        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 151005920-5999-01]
        RIN 0648-BF39
        Fisheries Off West Coast States; Pacific Coast Groundfish Fishery Management Plan; Trawl Rationalization Program; Flow Scale Requirements

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          This proposed rule would revise scale requirements for processing vessels that are required to weigh fish at sea, i.e. mothership and catcher/processor vessels, and Shorebased Individual Fishery Quota Program (IFQ) first receivers. For motherships and catcher/processors that weigh fish at sea, the proposed action would require the use of updated scale technology, require enhanced daily scale testing for flow scales (also known as belt scales), and require the use of video to monitor the flow scale and the area around the flow scale. For Shorebased IFQ first receivers, the proposed action would add criteria for inseason flow scale tests. In addition, the action includes housekeeping changes that are intended to better align the regulations with defined terms, and to provide clarity and consistency between paragraphs. Action is needed to provide precise and accurate catch estimates and to reduce the likelihood that vessels will under report harvests.

          DATES:
          Comments on this proposed rule must be received by February 18, 2016.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2015-0150, by any of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0150, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: William W. Stelle, Jr., Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; Attn: Becky Renko.

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

          Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to William W. Stelle Jr., Regional Administrator, West Coast Region NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070 and to OMB by email to OIRA_Submission@omb.eop.gov or fax to (202) 395-7285.

        SUPPLEMENTARY INFORMATION:

        Motherships and Catcher/Processors
        An at-sea scale program was developed for the Alaska groundfish fishery in 1998 to provide catch accounting that was more precise and verifiable at the individual haul level and less dependent on estimates generated by at-sea observers (February 4, 1998; 63 FR 5836). The at-sea scale program supported implementation of a large-scale quota share program that required verifiable and defensible estimates of harvest. Since implemenation of those weighing requirements in 1998, at-sea scales have been used to provide reliable, precise and accurate estimates of catch in the Alaskan groundfish fisheries. At the same time, scale technology has evolved and NMFS has developed greater expertise in monitoring processing activity.
        Recent fraud on some vessels was found to have resulted in systematic underestimates of scale weights used for catch accounting. As a result, at-sea flow scale regulations for the Alaska Region at 50 CFR 679.28 were revised on December 18, 2014 (November 18, 2014; 79 FR 68610) to improve scale accuracy and reduce bias. Revisions to the Alaska regulations included a suite of modifications to the at-sea scales program that included the use of flow scales capable of logging and printing the frequency and magnitude of scale calibrations relative to previous calibrations as well as the time and date of each scale fault (or error) and scale startup time; revised daily scale test methods; and new requirements for video monitoring.

        In 2011, a trawl rationalization program was implemented for the Pacific Coast groundfish fishery which included scale requirements specified in regulation at § 660.15(b) (December 15, 2010; 75 FR 78344). These regulations require mothership and catcher/processor vessels to use scales certified for the Alaska groundfish fisheries. Modifying the Pacific Coast groundfish fishery regulations to be consistent with the Alaska Region's 2014 regulation updates would bring the regulations up to date with current technology, reduce the potential for scale tampering, and improve catch accounting accuracy. Catch estimates based on inaccurate scale weights could systematically underestimate harvests. Given the importance of using accurate and reliable catch accounting data for management of the groundfish stocks, NMFS is proposing revisions consistent with the revisions made for the Alaska groundfish fishery and with the intent of enforcement and monitoring provisions implemented under Amendment 20 to the Pacific Coast groundfish fishery management plan (FMP).
        This proposed rule would update the requirements for scales consistent with the Alaska regulations at § 679.28. Improved scale technology includes features that allow NMFS to determine how well the flow scales are performing, and improve the accuracy and reliability of flow scale measurements. Because the mothership and catcher/processor vessels already have upgraded scale systems for the Alaska Fisheries, and the scales are certified through annual testing provided by the Alaska Region, aligning the performance and technical requirements is reasonable and not expected to result in added costs to the vessels.

        Regulatory revisions would include improvements to daily scale tests. The types of material used for the daily scale test would be limited to test materials (i.e., pre-weighed sand bags) supplied by the scale manufacturer or approved by a NMFS-authorized scale inspector. The minimum amount of weight for each test and the number of runs would be clearly stated in regulations. In addition, new requirements for documenting failed scale tests, and printing audit and calibration reports would be specified.

        Regulatory revisions would require that all mothership and catcher/processors vessels use video monitoring systems that meet the Alaska fishery system requirements, specified at § 679.28(e), when they are fishing in the Pacific Coast groundfish fishery. The video monitoring systems allow the activities around the flow scale to be monitored to ensure that the flow scale is functioning properly (e.g., that the flow scale is not running while in a fault (error) state); ensure that all fish are being weighed; detect when crew members are working on the flow scale; and ensure that daily flow scale tests are being conducted on the required schedule and with the appropriate test weights. The video systems would be required to capture imagery of areas where the catch enters, moves across and leaves the scale; of any access points that may be adjusted or modified by crew; and of the scale display and the indicator of when the scale is operating in a fault state. Consistent with the Alaska requirements, the vessel operator would be required to maintain the video imagery for at least 120 days and make the imagery available to NMFS upon request. All of the vessels subject to at-sea scales requirements are already required to have video systems for the Alaska fisheries. Therefore, the increased burden to the processing vessels would primarily be the time to operate the systems while fishing in the Pacific whiting fishery.
        IFQ First Receivers
        Regulations at § 660.15(c) define the performance and technical requirements for scales used to weigh fish at Shorebased IFQ first receivers. Since the Shorebased IFQ program was implemented in 2011, some Shorebased IFQ first recievers located in Oregon and Washington have installed flow scales. The states of Oregon and Washington test the flow scales consistent with national weights and measures standards. This action would revise regulations to include performance and technical requirements for flow scales used at IFQ first receivers. In addition, several minor technical changes would be made. The regulatory changes for first receivers would include revisions to inseason scale test requirements specific to flow scales; adding catch monitors to the list of individuals that have access to scale displays and printouts; revisions to inseason scale test requirements specific to flow scales; and the correction of a value for maximum error in scale divisions.
        Housekeeping
        Numerous minor changes would be made throughout the regulations at 50 CFR 660.15, 660.113, 660.150 and 660.160 for clarity, to better align different sections of the regulations, to update cross references, and for consistency in the use of terms. Paragraph 660.15(a) is revised to remove reporting requirements that are repeated in other more appropriate sections of the regulations. Regulatory language originally adopted from the Alaska Groundfish fisheries is not consistent with language used for the Pacific Coast groundfish fishery; therefore, minor revisions are made to paragraph § 660.15(b) for clarity and to be consistent with other sections of the Pacific Coast groundfish regulations. Minor changes are made at § 660.15(c) to revise terms for consistent use throughout the regulations. Minor changes are made at § 660.113 to revise terms for consistent use throughout the regulations and update cross references. Minor changes are made §§ 660.150(b) and 660.160(b) to revise terms for consistent use throughout the regulations, and update cross references, to add missing references for cease fishing reports and to add clarity to the vessel responsibilities relative to observer platform scale.
        Classification
        NMFS has made a preliminary determination that the proposed action is consistent with FMP, the Magnuson Stevens Conservation and Management Act, and other applicable laws. In making its final determination, NMFS will take into account the complete record, including the data, views, and comments received during the comment period.
        The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.
        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
        The SBA has established size criteria for all major industry sectors in the United States, including fish harvesting and fish processing businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual receipts not in excess of $20.5 million for all its affiliated operations worldwide. For commercial shellfish harvesters, the other qualifiers apply and the receipts threshold is $5.5 million. For other marine fishing, a small business is one with annual receipts not in excess of $7.5 million. For purposes of rulemaking, NMFS is applying the $20.5 million standard to catcher/processors because they are involved in the commercial harvest of finfish. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full time, part time, temporary, or other basis, at all its affiliated operations worldwide.
        The mothership and catcher/processor vessels affected by the proposed action have gross revenues that exceed $20.5 million and thus are not considered to be small entities.

        IFQ first receivers receive, purchase, or take custody, control, or possession of fish onshore directly from IFQ vessels. In 2012, a total of 26 companies accepted IFQ fish as first receivers: nine accepted Pacific whiting, 25 accepted fish from the IFQ non-whiting trawl, and 19 accepted fish from the non-trawl IFQ. Sixteen of the 26 IFQ first receivers are independently owned and operated, not dominant in their field of operation, and employ 500 or fewer persons on a full time, part time, temporary, or other basis, at all affiliated operations worldwide, and are considered small businesses under the SBA guidelines. First receiver earnings are comprised of fish sales, offloading revenue, custom processing revenue, and revenue from leasing or selling quota.
        Although the inclusion of inseason flow scale testing criteria affects all first receivers, it is unlikely that smaller non-whiting first receivers will have the need to install flow scales. To date, flow scales have been used by Pacific whiting first receivers to weigh large volumes of unsorted fish. The only groundfish fishery allowed to land large volumes of unsorted fish is the Pacific whiting fishery. Two of the nine first receivers who accept and purchase Pacific whiting would be considered small according to the SBA guidelines. Some of the Pacific whiting first receivers share ownership of vessels and some companies own multiple first receiver facilities. In addition to Pacific whiting, the Pacific whiting first receivers process other Pacific Coast species including: Pink shrimp, non-whiting groundfish, crab, and coastal pelagic species.
        Current regulations require IFQ first receivers to use scales that are tested for accuracy and approved for use by the state where the scale is located. During the fishing season NMFS staff, NMFS-authorized personnel, and authorized officers conduct accuracy tests on scales used to weigh IFQ fish. Inseason test criteria are needed to determine if the scales are functioning accurately between state testings. A scale that does not pass an inseason test may not be used to weigh IFQ catch fish until the scale passes an inseason test or is approved for continued use by the weights and measures authorities of the State in which the scale is located. Since the start of the Shorebased IFQ Program in 2011, three of the nine Pacific Whiting IFQ first receivers have installed flow scales. Two of the three Pacific whiting IFQ first receivers that have installed flow scales are considered small businesses.
        The testing criteria defined by this action for flow scales are consistent with the National Institute of Standards and Technology and the criteria used by the states. Because state laws already require commercial scales to meet accuracy standards set out by the National Institute of Standards and Technology, the cost of inseason testing to ensuring compliance between state testings is expected to be minimal. The proposed action is not expected to result in a significant economic effect on a substantial number of small entities. Establishing inseason scale test criteria for this new type of scale would result in inseason scale test requirements that are more equitable between all first receivers. The proposed action is primarily administrative in bringing the regulations up to date with current practices. An initial regulatory flexibility analysis is not required and none has been prepared because this proposed rule would not have a significant economic impact on a substantial number of small entities.
        This proposed rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval as revisions to OMB collection 0648-0619. The public reporting burden for the at-sea scale requirements, including daily test reports (30 minute per response), daily catch and cumulative weight reports (10 min per response), the audit trail (1 minute per response), calibration log (1 minute per response), fault log (1 minute per response) and video monitoring (0 minute per response), is estimated to average 43 minutes per response.

        Public comment is sought regarding whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to West Coast Region at the ADDRESSES above, and by email 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 660
          Fisheries, Fishing, and Indian fisheries.

          Dated: January 8, 2016.
          Samuel D. Rauch III,
          Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:

          PART 660—FISHERIES OFF WEST COAST STATES

        1. The authority citation for part 660 continues to read as follows:

          Authority:
           16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.

        2. In § 660.15, revise paragraphs (a), (b), (c), and add paragraph (e) to read as follows:

          § 660.15
          Equipment requirements.
          (a) Applicability. This section contains the equipment and operational requirements for scales used to weigh fish at sea, scales used to weigh fish at IFQ first receivers, video monitoring systems, computer hardware for electronic fish ticket software, and computer hardware for electronic logbook software.
          (b) Scales used to weigh fish at sea. Vessel owners, operators, and managers are jointly and severally responsible for their vessel's compliance with the requirements specified in this section.
          (1) Performance and technical requirements for scales in the MS and C/P Coop Programs. A scale used to weigh fish in the MS and C/P Coop Programs must meet the type evaluation, initial inspection, and annual reinspection requirements set forth in 50 CFR 679.28(b)(1) and (2), and must be approved by NMFS to weigh fish at sea.
          (2) Annual inspection. Once a scale is installed on a vessel and approved by NMFS for use to weigh fish at sea, it must be reinspected annually within 12 months of the date of the most recent inspection to determine if the scale meets all of the applicable performance and technical requirements as described in 50 CFR 679.28(b).
          (3) Daily testing. Each scale used to weigh fish must be tested at least once each calendar day to ensure that each scale meets the maximum permissible error requirements described at paragraph (b)(4) of this section.
          (4) Daily at-sea scale tests. To verify that the scale meets the maximum permissible errors specified in this paragraph, each scale used to weigh fish must be tested at least one time during each calendar day when use of the scale is required. The tests must be performed in an accurate and timely manner.
          (i) Flow or Belt scales.

          (A) Maximum permissible errors. The maximum permissible errors for the daily at-sea scale test is plus or minus 3 percent of the known weight of the test material.
          (B) Test Procedure. A test must be conducted by weighing no less than 400 kg (882 lb) of test material, supplied by the scale manufacturer or approved by a NMFS-authorized scale inspector, on the scale under test. The test material may be run across the scale multiple times in order to total 400 kg; however, no single run of test material across the scale may weigh less than 40 kg (88.2 lb). The known weight of test material must be determined at the time of each scale test by weighing it on a platform scale approved for use under 50 CFR 679.28(b)(7).
          (ii) Platform scales required for observer sampling or to determine known weight of test material on mothership and catcher/processor vessels.

          (A) Maximum permissible errors. The maximum permissible errors for the daily at-sea scale test for platform scales is plus or minus 0.5 percent of the weight tested.
          (B) Test Procedure. A platform scale used for observer sampling must be tested at 10, 25, and 50 kg (or 20, 50, and 100 lb if the scale is denominated in pounds) using approved test weights. Any combination of test weights that will allow the scale to be tested at 10 kg, 25 kg, and 50 kg may be used. A platform scale used to weigh fish must be tested at a weight equal to the largest amount of fish that will be weighed on the scale in one weighing.
          (C) Approved test weights. Each test weight must have its weight stamped on or otherwise permanently affixed to it. The weight of each test weight must be annually certified by a National Institute of Standards and Technology-approved metrology laboratory or approved for continued use by the NMFS authorized inspector at the time of the annual scale inspection.
          (iii) Requirements for all at-sea scale tests. The following conditions must be met:
          (A) Notify the observer at least 15 minutes before the time that the test will be conducted, and conduct the test while the observer is present.
          (B) Conduct the scale test by placing the test material or test weights on or across the scale and recording the following information on the at-sea scale test report form:
          (1) Vessel name;
          (2) Month, day, and year of test;
          (3) Time test started to the nearest minute in local time;
          (4) Known weight of test materials or test weights;
          (5) Weight of test material or test weights recorded by scale;
          (6) Percent error as determined by subtracting the known weight of the test material or test weights from the weight recorded on the scale, dividing that amount by the known weight of the test material or test weights, and multiplying by 100; and
          (7) Signature of operator.
          (C) Maintain the scale test report form from all at-sea scale tests, including test report forms from failed scale tests on board the vessel until the end of the fishing year during which the tests were conducted, and make the report forms available to observers, NMFS staff, or authorized officers. In addition, the scale test report forms must be retained for 3 years after the end of the fishing year during which the tests were performed. Each scale test report form must be signed by the operator immediately following completion of each scale test.
          (5) Scale maintenance. The scale must be maintained in proper operating condition throughout its use; adjustments made to the scale must be made to bring the performance errors as close as practicable to a zero value; and no adjustment may be made that will cause the scale to weigh fish inaccurately.
          (6) Printed reports from the scale (not applicable to observer sampling scales). Printed reports are provided to NMFS as required by this paragraph. Printed reports from the scale must be maintained on board the vessel until the end of the year during which the reports were made, and made available to observers, NMFS staff or authorized officers. In addition, printed reports must be retained for 3 years after the end of the year during which the printouts were made.
          (i) Printed reports of catch weight and cumulative weight. Reports must be printed at least once every calendar day when use of the scale is required. Reports must also be printed before any information stored in the scale computer memory is replaced. Scale weights must not be adjusted by the scale operator to account for the perceived weight of water, slime, mud, debris, or other materials. Scale printouts must show:
          (A) The vessel name and Federal vessel permit number;
          (B) The date and time the information was printed;
          (C) The haul number;
          (D) The total weight of the haul; and
          (E) The total cumulative weight of all fish and other material weighed on the scale since the last annual inspection.
          (ii) Printed report from the audit trail. The printed report must include the information specified in sections 2.3.1.8, 3.3.1.7, and 4.3.1.8 of appendix A to 50 CFR part 679. The printed report must be provided to the authorized scale inspector at each scale inspection and must also be printed at any time upon request of the observer, NMFS personnel or an authorized officer.
          (iii) Printed report from calibration log. The operator must print the calibration log on request by NMFS staff or an authorized officer, or person authorized by NMFS. The calibration log must be printed and retained before any information stored in the scale computer memory is replaced. The calibration log must detail either the prior 1,000 calibrations or all calibrations since the scale electronics were first put into service, whichever is less. The printout from the calibration log must show:
          (A) The vessel name and Federal fisheries or processor permit number;
          (B) The month, day, and year of the calibration;
          (C) The time of the calibration to the nearest minute in local time;
          (D) The weight used to calibrate the scale; and
          (E) The magnitude of the calibration in comparison to the prior calibration.
          (iv) Printed reports from the fault log. The operator must print the fault log on request by NMFS staff, an authorized officer or person authorized by NMFS. The fault log must be printed and retained before any information stored in the scale computer memory is replaced. The fault log must detail either the prior 1,000 faults and startups, or all faults and startups since the scale electronics were first put into service, whichever is less. A fault, for the purposes of the fault log, is any condition other than underflow detected by the scale electronics that could affect the metrological accuracy of the scale. The printout from the fault log must show:
          (A) The vessel name and Federal fisheries or processor permit number;
          (B) The month, day, year, and time of each startup to the nearest minute in local time;
          (C) The month, day, year, and time that each fault began to the nearest minute in local time; and
          (D) The month, day, year, and time that each fault was resolved to the nearest minute in local time.
          (v) Platform scales used for observer sampling. A platform scale used for observer sampling is not required to produce a printed record.
          (7) Video monitoring for scales used by the vessel crew to weigh catch. Mothership or Catcher/Processor vessels required to weigh fish under the regulations in this section must provide and maintain a NMFS-approved video monitoring system as specified in paragraph (e) of this section.
          (c) Scales used to weigh fish at IFQ first receivers—performance and technical requirements. Scale requirements in this paragraph are in addition to those requirements set forth by the State in which the scale is located, and nothing in this paragraph may be construed to reduce or supersede the authority of the State to regulate, test, or approve scales within the State. Scales used to weigh fish that are also required to be approved by the State must meet the following requirements:
          (1) Verification of approval. The scale must display a valid sticker indicating that the scale is currently approved in accordance with the laws of the state where the scale is located.
          (2) Visibility. The IFQ first receiver must ensure that the scale and scale display are visible simultaneously to the catch monitor. Catch monitors, NMFS staff, NMFS-authorized personnel, or authorized officers must be allowed to observe the weighing of fish on the scale and be allowed to read the scale display at all times.
          (3) Printed scale weights.

          (i) An IFQ first receiver must ensure that printouts of the scale weight of each delivery or offload are made available to the catch monitor, NMFS staff, to NMFS-authorized personnel, or to authorized officers at the time printouts are generated. An IFQ first receiver must maintain printouts on site until the end of the fishing year during which the printouts were made and make them available upon request by the catch monitor, NMFS staff, NMFS-authorized personnel, or authorized officers for 3 years after the end of the fishing year during which the printout was made.
          (ii) All scales identified in a catch monitoring plan (see § 660.140(f)(3)) must produce a printed record for each landing, or portion of a landing, weighed on that scale. NMFS may exempt, through approval of the NMFS-accepted catch monitoring plan, scales not designed for automatic bulk weighing from part or all of the printed record requirements. IFQ first receivers that receive no more than 200,000 pounds of groundfish in any calendar month may be exempt under § 660.140(j)(2). For scales that must produce a printed record, the printed record must include:
          (A) The IFQ first receiver's name;
          (B) The weight of each load in the weighing cycle;
          (C) The total weight of fish in each landing, or portion of the landing that was weighed on that scale;
          (D) For belt scales and weight belts, the total cumulative weight of all fish or other material weighed on the scale since the last inspection;
          (E) The date the information is printed; and
          (F) The name and vessel registration or documentation number of the vessel making the landing. The person operating the scale may write this information on the scale printout in ink at the time of printing.
          (4) Inseason scale testing. IFQ first receivers must allow, and provide reasonable assistance to NMFS staff, NMFS-authorized personnel, and authorized officers to test scales used to weigh IFQ fish. A scale that does not pass an inseason test may not be used to weigh IFQ fish until the scale passes an inseason test or is approved for continued use by the weights and measures authorities of the State in which the scale is located.
          (i) Inseason testing criteria. To pass an inseason test, NMFS staff or authorized officers must be able to verify that:
          (A) The scale display and printed information are clear and easily read under all conditions of normal operation;
          (B) Weight values are visible on the display until the value is printed;
          (C) The scale does not exceed the maximum permissible errors specified in this paragraph:
          (1) Flow scales (also known as belt scales and weight belts). The maximum permissible error is plus or minus 0.25 percent of the known weight of the test material with repeatability between tests of no more than 0.25 percent. Percent error is determined by subtracting the known weight of the test material or test weights from the weight recorded on the scale, dividing that amount by the known weight of the test material or test weights, and multiplying by 100.
          (2) All other scales.

              Test load in scale divisions
              Maximum error in scale divisions

              (i) 0-500
              1

              (ii) 501-2,000
              2

              (iii) 2,001-4,000
              3

              (iv) >4,000
              5

          (D) Automatic weighing systems. An automatic weighing system must be provided and operational that will prevent fish from passing over the scale or entering any weighing hopper unless the following criteria are met:
          (1) No catch may enter or leave a weighing hopper until the weighing cycle is complete;
          (2) No product may be cycled and weighed if the weight recording element is not operational; and
          (3) No product may enter a weighing hopper until the prior weighing cycle has been completed and the scale indicator has returned to a zero.
          (ii) [Reserved]

          (e) Video monitoring systems used monitor at-sea scales.

          (1) Performance and technical requirements for video monitoring systems for the MS and C/P Coop Programs. A video monitoring system used to monitor at-sea scales must meet the system requirements and system inspections, set forth in 50 CFR 679.28(e)(1) through (4) and be issued a Video Monitoring Inspection Report verifying that the video system meets all applicable requirements for use in the Alaska Pollock fishery. Any change to the system must meet the requirements specified at 50 CFR 679.28(e)(7) and be approved by the Alaska Regional Administrator in writing before any changes are made.
          (i) MS or C/P vessels required to weigh fish at sea under the regulations in this section must:
          (A) Provide and maintain a video monitoring system that provides sufficient resolution and field of view to monitor: All areas where catch enters the scale, moves across the scale and leaves the scale; any access point to the scale from which the scale may be adjusted or modified by vessel crew while the vessel is at sea; and the scale display and the indicator for the scale operating in a fault state.
          (B) Record and retain video for all periods when catch that must be weighed is on board the vessel.
          (ii) [Reserved]
          (2) Video Monitoring System Inspection Report. A current NMFS-issued Video Monitoring System Inspection Report must be maintained on board the vessel at all times the vessel is required to have an approved video monitoring system. The Video Monitoring System Inspection Report must be made available to the observer, NMFS staff, or to an authorized officer upon request.
          (3) Retention of records. Consistent with the requirements set forth at 50 CFR 679.28(e)(1), the video data must be maintained on the vessel and made available on request by NMFS staff, or any individual authorized by NMFS. The data must be retained on board the vessel for no less than 120 days after the date the video is recorded, unless NMFS has notified the operator in writing that the video data may be retained for less than this 120-day period.

        3. In § 660.112, add paragraphs (c)(5) and (c)(6) to read as follows:

          § 660.112
          Trawl fishery—prohibitions.

          (c)  * * *
          (5) Fail to weigh all fish taken and retained aboard the vessel on a scale that meets the performance and technical requirements specified at § 660.15(b).
          (6) Weigh fish taken and retained aboard the vessel without operating and maintaining a video monitoring system that meets the performance and technical requirements specified at § 660.15(e).

        4. In § 660.113, revise paragraphs (c)(2) and (d)(2) to read as follows:

          § 660.113
          Trawl fishery—recordkeeping and reporting.

          (c) * * *
          (2) NMFS-approved scale.

          (i) Scale test report form. Mothership vessel operators are responsible for conducting scale tests and for recording the scale test information on the scale test report form as specified at § 660.15(b), for mothership vessels.
          (ii) Printed scale reports. Requirements pertaining to printed scale reports and scale weight printouts are specified at § 660.15(b), for mothership vessels.
          (iii) Retention of scale records and reports. Vessels must maintain scale test report forms on board until the end of the fishing year during which the tests were conducted, and make the report forms available to observers, NMFS staff, or authorized officers. In addition, the scale test report forms must be maintained for 3 years after the end of the fishing year during which the tests were performed. All scale test report forms must be signed by the operator.

          (d) * * *

          (2) NMFS-approved scales.

          (i) Scale test report form. Catcher/processor vessel operators are responsible for conducting scale tests and for recording the scale test information on the scale test report form as specified at § 660.15(b), for catcher/processor vessels.
          (ii) Printed scale reports. Specific requirements pertaining to printed scale reports and scale weight printouts are specified at § 660.15(b), for catcher/processor vessels.
          (iii) Retention of scale records and reports. The vessel must maintain the scale test report form on board until the end of the fishing year during which the tests were conducted, and make the report forms available to observers, NMFS staff, or authorized officers. In addition, the scale test report forms must be maintained for 3 years after the end of the fishing year during which the tests were performed. All scale test report forms must be signed by the operator.

        5. In § 660.150, revise paragraphs (b)(1)(ii) introductory text, (b)(1)(ii)(A) and (C) to read as follows:

          § 660.150
          Mothership (MS) Coop Program.

          (b) * * *
          (1)  * * *
          (ii) Mothership vessel responsibilities. The owner and operator of a mothership vessel must:
          (A) Recordkeeping and reporting. Maintain a valid declaration as specified at § 660.13(d); maintain records as specified at § 660.113(a); and maintain and submit all records and reports specified at § 660.113(c) including, economic data, scale tests records, cease fishing reports, and cost recovery.

          (C) Catch weighing requirements. The owner and operator of a mothership vessel must:
          (1) Ensure that all catch is weighed in its round form on a NMFS-approved scale that meets the requirements described in section § 660.15(b);
          (2) Provide a NMFS-approved platform scale, belt scale, and test weights that meet the requirements described in section § 660.15(b).

        6. In § 660.160, revise paragraphs (b)(1)(ii)(A) and (C) to read as follows:

          § 660.160
          Catcher/processor (C/P) Coop Program.

          (b) * * *
          (1) * * *
          (ii) Catcher/processor vessel responsibilities. The owner and operator of a catcher/processor vessel must:
          (A) Recordkeeping and reporting. Maintain a valid declaration as specified at § 660.13(d); maintain records as specified at § 660.113(a); and maintain and submit all records and reports specified at § 660.113(d) including, economic data, scale tests records, cease fishing reports, and cost recovery.

          (C) Catch weighing requirements. The owner and operator of a catcher/processor vessel must:
          (1) Ensure that all catch is weighed in its round form on a NMFS-approved scale that meets the requirements described in § 660.15(b);
          (2) Provide a NMFS-approved platform scale, belt scale, and test weights that meet the requirements described in § 660.15(b).

      [FR Doc. 2016-00585 Filed 1-15-16; 8:45 am]
       BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No 040122024-4024-01;  I.D. 010904A]
        RIN 0648-AR75
        Fisheries of the Northeastern United States; Tilefish Fishery

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          NMFS proposes to reinstate the permit requirements for commercial tilefish vessels specified under 50 CFR 648.4(a)(12).  These permit requirements were set aside in a recent Federal Court Order (Court Order) in Hadaja v. Evans (May 15, 2003) on the grounds that the limited access program contained in the Tilefish Fishery Management Plan (FMP) violated National Standard 2 of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).  NMFS is proposing to reinstate these permit requirements based on additional information provided by the Mid-Atlantic Fishery Management Council (Council) that supports the limited access permit criteria contained in the FMP.  This action will enable NMFS to manage the tilefish fishery in accordance with the provisions of the Magnuson-Stevens Act by helping end overfishing, and ensuring that the stock rebuilding objective of the FMP is achieved.

          DATES:
          Comments must be received on or before March 12, 2004.

          ADDRESSES:

          Comments on the proposed rule should be sent to Patricia A. Kurkul, Regional Administrator (RA), Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA  01930-2298.  Mark the outside of the envelope “Comments on Tilefish Action.”  Comments may also be submitted via facsimile (fax) to (978) 281-9135.  Comments may also be submitted via e-mail to the following address: tilefish75@noaa.gov.
          Copies of the Regulatory Impact Review (RIR) and Initial Regulatory Flexibility Analysis (IRFA) prepared for this action are available upon request from the RA at the above address.  Copies of the Final Environmental Impact Statement (FEIS) prepared for the FMP may be obtained by contacting Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115 Federal Building, 300 South New Street, Dover, DE 19904.  The FEIS, which was completed in 2001, contained a complete analysis of the impacts of the permit requirements contained in the FMP.  Because nothing has changed since the FEIS was completed that would affect that determination, further analysis under the National Environmental Policy Act (NEPA) is unnecessary.

          FOR FURTHER INFORMATION CONTACT:

          Allison Ferreira, Fishery Policy Analyst, (978) 281-9103, fax (978) 281-9135, e-mail Allison.Ferreira@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Background
        The tilefish fishery is managed by the Council under the FMP.  The FMP was approved by the Secretary of Commerce (Secretary) on May 10, 2001, and became effective on November 1, 2001 (66 FR 49136; September 26, 2001).  The Tilefish Management Unit is all golden tilefish under U.S. jurisdiction in the Atlantic Ocean north of the Virginia/North Carolina border.  The primary objective of the FMP is to eliminate overfishing and rebuild the tilefish stock through the implementation of a stock rebuilding program.  Measures in the FMP established to achieve this objective include a limited entry program; a tiered commercial quota, based on the limited entry program; permit and reporting requirements for commercial vessels, operators, and dealers; a prohibition on the use of gear other than longline gear by limited access tilefish vessels; and an annual specification and framework adjustment process.

        The stock rebuilding schedule established by the FMP consists of a constant harvest strategy under which the TAL is set at 1.995 million lb (905,000 kg) each year for the entire 10-year rebuilding schedule.  The objective of the tilefish rebuilding schedule is to reduce the fishing mortality rate (F) from its 1998 level of F=0.45, to F=0.29 in the first year of the FMP, and gradually down to F=0.11 in the tenth year of the FMP.  These measures are designed to provide at least a 50-percent probability of achieving biomass at maximum sustainable yield (Bmsy) by October 31, 2011.  The annual TAL is apportioned as follows.  First, a total allowable catch (TAC) of up to 3 percent of the TAL may be set aside for the purpose of funding tilefish research.  Following any reduction due to the establishment of a research TAC, the TAL is reduced by 5 percent to account for incidental catch.  Finally, the remaining TAL is divided among three limited access permit categories as follows:  Full-time tier 1, 66 percent; Full-time tier 2, 15 percent; and Part-time, 19 percent.

        A Federal Court Order in Hadaja v. Evans set aside the regulations pertaining to the permit requirements for commercial tilefish vessels specified under § 648.4(a)(12).  In its order, the Court concluded that the tilefish limited access program violated National Standard 2 of the Magnuson-Stevens Act 16 U.S.C. 1801 et seq.) because it was not based on the best scientific information available.  The Court held that the Secretary must adopt a plan that is based on the best scientific information available, which may be the existing plan, but only if the evidence in the administrative record (record) clearly supports it.
        Because the Court held that NMFS's tilefish limited access program was inconsistent with National Standard 2, its decision to set aside the permit requirements has a substantial impact on the other regulations implementing the FMP since the trigger for many of these regulations implementing the FMP is the issuance a valid limited access or incidental tilefish permit.  As a result, in addition to the vessel permit requirements, the vessel operator permit requirements under § 648.5(a), the vessel reporting requirements under § 648.7(b)(2)(ii), the observer coverage regulations under § 648.11(a), and the incidental catch limit under § 648.292 are no longer in effect.  As a result, the ability of NMFS to manage the tilefish fishery in accordance with the Magnuson-Stevens Act has been impacted.
        The proposed action would reinstate the vessel permitting requirements of the FMP, specified under § 648.4(a)(12), that were set aside by the Court based upon a supplemental administrative record developed in conjunction with the Council to support the limited access permit criteria established in the FMP.  The purpose of this action is to help end overfishing, and ensure that the stock rebuilding objective of the FMP is achieved.  Because the regulatory text for the tilefish permitting requirements was never formally removed by NMFS, this proposed rule does not contain any new regulatory language.
        The Court Order also set aside the regulations prohibiting the use of all gear other than longline gear for limited access tilefish vessels specified under § 648.294.  Due to a lack of information to support reinstating the ban on the use of trawl gear in the directed tilefish fishery, the Tilefish Committee (Committee), Tilefish Technical Team (Technical Team), and Tilefish Industry Advisors (Industry Advisors) recommended not to address the trawl gear issue in this action at a September 18, 2003, meeting held to discuss the development of a supplemental administrative record.  Thus, this action would remove the prohibition on the use of gear other than longline gear for limited access tilefish vessels, and proposes only to reinstate the tilefish vessel permitting requirements as noted above.
        The Council passed a motion at its August 5-7, 2003, meeting to move forward with developing the supplemental administrative record needed to reinstate the permitting requirements of the FMP.  At the September 18, 2003, meeting held to discuss the supplemental administrative record, the Tilefish Committee, the Technical Team, and the Industry Advisors discussed how the criteria for each limited access category were developed, based upon the landings data that were available at that time.  This discussion was continued at a Committee meeting held in conjunction with the October 7-9, 2003, Council meeting.  Based upon the discussions that took place at these two meetings, a supplemental record has been compiled that describes in detail the steps taken by the Council and Committee in developing the limited access program alternatives contained in the FMP, and the rationale behind their selection of a preferred limited access program.  A summary of the information contained in the supplemental record is provided in the following paragraphs.
        Summary of the Supplemental Record for Tilefish

        Management of the tilefish resource was first considered in earnest in 1993, when a notice of intent (NOI) to prepare an  environmental impact statement (EIS) was published on February 24, 1993 (58 FR 11217).  A control date for the fishery was then published on June 15, 1993 (58 FR 33081).  At that time, Council staff proposed several considerations for a management scheme, including a new entrant moratorium, an effort reduction program, and an overall quota with potential sub-quotas.  At an Industry Advisors Subcommittee meeting in February 1994, the concept of dividing the tilefish fishery into full-time and part-time vessels was raised.  This concept was based largely on the management scheme for the Atlantic sea scallop fishery, which consists of Full-time, Part-time, and Occasional vessel permit categories.  However, due to several more pressing fishery management issues, the Council did not revisit tilefish management until 1999.  On April 5, 1999 (64 FR 16417), a new NOI was published in the Federal Register for the EIS prepared in conjunction with the FMP, and a public scoping meeting was held on April 27, 1999.
        In considering limiting access to the tilefish fishery, the Council had to consider several factors mandated under section 303(b)(6) of the Magnuson-Stevens Act.  Two primary factors to be considered were present participation in the fishery and historical fishing practices in, and dependence on the fishery.  The only data available to the Council with which to develop a limited entry scheme were vessel permit and landings data.  This information was used to generate tables reflecting annual individual vessel landings.  The information enabled the Council to exercise an element of judgement in identifying those natural breaks in the landings data, and the overall time frame that should be used as the qualifying criteria for the individual categories to reflect their differing levels of participation in the tilefish fishery.
        Upon reviewing landings data provided by the NMFS Northeast Fisheries Science Center (Center), the Committee, along with the Industry Advisors, began to formulate qualifying criteria for a directed and indirect tilefish fishery at the April 1, 1999, Committee meeting.  Based upon the landings data, the Industry Advisors suggested that a minimum of 250,000 lb (113,398 kg) be used as the basis for qualifying a permit for the directed fishery, and a minimum of 10,000 lb  (4,536 kg) be used as the basis for qualifying for the incidental permit.  Furthermore, it became apparent that there was a considerable disparity between vessels that landed 250,000 lb (113,398 kg) of tilefish a year, and those that did not.  As a result, a Committee member recommended that there be a Full-time and Part-time category; the same concept that was raised at the February 1994 Committee meeting.  The concept of subjecting the Incidental category to a trip limit was also raised at this meeting.  After some discussion, the Committee elected to recommend that the Council move forward with three permit categories:  Full-time, Part-time, and Incidental.  However, the Committee requested that the Center conduct further analysis of tilefish landings data.

        At the May 6, 1999, Committee meeting, the concept of a two-tier Full-time permit category was adopted by the Committee.  At this meeting, the Committee developed limited entry criteria for each of the proposed permit categories, based upon landings information provided by the Center.  These data indicated that four vessels landed at least 250,000 lb (113,398 kg) of tilefish annually, for several of the last 6 years for which there were complete landings data.  Based upon this information, the Committee developed the following criteria for the Full-time, tier 1 category:  250,000 lb (113,398 kg) per year for 3 years from 1993-1998, with at least 1 lb (0.5 kg) of tilefish landed prior to the June 15, 1993, control date.  For the Full-time, tier 2 category, the Committee suggested qualifying criteria of 30,000 lb (13,608 kg) per year for 3 years from 1993-1998, with at least 1 lb (0.5 kg) of tilefish landed prior to the control date of June 15, 1993.  For the Part-time category, the Committee suggested qualifying criteria of 10,000 lb (4,536 kg) per year for any 1 year from 1988-1993, and 10,000 lb (4,536 kg) per year in any 1 year from 1994-1998.  The limited entry criteria for each alternative reflected elements of present and historical participation, as well as dependence on the fishery as required under section 303(b)(6) of the Magnuson-Stevens Act.  The qualifying period ended with 1998, since this was the last year for which complete annual landings data were available.  This alternative ultimately became limited entry Option 2 in the FMP.
        The Council then considered the Committee's recommendation at its May 25, 1999, meeting.  At this meeting, industry members voiced concern over the selection of 1988 as the cut-off year for historical participation, since a number of them had been in the fishery since the late 1970s to early to mid-1980s, but had left the fishery for a variety of reasons.  The industry group representing these individuals was the Historical Tilefish Coalition.  The 1988 cut-off year was originally selected simply because the Center had only analyzed data back this far, due to limitations in data prior to 1988.  However, the data analyzed were not considered to be complete, because there was no requirement for vessel owners to report their tilefish landings data until the mid-1990s.  Even then, vessels only had to report these landings if they held a Federal fisheries permit.  After some debate, the Council adopted a new alternative for the public hearing document that extended the qualification time-period for the Full-time and Part-time categories back to 1977.  Under this alternative, which is Option 5 in the FMP, a vessel could qualify for the Full-time category if it landed 50,000 lb (22,680 kg) in any one year between 1977 and June 15, 1993, or for the Part-time category if it landed 10,000 lb (4,536 kg) of tilefish in any one year between 1977 and June 15, 1993.  The year 1977 was selected because the Center had been able to estimate landings back to 1977, but was unable to provide landings information for individual vessels.  Some Council members expressed concern about the number of vessels that this alternative would let into the fishery, given the reduced quota needed to rebuild the fishery within 10 years.

        The public hearing document for the FMP ultimately contained five options for limited entry criteria.  These are represented as Options 1 through 5 in the final FMP document (see Table 1).  The public hearing document also explained that there would be a sub-quota for each permit category, which would be based on the percentage of the overall tilefish landings from 1988 through 1998 by the vessels that qualified for each permit category.  Following public hearings on the FMP, which took place in August 1999, the Council convened on October 14, 1999, to inform its members of points of contention regarding the alternatives in the FMP, and to answer any questions.  Final decision on the FMP was delayed until November 23, 1999, when a special Council meeting was to be held to address the FMP.  The location for this meeting was selected to be more accessible to tilefish fishermen.

          Table 1.  Limited Access Program Alternatives in the Tilefish FMP

            Option
            Limited Access Program Tilefish Landings Criteria

            Option 1

            Full-time
            At least 50,000 lb (22,680 kg) in 1 year from 1988-1993, and at least 25,000 lb (11,340 kg) per year for 2 years from 1994-1998.

            Part-time
            At least 10,000 lb (4,536 kg) in 1 year from 1988-1993, and at least 10,000 lb (4,536 kg) in 1 year between 1994-1998.

            Option 2 (Preferred alternative in FMP)

            Full-time: tier 1
            At least 250,000 lb (113,398 kg) per year for 3 years between 1993-1998, and at least 1 lb (0.5 kg) landed prior to June 15, 1993.

            Full-time: tier 2
            At least 30,000 lb (13,608 kg) per year for 3 years between 1993-1998, and at least 1 lb (0.5 kg) landed prior to June 15, 1993.

            Part-time
            Same as Option 1.

            Option 3

            Full-time
            Same as Option 1.

            Part-time
            At least 10,000 lb (4,536 kg) in 1 year between 1988 and June 15, 1993.

            Option 4

            Full-time
            At least 50,000 lb (22,680 kg) in 1 year between 1988 and June 15, 1993.

            Part-time
            Same as Option 3.

            Option 5

            Full-time
            At least 50,000 lb (22,680 kg) in 1 year from 1977 to June 15, 1993.

            Part-time
            At least 10,000 lb (4,536 kg) in 1 year from 1977 to June 15, 1993.

            Option 6

            Full-time: tier 1
            Same as Option 2.

            Full-time: tier 2
            Same as Option 2.

            Part-time
            Same as Option 1, or at least 28,000 lb (12,701 kg) in 1 year between 1984-1993.

        Virtually every active tilefish fisherman was present at the November 1999 Council meeting.  In addition, the historical participants from New Jersey were represented by the Historical Tilefish Coalition.  In debating the appropriate qualifying criteria to be adopted for the Full-time category, the Council concluded that the Full-time category should be split into tier 1 and tier 2 levels.  This decision was supported by the fact that four vessels landed considerably more tilefish than any other vessel active in the tilefish fishery.  As a result, the Council adopted the following qualifying criteria for the Full-time, tier 1 category:  250,000 lb (113,358 kg) per year for 3 years between 1993-1998.  However, the Council deliberated over the criteria to be adopted for the Full-time, tier 2 category.  There was some sentiment among Council members to adopt qualifying criteria more in line with those proposed under Options 1 and 4, which were 50,000 lb (22,680 kg) in 1 year between 1988-1993, and at least 25,000 lb (11,340 kg) per year for 2 years during 1994-1998.  This was because the Council was concerned about the number of vessels that would qualify for the limited access fishery, given the reduced annual quota that would apply to the fishery.  This became less of a concern once the Council decided to apply sub-quotas to each of the permit categories.  These sub-quotas were to be a percentage of the overall quota that would reflect the percentage of the overall tilefish landings from 1988 through 1998 by vessels qualifying for each permit category.  Therefore, as more vessels qualified for a particular permit category, the larger the percentage of the overall quota would be allocated to that permit category.  The Council ultimately adopted a landings requirement of 30,000 lb (13,608 kg) for the Full-time, tier 2 category, based on the 1988 through 1998 landings data.  This level of landings was set high enough above the landing requirement being considered for the Part-time category (10,000 lb (4,536kg)) to represent a level of participation in the fishery that could be considered full-time.  Thus, the qualifying criteria adopted by the Council for the Full-time, tier 2 category was as follows:  30,000 lb (13,608 kg) of tilefish for any 3 years between 1993 and 1998, with at least 1 lb (0.5 kg) landed prior to June 15, 1993.
        The Council considered a number of alternative qualifying criteria for the Part-time category, bearing in mind their need to address the historical participants in the fishery.  Recognizing that the landing requirement was 30,000 lb (13,608 kg) for the Full-time, tier 2 category, the Council looked at a lower annual poundage level to reflect the part-time nature of the fishery.  The Council was concerned that the level be set high enough to limit the number of vessels that would qualify for this category.  Ultimately, the Council settled on a qualifying poundage of 10,000 lb (4,536 kg) for the Part-time category, since it was significantly below the poundage requirement for the Full-time, tier 2 category, yet above the level of landings for those vessels that truly landed only an incidental catch of tilefish.  However, the difficult decision facing the Council was how far back to set the qualifying window.  According to the information provided in the public hearing document, the inclusion of vessels landing tilefish back to 1977 (Option 5) would allow as many as 119 vessels into the fishery.  Thus, extending the qualifying period back to 1977 raised issues of equity and conservation, but beginning the qualifying window in 1988 failed to capture the time period for the historical fishery.  Furthermore, there was a lack of vessel-specific information prior to 1988.  At the Council's suggestion, members of the tilefish industry brought forward their landings data at the November 23, 1999, Council meeting.  At this meeting, industry proposed that the Council consider a modification to Option 2 by allowing an alternative basis for qualifying for the Part-time category.  Under this modified Option 2, vessels could qualify for the Part-time category if they could prove tilefish landings of 28,000 lb (12,701 kg) in any year between 1984 and 1993.   Utilizing the landings data brought forward by the tilefish industry and new data provided by the Center, the Council was able to ascertain that this modified Option 2 would allow 42 vessels to qualify for the Part-time category.  While this new alternative allowed 32 more vessels to qualify for the Part-time category than under Option 1, it allowed 7 fewer vessels to qualify than under Option 3, which was the Council's preferred alternative in the public hearing document.  This revised Option 2, which became Option 6 in the final FMP, was attractive to members of the Council, since it limited participation in this category more than its previously preferred option, and it captured a time-frame when the historical fishery was still going strong.  After much deliberation, the Council adopted the new Option 6.  Thus, the industry proposal, referred to as “the compromise” in the FMP, was carefully considered, and the reasons for adopting this option, well thought out.  Therefore, the reference of this option as a “compromise” in the FMP is inaccurate.
        As stated earlier, the Court set aside the permitting requirements of the FMP on the grounds that they violated National Standard 2.  National Standard 2 requires that “[c]onservation and management measures shall be based on the best scientific information available.”  The Guidelines for the National Standards, which are found under 50 CFR part 600, indicate that scientific information includes, but is not limited to, information of a biological, ecological, or social nature.  The focus of the FMP was on the biological and ecological data pertaining to the tilefish fishery because the fishery had been determined by the Secretary to be overfished.  However, neither the biological or ecological data in the FMP served as the direct basis for the tilefish permitting scheme.  Since the biological data clearly showed that the tilefish resource was overfished, the conclusion was to reduce fishing effort.  The management method adopted by the Council to reduce fishing effort was limitation on access to the tilefish fishery.  Thus, biological data were an indirect basis for the Council's consideration of a limited access system.  The ecological data available to the Council did not factor into the creation of a limited access system, since the Council concluded that there was no basis to limit the number of vessels in the fishery to protect essential fish habitat.  As stated previously, the only data available to the Council upon which to develop a limited entry system were the vessel permit and Center landings data.  These data were utilized by the Council to develop several options for a limited access system.  In addition, these data were utilized to determine each permit category's share of the overall quota based on landings by vessels that would qualify for that permit category, and to determine the exclusionary impact on certain vessels of selecting various qualifying criteria.
        Classification
        This proposed rule has been determined to be not significant for purposes of E.O. 12866.

        NMFS has prepared an IRFA that describes the economic impact this proposed rule, if adopted, would have on small entities.  The IRFA prepared for this action follows NMFS's “Guidelines for Economic Analysis of Fishery Management Actions” (NMFS's guidelines).  A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY.  A summary of the analysis follows:
        The universe of vessels impacted by this action are those vessels that qualified for a limited access permit under the requirements established in the FMP, and those vessels that hold an incidental tilefish permit.  A total of 32 vessels qualified for limited access permits under the limited access criteria established in the FMP.  In addition, there are currently 1,650 vessels holding an open access Incidental tilefish permit, although they are no longer required to hold any Federal permit to land tilefish.  All of these vessels are considered to be small entities.

        Section 4.9.3 of the FMP provides an analysis of the economic impacts resulting from the various quota alternatives and limited entry alternatives considered in the FMP.  According to this analysis, the economic impact to vessels qualifying under each limited access category ranged from expected revenue losses of 50 percent or greater for 1 vessel, to an expected increase in revenues for 181 vessels.  A total of 10 vessels were projected to be impacted by revenue losses of 5 percent or greater, 35 vessels were projected to have no change in revenue, and 24 vessels were projected to incur revenue losses of less than 5 percent.  By limited access category, all 4 vessels (100 percent) that qualified for the Full-time, tier 1 category were projected to incur revenue losses of greater than 5 percent, while only 1 vessel (25 percent) in the Full-time tier, 2 category, and no vessels in the Part-time category were projected to incur revenue losses of greater than 5 percent.  Furthermore, this analysis projected that 5 vessels (3 percent) in the Incidental category would incur revenue loss of greater than 5 percent, with 1 vessel incurring revenue losses of 50 percent or greater.
        The FMP considered six limited entry alternatives as a means of controlling effort in the tilefish fishery.  Each of these alternatives consisted of at least two different limited access categories, Full-time and Part-time, having different qualifying criteria.  The alternatives are summarized as follows:
        Option 1:  Part-time -  At least 10,000 lb in 1year 1988-1993, and at least 10,000 lb in 1 year between 1994-1998; Full-time -  At least 50,000 lb in 1 year 1988-1993, and at least 25,000 lb per year for 2 years during 1994-1998.
        Option 2:  Part-time - Same as Option 1; Full-time, Tier 1 - At least 250,000 lb per year for 3 years between 1993-1998, and at least 1lb of tilefish landed prior to the June 15, 1993, control date; Full-time, Tier 2 - At least 30,000 lb per year for 3 years 1993 and 1998, and at least 1lb of tilefish landed prior to the June 15, 1993, control date.
        Option 3:  Part-time - At least 10,000 lb in 1 year between 1988 and June 15, 1993; Full-time - Same as Option 1.
        Option 4:  Part-time - Same as Option 3; Full-time - At least 50,000 lb in 1 year between 1988 and June 15, 1993.
        Option 5:  Part-time - At least 10,000 lb in 1 year between 1977 and June 15, 1993; Full-time - At least 50,000 lb in 1 year between 1977 and June 15, 1993.
        Option 6:  Part-time - Same as Option 1, or 28,000 lb in 1 year between 1984 and 1993; Full-time, Tier 1 - Same as Option 2; Full-time, Tier 2 - Same as Option 2.
        The Council's preferred alternative was Option 6, which was implemented in the final rule implementing the FMP.  The proposed action would reinstate Option 6 as implemented in this final rule.  This action would serve to minimize the economic impacts of the overall quota established in the FMP by dividing this quota among the vessels that qualify under each limited access category.  This would enable those vessels that are dependant on the tilefish fishery (those vessels in the Full-time, tier 1 category) to continue to harvest their share of the annua quota in a manner that maximizes their total revenues.  If the limited entry program is not reinstated, those vessels that are dependant on the tilefish resource would be faced with the uncertainty of when the overall quota would be harvested, forcing them to fish in a manner that does not maximize their total revenues.  Furthermore, in the absence of a limited entry program, a derby fishery for tilefish could occur.  A derby fishery could result in large quantities of tilefish entering the market, reducing the price received by the vessel, and reducing total revenues.  A derby fishery would also increase safety concerns.
        This proposed rule does not duplicate, overlap or conflict with other Federal rules, and does not contain new reporting or recordkeeping requirements.
        A copy of this analysis is available from NMFS (see
          ADDRESSES).

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Reporting and recordkeeping requirements.

          Dated: February 4, 2004.
          Rebecca Lent,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

          § 648.14
          [Amended]
          2.  In § 648.14, paragraph (cc)(6) is removed, and reserved.

          § 648.294
          [Removed and reserved]
          3.  Section 648.294 is removed, and reserved.

      [FR Doc. 04-2869 Filed 2-10-04; 8:45 am]
      BILLING CODE 3510-22-S