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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2013-10402

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** May 3, 2013
- **Citation:** 78 FR 26118

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 120814336-3408-02]
RIN 0648-BC27
Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast (NE) Multispecies Fishery; Framework Adjustment 48

AGENCY:

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

ACTION:

Interim final rule; request for comments.

SUMMARY:

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

DATES:

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

ADDRESSES:

You may submit comments on the new status determination criteria for white hake or U.S./Canada quota monitoring, identified by NOAA-NMFS-2013-0050, by any of the following methods:

•
Electronic Submission:
Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0050
, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

•
Mail:
Submit written comments to John K. Bullard, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930.

•
Fax:
(978) 281-9135; Attn: Melissa Hooper.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on
www.regulations.gov
without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

Copies of Framework 48, its Regulatory Impact Review (RIR), the environmental assessment (EA) prepared for this action, and the Final Regulatory Flexibility Analysis (FRFA) prepared by the Council are available from Thomas Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The FRFA assessing the impacts of the measures on small entities and describing steps taken to minimize any significant economic impact on such entities consists of the Initial Regulatory Flexibility Analysis (IRFA), preamble, and the summary of impacts and alternatives contained in the Classification section of this final rule and Framework 48. The Framework 48 EA/RIR/IRFA are also accessible via the Internet at
http://www.nefmc.org/nemulti/index.html
or
http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Melissa Hooper, Fishery Policy Analyst, phone: 978-281-9166, fax: 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

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

Amendment 16 to the FMP (Amendment 16) established a process for setting acceptable biological catches (ABCs) and ACLs for regulated species and ocean pout, as well as distributing the available catch among the various components of the groundfish fishery. Amendment 16 also established AMs for these 20 groundfish stocks in order to prevent overfishing of these stocks and correct or mitigate any overages of the ACLs. Framework 44 to the FMP (Framework 44) set the ABCs and ACLs for FYs 2010-2012. In 2011, Framework 45 to the FMP (Framework 45) revised the ABCs and ACLs for five stocks for FYs 2011-2012. Framework 47 to the FMP (Framework 47) updated specifications for most stocks for FYs 2012-2014 and modified management measures in the fishery after more than 1 year under ACLs and AMs.

Framework 48 is one of two actions developed by the Council to respond to benchmark and assessment updates completed for all groundfish stocks in 2012 and 2013. Updated information in these assessments requires revisions to the status determination criteria for GOM cod, GB cod, SNE/MA yellowtail flounder, and white hake and implementation of updated ABCs and ACLs for most stocks for FYs 2013-2015. These measures are necessary to prevent overfishing and facilitate the rebuilding of groundfish stocks as required by the FMP. In Framework 48, the Council proposed administrative changes to the FMP to make way for Framework 50, which specifies ABCs and ACLs for all stocks for FY 2013-2015. The Council also included several measures in Framework 48 intended to mitigate negative economic impacts to the groundfish fishery anticipated from the substantial reductions in catch limits proposed in Framework 50 to end overfishing. Framework 48 also implements AMs for Atlantic halibut, Atlantic wolffish, and SNE/MA winter flounder in response to a Court Order and remand in
Oceana
v.
Locke et al.
831 F.Supp.2d 95 (D.D.C. 2011) that held that so-called “reactive” AMs had not been developed for the 6 stocks not allocated to sectors (“non-allocated stocks”) in Amendment 16. Framework 48 recommended reactive AMs for 3 of these stocks, for which reactive AMs had not been established since Amendment 16. A more extensive discussion of the development of Frameworks 48 and 50 is available in the proposed rules for these two actions (78 FR 18188; March 25, 2013 and 78 FR 19368; March 29, 2013, respectively) and is not repeated here. NMFS also proposed several corrections to the NE multispecies regulations through the Framework 48 proposed rule under the authority of section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), which allows the Secretary of Commerce to implement regulations necessary to ensure that fishery management plans or amendments are carried out consistent with the Magnuson-Stevens Act. These changes are not part of Framework 48, but are necessary to clarify existing regulations and achieve the objectives of the FMP.

Public comments were accepted on the Framework 48 proposed rule through April 9, 2013. After review of public comments, NMFS has partially approved Framework 48 as consistent with the goals and objectives of the NE Multispecies FMP, and the requirements of the Magnuson-Stevens Act and other applicable law.

Disapproved Measures

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

1. Delay Industry At-Sea Monitoring Cost Responsibility

Framework 48 proposed to delay sectors' responsibility to implement and pay for their own at-sea monitoring programs to FY 2014. The Council included this measure in Framework 48 out of concern that the industry would not be able to support this cost burden in FY 2013 due to the substantial catch reductions proposed in Framework 50. Coverage levels would instead be set at the level that NMFS can fund. The Council proposed a similar measure in Framework 45, which NMFS disapproved due to concerns that there would not be Federal funds to ensure adequate monitoring of sector operations. A complete description of the development this measure was included in the Framework 48 proposed rule (Item 8) and is not repeated here.

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

2. At-Sea Monitoring Cost-Sharing

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

control; administrative costs; maintenance of monitoring equipment; at-sea monitor recruitment, benefits, insurance and taxes; logistical costs associated with deployment; and at-sea monitor travel and lodging. This measure was intended to reduce the cost burden of at-sea monitoring to sectors and thereby increase their profitability.

NMFS has disapproved this cost-sharing measure because it is not consistent with other applicable laws as developed. Specifically, the Anti-Deficiency Act and other appropriations law prohibits Federal agencies from obligating the Federal government except through appropriations and from sharing the payment of government obligations with private entities. Framework 48 proposed to require NMFS to pay for some portion of the costs of at-sea activities, such as logistical costs generated by deployment, which are outside its statutory obligations under the Magnuson-Stevens Act. As written, this measure would also have required NMFS and sectors to share payment of obligations defined as belonging to one or the other. For example, Framework 48 proposed to require NMFS to pay some costs related to at-sea activities, such as benefits and insurance for at-sea monitors, while sectors would pay other portions of at-sea costs, like the salary for at-sea monitors. Because such action would be prohibited under the law, NMFS has disapproved this measure in Framework 48.

Although this measure was not approvable as developed, NMFS shares the Council and industry's concern about the ability of sectors to bear the full costs of monitoring in future fishing years. NMFS believes this approach to cost sharing, which defines the items that NMFS versus sectors should be responsible for, could be viable if restructured and may be worth pursuing in a future action. NMFS is already working with the New England and Mid-Atlantic Councils' joint Herring-Mackerel Plan Development Team (PDT)/Fishery Management Action Team (FMAT) to pursue cost-sharing options such as this one for those fisheries for FY 2014. The Council could consider including the NE Multispecies FMP in this joint effort to develop a workable and consistent cost-sharing mechanism for the Northeast region.

3. GB Yellowtail Flounder Management Measures

Framework 48 proposed to change the stratification of discard estimates for sectors for GB yellowtail flounder, by splitting the GB yellowtail flounder trawl discard strata between statistical area 522 and statistical areas 525/561/562. This measure was intended to revise sector discard rates to more closely reflect actual discards of yellowtail flounder in different areas of Georges Bank and potentially lengthen the fishing season for sector vessels in those areas. Based on public comment, NMFS has disapproved this measure in Framework 48, because it would complicate and increase the cost and burden of monitoring and potentially increase uncertainty of catch estimates without any measurable benefits for sectors. Accordingly, this measure is inconsistent with or may lead to inconsistency with National Standards 5 and 7 of the Magnuson Stevens Act. As more fully discussed below, because of the added complications of administering this measure, it may increase costs more than it provides benefits to the fishing industry or the efficient management and monitoring of catches. Although finer scale strata would allow discard rates to more closely reflect actual discard rates of yellowtail flounder in different parts of Georges Bank, NMFS does not believe this measure would have any real benefits for sectors that could not be achieved with existing discard rate strata. A separate discard rate in statistical area 522 could benefit an individual vessel with a lower GB yellowtail flounder discard rate that would not be influenced by higher discards by other vessels in its sector fishing elsewhere on Georges Bank. However, the sector's fishing season on GB would still be limited by the total catch of GB yellowtail flounder by all its member vessels. A finer stratum would not eliminate the need for a sector to manage discards of yellowtail flounder by all its vessels on Georges Bank to prevent an early end to their fishing season.

In contrast, the proposed measure could have real effects on the administrative burden for both NMFS and sectors that NMFS believes are not justified in light of the lack of real benefits from this measure. Some sector representatives and members of sectors raised these concerns in public comments on the Framework 48 proposed rule. Both sectors and NMFS would have to modify and reprogram quota monitoring programs and reports to accommodate the new strata, increasing the administrative burden for sector managers and NMFS, without any corresponding benefits for sectors, which could reduce efficiency inconsistent with National Standards 5 and 7. Some sectors have developed software to calculate and manage catch and compile sector weekly reports to NMFS. These sectors would have to retain programmers to reprogram this software to accommodate the new strata and method. The administrative burden to generate sector weekly reports could be even greater for sector managers that do not use software to compile their sector's reports, but rather calculate catch manually on a weekly basis. NMFS is also concerned about how this revised strata, combined with other changes to the discard rate method in FY 2013, will affect the variance of discard rates and thereby affect our ability to reliably estimate catch to ensure that overfishing is not occurring. Concerns that this measure could further complicate monitoring and increase uncertainty of catch estimates by creating an incentive to misreport catches of GB yellowtail flounder is also justified. There is a potential for this measure to create an incentive for sector vessels fishing inside and outside statistical area 522 without an observer to misreport GB yellowtail catch from outside area 522 as from inside area 522 in order to get a lower discard rate, thereby jeopardizing NMFS's ability to ensure that catches are consistent with preventing overfishing and rebuilding fish stocks. This could potentially inflate area 522 GB yellowtail discard estimates and negate any benefit of this measure. Thus, out of concern that this measure could increase the uncertainty of catch estimates and the costs of monitoring and administration of sectors without any corresponding benefits to sectors, NMFS has disapproved this measure in Framework 48.

4. Requirement to Stow Trawl Gear While Transiting

The regulations currently specify that fishing gear must be stowed in a specific way, as described at 50 CFR 648.23(b), when transiting closed areas to facilitate the enforcement of closed areas at sea. Framework 48 proposed to remove this requirement for only trawl vessels on a groundfish trip because the Council believed that these measures are no longer necessary with the use of the vessel monitoring system (VMS) on all limited access multispecies vessels.

After consideration of public comments received on this measure, NMFS has disapproved this measure in Framework 48 and is maintaining the requirements for all vessels to stow their gear when transiting closed areas on the basis that it may lead to difficulties in detecting and prosecuting unlawful fishing in closed areas, which would undermine the effectiveness of these areas to achieve the objectives for which

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

Although NMFS must disapprove this measure in Framework 48, NMFS does remain concerned about the safety risks of the existing trawl gear stowage requirements and believes these issues should be addressed for all vessels. NMFS believes that the modifications put forward by the Council's VMS/Enforcement Committee would address these safety issues, while meeting the needs of conservation and management. NMFS is considering initiating a separate rulemaking, working with both the New England and Mid-Atlantic Councils, which would propose modifications to the gear stowage requirements to make them safer for all vessels in all FMPs. The regulations at § 648.23(b)(5) allow the Regional Administrator to specify a method of stowage in writing and in a
Federal Register
notice. NMFS believes that this approach would be the most expeditious method to address the safety issues as soon as possible, as opposed to a joint Council action.

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

In the Framework 48 proposed rule, NMFS proposed a correction to the regulations governing fishing activity in the Eastern U.S./Canada Area under 305(d) authority of the Magnuson-Stevens Act based on its determination that the correction was needed to bring the measure into compliance with the perceived Council intent in Amendment 16. The regulations at § 648.85(a)(3)(ii)(A) currently state that all catch of cod, haddock, and yellowtail flounder caught on a trip that fishes both inside and outside of the Eastern U.S./Canada Area shall apply to the U.S./Canada total allowable catches (TACs) (in the case of cod and haddock, the Eastern U.S./Canada TACs). This method for quota monitoring was implemented through Framework 42 as a precautionary way to estimate catch to ensure U.S./Canada TACs would not be exceeded, while allowing vessels the flexibility to fish both inside and outside the Eastern U.S./Canada Area on the same trip. Amendment 16 allocated each sector and the common pool a portion of the Eastern U.S./Canada TACs, but did not specifically address whether these allocations should still be monitored using the precautionary Framework 42 method. NMFS's perceived interpretation was that Amendment 16 intended statistical areas reported on VMS catch reports and vessel trip reports (VTRs) to be used to apportion catch to specific stock allocations. This is how NMFS has been monitoring sector and common pool catch of GB cod, haddock, and yellowtail since FY 2010. Despite being clear about NMFS's perceived interpretation in the Amendment 16 preamble, the original provision implemented by Framework 42 was inadvertently left in the regulations at § 648.85(a)(3)(ii)(A) by the Amendment 16 final rule. In deeming the regulations to be consistent with the Amendment, however, the Council did not object to the old language, presumably because it reflected its actual intent, as confirmed by the Council's comments on this action. Through the Framework 48 proposed rule, NMFS proposed to revise the regulations to remove the text that states all cod, haddock, and yellowtail flounder on multi-area trips must be applied to Eastern U.S./Canada allocations.

During the public comment period, NMFS received a letter from the Council opposing NMFS's proposed change to the regulations. The Council questioned NMFS's authority to make this change without explicit Council action, and asked NMFS to disapprove this change, particularly in light of continued concerns of misreporting of catches of Eastern GB stocks. At the request of the Council, NMFS is withdrawing this change to the regulations and will return to the Framework 42 method of quota monitoring because it reflects the Council's intent. Thus, for common pool vessels fishing both inside and outside the Eastern U.S./Canada Area, all catch of cod and haddock on that trip will be counted against the applicable Eastern U.S./Canada TAC. For sector vessels fishing both inside and outside the Eastern U.S./Canada Area, all catch of cod and haddock will be counted against its sector's allocations for Eastern GB cod and haddock. How GB

yellowtail flounder should be handled is less clear. Framework 42 and, subsequently, the regulations specify all yellowtail flounder caught on trips into the Eastern U.S./Canada area should be applied to the GB yellowtail flounder TAC. Based on a strict reading of Framework 42, yellowtail flounder caught on trips into the Western U.S./Canada Area and the Gulf of Maine or Southern New England would appear to be allocated according to the vessel's VTRs. At the time Framework 42 was developed trips limits were lower in the CC/GOM and SNE/MA yellowtail flounder stock areas and if a vessel fished in either area and the Georges Bank area the more restrictive trip limit applied. As a result, there was little incentive to fish in both the Western U.S./Canada Area and these other stock areas on the same trip. Although these incentives may have changed, this provision was not explicitly revised by Amendment 16, so NMFS believes it must only count all GB yellowtail flounder on trips into the Eastern U.S./Canada Area against the applicable U.S./Canada TAC, and yellowtail flounder on trips into the Western U.S./Canada Area would continue to be allocated according to the vessel's VTRs.

It is also not clear how discard rates should be applied in these situations. At the time Framework 42 was developed, there were no sector-stock-gear specific discard rates and so Framework 42 and its implementing regulations did not address how these rates should be applied on trips into the Eastern U.S./Canada Area. Amendment 16 also did not provide any explicit guidance on this matter. Since the Framework 42 measure was intended to address possible misreporting of vessel-reported data, NMFS believes it is appropriate to apply observed discards and kept catch from these trips in the computation of discard rates according to the area fished as recorded in observer data. However, NMFS is still exploring how discard rates should be applied on unobserved trips.

Amendment 16, and the regulations implementing Amendment 16 at § 648.87(b)(1)(iii), requires that NMFS use all available information, including the Interactive Voice Response system (IVR), VTR, VMS, at the end of the fishing year to determine whether a sector exceeded any of its ACEs. NMFS must reconcile this measure with the requirement in Framework 42 to count all catch on trips into the Eastern U.S./Canada Area against U.S./Canada TACs. In absence of any explicit language in Amendment 16 as to how to handle this, NMFS believes it would be consistent with both provisions to count all cod, haddock, and yellowtail on trips declared into the Eastern U.S./Canada Area on VMS against the U.S./Canada TACs inseason for the purposes of determining whether the Eastern U.S./Canada Area should be closed, or that a sector has reached its ACE and must stop fishing. For the purposes of year-end reconciliation of sector catches, NMFS will use VMS activity data to determine whether a vessel that declared into the Eastern U.S./Canada Area actually may have fished there and catch from a trip with no VMS activity indicative of fishing in the Eastern U.S./Canada Area would be reapportioned according to the vessel's VTRs. NMFS is still exploring what criteria should be used to define fishing activity from VMS data and is interested in public comment on this measure.

Because these details were not available for the public to comment on in the Framework 48 proposed rule, NMFS is publishing this measure as an interim final rule and will be collecting additional public comment on it.

Approved Measures

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

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

An assessment for SNE/MA yellowtail flounder was completed in June 2012. New assessments were also completed for GOM and GB cod in December 2012. The results of both models accepted in the December 2012, GOM cod assessment indicated that overfishing is occurring and the stock is overfished. In addition, the assessment for GB cod indicated that overfishing is occurring and the stock is overfished. The status of SNE/MA yellowtail flounder was less clear from the June 2012 assessment. The assessment considered two recruitment scenarios that resulted in very different pictures about the stock's status, but favored the recent recruitment scenario, which indicated that the stock was not experiencing overfishing and was rebuilt. A more detailed discussion of the assessment for these three stocks can be found in Item 1 of the preamble of the proposed rule.

NMFS has approved the proposed status determination criteria for these three stocks, because the results of these assessments represent the best scientific information available for management. Incorporating this information into the FMP will allow the specification of appropriate ABCs and ACLs and other management measures beginning in FY 2013 to prevent overfishing, and continue rebuilding GOM and GB cod, as required by the Magnuson-Stevens Act. The final revised status determination criteria are presented in Table 1. Numerical estimates of these criteria are presented in Table 2. There are two sets of status determination criteria approved for GOM cod because two models were accepted at the benchmark assessment in December 2012, as described above. Although two assessment models were approved, there is only one numerical estimate for the maximum fishing mortality threshold for GOM cod.

Table 1—Revised Status Determination Criteria for SNE/MA Yellowtail Flounder, GOM and GB Cod

Stock
Biomass target
Minimum biomass threshold

Maximum fishing
mortality threshold

SNE/MA yellowtail flounder

SSB
40%MSP

1/2
B
target

F
40%MSP

GOM cod

SSB
40%MSP

1/2
B
target

F
40%MSP

GB cod

SSB
40%MSP

1/2
B
target

F
40%MSP

SSB = spawning stock biomass; MSP = maximum spawning potential; B = biomass; F = fishing mortality rate; MSY = maximum sustainable yield.

Table 2—Numerical Estimates of the Revised Status Determination Criteria for SNE/MA Yellowtail Flounder, GOM and GB Cod

Stock

Biomass
target
(mt)

Maximum
fishing
mortality
threshold

MSY
(mt)

SNE/MA yellowtail flounder
2,995
0.31
773

GOM cod (M=0.2 model)
54,743
0.18
9,399

GOM cod (M
ramp
model)

80,200

13,786

GB cod
186,535
0.18
30,622

7. Status Determination Criteria for White Hake

As discussed in Item 1 in the preamble of the Framework 48 proposed rule, a benchmark assessment for white hake was scheduled to be completed in February 2013, but the results of the assessment were not yet available at the time of proposed rule publication. This meant that NMFS could not propose new status determination criteria for white hake, even though the Council had recommended and analyzed updated status determination criteria in Framework 48 in case the assessment results became available in time for rulemaking. Thus, NMFS did not propose or solicit public comment on revised status determination criteria for white hake in the Framework 48 proposed rule, but indicated that it may take action at a later date based on the results of the assessment when they became available.

The assessment summary report for Stock Assessment Review Committee (SARC) 56 was published on April 2, 2013 (
http://www.nefsc.noaa.gov/publications/crd/crd1304/
). The results indicate that the white hake stock is not overfished or subject to overfishing. The stock is estimated to have been at 83 percent of the rebuilding biomass target in 2011, the most recent year of data incorporated into the assessment. The stock remains under a formal rebuilding program with a rebuilding target date of 2014. Current stock projections from the SARC 56 assessment indicate that the stock is projected to rebuild in 2014. The new stock status for white hake is a change from the previous benchmark assessment, conducted in 2008 as part of the Groundfish Assessment Review Meeting (GARM) III. The GARM III assessment indicated the white hake stock was both overfished and subject to overfishing. The SARC 56 assessment determined that the change in stock biomass since 2007 is the result of low fishing mortality and near long-term average recruitment. More plainly stated, the changes are not the results of changes in the assessment model or methods, but reflective of the changes in the data that has been collected and integrated in the interim since the last benchmark assessment in 2008. Additional information regarding the February assessment data, peer review proceedings, and results can be found on the Northeast Fishery Science Center's (NEFSC) Web site:
http://www.nefsc.noaa.gov/saw/.

The results of SARC 56 represent the best scientific information available and a change from the results of the previous assessment available (GARM III). Because the Council included an alternative in Framework 48 to implement the results of SARC 56 for white hake in FY 2013, NMFS is approving and implementing the revised status determination criteria for white hake through this final rule. Although NMFS did not propose these revisions in the proposed rule because they were not yet available, the Council specifically considered and analyzed possible scenarios resulting from the assessment and recommended updating the white hake status determination criteria for FY 2013. Although the public did not have prior opportunity to comment on these measures in the Framework 48 proposed rule, the Council's analysis was available for public comment throughout the Council process. In addition, the SAW/SARC is an open and public process, allowing the public and managers to participate and, frequently, to have an indication of the results before the assessment report is final. Nevertheless, to ensure there is opportunity for public comment on this new status determination criteria, NMFS is implementing this measure as an interim final rule and collecting public comment on it. NMFS will publish another final rule, if necessary, after considering additional public comment to finalize these criteria and respond to any public comments. Implementing revised status determination criteria through this final rule is necessary in order to incorporate the best scientific information available into the FMP to allow NMFS to implement an appropriate ABC and ACL for white hake in FY 2013.

Table 3—Updated Status Determination Criteria and Numerical Estimates of the Status Determination Criteria for White Hake

Criteria:

Biomass Target
Minimum Biomass Threshold
Maximum Fishing Mortality Threshold

SSB
40%MSP

1/2
B
target

F
40%MSP

Values:

Biomass Target (mt)
Minimum Biomass Threshold (mt)
Maximum Fishing Mortality Threshold
MSY (mt)

32,400
16,200
0.20
5,630

SSB = spawning stock biomass; MSP = maximum spawning potential; B = biomass; F = fishing mortality rate; MSY = maximum sustainable yield.

8. SNE/MA Windowpane Flounder sub-ACLs

Scallop Fishery Sub-ACL

NMFS has approved the allocation of a sub-ACL of SNE/MA windowpane flounder to the scallop fishery to better ensure that the ACL is not exceeded. The sub-ACL of SNE/MA windowpane flounder allocated to the scallop fishery would be 36 percent of the ABC. This allocation is based on the 90th percentile of scallop fishery catches (as a percent of the total catch) for calendar years 2001 through 2010. The scallop fishery's sub-ACL would be calculated by reducing the portion of the ABC allocated to the scallop fishery (sub-ABC) to account for management uncertainty. The management uncertainty buffer is determined each time the groundfish specifications are set. It is anticipated that AMs would be developed in a future management action during 2013 through the Atlantic Sea Scallop FMP in time to be effective by the start of scallop FY 2014 (i.e., March 1, 2014), and would retroactively apply to account for any overage in FY 2013. If the scallop fishery exceeds its sub-ACL for SNE/MA windowpane in FY 2013, the AMs adopted in a future management action would be triggered. Also, similar to the measure adopted in Framework 47 for the scallop fishery's SNE/MA and GB yellowtail flounder sub-ACLs, the scallop fishery AM for SNE/MA windowpane flounder would only be triggered if the total ACL is exceeded and the scallop fishery's sub-ACL is also exceeded, or if the scallop fishery exceeds its sub-ACL by 50 percent or more.

The total ACL for SNE/MA windowpane was exceeded by more than 100 percent in FY 2010 and FY 2011, resulting in the ABC and overfishing level (OFL) being exceeded. In both years, total catch by sector and common pool vessels was below the common pool sub-ACL for this stock and arguably did not contribute to the overage of the total ACL. However, because the common pool fishery was the only fishery with a sub-ACL and an AM for this stock, the overage of the total ACL triggered an AM only for the common pool. On the other hand, catch by the “other subcomponent” fisheries alone, including the scallop and other fisheries, exceeded the ABC in FY 2010 and the OFL in FY 2011. The large overages in FY 2010 and FY 2011 demonstrate that an AM for the groundfish fishery alone is not sufficient to ensure that the ACL for this stock is not exceeded, because it is not responsible for the majority of catches. Creating a sub-ACL and, subsequently, an AM, for the scallop fishery, which accounted for more than 25 percent of the total catch in FY 2011 and almost 50 percent of the catch in FY 2010, would create accountability for those fisheries responsible for the greatest share of the catch and most likely to cause an overage. Thus, a sub-ACL for the scallop fishery would help prevent overfishing on SNE/MA windowpane flounder as required by the National Standard 1 and Section 303(a)(1) of the Magnuson-Stevens Act and create an incentive to minimize bycatch of this stock, consistent with National Standard 9.

NMFS received comments on the proposed rule expressing concern that this measure does not maximize the overall net benefit to the nation or minimize adverse impacts to communities because it would substantially constrain scallop revenue. As further detailed in NMFS's responses to these comments later in this final rule, NMFS believes that this allocation to the scallop fishery balances the multiple factors taken into consideration in achieving optimum yield (OY), while complying with the other requirements of the Magnuson-Stevens Act and the goals and objectives of the FMP, including preventing overfishing, minimizing bycatch, and preserving a directed groundfish fishery. Economic, social and ecological factors contributed to the Council's allocation decisions for this sub-ACL. In addition to creating a greater incentive to minimize bycatch of SNE/MA windowpane flounder while maximizing the catch of scallops, as a fixed percentage of the ABC this measure ensures that allowable scallop catches of this stock adjust to increases or declines in the ABC and the relative health of the stock. This allocation is also consistent with historic catches and maintains historic participation in the SNE/MA windowpane flounder fishery, is fair and equitable, and prevents excessive accumulation of shares of this ABC by the scallop fishery as required by National Standard 4 and the goals of the FMP, because it is based on recent catch history as a proportion of the ABC. Although this allocation may constrain scallop catches in future years, depending upon the ABC, to favor the scallop industry by maximizing overall benefits to the nation would be inconsistent with National Standard 8 which requires that management measures must take into account importance of fishery resources to fishing communities in order to provide sustained participation of such communities in fishing and, to the extent practicable, minimize adverse impacts on such communities. For these reasons, NMFS has approved this measure through this final rule.

Other Sub-Components Sub-ACL

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

9. Scallop Fishery Sub-ACL for GB Yellowtail Flounder

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

to account for management uncertainty. The scallop fishery sub-ACL for FY 2013 based on the U.S. ABC for GB yellowtail flounder was proposed in the Framework 50 proposed rule and the final sub-ACL will be published in the final rule for that action. NMFS would still re-estimate the expected scallop fishery catch of GB yellowtail flounder for the current fishing year by January 15. If the scallop fishery is projected to catch less than 90 percent of its GB yellowtail flounder sub-ACL, the Regional Administrator may reduce the scallop fishery sub-ACL to the amount projected to be caught, and increase the groundfish fishery sub-ACL by any amount up to the amount reduced from the scallop allocation. Overages will be calculated based on the revised sub-ACLs for the commercial groundfish fishery and the scallop fishery, and any applicable AMs would be triggered. Framework 48 also clarified that the overage payback for any overage of the U.S. TAC, as required by the Transboundary Resource Sharing Understanding, would be deducted from the sub-ACL for the fishery component that caused the overage.

This measure simplifies the specification of the scallop fishery's GB yellowtail flounder allocation each year by basing it formulaically on a fixed percentage of the ABC. This would provide stability for both the scallop and groundfish fisheries by creating a more predictable allocation scheme. NMFS received comments on the proposed rule expressing concern that this measure does not maximize the overall net benefit to the nation or minimize adverse impacts to communities because it would substantially constrain scallop revenue. As discussed in NMFS's response to these comments later in this final rule, NMFS believes that this allocation to the scallop fishery balances the multiple factors taken into consideration in achieving OY, while complying with the other requirements of the Magnuson-Stevens Act and the goals and objectives of the FMP, including preventing overfishing, minimizing bycatch, and preserving a directed groundfish fishery. Economic, social and ecological factors concerning the FMP's goals of preserving fishing opportunities for groundfish vessels, minimizing negative impacts on fishing communities, and reducing bycatch of groundfish stocks, contributed to the Council's allocation decisions for this sub-ACL and the SNE/MA windowpane flounder sub-ACLs. Allocating a fixed percentage of the ABC to the scallop fishery would create a greater incentive to avoid yellowtail flounder while maximizing the catch of scallops, than an allocation based on projected catch. A fixed percentage of the ABC also ensures that allowable scallop catches of GB yellowtail flounder adjust to increases or declines in the ABC and the relative health of the stock, compared to a method based on projected catch. This allocation is also consistent with historic catches and maintains historic participation in the yellowtail flounder fishery, is fair and equitable, and prevents excessive accumulation of shares of this ABC by the scallop fishery as required by National Standard 4 and the goals of the FMP, because it is based on recent catch history as a proportion of the ABC. Although this allocation may constrain scallop catches in future years, depending upon the ABC, to favor the scallop industry by maximizing overall benefits to the nation would be inconsistent with National Standard 8 which requires that management measures must take into account importance of fishery resources to fishing communities in order to provide sustained participation of such communities in fishing and, to the extent practicable, minimize adverse impacts on such communities. For these reasons, NMFS has approved this measure through this final rule.

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

NMFS has approved a sub-ACL of GB yellowtail flounder for small-mesh fisheries. Small-mesh bottom trawl fisheries are defined as vessels fishing with bottom otter trawl gear with a codend mesh size of less than 5 inches (12.7 cm). These vessels fishing on Georges Bank typically target whiting and squid. Small-mesh fisheries would be allocated 2 percent of the U.S. ABC for GB yellowtail flounder each year, after a reduction for management uncertainty. Each time the groundfish specifications are set, the management uncertainty buffer necessary for these small-mesh fisheries would be determined. If the small-mesh fisheries catch of GB yellowtail flounder exceeds the sub-ACL, the pertinent AMs would be triggered. There was not sufficient time to develop specific AMs in this action and allow for collaboration with the respective FMPs and the Mid-Atlantic Council (e.g., Atlantic Mackerel, Squid, and Butterfish; Small-Mesh Multispecies). Although a sub-ACL for FY 2013 was needed because of the expected reduction in the GB yellowtail flounder ABC in FY 2013, the Council reasoned that allowing additional time to work with these respective FMPs to develop AMs would not increase the risk of an overage in FY 2013, as long as the AMs are developed as soon as possible and applied retroactively to be effective for any overage in FY 2013. The small-mesh fisheries have not previously caused an overage of the GB yellowtail flounder ACL, so the situation was deemed less urgent than for SNE/MA windowpane flounder.

Prior to Framework 48, the quota for GB yellowtail flounder has been allocated to only the commercial groundfish and scallop fisheries. Although small-mesh fishery catches of GB yellowtail flounder have generally been less than 100 mt in recent years, the U.S. ABC for the stock has been declining. As a result, the small-mesh fishery catches account for an increasing percentage of the total U.S. catch. Allocating a sub-ACL and, subsequently, creating an AM for these fisheries would help ensure that small-mesh fishery catches would be constrained and prevent overages of the annual quota, thereby reducing the risk of overfishing, consistent with the requirements of National Standard 1 and section 303(a)(1) of the Magnuson-Stevens Act. In addition, because GB yellowtail flounder is jointly managed with Canada, keeping U.S. catches within the U.S. TAC is important to achieve the management and conservation objectives of the Understanding. This measure would also further the goals and objectives of the FMP and National Standard 9 to minimize bycatch to the extent practicable, by creating an incentive for small mesh fisheries to reduce bycatch of this stock. A sub-ACL for small-mesh fisheries, and associated AMs, would help ensure the component of the fishery that causes an overage would be held accountable. This measure would also likely prevent inequities that would occur if the commercial groundfish and scallop fisheries were held accountable for overages caused by the small-mesh fisheries.

11. Recreational Fishery AM

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

Administrator would consult with the Council, or the Council's designee, and would tell the Council, or its designee, what recreational measures are under consideration for the upcoming fishing year. If time allows, the Council would also provide its Recreational Advisory Panel (RAP) an opportunity to meet and discuss the proposed management measures. These AMs require development in consultation with the Council, because the appropriate suite of measures (e.g., bag limit, minimum fish size, season) depends on the ACL specified. A default suite of measures are not automatically triggered, because the sub-ACL and, thus, appropriate measures to achieve that sub-ACL, may differ between years. Similar to trip limits for the commercial common pool fishery, a certain suite of measures are projected to achieve a certain catch. To select the appropriate suite of measures, the ACL for the fishing year in which they will be used must be known in order to ensure the projected catch does not exceed the target. The Council provided guidance on its preference of measures that NMFS should consider if additional recreational effort controls are necessary to reduce GOM cod or GOM haddock catches, though this guidance does not restrict NMFS's discretion in selecting management measures that would best achieve, but not exceed, the recreational sub-ACL. If additional effort controls are necessary to reduce cod catches, the Council's non-binding preference is that NMFS first consider increases to minimum fish sizes, then adjustments to seasons, followed by changes to bag limits. If additional effort controls are necessary to reduce haddock catches, the Council's non-binding preference is that NMFS first consider increases to minimum size limits, then changes to bag limits, and adjustments to seasons last.

NMFS has approved this measure in Framework 48 because it would improve accountability in the recreational fishery. Currently, the recreational fishery AM only allows the Regional Administrator to change recreational measures if an ACL is exceeded. In addition, due to the delay in availability of recreational catch data at this time, AMs can only be implemented late in the year following an overage, at the start of the next recreational fishing season. This measure also gives NMFS and the Council the ability to adapt to changing fishery conditions, by evaluating recreational measures before the start of the fishing year to ensure those measures facilitate a target catch consistent with the sub-ACLs specified for the recreational fishery. This would help prevent overages of the recreational sub-ACL, and prevent substantial underharvests of the recreational sub-ACL. In addition, the requirement for NMFS to consult with the Council while developing measures allows increased opportunity for public comment, and provides states more opportunity to coordinate their recreational measures with NMFS.

Through the Framework 50 proposed rule, NMFS proposed and collected public comments on adjustments to recreational measures for FY 2013. Final recreational measures for FY 2013 will be announced in the final rule for that action.

12. Commercial Groundfish Fishery AMs

Change to AM Timing for Non-Allocated Stocks

NMFS has approved the revised timing for commercial groundfish fishery AMs for stocks not allocated to sectors (GOM/GB windowpane flounder, SNE/MA windowpane flounder, ocean pout, Atlantic halibut, Atlantic wolffish, and SNE/MA winter flounder), to improve the effectiveness of AMs adopted through Frameworks 47 and 48 for these stocks. Prior to this action, the AMs for these stocks would be implemented in the second year following an overage of the total ACL. For example, if the total ACL for ocean pout was exceeded in Year 1, the AM would be implemented in Year 3. However, this delay may not be needed in all cases. For example, fishery-dependent data is available in almost real time in the commercial groundfish fishery. If information was available during Year 1 that the commercial groundfish fishery had exceeded the overall ACL for ocean pout, under the current system an AM would still not be implemented until Year 3. This action revises the timing for these AMs, so that if reliable information is available during the fishing year (Year 1) that shows the total ACL has been exceeded, as in the example above, the respective AM for the stock would be implemented at the start of the next fishing year (Year 2). After the AM is implemented, if updated catch information shows that the total ACL was not exceeded, the AM would be rescinded consistent with the APA. This measure increases the effectiveness of the AM and would help prevent overfishing in consecutive years, consistent with the requirements of National Standard 1 of the Magnuson-Stevens Act.

The Council, as well as commenters on the Framework 48 proposed rule, expressed concerns that final catch data for the non-allocated stocks, which include catch from state waters and non-groundfish fisheries, could not be reliably available in time to trigger an AM in Year 2, or earlier. NMFS has heard the Council and industry's concerns with respect to the availability of data, and believes this measure balances the need for effective AMs with the need for stability in order for fishing businesses to plan for the upcoming fishing year. This action modifies the timing of the AMs so that should reliable information be available (e.g., the commercial groundfish fishery catches exceed the total ACL for a stock) the AM could be implemented more quickly. However, to provide stability for groundfish vessels, any applicable AMs for the non-allocated stocks would only be implemented at the start of a fishing year.

The Framework 48 proposed rule stated that if this measure was approved and implemented on or before May 1, 2013, and reliable information shows that the total ACL for a non-allocated stock is exceeded in FY 2012, then the respective AM would be implemented on May 1, 2013, for sector and common pool vessels. NMFS has reviewed available catch information as of April 16, 2013 and determined that, based on reliable catch information, the overall ACLs for these stocks have not been exceeded. Thus, none of the non-allocated stock AMs will be implemented for sector and common pool vessels in FY 2013. For this determination, NMFS considered commercial groundfish catches calculated from the Data Matching and Imputation System (DMIS) reliable due to the near real-time availability to estimate discards. To estimate commercial scallop fishery catches, NMFS used audited and preliminary observer data and fleet-wide scallop data from DMIS through February 28, 2013. NMFS determined this information to be reliable based on the near real-time availability of observer data to estimate discard rates in the scallop fishery. NMFS continues to make improvements to its data collection programs to improve the timeliness of data, and would evaluate the reliability of this information for making such determinations on an annual basis. Area-Based AMs for Atlantic Halibut, Atlantic Wolffish, and SNE/MA Winter Flounder.

NMFS has approved the proposed area-based AMs for Atlantic halibut, Atlantic wolffish, and SNE/MA winter flounder through this final rule. If the

total ACL is exceeded for any of these stocks by an amount greater than the management uncertainty buffer, gear restrictions would be triggered in designated areas that have been identified as hotspots for catches of these stocks. For overages of the Atlantic halibut and Atlantic wolffish ACLs, trawl vessels would be required to use approved selective gear, and sink gillnet and longline vessels would not be allowed to fish in the applicable AM area. For overages of the SNE/MA winter flounder ACL, only trawl gear would be restricted in the applicable AM area. As previously adopted in Framework 47, possession of non-allocated stocks would also be prohibited at all times, except for Atlantic halibut, which would be reduced from one fish per trip to zero if the total ACL is exceeded by an amount greater than the management uncertainty buffer. Approved selective trawl gears include the separator trawl, Ruhle trawl, mini-Ruhle trawl, rope trawl, and other gear authorized by the Council in a management action or approved for use consistent with the process defined in § 648.85(b)(6). Currently, the effective management uncertainty buffer at the overall ACL level is 3-7 percent for non-allocated stocks, depending upon the stock. The management uncertainty buffer can be changed each time groundfish specifications are set. Because these AM areas are designed to account for an ACL overage of up to 20 percent, if the total ACL is exceeded by 20 percent or more for one of these stocks, the AM would still be implemented, but the measure would be reviewed by the Council in a future management action. In addition, should a sub-ACL be allocated to other fisheries in a future action, and AMs developed for those fisheries, the AM for any fishery would be implemented only if the total ACL for the stock is exceeded, and the fishery also exceeds its sub-ACL. A detailed description of the development of these measures was included in Item 6 of the Framework 48 proposed rule and is not repeated here.

Note that Framework 50 allocates SNE/MA winter flounder to the groundfish fishery and allows landings beginning in FY 2013. Thus, sector-specific inseason AMs will apply for any overage from a sector's allocation in the next fishing year, and this area-based AM will apply only to common pool vessels if the common pool exceeds its sub-ACL for the stock.

NMFS has approved this measure because it creates effective reactive AMs to help prevent overfishing and ensures accountability in the commercial groundfish fishery. Proactive AMs implemented by Amendment 16 and Framework 47 were intended to prevent ACLs from being exceeded. However, reactive AMs are necessary to correct or mitigate overages of ACLs if they occur, as explained in the U.S. District Court of Appeals decision in
Oceana
v.
Locke et al.,
which found that the lack of sector-specific reactive AMs for the non-allocated stocks violated the Magnuson-Stevens Act. These measures are necessary to prevent overfishing of non-allocated stocks by adjusting fishery measures to reduce the likelihood that an ACL is exceeded in consecutive years. These reactive AMs are also necessary to address a remand by the Court as a result of that litigation, and to be consistent with the National Standard 1 guidelines.

Commenters on the proposed rule expressed concern that these AMs are triggered effectively by an overage of the ABC as opposed to the ACL. As NMFS explained in the proposed rule, this trigger level is an artifact of how the AMs were designed and not out of any intent to provide additional buffers before an AM is triggered. The PDT was not able to design an AM that could account for such a small overage of 1-3 percent that would not be easily undermined by a shift of effort to other areas. Furthermore, NMFS considers this to be an issue of semantics and one that does not violate the National Standard 1 guidelines. Defining the trigger as an overage greater than the management uncertainty is in concept the same as establishing an annual catch target (ACT) and a higher ACL (e.g., an ACL set equal to the ABC) that serves as the trigger for AMs, an approach which is allowed under National Standard 1 guidelines.

Commenters were also concerned about the lack of automatic measure adjustment that would account for overages larger than 20 percent of the ACL. NMFS maintains that these AMs are to account for possible overages by non-groundfish fisheries shown to have
de minimis
catches of groundfish. It is not expected that these components themselves are likely to exceed the sub-ACL by more than 20 percent, particularly with the continued implementation of proactive AMs that appear to have been effective at constraining catch below the ACLs in recent years. If zero possession continues to be an effective proactive AM, the reactive AM will likely not be triggered.

Revised AM for SNE/MA Windowpane Flounder

NMFS has approved the revised AM for SNE/MA windowpane flounder in this final rule. The revised AM now applies to the groundfish fishery and the other sub-component fisheries, which have been allocated a sub-ACL of SNE/MA windowpane flounder through this action (see Item 8 in this preamble). If the total ACL for this stock is exceeded by an amount greater than the management uncertainty buffer, and the “other sub-component” sub-ACL is also exceeded, then the area-based AM, described above, would apply to all trawl vessels using a codend with a mesh size of 5 inches (12.7 cm) or larger.

Prior to Framework 48, the AM for SNE/MA windowpane flounder only applied to commercial groundfish vessels. However, the commercial groundfish fishery has typically accounted for less than 25 percent of the total SNE/MA windowpane flounder catch in recent years. A large portion of the total SNE/MA windowpane flounder catch is caught by trawl vessels in non-groundfish fisheries fishing with mesh size of 5 inches (12.7 cm) or greater. Thus, the current AM may not effectively restrict catches of this stock if the total ACL is exceeded, which increases the likelihood of consecutive overages in future fishing years. This revision helps ensure that, in the event of an overage, catches would be effectively restricted to prevent overfishing. In addition, this action would remove potential inequities that could occur if only the commercial groundfish fishery was subject to an AM for SNE/MA windowpane flounder, even though its catches represent a small portion of the total catch for this stock.

As implemented in Framework 47, the area-based AM for commercial groundfish vessels is triggered only if the commercial groundfish fishery exceeds its sub-ACL and the total ACL is also exceeded by an amount greater than the management uncertainty buffer. Similarly, the scallop fishery's AM is triggered only if the total ACL is exceeded and the scallop fishery sub-ACL is also exceeded. This ensures that each fishery is only accountable for any overages it caused and not those caused by any other fishery with a sub-ACL of this stock.

As discussed in the previous section, commenters on the proposed rule expressed concern that non-allocated stock AMs are triggered effectively by an overage of the ABC as opposed to the ACL, and that these AMs do not have

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

Revised Handgear Permit AMs

The revised handgear AMs are approved through this final rule. This measure exempts Handgear A and Handgear B permits from the white hake trimester TAC AM. This exemption would remain effective unless a future action modified this AM. Handgear A and B common pool vessels would still be subject to the trimester TAC for cod, haddock, and pollock. This measure also authorizes the Regional Administrator to exempt Handgear A and Handgear B common pool vessels from the trimester TAC provisions for other stocks if catch by these vessels is less than 1 percent of the total common pool catch of that species or stock. This determination would be made prior to the start of the fishing year, and would be implemented through procedures consistent with the APA.

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

13. Commercial Fishery Minimum Fish Sizes

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

Table 4—Changes to Minimum Fish Sizes Limits for Groundfish Stocks

Species

Current Size
(inches)

Proposed FW 48 Size
(inches)

Cod
22 (55.9 cm)
19 (48.3 cm)

Haddock
18 (45.7 cm)
16 (40.6 cm)

Pollock
19 (48.3 cm)
No change

Witch flounder (gray sole)
14 (35.6 cm)
13 (33 cm)

Yellowtail flounder
13 (33.0 cm)
12 (30.5 cm)

American plaice (dab)
14 (35.6 cm)
12 (30.5 cm)

Atlantic halibut
41 (104.1 cm)
No change

Winter flounder (blackback)
12 (30.5 cm)
No change

Redfish
9 (22.9 cm)
7 (17.8 cm)

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

and at the request of the Council, NMFS is exploring ways to monitor the length frequency of catch in the commercial groundfish fishery beginning in FY 2013 to see if a change in selectivity could be detected. If such an analysis could be completed, NMFS could use this information to advise the Council if adjustments should be considered in a future action.

The Massachusetts Division of Marine Fisheries (MADMF) submitted a comment on the proposed rule raising concerns that if these measures are approved and state agencies do not follow suit, sector vessels would be forced to discard fish that do not meet the state minimum fish size in violation of the federal requirement for them to retain all fish of legal size. NMFS is also concerned about discrepancies between state and federal minimum fish sizes complicating compliance and enforcement of this measure. If a state does not make corresponding adjustments to fish sizes, vessels could land their catch in other states' ports. NMFS does not favor this result and the impacts it would have on the non-conforming state, and, for that reason strongly urges all affected states to match these size reductions. To address this concern, NMFS is delaying the effective date of these new minimum sizes to July 1, 2013, to allow state agencies additional time to consider and make corresponding adjustments to their minimum sizes.

14. Sector Monitoring Programs

Eliminate Dockside Monitoring

NMFS has approved the elimination of dockside monitoring requirements for the groundfish fishery. Amendment 16 required sectors and the common pool to implement a dockside monitoring program to validate dealer-reported landings beginning in FY 2010 and 2012, respectively. Framework 45 delayed the implementation of these requirements after only a year until FY 2013. Like at-sea monitoring, the Council is concerned about the industry's ability to support this cost burden in FY 2013 and in future years, particularly in light of concerns about its utility, and proposed eliminating the dockside monitoring program altogether through Framework 48.

NMFS approved this measure because it believes that dealer reporting combined with dockside intercepts by enforcement personnel are sufficient to ensure reliable landings data at this time. Dealer-reported fish weights are used as the principle source to monitor commercial landings. Thus, dockside monitor reports, which verify dealer-recorded weights, are somewhat redundant. Random dockside intercepts by enforcement personnel, facilitated by trip-end hails, provide a deterrent against misreporting of catch and illegal landings. In addition, eliminating the program would reduce costs and potentially increase the profitability of the commercial industry in future years.

It was not clear from Framework 48 whether eliminating the dockside monitoring program included removing the current dockside monitoring hail requirements. NMFS proposed maintaining hail requirements in the Framework 48 proposed rule, because they facilitate the monitoring and enforcement of sector operations and landings. NMFS did not receive any comments from the Council or members of the public opposing this proposal, thus NMFS concludes that it is justified in maintaining the hail requirements at this time. These hails will be a useful tool for both NMFS and sector managers to monitor sector vessels' activities, including the use of certain sector exemptions, and to facilitate dockside intercepts by enforcement personnel. NMFS is also clarifying the regulatory text of this proposed rule at § 648.10(k)(1), consistent with Framework 45, so that hails may be modified in the future to be streamlined with other reporting requirements that collect similar fishery data, such as VTRs and VMS catch reports.

Sector Monitoring Goals and Performance Standard

NMFS has approved the proposed revisions to the goals and objectives, and performance standard, established for sector monitoring programs and, relying in part on section 305(d) of the Magnuson-Stevens Act, implements new regulatory text to reflect these revised goals and objectives and ensure they are carried out in a manner consistent with the Act. Amendment 16 did not lay out explicit goals for sector monitoring, but described several general purposes for the programs, including to provide accurate estimates of sector catch and to verify area and gear fished, to ensure sector allocations are not exceeded. The lack of well-defined goals and purposes for sector monitoring requirements has led to confusion about how to implement these requirements and has hindered efforts to improve them. This measure and its implementing regulatory text clarify and elaborate on the goals and objectives for existing and future groundfish monitoring programs to help the Council and NMFS to implement monitoring requirements consistent with the goals of the FMP and to evaluate these programs in the future. More explicit goals and objectives would also assist NMFS and the sectors in designing and evaluating proposals to satisfy monitoring requirements in sector operations plans, ensuring the reliability of catch estimates and accountability of catches. The new goals and objectives include that groundfish monitoring programs improve documentation of catch, determining total catch and effort of regulated species, and achieve a coverage level sufficient to minimize effects of potential monitoring bias to the extent possible, while enhancing fleet viability. Monitoring programs should also reduce the cost of monitoring, streamlining data management and eliminating redundancy, exploring options for cost-sharing, while recognizing the opportunity costs of insufficient monitoring. Other goals and objectives include incentivizing reducing discards, providing additional data streams for stock assessments, reducing management and/or biological uncertainty, and enhancing the safety of the monitoring program. It is also an explicit goal of such programs to periodically evaluate them for effectiveness. The complete list of goals and objectives for groundfish monitoring programs is specified in the NE multispecies regulations at § 648.11(l) and in Framework 48.

Amendment 16 specified a performance standard that coverage levels must be sufficient to at least meet the coefficient of variation (CV) specified in SBRM (a CV of 30 percent), but was unclear as to what level the CV standard is to be applied to—discard estimates at the stock level for all sectors, or for each combination of sector and stock. This has resulted in a lack of specific direction and specification about the appropriate coverage level needed to “accurately monitor sector operations.” This measure in Framework 48 clarifies that the CV standard is intended to apply to discard estimates at the overall stock level for all sectors combined. As discussed in NMFS's response to comments on this measure, the Council and NMFS believe this level is sufficient as a minimum standard for monitoring sector ACEs, consistent with the goals of Amendment 16 and the FMP. Amendment 16 specified that coverage levels should be less than 100 percent, which requires that the discard portion of catch, and thus total catch, be an estimate. The level of observer coverage, ultimately, should provide confidence that the overall catch estimate is accurate enough to ensure that sector

fishing activities are consistent with National Standard 1 requirements to prevent overfishing while achieving on a continuing basis optimum yield from each fishery. NMFS's analysis of CVs achieved at the sector-stock level using a performance standard at the stock level showed that the vast majority of ACE level catch figures achieved a CV of 30 percent or better. This examination revealed that for 207 of the 256 ACE allocations, the percent of discard pounds for which the CV was greater than 30 percent was less than 1 percent. For 43 of the remaining ACE allocations, the percent of discard pounds for which the CV was greater than 30 percent ranged from 1-9.9 percent. There were 6 ACE allocations for which the percent of discard pounds with a CV greater than 30 percent ranged from 10-66 percent. A report of this analysis is available at:
http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/FY2013_Multispecies_Sector_ASM_Requirements_Summary.pdf
Discards are only a portion of total catch, thus the majority of catch estimates are based on landings information, which is obtained by dealer reported data, verified by VTRs, and sector weekly reports. In addition, NMFS and sector managers engage in an extensive reconciliation process to quality assure and quality check data streams used to estimate and monitor sector catch toward ACEs. To further guard against possible uncertainty in these estimates resulting in an overage at the ACL level, substantial management uncertainty buffers are established before the ACL and sub-ACLs are allocated. Based on this analysis, we concluded that a CV standard at the stock level provides coverage rates that are sufficiently reliable to monitor sector ACEs. Thus NMFS has approved this measure in Framework 48.

NMFS will use this standard to help determine the minimum coverage rates for sector at-sea monitoring programs in future fishing years. Note that, although the Framework 48 document discusses the clarified standard with respect to “allocated stocks,” the final regulatory text applies the CV standard to all groundfish stocks, allocated and non-allocated. This was an inadvertent error in the Framework 48 document and, thus, the Council has deemed the corrected regulatory text as consistent with its intent.

This measure also makes clear what other factors should be taken into account in determining the appropriate level of coverage for groundfish monitoring programs, as described in the clarified goals and objectives for monitoring programs. NMFS interprets these provisions as guidance based on a practicability standard for determining the level of at-sea monitoring coverage that is appropriate for monitoring sector operations to help ensure that overall catch by sector vessels does not exceed ACEs and ACLs. Thus, NMFS has revised the regulatory text with respect to sector monitoring requirements to reflect the clarified goals and performance standard for sector monitoring programs, and to take into account the National Standards and other requirements of the Magnuson-Stevens Act. NMFS has revised the regulatory text at § 648.87(b)(1)(v)(B) to read that coverage levels must at least meet the CV standard at the overall stock level and be sufficient to monitor sector operations, to the extent practicable, in order to reliably estimate overall catch by sector vessels.

In addition to the revised goals and objectives in Framework 48, NMFS will specifically take into account National Standards 2, 7, and 8 in making its determination of the appropriate level of at-sea monitoring coverage for sectors on an annual basis. These National Standards specifically speak to using the best scientific information available, minimizing costs and avoiding unnecessary duplication where practicable, taking into account impacts on fishing communities, and minimizing adverse economic impacts to the extent practicable.

Reduce At-Sea Monitoring for Monkfish Trips

Framework 48 proposed to implement a lower at-sea coverage rate for sector vessels fishing on a monkfish day-at-sea (DAS) in the SNE Broad Stock Area with extra-large mesh gillnets. Currently, sector monitoring requirements are defined to apply to any trip where groundfish catch counts against a sector's ACE. Because the Skate and Monkfish FMPs require the use of a DAS, including a groundfish DAS, to target these species, sector vessels fishing for monkfish and skates are charged ACE for any landings or discards of groundfish and are subject to sector at-sea monitoring coverage on these trips. When truly targeting monkfish or skates, however, sector vessels often use gear that has little or no bycatch of groundfish. With limited resources for at-sea monitoring, covering trips targeting skate or monkfish is arguably a waste of resources and does not contribute to improving the overall precision and accuracy of discard estimates. Thus, NMFS has approved this measure in Framework 48 that exempts a subset of sector trips that are declared into the SNE Broad Stock Area on a monkfish DAS and using extra-large mesh gillnets from the standard at-sea monitoring coverage rate. This measure should reduce at-sea monitoring costs to sectors, particularly to gillnet vessels that fall in this category. It would also allow resources to be diverted to monitor trips that catch more groundfish, which could improve discard estimates for directed groundfish trips, and all other sector trips would still be required to meet the CV standard at a minimum.

NMFS will specify some lower coverage rate for these trips on an annual basis when determining coverage rates for all other sector trips. At a minimum, these trips would get Northeast Fishery Observer Program (NEFOP) coverage. As discussed in Item 8 of the Framework 48 proposed rule, NMFS has determined that NEFOP coverage is sufficient to monitor these trips in FY 2013. Because this subset of trips would have a different coverage level than other sector trips in the SNE Broad Stock Area, NMFS has determined that these trips require a separate discard strata for each stock to ensure the different coverage levels do not bias discard estimates. To facilitate deploying appropriate coverage levels, a sector vessel must notify NEFOP as to whether it intends to fish under this exemption through the Pre-Trip Notification System (PTNS). NMFS will provide specific instructions for how to declare this option in PTNS in a Fishery Bulletin sent to all sector vessels. To minimize the possibility that this measure could be used to avoid at-sea monitoring coverage, only vessels meeting the criteria and intending to fish exclusively in the SNE Broad Stock Area are eligible for lower coverage. Vessels declaring multi-Broad Stock Area trips are not eligible for the lower selection probability. In addition, a vessel is already prohibited from changing its fishing plan for a trip once a waiver from coverage has been issued. NMFS has revised the pre-trip notification regulations at § 648.11(k)(1) to make clear that a vessel's fishing plan includes the area to be fished, whether a monkfish DAS will be used, and gear type to be used.

This measure also requires that NMFS develop a method for identifying these trips in the fishery dependent datasets in order to ensure they are appropriately stratified in stock assessments. The NMFS Northeast Regional Office is working with the Northeast Fisheries Science Center to identify the appropriate method to transmit this information to assessment scientists. To assist NMFS in identifying these trips

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

15. List of Allowable Sector Exemption Requests

NMFS has approved a provision in Framework 48 to allow sectors to submit limited requests for exemption from portions of year-round closure areas. Framework 48 proposed to amend the list of regulations that sectors could not request exemption from. Amendment 16 allowed a sector to make requests to the Regional Administrator for exemption from some NE multispecies regulations as part of its annual sector operations plan. Amendment 16, and later Framework 47, identified a list of FMP measures that sectors could not request exemption from, including: Year-round closure areas; permitting restrictions (e.g., vessel upgrade limits, etc.); gear restrictions designed to minimize habitat impacts (e.g., roller gear restrictions, etc.); reporting requirements; and AMs for non-allocated stocks. Sectors were prohibited from requesting these exemptions because they serve multiple purposes and do not necessarily act exclusively as mortality controls.

Beginning in FY 2013, sectors may request exemption from the year-round groundfish mortality closures, except for where they overlap current or proposed habitat closed areas. These areas are defined as the existing habitat closed areas specified at § 648.81(h) and the Fippennies Ledge area under consideration as a potential habitat management area in the Omnibus EFH Amendment currently under development by the Council. Sectors may not request exemption from the Western GOM Closed Area, where it overlaps with a GOM Rolling Closure Area in effect. At this time, GOM Rolling Closure Area III overlaps the northeast corner of the Western GOM Closed Area, so sectors would not be allowed to request access to this portion of the Western GOM Closed Area during May. Sectors may also not request access to Closed Area I and II from February 16th through April 30th.

Council members, members of the public, the fishing industry, and environmental groups expressed a number of concerns during the development of Framework 48 and in the public comment period on the proposed rule, about allowing additional access to groundfish closed areas. Some comments concerned the potential for this measure and any proposed sector exemptions to undermine measures under consideration in the Omnibus EFH Amendment. Concerns were also raised about potential impacts to protected species, spawning groundfish, and to other commercial species, like lobsters, from opening these areas to additional fishing effort. Some commenters also raised concerns that allowing groundfish vessels into these areas, mainly Closed Area II, could increase gear conflicts between mobile and lobster gear. To address some of these issues, the Council imposed the limitations described above, excluding existing and potential habitat closed areas to preserve the process under way to evaluate these areas in the Omnibus EFH Amendment. The Council also took steps to continue protections for spawning groundfish by including seasonal restrictions on any sector exemptions. NMFS responds to specific comments submitted on the proposed rule for Framework 48 in this final rule.

As NMFS clarified in the proposed rule, Framework 48 does not actually approve the exemptions needed to fish in these closed areas. The impacts of any actual fishing effort, including the concerns raised in public comments during the development of Framework 48, would be evaluated and could be mitigated through the annual review and approval of sector operations plans and exemption requests for each fishing year. The Council has already asked that the specific issues raised during the development of Framework 48 be evaluated by NMFS in the consideration of any specific sector exemption requests. In addition, many of the issues regarding sector access to closed areas raised in public comments on the proposed rule, will be analyzed should NMFS propose granting sector exemption closed area access. The sector exemption review and approval process also provides better opportunity to address specific concerns with the potential impact of actual sector proposals. The Regional Administrator may include stipulations and constraints on specific exemptions to facilitate the monitoring and enforcement of sector operations or as mitigation measures to address specific potential impacts.

After review of public comments, NMFS has approved this measure in this final rule. The Council designed this measure to maintain the purpose of existing habitat areas to minimize the adverse effects of fishing on EFH, and preserve the consideration of additional habitat and other management areas in the Omnibus EFH Amendment. The Council also took steps to limit potential impacts of requests on spawning groundfish. This change to the list of prohibited exemptions would allow the consideration and analysis of specific sector exemption requests on a case-by-case basis. If approved, sector exemptions to portions of these areas may help mitigate the expected reductions in FY 2013 catch limits by allowing sectors to potentially increase catches of healthy groundfish stocks such as GB haddock and pollock that may be more abundant in these areas.

In anticipation of this change being approved for FY 2013, sectors submitted requests for exemptions from portions of the year-round closed areas in their FY 2013 operations plans. Due to the need for additional time to analyze these new exemptions adequately, NMFS intends to consider these sector requests in a separate rulemaking from the general approval of sector operations plans for FY 2013. The closed area exemption requests would be considered as amendments to the sector operations plans through a proposed and final rule that would be available for public comment with an accompanying National Environmental Policy Act (NEPA) analysis. Any closed area exemption requests, if approved, would not be in place until after the start of the 2013 fishing year.

16. Additional Corrections

In addition to the changes specified above, the following changes to the regulations are approved to correct incorrect references and to further clarify the intent of the Council.

In § 648.4(a)(1)(ii), this rule corrects a misspelling of the word “multispecies.”

In § 648.80(a)(3)(vii), this rule clarifies that rockhopper and roller gear requirements of the GOM/GB Inshore Restricted Roller Gear Area apply only to groundfish vessels on a NE multispecies DAS or sector trip. This correction is made at the request of the Council, in response to a letter sent April 30, 2012.

In § 648.82(k)(2), language prohibiting sector vessels from leasing DAS is removed. This language is left over from Amendment 13 and should have been removed in the final rule implementing Amendment 16, which allowed sectors vessels to lease DAS among themselves.

In § 648.82(n)(2)(i), this rule clarifies that common pool trimester TAC area closures are intended to apply to common pool vessels using gear capable of catching groundfish only when on a

NE multispecies DAS, and not when participating in exempted fisheries.

In § 648.82(n)(2)(ii)(A), this rule corrects the coordinates for the GB Cod Trimester TAC Area. Amendment 16 defined the area as being composed of statistical areas 521, 522, 525, and 561. However, the coordinates used to define the GB Cod Trimester TAC Area were incorrectly transposed in the Amendment 16 final rule and included statistical area 562; this is rectified by this action.

In § 648.82(n)(2)(ii)(B), Points 4 and 5 incorrectly list the N. Lat. as 43°20′, and this action corrects them to read 43°10′.

In § 648.82(n)(2)(ii)(H) and (I), the original coordinate AP8 was unnecessary and is removed by this action.

In § 648.82(n)(2)(ii)(J), this rule corrects the coordinates for the GB Winter Flounder Trimester TAC Area. Amendment 16 defined the area as being composed of statistical areas 522, 525, 561, and 562. However, the coordinates used to define the GB Winter Flounder Trimester TAC Area were incorrectly transposed in the Amendment 16 final rule and did not include statistical areas 525 and 561; this is rectified by this action.

In § 648.84(e), this rule adds a regulatory definition for the rope separator trawl. The definition for the rope separator was inadvertently removed from the regulations by the Framework 47 final rule. This rule adds the regulatory definition back into the regulations.

In § 648.85(a)(3)(iv)(E), the regulations allow for the Regional Administrator to close the Eastern U.S./Canada Area to all vessels subject to a particular TAC allocation if that particular TAC allocation is projected to be caught. This rule clarifies that this is only to apply to allocations to sectors and common pool vessels, and not the scallop fishery or other ACL components. Amendment 16 and Framework 48 clarified that inseason and reactive accountability measures for sub-ACLs for non-groundfish components of ACLs are to be developed and administered by those respective FMPs.

In § 648.85(b)(7)(iv)(H), an explicit reference to possession limits for other groundfish stocks, including stocks prohibited from being landed, in § 648.86 is added in the description of landings limits for the Closed Area I Hook Gear Haddock Special Access Program (SAP).

In § 648.85(b)(8)(v)(C), the timing of the pre-trip notification to the observer program for a US/CA trip is revised from 72 hr to 48 hr. Prior to Amendment 16, vessels taking trips into the U.S./Canada were required to notify the observer program of their intent to take a trip 72 hr prior to departure. With the implementation of Amendment 16, NMFS established a standardized call-in requirement to the observer program that reduced this lead time to 48 hr.

In § 648.85(d), a period that was incorrectly inserted after “NE” is removed.

In § 648.86(a)(3)(ii), periods that were incorrectly inserted after “NE” is removed.

In § 648.86(a)(3)(ii)(A)(
3
), the table title for the GB Herring Haddock AM Area was incorrectly published as the GOM area. This rule corrects the table title.

In § 648.87(b)(1)(ii), sector stock area coordinates that were to be implemented by Framework 44 but were inadvertently left out of the regulations are added through this rule as paragraphs (A) through (F).

In § 648.90(a)(5)(iii), a period that was incorrectly inserted after “NE” is removed.

In § 648.201(a)(2), the prohibition on landing of haddock is clarified to apply only to the haddock stock area for which the AM has been triggered. An explicit reference is added to the haddock possession restrictions in the NE multispecies regulations at § 648.86(a)(3)(ii)(A).

Comments and Responses

NMFS received 75,393 comments during the comment period on the Framework 48 proposed rule, including 75,263 form letters opposing allowing sectors access to groundfish closed areas. Letters were also received from the Council, the USCG, MADMF, the Maine Department of Marine Resources (MEDMR), 7 environmental organizations, 3 research institutions, numerous members of the academic community, a whale watch company, 7 commercial fishing industry groups, 2 recreational fishing associations, a commercial fish dealer, and 106 individuals. Some of the comments did not address the proposed measures and thus they are not included here. Where possible, responses to similar comments on the proposed measures have been consolidated.

Comment 1:
NMFS received one comment on the economic analysis in the draft Framework 48 EA and the IRFA. MADMF commented that the economic analysis of measures in Framework 48 should have focused on the individual level and that any other level of analysis would not result in accurate characterizations about the impacts of Framework 48 measures on individuals. MADMF also questioned the assumption that impacts to vessels would also be applicable to ownership entities and noted that the conclusion in the IRFA that Framework 48 measures would not have a disproportionate impact on small entities seems to contradict the conclusion elsewhere in Framework 48 that small vessels would suffer the highest percent reduction in net revenues from sector monitoring requirements.

Response:
NMFS believes the commenter may be misunderstanding the economic analyses in Framework 48. It appears the commenter has misinterpreted the conclusions in the economic analysis for this action. Individual measures are analyzed independently relative to the no action alternative for each particular measure, because each measure must be approved or disapproved based on its individual merits. The cumulative impacts of an action and all other foreseeable actions are also analyzed in the cumulative effects analysis of the EA. For example, the analysis suggested that reducing the commercial minimum fish sizes could increase revenues and, thereby, serves as a mitigation measure, when compared to not reducing the minimum sizes. Extrapolating the conclusion of the economic impact of an individual measure to impacts of the entire action is not appropriate. It is not clear what MADMF defines as an “individual” and, therefore, what analysis it believes is missing. The term “ownership entity,” as opposed to a vessel, has a specific meaning in analyses under the Regulatory Flexibility Act (RFA) for Framework 48 and the proposed rule, which is where these terms are used. Similarly, small vessels are not the same as small entities. A small vessel refers to the relative size or length of the vessel itself as some measure of capacity to generate revenue. As described in the IRFA, the Small Business Administration (SBA) defines a small business as one that is: independently owned and operated; not dominant in its field of operation; has annual receipts not in excess of $4.0 million in the case of commercial harvesting entities, or $7.0 million in the case of for-hire fishing entities; or if it has fewer than 500 employees in the case of fish processors, or 100 employees in the case of fish dealers. This is the definition of a small entity used for the purposes of an RFA analysis. Thus, a small or large entity could own or control a number of small vessels. The assumptions used to aggregate vessels or permits to the ownership entity level was explained in the RFA section of Framework 48 (section 8.11.2), and conforms to NMFS

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

Status Determination Criteria

Comment 2:
The Island Institute commented in support of the revised status determination criteria and how these measures will make way for setting appropriate ABCs and ACLs in Framework 50.

Response:
NMFS agrees that the revised status determination criteria represent the best available science and would allow the appropriate ABCs and ACLs to be set beginning in FY 2013 to end overfishing and continue the rebuilding of groundfish stocks. NMFS has approved the revised status determination criteria in this final rule.

Comment 3:
The Conservation Law Foundation (CLF), MADMF, and the Northeast Seafood Coalition (NSC) raised questions related to the methods and results of the assessments for SNE/MA yellowtail flounder, and GOM and GB cod. CLF questioned NMFS and the Council's determination that the revised SNE/MA yellowtail flounder status determination criteria represent the best available science when the recruitment scenarios that were considered by the SARC were almost equally likely, but resulted in such different stock status. MADMF pointed out that NMFS proposed two numerical values for status determination criteria for GOM cod, but did not specify which it preferred and proposed to approve. MADMF questioned why the SARC did not conclude that natural mortality for GOM cod would be sustained at 0.4 or higher. MADMF also asked NMFS to clarify why the GOM and GB cod assessments did not conclude there has been a change in productivity for these stocks as for SNE/MA yellowtail flounder. NSC challenged that the revised status determination criteria do not represent the best available science because the assessments did not consider alternate methods for deriving F
MSY
proxies. NSC asked NMFS to ask the Council and SSC to consider alternate methods for establishing F
MSY
other than F
40%
MSP
in stock assessments. They challenged that this is a policy decision with management implications and therefore should be made by the SSC and Council, rather than the NEFSC.

Response:
NMFS first notes that an error was made in the Framework 48 proposed rule with respect to the overfishing status of SNE/MA yellowtail flounder under the two recruitment scenarios. The Framework 48 proposed rule erroneously stated that SNE/MA yellowtail was experiencing overfishing under the “two-stanza” recruitment scenario, when both recruitment scenarios actually led to the conclusion that this stock was not experiencing overfishing.

With respect to the reference points for GOM cod, two sets of status determination criteria were proposed because the SARC accepted two models at the assessment. These models resulted in one maximum fish mortality threshold, but two sets of biomass reference points. Although this approach for determining numerical values for stock status is less straightforward, both models concluded that GOM cod is overfished and undergoing overfishing. NMFS has approved both sets of revised reference points for GOM cod in this final rule.

NMFS understands CLF and MADMF's concerns about the amount of uncertainty in the biomass reference points for SNE/MA yellowtail flounder and GOM cod. SARC 54 modeled possible reasons for reduced recent recruitment of SNE/MA yellowtail flounder, but could not fully explain the low productivity of this stock. SARC 55 reviewed information on natural mortality of GOM cod, but was unable to reach a decision on which natural mortality values best characterized the system. Investigating possible sources of changes in productivity was not a specific TOR in the cod assessments, as it was in the SNE/MA yellowtail flounder assessment. However, the TORs for these assessments were vetted by the Northeast Regional Coordinating Committee (NRCC), which includes representatives of the New England and Mid-Atlantic Councils and their SSCs. There are basic TORs that are the foundation for the TORs of all assessments, but stock-specific TORs may be added based on research recommendations, generated by developments in the science or politics of a particular stock, and vetted by the NRCC. Even without a specific TOR, the SAW working group reviews all available information and the public may submit papers to the working group to consider in their analyses and deliberations. A detailed discussion of the review panels' deliberations are available in the assessment reports and review panel summaries on the NEFSC Web site:
http://www.nefsc.noaa.gov/saw/reports.html.
More exploration is needed, yet the results of the SARC 54 and 55 assessments, even with the acknowledged uncertainty, represent the best scientific information available about the state of SNE/MA yellowtail flounder and GOM cod at this time. These reference points were endorsed by both the SSC and NEFSC for use in managing these stocks. NMFS has approved the revised status determination criteria in this final rule.

Regarding NSC's assertion that the proposed status determination criteria do not represent the best available science because the assessments did not consider alternate methods for deriving F
MSY
, the Framework 48 proposed rule did not propose or solicit public comment on assessment methods. NMFS can only approve, partially approve, or disapprove the status determination criteria proposed in Framework 48 based upon an evaluation of its compliance with the Magnuson-Stevens Act, the National Standards Guidelines, the FMP, and other applicable law. It would not be appropriate or permissible for NMFS to choose an alternate F
MSY
reference point through this final rule that was not considered by the SSC or Council. That being said, the TORs generated for each assessment, and vetted by the NRCC with representations by both Councils and their SSCs, specifically direct the SAW/SARC to determine F
MSY
or, if a direct estimate of F
MSY
cannot be determined, to select an appropriate proxy. Thus, F
MSY
or methods for determining its proxy are evaluated and recommended by each SAW and approved by each SARC, and are not pre-determined as NSC seems to suggest, although an F
MSY
proxy of 40%MSP may be the result in many assessments. The NSC has already forwarded its concerns about the determination of F
MSY
proxies to the Council for consideration and the Council may choose to pursue this issue for future assessments. However, the numerical estimates of F
MSY
proposed in Framework 48 for SNE/MA yellowtail

flounder, GOM and GB cod, were reviewed and accepted by the review panels at SARC 54 and 55, the SSC, and the Council, as the best science available for management of these stocks. Subsequently, NMFS has approved these status determination criteria as consistent with the requirements of the Magnuson-Stevens Act and the FMP.

Comment 4:
The NEFMC, MEDMR, and Maine Coast Fishermen's Association (MCFA) urged NMFS to implement updated status determination criteria for white hake as soon as possible based upon the results of SARC 56 that recently became available. The results of this latest benchmark assessment suggest an increase in the FY 2013 ACL for white hake would be warranted, which would provide additional economic opportunity to groundfish vessels in FY 2013.

Response:
NMFS agrees that the results of the SARC 56 benchmark assessment for white hake represent the best scientific information available for this stock and implements updated status determination criteria for white hake through this final rule (Item 7). The revised status determination criteria were not proposed for public comment in the Framework 48 proposed rule because the assessment results were not yet available (see Item 1 of the proposed rule). However, NMFS believes it is appropriate to implement the updated status determination criteria through this final rule because the Council recommended and analyzed updated status determination in Framework 48 in case the assessment results became available in time for rulemaking. In addition, the SARC 56 assessment shows a change in the stock's status, from overfished and subject to overfishing to neither overfished nor undergoing overfishing, and that is expected to meet its rebuilding end date of 2014. NMFS is implementing the revised white hake status determination criteria with a post promulgation comment period to allow for additional public comment on this measure.

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

Comment 5:
Four commenters supported establishing sub-ACLs of SNE/MA windowpane flounder for the scallop fishery and other sub-component fisheries, including revising the SNE/MA windowpane flounder commercial groundfish fishery AM to apply to other sub-component fisheries with catch of this stock. AFM generally supported the allocation of this stock to the scallop fishery. NSC, CLF, and Oceana commented in support of both proposed sub-ACLs and the revised AM. CLF commented that these measures are justified given the significant overages of the SNE/MA windowpane flounder ACL in recent years. Oceana also commented that the proposed sub-ACLs increases accountability for fisheries with more than a
de minimis
catch of groundfish.

Response:
NMFS agrees that the proposed measures increase accountability among fisheries with a measurable catch of groundfish. Sub-ACLs and AMs encourage these fisheries to minimize catches of SNE/MA windowpane flounder, consistent with the objectives of the FMP and National Standard 9 of the Magnuson-Stevens Act. NMFS has approved these measures through this final rule.

Comment 6:
NMFS received seven comments in support of the revised GB yellowtail flounder sub-ACL for the scallop fishery. One individual simply expressed support for the revised sub-ACL as proposed. MEDMR, Associated Fisheries of Maine (AFM), NSC, and one individual supported the revised sub-ACL, because it improves accountability for the scallop fishery and holds each component of the fishery responsible for its own catches. NSC and MEDMR commented that the fixed percentage reflects historical catch. CLF and MEDMR believe the revised allocation creates an incentive for the scallop fishery to reduce bycatch of GB yellowtail flounder. AFM and the Portland Fish Exchange also commented that the fixed percentage provides more stability for groundfish fishermen because it is a more predictable allocation.

Response:
NMFS agrees that the fixed percentage provides stability to the scallop and groundfish fisheries by simplifying the allocation scheme. NMFS also agrees that the revised sub-ACL provides an incentive for the scallop fishery to reduce its catch of GB yellowtail flounder and has approved this measure in this final rule.

Comment 7:
Fisheries Survival Fund (FSF) supported the allocation of 40 percent of the GB yellowtail flounder U.S. ABC in FY 2013, because it provides for most of the scallop fishery's projected need, while providing an allocation for the groundfish fishery and maintaining an incentive for the scallop fishery to avoid yellowtail flounder. However, FSF opposed the allocation of 16 percent of the GB yellowtail flounder U.S. ABC in FY 2014 and each year after, and 36 percent of the SNE/MA windowpane flounder ACL, because they will result in lost scallop revenues over the long term. FSF also opposed the proposed sub-ACL of SNE/MA windowpane flounder for the other sub-component fisheries, because it will reduce revenues from the fluke fishery. FSF argues that the Council made these allocations in order to maintain a directed groundfish fishery for GB yellowtail flounder. As an alternative, FSF argues, the Council could have closed the directed fishery for GB yellowtail flounder and implemented a zero possession limit for GB yellowtail flounder as it has done for SNE/MA windowpane flounder to promote the greater good, the prosecution of the more valuable scallop and fluke fisheries. FSF argues that by constraining the scallop and fluke fisheries with these sub-ACLs, the Council has not maximized the overall benefit to the nation and reduced the ability of the scallop fishery to achieve optimum yield on a continuing basis, violating National Standard 1.

FSF further contends that these measures do not minimize adverse economic impacts on fishing communities as required by National Standard 8, because they sacrifice valuable scallop and fluke fishery landings for the communities that depend on these revenues, in favor of the less valuable GB yellowtail flounder landings. FSF also urged NMFS to accelerate access for the scallop fishery to the northern edge of GB if it approves these measures to mitigate the economic impacts of the proposed measures.

Response:
NMFS disagrees with FSF that the proposed sub-ACLs for SNE/MA windowpane flounder and GB yellowtail flounder are not consistent with the Magnuson-Stevens Act. FSF suggests that the overall benefit to the nation would be to allow the unrestrained prosecution of the scallop and fluke fisheries, based solely on their higher economic value when compared to the groundfish fishery. However, the concept of overall benefit to the nation must be evaluated in the context of optimum yield, which requires consideration and balancing of other factors in addition to economic values, including food production, recreational opportunities, the protection of marine ecosystems, and which can only be
reduced
based on economic, social or ecological factors. And even at OY, management measures must still prevent overfishing. Economic, social and ecological factors concerning the FMPs goals of preserving fishing opportunities for groundfish vessels and minimizing negative im

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2013-10402. Public record. Not legal advice.