfishing and ensure that ACLs are not exceeded. In any event, short of a temporary emergency action or Secretarial amendment, NMFS is not in a position to implement this kind of AM in deciding whether to approve or disapprove FW 45. Accordingly, NMFS has not implemented yellowtail flounder AMs for the scallop fishery through this final rule. Status Determination Criteria for Pollock Comment 4: Both PEW and an industry group (NSC) supported revisions to the status determination criteria for pollock and its associated revisions to stock status and ABCs and ACLs. Both groups applauded the rapid incorporation of updated scientific information into the FMP, with the industry group stating that such measures ensure that significant economic benefits of higher catch limits for this species will continue in future FYs. Response: NMFS agrees that it is appropriate to incorporate updated scientific information into management measures as quickly as possible. Therefore, the proposed revisions to the status determination criteria for pollock and associated ABCs and ACLs are implemented through this action. Rebuilding Program for GB Yellowtail Flounder Comment 5: PEW opposed the proposed reduction of the GB yellowtail flounder rebuilding program from the existing 75-percent probability of success to a 50-percent probability of success. PEW stated that a 50-percent probability of success is not adequate because the chance of failure is too high. They further stated that maximizing catch should not be the highest priority when managing the rebuilding of an overfished stock. They suggested that the existing rebuilding program with a minimum 75-percent probability of success should be maintained, noting that typical statistical analyses rely upon a 95-percent probability of success. Response: The decision to extend the GB yellowtail flounder rebuilding program is based on a number of factors beyond simply increasing catch over the short term. Updated stock assessment conducted by the TRAC indicated that the strength of the 2005 year class was much lower than originally estimated. Therefore, the stock is no longer expected to rebuild by 2014 with a 75-percent probability of success. Although extending the rebuilding timeframe to 10 years reduces the probability of success to 50 percent, the extension is still within the probability limits recognized by courts which have reviewed challenged FMPs. Although a rebuilding program with a higher probability of success would be more likely to rebuild overfished stocks within established rebuilding timeframes than one with a lower probability, based on analysis supporting FW 45, the revised rebuilding program is still capable of rebuilding the stock within the established rebuilding period. Faced with this information, the Council elected, consistent with National Standard 8, to revise the rebuilding program for this stock in way to minimize the adverse economic impacts on fishing communities to the extent practicable, without compromising the conservation requirements of the FMP or the Magnuson-Stevens Act. NMFS agrees with the Council that allowing for increased catch over the short-term, while still ending overfishing and enabling the stock to rebuild more effectively, balances the multiple and somewhat competing objectives of the national standards of the Magnuson-Stevens Act. Further, extending the rebuilding timeframe increases the capacity of the Council to negotiate yearly TACs with Canadian representatives through the TMGC process, as Canadian law does not have a requirement for a defined rebuilding period. Maintaining successful collaborative management with Canada is crucial to ensuring the effective management of this transboundary stock by preventing overfishing and continuing to rebuild this overfished stock. Therefore, NMFS approves and implements the proposed revisions to the GB yellowtail flounder rebuilding program. ACLs Comment 6: Oceana recommended that NMFS disapprove the proposed allocation of yellowtail flounder to the scallop fishery because it relies upon an outdated analysis of the expected catch of yellowtail flounder by the scallop fishery and is inconsistent with the use of the best available scientific information mandated by National Standard 2. Instead, they recommend that NMFS implement allocations that are based on updated estimates of actual anticipated yellowtail flounder catch by the scallop fishery during FY 2011. Response: NMFS recognizes that there are updated estimates of anticipated catch of yellowtail flounder by the scallop fishery. However, as noted in the FW 45 EA, there is uncertainty associated with these estimates. For example, Table 113 of the FW 45 EA illustrates that scallop catches of yellowtail flounder have not shown clear trends, despite the increased abundance of yellowtail flounder in recent years. If the updated estimates of yellowtail flounder bycatch underestimate actual catch by the scallop fishery, as implied in Oceana's comment, then the yellowtail flounder sub-ACLs allocated to the scallop fishery are likely to be exceeded, which could result in overfishing this stock. Overages of the yellowtail flounder sub-ACL, if leading to the overage of the overall ACL for a stock, would trigger AMs for the directed groundfish fishery to account for such an overage and ensure that overfishing does not occur in the future. Any AMs that may be triggered by exceeding this sub-ACL could redistribute either common pool or sector fishing effort, resulting in adverse biological impacts on a wider range of species compared to the existing allocations. In addition, lowering the yellowtail flounder allocations to the scallop fishery based upon this updated information puts much more total revenue and optimum yield at risk than maintaining the existing allocations, particularly if AMs are triggered and the available scallop or yellowtail flounder catch is not fully harvested. Although updated estimates of the expected yellowtail flounder bycatch in the scallop fishery are less than the existing allocations, maintaining the existing allocations to the scallop fishery, on balance, will likely reduce the chance of a derby fishery in the scallop fishery, better achieve the biological targets for both scallops and yellowtail flounder, and place less revenue and optimum yield at risk for both fisheries. Thus, there are potentially substantial adverse economic and biological impacts associated with revising these allocations using the updated bycatch estimates. As noted above, NMFS may only approve or disapprove measures proposed in a fishery management plan or amendment, and may not change or substitute any measure in a substantive way. The yellowtail flounder allocation to the scallop fishery is a continuation of the allocation implemented by FW 44. NMFS cannot substitute another alternative for this provision as part of this final rule. Even if NMFS could disapprove the FW 45 yellowtail flounder allocation to the scallop fishery, the yellowtail flounder allocation to the scallop fishery for FY 2011 would revert to that implemented by FW 44 which is the same as proposed in FW 45. Therefore, NMFS has not revised the FY 2011 yellowtail flounder allocations to the scallop fishery in this final rule. Annual Specifications for the U.S./Canada Management Area Comment 7: One industry group (NSC) strongly supported the proposed action to disapprove the FY 2011 GB yellowtail flounder U.S./Canada Management Area TAC and associated ABC and ACLs, and to implement a revised FY 2011 TAC, ABC, and ACL for this stock based upon revised recommendations of the TMGC following the recent adoption of IFACA. They noted that the adoption of IFACA represents new information and unforeseen circumstances that justify the use of emergency Secretarial authority to revise this TAC. They also group suggested that the updated TAC prevents overfishing and rebuilds stock consistent with broader goals of section 304(e) of the Magnuson-Stevens Act, provides very important economic benefits to both the groundfish and scallop fisheries, and results in an increased chance of achieving OY in these fisheries. Response: NMFS agrees with the substance of this comment, although, as noted above in the background section of this preamble, instead of disapproving the FW 45 TAC for this stock, NMFS has approved it, because the originally proposed TAC is still consistent with the FMP and applicable law. However, NMFS is replacing the FW 45 TAC for this stock with the revised FY 2011 TAC, pursuant to emergency Secretarial authority, for the reasons stated in the preamble of the proposed rule for this action. GOM Cod Spawning Protection Area Comment 8: Four individual private recreational anglers opposed the proposed GOM Cod Spawning Protection Area, while one environmental group (PEW) and one community group (PERC) strongly supported the implementation of this area. While one recreational angler was opposed to closure areas in general, the other three anglers indicated that such a closure unnecessarily and unfairly prevents small private recreational vessels from accessing cod closer to shore. Two of these respondents suggested that the GOM cod stock is improving and does not warrant further action to protect spawning aggregations. They indicated that, if further protection for this stock is necessary, they would prefer alternative measures, including possession or size limits. One respondent also claimed that fishing with hook gear does not disturb spawning aggregations. In contrast, both PEW and PERC supported this provision because it was based on a careful analysis of available scientific information. They recommended that the Council and NMFS should continue to identify and protect additional key habitat areas for spawning fish. Further, PERC advised that mid-water trawl gear should not be allowed in this area because they claim that this gear catches large amounts of groundfish stocks and would undermine efforts to rebuild overfished stocks. Response: NMFS agrees that the GOM cod stock is recovering. The latest stock assessment, the Groundfish Assessment Review Meeting (GARM) III, indicates that the stock is nearly rebuilt (i.e., that SSB is nearly at the level to sustain MSY), but notes that the success of continued rebuilding relies upon the strength of recent year classes, particularly the 2003 and 2005 year classes. Therefore, without continuing high levels of recruitment, the stock may not be able to achieve and maintain a high level of biomass. Council efforts to specifically protect spawning aggregations of GOM cod date back to the implementation of FW 26 in 1999 (January 15, 1999; 64 FR 2601). That action revised the existing GOM Rolling Closure Areas established under FW 25 (March 31, 1998; 63 FR 15326), and reclassified their designation as “inshore `cod spawning' closures.” The intended purpose of such measures under FW 26 was to protect cod during the spawning season, because cod stocks are “particularly vulnerable to fishing pressure” during spawning periods. Thus, since 1998, commercial fishing vessels have been excluded from areas in which cod are likely to be spawning. However, private recreational and charter/party vessels, including those fishing with gear capable of catching groundfish, have been able to access these areas even during the spawning season for GOM cod. As noted in the FW 45 EA and the preamble to the proposed rule for this action, the GOM Cod Spawning Protection Area is intended to provide protection to spawning cod by limiting all fishing activities using gear that may catch groundfish in a discrete area and during a time in which cod spawning activity is documented to be occurring. The area and season proposed in FW 45 was based on research conducted by the University of New Hampshire in collaboration with the Northeast Consortium. This research represents the first study in which western Atlantic cod were examined on such a fine scale to determine both temporal and spatial distribution of this species. According to this research, cod spawning within the GOM Cod Spawning Protection Area exhibit site fidelity, congregate in this specific area for the duration of the spawning season, and return to this area each year to spawn. These fish represent a “discrete management unit” that is confirmed by genetic study, and constitute the largest distinctly identified spawning group left in the western Atlantic Ocean. Further, this research documents that trawl-caught fish are affected by fishing activity, requiring several days to resume normal behavioral patterns following capture. Finally, this study reiterated a concern expressed by members of the fishing industry and state resource management agencies that the recreational fishing fleet, particularly charter/party vessels, that continue to be able to access spawning aggregations of cod may decrease the rate at which the GOM cod stock rebuilds. Thus, continued fishing pressure or disruption to spawning activity could adversely affect cod recruitment within the GOM. As proposed, the GOM Cod Spawning Protection Area prohibits both commercial and recreational vessels fishing with gear considered to be capable of catching groundfish from fishing in this area from April through June of each year. Under this measure, all vessels are treated equally, and neither group has access to this area during this time. This is in contrast to the existing GOM Rolling Closure Areas in that commercial vessels are prohibited from fishing for groundfish in these areas, but recreational vessels can target groundfish in these areas throughout the spawning season. Although the GOM Cod Spawning Protection Area would essentially close some near-shore fishing grounds to recreational vessels during the spawning season, this measure would not eliminate small vessel access to available cod resources. This area is relatively small (roughly 82 square miles, or 212 square km) and represents the only area closure applicable to recreational vessels at all, let alone during the spawning season. Therefore, recreational vessels have access to available cod resources in other locations and throughout the rest of the FY. Finally, while measures such as possession or size limits are capable of affecting fishing mortality, such measures cannot protect or improve recruitment in the same way that area closures can. FW 45 does not propose to further reduce fishing mortality on this stock. Instead, this provision is intended specifically to reduce fishing activity on spawning aggregations and, in turn, preserve opportunities for successful recruitment of this stock in the future. Because the preservation of sufficient levels of recruitment is critical for the continued success of efforts to rebuild GOM cod, possession or size limits would not effectively achieve the objectives for the GOM Cod Spawning Protection Area in FW 45. Existing regulations, including the GOM Seasonal Rolling Closure Areas at § 648.81(f) and the Sector Rolling Closure Areas at § 648.81(f)(2)(vi), already prohibit vessels fishing on either a sector or a common pool trip from targeting regulated species and ocean pout in this area during April and May. For these reasons, NMFS has approved the GOM Cod Spawning Protection Area, including the proposed prohibition of midwater trawl gear fishing in this area during June of each year. Handgear A and B Measures Comment 9: Two commercial fishermen strongly supported any measures that would benefit small vessels fishing near shore with handgear. One of these individuals indicated that fishing with handgear has no detrimental effects to stock recovery or bycatch because all fish can be released alive. Because they consider handgear to be a more sustainable gear type, PERC further stated that NMFS should expand opportunities for the use of handgear instead of restricting their trip limits. Response: NMFS believes the measures implemented by this final rule, including revisions to handgear trip limits, exemption of handgear vessels from common pool dockside monitoring requirements, and access to seasonal closure areas encourage participation in the NE multispecies fishery by handgear vessels, and minimize economic impacts to such vessels, without compromising efforts to end overfishing and rebuild overfished stocks. Comment 10: The NEHFA and PERC suggested that handgear vessels should be given a specific sub-ACL to avoid being adversely impacted by potentially excessive catch by common pool vessels. Response: The Council considered specifying a specific sub-ACL for handgear vessels during the development of FW 45, but did not ultimately adopt such a measure due to a concern that allocation decisions cannot be implemented through a FW action. The Council ultimately concluded that such allocations must rather be implemented through an amendment to the FMP because they are considered substantial revisions to existing management measures and require additional public input. NMFS agrees with this interpretation. Comment 11: The NEHFA and one commercial fisherman supported the proposed revisions to the cod trip limits applicable to handgear vessels. They indicated that such revisions will provide relief from the impacts of the “race to fish” during the early part of the FY in the common pool. Response: NMFS agrees, and has implemented these revisions through this final rule. Comment 12: One commercial fisherman, PERC, and the NEHFA expressed support for the proposed requirement for handgear vessels to be issued a LOA to fish south of the GOM RMA for GB cod. NEHFA recommended that vessel owners could request a LOA annually when renewing their NE multispecies permits, declare through the permit renewal application that the vessel would be fishing south of the GOM RMA for the duration of the FY and not have to request a LOA, or be issued a LOA automatically through a Web site similar to the existing NMFS VTR Web site. This group contends that these recommendations would help minimize the burden on fishermen and NMFS. In addition, NEHFA was concerned that the issuance of the LOA would adversely impact the ability of vessel owners to participate in other fisheries. Response: NMFS implements the requirement for handgear vessels fishing south of the GOM RMA to either obtain a paper LOA or declare their intent to fish south of the GOM via VMS through this final rule. Under the LOA provisions implemented through this final rule and existing protocols, a vessel owner could specify that he/she intends to fish south of the GOM RMA for the entire year and be issued a LOA to reflect that decision during the annual renewal of his/her NE multispecies permit. Automated or web-based declaration and issuance of this LOA would require further consideration by NMFS, including ensuring that such declarations do not compromise the enforceability of the LOA, would not unintentionally restrict the ability of vessel operators to fish in the area of their choosing, and can be technically administered. NMFS has the authority to revise the mechanism by which such LOAs are issued to fishery participants and could implement the recommendations offered by the public in the future if feasible. Any changes to how LOAs are issued will be communicated to all affected stakeholders through a permit holder letter, as appropriate. Comment 13: The NEHFA supported the proposed exemption of vessels issued a limited access NE multispecies Handgear A permit from the GB Seasonal Closure Area and allowing such vessels to fish in the Sector Rolling Closure Areas in the GOM. The NEHFA noted that Handgear A vessels are currently precluded from fishing in the GOM until June or July based on the existing GOM Rolling Closure Areas. This group stated that, without exemptions, Handgear A vessels will not remain economically viable due to competition with other gear types for available common pool sub-ACLs. They contested that the proposed exemptions would provide needed economic relief through increased access to traditional fishing grounds that are within reach of the small Handgear A vessels. Another commercial fisherman also supported these measures, stating that they would help small vessels compete against larger and more efficient vessels in the common pool. Both PEW and PERC supported promoting the use of handgear through these proposed measures, stating that handgear is the gear type with the least impacts to habitat and the fishery. Response: NMFS agrees with the comments, and this final rule implements the proposed exemption. Dockside/Roving Monitoring Requirements Comment 14: The NSC questioned the utility of dockside/roving monitoring requirements, suggesting that FW 45 should eliminate such requirements completely. The NSC believes the current requirements to be highly inefficient, representing an unsustainable and unjustified cost to the fishing industry. Further, they suggested that NMFS should allow sectors to use dockside monitoring data as a proxy for dealer data in the weekly sector catch reports submitted to NMFS to increase the utility of the dockside/roving monitoring program. Finally, NSC indicated that roving monitors should not have to observe offloads to a truck and also to a dealer, asserting that roving monitors should only be required to observe offloads from the vessel to a truck, to increase the efficiency and reduce costs associated with these provisions. Response: The Council considered completely eliminating dockside/roving monitoring requirements during the development of FW 45. However, due to lingering concerns over the ability to enforce existing provisions to monitor sector ACE and minimize incentives to misreport catch, the Council retained dockside/roving monitoring requirements in FW 45. NMFS may only approve or disapprove measures proposed in FW 45, and may not change or substitute any measure in a substantive way. Therefore, NMFS cannot eliminate dockside/roving monitoring requirements through this final rule. During the development of Amendment 16, it was anticipated that sectors would rely upon dockside/roving monitor data to document sector landings immediately following a vessel's offload until the official dealer reports become available approximately a week later. This practice has been discussed with sector managers through several sector workshops held during 2009 and 2010. NMFS recognizes that dockside/roving monitoring data cannot currently be reported as part of the weekly sector catch reports submitted to NMFS based upon existing guidance and database structures. To date, many dockside/roving monitoring data are not systematically collected in a format that can be easily transferred to a catch monitoring database. Instead, they are often merely scanned images of a dockside/roving monitor report. NMFS has the regulatory authority to accept dockside/roving monitoring data in the future and may reconsider the acceptance of dockside/roving monitoring data if such data become available in an acceptable electronic format. Further, dealer landings, as documented through official dealer reports, have been the standard by which landings are monitored for many years, and were used as the basis for the calculation of potential sector contributions and, therefore, sector ACE. Accordingly, even if dockside/roving monitor data could be considered as a proxy for dealer landings in weekly sector catch report, dealer landings data would continue to be the official record of species landed by each federally permitted vessel. The Council required sectors to develop and implement an independent third-party weighmaster system satisfactory to NMFS for monitoring landings and utilization of ACE. The original intent of dockside/roving monitoring coverage was to verify landings of a vessel at the time it is weighed by a dealer to certify the landing weights are accurate as reported on the official dealer report for compliance purposes. Therefore, NMFS implemented regulations under Amendment 16 that require that a roving monitor must observe the offloads from a vessel to a truck and again from the truck to a dealer, unless the vessel offloads directly to a dealer. These regulations were based upon a pilot program and existing dockside/roving monitoring programs developed in other regions and in Canada. During sector implementation workshops conducted in 2009 and 2010, and ongoing communications with sector managers, NMFS indicated that it would allow a roving monitor to only observe offloads from a vessel to a truck, provided a representative from the dealer ultimately receiving the fish was present at the time of the offload, and that all fish were weighed at the time of the offload. This ensures that the weight of fish offloaded corresponds to the weight of the fish recorded in the official dealer report, consistent with the intent of Amendment 16. Thus, existing regulations and protocols [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%3A2011-9705. Public record. Not legal advice.