11858 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 100923469–1002–02] 

RIN 0648–BA27 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; Northeast 

(NE) Multispecies Fishery; Framework 

Adjustment 45 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations to 

implement measures in Framework 

Adjustment (FW) 45 to the NE 

Multispecies Fishery Management Plan 

(FMP). FW 45 was developed by the 

New England Fishery Management 

Council (Council) to prevent 

overfishing, rebuild overfished stocks, 

achieve optimum yield (OY), and 

minimize the economic impact of 

management measures on affected 

vessels, pursuant to the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). This action would revise the 

biological reference points and stock 

status for pollock, update annual catch 

limits (ACLs) for several stocks for 

fishing years (FYs) 2011–2012, adjust 

the rebuilding program for Georges Bank 

(GB) yellowtail flounder, increase 

scallop vessel access to the Great South 

Channel Exemption Area, approve five 

new sectors, modify the existing 

dockside and at-sea monitoring 

requirements, revise several sector 

administrative provisions, establish a 

Gulf of Maine (GOM) Cod Spawning 

Protection Area, and refine measures 

affecting the catch of limited access NE 

multispecies Handgear A vessels. This 

action would disapprove the Council’s 

proposed catch limits for GB yellowtail 

flounder for FY 2011, and instead 

propose new catch limits for this stock 

through emergency action authority 

based on new flexibility provided by the 

International Fisheries Agreement 

Clarification Act. This action is 

necessary to ensure that the fishery is 

managed on the basis of the best 

available science, to comply with the 

acceptable biological catch (ABC) 

control rules adopted in Amendment 16 

to the FMP, and to enhance the viability 

of the fishery following the transition to 

sector management in 2010. 

DATES: Comments must be received by 

March 18, 2011. 

ADDRESSES: You may submit comments, 

identified by 0648–BA27, by any of the 

following methods: 

• Electronic submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• Fax: (978) 281–9135, Attn: Douglas 

Christel. 

• Mail: Paper, disk, or CD–ROM 

comments should be sent to Patricia A. 

Kurkul, Regional Administrator, 

National Marine Fisheries Service, 55 

Great Republic Drive, Gloucester, MA 

01930. Mark the outside of the 

envelope, ‘‘Comments on the Proposed 

Rule for NE Multispecies Framework 

Adjustment 45.’’ 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

regulations.gov without change. All 

Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. NMFS will 

accept anonymous comments (enter 

N/A in the required fields, if you wish 

to remain anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

Copies of FW 45, its Regulatory 

Impact Review (RIR), a draft of the 

environmental assessment (EA) 

prepared for this action, and the Initial 

Regulatory Flexibility Act (IRFA) 

analysis prepared by the Council are 

available from Paul J. Howard, 

Executive Director, New England 

Fishery Management Council, 50 Water 

Street, Mill 2, Newburyport, MA 01950. 

The IRFA analysis assessing the impacts 

of the proposed measures on small 

entities and describing steps taken to 

minimize any significant economic 

impact on such entities is summarized 

in the Classification section of this 

proposed rule. The FW 45 EA/RIR/ 

IRFA, as well as the relevant analyses 

for Amendment 16 and other recent 

actions, are also accessible via the 

Internet at http://www.nefmc.org/ 

nemulti/index.html or http:// 

www.nero.noaa.gov. Copies of recent 

stock assessments for stocks managed by 

the FMP are also accessible via the 

Internet at http://www.nefsc.noaa.gov/ 

groundfish. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this rule 

should be submitted to the Regional 

Administrator at the address above and 

to the Office of Management and Budget 

(OMB) by e-mail at 

OIRA_Submission@omb.eop.gov, or fax 

to (202) 395–7285. 

FOR FURTHER INFORMATION CONTACT: 

Douglas W. Christel, Fishery Policy 

Analyst, phone: 978–281–9141, fax: 

978–281–9135. 

SUPPLEMENTARY INFORMATION: 

Background 

The FMP specifies management 

measures for 16 species in Federal 

waters off the New England and MidAtlantic coasts, including both largemesh and small-mesh species. Smallmesh species include silver hake 

(whiting), red hake, offshore hake, and 

ocean pout; while large-mesh 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 are further 

divided into 19 individual stocks and 

are referred to as ‘‘regulated species,’’ 

that, along with ocean pout, are 

collectively referred to as groundfish. 

A major overhaul of the FMP occurred 

in 2004 with implementation of 

Amendment 13 on May 1, 2004 (April 

27, 2004; 69 FR 22906), which included 

the establishment of rebuilding 

programs for stocks managed by the 

FMP and measures necessary to end 

overfishing, rebuild overfished stocks, 

and help mitigate the economic impacts 

of effort reductions in the fishery to the 

extent practicable. Amendment 13 also 

established a biennial adjustment 

process intended to update status 

determination criteria, adopt and update 

rebuilding programs, and revise 

management measures necessary to 

achieve the objectives of the FMP and 

the mandates of applicable law. A 

second substantial revision to the FMP 

came in 2010, with the implementation 

of Amendment 16 (April 9, 2010; 75 FR 

18262). Amendment 16 updated status 

determination criteria for all regulated 

NE multispecies and ocean pout stocks 

based upon revised assessments for all 

stocks; adopted rebuilding programs for 

stocks newly classified as being 

overfished and subject to overfishing; 

and revised management measures to 

achieve the conservation objectives of 

the FMP and to minimize the economic 

impacts of such measures, including 

significant revisions to the sector 

management measures, reporting 

requirements, trip limits, and days-atVerDate Mar<15>2010 18:01 Mar 02, 2011 Jkt 223001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\03MRP2.SGM 03MRP2

srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 11859 

sea (DAS) measures. Amendment 16 not 

only established a process for specifying 

ABCs and ACLs and distributing 

available catch among components of 

the fishery that catch regulated species 

and ocean pout, but it also specified 

accountability measures (AMs) 

necessary to prevent overfishing on 

these stocks and addressed overages of 

ACLs, as required by the MagnusonStevens Act. 16 U.S.C. 1801 et seq. In 

another action, FW 44 (April 9, 2010; 75 

FR 18356), NMFS set the ACLs for FYs 

2010 through 2012, and distributed such 

allocations among the various 

components of the fishery that catch 

these stocks. An April 9, 2010, final rule 

(75 FR 18113) implemented the 

approval of 17 new sectors in FY 2010, 

and specified their respective annual 

catch entitlements (ACEs, or sector 

quotas) for each stock allocated to 

sectors pursuant to Amendment 16. 

The Council developed FW 45 as part 

of the established framework and 

biennial adjustment process to revise 

measures necessary to prevent 

overfishing and rebuild overfished 

stocks, while achieving OY in the 

fishery and minimizing economic 

impact to the extent practicable. 

Pursuant to the Magnuson-Stevens Act, 

the Council has proposed FW 45 to 

NMFS, which has reviewed the 

proposal and is presenting it for public 

review. If implemented, FW 45 would 

set and update ACLs for several stocks 

pursuant to the process established by 

Amendment 16 and FW 44. Updated 

stock assessments for pollock and GB 

yellowtail flounder conducted in 2010 

require the ACLs originally established 

under FW 44 to be updated based upon 

revised stock status for pollock and a 

revised rebuilding program for GB 

yellowtail flounder proposed in FW 45. 

Further, following the transition to 

sectors under Amendment 16, the 

Council realized that several changes to 

existing measures are necessary to make 

the Amendment 16 measures work more 

effectively, as described below. 

Proposed Measures 

The following summarizes the 

measures proposed by the Council in 

FW 45, based on the order in which 

applicable provisions appear in the 

regulations at 50 CFR part 648. These 

measures build upon the provisions 

implemented by previous management 

actions, and are intended to either 

supplement or replace existing 

regulations, as described for each 

measure. This proposed rule also 

includes revisions to regulations that are 

not specifically identified in FW 45, but 

that are necessary to correct errors in, or 

clarify, existing provisions, as described 

further below. The proposed regulations 

implementing measures in FW 45 were 

deemed by the Council to be consistent 

with FW 45, and necessary to 

implement such provisions pursuant to 

section 303(c) of the Magnuson-Stevens 

Act through a January 11, 2011, letter 

from the Council Chairman to the 

Regional Administrator (RA). 

1. Status Determination Criteria for 

Pollock 

Amendment 16 updated the status 

determination criteria for existing NE 

multispecies regulated species and 

ocean pout stocks based upon the best 

available scientific information 

regarding stock status resulting from the 

Groundfish Assessment Review Meeting 

(GARM III), a comprehensive stock 

assessment for all species managed by 

the FMP, conducted in August 2008. 

GARM III originally characterized 

pollock as overfished and subject to 

overfishing. However, due to the high 

uncertainty of the determination of 

pollock stock status, as noted in the 

GARM III stock assessment conclusions, 

and on the advice from the Council’s 

Scientific and Statistical Committee 

(SSC), the body charged by the 

Magnuson-Stevens Act with 

recommending an ABC to the Council 

for each stock, an updated pollock stock 

assessment was conducted in 2010. The 

pollock peer-reviewed benchmark stock 

assessment review (Stock Assessment 

Workshop, or SAW, 50) was completed 

in June 2010, with the final summary 

report completed on July 14, 2010. This 

assessment determined that pollock is 

not overfished or subject to overfishing. 

Thus, this species no longer requires the 

rebuilding program established in 

Amendment 16. Based upon this 

updated assessment, NMFS 

implemented an emergency action (July 

20, 2010; 75 FR 41996) to incorporate 

the results of this assessment and 

update the status determination criteria 

and the associated FY 2010 ABC and 

ACL for this species. On December 1, 

2010 (75 FR 74661), this emergency 

action was continued through the end of 

FY 2010 (April 30, 2011). 

In FW 45, NMFS proposes to integrate 

the results of the 2010 pollock stock 

assessment into the FMP. Table 1 lists 

the proposed revised status 

determination criteria, with numerical 

estimates of these parameters listed in 

Table 2. The revised biomass target 

parameter for pollock, where spawning 

stock biomass is at maximum 

sustainable yield (SSBMSY) or its proxy, 

is SSB at 40 percent maximum 

spawning potential (MSP). The 

maximum fishing mortality rate (F) 

threshold is the FMSY proxy, or F40%MSP. 

TABLE 1—DESCRIPTION OF THE PROPOSED POLLOCK STATUS DETERMINATION CRITERIA

Species Biomass target 

(Btarget) Minimum biomass threshold 

Maximum fishing 

mortality 

threshold 

Pollock ............................................. SSBMSY: SSB/R (40%MSP) ...................... 1⁄2 Btarget ..................................................... F40%MSP

TABLE 2—NUMERICAL ESTIMATES FOR THE PROPOSED POLLOCK STATUS DETERMINATION CRITERIA

Species 

Biomass target 

(SSBMSY or 

proxy) in mt 

Maximum fishing mortality threshold 

(FMSY or proxy) 

MSY 

in mt 

Pollock ............................................. 91,000 ........................................................ 0.41 ............................................................ 16,200 

2. Rebuilding Program for GB Yellowtail 

Flounder 

In 2004, GARM II concluded that the 

GB yellowtail flounder stock was 

overfished and subject to overfishing. In 

response, the Council developed a 

rebuilding program for this stock in FW 

42 (October 23, 2006; 71 FR 62156). 

That rebuilding program incorporated 

an adaptive rebuilding strategy that was 

expected to rebuild the stock by 2014 

with a 75-percent probability of success, 

and was anticipated to rebuild this stock 

in 8 years, 2 years ahead of the 


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11860 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

maximum rebuilding period allowed by 

section 304(e)(4) of the MagnusonStevens Act. The intent of that 

rebuilding program was to rebuild the 

stock as quickly as possible, consistent 

with efforts to jointly manage this stock 

with Canada as part of the U.S./Canada 

Resource Sharing Understanding 

(Understanding). 

More recent estimates of the status of 

this stock conducted by the 

Transboundary Resource Assessment 

Committee (TRAC) in July 2010 indicate 

that overfishing is not occurring, but 

that the stock is still in an overfished 

condition (TRAC 2010/05). This 

estimate is affected by updated 

estimates of the 2005 year class that 

suggest this year class is much smaller 

than previously thought. This report 

concludes that it is not possible to 

rebuild this stock by 2014, even at F = 

0. Accordingly, as part of FW 45, the 

Council proposes to revise the GB 

yellowtail flounder rebuilding program 

to rebuild the stock by 2016, with a 50- 

percent probability of success to extend 

the rebuilding program to the maximum 

extent allowed by applicable law. This 

revision would extend the rebuilding 

program for this stock out to the 

maximum 10-year rebuilding period 

allowed by the Magnuson-Stevens Act 

and lower the probability of success 

from 75 percent to 50 percent in order 

to maximize the amount of GB 

yellowtail flounder that could be caught 

while the stock rebuilds. 

3. Overfishing Levels and ABCs for 

Particular Stocks 

NMFS also proposes in FW 45 to 

revise the overfishing levels (OFLs) and 

ABCs of particular stocks, including GB 

cod, GB haddock, GB yellowtail 

flounder, and pollock for FYs 2011 and 

2012. Revisions to the OFLs and ABCs 

for pollock and GB yellowtail flounder 

are based upon the updated assessments 

and revised rebuilding strategies for 

these stocks, as described in Items 1 and 

2 of this preamble, respectively, and by 

the 2010 International Fisheries 

Agreement Clarification Act for GB 

yellowtail flounder, as described in Item 

5 of this preamble. Revisions to the 

OFLs and ABCs for the GB cod and GB 

haddock stocks are based upon updated 

TRAC assessments of the eastern 

components of the stock. It is 

anticipated that the FY 2012 values of 

the ABCs for GB cod, GB haddock, and 

GB yellowtail flounder will be revised 

during 2011, based on new 

transboundary stock assessments 

conducted by the TRAC, and will likely 

be specified again in conjunction with 

the FY 2012 U.S./Canada Management 

Area total allowable catch (TAC) levels, 

as further described in Item 5 of this 

preamble. Table 3 contains the OFLs 

and ABCs for FYs 2011 and 2012 

proposed under FW 45 with the 

exception of GB yellowtail flounder, as 

noted below. The expected economic 

impacts of the proposed ABCs are 

summarized below. 

For GB yellowtail flounder, the FY 

2011 U.S. ABC shown in Table 3 

represents a revised shared U.S./Canada 

Management Area TAC based upon, and 

consistent with, determinations and 

decisions about this stock by the 

Transboundary Management Guidance 

Committee (TMGC), pursuant to the 

Understanding in a February 9, 2011, 

conference call. This meeting of the 

TMGC was precipitated based on 

provisions of the recently enacted 

International Fisheries Agreement 

Clarification Act which provides 

increased flexibility to NMFS and the 

Council in setting higher fishing limits 

for those portions of stocks subject to 

the Understanding. This Act states that 

decisions made under that 

Understanding should be considered as 

‘‘management measures under an 

international agreement’’ that ‘‘dictate 

otherwise’’ for purposes of section 

304(e)(4)(A)(ii) of the Act (16 U.S.C. 

1854(e)(4)(A)(ii)) and that the Council 

and the Secretary of Commerce may 

‘‘establish catch levels for those portions 

of fish stocks within their respective 

geographic areas covered by the 

Understanding on the date of enactment 

of this Act that exceed the catch levels 

otherwise required under the Northeast 

Multispecies Fishery Management Plan 

if * * * overfishing is ended 

immediately.’’ (Sec. 202(2) and (3) of the 

International Fisheries Agreement Act). 

Because the U.S./Canada Management 

Area represents the entire stock area for 

GB yellowtail flounder, the shared U.S./ 

Canada Management Area TAC for this 

stock also represents the ABC for this 

stock. The revised ABC agreed to by the 

TMGC is being proposed consistent 

with the provisions of the International 

Fisheries Agreement Clarification Act 

and the harvest strategy of the 

Understanding that requires overfishing 

to be prevented and the facilitation of 

the rebuilding of overfished stocks. 

The revised ABC recommended by 

the TMGC is higher than that approved 

by the Council’s SSC and adopted by 

the Council in FW 45 (i.e., a U.S. ABC 

of 1,099 mt for FY 2011 and 1,222 mt 

for FY 2012). Because this revised ABC 

was not considered by the Council in 

FW 45, NMFS proposes to implement 

the revised FY 2011 ABC and ACL for 

this stock as a separate but parallel 

action to FW 45 pursuant to its 

emergency action authority specified in 

section 305(c) of the Magnuson-Stevens 

Act. NMFS has determined that the 

adoption of the International Fisheries 

Agreement Clarification Act meets the 

criteria for proposing this emergency 

action, as explained further in Item 5 of 

this preamble. Because this proposed 

revision would be made under the 

authority to implement a Secretarial 

emergency action pursuant to section 

305(c) of the Magnuson-Stevens Act 

instead of a Council action, the 

involvement of the SSC in the 

specification of the ABC for this stock 

is not specifically required, although the 

emergency rule must still be consistent 

with the best scientific information 

available. Although NMFS could wait 

for the SSC to consider the new 

assessment, the time necessary to 

complete such a process would unduly 

delay the possibility of increasing the 

TAC for this stock as quickly as possible 

and addressing the emergency 

exigencies of this matter. NMFS has 

determined that revising the ABC and 

ACL through this proposed emergency 

action is consistent with best scientific 

information available. The duration of 

this proposed revision to the GB 

yellowtail flounder ABC is limited by 

the Magnuson-Stevens Act to 180 days, 

but may be extended to make the 

revised ABC and ACL effective for the 

duration of FY 2011 (through April 30, 

2012), consistent with the authority in 

the Magnuson-Stevens Act to extend 

emergency actions for up to an 

additional 186 days. 

For FYs 2010–2012, the SSC 

recommended that the ABC for GOM 

winter flounder be specified based on 

75 percent of recent catches of this stock 

as part of FW 44. For FY 2011, the 

Council tasked the SSC with reviewing 

the GOM winter flounder catches for FY 

2009 and any additional survey 

information collected since GARM III to 

determine whether revisions to the FY 

2011 and 2012 ABCs are necessary for 

this stock. The SSC considered available 

information at its August 2010 meeting, 

as well as an alternative approach to 

determine the ABC for GOM winter 

flounder by the Groundfish Plan 

Development Team (PDT) that utilized 

an area-swept survey approach to 

determine the ABC for this stock. 

However, the SSC was concerned that 

increased catch resulting from the PDT’s 

alternative approach to specifying ABC 

for this stock could compromise stock 

status or rebuilding, given lingering 

uncertainty regarding the information 

necessary to evaluate the risks of 

jeopardizing stock status. Therefore, the 

SSC did not recommend any changes to 

the ABC for this stock, and the FW 44 


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values for FY 2011 and FY 2012 are 

maintained. 

The OFL value for a stock is 

calculated using the estimated stock size 

for a particular year, and represents the 

amount of catch associated with FMSY, 

i.e., the F that, if applied over the long 

term, would result in MSY. The ABCs 

are those recommended to the Council’s 

SSC following the SSC’s August 25–26, 

2010, meeting and its reports to the 

Council at the Council’s September and 

November 2010 meetings. The ABCs 

recommended by the SSC are lower 

than the OFLs in order to take into 

account scientific uncertainty in setting 

catch limits. The ABC value for a stock 

is calculated using the estimated stock 

size for a particular year based upon the 

ABC control rules established by 

Amendment 16. The ABC represents the 

amount of catch associated with 75 

percent of FMSY, or the F rate required 

to rebuild the stock within the defined 

rebuilding time period (Frebuild), 

whichever is lower, with the exception 

of GOM and Southern New England 

(SNE)/Mid-Atlantic (MA) winter 

flounder. For SNE/MA winter flounder, 

the ABC recommendations are based on 

estimates of discards that result from 

recent management measures. For GOM 

winter flounder, the ABC 

recommendation is based on 75 percent 

of recent catches. 

TABLE 3—PROPOSED REVISIONS TO OVERFISHING LEVELS AND ACCEPTABLE BIOLOGICAL CATCHES

Stock 

OFL 

(mt, live weight) 

U.S. ABC 

(mt, live weight) 

FY 2011 FY 2012 FY 2013 FY 2014 FY 2011 FY 2012 FY 2013 FY 2014 

Georges Bank cod ........... 7,311 * 8,090 NA NA 4,766 * 5,364 NA NA 

Georges Bank haddock ... 59,948 * 51,150 NA NA 34,244 * 29,016 NA NA 

Georges Bank yellowtail 

flounder ......................... 3,495 * 4,335 NA NA ** 1,458 NA NA NA 

White hake ....................... 4,805 5,306 NA NA 3,295 3,638 NA NA 

Pollock .............................. 21,853 19,887 20,060 20,554 16,900 15,400 15,600 16,000 

* Preliminary estimates that may be revised in 2012 based on TRAC and TMGC considerations. 

** This value represents an increase from the U.S. ABC adopted by the Council in FW 45 based on the flexibility afforded by the International 

Fisheries Agreement Clarification Act and described further in Item 5 of this preamble. 

4. ACLs 

Similar to adjustments in the OFLs 

and ABCs described in Item 3 of this 

preamble, FW 45 proposes revisions to 

the ACLs for several stocks, including 

GB cod, GB haddock, GB yellowtail 

flounder, white hake, and pollock. 

Pursuant to Magnuson-Stevens Act 

requirements and Amendment 16, the 

Council recommended ACLs that are 

lower than the ABCs, in order to 

account for management uncertainty. 

The total ACL for a stock represents the 

catch limit for a particular FY, 

considering both biological and 

management uncertainty, and the limit 

includes all sources of catch (landed 

and discards) and all fisheries 

(commercial and recreational 

groundfish fishery, State-waters catch, 

and non-groundfish fisheries). The 

division of a single ABC value for each 

stock (for a particular FY) into subACLs, and ACL-subcomponents, 

accomplishes three objectives: (1) The 

ABC is sub-divided to account for all 

components of the fishery and sources 

of fishing mortality; (2) allocations are 

made for certain fisheries; and (3) 

management uncertainty is taken into 

account, as described in Appendix II of 

FW 45. 

For FW 45 the ABC was sub-divided 

into fishery components on a stockspecific manner, prior to the 

consideration of management 

uncertainty. The following components 

of the fishery are reflected in the total 

ABC: Canadian share/allowance 

(expected Canadian catch); U.S. ABC 

(available to the U.S. fishery after 

accounting for Canadian catch); State 

waters (portion of ABC expected to be 

caught from State waters outside 

Federal management); other subcomponents (expected catch by other 

non-groundfish fisheries such as 

exempted fisheries); scallop fishery; 

mid-water trawl fishery; commercial 

groundfish fishery; and recreational 

groundfish fishery. The percentage of 

the ABC deducted for anticipated catch 

from State waters is between 1 and 10 

percent for most stocks, but for Atlantic 

halibut and GOM winter flounder, 50 

percent and 25 percent of the ABC of 

each stock is set aside for State waters 

catch, respectively. The amount 

deducted for anticipated catch of other 

regulated species and ocean pout in 

other sub-components of the fishery is 

between 4 to 6 percent of the ABC for 

each stock, with the exception of 

windowpane flounder stocks, in which 

29 percent is set aside for such catch. 

The allocation of yellowtail flounder 

to the scallop fishery is not changed by 

this framework. Under FW 44, the 

Council elected to allocate 100 percent 

of the estimated GB and SNE/MA 

yellowtail flounder bycatch associated 

with the projected scallop catch in FY 

2010, and 90 percent of the yellowtail 

flounder bycatch projected for the 

scallop fishery in FYs 2011 and 2012. 

Based on doubts about accurately 

estimating expected bycatch in the 

scallop fishery and not wanting to 

unnecessarily constrain the scallop 

fishery, the Council voted to maintain 

the specific FW 44 allocations of 

yellowtail flounder to the scallop 

fishery under FW 45, rather than base 

yellowtail flounder allocations on 

current information about anticipated 

bycatch amounts in the scallop fishery. 

Thus, the SNE/MA yellowtail flounder 

allocations to the scallop fishery listed 

in Tables 5 and 6 are the same amounts 

implemented under FW 44 in 2010 (the 

allocation of SNE/MA yellowtail 

flounder remain at 82 and 127 mt, live 

weight, respectively during FYs 2011 

and 2012), while the GB yellowtail 

flounder allocations to the scallop 

fishery listed in Tables 11 and 12 

remain at 200.8 and 307.5 mt, live 

weight, respectively, during FYs 2011 

and 2012. No specific allocation of Cape 

Cod (CC)/GOM yellowtail flounder 

would be made to the scallop fishery, 

because the incidental catches of this 

stock by the scallop fishery are 

relatively low. Catches of this stock will 

be considered part of the ‘‘other subcomponent’’ of the ACL. 

The FY 2011 and 2012 yellowtail 

flounder allocations to the scallop 

fishery are characterized as sub-ACLs to 

reflect the fact that the Council adopted 

AMs for the scallop fishery that would 

be responsive to yellowtail flounder 

catches in excess of these sub-ACLs, as 

part of Amendment 15 to the Atlantic 

Sea Scallop FMP at its November 2010 

meeting. A proposed rule soliciting 

comment on that action is expected to 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
11862 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

be published shortly, with a final 

decision to approve, partially approve, 

or disapprove such measures expected 

in spring 2011. Current regulations set 

a cap on the amount of yellowtail 

flounder that may be harvested from the 

scallop access areas from the SNE/MA 

and GB yellowtail flounder stock areas. 

Specifically, current regulations cap 

yellowtail flounder harvest from scallop 

access areas at 10 percent of the ‘‘total 

TAC’’ for each of the stock areas. In light 

of the proposed ACL components, ‘‘total 

TAC’’ means ‘‘total ACL.’’ For FY 2011, 

this means 10 percent of 1,416 mt (141.6 

mt) for GB yellowtail flounder, based on 

the proposed total ACL listed in Table 

11 proposed based on the flexibility 

afforded by the International Fisheries 

Agreement Clarification Act, as further 

described in Item 4 of this preamble 

below. Because the U.S./Canada 

Management Area represents the entire 

stock area for GB yellowtail flounder, 

the U.S./Canada Management Area TAC 

for this stock that is available to the U.S. 

fishery also represents the ACL for this 

stock. The specification and distribution 

of the GB yellowtail flounder ACL is 

discussed further in Item 5 of this 

preamble and shown in Tables 11 and 

12. 

Under this action, the mid-water trawl 

fishery would be allocated 0.2 percent 

of the U.S. ABC for GB and GOM 

haddock. The values for the allocations 

to the mid-water trawl fishery listed in 

Table 5 are slightly less than 0.2 

percent, due to the 7-percent reduction 

of these allocations to account for 

management uncertainty for this stock. 

For example, the FY 2011 ABC of 

32,244 mt was multiplied by 0.002 

(32,244 mt × .002 = 68.5 mt), and then 

reduced by 4.79 mt (68.5 mt × 0.07 = 

4.79 mt) to arrive at the proposed 

allocation of 64 mt. Because the herring 

fishery already has AMs associated with 

this allocation that were developed as 

part of FW 43 (August 15, 2006; 71 FR 

46871), all of the haddock allocations to 

the mid-water trawl fishery are 

characterized as sub-ACLs. 

The concept of management 

uncertainty for the purpose of 

developing ACLs, as outlined in the 

process specified in Amendment 16 and 

described in detail in FW 44, was 

characterized as the likelihood that 

management measures will result in a 

level of catch that is greater than the 

catch objective. Consistent with that 

process, management uncertainty was 

evaluated for each stock, considering 

the following elements of the fishery 

and the FMP: Enforceability; monitoring 

adequacy; precision of management 

tools; latent effort; and catch of 

groundfish in non-groundfish fisheries. 

For most stocks and components of the 

fishery (ABC components), the default 

adjustment (reduction) to the catch level 

for a fishery component was 5 percent. 

For stocks with less management 

uncertainty, the adjustment was 3 

percent, and for those stocks or 

components with more management 

uncertainty, the adjustment was 7 

percent. 

Tables 5 through 8 list the proposed 

distribution of the total ACL for stocks 

affected by measures in FW 45 to the 

groundfish fishery, the scallop fishery, 

the mid-water trawl herring fishery, 

State waters fisheries, and other fishery 

sub-components, such as exempted 

fisheries. A full list of the FY 2011 ACLs 

will be sent to NE multispecies permit 

holders and posted on the NMFS 

Northeast Regional Office Web site 

(http://www.nero.noaa.gov) once 

finalized. As noted in the FW 44 final 

rule, while ACLs are specified through 

FY 2012 for most stocks, it is likely that 

the Council will adopt ACLs for FYs 

2012 through 2014 though a future 

Council action. Therefore, ACLs 

specified through FY 2012 in FW 44 and 

proposed in this action for FW 45 will 

only be implemented if the anticipated 

Council action is delayed. In contrast, 

the pollock ACLs are not expected to be 

revisited until FY 2013, with any 

changes effective for FY 2014. The 

proposed ACL listed in Table 5 for 

white hake corrects an error published 

in Table 4 of both the FW 44 proposed 

(February 1, 2010; 75 FR 5021) and final 

rules, respectively, that listed the 

commercial sub-ACL for white hake for 

FY 2011 as 2,566 mt (the FY 2010 value) 

instead of the correct value of 2,974 mt. 

For a detailed description of the process 

used to estimate management 

uncertainty and calculate ACLs as part 

of FW 45, refer to Appendix II of the FW 

45 EA (see ADDRESSES). 

TABLE 5—TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2011 

[Mt, live weight] 

Stock Total ACL Groundfish 

sub-ACL Scallop fishery Mid-water trawl herring fishery 

State waters 

ACL 

sub-component 

Other ACL 

sub-components 

GB cod ............................. 4,540 4,301 0 0 48 191 

GB haddock ..................... 32,616 30,840 0 64 342 1,370 

SNE/MA yellowtail flounder ................................ 641 524 82 0 0 27 

White hake ....................... 3,138 2,974 0 0 33 132 

Pollock .............................. 16,166 13,952 0 0 769 1,445 

TABLE 6—TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2012 

[Mt, live weight] 

Stock Total ACL Groundfish 

sub-ACL Scallop fishery Mid-water trawl herring fishery 

State waters 

ACL 

sub-component 

Other ACL 

sub-components 

GB cod * ........................... 5,109 4,841 0 0 54 215 

GB haddock * ................... 27,637 26,132 0 54 290 1,161 

SNE/MA Yellowtail flounder ................................ 936 759 127 0 0 40 

White hake ....................... 3,465 3,283 0 0 36 146 

Pollock .............................. 14,736 12,612 0 0 754 1,370 

* Preliminary estimate that may be revised in 2012 based on Transboundary Resource Assessment Committee and Transboundary Resource 

Management Committee considerations. 


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TABLE 7—POLLOCK TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2013 

[Mt, live weight] 

Stock Total ACL Groundfish 

sub-ACL Scallop fishery Mid-water trawl herring fishery 

State waters 

ACL 

sub-component 

Other ACL 

sub-components 

Pollock .............................. 14,927 12,791 0 0 756 1,380 

TABLE 8—POLLOCK TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2014 

[Mt, live weight] 

Stock Total ACL Groundfish 

sub-ACL Scallop fishery Mid-water trawl herring fishery 

State waters 

ACL 

sub-component 

Other ACL 

sub-components 

Pollock .............................. 15,308 13,148 0 0 760 1,400 

The commercial groundfish sub-ACL 

is further divided into the non-sector 

(common pool vessels) sub-ACL and the 

sector sub-ACL, based on the total 

vessel enrollment in all sectors and the 

cumulative Potential Sector 

Contributions (PSCs) associated with 

those sectors. Table 9 lists the 

preliminary distribution of the 

groundfish sub-ACL between common 

pool and sectors based on rosters 

submitted to NMFS as of December 1, 

2010. This distribution is different from 

the common pool and sector sub-ACLs 

listed in the EA for FW 45, as those were 

based upon preliminary sector roster 

information and do not reflect updated 

rosters submitted to NMFS. However, 

this distribution is the same as the 

sector sub-ACLs and ACE specified for 

each sector listed in the proposed rule 

to approve sector operations plans for 

FY 2011. That rule uses sector rosters 

submitted to NMFS as of December 1, 

2010, to calculate each individual 

sector’s ACE for FY 2011, and which are 

expected to publish soon. FY 2011 

sector rosters will not be finalized until 

May 1, 2011, because the owners of 

individual permits signed up to 

participate in sectors have until April 

30, 2011, to drop out of a sector and fish 

in the common pool. Therefore, it is 

possible that the FY 2011 sector subACL listed in Table 9 and the proposed 

rule to approve the FY 2011 sector 

operations plans will be reduced at a 

later date, and the common pool subACL will increase, due to vessels 

leaving sectors and entering the 

common pool after publication of the 

FW 45 final rule and specification of 

ACLs for FY 2011. 

Despite such changes, the proposed 

groundfish sub-ACL (common pool subACL plus the sector sub-ACL) listed in 

Tables 5 through 8 would not likely 

change. Based on the final rosters, 

NMFS intends to publish a rule in early 

May 2011 to modify these sub-ACLs, 

and notify the public if these numbers 

change. In addition, it is almost certain 

that all of the FY 2012 sub-ACLs for the 

common pool and sectors will change 

and be re-specified prior to FY 2012 due 

to annual changes to the sector rosters 

and changes to the ABCs for GB cod, GB 

haddock, and GB yellowtail flounder 

based on the specification of Canadian 

TACs for these stocks, as described 

above in Item 5 of this preamble. 

TABLE 9—PRELIMINARY DISTRIBUTION OF GROUNDFISH SUB-ACL BETWEEN COMMON POOL AND SECTOR VESSELS

[Mt, live weight] 

Stock 

Groundfish sub-ACL Common pool sub-ACL Sector sub-ACL 

FY 2011 FY 2012 * FY 2011 FY 2012 * FY 2011 FY 2012 * 

Georges Bank cod ........................................................... 4,301 4,841 99 111 4,202 4,730 

Georges Bank haddock ................................................... 30,840 26,132 129 109 30,711 26,023 

Georges Bank yellowtail flounder ** ................................. 1,142 1,142 17.4 17.4 1,124.6 1,124.6 

White hake ....................................................................... 2,974 3,283 35 39 2,939 3,244 

Pollock .............................................................................. 13,952 12,612 138 125 13,814 12,487 

* Preliminary estimate that may be revised in 2012 based on updated sector rosters and Transboundary Resource Assessment Committee and 

Transboundary Resource Management Committee considerations. 

** These values represent an increase from the ACLs adopted by the Council in FW 45 based on the flexibility afforded by the International 

Fisheries Agreement Clarification Act and described further in Item 5 of this preamble. 

5. Annual Specifications for the U.S./ 

Canada Management Area 

The FMP specifies a procedure for 

setting annual hard TAC levels (i.e., 

TACs that, when reached, will trigger a 

regulatory response in the form of area 

closures or other restrictions) for Eastern 

GB cod, Eastern GB haddock, and GB 

yellowtail flounder in the U.S./Canada 

Management Area. The regulations 

governing the annual development of 

TACs were authorized by Amendment 

13 to the FMP in order to be consistent 

with the Understanding, an informal 

agreement between the Northeast 

Region of NMFS and the Maritimes 

Region of the Department of Fisheries 

and Ocean of Canada (DFO) that 

outlines a process for the management 

of the shared GB groundfish resources. 

The Understanding specifies an 

allocation of TAC for these three stocks 

for each country, based on a formula 

that considers historical catch 

percentages and current resource 

distribution. 

Annual TACs for these stocks are 

determined through a process involving 

the Council, the TMGC, and the U.S./ 

Canada Transboundary Resources 

Steering Committee. In August 2010, the 

TMGC approved the 2010 Guidance 


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Documents for Eastern GB cod and 

Eastern GB haddock, which included 

recommended U.S. TACs for these 

stocks. The recommended FY 2011 

TACs were based on the most recent 

stock assessments (TRAC Status Reports 

for 2010), and the fishing mortality 

strategy shared by NMFS, the 

Department of Fisheries and DFO. The 

shared strategy has two parts: (1) To 

maintain a low to neutral (less than 50- 

percent) risk of exceeding the F limit 

reference (Fref = 0.18, 0.26, and 0.25 for 

cod, haddock, and yellowtail flounder, 

respectively); and (2) when stock 

conditions are poor, F should be further 

reduced to promote rebuilding. The 

Council reviewed the recommendations 

of the TMGC and approved those 

recommendations at its September 2010 

meeting, as detailed further below. 

The TMGC concluded that the most 

appropriate combined U.S./Canada TAC 

for Eastern GB cod for FY 2011 is 1,050 

mt. This TAC corresponds to the 

average of the pertinent two models for 

a low risk (less than 25-percent) of 

exceeding the Fref of 0.18 (i.e., FMSY) in 

FY 2011, and a greater than neutral 

probability of biomass growth of up to 

10 percent. The annual allocation shares 

between countries for FY 2011 are based 

on a combination of historical catches 

(10-percent weighting) and resource 

distribution based on trawl surveys (90- 

percent weighting). Applying this 

formula results in the proposed 

allocations of 19 percent of the shared 

TAC to the U.S. and 81 percent for 

Canada, or a FY 2011 quota of 200 mt 

for the U.S. and 850 mt for Canada. 

For Eastern GB haddock, the TMGC 

concluded that the most appropriate 

combined U.S./Canada Management 

Area TAC for FY 2011 is 22,000 mt. 

This corresponds to a 50-percent risk of 

exceeding Fref (i.e., FMSY) of 0.26, 

assuming the entire TAC will be caught 

in FY 2010. In reality, this TAC level 

represents a low risk level, because the 

anticipated catch in FY 2010 will likely 

be less than the FY 2010 TAC. The 

annual allocation share 

recommendations between countries for 

FY 2010 are based on a combination of 

historical catches (10-percent weighting) 

and resource distribution based on trawl 

surveys (90-percent weighting). 

Applying this formula results in 

proposed allocations of 43 percent of 

the shared TAC to the U.S. and 57 

percent to Canada, or a FY 2011 quota 

of 9,640 mt for the U.S. and 12,540 mt 

for Canada. 

For GB yellowtail flounder, the TMGC 

concluded that the most appropriate 

combined U.S./Canada Management 

Area TAC for FY 2011 is 1,900 mt. This 

TAC corresponds to a low probability 

(< 25 percent) of exceeding Fref (i.e., 

FMSY) of 0.25, and an expected 10- 

percent increase in median biomass 

from 2011 to 2012. The TMGC noted 

that F was below 0.15 in 2008 and 2009. 

The annual allocation share 

recommendations between countries for 

FY 2011 are based on a combination of 

historical catches (10-percent weighting) 

and resource distribution based on trawl 

surveys (90-percent weighting). This 

weighting results in proposed 

allocations of 55 percent of the shared 

TAC to the United States and 45 percent 

to Canada, or a FY 2011 quota of 1,045 

mt for the United States and 855 mt for 

Canada. 

TABLE 10—2011 U.S./CANADA TACS (MT, LIVE WEIGHT) AND PERCENTAGE SHARES (IN PARENTHESES) 

Eastern GB cod Eastern GB 

haddock 

GB yellowtail 

flounder 

Total Shared TAC ................................................................................................ 1,050 22,000 1,900

U.S. TAC .............................................................................................................. 200 (19%) 9,640 (43%) 1,045 (55%) 

Canada TAC ........................................................................................................ 850 (81%) 12,540 (57%) 855 (45%) 

This proposed rule notifies the public 

that a recent statute, the International 

Fisheries Agreement Clarification Act, 

signed by President Obama on January 

4, 2011, affects the proposed FY 2011 

U.S./Canada Management Area TAC 

and ACL for GB yellowtail flounder. 

Specifically, the new statute allows for 

additional flexibility under the 

Understanding regarding the range of 

catch levels that may be considered for 

GB yellowtail flounder, which allows 

for a higher yearly TAC for this species. 

As described in Item 4 of this 

preamble, the catch limits for GB 

yellowtail flounder result from the 

annual recommendation of the TMGC, a 

group that consists of NMFS and United 

States fishing industry representatives 

and their counterparts in the DFO and 

the Canadian fishing industry. Based on 

the new flexibility provided by the 

International Fisheries Clarification Act, 

the TMGC held a conference call on 

February 9, 2011, to reconsider the FY 

2011 shared GB yellowtail flounder 

TAC. During this conference call, the 

TMGC agreed to a revised shared GB 

yellowtail flounder TAC for FY 2011 of 

2,650 mt (documentation of this call is 

available from NMFS, see ADDRESSES). 

This revised TAC represents a 39 

percent increase compared to the FY 

2011 TAC (i.e., 1,900 mt) originally 

adopted by the Council as part of FW 

45, and would increase the amount of 

GB yellowtail flounder allocated to the 

directed NE multispecies fishery (1,142 

mt) by 44 percent compared to the 

amount of this stock originally allocated 

to this fishery under FW 45 (790.7 mt). 

NMFS is considering implementing this 

revised U.S./Canada Management Area 

TAC for this stock based upon 

Secretarial emergency authority 

specified in section 305(c) of the 

Magnuson-Stevens Act through the final 

rule that would implement approved 

measures under FW 45. To put this in 

the context of the Magnuson-Stevens 

Act, NMFS is proposing to disapprove 

the ABC, ACL, and U.S./Canada 

Management Area TAC for GB 

yellowtail flounder adopted by the 

Council in FW 45, and to replace them, 

through its emergency authority, with 

the revised ABC, ACL, and U.S./Canada 

Management Area TAC for this stock 

recommended by the TMGC following 

its February 9, 2011 conference call. 

NMFS policy guidelines for the use of 

emergency rules (August 21, 1997; 62 

FR 44421) specify the following three 

criteria that define what an emergency 

situation is, and justification for final 

rulemaking: (1) The emergency results 

from recent, unforeseen events or 

recently discovered circumstances; (2) 

the emergency presents serious 

conservation or management problems 

in the fishery; and (3) if the emergency 

action is being implemented without 

prior public comment, the emergency 

can be addressed through emergency 

regulations for which the immediate 

benefits outweigh the value of advance 

notice, public comment, and 

deliberative consideration of the 

impacts on participants to the same 

extent as would be expected under the 

normal rulemaking process. In this case, 

the third prong of these criteria is not 

directly involved because NMFS is 

providing opportunity for prior public 

comment. NMFS policy guidelines 

further provide that emergency action is 

justified for certain situations where 


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emergency action would prevent 

significant direct economic loss, or to 

preserve a significant economic 

opportunity that otherwise might be 

foregone. The 2010 International 

Fisheries Agreement Act, signed into 

law by President Obama on January 4, 

2011, is considered to be a ‘‘recently 

discovered circumstance,’’ because the 

Council was not aware if or when the 

legislation would be considered by 

Congress when it adopted final 

measures under FW 45 at its November 

2010 meeting. The emergency presents 

serious management concerns because 

the low catch limits for GB yellowtail 

flounder dictated by Magnuson-Stevens 

Act requirements in force before the 

International Fisheries Agreement Act 

was enacted could result in 

substantially reduced fishing effort and 

decreased catch and revenue compared 

to the higher catch limits that would be 

available if action is taken pursuant to 

the International Fisheries Agreement 

Act. For the common pool fishery, when 

the projected catch of GB yellowtail 

flounder is equal to the common pool 

GB yellowtail flounder sub-ACL, such 

vessels may no longer fish in the Eastern 

U.S./Canada Area, and may not possess 

yellowtail flounder caught in the 

Western U.S./Canada Area. For vessels 

fishing in sectors, when an individual 

sector’s GB yellowtail flounder ACE is 

caught, participating vessels may no 

longer fish in the U.S./Canada 

Management Area. As a result of the 

loss of access to the Eastern U.S./Canada 

Area (for common pool vessels) or the 

whole U.S./Canada Management Area 

(for sector vessels), not only do vessels 

lose revenue associated with GB 

yellowtail flounder, but they lose 

revenue associated with multiple other 

stocks that are caught concurrently, 

such as GB winter flounder. Emergency 

action to increase the GB yellowtail 

flounder ACL and U.S./Canada 

Management Area TAC would enable 

additional economic opportunity that 

could otherwise be forgone and, 

therefore, likely avoid economic 

impacts from an unnecessarily low ACL 

for this stock, based upon applicable 

law. Therefore, NMFS has determined 

that the current situation meets the 

criteria for emergency action. 

Because the U.S./Canada Management 

Area represents the entire stock area for 

GB yellowtail flounder, the U.S./Canada 

Management Area TAC for this stock 

that is available to the U.S. fishery also 

represents the ACL for this stock. Thus, 

the revised GB yellowtail flounder TAC 

proposed in this action also requires 

applicable changes to the ACL, and how 

the ACL for this stock is distributed to 

the various components of the fishery 

that catch this stock, that were adopted 

by the Council in FW 45. The proposed 

revised GB yellowtail flounder ACL, 

sub-ACL, and ACL sub-components are 

specified in Tables 11 and 12 for FYs 

2011 and 2012, respectively. A revised 

U.S./Canada TAC for GB yellowtail 

flounder would not affect the sub-ACL 

for the scallop fishery, specified by FW 

45 as 200.8 mt. 

TABLE 11—REVISED GB YELLOWTAIL FLOUNDER TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2011 

[Mt, live weight] 

Total ACL Groundfish sub-ACL Scallop fishery Mid-Water trawl 

herring fishery 

State waters ACL 

sub-component 

Other ACL 

sub-components 

1,416 1,142 200.8 0 0 73 

TABLE 12—REVISED GB YELLOWTAIL FLOUNDER TOTAL ACL, SUB-ACL, AND ACL-SUBCOMPONENTS FOR FY 2012 

[Mt, live weight] 

Total ACL* Groundfish sub-ACL Scallop fishery Mid-water trawl 

herring fishery 

State waters ACL 

sub-component 

Other ACL 

sub-components 

1,426 1,046 307.5 0 0 77 

* Preliminary estimate that may be revised in 2011 based on TRAC and TMGC considerations. 

The regulations related to the 

Understanding, promulgated by the 

final rule implementing Amendment 13, 

state that ‘‘any overages of the GB cod, 

haddock, or yellowtail flounder TACs 

that occur in a given fishing year will 

be subtracted from the respective TAC 

in the following fishing year.’’ Therefore, 

if an analysis of the catch of the shared 

stocks by U.S. vessels indicates that an 

over-harvest occurred during FY 2010, 

the pertinent components of the ACL 

would be adjusted downward in order 

to be consistent with the FMP and 

Understanding. If an adjustment to one 

of the FY 2011 TACs of cod, haddock, 

or yellowtail flounder is necessary, it 

will be done consistent with the 

Administrative Procedure Act, and the 

fishing industry will also be notified. 

6. Incidental Catch TACs and 

Allocations to Special Management 

Programs 

This proposed rule specifies 

incidental catch TACs applicable to the 

NE multispecies special management 

programs (i.e., special access programs 

(SAPs) and the Regular B DAS Program) 

for FYs 2011 and 2012, based on the 

proposed common pool sub-ACLs listed 

in Item 4 of this preamble. As noted 

above, FY 2011 sector rosters will not be 

finalized until May 1, 2011, because 

permits currently enrolled in sectors 

have until April 30, 2011, to drop out 

of a sector and fish in the common pool. 

Therefore, the amount of the common 

pool sub-ACL may change based upon 

changes to the number of vessels 

participating in the common pool 

during FY 2011. Based on the final 

rosters, NMFS will publish a rule in 

early May 2011 to modify these subACLs, and notify the public if these 

numbers change. 

Incidental catch TACs are specified 

for certain stocks of concern (i.e., stocks 

that are overfished or subject to 

overfishing) for common pool vessels 

fishing in the special management 

programs, in order to limit the amount 

of catch of stocks of concern that can be 

caught under such programs. The 

Incidental Catch TACs proposed below 

are consistent with the allocation of 

incidental catch TACs among special 

management programs in the FMP. 

However, because pollock is no longer 

considered overfished or subject to 

overfishing, FW 45 proposes to remove 

this species from the list of stocks of 

concern, and eliminate the incidental 

catch TAC for this stock. 


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The incidental catch TACs apply to 

catch (landings and discards) that end 

on a Category B DAS (either Regular or 

Reserve B DAS). The catch of stocks for 

which incidental catch TACs are 

specified on trips that start under a 

Category B DAS and then flip to a 

Category A DAS do not accrue toward 

such TACs, but rather the overall 

common pool sub-ACL for that stock. 

The incidental catch TACs by stock 

based on the common pool sub-ACL are 

shown in Table 13, while Tables 14 and 

15 list the distribution of these TACs 

among existing special management 

programs. 

TABLE 13—PRELIMINARY COMMON POOL INCIDENTAL CATCH TACS BY STOCK FOR FY 2011–2012 

[Mt, live weight] 

Stock Percentage of 

sub-ACL 

2011 Incidental 

catch TAC 

2012 Incidental 

catch TAC 

GB cod ....................................................................................................................... 2 2.0 2.2 

GOM cod ................................................................................................................... 1 1.3 1.3 

GB yellowtail flounder ................................................................................................ 2 0.3 0.3

CC/GOM yellowtail flounder ...................................................................................... 1 0.3 0.4 

SNE/MA yellowtail flounder ....................................................................................... 1 1.1 1.7 

American plaice ......................................................................................................... 5 3.9 4.1 

Witch flounder ............................................................................................................ 5 1.2 1.2 

SNE/MA winter flounder ............................................................................................ 1 7.3 7.6 

GB winter flounder ..................................................................................................... 2 0.3 0.3 

White hake ................................................................................................................. 2 0.7 0.8 

TABLE 14—DISTRIBUTION OF INCIDENTAL CATCH TACS AMONG SPECIAL MANAGEMENT PROGRAMS

[Mt, live weight] 

Stock 

Regular B DAS 

program 

(percent) 

Closed area I 

hook gear 

haddock SAP 

(percent) 

Eastern U.S./Canada haddock SAP 

(percent) 

GB cod ....................................................................................................................... 50 16 34 

GOM cod ................................................................................................................... 100 na na 

GB yellowtail flounder ................................................................................................ 50 na 50 

CC/GOM yellowtail flounder ...................................................................................... 100 na na 

SNE/MA yellowtail flounder ....................................................................................... 100 na na 

Plaice ......................................................................................................................... 100 na na 

Witch flounder ............................................................................................................ 100 na na 

SNE/MA winter flounder ............................................................................................ 100 na na 

GB winter flounder ..................................................................................................... 50 na 50

White hake ................................................................................................................. 100 na na 

Pollock ....................................................................................................................... 50 16 34 

TABLE 15—INCIDENTAL CATCH TACS FOR SPECIAL MANAGEMENT PROGRAMS BY STOCK FOR FY 2011–2012 

[Mt, live weight] 

Stock 

Regular B DAS 

program 

Closed area I hook gear 

haddock SAP 

Eastern U.S./Canada 

haddock SAP 

FY 2011 FY 2012 FY 2011 FY 2012 FY 2011 FY 2012 

GB cod ............................................................................. 1 .0 1 .1 0.3 0.4 0.7 0.8 

GOM cod .......................................................................... 1 .3 1 .3 na na na na 

GB yellowtail flounder ...................................................... 0 .15 0 .15 na na 0.1 0.1 

CC/GOM yellowtail flounder ............................................ 0 .3 0 .4 na na na na 

SNE/MA yellowtail flounder ............................................. 1 .1 1 .7 na na na na 

American plaice ............................................................... 3 .9 4 .1 na na na na 

Witch flounder .................................................................. 1 .2 1 .2 na na na na 

SNE/MA winter flounder .................................................. 7 .3 7 .6 na na na na 

GB winter flounder ........................................................... 0 .1 0 .2 na na 0.1 0.2 

White hake ....................................................................... 0 .7 0 .8 na na na na 

7. Great South Channel Exemption Area 

The current regulations at § 648.80 

state that a vessel may not fish in either 

the GOM or GB Exemption Areas unless 

it is fishing under a NE multispecies or 

a scallop DAS, is fishing with exempted 

gear, or is fishing in an exempted 

fishery, among other restrictions. 

Several exempted fisheries were created 

by previous adjustments to the FMP 

based on a procedure for adding, 

modifying, or deleting fisheries from the 

list of exempted fisheries originally 

established by FW 9 to the FMP on 

April 15, 1995 (60 FR 19364), and 

expanded in Amendment 7 on May 31, 

1996 (61 FR 27710). A fishery may be 

exempted by the NMFS NE RA after 

consultation with the Council, if the RA 

determines, based on available data or 

information, that the bycatch of 


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regulated species of groundfish is, or 

can be reduced to, less than 5 percent 

by weight of the total catch, and that 

such exemption will not jeopardize the 

fishing mortality objectives of the FMP. 

On October 25, 2005, a request was 

submitted on behalf of the General 

Category scallop fleet to establish an 

additional exempted scallop dredge 

fishery in the GOM/GB Exemption Area, 

in the vicinity of traditional scalloping 

grounds within the area known as the 

Great South Channel, off Cape Cod, MA. 

This request was approved, and the 

Great South Channel Exemption Area 

was created, on August 31, 2006 (71 FR 

51779). That rule allowed vessels issued 

a general category scallop permit, then 

an open access permit, and vessels with 

limited access scallop permits not 

fishing under a scallop DAS allocation, 

to use small dredges with a combined 

width not greater than 10.5 ft (3.2 m) in 

portions of the Great South Channel. 

Two large portions of the exemption 

area were closed seasonally to General 

Category scallop vessels to protect 

spawning populations of yellowtail 

flounder during peak spawning periods, 

including a southern closure from April 

1 through June 30 of each year, and a 

northern closure from June 1 through 

June 30. However, limited access 

scallop vessels fishing under a scallop 

DAS could still fish within the Great 

South Channel Exemption Area during 

those peak spawning periods because 

their catch of scallops, and, therefore, 

yellowtail flounder, was limited by the 

DAS effort controls in the scallop 

fishery. 

Since the 2006 rulemaking that 

created the Great South Channel 

Exemption Area, the general category 

scallop permits have become limited 

access permits subject to an individual 

fishing quota (IFQ) system under 

Amendment 11 to the Atlantic Sea 

Scallop FMP (April 14, 2008; 72 FR 

20090). Amendment 11 redefined the 

general category permits as ‘‘limited 

access general category,’’ or ‘‘LAGC’’ 

permits, and imposed limits on the 

amount of scallop catch from each 

LAGC IFQ vessels. Because of the catch 

limits of the IFQs, the amount of 

regulated species and ocean pout, 

particularly yellowtail flounder, caught 

by these vessels is also limited. Thus, 

the main justification for the spawning 

protection areas for general category 

scallop vessels—to minimize the impact 

on spawning yellowtail flounder—has 

been significantly mitigated through 

these catch limits. Further evaluation of 

the catch of limited access scallop 

vessels fishing on a DAS during these 

spawning periods reveals that the 

bycatch of yellowtail flounder in these 

areas during the peak spawning periods 

is below the 5-percent bycatch threshold 

established for exempted fisheries under 

Amendment 7. Therefore, based upon 

an industry request to reevaluate the 

necessity of these spawning closures, 

FW 45 proposes to eliminate the 

yellowtail spawning closure areas 

within the Great South Channel 

Exemption Area and allow all scallop 

vessels, including LAGC scallop vessels, 

to fish within this area throughout the 

entire year in accordance with 

applicable scallop regulations. To 

clarify that scallop vessels operating in 

the Great South Channel Exemption 

Area are still subject to the applicable 

scallop regulations, a reference to the 

scallop regulations at subpart D of 50 

CFR part 648 was included in the 

proposed regulations. 

8. GOM Cod Spawning Protection Area 

During the solicitation of public 

comment on measures proposed under 

Amendment 16, several individuals 

expressed concern regarding the impact 

of fishing activity on known spawning 

aggregations of GOM cod. Similar 

concerns were identified by the 

Massachusetts Division of Marine 

Fisheries during the early development 

of FW 45. In response, FW 45 proposes 

to create a GOM Cod Spawning 

Protection Area that would be effective 

from April through June of each year to 

protect spawning aggregations of GOM 

cod. 

The proposed GOM Cod Spawning 

Protection Area is rectangular in shape 

and would be located just south of the 

Isle of Shoals off the New Hampshire 

coastline, with its long axis oriented in 

a northwest to southeast direction. The 

exact coordinates for this proposed area 

are specified in section 4.3.2 of FW 45 

and in this proposed rule. This area was 

identified by researchers at the 

University of New Hampshire, working 

in conjunction with several commercial 

fishing vessels, and corresponds to areas 

and times when large spawning cod 

congregate during peak spawning 

months. The proposed area is intended 

to prevent fishing from interfering with 

spawning activity and reducing future 

recruitment in the fishery. 

As proposed, all commercial fishing 

vessels using gear capable of catching 

groundfish would be prohibited from 

fishing within the proposed area from 

June 1 through June 30 of each year, 

while all recreational vessels would be 

prohibited from using gear capable of 

catching groundfish in the area from 

April 1 through June 30 of each year. 

For commercial vessels, only vessels 

fishing with ‘‘exempted gear,’’ as defined 

in the current regulations, would be 

allowed into this area during the closure 

periods. Exempted gear includes pelagic 

hook and line gear, pelagic longline 

gear, spears, rakes, diving gear, cast 

nets, tongs, harpoons, weirs, dipnets, 

stop nets, pound nets, pelagic gillnets, 

pots and traps, shrimp trawls with a 

properly configured grate, and surfclam 

and ocean quahog dredges. Pelagic 

gillnet gear is currently further defined 

as a single pelagic gillnet not longer 

than 300 ft (91.4 m) and not greater than 

6 ft (1.83 m) deep, with a maximum 

mesh size of 3 inches (7.6 cm), that is 

attached to the boat and fished in the 

upper two-thirds of the water column. 

Only pelagic hook-and-line gear, as 

defined in the current regulations, 

would be allowed to be used in the area 

by recreational vessels. For both 

recreational and commercial vessels, 

‘‘pelagic hook and line gear’’ is defined 

as handline or rod and reel gear that is 

designed to fish for, or that is being used 

to fish for, pelagic species, no portion of 

which is designed to be or is operated 

in contact with the bottom at any time. 

The catch or possession of any regulated 

species or ocean pout by vessels using 

the exempted gear described above from 

April 1 through June 30 of each year 

would be prohibited. Both recreational 

and commercial vessels would be 

allowed to transit the proposed area, 

provided all gear is stowed according to 

existing regulations. 

During the development of FW 45, 

draft measures and discussions at 

Council and Groundfish Oversight 

Committee meetings made it clear that 

the Council did not intend to allow 

vessels using midwater trawl gear to fish 

in the proposed GOM Cod Spawning 

Protection Area from April 1 through 

June 30. However, it is less clear 

whether the Council intended this 

prohibition to also apply to vessels 

employing purse seine gear. The 

proposed regulations to implement FW 

45 that were submitted by the RA to the 

Council for deeming consistent with 

section 303(c) the Magnuson-Stevens 

Act reflected the current text in the FW 

45 document, as described above. 

Therefore, because midwater trawl gear 

and purse seine gear are not included in 

the current list of exempted gear, this 

action would not allow commercial 

vessels fishing with either midwater 

trawl gear or purse seines into this area 

during June of each year. These 

regulations were deemed consistent 

with FW 45 and the FMP by the Council 

Chairman through a letter dated January 

11, 2011. Accordingly, NMFS considers 

the proposed regulations to be 

consistent with Council intent for FW 

45. 


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9. Handgear A and B Measures 

Cod Trip Limit 

Amendment 13 originally created the 

limited access NE multispecies 

Handgear A permit and open access NE 

multispecies Handgear B permit, and 

specified the existing effort controls for 

such permits, including trip limits. The 

cod trip limit for Handgear A and B 

vessels implemented under Amendment 

13 was set at 300 lb (135 kg) and 75 lb 

(90.7 kg) per trip, respectively, and did 

not differentiate between the GOM and 

GB cod stocks. In addition, Amendment 

13 implemented measures that adjusted 

these cod trip limits proportionally to 

any changes to the GOM cod limit 

specified for NE multispecies DAS 

vessels in § 648.86(b), rounded up to the 

nearest 50 lb (22.7 kg) for Handgear A 

vessels and 25 lb (11.3 kg) for Handgear 

B vessels. Further, Amendment 13 did 

not differentiate between the GOM and 

GB cod stocks regarding adjustments to 

the cod trip limits. Thus, under 

Amendment 13, if the GOM cod limit 

specified for DAS vessels was reduced, 

the cod limit for Handgear A and B 

vessels would be reduced as well, 

regardless of whether such vessels 

fished in either the GOM or GB cod 

stock area, as demonstrated in an 

adjustment to such trip limits on July 

30, 2010 (75 FR 44924). 

FW 45 proposes to rectify these two 

issues by clarifying that the cod trip 

limits applicable to Handgear A and B 

vessels are stock-specific to the GOM or 

GB cod stock, including any 

adjustments to such trip limits. 

Handgear A vessels would be subject to 

an initial cod limit of 300 lb (135 kg) per 

trip for both the GOM and GB cod 

stocks, until NMFS adjusts the cod trip 

limit applicable to common pool vessels 

fishing under a NE multispecies DAS for 

either of these stocks below 300 lb (135 

kg) per trip. Once either the GOM or the 

GB cod trip limit for common pool DAS 

vessels is reduced below 300 lb (135 kg) 

per DAS, the applicable cod trip limit 

for Handgear A vessels would be 

adjusted to be the same as the daily 

limit for common pool DAS vessels. For 

example, if only the GOM cod trip limit 

for NE multispecies DAS vessels was 

reduced to 250 lb (113.4 kg) per DAS, 

then the cod trip limit for a vessel 

issued a Handgear A category permit 

that is fishing in the GOM Regulated 

Mesh Area (i.e., the area specified for 

the GOM cod trip limit) would also be 

reduced to 250 lb (113.4 kg); however, 

the cod trip limit for a Handgear A 

vessel fishing for GB cod south of the 

GOM Regulated Mesh Area (the GB cod 

stock area is considered the GB, SNE, 

and MA Regulated Mesh Areas) would 

be maintained at 300 lb (135 kg) per 

trip. The initial Handgear B cod limit for 

both the GOM and GB stocks would be 

maintained at 75 lb (90.7 kg) per trip, 

but would be adjusted proportional 

(rounded up to the nearest 25 lb (11.4 

kg)) to any changes in the daily GOM or 

GB cod trip limits for DAS vessels in the 

future, as necessary. For example, if the 

GOM cod trip limit was reduced by 50 

percent from 800 lb (362.9 kg) per DAS 

to 400 lb (181.4 kg) per DAS, then the 

cod trip limit for a Handgear B vessel 

fishing in the GOM Regulated Mesh 

Area would also be reduced by 50 

percent to 37.5 lb (17 kg), rounded to 

the nearest 25 lb (11.3 kg), or 50 lb (22.7 

kg) per trip. In this example, the cod trip 

limit for a Handgear B vessel fishing for 

GB cod south of the GOM Regulated 

Mesh Area would be maintained at 75 

lb (90.7 kg) per trip. 

FW 45 explicitly provides NMFS with 

the ability to propose administrative 

measures necessary to implement the 

stock-specific cod trip limits, including 

a letter of authorization (LOA) to fish in 

defined stock areas. Consistent with 

existing provisions to administer 

different cod trip limits for DAS vessels 

that were first established by FW 20 

(April 1, 1997; 62 FR 15381), NMFS 

proposes to require the owner or 

operator of a Handgear A or B vessel to 

declare his or her intent to fish for GB 

cod by obtaining and retaining on board 

a paper LOA from the RA. Alternatively, 

the owner or operator of a Handgear A 

permitted vessel may declare his or her 

intent to fish for GB cod south of the 

GOM Regulated Mesh Area prior to each 

trip via a vessel monitoring system 

(VMS), if the vessel elects, or is required 

(i.e., when fishing in multiple broad 

stock areas on the same trip), to use 

VMS under the current regulations. 

These declarations enable at-sea 

enforcement personnel to identify the 

applicable cod trip limits and effectively 

enforce the appropriate regulations 

during boarding operations. The 

minimum participation period for this 

LOA would be 7 consecutive days to 

minimize the administrative burden of 

this provision, consistent with existing 

practice for LOAs issued to DAS vessels. 

If a vessel declares via VMS, this would 

be required on a trip-by-trip basis, and 

no minimum participation period is 

necessary. 

Because the current cod trip limits are 

based upon Regulated Mesh Area, not 

stock area, the owner or operator of a 

Handgear A or B vessel that intends to 

fish for GB cod would commit to fishing 

south of the GOM Regulated Mesh Area. 

Consistent with the existing cod LOA 

for DAS vessels, this action proposes to 

restrict vessels issued the cod LOA 

described above to fishing south of the 

GOM Regulated Mesh Area for the 

duration of the LOA to more effectively 

enforce this measure. NMFS is 

particularly interested in soliciting 

public comment regarding this 

restriction, as neither FW 45, nor 

Council or Groundfish Oversight 

Committee discussion of this measure 

explicitly considered this restriction. 

Access to Seasonal Closure Areas 

The catch of regulated species and 

ocean pout by vessels issued either a 

Handgear A or B permit participating in 

the common pool is limited not only by 

the cod trip limits described above, but 

also by seasonal closure areas, and the 

common pool sub-ACL for each stock. 

The current seasonal closure areas in 

the GOM and on GB run from March 

through June, and October and 

November, and include large portions of 

inshore waters most frequently fished 

by the predominantly smaller handgear 

vessels. Accordingly, many of these 

vessels are unable to fish during these 

months, because it would be unsafe for 

them to venture farther offshore and fish 

in open areas. 

Existing regulations implementing 

FW 44 allow the RA to adjust the trip 

limits applicable to common pool 

vessels, including those issued a 

Handgear A or B permit, to ensure the 

common pool sub-ACLs are not 

exceeded before the end of the FY. This 

authority was utilized during FY 2010 

to reduce trip limits for stocks caught by 

Handgear A and B vessels, including 

cod and haddock, as early as May 27, 

2010 (75 FR 29678). Thus, handgear 

vessels are competing against often 

larger trawl, gillnet, and hook vessels to 

catch the available sub-ACL of each 

stock. However, due to the operational 

limitations caused by the seasonal 

closure areas, handgear vessels are often 

precluded from fishing, particularly in 

the GOM, until June or July of each year. 

If common pool trip limits are reduced 

before June to prevent a sub-ACL from 

being exceeded, the trip limits might be 

reduced so low as to make it 

economically unviable for handgear 

vessels to fish at all during a particular 

FY. 

To ensure that handgear vessels are 

provided an opportunity to fish during 

at least the early part of the FY, FW 45 

proposes to exempt both Handgear A 

and B vessels from the GB Seasonal 

Closure Area defined in § 648.81(g), and 

to allow Handgear A vessels to also fish 

in the Sector Rolling Closure Areas 

defined in § 648.81(f)(2)(vi)(A) through 

(C), and depicted in section 4.3.3 of FW 

45. These latter areas represent smaller 

portions of the GOM Rolling Closure 


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Areas, and would enable Handgear A 

vessels fishing in the GOM a greater 

chance at catching some of the available 

sub-ACLs for cod and haddock during a 

particular FY before such trip limits are 

reduced to prevent the ACL from being 

exceeded. It is unlikely that this 

measure would increase F or jeopardize 

rebuilding requirements for overfished 

stocks, as the sub-ACLs and associated 

AMs established for the common pool 

are sufficient to prevent overfishing and 

to continue to rebuild overfished stocks. 

10. Dockside/Roving Monitor 

Requirements 

FW 45 proposes several revisions to 

the existing dockside/roving monitor 

requirements originally established in 

2010 under Amendment 16. Each of 

these revisions is considered a separate 

provision and is discussed in further 

detail below. 

Delay in Requirement for Industry To 

Fund Dockside/Roving Monitors 

One of the primary objections to the 

dockside/roving monitoring program 

expressed by the public during the 

development and implementation of 

Amendment 16 and the development of 

FW 45 was the high cost of providing 

sufficient coverage to monitor offloads. 

As a result, NMFS made sufficient 

funding available to pay for 100 percent 

of the costs associated with dockside/ 

roving monitoring coverage in FY 2010, 

and pledged to do the same in FY 2011 

to help alleviate the economic impacts 

of monitoring costs and smooth the 

transition to a quota-based management 

regime in the FMP. 

To address lingering concerns 

regarding the ability of the fishing 

industry to pay for future costs of a 

dockside/roving monitoring program, 

particularly while stocks continue to 

rebuild, NFMS proposes to delay the 

industry’s responsibility for paying for 

dockside/roving monitoring coverage 

until FY 2013. Instead, NMFS would 

specify coverage levels during FYs 2011 

and 2012 based upon available NMFS 

funding. None of the costs associated 

with dockside/roving monitors during 

FYs 2011 and 2012 would be imposed 

upon the owner or operator of a NE 

multispecies vessel. NMFS would 

endeavor to provide dockside/roving 

monitoring coverage to observe the 

offloads of up to 100 percent of sector 

and, for FY 2012, common pool trips, if 

funds are available. If funds are not 

available for monitoring 100 percent of 

groundfish trips, NMFS would first 

provide dockside/roving monitor 

coverage to trips that do not have an 

observer, at-sea monitor, or approved 

electronic monitoring equipment. 

Dockside/Roving Monitoring Program 

Requirements Beginning in FY 2013 

Neither the Council motion approving 

the delayed industry funding of 

dockside/roving monitor coverage 

discussed above, nor FW 45 explicitly 

describes the Council’s intent regarding 

dockside/roving monitoring 

requirements beginning in FY 2013. 

Amendment 16 clearly indicated the 

Council’s intention to monitor landings 

of regulated species and ocean pout by 

all limited access NE multispecies 

vessels beginning in FY 2012, and that 

the industry would eventually be 

responsible for the costs of dockside/ 

roving monitoring requirements. Based 

upon the intention expressed in 

Amendment 16, NMFS interprets the 

language describing the measures in the 

FW 45 EA to reinstate the dockside/ 

roving monitoring requirements 

originally implemented under 

Amendment 16 beginning in FY 2013. 

Thus, proposed regulations to 

implement FW 45 that were submitted 

by the RA to the Council for deeming 

included, starting again in 2013, the 

requirement for sectors to develop and 

pay for a dockside/roving monitoring 

program as part of their annual 

operations plans, the requirement for 

common pool vessels to be subject to 

dockside/roving monitoring upon the 

transition to a trimester TAC AM, the 

trip-start and trip-end hail reporting 

requirements associated with such 

provisions, and the requirement for 

dockside/roving monitors to observe the 

landings of 20 percent of all common 

pool and sector trips determined in a 

statistically random manner. These 

regulations were deemed consistent 

with FW 45 and the FMP by the Council 

Chairman through a letter dated January 

11, 2011. Accordingly, NMFS considers 

the proposed regulations to be 

consistent with Council intent for FW 

45. 

As noted above, the regulations 

implementing Amendment 16 currently 

require common pool vessels to comply 

with dockside/roving monitoring 

requirements beginning in FY 2012. To 

facilitate administration and compliance 

with the dockside/roving monitoring 

operational standards specified at 

§ 648.87(b)(5), the regulations at 

§ 648.82(n)(2)(iv) indicate that such 

vessels may only use one dockside/ 

roving monitor service provider per FY. 

Further clarification of this requirement 

was provided in the March 30, 2010, 

permit holder letter explaining the 

Amendment 16 regulations. That letter 

indicated that the owner of each 

common pool vessel must contract with 

a dockside/roving monitoring service 

provider approved by NMFS beginning 

in FY 2012. Because this action 

proposes to require most common pool 

vessels to comply with the dockside/ 

roving monitoring provisions originally 

implemented under Amendment 16 

beginning in FY 2013, this action would 

revise the regulations at 

§ 648.82(n)(2)(iv) to clearly state that the 

owner or operator of each common pool 

vessel subject to dockside/roving 

monitoring requirements must contract 

for such services with a service provider 

approved by NMFS by 2013. The need 

for vessel owners to contract with a 

specific service provider is necessary in 

the absence of any NMFS-controlled 

dockside/roving monitoring program in 

which NMFS can act as a mediator 

between the fishing industry and 

approved service providers. Further, 

because each individual permit is 

considered a separate legal entity, 

NMFS is not inclined to mandate that 

common pool vessels use a particular 

service provider in a particular FY in 

order to increase competition among 

service providers and potentially 

decrease costs to the affected vessel 

owners. Groups of vessel owners, 

however, may elect to contract with the 

same service provider to help lower the 

costs associated with such 

requirements. 

Exemption of the Dockside/Roving 

Monitor Requirements for Certain 

Permit Categories 

Vessels issued a limited access NE 

multispecies Handgear A or Small 

Vessel Category permit, and vessels 

issued an open access NE multispecies 

Handgear B permit, land very small 

amounts of regulated species and ocean 

pout compared to vessels issued limited 

access NE multispecies DAS permits. 

Thus, dockside/roving monitoring costs 

would represent a greater proportion of 

their operational costs compared to NE 

multispecies vessels operating under a 

NE multispecies DAS. Based on public 

input, there is the potential that such 

costs would be more than the value of 

fish landed on a particular trip. 

Accordingly, FW 45 proposes to exempt 

Handgear A, Handgear B, and Small 

Vessel category permits from any 

dockside/roving monitoring 

requirements when operating in the 

common pool. Under such an 

exemption, it would not be possible for 

dockside/roving monitor service 

providers to provide statistically 

random coverage of all common pool 

trips, as required under Amendment 16. 

Therefore, the proposed regulations 

would also revise the Amendment 16 

dockside/roving monitoring coverage 

provisions to accommodate this 


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exemption, and specify that service 

providers must provide random 

coverage of all trips subject to the 

dockside/roving monitoring 

requirements. 

Trip-End Hail Requirement 

Based upon a pilot dockside/roving 

monitoring program, the dockside/ 

roving monitor provisions implemented 

under Amendment 16 currently require 

that vessels submit both a trip-start and 

trip-end hail report. The trip-start hail 

report was intended to provide the basic 

trip information necessary for dockside/ 

roving service providers to coordinate 

the deployment of dockside/roving 

monitors, including the date, time, and 

port of intended landing and offloading. 

The trip-end hail report provides more 

detailed information that confirmed or 

revised information submitted in the 

trip-start hail report. This latter report is 

also used by both State and Federal 

enforcement personnel to facilitate 

dockside intercepts. 

As described above, the Council 

considered, but did not approve, a 

motion that would have eliminated the 

dockside/roving monitoring 

requirements of Amendment 16. 

Instead, in FW 45, NMFS proposes to 

rely upon its available funding to 

determine the amount of dockside/ 

roving monitoring coverage in FYs 2011 

and 2012. If the Council had elected to 

eliminate completely the dockside/ 

roving monitor requirements, the tripend hail report would have also been 

eliminated. Because the recent 

transition to quota-based management 

under ACLs and AMs increases 

incentives to misreport or underreport 

landings of regulated species and ocean 

pout, the Council considered it 

important to ensure that the trip-end 

hail report in FW 45 was retained, even 

if there was insufficient NMFS funding 

to support dockside/roving monitoring 

coverage in FYs 2011 or 2012. This 

measure is expected to increase the 

chances that a particular trip would be 

subject to dockside inspection by 

enforcement personnel and may, in 

turn, increase compliance with 

applicable measures and the accuracy of 

landings data used to monitor the 

fishery. 

Beginning in FY 2011, if 

implemented, FW 45 would require all 

sector vessels and common pool vessels 

fishing under a DAS to submit trip-hail 

report via VMS prior to returning to 

port. If there is sufficient NMFS funding 

to provide for some level of dockside/ 

roving monitor coverage, vessels 

assigned a dockside/roving monitor for 

a particular trip would be required to 

submit both a trip-start and a trip-end 

hail report for that trip, however, 

consistent with current practice. The 

trip-end hail report would contain the 

same information as the trip-end hail 

report implemented by Amendment 16, 

including the vessel permit number; 

vessel trip report (VTR) serial number of 

the first VTR page for that trip; intended 

offloading location(s), including the 

dealer name/offload location, port/ 

harbor, and State for the first dealer/ 

facility where the vessel intends to 

offload catch and the port/harbor and 

State for the second dealer/facility 

where the vessel intends to offload 

catch; estimated date/time of arrival; 

estimated date/time of offload; and the 

estimated total amount of all species 

retained, including species managed by 

other FMPs (in pounds, landed weight) 

on board at the time the vessel first 

offloads its catch from a particular trip. 

This report, if submitted when there is 

insufficient funding to provide for a 

NMFS-controlled dockside/roving 

monitoring program, would only be 

submitted to NMFS’ Office of Law 

Enforcement rather than also to a 

dockside/roving monitor service 

provider. 

Inspection of Fish Holds 

Amendment 16 established approval 

requirements for entities providing 

dockside/roving monitoring services. 

These standards included hiring 

individual dockside monitors that were 

capable of climbing ladders and 

inspecting fish holds. For FY 2010, 

NMFS developed operational standards 

necessary to implement the Amendment 

16 dockside monitoring provisions, 

based on a pilot dockside/roving 

monitoring program conducted during 

the summer of 2009. These standards 

did not require dockside monitors to 

inspect fish holds for FY 2010. 

However, based on further evaluation of 

the performance of the dockside 

monitoring program and consideration 

of concerns expressed by enforcement 

personnel, NMFS is proposing to 

require dockside monitors to inspect the 

fish holds for any trip that is assigned 

a dockside/roving monitor beginning in 

FY 2011. This requirement would 

enhance the enforceability of existing 

provisions and minimize the incentives 

to under-report/misreport the amount of 

regulated species landed. 

11. Sector Measures 

Distribution of the PSC From Cancelled 

Permits 

As described in Amendment 16, a 

PSC represents an individual permit’s 

portion of the total historical landings of 

each regulated species or ocean pout 

stock during FYs 1996–2006 by all 

permits, including those in confirmation 

of permit history (CPH), that were 

eligible to participate in the NE 

multispecies fishery as of May 1, 2008. 

This date was selected to provide a 

recent baseline of eligible permits so 

that the PSCs of each permit could be 

calculated only once, and then become 

fixed. Accordingly, if a permit is 

cancelled after May 1, 2008, its historic 

landings between FYs 1996–2006 are 

still used to calculate the total landings 

by eligible permits, and continue to 

effectively reduce the PSC of all 

remaining permits. 

As noted above, the current 

regulations calculate the ACL available 

to sector and common pool vessels 

based on the cumulative PSCs of each 

permit participating in each sector. By 

default, if the owner of a particular 

permit has not elected to participate in 

a sector, that permit is considered to be 

participating in the common pool, and 

its PSC contributes to the sub-ACL 

available to the common pool at large. 

Similarly, if a permit or CPH is 

cancelled for any reason, that permit or 

CPH cannot participate in sectors, or 

any fishery, and the PSC is used to 

contribute to the sub-ACL available to 

the common pool. Thus, the PSCs of 

cancelled permits artificially inflate the 

PSCs of those permits operating in the 

common pool and are not equitably 

distributed among the permits 

remaining in the fishery. 

Under FW 45, the PSC calculations 

adopted under Amendment 16 would be 

performed yearly based upon valid 

permits, including those held in CPH, 

that are eligible to participate in the 

fishery as of a certain date. To do so, the 

PSCs for each stock calculated pursuant 

to the process specified in Amendment 

16 would be multiplied by a factor of ‘‘1/ 

PSC of the remaining permits.’’ The 

Council provided NMFS with the 

authority to specify the date on which 

PSCs are calculated each year. To reflect 

permits that are renewed by the 

beginning of each FY (May 1), and allow 

NMFS time to process such renewals, 

this action proposes to recalculate PSCs 

on June 1 of each year, unless another 

date is specified by the RA. These 

recalculated PSCs would be used to 

calculate ACEs for each sector during 

the following FY. For example, if a PSC 

is calculated on June 1, 2011, that PSC 

will affect sector ACE for the 2012 FY 

that begins on May 1, 2012. This 

provision would mean that each 

permit’s PSC may increase on a yearly 

basis to reflect its higher portion of the 

historic landings of each regulated 

species and ocean pout stock due to the 

removal of the landings histories of any 


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permits that were cancelled by June 1 of 

each year. On or about July 1 of each 

year, NMFS would inform permit 

holders of updated PSCs. If this measure 

is approved, the RA would recalculate 

PSCs for each permit using valid 

permits as of May 1, 2011, to update 

PSCs for FY 2011 and reflect permits 

cancelled through FY 2010. 

Operations Plan Requirements 

Amendment 16 specified that sectors 

must submit final rosters, proposed 

operations plans, and associated 

environmental analyses by September 1, 

so that NMFS could review such 

documents as part of the process to 

approve sector operations for the 

following FY. NMFS extended this 

deadline in 2009 to provide more time 

for vessel owners to decide whether to 

join sectors for FY 2010. Based on 

industry input, NMFS requested that the 

Council formally integrate such 

flexibility into the current regulations as 

part of FW 45. Thus, NMFS proposes to 

require sectors to provide preliminary 

rosters and proposed operations plans 

by September 1, but to submit final 

rosters by December 1. Draft rosters by 

September 1, and final rosters by 

December 1, provide NMFS with the 

information it needs to review or 

conduct environmental analyses 

associated with draft sector operations 

plans, while allowing vessel owners 

additional time to decide whether to 

participate in sectors, or which sector to 

join during the following FY. 

Sector Exemptions 

Amendment 16 defined several 

measures for which sectors cannot 

request an exemption. These include 

year-round closure areas, permitting 

restrictions, gear restrictions designed to 

reduce impacts to habitat, and reporting 

requirements. Amendment 16 

specifically noted that sectors could 

request an exemption from the DAS 

reporting requirements, as sectors were 

universally exempted from the NE 

multispecies DAS restrictions. As part 

of public comments received on the 

proposed rule to implement 

Amendment 16 (December 31, 2009; 74 

FR 69382), several members of the 

public requested that NMFS exempt 

sector vessels operating west of 72° 30′ 

W. long. (i.e., Shinnecock Inlet, NY) and 

using larger mesh in the monkfish 

fishery from the Amendment 16 

dockside/roving monitoring 

requirements. This requirement was 

based on the argument that regulated 

species are rarely encountered in waters 

south of New York, particularly when 

using the large mesh required in the 

monkfish fishery. NMFS disapproved 

this request based on the Amendment 

16 requirements to monitor all sector 

trips. 

Similar concerns were raised during 

the final meeting to approve measures 

for FW 45. To reduce dockside/roving 

monitoring costs, especially due to 

infrequent landings of regulated species 

in more southerly ports, some 

individuals sought to limit the 

geographic scope of dockside/roving 

monitoring requirements, or exempt 

vessels landing in particular ports from 

the dockside/roving monitoring 

requirements. FW 45 proposes to 

address these concerns by specifically 

removing dockside/roving monitoring 

requirements from the list of reporting 

requirements at § 648.87(c)(2)(i). This 

would enable sectors to request 

exemptions, or at least partial 

exemptions, from the dockside/roving 

monitoring requirements to minimize 

monitoring costs for sector trips 

targeting monkfish in southern waters, 

for example. 

At-Sea or Electronic Monitoring 

Requirements 

Amendment 16 currently requires that 

sectors develop and pay for an at-sea or 

electronic monitoring program starting 

in FY 2012. This requirement was 

intended to provide sufficient 

information to accurately monitor 

landings and discards of regulated 

species and ocean pout by sector 

vessels, while allowing sectors 2 years 

to develop such a program on their own. 

As noted above, members of the fishing 

industry and the Council are concerned 

about the high cost of at-sea and 

electronic monitoring requirements. 

Because of the costs associated with 

sectors, including costs to join a sector, 

the Council was concerned that 

imposing additional monitoring costs on 

the industry, particular shortly after the 

transition to sector management and 

before many of the currently overfished 

stocks rebuild enable higher ACLs to be 

specified, would reduce profitability 

and result in making the sector system 

an economic failure. Therefore, FW 45 

would delay the industry’s 

responsibility for developing and paying 

for an at-sea or electronic monitoring 

program by 1 year. Unless the Council 

further revises this provision, sectors 

would be responsible for developing 

and paying for such a program 

beginning in FY 2013. 

During the deliberation of this 

provision, NMFS expressed concern 

about the Council’s reliance upon 

NMFS funding to fully support a 

provision required by the FMP, 

particularly the specific at-sea or 

electronic monitoring coverage levels in 

Amendment 16. Because NMFS’ 

funding is not guaranteed, and depends 

upon Congressional appropriations, it is 

likely that funding levels will fluctuate 

on a yearly basis and may not be 

sufficient to fully fund the dockside/ 

roving monitoring coverage 

requirements in the FMP. Thus, NMFS 

indicated that this measure may not be 

approvable as part of FW 45. 

12. Authorization of New Sectors 

FW 45 would authorize five new 

sectors. These sectors are described in 

Section 4.2.1 of the FW 45 EA, and 

include the State of Maine Permit 

Banking Sector, the State of Rhode 

Island Permit Bank Sector, the State of 

New Hampshire Permit Bank Sector, the 

Commonwealth of Massachusetts Permit 

Bank Sector, and the Sustainable 

Harvest Sector III. All operational 

aspects of these sectors would be 

specified in their annual operations 

plans, as submitted to NMFS. Most of 

these sectors are proposed to be used for 

the primary purpose of leasing ACE to 

other sectors. Details of these operations 

plans are expected to be proposed in a 

parallel rulemaking to be published in 

the Federal Register soon, as noted 

above. If approved, each of these sectors 

must comply with the existing sector 

provisions, unless otherwise exempted 

by a future action. The Council is 

currently considering specifically 

exempting State-funded and -operated 

permit banks from several of the 

existing sector provisions, including the 

minimum size requirement for sectors 

originally established under 

Amendment 16, through a separate 

rulemaking being developed by the 

Council. Public comment will be 

solicited separately on that action. 

13. Measures for FY 2011 Under RA 

Authority 

The FMP provides authority for the 

RA to implement certain types of 

management measures for the common 

pool fishery, the U.S./Canada 

Management Area, and Special 

Management Programs, as described 

further below. This proposed rule 

includes a description of measures that 

may be considered by the RA for 

implementation in FY 2011 for these 

components of the groundfish fishery, 

in order to provide an opportunity for 

the public to comment on whether such 

measures are appropriate. Although 

these measures are not proposed by the 

Council for implementation through FW 

45, this proposed rule makes the public 

aware of measures under consideration 

by the RA, under the authority of the 

FMP. It also enables the public to 

comment on such measures in the 


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context of the measures proposed in FW 

45, that, if approved, would also be 

implemented for FY 2011. The RA may 

implement measures that differ from the 

measures described below if, based on 

current information, such measures are 

necessary to conform to the 

requirements of the FMP. However, 

NMFS does not anticipate the measures 

that would be implemented will be 

substantially different than those 

described below. The measures 

implemented through RA authority for 

FY 2011 will be implemented through 

the FW 45 final rule, or through a 

separate final rule, if necessary, due to 

the availability of relevant data or the 

timing of FW 45. 

The FW 44 final rule implemented RA 

authority to alter common pool trip 

limits at § 648.86(o). If the RA projects 

that the catch of any NE multispecies 

stock allocated to common pool vessels 

will exceed the pertinent sub-ACL, 

NMFS may implement or adjust 

possession and trip limits in order to 

prevent exceeding the common pool 

sub-ACL. Table 16 provides a summary 

of the trip limits that are the default trip 

limits in effect if the RA takes no action 

to modify such limits, as well as a 

summary of trip limit modifications that 

occurred during FY 2010, and potential 

starting trip limits that would be in 

effect for FY 2011. These potential trip 

limits were developed after considering 

changes to the 2011 common pool subACLs and sector rosters, catch rates of 

these stocks during FY 2010, price of 

fish during FY 2010, bycatch 

considerations, the potential for 

differential DAS counting during FY 

2011, and other available information. 

Specifically, compared to the FY 2010 

sub-ACLs, FY 2011 sub-ACLs (see Table 

5) would increase for SNE/MA 

yellowtail flounder (69 percent), GB cod 

(25 percent), CC/GOM yellowtail 

flounder (21 percent), white hake (16 

percent), GOM cod (6 percent), 

American plaice (9 percent), witch 

flounder (45 percent), GB winter 

flounder (8 percent), redfish 

(10 percent), and Atlantic halibut 

(10 percent). Decreased catch limits 

compared to FY 2010 are expected for 

GB haddock (¥24 percent), GB 

yellowtail flounder (¥18 percent), 

pollock (¥16 percent), and GOM 

haddock (¥5 percent). Although the 

slow catch rate of SNE/MA yellowtail 

flounder by common pool vessels in FY 

2010 suggests that trip limits could be 

increased substantially to increase the 

catch of this stock in FY 2011, due to 

concerns over the potential of increased 

SNE/MA yellowtail flounder trip limits 

to increase the bycatch and discard of 

SNE/MA winter flounder (a stock that 

cannot be possessed by any vessel to 

help ensure this stock rebuilds 

according to the approved rebuilding 

program), only a small increase in the 

trip limit for this stock is proposed at 

this time. For stocks that include a range 

of potential trip limits in Table 16, a 

final trip limit would be specified in the 

final rule for this action based upon 

public comment. NMFS is requesting 

public input on common pool trip limits 

for FY 2011. 

TABLE 16—DEFAULT, FY 2010, AND POTENTIAL FY 2011 TRIP LIMITS FOR THE COMMON POOL

Stock Default limit in regulations FY 2010 limit implemented Potential FY 2011 limit 

GOM cod ................. 800 lb (362.9 kg) per DAS, up to 4,000 

lb (1,818.2 kg) per trip.

200 lb (90.7 kg) per DAS, up to 1,000 

lb (453.6 kg) per trip; reduced to 100 

lb (45.4 kg) per DAS, up to 1,000 lb 

(453.6 kg) per trip.

500 lb (226.8 kg) per DAS, up to 2,000 

lb (907.2 kg) per trip. 

GB cod .................... 2,000 lb (907.2 kg) per DAS, up to 

20,000 lb (9,072 kg) per trip.

no change to default limit ..................... 2,000 lb (907.2 kg) per DAS, up to 

20,000 lb (9,072 kg) per trip. 

GOM haddock ......... unrestricted ........................................... 1,000 lb (453.6 kg) per trip .................. 750 lb (340.2 kg)—1,000 lb (453.6 kg) 

per trip. 

GB haddock ............ unrestricted ........................................... 10,000 lb (4,535.9 kg) per trip ............. 7,500 lb (3,402 kg)—10,000 lb 

(4,535.9 kg) per trip. 

GOM winter flounder unrestricted ........................................... 250 lb (113.4 kg) per trip ..................... 250 lb (113.4 kg) per trip. 

GB winter flounder .. unrestricted ........................................... started at 5,000 lb (2,268 kg); reduced 

to 1,000 lb (453.6 kg) per trip.

1,000 lb (453.6 kg) per trip. 

CC/GOM yellowtail 

flounder.

250 lb (113.4 kg) per DAS, up to 1,500 

(680.4 kg) per trip.

250 lb (113.4 kg) per DAS, up to 1,500 

(680.4 kg) per trip.

250 lb (113.4 kg) per DAS, up to 1,500 

(680.4 kg) per trip. 

GB yellowtail flounder.unrestricted ........................................... started at 2,500 lb (1,134 kg) per trip; 

reduced to 1,000 lb (453.6 kg) per 

trip; reduced again to 100 lb (45.4 

kg) per trip.

1,000 (453.6 kg)—1,500 (680.4 kg) per 

trip. 

SNE/MA yellowtail 

flounder.

250 lb (113.4 kg) per DAS, up to 1,500 

(680.4 kg) per trip.

250 lb (113.4 kg) per DAS, up to 1,500 

(680.4 kg) per trip.

250 lb (113.4 kg) per DAS, up to 1,500 

(680.4 kg) per trip—500 lb (226.8 

kg), up to 2,000 (907.2 kg) per trip. 

American plaice ...... unrestricted ........................................... unrestricted ........................................... unrestricted. 

Pollock ..................... 1,000 lb (450 kg) per DAS; up to 

10,000 lb (4,500 kg) per trip.

unrestricted ........................................... unrestricted. 

Witch flounder ......... unrestricted ........................................... 130 lb (59 kg) per trip; reduced to possession prohibition.250 lb (113.4 kg) per trip. 

White hake .............. unrestricted ........................................... Started at 2,000 lb (907.2 kg) per 

DAS; up to 10,000 lb (4,500 kg) per 

trip; reduced to 100 lb (45.4 kg) per 

DAS; up to 500 lb (226.8 kg) per trip.

1,000 lb (453.6 kg)—1,500 lb (680.4 

kg) per trip. 

Redfish .................... unrestricted ........................................... unrestricted ........................................... unrestricted. 

Amendment 16 implemented a 

provision that AMs for the common 

pool fishery will be triggered for FY 

2011 if the catch in FY 2010 exceeds the 

pertinent common pool sub-ACL 

(§§ 648.90(a)(5)(i)(A) and 648.82(n)). 

Specifically, the FMP requires that the 

DAS counting rate during FY 2011 be 

adjusted if the catch of the relevant 

stocks by common pool vessels exceeds 

the pertinent common pool groundfish 

sub-ACLs during FY 2010. Based on 

current information, the common pool 

catch of witch flounder during FY 2010 

will exceed the witch flounder sub-ACL 


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specified for the common pool (25 mt) 

by 20 percent or more. As an example, 

if the percent of the common pool subACL for witch flounder caught at the 

end of FY 2010 is determined to be 124 

percent, the required differential DAS 

rate would be 1.2 where historically 

witch flounder are caught. The 

geographic areas for which the 

differential DAS rate would apply are 

defined for witch flounder by the FMP 

as the Offshore GOM Differential DAS 

Area, the Offshore GB Differential DAS 

Area, and the Inshore GB Differential 

DAS Area, with coordinates specified at 

§ 648.82(n)(1)(i). The differential DAS 

rate would not apply to the Inshore 

GOM Differential DAS Area or the SNE/ 

MA Differential DAS Area, provided 

only the witch flounder ACL is 

exceeded, and AMs are not required for 

a stock with predominantly inshore 

catch. The differential DAS would apply 

to all Category A trips taken by common 

pool vessels in the applicable areas. 

Category A DAS would be charged at a 

rate of 28.8 hr for every 24 hr fished (1.2 

times 24-hr DAS counting), for the time 

spent fishing in the applicable DAS 

counting area (noted above) based upon 

the first VMS position into the 

applicable differential DAS counting 

area, and the first VMS position outside 

of the applicable differential DAS 

counting area. If the catch of other 

stocks such as GOM cod exceed their 

respective sub-ACLs, additional 

differential DAS restrictions or an 

adjustment to the DAS allocation may 

be required. NMFS provides an estimate 

of the status of the common pool catch 

to the public through the following 

Internet address: http:// 

www.nero.noaa.gov/ro/fso/reports/ 

common_pool/ 

Common_Pool_Summary.html. 

Under authority granted by the FMP 

(§ 648.85(a)(3)(iv)(D)), the RA may 

implement rules to optimize the harvest 

of the transboundary stocks managed 

under the Understanding. Pursuant to 

this authority, NMFS is considering 

postponing the opening of the Eastern 

U.S./Canada Area for non-sector 

(common pool) vessels fishing with 

trawl gear in FY 2011 from May 1, 2011, 

to August 1, 2011. This action would 

prevent trawl fishing in the Eastern 

U.S./Canada Area during the time when 

cod bycatch is likely to be very high, 

and prolong access to this area in order 

to maximize the catch of available cod, 

haddock, and yellowtail flounder, as 

well as other valuable stocks such as 

winter flounder. This action would not 

affect valid members of sectors fishing 

with trawl gear in the Eastern U.S./ 

Canada Area, because such vessels are 

subject to additional restrictions on 

catch as members of a sector. Industry 

members believe that sector restrictions 

provide sufficient incentives for vessels 

to fish in a manner that optimizes catch, 

and that such incentives are not existent 

under common pool regulations. To 

further constrain fishing mortality on 

GB cod, NMFS may limit the common 

pool vessels fishing with non-trawl gear 

in the Eastern U.S./Canada Area prior to 

August 1, 2011, to a cod catch of 5 

percent of the Eastern GB cod TAC, or 

10 mt of cod. 

The RA has the authority to determine 

the allocation of the total number of 

trips into the Closed Area II Yellowtail 

Flounder/Haddock SAP based on 

several criteria, including the GB 

yellowtail flounder TAC and the 

amount of GB yellowtail flounder 

caught outside of the SAP. As 

implemented in 2005 by FW 40B (June 

1, 2005; 70 FR 31323), zero trips to this 

SAP should be allocated if the available 

GB yellowtail flounder catch is 

insufficient to support at least 150 trips 

with a 15,000-lb (6,804-kg) trip limit 

(i.e., 150 trips of 15,000 lb (6,804 kg)/ 

trip, or 2,250,000 lb (1,020,600 kg) total. 

This calculation takes into account the 

projected catch from the area outside 

the SAP. Based on the groundfish subACL of 2,125,256 lb (964,016 kg), even 

if the projected catch from outside the 

SAP area is zero, there is still 

insufficient GB yellowtail flounder 

available to allow the SAP to proceed 

(i.e., 2,125,256 lb (964,016 kg) available 

< 2,250,000 (1,020,600 kg) needed). 

Therefore, based on existing authority, 

this proposed rule would allocate zero 

trips to the CA II Yellowtail Flounder 

SAP for FY 2010, based on a 

determination that the available TAC of 

GB yellowtail flounder is insufficient to 

support a minimum level of fishing 

activity within the Closed Area II 

Yellowtail Flounder/Haddock SAP. This 

means that vessels could fish in this 

SAP, but would not be allowed to fish 

any trips using flounder nets, as defined 

in the regulations at 

§ 648.85(a)(3)(iii)(B), and would instead 

need to fish with a haddock separator 

trawl, a Ruhle trawl, or hook gear. 

14. Corrections and Clarifications 

This proposed rule would also correct 

a number of inadvertent errors, 

omissions, and ambiguities in existing 

regulations in order to ensure 

consistency with, and accurately reflect 

the intent of previous actions under the 

FMP, or to more effectively administer 

and enforce existing provisions 

pursuant to the authority provided to 

the Secretary of Commerce in section 

305(d) of the Magnuson-Stevens Act. 

The following proposed measures are 

listed in the order in which they appear 

in the regulations, and indicate the 

genesis of the regulation and/or the 

cause of the regulatory error. 

Amendment 16 requires the owner or 

operator of any vessel issued a limited 

access NE multispecies permit fishing 

on either a common pool (i.e., nonsector) or a sector trip to declare its 

intent to fish within one or more of the 

NE multispecies broad stock areas 

(BSAs) and provide the vessel trip 

report (VTR) serial number for the first 

page of the VTR for that particular trip 

via VMS prior to leaving port at the start 

of a fishing trip. In addition, a vessel 

fishing in more than one BSA per trip 

must submit a VMS catch report 

detailing the amount of each species 

retained from each BSA fished prior to 

crossing the VMS demarcation line 

upon its return to port. Because the VTR 

serial number can only be submitted by 

a VMS catch report, for trips into more 

than one BSA, these regulations require 

duplicative reporting requirements. This 

action would modify the timing 

requirements for the submission of the 

VMS catch report in § 648.10(k)(1) to 

require all NE multispecies limited 

access vessels, regardless number of 

broad stock areas fished, to submit the 

VMS catch report listing the VTR serial 

number applicable for that trip prior to 

crossing the VMS demarcation line 

upon its return to port following each 

fishing trip on which regulated species 

were caught. 

To further clarify the administration 

and enforcement of dockside/roving 

monitoring provisions originally 

implemented under Amendment 16 and 

revised by this action, NMFS is 

proposing to add a prohibition at 

§ 648.14(k)(18)(i)(D) to state that, if the 

offloads of a particular trip are assigned 

to be monitored by a dockside/roving 

monitor, the vessel cannot offload its 

catch until the assigned dockside/roving 

monitor arrives at the designated 

offloading site specified by the vessel 

owner or operator. 

The regulations at § 648.82(a)(2) 

currently state that a vessel issued a NE 

multispecies limited access permit may 

not call into the DAS program or fish 

under a DAS, if such vessel carries 

passengers for hire for any portion of a 

fishing trip. This provision was first 

implemented under FW 33 (April 24, 

2000; 65 FR 21658) to close a perceived 

loophole that could have allowed a 

vessel fishing under a NE multispecies 

DAS to possess and land fish smaller 

than the minimum fish size specified for 

commercial vessels and to sell their 

catch from such operations. In a similar 

manner, this action proposes to expand 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
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this provision to apply to vessels fishing 

on a sector trip or under the limited 

access NE multispecies Small Vessel 

Category or Handgear A permits. 

In §§ 648.87(b)(1)(i)(A) and 

648.90(a)(4)(iii)(E)(2), the proposed 

regulations would add the term 

‘‘permits’’ to the phrase ‘‘vessels 

participating in sectors’’ to reflect that 

vessels issued permits, including those 

held in CPH, can participate in sectors. 

To provide more flexibility to sectors, 

Amendment 16 allowed the transfer of 

ACE between sectors, and also 

permitted carrying over ACE from one 

FY to the next. With the exception of GB 

yellowtail flounder, a sector may carryover up to 10 percent of its unused ACE 

for each stock into the following FY. 

The final rule implementing 

Amendment 16 did not specify whether 

the 10 percent carry-over for each stock 

is to be derived from the unused portion 

of a sector’s total available ACE, 

including ACE acquired from another 

sector through an ACE transfer, or from 

the unused amount of the sector’s 

originally allocated ACE based upon the 

PSCs of vessels participating in that 

sector. 

The Council did not intend these 

provisions to allow a sector to exceed its 

ACE. To clarify how the ACE carry-over 

provision will be applied, this action 

proposes to refine the regulations at 

§ 648.87(b)(1)(i)(C) to state that a NE 

multispecies sector may carry-over up to 

10 percent of its allocated ACE for each 

stock, with the exception of GB 

yellowtail flounder, into the following 

FY, provided the sector has not 

harvested more than 90 percent of its 

original ACE allocation for that stock by 

the end of the FY. This provision is 

intended to limit the applicability of 

ACE carry-over to only the ACE 

allocated to a sector and not the ACE 

acquired from another sector, as part of 

an ACE transfer. Because the Council 

did not specifically state whether the 

ACE carry-over provision applies to 

allocated or total available ACE, NMFS 

is specifically seeking public input on 

this measure. 

In addition to the proposed revisions 

to the calculation of PSCs noted above, 

this proposed rule would revise the 

regulatory text describing the 

calculation of PSCs at 

§ 648.87(b)(1)(i)(E)(1) and (b)(1)(i)(E)(2). 

These revisions would not revise the 

manner in which the PSCs are 

calculated, as adopted in Amendment 

16, but rather they would clarify and 

more accurately reflect the processes 

that were, and continue to be, applied 

to implement such calculations. 

Specifically, this rule would clarify that 

the landings histories of any limited 

access NE multispecies permit, 

including those that were put into CPH, 

and those of an open access NE 

multispecies handgear permit that 

eventually qualified for, and resulted in, 

the issuance of a limited access NE 

multispecies Handgear A permit during 

FYs 1996 through 2006 would be used 

to calculate the PSCs for each valid 

permit as of June 1 each year. In 

addition, these revisions would provide 

an example of the landings of regulated 

species and ocean pout that would not 

be used to calculate PSC; namely, any 

landings of yellowtail flounder by 

scallop vessels operating under a 

scallop DAS. Finally, the PSC that 

results from such a calculation would be 

specified as the PSC for each stock. 

This proposed rule includes revisions 

to the regulatory text at 

§§ 648.87(b)(1)(iii)(C) and (viii) that 

provide for the transfer of a sector’s ACE 

for up to 2 weeks into the subsequent 

FY, and the processing of such ACE 

transfers by NMFS for up to 61 days. 

These provisions were originally 

included in Amendment 16 to provide 

an opportunity for sectors to participate 

in the ACE Transfer Program to cover 

any ACE overages that the sector 

accrued at the end of the FY. These 

regulatory provisions are dependent 

upon the completion of NMFS’ 

evaluation of year-end sector catch, 

including sector ACE overages, and may 

not account for the timing of NMFS’ 

year-end evaluation process. Therefore, 

to account for additional time for this 

process, if necessary, the phrase ‘‘unless 

otherwise instructed by NMFS’’ is being 

added to reference to the 2-week and 61- 

day deadlines in the regulatory text. 

Request for Comments 

The public is invited to comment on 

any of the measures proposed in this 

rule. NMFS is especially interested in 

receiving comments on several 

proposed measures for which the 

agency has concern, particularly the 

proposed measure to restrict vessels 

issued either a Handgear A or Handgear 

B permit that are issued a LOA to fish 

south of the GOM Regulated Mesh Area 

from fishing within the GOM Regulated 

Mesh Area for the duration of the LOA; 

the proposed August 1, 2011, delayed 

opening of the Eastern U.S./Canada 

Area for common pool vessels fishing 

with trawl gear; and the proposed initial 

FY 2011 common pool trip limits for 

certain stocks. 

Classification 

Pursuant to section 304 (b)(1)(A) of 

the Magnuson-Stevens Act, the NMFS 

Assistant Administrator has determined 

that this proposed rule is consistent 

with FW 45 to the FMP, other 

provisions of the Magnuson-Stevens 

Act, and other applicable law, subject to 

further consideration after public 

comment. Further, pursuant to section 

303(c) of the Magnuson-Stevens Act, the 

Council has deemed this proposed rule 

as necessary and appropriate to 

implement FW 45. 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866. 

An IRFA, consistent with the 

Regulatory Flexibility Act (RFA) 

analysis contained in FW 45 and the 

preamble to this proposed rule, has been 

prepared, as required by section 603 of 

the RFA. The IRFA describes the 

economic impact this proposed rule, if 

adopted, would have on small entities. 

A description of the action, why it is 

being considered, and the legal basis for 

this action are contained in FW 45, and 

in the preamble to this rule. A summary 

of the analysis contained in FW 45 

follows. In this analysis, the baseline 

(no-action alternative) is the set of 

measures that were in place during FY 

2010 (i.e., the measures implemented 

under Amendment 16 and FW 44). 

Tables and sections that are referenced 

in this IRFA refer to those contained in 

the EA developed for FW 45. A copy of 

FW 45 is available from the Council (see 

ADDRESSES). 

Description of and Estimate of the 

Number of Small Entities to Which the 

Proposed Rule Will Apply 

The measures proposed in FW 45 

would affect recreational anglers and 

any vessel issued a limited access NE 

multispecies permit, an open access NE 

multispecies Handgear B permit 

(Handgear B permit) or charter/party 

permit, or a LAGC scallop permit. In 

addition, because this action would 

affect the dockside/roving and at-sea or 

electronic monitoring program 

requirements and require dockside 

monitors to inspect fish holds, this 

action would also affect any entity 

intending to provide dockside/roving or 

at-sea or electronic monitoring services. 

As of December 20, 2010, the maximum 

number of small fishing entities (as 

defined by the Small Business 

Administration (SBA)) that may be 

affected by this action would be 3,935 

entities. The potentially affected entities 

include 1,144 limited access NE 

multispecies DAS permit holders; 133 

limited access NE multispecies 

Handgear A (Handgear A) permit 

holders; 11 limited access NE 

multispecies Small Vessel Exemption 

(Category C) permit holders; 1,156 open 

access NE multispecies Handgear B 

(Handgear B) permit holders; 824 open 


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access NE multispecies charter/party 

permits; and 667 Atlantic sea scallop 

LAGC permits. In addition, it is 

expected that the five entities currently 

providing dockside/roving monitoring 

and at-sea or electronic monitoring 

services would continue to do so in FYs 

2011 and 2012, and would be affected 

by this action. It is likely that the actual 

number of small fishing entities affected 

by this action would be much smaller. 

For instance, information contained in 

Section 10.11.2 of the FW 45 EA 

indicates that only 397 vessels had 

reported any sales of regulated species 

and ocean pout as of December 2010, 

including 18 Handgear A vessels, 50 

Handgear B vessels, and 329 other 

vessels issued limited access NE 

multispecies DAS permits. Further, only 

18 entities conducted party/charter 

operations in the proposed GOM Cod 

Spawning Protection Area proposed in 

this action, according to that analysis. 

Finally, it is difficult to estimate the 

number of private recreational anglers 

that may be affected by this action, as 

the proposed GOM Cod Spawning 

Protection Area is too small to 

accurately determine the number of 

anglers that fish in this area based on 

available data. 

It is important to note that past fishing 

activity and enrollment in sectors may 

not be an accurate predictor of future 

fishing activity. In particular, it is 

possible that revisions to measures 

affecting both the Handgear A and 

Handgear B fisheries may increase 

participation by vessels issued such 

permits. In addition, as of December 1, 

2010, 835 permits had elected to join a 

sector during FY 2011, as determined 

through the submission of sector rosters 

to NMFS, indicating that 453 permits 

would be enrolled in the common pool. 

However, vessels may withdraw from 

sectors until the beginning of FY 2011 

on May 1, 2011. Therefore, because 

participation in sectors is voluntary, the 

number of vessels that will actually 

participate in sectors during FY 2011 

and future years is likely to fluctuate 

based upon whether joining a sector or 

fishing under common pool measures 

offers the greater economic advantage to 

each individual vessel. 

The SBA considers commercial 

fishing entities (NAICS code 114111) to 

be small entities if they have no more 

than $4 million in annual sales, while 

the size standard for charter/party 

operators (part of NAICS cod 487210) is 

$7 million in sales. Based on 2005–2007 

average conditions, median gross sales 

by commercial fishing vessels were just 

over $200,000, and no single fishing 

entity earned more than $2 million. For 

regulated charter/party operators, the 

median value of gross receipts from 

passengers was just over $9,000, and did 

not exceed $500,000 in any year during 

2001 to 2007. Although multiple vessels 

may be owned by a single owner, 

available tracking of ownership is not 

readily available to reliably ascertain 

affiliated entities. Therefore, for the 

purposes of this analysis, each 

permitted vessel is treated as a single 

small entity and is determined to be a 

small entity under the RFA. 

Accordingly, there are no differential 

impacts between large and small entities 

under this proposed rule. 

Economic Impacts of the Proposed 

Action 

The economic impacts of each 

proposed measure is discussed in more 

detail in Sections 8.4, 9.4, and 10.11 of 

the FW 45 EA. The following 

summarizes the economic impacts 

contained in those sections for each 

proposed measure. 

Revised Status Determination Criteria 

and Rebuilding Programs 

Economic impacts resulting from the 

proposed revisions to status 

determination criteria for pollock and 

the rebuilding period for GB yellowtail 

flounder are primarily reflected in the 

ACLs specified for these stocks during 

future years, as discussed further below. 

However, an estimate of the present 

value of the potential revenues of each 

rebuilding strategy considered for GB 

yellowtail flounder under FW 45 was 

developed. This analysis indicates that 

the proposed rebuilding strategy would 

result in a U.S. catch that is expected to 

achieve a present value of about $70.8 

million, assuming a 5-percent yearly 

discount rate over the course of a 10- 

year period (i.e., through 2020). 

ACLs 

The total potential revenue of the 

proposed FY 2011 and 2012 ACLs was 

estimated to be approximately $187.8 

million and $181 million using FY 2010 

prices, respectively. However, this 

estimate assumes that the entire ACL for 

each stock will be caught, meaning there 

are no discards and the fishery is using 

gear that is perfectly selective. To more 

accurately evaluate the expected 

economic impacts of ACLs proposed in 

this action, the catch rate for each stock 

as of October 16, 2010, was calculated 

and projected forward for the rest of the 

FY (i.e., through April 30, 2011) and 

through FY 2012. Resulting revenues 

were calculated, after first deducting an 

estimate of discards. This estimate 

produced expected commercial 

revenues of $79.8 million in FY 2011 

and $72.5 million in FY 2012. 

Compared to the no action alternative 

(i.e., maintaining the FY 2011 and 2012 

ACLs implemented under FW 44), the 

proposed ACLs would reduce revenues 

by $0.4 million in FY 2011 and by $9.4 

million in FY 2012. Assuming the 

current trend in fishing revenues 

observed during the first half of FY 2010 

continues, expected groundfish 

revenues would be about $83.7 million 

in FY 2010. Therefore, the proposed FY 

2011 revenues would be about $4 

million lower than projected FY 2010 

revenues (about 5 percent of groundfish 

sales, or $12,000 per vessel), while 

proposed FY 2012 ACLs would produce 

revenues that are about $11.2 million 

lower than those expected in FY 2010. 

These estimates suggest that sectors may 

be able to obtain higher use rates and, 

therefore, landings of several stocks 

compared to landings from previous 

FYs. 

This evaluation incorporates the 

potential impacts associated with the 

U.S./Canada Management Area TACs, 

incidental catch TACs, and the 

proposed allocation of yellowtail 

flounder to the scallop fishery, as each 

of these components is part of the 

available ACL for applicable stocks. As 

a result, no additional impacts beyond 

those described above are expected for 

these provisions. However, separate 

analysis was conducted to provide more 

detailed information regarding the 

potential specific impacts of these 

provisions, as detailed further below. 

The primary reason for the difference 

in the expected revenue under this 

proposed action and the no action 

alternative or the expected FY 2010 

revenues is the lower ACLs of GB 

haddock and GB yellowtail that result 

from the aging of the very large 2003 

year class of GB haddock and the 

reduced ACL for GB yellowtail flounder 

that is necessary to rebuild this stock 

under the proposed rebuilding program. 

These reduced ACLs are sufficient to 

overcome any gains resulting from the 

updated status and associated increased 

ACLs for pollock proposed under this 

action. However, because the FW 45 EA 

applied the 2010 catch rates to the lower 

FY 2011 and 2012 sub-ACL for GB 

haddock, it is possible that the adverse 

economic impacts specified in the FW 

45 EA were overestimated. Rather than 

assuming that the 2010 catch rate for 

this stock would continue into future 

FYs, as was done in the FW 45 EA, it 

is reasonable to assume that the fishery 

is capable of catching the same amount 

of GB haddock in future FYs. If the same 

amount of GB haddock is caught in FYs 

2011 and 2012 as is projected based on 

observed catch rates so far in FY 2010, 

then the realized adverse economic 


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impacts of the ACLs proposed in this 

action would be less than those 

estimated in the FW 45 EA. Given that 

GB haddock, pollock, and redfish 

(another rebuilt stock) comprise nearly 

70 percent of the aggregate groundfish 

ACL (41, 18.5, and 10 percent, 

respectively), improvements in fishing 

selectivity, particularly while fishing for 

these stocks, could lead to substantially 

higher revenues for the fishery. 

Because NMFS is also proposing to 

implement a higher FY 2011 GB 

yellowtail flounder ACL than that 

adopted by the Council in FW 45 based 

on the flexibility afforded by the 

International Fisheries Agreement 

Clarification Act, it is likely that fishing 

revenues will be slightly higher in FY 

2011 than that analyzed under FW 45 

and described above. The revised FY 

2011 GB yellowtail flounder sub-ACL 

available to the NE multispecies species 

based upon the TAC approved by the 

TMGC in its February 9, 2011, 

conference call is 358 mt (789,255 lb) 

higher than the ACL adopted in FW 45. 

At $1.34 per pound ($2.95 per kg), this 

revised ACL could increase fishing 

revenues by $1,057,602 in FY 2011. 

Because GB yellowtail flounder are also 

caught in conjunction with other 

regulated species, it is likely that 

revenues will be even higher based 

upon additional revenues from landing 

these other species. 

Economic impacts of these ACLs on 

the fishery at large may not be 

representative of impacts to individual 

vessels. Over the past decade, there has 

been a significant amount of 

consolidation in this fishery in response 

to the severely depleted state of the 

majority of the groundfish stocks and to 

changes in management measures. In 

particular, the recent implementation of 

ACLs, AMs, and an expanded use of 

sectors under Amendment 16 has 

affected fishing patterns in ways that are 

not yet determined. For example, sector 

measures were intended to provide a 

mechanism for vessels to increase the 

economic efficiency of fishing 

operations. Reasons why fewer vessels 

have fished thus far may be related to 

owners with multiple vessels fishing 

fewer vessels, or vessel owners or 

sectors using quota differently and 

waiting to fish later in the fishing year 

to maximize revenue in response to 

some of the efficiencies gained through 

the implementation of sector measures 

in 2010. It is also likely that some 

vessels that have not landed groundfish 

have received revenue from leasing their 

groundfish allocation or have been 

fishing in other fisheries. Thus, fewer 

vessels are actively fishing for and 

landing regulated species and ocean 

pout stocks, with 10 percent of the 

fishing vessels earning more than half of 

the revenues from such stocks since 

2005, leading to a seemingly continuing 

trend of consolidation in the fishery. 

However, as alluded to above, this trend 

began before the implementation and 

expansion of the sector program, and 

based on limited data available to date, 

the trend is not significantly out of 

proportion to fishing years prior to the 

implementation of Amendment 16. 

Based upon concerns over consolidation 

raised by the public during the 

development of Amendment 16, the 

Council is currently working on a white 

paper regarding fleet diversity and 

accumulation limits, and has agreed to 

develop an amendment to the FMP to 

address concerns identified. 

U.S./Canada Management Area TACs 

The economic impacts to the 

groundfish fishery of specification of the 

U.S./Canada Management Area TACs 

are difficult to predict due to the many 

factors that may affect the level of catch. 

This includes the potential that 

inseason actions necessary to ensure 

that the U.S./Canada Management Area 

TACs for Eastern GB cod, Eastern GB 

haddock, and GB yellowtail flounder are 

not exceeded, including area closures, 

trip limit adjustments, and gear 

restrictions, may affect the catch of 

other stocks caught in this area and the 

timing of when such catch can be 

landed. The amount of fish landed and 

sold would not be equal to the sum of 

the proposed TACs for these stocks, but 

would be reduced as a result of discards 

(for the common pool), and may be 

further reduced by limitations on access 

to stocks that may result from the 

associated fishing rules. Reductions to 

the value of the fish may result from 

landing large amounts of fish in a short 

duration following the start of the FY, 

and the resulting potential impact on 

markets. It is likely that, because the 

proposed FY 2011 TACs for these stocks 

are substantially lower compared to the 

TACs for FY 2010, the proposed action 

would result in reduced overall revenue 

from the U.S./Canada Management 

Area. Some of this reduction in revenue 

could be mitigated if the selectivity of 

the fishery increases such that vessels 

can minimize the catch of Eastern GB 

cod and increase catch of abundant 

resources of Eastern GB haddock. 

An evaluation of the specific impacts 

of the proposed FY 2011 TACs was 

conducted using FY 2009 prices and 

discard ratios. It is important to note 

that this evaluation is not directly 

comparable to the evaluation of the 

impacts of proposed ACLs discussed 

above, due to the use of lower market 

prices observed during FY 2009 and the 

likely higher discard rates recorded 

compared to preliminary estimates from 

FY 2010 to date. In addition, these 

impacts are not cumulative, and should 

not be added to the impacts estimated 

for the proposed ACLs, as noted above. 

Nonetheless, this analysis suggests that 

the proposed FY 2011 U.S./Canada 

Management Area TACs may result in 

revenue that is between 48 to 67 percent 

less than that recorded for FY 2009. 

Because this analysis used conservative 

prices from FY 2009, the expected 

reduction in revenue would likely be 

less than reported here. In addition, 

because NMFS is proposing a higher FY 

2011 GB yellowtail flounder ACL than 

that adopted by the Council in FW 45, 

the resulting reduction in fishing 

revenue is expected to be less than that 

analyzed in FW 45, as discussed above. 

Overall, the primary cause for reduced 

revenue is the substantially lower 

proposed FY 2011 TACs compared to 

those specified for FY 2010 (41 percent 

lower for Eastern GB cod and 20 percent 

lower for Eastern GB haddock). The 

amount of haddock that has been 

harvested from the U.S./Canada 

Management Area has been increasing, 

but it is unknown whether this trend 

will continue. The delayed opening of 

the Eastern U.S./Canada Area for 

common pool vessels using trawl gear 

that is proposed in this action and 

described below would likely result in 

increased revenue from the Eastern 

U.S./Canada Area, because it is likely to 

prolong the time period during which 

the area is open and enable a higher 

overall catch of all species, particularly 

GB haddock. Similarly, the proposed 

closure of the CA II Yellowtail 

Flounder/Haddock SAP to targeting 

yellowtail flounder and the associated 

prohibition of the use of flounder nets 

in this SAP should reduce the bycatch 

of these stocks and increase the harvest 

of the available Eastern GB haddock 

TAC, prolong the opening of the Eastern 

U.S./Canada Area, and result in greater 

overall revenue. 

Different impacts would likely be 

realized by common pool and sector 

vessels due to the nature of the 

operations of such groups and 

applicable regulations. Unlike vessels 

operating within the same sector, the 

common pool is unable to actively 

coordinate fishing operations to 

maximize fishing revenue based upon 

resource availability and market price. 

Therefore, impacts on common pool 

vessels will be dependent upon the 

overall rate at which available TACs are 

caught, and whether any responsive 

measures necessary to prevent such 


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TACs from being exceeded are triggered. 

Further, once the available ACE for a 

particular stock is caught, sectors must 

cease fishing operations in the entire 

stock area. In contrast, while common 

pool vessels may be subject to more 

restrictive DAS or trip limits in a 

particular area, they could continue to 

fish in the Western U.S./Canada Area 

even after the GB yellowtail flounder 

TAC is caught, provided they do not 

retain any GB yellowtail flounder. 

Yellowtail Flounder Allocations to the 

Scallop Fishery 

FW 45 would maintain the yellowtail 

flounder allocations to the scallop 

fishery originally implemented under 

FW 44. This allocation to the scallop 

fishery recognizes the importance of 

yellowtail flounder to the prosecution of 

the scallop fishery and allocates most of 

the yellowtail flounder that the fishery 

is expected to catch if it harvests the 

available scallop yield. It also creates an 

incentive for scallop fishermen to 

reduce bycatch of yellowtail flounder in 

order to maximize scallop yield. The 

allocation of yellowtail flounder to the 

scallop fishery in FYs 2011 and FY 2012 

would likely have fewer economic 

impacts on the scallop fishery than 

those originally estimated in FW 44, 

because, with the exception of the 

allocation of GB yellowtail flounder to 

the scallop fishery in FY 2012 (the 

proposed action would provide 93 

percent of expected yellowtail flounder 

bycatch by the scallop fishery), that 

allocation would not constrain scallop 

catch based on updated estimates of the 

amount of yellowtail flounder necessary 

to fully harvest available scallop 

resources. However, these updated 

projections of expected yellowtail 

flounder bycatch by the scallop fishery 

are based upon data from FY 2009 that 

are considered to be overly optimistic 

due to the substantially lower bycatch of 

yellowtail flounder, particularly from 

the Nantucket Lightship Closure Area, 

compared to that observed during 

previous FYs. In addition, these 

projections are subject to a high degree 

of uncertainty, including uncertainty 

associated with the size of the yellowtail 

flounder stock. Additional detail 

regarding the evaluation of the likely 

economic impacts to the scallop fishery, 

including those resulting from the 

proposed yellowtail flounder allocation 

to the scallop fishery and expected 

scallop catch and the AMs proposed in 

that fishery as part of Amendment 15 

and FW 22 to the Atlantic Sea Scallop 

FMP, are contained in the supporting 

EIS and EA developed for those actions, 

respectively. Overall, however, it is 

expected that the allocation of 

yellowtail flounder to the scallop 

fishery represents the greatest overall 

benefit to the nation consistent with the 

Magnuson-Stevens Act, because it 

would reduce the likelihood that scallop 

AMs would be triggered due to 

excessive catch of yellowtail flounder in 

FYs 2011 and 2012 and, therefore, put 

far less fishing revenue at risk compared 

to other allocation alternatives 

considered in FW 45. The economic 

impacts of other alternatives considered 

for this measure are discussed further 

below. 

The economic impact of this action on 

the NE multispecies fishery in FY 2011 

has two components: (1) The primary 

revenue reduction due to the forgone 

sale of yellowtail flounder, and (2) 

secondary revenue reduction as a result 

of reduced access to a particular 

yellowtail flounder stock area. 

Secondary revenue reduction occurs 

once a sector’s yellowtail flounder ACE 

is caught and that sector is required to 

cease fishing in that stock area, or when 

the GB yellowtail flounder TAC for 

common pool vessels is caught and the 

Eastern U.S./Canada Area is closed to 

such vessels. At a market price of $1.34 

per lb ($2.95 per kg), the primary 

revenue reduction in the NE 

multispecies fishery associated with the 

allocations of GB yellowtail flounder to 

the scallop fishery is estimated at 

$593,787 and $906,928 for FYs 2011 

and 2012, respectively. For SNE/MA 

yellowtail flounder allocations to the 

scallop fishery, the primary revenue 

reduction in the NE multispecies fishery 

is estimated at $242,241 and $375,179 

for FYs 2011 and 2012, respectively. 

The secondary revenue reduction in 

the groundfish fishery from yellowtail 

flounder allocations to the scallop 

fishery were estimated using the ratio of 

the value of catch of all species to 

yellowtail flounder. In FY 2010, that 

ratio was approximately 19 to 1 for GB 

yellowtail flounder. At a market price of 

$1.34 per lb ($2.95 per kg), the value of 

each metric ton of GB yellowtail 

flounder to the NE multispecies fishery 

is estimated to be $2,954. Accordingly, 

for each metric ton of GB yellowtail 

flounder that cannot be caught, 

approximately $56,130 of revenue from 

other species would also be lost due to 

the reduction of catch of other species 

caught in association with each ton of 

GB yellowtail flounder caught. Similar 

to the discussion of the economic 

impact of the proposed U.S./Canada 

Management Area TACs, it is important 

to remember that these impacts are not 

cumulative, and should not be added to 

the impacts estimated for the proposed 

ACLs discussed above. Instead, this 

discussion provides additional 

information that clarifies the potential 

impact of this particular component of 

the proposed suite of measures that is 

estimated to be captured by the 

discussion of the impact of the proposed 

ACLs on the NE multispecies fishery. It 

is also not appropriate to consider all of 

the yellowtail flounder allocated to the 

scallop fishery as a ‘‘loss’’ to the 

groundfish fishery because the 

groundfish fishery does not ‘‘own’’ the 

yellowtail flounder. Rather, it is more 

accurate to consider the allocations as a 

transfer between the two fisheries, 

particularly given the long and 

documented history of bycatch of 

yellowtail flounder in the scallop 

fishery and the current requirement that 

scallop vessels must land all legal-size 

yellowtail flounder. 

U.S./Canada Area Measures 

This proposed rule would allocate 

zero trips to target yellowtail flounder in 

the CA II Yellowtail Flounder/Haddock 

SAP. This measure would prevent 

vessels from accessing the SAP to target 

yellowtail flounder with flounder nets, 

as defined in the current regulations, 

but would not reduce the potential 

revenue from the available ACL of 

stocks that are caught in this area for 

several reasons. First, the measures 

implemented under Amendment 16 

allow vessels to access the same SAP 

area to target GB haddock, a rebuilt 

stock whose ACL has not been fully 

harvested in recent years, using hook 

gear and selective trawl gear such as the 

haddock separator trawl and Ruhle 

trawl. Secondly, available ACL of GB 

yellowtail flounder can also be caught 

outside this SAP in either the Eastern 

U.S./Canada Area or the Western U.S./ 

Canada Area. Thus, this measure would 

not represent a decrease in opportunity 

or revenue from recent years, because 

the SAP has not been opened since FY 

2004 due to the status of the GB 

yellowtail flounder stock. 

This action would also delay the 

opening of the Eastern U.S./Canada 

Area to common pool trawl vessels until 

August 1, 2011. This delay has been 

requested by the Council and 

implemented by NMFS for the past 

several FYs to reduce the bycatch of 

Eastern GB cod during the summer 

months and prolong access to the 

Eastern U.S./Canada Area. This measure 

attempts to maximize fishing revenues 

by increasing the chances that a greater 

portion of the available Eastern GB 

haddock TAC can be caught without 

triggering the premature closure of the 

Eastern U.S./Canada Area to avoid 

exceeding the common pool TAC of 

Eastern GB cod before the end of FY 

2011 on April 30, 2012. As noted above 


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in the description of the economic 

impacts of the proposed U.S./Canada 

Management Area TACs, the expected 

benefits of this measure depend upon 

the selectivity of the fishery and other 

factors that are difficult to predict, but 

will still likely be reduced compared to 

those observed during FY 2010 due to 

the reduced TAC of Eastern GB cod. The 

potential 2011 common pool trip limits 

listed in Table 14 should increase the 

likelihood that the fishery will fully 

harvest, but not exceed, the 2011 

common pool sub-ACLs and minimize 

the need for further revisions to trip 

limits or differential DAS counting 

rates. Thus, these trip limits should not 

result in any different economic impacts 

than those identified for the proposed 

2011 ACLs discussed above. 

Great South Channel Exemption Area 

This measure would remove the 

existing yellowtail flounder peak 

spawning closures and allow LAGC 

scallop vessels to fish for scallops in the 

Great South Channel Exemption Area 

through the year. It is expected that this 

measure would allow such vessels to 

harvest individual allocations of 

scallops in a more cost-effective 

manner. In doing so, vessel profitability 

would improve and increase IFQ share 

values compared to the no action 

alternative. However, the potential 

benefit cannot be reliably quantified. If 

it is later found that fishing with scallop 

dredge gear during yellowtail flounder 

peak spawning seasons interferes with 

yellowtail flounder spawning success, 

the proposed elimination of the 

spawning closures may reduce the 

likelihood that yellowtail flounder 

stocks will rebuild and could lead to 

further economic impacts in the future 

to ensure that the rebuilding 

requirements of the FMP are achieved. 

GOM Cod Spawning Protection Area 

FW 45 would create a GOM Cod 

Spawning Protection Area and prohibit 

commercial and recreational vessels 

from fishing in this area with gear 

capable of catching regulated species 

and ocean pout from April 1 through 

June 30 of each year. The proposed 

measure would affect private 

recreational anglers and vessels issued a 

NE multispecies charter/party permit 

and the value such anglers derive from 

taking a trip into the proposed 

protection area. Recreational fishing 

values are typically measured by the 

economic surplus beyond what anglers 

have to pay to take a trip, using 

specialized surveys that are not 

available for the recreational groundfish 

fishery at this time. It can be expected 

that the proposed action would reduce 

the economic surplus to anglers that fish 

in this area, as they would not be 

allowed to fish for groundfish in their 

preferred area from April to June of each 

year. Even if trips could be taken in a 

different area during these months, the 

reduction in economic surplus would 

still impact affected entities. 

An estimate of the impact of the 

proposed measures on charter/party 

vessels was derived by measuring the 

loss in passenger revenues if trips are 

not taken in this area and the vessel 

cannot fish in another area. During FYs 

2007 through 2009, up to 2 percent of 

charter/party trips taken in the GOM 

between April and June occurred in the 

proposed protection area. However, 

only about 10 vessels are considered 

likely to be affected by this action based 

upon their more recent activity within 

this area. For trips taken in these areas 

during FYs 2008 and 2009, gross sales 

were up to $112,000 per year. For 

vessels that took multiple trips into this 

area, annual gross sales would be 

reduced by about 6 to 7 percent, or 

about $10,000 per vessel (the impacts 

ranged from less than $1,000 to just over 

$42,000 per vessel, depending on the 

FY). Overall, the proposed action would 

reduce the annual gross sales of the 

entire charter/party fishery operating in 

the GOM by between 1.9 to 3 percent. 

These impacts likely represent a 

maximum impact, as this analysis did 

not consider the sales from fishing in 

alternative locations. If charter/party 

vessels are able to attract passengers 

willing to fish in other areas, these 

impacts would be mitigated, at least to 

some degree. 

Handgear A and Handgear B Measures 

If implemented, FW 45 would specify 

stock-specific cod trip limits and trip 

limit adjustments (i.e., different trip 

limits and trip limit adjustments for 

GOM and GB cod stocks) for vessels 

issued a limited access NE multispecies 

Handgear A or an open access NE 

multispecies Handgear B permit, as 

described above. In addition, this action 

would allow Handgear A and Handgear 

B vessels to access the existing GB 

Seasonal Closure Area, and Handgear A 

vessels to access the existing Sector 

Rolling Closure Areas. Finally, this 

action would exempt Handgear A and 

Handgear B vessels from the dockside/ 

roving monitoring requirements, as 

described further below. 

Compared to the no action alternative, 

the proposed measures are expected to 

improve the economic opportunity 

available to such vessels. Although the 

realized economic impacts of these 

measures are uncertain as far as the 

number of vessels that would benefit 

from these measures based on historic 

fishing patterns and the degree by 

which landings by such vessels would 

change, they are expected to be positive. 

In particular, specifying stock-specific 

trip limits and adjustments means that 

handgear vessels fishing for GB cod 

would not be subject to lower cod limits 

if high catch rates of GOM cod by 

common pool vessels necessitates lower 

trip limits to prevent the common pool 

sub-ACL for that stock from being 

exceeded prior to the end of the FY. 

Thus, the economic impacts caused by 

unnecessarily reducing the cod limit for 

handgear vessels fishing in the GB cod 

stock area would be avoided. Further, 

increasing access to seasonal closure 

areas would provide handgear vessels 

operating in the common pool a greater 

chance of landing the allowable cod 

limit early in the FY before common 

pool cod trip limits would need to be 

reduced to ensure the sub-ACL is not 

exceeded. Further, by maintaining the 

Handgear A cod trip limit at 300 lb (135 

kg) per trip until the applicable cod trip 

limit for vessels operating under a NE 

multispecies DAS drops below 300 lb 

(135 kg) per DAS, such vessels would be 

better able to land larger amounts of cod 

and increase fishing revenue compared 

to the no action alternative. 

Dockside/Roving and At-Sea Monitor 

Requirements 

This action would make several 

changes to the current dockside/roving 

monitoring requirements, including 

delaying the requirement for the fishing 

industry to pay for dockside/roving and 

at-sea monitoring coverage until FY 

2013, exempting vessels issued a NE 

multispecies Handgear A or B and Small 

Vessel Category permits operating in the 

common pool from the dockside/roving 

monitoring requirements, maintaining 

the trip-end hail reports in the absence 

of any dockside/roving monitoring 

requirements for a particular FY, and 

requiring dockside monitors to inspect 

the fish holds. Delaying the fishing 

industry’s responsibility to pay for 

dockside/roving monitors and 

exempting handgear and Small Vessel 

category permits from the dockside/ 

roving monitoring requirements would 

save approximately $281,000 per year 

(assuming 20 percent of trips would be 

covered), while delaying the 

responsibility for paying for at-sea 

monitoring would save industry about 

$5 million per year (assuming 30 

percent of trips would be covered). If 

the level of NMFS funding prevents the 

Agency from providing sufficient at-sea 

monitoring coverage through FY 2013, 

then uncertainty in catch accounting 

may necessitate the adoption of higher 


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buffers between the ABC and ACL for 

each stock in future FYs to account for 

this increased management uncertainty. 

Higher buffers would result in 

decreased ACLs and lower fishing 

revenues, if adopted in a future action. 

Maintaining the trip-end hail reports in 

the absence of any dockside/roving 

monitoring program for a particular FY 

would maintain the costs anticipated for 

such reports, as implemented under 

Amendment 16. These costs were 

estimated to be $24,750 ($0.90 per hail 

report) based on 25,000 trips per year. 

However, based on fishing patterns 

during FY 2010, it is likely that the 

number of trips will be lower in future 

years, with about 13,000 trips expected 

during FY 2010. If this trend continues, 

trip-end hail reports would cost about 

$12,870 per year. Inspection of fish 

holds is an administrative measure that 

would not affect the costs or revenues 

of fishing operations. Because dockside 

monitoring service providers are 

required to have sufficient insurance to 

cover liability associated with dockside 

monitor injury, this should result in no 

impact to either inspected vessels or 

service providers. 

Exempting Handgear A, Handgear B, 

and vessels issued a Small Vessel 

Category permit from these regulations 

would reduce operational costs to such 

vessels. Assuming dockside/roving 

monitoring costs remain the same as 

they are during FY 2010, the estimated 

costs of dockside/roving monitoring 

would be a fixed rate of $33 per trip, 

and an additional $27 for a trip in 

which a roving monitor is required, 

with an additional $0.015 per lb ($0.033 

per kg) of regulated species landed for 

20 percent of trips taken. These costs 

would represent 5.2 percent of the total 

regulated species landed by Small 

Vessel Category permits, and 2.3 percent 

and 3.7 percent of the regulated species 

landed by Handgear A and Handgear B 

permits, respectively. This action would 

reduce such costs, amounting to an 

aggregate annual savings of $9,841. 

Sector Measures 

If implemented, FW 45 would 

recalculate the PSC for each stock on a 

yearly basis to reflect the elimination of 

landings histories from cancelled 

permits and allow sectors to request an 

exemption from the dockside/roving 

monitoring requirements as part of their 

annual operations plans. Assuming 

equivalent PSC utilization rates and cost 

of fishing, the economic value derived 

from available ACL would be 

unchanged whether the PSC from 

cancelled permits is allocated to the 

common pool under the no action 

alternative, or equally distributed to all 

permits as proposed in this action. If, on 

average, vessels that fish in the common 

pool are less profitable than sector 

vessels, then this action would result in 

an improvement in these vessels’ 

economic efficiency as compared to 

taking no action. The magnitude of the 

impact from this provision would likely 

be small, as few permits have been 

cancelled since the PSCs were 

calculated using permits valid as of May 

1, 2008. Cancelled permits represent 

only about 72,000 lb (32,659 kg) of all 

species combined that would be divided 

among the 1,288 valid limited access NE 

multispecies permits based on each 

permit’s individual fishing history. 

Thus, this measure, in itself, is unlikely 

to make an unprofitable fishing 

operation marginally profitable. 

Nevertheless, this action would provide 

some positive benefit and increased 

economic opportunity to all remaining 

permit holders, and may increase the 

amount of ACE available on the market 

to lease. Allowing sectors to request an 

exemption from the dockside/roving 

monitoring requirements would likely 

result in cost savings to applicable 

sectors that are difficult to quantify. It 

is expected that some sectors would 

request an exemption from the 

dockside/roving monitoring 

requirements, particularly for trips in 

southern waters targeting monkfish with 

large mesh. These trips rarely encounter 

regulated species and ocean pout, 

suggesting that the dockside/roving 

monitoring requirements offer little 

benefit to increasing the accuracy of 

monitoring data or the enforceability of 

sector provisions. Thus, such an 

exemption, if justified, could result in 

reducing operational costs and 

increasing the economic efficiency of 

sector operations. The environmental 

analysis developed to support a sector 

operations plan that includes such an 

exemption request, not FW 45, would 

include a discussion of any anticipated 

economic impacts of such a request. 

This action would also approve five 

new sectors, including four State permit 

banks and an additional lease-only 

sector. The approval of these new 

sectors may affect the market price of 

both permits or available DAS and ACE 

on the leasing market. There is a 

concern that the presence of large 

institutions such as State governments 

that have less emphasis on achieving a 

return on investment, and the potential 

for such institutions to acquire permits 

in a short contracting window, would 

raise the price of available permits for 

sale. This increase could place a private 

entity at a competitive disadvantage in 

relation to the permit market, 

particularly if access to capital for 

investment in additional permits by 

such private entities is limited or 

already maximized. For these same 

reasons, State permit banks may also 

serve to lower the price of DAS or ACE 

available on the leasing market. The 

lowering the price of DAS or ACE 

available on the leasing market by Stateoperated permit banks, along with the 

approval of another lease-only sector, 

may benefit some vessels by providing 

additional fishing opportunities at a 

lower market price, especially 

considering reports that the ACE leasing 

market that has developed so far during 

FY 2010 has resulted in higher leasing 

rates, and a restricted supply of 

available ACE. 

Overall, however, the presence of 

additional permit banks and lease-only 

sectors would facilitate price discovery, 

leading to more efficient markets, the 

establishment of competitive prices, and 

a limitation on the ability of market 

participants to exert some form of 

monopoly power. Finally, the approval 

of the lease-only sector may provide 

some benefits to participating vessels in 

that it could, depending on the fee 

structure developed by that sector, 

reduce or eliminate the need for 

participating vessels to pay fees 

associated with dockside/roving and atsea or electronic monitoring and require 

participating vessels to only pay a 

processing fee for any ACE or DAS 

transactions in which it participates. 

Based on funding provided to such 

permit banks to date, it is unlikely that 

the amount of permits and associated 

DAS and ACE that would be able to be 

purchased by State permit banks would 

be sufficient to fully meet the demand 

for available ACE, as a rough estimate 

suggests that available funding would 

only able to procure about 1,300 mt of 

ACE of all stocks, if permits are 

available to purchase. This benefit is 

likely to accrue only to a subset of 

vessels, at least initially, as State permit 

banks would only be able to lease ACE 

to vessels that are 45 feet (13.7 m) or 

shorter and are associated with 

communities of less than 30,000 

residents, based on funding agreements 

with NMFS. While State permit banks 

may be able to lower the price of 

available DAS and ACE, if they elect to 

offer DAS or ACE at below the 

prevailing market price, this would 

affect the returns to private entities in 

the leasing market that also offer DAS or 

ACE to lease to other entities. 

Any estimate of the magnitude of the 

possible impacts of the proposed 

approval of State permit banks or the 

lease-only sector is speculative. This 

action would only approve the concept 


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of such additional sectors, and would 

not actually approve the annual 

operations of these sectors. That 

approval is occurring through a parallel 

rulemaking to this proposed action. 

Corrections 

There are several corrections 

proposed in this rule that are considered 

to be mostly administrative in nature 

and do not affect vessel operations that 

would result in any economic impact to 

regulated entities. These corrections 

would include inserting text that would 

apply a long-standing prohibition on the 

sale of fish while carrying passengers for 

hire to vessels fishing on a sector trip 

and those fishing under the Small 

Vessel Category and Handgear A permit 

restrictions, inserting a prohibition to 

prevent offloading fish prior to the 

arrival of an assigned dockside/roving 

monitor, clarifying that sectors can only 

carry over up to 10 percent of allocated 

ACE for each stock except for GB 

yellowtail flounder into the next FY, 

clarifying that permits in CPH can 

participate in sectors to reflect the intent 

of Amendment 16, and revising the text 

describing how PSCs are calculated to 

more precisely describe the process 

outlined in Amendment 16 and 

implemented by NMFS. 

Measures Proposed To Mitigate Adverse 

Economic Impacts of the Proposed 

Action 

The proposed action contains several 

measures that would directly or 

indirectly provide small entities with 

some ability to offset at least some 

portion of the estimated economic 

impacts associated with proposed 

measures. The major mitigating 

measures would include allowing LAGC 

scallop vessels greater access to the 

Great South Channel Exemption area; 

increasing access to the seasonal closure 

areas for Handgear A and Handgear B 

permits; exempting the existing 

dockside/roving monitoring 

requirements; delaying requiring sectors 

and common pool vessels to pay for 

dockside/roving and at-sea or electronic 

monitoring; extending rebuilding period 

for GB yellowtail flounder and formal 

recognition of the rebuilt status of 

pollock; redistributing PSC from 

cancelled permits to all remaining valid 

limited access NE multispecies permits; 

and approving new sectors, including 

State permit banks and a lease-only 

sector. During the development of 

Framework 45, NMFS and the Council 

considered ways to reduce the 

regulatory burden on and provide 

flexibility to the regulated community. 

The approach taken is consistent with 

the recent Presidential Memorandum on 

Regulatory Flexibility, Small Business, 

and Job Creation (January 18, 2011). 

Proposed actions and alternatives are 

described in detail in Framework 45, 

which includes an Environmental 

Assessment, Regulatory Impact Review, 

and Initial Regulatory Flexibility 

Analysis (available at ADDRESSES). 

Eliminating the yellowtail flounder 

peak spawning closure areas in the 

Great South Channel Exemption Area 

would enable LAGC scallop vessels 

greater access to this area. If this 

measure reduces operational costs by 

allowing vessels to operate in a more 

efficient manner, it could increase the 

economic efficiency of vessel operations 

and increase the value of the IFQ 

permits. 

Exempting Handgear A, Handgear B, 

and Small Vessel Category permits from 

dockside/roving monitoring 

requirements, delaying industry 

responsibility for paying for dockside/ 

roving monitoring coverage until FY 

2013, and delaying industry 

responsibility for paying for a sector atsea monitoring program until FY 2013 

would explicitly reduce monitoring 

costs to affected entities, saving such 

entities approximately $5.28 million 

each year compared to the no action 

alternative. 

Allowing vessels with handgear 

permits access to at least some of the 

seasonal closure areas would increase 

the chance that such permits could 

increase their catch of regulated species, 

particularly during the early months of 

the fishing season before trip limits may 

be reduced to prevent the overall ACLs 

from being exceeded. Similar benefits 

would be expected from specifications 

of stock-specific trip limits and trip 

limit adjustments for cod for these 

vessels. 

Extending the rebuilding program for 

GB yellowtail flounder would indirectly 

reduce economic impacts on NE 

multispecies vessels by allowing higher 

ACLs to be specified for the remainder 

of the rebuilding program compared to 

the existing rebuilding program adopted 

for this stock. The adoption of updated 

biological reference points for pollock 

would formally end the rebuilding 

program implemented for this stock 

under Amendment 16, and enable the 

specification of higher ACLs on an 

indefinite basis that would have 

otherwise expired on April 30, 2011, 

following the extension of the July 20, 

2010, emergency rule. 

As noted above, the approval of new 

sectors, including State permit banks 

and a lease-only sector, would help to 

reduce vessel operational costs by 

increasing the amount of DAS and ACE 

available on the leasing market, 

reducing market price for such 

additional fishing opportunities, and 

increasing competition in the leasing 

market by providing alternative means 

to acquire the ACE necessary for to help 

vessels remain financially solvent. In 

addition, it is possible that the leaseonly sector could reduce sector 

monitoring fees due to the presumption 

that participating vessels would not be 

actively fishing, but rather exist for the 

sole purpose of providing PSC that the 

sector may use to enable other sectors to 

continue fishing. 

Economic Impacts of Alternatives to the 

Proposed Action 

Under the no action alternative, 

updated status determination criteria 

would not be adopted for pollock. These 

updated criteria were adopted in the 

July 20, 2010, emergency action, but 

would expire on April 30, 2011, if not 

formally integrated into the FMP under 

this action. The expiration of the 

emergency action would mean that the 

rebuilding program implemented under 

Amendment 16 would be reinstated, 

and that the fishery would not be able 

to benefit from the harvest the 

additional pollock based upon its status 

as a rebuilt stock. The implications of 

this alternative are transmitted through 

lower ACLs described in further detail 

below. 

Because FW 45 is a discrete 

adjustment in a long line of frameworks 

and amendments, a number and scope 

of alternatives have either already been 

considered in earlier actions or are not 

appropriate in the context of this action. 

FW 45 considered five alternatives to 

revising the GB yellowtail flounder 

rebuilding strategy. These five 

alternatives included: (1) The no action 

alternative that would maintain the 

current FW 42 rebuilding period that 

would rebuild the GB yellowtail 

flounder stock by FY 2014 with a 75 

percent probability of success; (2) Suboption A (the proposed action) that 

would rebuild this stock by 2016 with 

a 50 percent probability of success; (3) 

Sub-option B that would rebuild this 

stock by 2016 with a 60 percent 

probability of success; (4) Sub-option C 

that would rebuild this stock by 2016 

with a 75 percent probability of success; 

and (5) Sub-option D that would rebuild 

this stock by 2019 with a 60 percent 

probability of success. The present 

values of a stream of potential revenues 

over a 10-year period for each of these 

alternatives are presented in Section 

9.4.1 of the FW 45 EA using several 

discount rates. Discards were not 

incorporated into this analysis; 

however, because discard rates are not 

expected to differ among the 


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alternatives, this was not expected to 

affect the ranking of these alternatives. 

According to this analysis, sub-option 

D (rebuilding this stock by 2019 with a 

60-percent probability of success) would 

result in the highest median present 

values among all alternatives 

considered, followed by sub-option A 

(the proposed action), sub-option B, the 

no action alternative, and sub-option C. 

This pattern was repeated, regardless of 

the discount rate applied. Sub-option D 

would result in U.S. catches with a 

median present value of $74.7 million 

through 2020, while the proposed action 

is expected to yield $70.8 million over 

the same period, using a 5-percent 

discount rate. Therefore, sub-option D 

would result in about $4 million of 

additional revenue, compared to the 

proposed action, over the course of 10 

years. However, as noted earlier in this 

preamble, because sub-option D would 

extend the rebuilding period though FY 

2019, the rebuilding period would run 

13 years, or 3 years beyond the 

maximum rebuilding period allowed 

under the Magnuson-Stevens Act. 

Therefore, that alternative is not 

consistent with applicable law. The 

proposed action, in contrast, is 

consistent with applicable law and 

would result in the next highest median 

present value among the alternatives 

considered. Thus, the proposed action 

represents the alternative with the least 

economic impact of the alternatives that 

were considered that are also consistent 

with applicable law. 

Under the no action alternative, the 

ACLs implemented under FW 44 would 

be retained for FYs 2011 and 2012. 

Those ACLs do not reflect the updated 

status of pollock, or the extended 

rebuilding period for GB yellowtail 

flounder proposed in this action. This 

alternative would result in foregone 

income for NE multispecies vessels, as 

they would not be able to capitalize on 

increased ACLs for these stocks under 

this proposed action. The economic 

impact of the no action alternative was 

measured by estimating the revenue 

associated with landing the full amount 

of available ACL for each stock using 

prices as of September 30, 2010. This 

analysis suggests that the potential 

value of FY 2011 and 2012 ACLs under 

the no action alternative would be 

$191.3 million and $184.6 million, 

respectively. These estimates are lower 

than that specified under FW 44 ($205 

million and $196 million, respectively) 

due to changes in prices used. The 

proposed action would result in a value 

of between $185.4 million and $187.8 

million, depending on the GB yellowtail 

flounder rebuilding alternative 

analyzed, or between nearly $3.5 

million and $6 million less value than 

the no action alternative. However, 

because the no action alternative and 

GB yellowtail flounder rebuilding suboption C would specify an ACL of zero 

for that stock, the potential realized 

revenues associated with those options 

would be much lower, since revenues 

associated with any other stock caught 

with GB yellowtail flounder would be 

reduced as well. This factor is 

particularly important for sectors, as 

sectors are not allowed to operate in the 

GB yellowtail flounder stock area since 

they would not be allocated any GB 

yellowtail flounder ACE during FYs 

2011 and 2012 based on existing 

regulations. 

A more realistic estimate projected FY 

2011 landings based upon the ACL 

utilization rate as of October 16, 2010, 

and a consideration of discards. This 

analysis suggests that potential revenues 

from the no action alternative would be 

$80.2 million during FY 2011 and $81.9 

million during FY 2012, with estimated 

sector revenues of $71.1 million and $73 

million for those FYs, respectively. 

Compared to the proposed action, the 

no action alternative would produce 

about $0.4 million more revenue in FY 

2011 and $9.4 million revenue in FY 

2012. Once again, this amount does not 

factor in potential revenue loss from the 

specification of zero GB yellowtail ACL. 

Because the no action alternative for 

ACLs is affected by the integration of 

updates to the status determination 

criteria for pollock and the updated 

rebuilding program for GB yellowtail 

flounder, the no action alternative for 

specifying ACLs would not incorporate 

the best available scientific information 

and would be, therefore, inconsistent 

with the Magnuson-Stevens Act. 

Failure to specify FY 2011 U.S./ 

Canada Management Area TACs under 

the no action alternative would result in 

increased revenue compared to the 

proposed action. Vessels would be able 

to harvest the available ACL for GB cod, 

GB haddock, and GB yellowtail flounder 

throughout GB, including in the Eastern 

U.S./Canada Area, but overall catches 

would still be limited by ACLs specified 

under this action. Revenue from the 

catch of other stocks caught in 

conjunction with these stocks would 

also be higher under the no action 

alternative. However, because the no 

action alternative would ignore the joint 

efforts to manage transboundary stocks, 

it would likely set F on such stocks 

higher in FY 2011 than they actually are 

(or would be), and perhaps at 

unsustainable levels. In contrast to the 

proposed action, the no action 

alternative may result in long-term 

negative economic impacts if such 

fishing would undermine efforts to 

prevent overfishing and rebuild 

overfished stocks of GB cod and GB 

yellowtail flounder and necessitate 

further action in the future to ensure the 

FMP’s conservation objectives are 

achieved. 

The Council considered one 

alternative allocation of GB and SNE/ 

MA yellowtail flounder to the Atlantic 

sea scallop fishery to the allocations 

proposed in this action based upon the 

management measures adopted in the 

scallop fishery as part of FW 22 to the 

Atlantic Sea Scallop FMP. The Council 

opted to retain the existing allocations 

of yellowtail flounder implemented 

under FW 44, even though it also 

analyzed additional alternatives as part 

of FW 22 to the Atlantic Sea Scallop 

FMP. This allocation to the scallop 

fishery recognizes the importance of 

yellowtail flounder to the prosecution of 

the scallop fishery and allocates most of 

the yellowtail flounder that the fishery 

is expected to catch if it harvests the 

available scallop yield. It also creates an 

incentive for scallop fishermen to 

reduce bycatch of yellowtail flounder in 

order to maximize scallop yield. It is 

expected that the allocation of 

yellowtail flounder to the scallop 

fishery will represent the greatest net 

benefit to the nation, as it will enable 

the continuation of one of the nation’s 

most profitable fisheries by reducing the 

chance that the catch of scallops will be 

limited by the available bycatch of 

yellowtail flounder, as described in 

further detail in FW 45 and the analysis 

of FW 22 to the Atlantic Sea Scallop 

FMP. 

A possible impact from allocating 

yellowtail flounder to the scallop 

fishery is that it may limit opportunities 

for groundfish fishermen to target other 

stocks. The FW 45 analysis 

characterizes this potential impact as 

secondary revenue at risk. The proposed 

action to allocate yellowtail flounder to 

the scallop fishery would place far less 

fishing revenue at risk compared to the 

other option considered. For example, 

based upon the ratio of yellowtail 

flounder revenues to total groundfish 

revenues, the amount of fishing revenue 

at risk in the groundfish fishery (i.e., the 

amount of groundfish revenue reduction 

that would be expected if the groundfish 

fishery was not able to harvest allocated 

100 percent of the available yellowtail 

flounder based on the proposed 

allocations) is estimated to be $11.2 

million in FY 2011 and $17.2 million in 

FY 2012 for GB yellowtail flounder, and 

$1.8 million in FY 2011 and $2.8 

million in FY 2012 for SNE/MA 

yellowtail flounder, or a combined 

$32,560,387 at a discount rate of 3 


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percent. The amount of fishing revenue 

at risk in the scallop fishery (i.e., the 

amount of scallop revenue reduction 

that would be expected if the groundfish 

fishery was not able to harvest allocated 

100 percent of the available yellowtail 

flounder based on the proposed 

allocations) is estimated to be about 

$4,228,222 in FY 2011 using a discount 

rate of 3 percent, because the GB 

yellowtail flounder sub-ACL to the 

scallop fishery is 93 percent of the 

amount of yellowtail flounder the 

scallop fishery is expected to catch in 

FY 2012, indicating that 7 percent of the 

scallop revenues from this stock are at 

risk in FY 2013 based on the AMs 

implemented in FW 22 to the Atlantic 

Sea Scallop FMP that would be 

implemented the year after an overage. 

Therefore, the total fishing revenue at 

risk for the proposed allocation is $36.8 

million in FY 2011, using a 3 percent 

discount rate. In contrast, under the 

other allocation alternative considered 

(Option 2) that would have only 

allocated 90 percent of the estimated 

yellowtail flounder catch by the scallop 

fishery based upon updated projections, 

the revenue at risk would be 

$91,063,372 ($27,042,096 revenue at 

risk in the groundfish fishery plus 

$64,021,277 revenue at risk in the 

scallop fishery) in FY 2011 using a 

3 percent discount rate, or $54,274,763 

more revenue at risk than the proposed 

action. Thus, the proposed action put 

far less fishing revenue at risk. In 

addition, the proposed action may also 

result in less adverse biological effects 

on a wide range of species compared to 

Option 2, because the proposed action 

would reduce the likelihood that the 

scallop bycatch of yellowtail flounder 

would exceed sub-ACLs and, therefore, 

the overall yellowtail flounder ABC, and 

trigger AMs that would alter the 

distribution of scallop fishing effort and 

the resulting impacts to other species. 

The only other alternative considered 

to the proposed approval of five new 

sectors is the no action alternative. The 

no action alternative for this measure 

would not approve any new sectors for 

FY 2011. This may have a small adverse 

economic impact on permit holders 

intending to participate in the 

Sustainable Harvest Sector III. However, 

permit holders may be able to remain in 

or join the Sustainable Harvest Sector 

that was approved under Amendment 

16. If the operations plan for the 

Sustainable Harvest Sector III offered 

reduced operational costs to 

participating vessels due to the intended 

lease-only status of that sector, those 

costs savings may not be realized under 

the no action alternative. 

Additional sectors were considered 

for approval under FW 45, but the 

Council chose not to approve them 

because they did not submit an 

operations plan to NMFS by the existing 

deadline of September 1. Approval of 

these other sectors, the Northeast 

Fisheries Sector XIV and the 

Sustainable Harvest Sector II, may have 

resulted in a small positive economic 

impact since permit holders would have 

had more options for which sectors to 

join. However, permit holders were able 

to join other sectors following the 

Council’s decision, so any impacts to 

such permit holders would be minimal. 

Under the no action alternative, the 

dockside monitoring requirements 

originally implemented under 

Amendment 16 would be maintained. 

These requirements would make sector 

vessels responsible for developing and 

paying for a dockside/roving monitoring 

program beginning in FY 2010, and an 

at-sea or electronic monitoring program 

beginning in FY 2012, while all 

common pool vessels would be subject 

to dockside/roving monitoring 

beginning in FY 2012. The no action 

alternative would have resulted in an 

estimated annual cost of $9,841 per 

vessel to Handgear A, Handgear B, and 

Small Vessel Category vessels. Further, 

the estimated $280,000 cost of dockside 

monitoring to the remainder of the 

fishery would have been imposed on the 

fleet, as well as the $5 million cost 

associated with at-sea monitoring 

during FYs 2011 and 2012, respectively. 

Failing to redistribute PSC from 

cancelled permits to all valid limited 

access NE multispecies as of a certain 

date each year as part of the no action 

alternative would result in continued 

allocation of such PSC to the common 

pool. This allocation would provide 

some marginal benefit to the common 

pool that would be redistributed to the 

entire fishery under the proposed 

action. However, because the amount of 

PSCs that have been cancelled to date 

represent a small amount of fish (72,000 

lb (32,659 kg) of all regulated species 

and ocean pout stocks combined), the 

benefits are not expected to materially 

affect the operations of the common 

pool under the no action alternative, 

particularly because a majority of this 

PSC is pollock, a species that has not 

been constraining to the operations by 

the common pool so far during FY 2010. 

The no action alternative would not 

specify stock-specific cod limits for 

handgear vessels, allow such vessels 

increased access to the existing seasonal 

closure areas, or allow LAGC vessels to 

fish in the Great South Channel 

Exemption Area during peak yellowtail 

flounder spawning periods. It would 

maintain the existing value of such 

permits, and not improve the economic 

opportunity provided to these vessels as 

part of the proposed action. Such an 

action would reduce the economic 

efficiency of such vessels. 

The no action alternative would also 

maintain the existing recreational 

measures and would not implement the 

proposed GOM Cod Spawning 

Protection Area. Since FY 2007, the 

number of trips taken by charter/party 

vessels in the GOM has steadily 

declined, with gross receipts declining 

by almost $2 million based on an 

average ticket price of $60 per person. 

Thus, the no action alternative is not 

likely to alter what appears to be a 

continuing downward trend in 

participation in the charter/party fishery 

in the GOM in recent years. 

Description of the Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements of the Proposed Rule 

Reporting and Recordkeeping 

Requirements 

The only reporting and recordkeeping 

requirements affected by this proposed 

rule are the request for a LOA to fish 

south of the GOM Regulated Mesh Area 

by Handgear A and Handgear B vessels, 

or a similar declaration via VMS prior 

to each trip by Handgear A vessels 

required to use VMS under the existing 

regulations, and the trip-end hail report 

already approved as part of Amendment 

16. This action would not impose any 

new reporting or recordkeeping 

requirements that have not already been 

in existence. However, it would require 

additional vessels (handgear vessels) to 

comply with the LOA requirements. 

Existing reporting and recordkeeping 

requirements for the dockside/roving 

and at-sea or electronic monitoring 

programs approved under Amendment 

16 have been included below for 

reference. 

The costs associated with the 

reporting and recordkeeping 

requirements supporting measures 

proposed in this action are detailed in 

the PRA analysis associated with 

Amendment 16 and the permit family of 

forms for the Northeast Region of 

NMFS. The time burden associated with 

a telephone call to request for a LOA to 

fish south of the GOM Regulated Mesh 

Area is estimated at 5 minutes, with no 

costs to vessels requesting such a LOA. 

The cost associated with a similar 

declaration via VMS is estimated at 

$0.50 per submission. For the trip-end 

hail reports, the yearly cost to each 

vessel would be approximately $17, 

assuming that such reports were made 

via VMS. Costs to vessels receiving 


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dockside/roving monitoring services 

proposed under Amendment 16 include 

$10 per year for confirming pre-trip hail 

reports and $13 per year to confirm tripend hail reports and specify whether a 

particular trip would be observed by a 

dockside monitor. Requirements to 

maintain and enter data into a dockside 

monitoring database would cost 

approximately $4,225 per service 

provider annually, while submitting 

dockside monitoring data to NMFS 

would cost each service provider 

approximately $36,000 per year. Similar 

costs to service providers are expected 

to notify sector vessels of selection for 

at-sea/electronic monitoring coverage 

($3,125 per year) and to submit at-sea or 

electronic monitoring data to NMFS 

($36,000 per year). 

Other Compliance Requirements 

This proposed rule contains a 

collection-of-information requirement 

subject to the PRA and which has been 

approved by OMB under the various 

OMB control numbers listed below. 

Public reporting burden for these 

collections of information are estimated 

to average, as follows: 

1. VTR submissions, OMB# 0648– 

0605, (5 min/response); 

2. Sector operations plan and 

associated NEPA analysis, OMB# 0648– 

0605, (640 hr/response); 

3. Dockside/at-sea monitoring service 

provider application, OMB# 0648–0605, 

(10 hr/response); 

4. Dockside/at-sea monitoring service 

provider response to application 

disapproval, OMB# 0648–0605, (10 hr/ 

response); 

5. Data entry for sector discard 

monitoring system, OMB# 0648–0605, 

(3 min/response); 

6. Sector weekly catch report, OMB# 

0648–0605, (4 hr/response); 

7. Sector annual report, OMB# 0648– 

0605, (12 hr/response); 

8. Notification of expulsion from a 

sector, OMB# 0648–0605, (30 min/ 

response); 

9. Request to transfer ACE, OMB# 

0648–0605, (5 min/response); 

10. VMS certification form, OMB# 

0648–0605, (10 min/response); 

11. VMS confirmation call, OMB# 

0648–0605, (5 min/response); 

12. VMS area and DAS declaration, 

OMB# 0648–0605, (5 min/response); 

13. VMS trip-level catch reports, 

OMB# 0648–0605, (15 min/response); 

14. Request for a LOA to participate 

in the GOM Haddock Gillnet Pilot 

Program, OMB# 0648–0605, (5 min/ 

response); 

15. Request for a LOA to fish in a NE 

multispecies RGA, OMB# 0648–0605, (5 

min/response); 

16. VMS declaration to fish in a NE 

multispecies RGA, OMB# 0648–0605, (5 

min/response); 

17. Pre-trip hail report to a dockside 

monitoring service provider, OMB# 

0648–0605, (2 min/response); 

18. Trip-end hail report to a dockside 

monitoring service provider, OMB# 

0648–0605, (15 min/response); 

19. Confirmation of dockside 

monitoring trip-end hail report, OMB# 

0648–0605, (2 min/response); 

20. Dockside/roving service provider 

data entry, OMB# 0648–0605, (3 min/ 

response); 

21. Dockside/roving or at-sea monitor 

deployment report, OMB# 0648–0605, 

(10 min/response); 

22. Dockside/roving or at-sea 

monitoring service provider catch report 

to NMFS upon request, OMB# 0648– 

0605, (5 min/response); 

23. Dockside/roving or at-sea monitor 

report of harassment and other issues, 

OMB# 0648–0605, (30 min/response); 

24. OLE debriefing of dockside/roving 

or at-sea monitors, OMB# 0648–0605, (2 

hr/response); 

25. Copy of dockside/roving or at-sea 

monitoring service provider contract 

upon request, OMB# 0648–0605, (30 

min/response); 

26. Copy of dockside/roving or at-sea 

monitoring service provider information 

materials upon request, OMB# 0648– 

0605, (30 min/response); 

27. Observer program pre-trip 

notification, OMB# 0648–0605, (2 min/ 

response); 

28. Daily VMS catch reports when 

fishing in the U.S./Canada Management 

Area and CA II SAPs, OMB# 0648–0605, 

(15 min/response); 

29. Daily VMS catch reports when 

fishing in the CA I Hook Gear Haddock 

SAP, OMB# 0648–0605, (15 min/ 

response); 

30. Daily VMS catch reports when 

fishing in the Regular B DAS Program, 

OMB# 0648–0605, (15 min/response); 

31. Copy of the dealer weigh-out slip 

or dealer signature of the dockside 

monitor report, OMB# 0648–0605, (2 

min/response); 

32. Forward trip start/end hails to 

NMFS, OMB# 0648–0605 (2 min/ 

response); 

33. Notification to vessel/sector/ 

NMFS of monitor emergency, OMB# 

0648–0605 (5 min/response); 

34. Initial vessel application for a 

limited access Handgear A permit, OMB 

Control Number 0648–0202, (10 min/ 

response); 

35. DAS Transfer Program 

application, OMB Control Number 

0648–0202, (5 min/response); 

36. VMS purchase and installation, 

OMB Control Number 0648–0202, (1 hr/ 

response); 

37. Automated VMS polling of vessel 

position twice per hour while fishing 

within the U.S./Canada Area, OMB 

Control Number 0648–0202, (5 sec/ 

response); 

38. VMS proof of installation, OMB 

Control Number 0648–0202, (5 min/ 

response); 

39. Expedited submission of a 

proposed SAP, OMB Control Number 

0648–0202, (20 hr/response); 

40. Request to power down VMS for 

at least 1 month, OMB Control Number 

0648–0202, (5 min/response); 

41. Request for an LOA to participate 

in the GOM Cod Landing Exemption, 

OMB Control Number 0648–0202, (5 

min/response); 

42. Request for an LOA to participate 

in the Skate Bait-only Possession Limit 

Exemption, OMB Control Number 

0648–0202, (5 min/response); 

43. Submission of a sector allocation 

proposal, OMB Control Number 0648– 

0202, (50 hr/response); 

44. DAS ‘‘flip’’ notification via VMS 

for the Regular B DAS pilot program, 

OMB #0648–0202 (5 min/response); 

45. DAS ‘‘flip’’ notification via VMS 

for the Eastern U.S./Canada Haddock 

SAP Pilot Program, OMB #0648–0202 

(5 min/response); 

46. NMFS Office of Law Enforcement 

landings notice requirement for 

Category 1 herring vessels operating 

with an observer waiver, OMB# 0648– 

0521, (5 min/response); 

47. Notification and Communication 

with USCG and Center for Coastal 

Studies, OMB# 0648–0521, (10 min/ 

response); 

48. Written requests to receive a DAS 

credit for standing by an entangled 

whale, OMB# 0648–0521, (30 min/ 

response); 

49. Vessel baseline downgrade request 

for the DAS Leasing Program, OMB# 

0648–0475, (1 hr/response); 

50. Spawning block declaration, 

OMB# 0648–0202 (2 min/response); 

51. Sector Manager daily reports for 

CA I Hook Gear Haddock SAP, OMB# 

0648–0212 (2 hr/response); 

52. DAS Leasing Program application, 

OMB# 0648–0475 (10 min/response); 

and 

53. Declaration of intent to fish inside 

and outside of the Eastern U.S./Canada 

Area on the same trip, OMB# 0648–0202 

(5 min/response). 

Public reporting burden for these 

requirements includes the time for 

reviewing instructions, searching 

existing data sources, gathering and 

maintaining the data needed, 

andcompleting and reviewing the 

collection of information. Send 

comments regarding these burden 

estimates, or any other aspect of this 


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data collection, including suggestions 

for reducing the burden, to NMFS (see 

ADDRESSES) and by e-mail to 

OIRA_Submission@omb.eop.gov, or fax 

to 202–395–7285. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, and no person shall be 

subject to penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

List of Subjects in 50 CFR Part 648 

Fisheries, Fishing, Reporting and 

recordkeeping requirements. 

Dated: February 22, 2011. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons stated in the 

preamble, 50 CFR part 648 is proposed 

to be amended as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

1. The authority citation for part 648 

continues to read as follows: 

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

2. In § 648.10, revise paragraph (k)(1) 

to read as follows: 

§ 648.10 VMS and DAS requirements for 

vessel owners/operators. 

* * * * * 

(k) * * * 

(1) Reporting requirements for all 

limited access NE multispecies vessel 

owners or operators. In addition to any 

other reporting requirements specified 

in this part, the owner or operator of any 

vessel issued a limited access NE 

multispecies permit on either a common 

pool or sector trip must declare the 

following information via VMS or IVR, 

as instructed by the Regional 

Administrator: 

(i) Broad stock area(s) to be fished. To 

fish in any of the broad stock areas, the 

vessel owner or operator must declare 

his/her intent to fish within one or more 

of the NE multispecies broad stock 

areas, as defined in paragraph (k)(3) of 

this section, prior to leaving port at the 

start of a fishing trip; 

(ii) VTR serial number. On its return 

to port, prior to crossing the VMS 

demarcation line, as defined at § 648.10, 

the vessel owner or operator must 

provide the VTR serial number for the 

first page of the VTR for that particular 

trip, or other applicable trip ID specified 

by NMFS; and 

(iii) Trip-end hail report. Unless 

otherwise required to comply with both 

the dockside/roving monitoring tripstart and trip-end hail reports pursuant 

to § 648.87(b)(5), beginning in fishing 

year 2011 (May 1, 2011), upon its return 

to port and prior to crossing the VMS 

demarcation line as defined in § 648.10, 

the owner or operator of any vessel 

issued a limited access NE multispecies 

permit that is subject to the VMS 

requirements specified in paragraph 

(b)(4) of this section must submit a tripend hail report to NMFS via VMS, as 

instructed by the Regional 

Administrator. The trip-end hail report 

must include at least the following 

information, as instructed by the 

Regional Administrator: The vessel 

permit number; VTR serial number, or 

other applicable trip ID specified by 

NMFS; intended offloading location(s), 

including the dealer name/offload 

location, port/harbor, and State for the 

first dealer/facility where the vessel 

intends to offload catch and the port/ 

harbor, and State for the second dealer/ 

facility where the vessel intends to 

offload catch; estimated date/time of 

arrival; estimated date/time of offload; 

and the estimated total amount of all 

species retained, including species 

managed by other FMPs (in pounds, 

landed weight), on board at the time the 

vessel first offloads its catch from a 

particular trip. The trip-end hail report 

must be submitted at least 6 hr in 

advance of landing for all trips of at 

least 6 hr in duration or occurring more 

than 6 hr from port. For shorter trips, 

the trip-end hail reports must be 

submitted upon the completion of the 

last tow or hauling of gear, as instructed 

by the Regional Administrator. 

* * * * * 

3. In § 648.14, revise paragraph 

(k)(7)(i)(B); and add paragraphs (k)(9)(i), 

(k)(15)(ii)(A)(5), and (k)(18)(i)(D) to read 

as follows: 

§ 648.14 Prohibitions. 

* * * * * 

(k) * * * 

(7) * * * 

(i) * * * 

(B) Fish for, harvest, possess, or land 

regulated species in or from the closed 

areas specified in § 648.81(a) through (f) 

and (o), unless otherwise specified in 

§ 648.81(c)(2)(iii), (f)(2)(i), (f)(2)(iii), 

(f)(2)(vi), (i), (o)(2)(i), or as authorized 

under § 648.85. 

* * * * * 

(9) * * * 

(i) If operating under the provisions of 

a limited access NE multispecies 

Handgear A permit south of the GOM 

Regulated Mesh Area, as defined at 

§ 648.80(a)(1), fail to declare the vessel 

operator’s intent to fish in this area via 

VMS or fail to obtain or retain on board 

a letter of authorization from the 

Regional Administrator, as required by 

§ 648.82(b)(6)(iv). 

* * * * * 

(15) * * * 

(ii) * * * 

(A) * * * 

(5) If operating under the provisions 

of a limited access NE multispecies 

Handgear B permit south of the GOM 

Regulated Mesh Area, as defined at 

§ 648.80(a)(1), fail to obtain or retain on 

board a letter of authorization from the 

Regional Administrator, as required by 

§ 648.88(a)(2)(iv). 

* * * * * 

(18) * * * 

(i) * * * 

(D) Offload fish before a dockside/ 

roving monitor arrives, if selected to 

have its offloading events observed by a 

dockside/roving monitor, as specified 

by § 648.87(b)(1)(v)(B)(1) and 

(b)(5)(i)(C). 

* * * * * 

4. In § 648.80, revise the introductory 

text to paragraph (a)(18), and remove 

paragraphs (a)(18)(ii)(C) and (D) to read 

as follows: 

§ 648.80 NE Multispecies regulated mesh 

areas and restrictions on gear and methods 

of fishing. 

(a) * * * 

(18) Great South Channel Scallop 

Dredge Exemption Area. Vessels issued 

a LAGC scallop permit, including 

limited access scallop permits that have 

used up their DAS allocations, may fish 

in the Great South Channel Scallop 

Dredge Exemption Area, as defined 

under paragraph (a)(18)(i) of this 

section, when not under a NE 

multispecies or scallop DAS or on a 

sector trip, provided the vessel complies 

with the requirements specified in 

paragraph (a)(18)(ii) of this section and 

applicable scallop regulations in subpart 

D of this chapter. 

* * * * * 

5. In § 648.81, revise paragraphs 

(f)(2)(vi) and (i); and add paragraphs 

(g)(2)(vi) and (o) to read as follows: 

§ 648.81 NE multispecies closed areas and 

measures to protect EFH. 

* * * * * 

(f) * * * 

(2) * * * 

(vi) That are fishing on a sector trip, 

or under the provisions of a Northeast 

multispecies Handgear A permit, as 

specified at § 648.82(b)(6), provided 

such vessels comply with the following 

restricted areas referred to as the Sector 

Rolling Closure Areas: 

* * * * * 


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(g) * * * 

(2) * * * 

(vi) That are fishing under the 

provisions of a Northeast multispecies 

Handgear A permit, as specified at 

§ 648.82(b)(6), or the provisions of a 

Northeast multispecies Handgear B 

permit, as specified at § 648.88(a). 

* * * * * 

(i) Transiting. Unless otherwise 

restricted or specified in this paragraph 

(i), a vessel may transit CA I, the 

Nantucket Lightship Closed Area, the 

Cashes Ledge Closed Area, the Western 

GOM Closure Area, the GOM Rolling 

Closure Areas, the GB Seasonal Closure 

Area, the EFH Closure Areas, and the 

GOM Cod Spawning Protection Area, as 

defined in paragraphs (a)(1), (c)(1), 

(d)(1), (e)(1), (f)(1), (g)(1), (h)(1), and 

(o)(1), of this section, respectively, 

provided that its gear is stowed in 

accordance with the provisions of 

§ 648.23(b). A vessel may transit CA II, 

as defined in paragraph (b)(1) of this 

section, in accordance with paragraph 

(b)(2)(iv) of this section. Private 

recreational or charter/party vessels 

fishing under the Northeast 

multispecies provisions specified at 

§ 648.89 may transit the GOM Cod 

Spawning Protection Area, as defined in 

paragraph (o)(1) of this section, 

provided all bait and hooks are removed 

from fishing rods, and any regulated 

species on board have been caught 

outside the GOM Cod Spawning 

Protection Area and has been gutted and 

stored. 

* * * * * 

(o) GOM Cod Spawning Protection 

Area. (1) Except as specified in 

paragraph (o)(2) of this section, from 

April through June of each year, no 

fishing vessel or person on a fishing 

vessel may enter, fish in, or be in; and 

no fishing gear capable of catching NE 

multispecies may be used, on, or be on 

board, a vessel in the GOM Cod 

Spawning Protection Area, as defined 

by straight lines connecting the 

following points in the order stated (a 

chart depicting this area is available 

from the Regional Administrator upon 

request): 

GOM COD SPAWNING PROTECTION

AREA

Point N. latitude W. longitude 

CSPA1 .............. 42°50.95′ 70°32.22′ 

CSPA2 .............. 42°47.65′ 70°35.64′ 

CSPA3 .............. 42°54.91′ 70°41.88′ 

CSPA4 .............. 42°58.27′ 70°38.64′ 

CSPA1 .............. 42°50.95′ 70°32.22′ 

(2) Paragraph (o)(1) of this section 

does not apply to persons on a fishing 

vessel or fishing vessels: 

(i) That have not been issued a NE 

multispecies permit and that are fishing 

exclusively in State waters; 

(ii) That are fishing with or using 

exempted gear as defined under this 

part, excluding pelagic gillnet gear 

capable of catching NE multispecies, 

except for vessels fishing with a single 

pelagic gillnet not longer than 300 ft 

(91.4 m) and not greater than 6 ft (1.83 

m) deep, with a maximum mesh size of 

3 inches (7.6 cm), provided: 

(A) The net is attached to the boat and 

fished in the upper two-thirds of the 

water column; 

(B) The net is marked with the vessel 

owner’s name and vessel identification 

number; 

(C) There is no retention of regulated 

species or ocean pout; and 

(D) There is no other gear on board 

capable of catching NE multispecies; 

(iii) That are fishing as a charter/party 

or recreational fishing vessel, provided 

that: 

(A) With the exception of tuna, fish 

harvested or possessed by the vessel are 

not sold or intended for trade, barter, or 

sale, regardless where the species are 

caught; 

(B) The vessel has no gear other than 

pelagic hook and line gear, as defined in 

this part, on board unless that gear is 

properly stowed pursuant to § 648.23(b); 

and 

(C) There is no retention of regulated 

species, or ocean pout; and 

(iv) That are transiting pursuant to 

paragraph (i) of this section. 

* * * * * 

6. In § 648.82, revise paragraphs (a)(2), 

the introductory text of paragraph (b)(6), 

and (n)(2)(iv), and add paragraph 

(b)(6)(iv) to read as follows: 

§ 648.82 Effort-control program for NE 

multispecies limited access vessels. 

(a) * * * 

(2) Notwithstanding any other 

provision of this part, any vessel issued 

a NE multispecies limited access permit 

may not call into the DAS program and 

fish under a DAS, fish on a sector trip, 

or fish under the provisions of a limited 

access Small Vessel Category or 

Handgear A permits pursuant to 

paragraphs (b)(5) and (b)(6) of this 

section, respectively, if such vessel 

carries passengers for hire for any 

portion of a fishing trip. 

(b) * * * 

(6) Handgear A category. A vessel 

qualified and electing to fish under the 

Handgear A category, as described in 

§ 648.4(a)(1)(i)(A), may retain, per trip, 

up to 300 lb (135 kg) of cod, one 

Atlantic halibut, and the daily 

possession limit for other regulated 

species and ocean pout, as specified 

under § 648.86. If either the GOM or GB 

cod trip limit applicable to a vessel 

fishing under a NE multispecies DAS 

permit, as specified in § 648.86(b)(1) 

and (b)(2), respectively, is reduced 

below 300 lb (135 kg) per DAS by 

NMFS, the cod trip limit specified in 

this paragraph (b)(6) shall be adjusted to 

be the same as the applicable cod trip 

limit specified for NE multispecies DAS 

permits. For example, if the GOM cod 

trip limit for NE multispecies DAS 

vessels was reduced to 250 lb (113.4 kg) 

per DAS, then the cod trip limit for a 

vessel issued a Handgear A category 

permit that is fishing in the GOM 

Regulated Mesh Area would also be 

reduced to 250 lb (113.4 kg). Qualified 

vessels electing to fish under the 

Handgear A category are subject to the 

following restrictions: 

* * * * * 

(iv) Declaration. For any such vessel 

that is not required to use VMS 

pursuant to § 648.10(b)(4), to fish for GB 

cod south of the GOM Regulated Mesh 

Area, as defined at § 648.80(a)(1), a 

vessel owner or operator must obtain, 

and retain on board, a letter of 

authorization from the Regional 

Administrator stating his or her intent to 

fish south of the GOM Regulated Mesh 

Area and may not fish in any other area 

for a minimum of 7 consecutive days 

from the effective date of the letter of 

authorization. For any such vessel that 

is required to use VMS pursuant to 

§ 648.10(b)(4), to fish for GB cod south 

of the GOM Regulated Mesh Area, as 

defined at § 648.80(a)(1), a vessel owner 

or operator must declare his or her 

intent to fish south of the GOM 

Regulated Mesh Area on each trip 

through the VMS prior to leaving port, 

in accordance with instructions 

provided by the Regional Administrator. 

Such vessels may transit the GOM 

Regulated Mesh Area, as defined at 

§ 648.80(a)(1), provided that their gear is 

stowed in accordance with the 

provisions at § 648.23(b). 

* * * * * 

(n) * * * 

(2) * * * 

(iv) Monitoring requirements. Except 

as specified in paragraph (n)(2)(iv)(C) of 

this section, starting in fishing year 2012 

(May 1, 2012), landings of regulated 

species or ocean pout by common pool 

vessels shall be monitored at the point 

of offload by independent, third-party 

service providers approved to provide 

such services by NMFS, as specified in 

paragraphs (n)(2)(iv)(A) and (B) of this 

section. Unless otherwise instructed by 


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NMFS, these service providers shall 

deploy dockside monitors to monitor 

the offload of catch directly to a dealer, 

and roving monitors to monitor the 

offload of catch onto a truck for 

subsequent shipment to a dealer. For 

fishing year 2012 only, common pool 

vessels must comply with any dockside/ 

roving monitoring program specified by 

NMFS pursuant to 

§ 648.87(b)(1)(v)(B)(1). None of the costs 

associated with dockside/roving 

monitors during fishing year 2012 shall 

be paid by the owner or operator of a 

vessel subject to these requirements. 

Starting in fishing year 2013 and 

thereafter, the costs associated with 

monitoring vessel offloads shall be the 

responsibility of individual vessels, 

unless otherwise instructed by NMFS. 

An individual vessel owner or operator 

may only use one dockside/roving 

monitoring service provider per fishing 

year beginning in fishing year 2013, and 

must contract for such services with a 

service provider approved by NMFS 

pursuant to § 648.87(b)(4), as instructed 

by the Regional Administrator. Both 

common pool vessels and service 

providers providing offloading 

monitoring services will be subject to 

the requirements specified in 

§ 648.87(b)(5). 

(A) Coverage levels. For fishing year 

2012, dockside/roving monitoring 

coverage levels shall be determined by 

NMFS based on available funding. If 

NMFS does not require 100-percent 

coverage of all common pool trips, 

NMFS shall first provide dockside/ 

roving monitoring for trips that are not 

also assigned an observer or at-sea 

monitor pursuant to § 648.11. Starting in 

fishing year 2013, at least 20 percent of 

the trips taken by vessels operating 

under the provisions of the common 

pool shall be monitored. To ensure that 

these levels of coverage are achieved, if 

a trip has been selected to be observed 

by a dockside/roving monitor, all 

offloading events associated with that 

trip must be monitored by a dockside/ 

roving monitor, as specified in 

paragraph (n)(2) of this section, and a 

vessel may not offload any of its catch 

until the dockside/roving monitor 

arrives. For example, a vessel offloading 

at more than one dealer or facility must 

have a dockside/roving monitor present 

during offload at each location. All 

landing events at remote ports that are 

selected to be observed by a dockside/ 

roving monitor must have a roving 

monitor present to witness offload 

activities to the truck, as well as a 

dockside monitor present at each dealer 

to certify weigh-out of all landings. 

Except as provided in this paragraph 

(n)(2)(iv)(A) or paragraph (n)(2)(iv)(C) of 

this section, or as instructed by the 

Regional Administrator, any service 

provider providing dockside/monitoring 

services required under this paragraph 

(n)(2)(iv) must ensure that coverage is 

randomly distributed among all such 

trips, and that the landing events 

monitored are representative of fishing 

operations by common pool vessels 

throughout the fishing year. 

(B) Dockside/roving monitor service 

provider standards. Starting in fishing 

year 2013, a common pool vessel must 

employ a service provider approved by 

NMFS to provide dockside/roving 

monitor services, as identified by the 

Regional Administrator. To be approved 

to provide the services specified in 

paragraph (n)(2) of this section, 

dockside/roving monitor service 

providers must meet the standards in 

§ 648.87(b)(4). 

(C) Exemption. Common pool vessels 

operating under the provisions of either 

a limited access Northeast multispecies 

Small Vessel Category permit or 

Handgear A permit, as specified at 

§§ 648.82(b)(5) and (6), respectively, or 

an open access Northeast multispecies 

Handgear B permit, as specified at 

§ 648.88(a), are exempt from the 

dockside/roving monitoring 

requirements specified in this paragraph 

(n)(2)(iv). 

* * * * * 

7. In § 648.87, revise the introductory 

text of paragraphs (b)(1)(i)(E), 

(b)(1)(viii), (b)(2), and (b)(5); revise 

paragraphs (b)(1)(i)(A), (b)(1)(i)(C), 

(b)(1)(i)(E)(1), (b)(1)(i)(E)(2)(i) and (ii), 

(b)(1)(iii)(C), (b)(1)(v)(B), (b)(1)(viii)(C), 

and (c)(2)(i); and add paragraphs 

(b)(5)(ii)(E) and (d)(20) through (24) to 

read as follows: 

§ 648.87 Sector allocation. 

* * * * * 

(b) * * * 

(1) * * * 

(i) * * * 

(A) Allocated stocks. Each sector shall 

be allocated a TAC in the form of an 

ACE for each NE multispecies stock, 

with the exception of Atlantic halibut, 

SNE/MA winter flounder, ocean pout, 

windowpane flounder (both the GOM/ 

GB and the SNE/MA stocks), and 

Atlantic wolffish based upon the 

cumulative PSCs of vessels/permits 

participating in each sector during a 

particular fishing year, as described in 

paragraph (b)(1)(i)(E) of this section. In 

the event that a future allocation of 

SNE/MA winter flounder can be made 

available pursuant to the biennial 

adjustment or framework process 

specified in § 648.90(a)(2), an ACE for 

this stock will be specified pursuant to 

paragraph (b)(1)(i)(E)(1) of this section. 

* * * * * 

(C) Carry-over. With the exception of 

GB yellowtail flounder, a sector may 

carry over an amount of ACE equal to 

up to 10 percent of its original ACE 

allocation for each stock that is unused 

at the end of one fishing year into the 

following fishing year. Any unused ACE 

allocated for Eastern GB stocks pursuant 

to paragraph (b)(1)(i)(B) of this section 

will contribute to the 10-percent carryover allowance for each stock, as 

specified in this paragraph (b)(1)(i)(C), 

but will not increase an individual 

sector’s allocation of Eastern GB stocks 

during the following year. This carryover ACE remains effective during the 

subsequent fishing year even if vessels 

that contributed to the sector allocation 

during the previous fishing year are no 

longer participating in the same sector 

for the subsequent fishing year. 

* * * * * 

(E) Potential sector contribution 

(PSC). For the purposes of allocating a 

share of the available ACL for each NE 

multispecies stock to approved sectors 

pursuant to § 648.90(a)(4), the landings 

history of all limited access NE 

multispecies permits shall be evaluated 

to determine each permit’s share of the 

overall landings for each NE 

multispecies stock as specified in 

paragraphs (b)(1)(i)(E)(1) and (2) of this 

section. When calculating an individual 

permit’s share of the overall landings for 

a particular regulated species or ocean 

pout stock, landed weight shall be 

converted to live weight to maintain 

consistency with the way ACLs are 

calculated pursuant to § 648.90(a)(4) 

and the way ACEs are allocated to 

sectors pursuant to this paragraph 

(b)(1)(i). This calculation shall be 

performed on July 1 of each year, unless 

another date is specified by the Regional 

Administrator, to redistribute the 

landings history associated with permits 

that have been voluntarily relinquished 

or otherwise canceled among all 

remaining valid limited access NE 

multispecies permits as of that date 

during the following fishing year. The 

PSC calculated pursuant to this 

paragraph (b)(1)(i)(E) shall remain with 

the permit indefinitely, but may be 

permanently reduced or eliminated due 

to a permit sanction or other 

enforcement action. 

(1) Calculation of PSC for all NE 

multispecies stocks except GB cod. 

Unless otherwise specified in paragraph 

(b)(1)(i)(E)(2) of this section, for each 

valid limited access NE multispecies 

permit, including limited access NE 

multispecies Handgear A permits, 


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landings recorded in the NMFS dealer 

database of each stock of NE 

multispecies determined by NMFS to be 

the landings history associated with that 

permit while subject to the NE 

multispecies regulations based on 

whether the vessel fishing under that 

permit was issued a limited access NE 

multispecies permit or subsequently 

qualified for a limited access NE 

multispecies permit pursuant to 

§ 648.4(a)(1)(i), including regulated 

species or ocean pout caught under a NE 

multispecies DAS when participating in 

the skate or monkfish fisheries, but 

excluding, for example, landings by 

scallop vessels operating under a 

scallop DAS, shall be summed for 

fishing years 1996 through 2006. This 

sum shall then be divided by the total 

landings of each NE multispecies stock 

during the same period by all permits 

eligible to join sectors as of May 1, 2008. 

The resulting figure shall then be 

multiplied by a factor of 1/PSC of 

remaining permits as of June 1 of each 

year, unless another date is specified by 

the Regional Administrator, to calculate 

the PSC for each individual valid 

limited access NE multispecies permit 

for each regulated species or ocean pout 

stock allocated to sectors in the NE 

multispecies fishery for the following 

fishing year pursuant to this paragraph 

(b)(1)(i)(E)(1). 

(2) * * * 

(i) GB cod PSC for permits committed 

to participate in the GB Cod Hook Gear 

Sector or GB Cod Fixed Gear Sector. For 

each owner of a valid NE multispecies 

permit, or CPH, that committed to 

participate in either the GB Cod Hook 

Gear Sector or the GB Cod Fixed Gear 

Sector as evidenced by a valid 

authorized signature executed on or 

before March 1, 2008, on a preliminary 

roster for either of these sectors, the PSC 

for GB cod shall be equal to the sum of 

dealer landings of GB cod for fishing 

years 1996 through 2001, divided by the 

total landings of GB cod by permits 

eligible to join sectors as of May 1, 2008, 

during that period. The PSC for all other 

regulated species or ocean pout stocks 

specified for these permits shall be 

calculated pursuant to paragraph 

(b)(1)(i)(E)(1) of this section. The PSC 

calculated pursuant to this paragraph 

(b)(1)(i)(E)(2)(i) shall then be multiplied 

by a factor of 1/PSC of remaining 

permits as of June 1 of each year, unless 

another date is specified by the Regional 

Administrator, to calculate the GB cod 

PSC for each permit for the following 

fishing year. 

(ii) GB cod PSC for all other permits. 

For each owner of a valid NE 

multispecies permit or CPH that has not 

committed to participate in either the 

GB Cod Hook Gear Sector or GB Cod 

Fixed Gear Sector, as specified in 

paragraph (b)(1)(i)(E)(2)(i) of this 

section, the GB cod PSC for each such 

permit or CPH shall be based upon the 

GB cod PSC available after accounting 

for the GB cod PSC calculated pursuant 

to paragraph (b)(1)(i)(E)(2)(i) of this 

section. To determine the GB cod PSC 

for each of these permits, the sum of the 

individual permit’s landings of GB cod 

available in the NMFS dealer database 

for fishing years 1996 through 2006 

shall be divided by the total landings of 

GB cod during that period by the total 

landings of GB cod by permits eligible 

to join sectors as of May 1, 2008, during 

that period, after subtracting the total 

landings of GB cod by permits that 

committed to participate in either the 

GB Cod Hook Sector or GB Cod Fixed 

Gear Sector as of March 1, 2008. This 

individual share shall then be 

multiplied by the available GB cod PSC 

calculated by subtracting the GB cod 

PSC allocated pursuant to paragraph 

(b)(1)(i)(E)(2)(i) of this section from one. 

The PSC calculated pursuant to this 

paragraph (b)(1)(i)(E)(2)(ii) shall then be 

multiplied by a factor of 1/PSC of 

remaining permits as of July 1 of each 

year, unless another date is specified by 

the Regional Administrator, to calculate 

the GB cod PSC for each permit. 

* * * * * 

(iii) * * * 

(C) ACE buffer. At the beginning of 

each fishing year, NMFS shall withhold 

20 percent of a sector’s ACE for each 

stock for a period of up to 61 days (i.e., 

through June 30), unless otherwise 

specified by NMFS, to allow time to 

process any ACE transfers submitted at 

the end of the fishing year pursuant to 

paragraph (b)(1)(viii) of this section and 

to determine whether the ACE allocated 

to any sector needs to be reduced, or 

any overage penalties need to be applied 

to individual permits/vessels in the 

current fishing year to accommodate an 

ACE overage by that sector during the 

previous fishing year, as specified in 

paragraph (b)(1)(iii) of this section. 

* * * * * 

(v) * * * 

(B) Independent third-party 

monitoring program. A sector must 

comply with any dockside/roving 

monitoring program specified by NMFS 

for fishing years 2011 and 2012, 

pursuant to paragraph (b)(1)(v)(B)(1) of 

this section, including the dockside/ 

roving monitoring operational standards 

specified in paragraph (b)(5) of this 

section, and develop and implement an 

independent third-party dockside/ 

roving monitoring program by fishing 

year 2013. A sector must also develop 

and implement an at-sea or electronic 

monitoring program by fishing year 

2012 (May 1, 2012) consistent with 

paragraph (b)(1)(v)(B)(2) of this section. 

Both the dockside/roving and at-sea or 

electronic monitoring program 

developed by sectors must be approved 

by NMFS for monitoring landings and 

utilization of sector ACE, as specified in 

this paragraph (b)(1)(v)(B). Any service 

provider providing dockside/roving and 

at-sea or electronic monitoring services 

pursuant to this paragraph (b)(1)(v)(B) 

must meet the service provider 

standards specified in paragraph (b)(4) 

of this section, and any dockside/roving 

and at-sea or electronic monitoring 

program proposed by sectors must meet 

the operational standards specified in 

paragraphs (b)(5) and (b)(6) of this 

section, respectively, and be approved 

by NMFS in a manner consistent with 

the Administrative Procedure Act. None 

of the costs associated with any 

dockside/roving monitor or at-sea or 

electronic monitoring requirements 

shall be paid by the owner or operator 

of a vessel subject to these requirements 

during fishing years 2011 and 2012. 

Starting in fishing year 2013, sectors 

shall be responsible for paying the costs 

associated with dockside/roving and atsea or electronic monitoring coverage, 

unless otherwise instructed by NMFS. 

(1) Dockside/roving monitoring 

program. Dockside/roving monitors 

shall monitor landings of regulated 

species and ocean pout at every offload 

for which a trip has been selected to be 

observed by a dockside/roving monitor, 

whether directly to a Federally 

permitted dealer or to a truck for 

transfer to a Federally permitted dealer, 

to verify such landings at the time the 

landings are weighed by a Federally 

permitted dealer and to certify the 

landing weights are accurate as reported 

on the dealer report. Unless otherwise 

specified in this part, the level of 

coverage for landings is specified in 

paragraph (b)(1)(v)(B)(3) of this section. 

To ensure that these levels of coverage 

are achieved, if a trip has been selected 

to be observed by a dockside/roving 

monitor, all offloading events associated 

with that trip, regardless of how many 

or the location of offloading events, 

must be monitored, and a vessel may 

not offload any of its catch until the 

dockside/roving monitor arrives. For 

example, if a trip is selected to be 

observed by a dockside/roving monitor, 

a vessel offloading at more than one 

dealer or facility must have a dockside/ 

roving monitor present during the 

offload at each location. All landing 

events at remote ports that are selected 

to be observed by a dockside/roving 


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11888 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

monitor must have a roving monitor 

present to witness offload activities to 

the truck, as well as a dockside monitor 

present at each dealer to certify weighout of all landings. Any service provider 

providing dockside/roving monitoring 

services pursuant to this paragraph 

(b)(1)(v)(B)(1) must meet the service 

provider standards specified in 

paragraph (b)(4) of this section. The 

details of the dockside/roving 

monitoring program used by each sector 

starting in fishing year 2013 pursuant to 

paragraph (b)(1)(v)(B) of this section 

must be specified in the sector’s 

operations plan, and must be consistent 

with the operational standards specified 

in paragraph (b)(5) of this section. The 

Regional Administrator shall review the 

dockside/roving monitoring program 

and approve/disapprove it as part of the 

yearly operations plan in a manner 

consistent with the Administrative 

Procedure Act. Common pool vessels 

operating under the provisions of the 

either a limited access Northeast 

multispecies Small Vessel Category 

permit or Handgear A permit, as 

specified at §§ 648.82(b)(5) and (b)(6), 

respectively, or an open access 

Northeast multispecies Handgear B 

permit, as specified at § 648.88(a), are 

exempt from the dockside/roving 

monitoring requirements specified in 

this paragraph (b)(1)(v)(B)(1). Except as 

provided in this paragraph 

(b)(1)(v)(B)(1), all common pool and 

sector vessels, along with service 

providers providing dockside 

monitoring services, will be subject to 

the dockside monitoring operational 

requirements specified at § 648.87(b)(5). 

(2) At-sea or electronic monitoring 

program. Beginning in fishing year 

2012, in addition to any dockside/ 

roving monitoring requirement 

implemented pursuant to paragraph 

(b)(1)(v)(B)(1) of this section, an at-sea 

or electronic monitoring program must 

be implemented by each sector to verify 

area fished, as well as catch and 

discards by species and gear type. A 

sector may elect to develop an at-sea or 

electronic monitoring program before 

fishing year 2012 and specify the details 

of such a program in its operations plan. 

Electronic monitoring may be used in 

place of actual observers if the 

technology is deemed sufficient by 

NMFS for a specific trip type based on 

gear type and area fished, in a manner 

consistent with the Administrative 

Procedure Act. No electronic monitoring 

technology may be used in place of an 

at-sea monitor, unless approved by 

NMFS as part of the sector’s annual 

operations plan. If either an at-sea 

monitor or electronic monitoring is 

assigned to a particular trip, a vessel 

may not leave port without the 

appropriate at-sea monitor or electronic 

monitoring equipment on board. The atsea or electronic monitoring program 

developed and implemented by each 

sector must be consistent with the 

operational standards specified in 

paragraph (b)(6) of this section, with 

details of the program specified in the 

sector’s annual operations plan. The 

Regional Administrator shall review the 

at-sea or electronic monitoring program 

and approve/disapprove it as part of the 

annual operations plan in a manner 

consistent with the Administrative 

Procedure Act. The level of coverage for 

operations by sector vessels is specified 

in paragraph (b)(1)(v)(B)(3) of this 

section. 

(3) Coverage levels. Except as 

specified in paragraph (b)(1)(v)(B)(3)(i), 

any service provider providing 

dockside/roving or at-sea or electronic 

monitoring services required under this 

paragraph (b)(1)(v)(B)(3) must provide 

coverage that is fair and equitable, and 

distributed in a statistically random 

manner among all trips such that 

coverage is representative of fishing 

activities by all vessels within the 

common pool or each sector, and by all 

operations of common pool vessels or 

vessels operating in each sector 

throughout the fishing year. 

(i) Dockside/roving monitoring. For 

fishing years 2011 and 2012, NMFS 

shall determine the level of coverage for 

any NMFS-sponsored dockside/roving 

monitoring program specified pursuant 

to paragraph (b)(1)(v)(B)(1) of this 

section based on available funding. If 

100-percent coverage of all sector and 

common pool trips is not possible, 

NMFS shall first provide coverage to 

trips without an observer or at-sea 

monitor assigned pursuant to 

§ 648.11(k), or approved electronic 

monitoring equipment assigned 

pursuant to paragraph (b)(1)(v)(B) of this 

section for sector vessels. Starting in 

fishing year 2013, at least 20 percent of 

all sector and common pool trips shall 

be monitored by dockside/roving 

monitors. 

(ii) At-sea or electronic monitoring. 

For fishing year 2012, coverage levels 

for an at-sea or electronic monitoring 

program developed by a sector shall be 

specified by NMFS based upon the 

amount of funding available to support 

sector at-sea or electronic monitoring 

programs for that fishing year. Starting 

in fishing year 2013, coverage levels for 

an at-sea or electronic monitoring 

program shall be specified by NMFS, 

but shall be less than 100 percent of all 

sector trips. Such coverage levels must 

be sufficient to at least meet the 

Standardized Bycatch Reporting 

Methodology and accurately monitor 

sector operations. In the event that a 

NMFS-sponsored observer and a thirdparty at-sea monitor are assigned to the 

same trip, only the NMFS observer is 

required to observe that trip. 

(4) Hail reports. For the purposes of 

the dockside/roving and at-sea 

monitoring requirements specified in 

this paragraph (b)(1)(v)(B), sector vessels 

must submit all hail reports for a sector 

trip in which the NE multispecies catch 

applies against the ACE allocated to a 

sector, as specified in this part, to 

service providers offering dockside/ 

roving and at-sea monitoring services 

pursuant to this paragraph (b)(1)(v)(B). 

The mechanism and timing of the 

transmission of such hail reports must 

be consistent with instructions provided 

by the Regional Administrator for any 

dockside/roving monitoring program 

required by paragraph (b)(1)(v)(B)(1) of 

this section, or specified in the annual 

sector operations plan, consistent with 

paragraphs (b)(5) and (b)(6) of this 

section. 

(5) Notification of service provider 

change. If for any reason a sector 

decides to change approved service 

providers used to provide dockside/ 

roving or at-sea or electronic monitoring 

services required in this paragraph 

(b)(1)(v), the sector manager must first 

inform NMFS in writing in advance of 

the effective date of the change in 

approved service providers in 

conjunction with the submission of the 

next weekly sector catch report 

specified in paragraph (b)(1)(vi)(B) of 

this section. A sector may employ more 

than one service provider at any time, 

provided any service provider employed 

by a sector meets the standards 

specified in paragraph (b)(4) of this 

section. 

* * * * * 

(viii) ACE transfers. All or a portion 

of a sector’s ACE for any NE 

multispecies stock may be transferred to 

another sector at any time during the 

fishing year and up to 2 weeks into the 

following fishing year (i.e., through May 

14), unless otherwise instructed by 

NMFS, to cover any overages during the 

previous fishing year. A sector is not 

required to transfer ACE to another 

sector. An ACE transfer only becomes 

effective upon approval by NMFS, as 

specified in paragraph (b)(1)(viii)(B) of 

this section. 

* * * * * 

(C) Duration of transfer. 

Notwithstanding ACE carried over into 

the next fishing year pursuant to 

paragraph (b)(1)(i)(C) of this section, 

ACE transferred pursuant to this 


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paragraph (b)(1)(viii) is only valid for 

the fishing year in which the transfer is 

approved, with the exception of ACE 

transfer requests that are submitted up 

to 2 weeks into the subsequent fishing 

year to address any potential ACE 

overages from the previous fishing year, 

as provided in paragraph (b)(1)(iii) of 

this section, unless otherwise instructed 

by NMFS. 

* * * * * 

(2) Operations plan and sector 

contract. To be approved to operate, 

each sector must submit an operations 

plan and preliminary sector contract to 

the Regional Administrator no later than 

September 1 prior to the fishing year in 

which the sector intends to begin 

operations, unless otherwise instructed 

by NMFS. A final roster, sector contract, 

and list of Federal and State permits 

held by participating vessels for each 

sector must be submitted by December 

1 prior to the fishing year in which the 

sector intends to begin operations, 

unless otherwise instructed by NMFS. 

The operations plan may cover a 1- or 

2-year period, provided the analysis 

required in paragraph (b)(3) of this 

section is sufficient to assess the 

impacts of sector operations during the 

2-year period and that sector 

membership, or any other parameter 

that may affect sector operations during 

the second year of the approved 

operations plan, does not differ to the 

point where the impacts analyzed by the 

supporting NEPA document are 

compromised. Each vessel and vessel 

operator and/or vessel owner 

participating in a sector must agree to 

and comply with all applicable 

requirements and conditions of the 

operations plan specified in this 

paragraph (b)(2) and the letter of 

authorization issued pursuant to 

paragraph (c)(2) of this section. It shall 

be unlawful to violate any such 

conditions and requirements unless 

such conditions or restrictions are 

identified in an approved operations 

plan as administrative only. If a 

proposed sector does not comply with 

the requirements of this paragraph 

(b)(2), NMFS may decline to propose for 

approval such sector operations plans, 

even if the Council has approved such 

sector. At least the following elements 

must be contained in either the final 

operations plan or sector contract 

submitted to NMFS: 

* * * * * 

(5) Dockside monitoring operational 

standards. In addition to the 

independent third-party monitoring 

provider standards specified in 

paragraph (b)(4) of this section, any 

dockside monitoring program developed 

by NMFS pursuant to paragraph 

(b)(1)(v)(B)(1) of this section must meet 

the following operational standards to 

be approved by NMFS: 

(ii) * * * 

(E) Inspection of fish holds. A 

dockside/roving monitor assigned to 

observe the offloading of fish from a 

particular trip shall inspect the fish 

holds, or any other areas of the vessel 

in which fish are stored, to determine if 

all fish are offloaded for that particular 

trip. 

* * * * * 

(c) * * * 

(2) * * * 

(i) Regulations that may not be 

exempted for sector participants. The 

Regional Administrator may not exempt 

participants in a sector from the 

following Federal fishing regulations: 

NE multispecies year-round closure 

areas; permitting restrictions (e.g., vessel 

upgrades, etc.); gear restrictions 

designed to minimize habitat impacts 

(e.g., roller gear restrictions, etc.); and 

reporting requirements. For the 

purposes of this paragraph (c)(2)(i), the 

DAS reporting requirements specified at 

§ 648.82; the SAP-specific reporting 

requirements specified at § 648.85; and 

the reporting requirements associated 

with a dockside monitoring program 

specified in paragraph (b)(5)(i) of this 

section are not considered reporting 

requirements, and the Regional 

Administrator may exempt sector 

participants from these requirements as 

part of the approval of yearly operations 

plans. This list may be modified 

through a framework adjustment, as 

specified in § 648.90. 

* * * * * 

(d) * * * 

(20) State of Maine Permit Banking 

Sector. 

(21) State of Rhode Island Permit 

Bank sector. 

(22) State of New Hampshire Permit 

Bank Sector. 

(23) State of Massachusetts Permit 

Bank Sector. 

(24) Sustainable Harvest Sector III. 

8. In § 648.88, revise paragraph (a)(1), 

and add paragraph (a)(2)(iv) to read as 

follows: 

§ 648.88 Multispecies open access permit 

restrictions. 

(a) * * * 

(1) The vessel may possess and land 

up to 75 lb (90.7 kg) of cod, and up to 

the landing and possession limit 

restrictions for other NE multispecies 

specified in § 648.86, provided the 

vessel complies with the restrictions 

specified in paragraph (a)(2) of this 

section. If either the GOM or GB cod trip 

limit applicable to a vessel fishing 

under a NE multispecies DAS permit, as 

specified in § 648.86(b)(1) and (2), 

respectively, is adjusted by NMFS, the 

cod trip limit specified in this paragraph 

(a)(1) shall be adjusted proportionally 

(rounded up to the nearest 25 lb (11.3 

kg)). For example, if the GOM cod trip 

limit specified at § 648.86(b)(1) doubled, 

then the cod trip limit for the Handgear 

B category fishing in the GOM 

Regulated Mesh Area would also double 

to 150 lb (68 kg). 

(2) * * * 

(iv) Declaration. To fish for GB cod 

south of the GOM Regulated Mesh Area, 

as defined at § 648.80(a)(1), a vessel 

owner or operator must obtain, and 

retain on board, a letter of authorization 

from the Regional Administrator 

declaring his or her intent to fish south 

of the GOM Regulated Mesh Area, and 

may not fish in any other area for a 

minimum of 7 consecutive days from 

the effective date of the letter of 

authorization. Such a vessel may transit 

the GOM Regulated Mesh Area, 

provided that their gear is stowed in 

accordance with the provisions at 

§ 648.23(b). 

* * * * * 

9. In § 648.89, revise paragraph (e)(1) 

to read as follows: 

§ 648.89 Recreational and charter/party 

vessel restrictions. 

* * * * * 

(e) * * * 

(1) GOM Closed Areas. Unless 

otherwise specified in this paragraph 

(e)(1) of this section, a vessel fishing 

under charter/party regulations may not 

fish in the GOM closed areas specified 

at § 648.81(d)(1) through (f)(1) during 

the time periods specified in those 

paragraphs, unless the vessel has on 

board a valid letter of authorization 

issued by the Regional Administrator 

pursuant to § 648.81(f)(2)(iii) and 

paragraph (e)(3) of this section. The 

conditions and restrictions of the letter 

of authorization must be complied with 

for a minimum of 3 months if the vessel 

fishes or intends to fish in the seasonal 

GOM closure areas; or for the rest of the 

fishing year, beginning with the start of 

the participation period of the letter of 

authorization, if the vessel fishes or 

intends to fish in the year-round GOM 

closure areas. A vessel fishing under 

charter/party regulations may not fish in 

the GOM Cod Spawning Protection Area 

specified at § 648.81(o)(1) during the 

time period specified in that paragraph, 

unless the vessel complies with the 

requirements specified at 

§ 648.81(o)(2)(iii). 

* * * * * 

10. In § 648.90, revise paragraph 

(a)(4)(iii)(E)(2) to read as follows: 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
11890 Federal Register / Vol. 76, No. 42 / Thursday, March 3, 2011 / Proposed Rules 

§ 648.90 NE multispecies assessment, 

framework procedures and specifications, 

and flexible area action system. 

(a) * * * 

(4) * * * 

(iii) * * * 

(E) * * * 

(2) Commercial allocation. The ABC/ 

ACL for regulated species or ocean pout 

stocks available to the commercial NE 

multispecies fishery, after consideration 

of the recreational allocation pursuant 

to paragraph (a)(4)(iii)(E)(1) of this 

section, shall be divided between 

sectors operating under an approved 

sector operations plan, as described at 

§ 648.87(c), and vessels operating under 

the provisions of the common pool, as 

defined in this part, based upon the 

cumulative PSCs of vessels/permits 

participating in sectors calculated 

pursuant to § 648.87(b)(1)(i)(E). Unless 

otherwise specified in paragraph (a)(5) 

of this section, regulated species or 

ocean pout catch by common pool and 

sector vessels shall be deducted from 

the sub-ACL/ACE allocated pursuant to 

this paragraph (a)(4)(iii)(E)(2) for the 

purposes of determining whether 

adjustments to common pool measures 

are necessary, pursuant to the common 

pool AMs specified in § 648.82(n), or 

whether sector ACE overages must be 

deducted, pursuant to § 648.87(b)(1)(iii). 

* * * * * 

[FR Doc. 2011–4395 Filed 2–28–11; 11:15 am] 

BILLING CODE 3510–22–P 


srobinson on DSKHWCL6B1PROD with PROPOSALS2