[Federal Register Volume 79, Number 240 (Monday, December 15, 2014)]
[Proposed Rules]
[Pages 74056-74058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29216]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

RIN 0648-BE50


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Region Standardized Bycatch Reporting Methodology Omnibus Amendment

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

ACTION: Notice of availability of proposed fishery management plan 
amendment; request for comments.

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SUMMARY: NMFS announces that the Mid-Atlantic and New England Fishery 
Management Councils have submitted an Omnibus Amendment to the Fishery 
Management Plans of the Northeastern U.S. to establish a Standardized 
Bycatch Reporting Methodology, incorporating a draft Environmental 
Assessment and preliminary Regulatory Impact Review, for review and 
approval by the Secretary of Commerce, and is requesting comments from 
the public. The Standardized Bycatch Reporting Methodology Omnibus 
Amendment would establish a standardized bycatch reporting methodology 
for all 13 Fishery Management Plans in the region, as

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required under the Magnuson-Stevens Fishery Conservation and Management 
Act. The proposed measures include: Bycatch reporting and monitoring 
mechanisms; analytical techniques and allocation of at-sea fisheries 
observers; a standardized bycatch reporting methodology performance 
standard; a review and reporting process; framework adjustment and 
annual specifications provisions; a prioritization process; and 
provisions for industry-funded observers and observer set-aside 
programs.

DATES: Comments must be received on or before February 13, 2015.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2014-0114, 
by any one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0114, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
    <bullet> Mail: John K. Bullard, Regional Administrator, NMFS, 
Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, 
Gloucester, MA 01930. Mark the outside of the envelope: ``Comments on 
SBRM Amendment.''
    Instructions: All comments received are part of the public record 
and will generally be posted to www.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. Attachments to electronic 
comments will be accepted via Microsoft Word, Microsoft Excel, 
WordPerfect, or Adobe PDF file formats only.
    Copies of the Standardized Bycatch Reporting Methodology (SBRM) 
Omnibus Amendment, and of the draft Environmental Assessment and 
preliminary Regulatory Impact Review (EA/RIR), are available from the 
Mid-Atlantic Fishery Management Council, 800 North State Street, Suite 
201, Dover, DE 19901; and from the New England Fishery Management 
Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The EA/RIR is 
also accessible via the Internet at: 
www.greateratlantic.fisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy Analyst, 
978-281-9341.

SUPPLEMENTARY INFORMATION: The Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act) requires that each Regional 
Fishery Management Council submit any Fishery Management Plan (FMP) 
amendment it prepares to NMFS for review and approval, disapproval, or 
partial approval. The Magnuson-Stevens Act also requires that NMFS, 
upon receiving an FMP amendment, immediately publish notification in 
the Federal Register that the amendment is available for public review 
and comment. If approved by NMFS, this amendment would establish a 
comprehensive SBRM that applies to all FMPs developed by the Mid-
Atlantic and New England Councils. The amendment would also effect an 
administrative change to the regulations on framework adjustments.

Background

    Section 303(a)(11) of the Magnuson-Stevens Act requires that all 
FMPs ``establish a standardized reporting methodology to assess the 
amount and type of bycatch occurring in the fishery.'' In 2004, several 
conservation organizations challenged the approval of two major FMP 
amendments in the Region. In ruling on these suits, the U.S. District 
Court for the District of Columbia found that the FMPs did not clearly 
establish a SBRM as required by the Magnuson-Stevens Act and remanded 
the amendments back to the agency to fully develop and establish the 
required SBRM. In particular, the Court found that the amendments: (1) 
Failed to fully evaluate reporting methodologies to assess bycatch; (2) 
did not mandate a SBRM; and (3) failed to respond to potentially 
important scientific evidence. In response, the Councils worked closely 
with NMFS to develop, adopt, and implement an omnibus FMP amendment 
that established a SBRM for all 13 FMPs in the region.
    The final rule to implement the SBRM Omnibus Amendment was 
published in the Federal Register on January 28, 2008 (73 FR 4736). 
Following implementation of the SBRM amendment, a conservation 
organization challenged the legality of the action (Oceana v. Locke). 
The U.S. District Court initially found in favor of the Government on 
all counts. However, that ruling was appealed by the plaintiffs, and in 
2011 the U.S. Court of Appeals issued an opinion that found fault with 
one element of the amendment--the prioritization process. The Court of 
Appeals ordered the amendment be vacated and remanded to the agency for 
further proceedings. The Court of Appeals' decision found that the 
prioritization process ``grants the Fisheries Service substantial 
discretion both to invoke and to make allocations according to a non-
standardized procedure,'' and, therefore, did not ``establish'' a 
standardized methodology as required under the Magnuson-Stevens Act. On 
December 29, 2011, NMFS published a rule in the Federal Register (76 FR 
81844) removing all regulations implemented by the January 28, 2008, 
SBRM final rule.
    The Councils, in coordination with NMFS, initiated a revised SBRM 
amendment to build upon the substantial work previously completed to 
develop the SBRM and to address the limited deficiencies identified by 
the Court. This amendment covers 13 FMPs, 40 managed species, and 14 
types of fishing gear. The purpose of the amendment is to: Explain the 
methods and processes by which bycatch is currently monitored and 
assessed for fisheries in the region; determine whether these methods 
and processes need to be modified and/or supplemented; establish 
standards of precision for bycatch estimation for these fisheries; and, 
thereby, document the SBRM established for all fisheries managed 
through the FMPs of the Northeastern U.S. The amendment also addresses 
the Appellate Court's concern over NMFS's ``substantial discretion both 
to invoke and to make allocations according to a non-standardized 
procedure'' cited in the Oceana v. Locke decision.
    The Omnibus SBRM Amendment would establish an SBRM comprised of 
seven elements: (1) The methods by which data and information on 
discards are collected and obtained; (2) the methods by which the data 
obtained through the mechanisms identified in element 1 are analyzed 
and utilized to determine the appropriate allocation of at-sea 
observers; (3) a performance measure by which the effectiveness of the 
SBRM can be measured, tracked, and utilized to effectively allocate the 
appropriate number of observer sea days; (4) a process to provide the 
Councils with periodic reports on discards occurring in fisheries they 
manage and on the effectiveness of the SBRM; (5) a measure to enable 
the Councils to make changes to the SBRM through framework adjustments 
and/or annual specification packages rather than full FMP amendments; 
(6) a non-discretionary method to determine the available funding for 
at-sea observers and a formulaic process for prioritizing at-sea 
observer coverage allocations to match available funding; and (7) to

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implement consistent, cross-cutting observer service provider approval 
and certification procedures and to enable the Councils to implement 
either a requirement for industry-funded observers or an observer set-
aside program through a framework adjustment rather than an FMP 
amendment.
    We are soliciting public comments on the SBRM Omnibus Amendment and 
its incorporated documents through the end of the comment period stated 
in this notice of availability. A proposed rule that would implement 
the revised SBRM Omnibus Amendment will be published in the Federal 
Register for additional public comment, following NMFS's evaluation of 
the proposed rule under the procedures of the Magnuson-Stevens Act. 
Public comments on the proposed rule must be received by the end of the 
comment period provided in this notice of availability of the SBRM 
Amendment to be considered in the approval/disapproval decision on the 
amendment. All comments received by February 13, 2015, whether 
specifically directed to the SBRM Amendment or the proposed rule will 
be considered in the approval/disapproval decision on the amendment. To 
be considered, comments must be received by close of business on the 
last day of the comment period. Comments received after that date will 
not be considered in the decision to approve or disapprove the revised 
SBRM Omnibus Amendment, including those postmarked or otherwise 
transmitted by the last day of the comment period.

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

    Dated: December 9, 2014.
Emily H. Menashes,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 2014-29216 Filed 12-12-14; 8:45 am]
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