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CFR Citation: 50 CFR Part 648

Docket ID: [Docket No. 070627217-7523-02]

RIN ID: RIN 0648-AV70

NOTICE: RULES

ACTION: Magnuson-Stevens Fishery Conservation and Management Act Provisions:

DOCUMENT ACTION: Final rule.

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

DATES: This final rule is effective February 27, 2008. [[Page 4737]]

DOCUMENT SUMMARY: NMFS is implementing approved management measures contained in the Standardized Bycatch Reporting Methodology (SBRM) Omnibus Amendment (SBRM Amendment) to the Fishery Management Plans (FMPs) of the Northeast Region, developed by the MidAtlantic and New England Fishery Management Councils (Councils). The SBRM Amendment establishes an SBRM for all 13 Northeast Region FMPs, as required under the Magnuson Stevens Fishery Conservation and Management Act (MagnusonStevens Act). The measures include: Bycatch reporting and monitoring mechanisms; analytical techniques and allocation of atsea fisheries observers; an SBRM performance standard; a review and reporting process; framework adjustment and annual specifications provisions; a prioritization process; and provisions for industryfunded observers and observer set aside programs.

SUMMARY: Fisheries of the Northeastern United States—; Northeast Region Standardized Bycatch Reporting Methodology Omnibus Amendment,

SUPPLEMENTAL INFORMATION

This final rule implements approved management measures contained in the Northeast Region Omnibus SBRM Amendment, which was approved by NMFS on behalf of the Secretary of Commerce (Secretary) on October 22, 2007. A proposed rule for this action was published on August 21, 2007 (72 FR 46588), with public comments accepted through September 20, 2007. A subsequent publication extended this comment period through September 24, 2007 (72 FR 53751).

Section 303(a)(11) of the MagnusonStevens 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 amendments to Northeast Region FMPs. In ruling on these suits, the U.S. District Court for the District of Columbia found that the FMPs did not clearly establish an SBRM as required under the relevant section of the MagnusonStevens Act and remanded the amendments back to the agency to fully develop and establish the required SBRM [See, Oceana, Inc., v. Evans, 2005, WL 555416 (D.D.C. Mar 9, 2005)(Oceana I); and Oceana, Inc., v. Evans, 384 F. Supp 2d 203 (D.D.C. 2005)(Oceana II)]. In particular, the Court found that the amendments (1) failed to fully evaluate reporting methodologies to assess bycatch, (2) did not mandate an SBRM, and (3) failed to respond to potentially important scientific evidence.

In response, the Councils, working closely with NMFS, undertook development of a remedy that would address all Northeast Region FMPs. In January 2006, development began on the Northeast Region Omnibus SBRM Amendment. This amendment covers 13 FMPs, 39 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 Northeast Region fisheries; determine whether these methods and processes need to be modified and/or supplemented; establish standards of precision for bycatch estimation for all Northeast Region fisheries; and, thereby, document the SBRM established for all fisheries managed through the FMPs of the Northeast Region. The amendment also responds to the ``potentially important scientific evidence'' cited by the Court in the two decisions referenced above.

The Northeast Region SBRM Amendment establishes 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 atsea observers; (3) a performance measure by which the effectiveness of the Northeast Region 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 Northeast Region fisheries 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 process to provide the Councils and the public with an opportunity to consider, and provide input into, the decisions regarding prioritization of atsea observer coverage allocations; and (7) to implement consistent, crosscutting observer service provider approval and certification procedures and to enable the Councils to implement either a requirement for industryfunded observers or an observer setaside program through a framework adjustment rather than an FMP amendment.

Bycatch Reporting and Monitoring Mechanisms

The amendment maintains the status quo methods by which data and information on discards occurring in Northeast Region fisheries are collected and obtained. The Northeast Region SBRM will employ sampling designs developed to minimize bias to the maximum extent practicable. The Northeast Fisheries Observer Program (NEFOP) continues to serve as the primary mechanism to obtain data on discards in all Northeast Region commercial fisheries managed under one or more of the subject FMPs. All subject FMPs will continue to require vessels permitted to participate in said fisheries to carry an atsea observer upon request, and all data obtained by the NEFOP under this SBRM will be collected according to the techniques and protocols established and detailed in the Fisheries Observer Program Manual and the Biological Sampling Manual. Data collected by the NEFOP include, but are not limited to, the following items: Vessel name; date/time sailed; date/time landed; steam time; crew size; home port; port landed; dealer name; fishing vessel trip report (FVTR) serial number; gear type(s) used; number/ amount of gear; number of hauls; weather; location of each haul (beginning and ending latitude and longitude); species caught; disposition (kept/discarded); reason for discards; and weight of catch. These data are collected on all species of biological organisms caught by the fishing vessel and brought on board, including species managed under the subject FMPs, but also including species of nonmanaged fish, invertebrates, and marine plants. To obtain information on discards occurring in recreational fisheries subject to a Northeast Region FMP, the Northeast Region SBRM fully will incorporate, to the extent practicable and appropriate for the Region, all surveys and data collection mechanisms implemented by NMFS and affected states as a result of the agencywide redesign of the Marine Recreational Fisheries Statistics Survey (MRFSS) Program.
Analytical Techniques and Allocation of Atsea Fisheries Observers

The amendment substantially expands and refines the status quo methods by which the data obtained through the mechanisms included above are analyzed and utilized to determine the appropriate allocation of atsea observers to fully incorporate all managed species and all relevant fishing gear types in the Northeast Region. Atsea fisheries observers will, to the maximum extent possible and subject to available resources, be allocated and assigned to fishing vessels according to the procedures established through the amendment. All appropriate filters identified in the amendment will be applied to the results of the analysis to determine the observer coverage levels needed to achieve the objectives of the SBRM.
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SBRM Performance Standard

The amendment is intended to ensure that the data collected under the Northeast Region SBRM are sufficient to produce a coefficient of variation (CV) of the discard estimate of no more than 30 percent, in order to ensure that the effectiveness of the Northeast Region SBRM can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days. Each year, the Regional Administrator and the Science and Research Director will, subject to any external operational constraints, allocate atsea observer coverage to the applicable fisheries of the Northeast Region sufficient to achieve a level of precision (measured as the CV) no greater than 30 percent for each applicable species and/or species group, subject to the use of the filters noted above.

SBRM Review and Reporting Process

The amendment requires an annual report on discards occurring in Northeast Region fisheries to be prepared by NMFS and provided to the Councils, and a report every 3 years that evaluates the effectiveness of the Northeast Region SBRM. Every 3 years, the Regional Administrator and the Science and Research Director will appoint appropriate staff to work with staff appointed by the Executive Directors of the Councils to obtain and review available data on discards and to prepare a report assessing the effectiveness of the Northeast Region SBRM. This report will include, at a minimum: (1) A review of the recent levels of observer coverage in each applicable fishery; (2) a review of recent observed encounters with each species in each fishery, and a summary of observed discards by weight; a review of the CV of the discard information collected for each fishery; (4) an estimate of the total discards associated with each fishery; (5) an evaluation of the effectiveness of the SBRM at meeting the performance standard for each fishery; (6) a description of the methods used to calculate the reported CVs and to determine observer coverage levels, if those methods are different from those described and evaluated in the SBRM Amendment; (7) an updated assessment of potential sources of bias in the sampling program and analyses of accuracy; and (8) an evaluation of the implications for management of the discard information collected under the SBRM, for any cases in which the evaluation performed for item 5 indicates that the performance standard is not met. Once each year, the Science and Research Director will present to the Councils a report on catch and discards occurring in Northeast Region fisheries, as reported to the NEFOP by atsea fisheries observers. This annual discard report will include: (1) The number of observer sea days scheduled for each fishery, by area and gear type, in each quarter; (2) the percent of total trips observed, by gear type, in each quarter; (3) the distribution of sea sampling trips by gear type and statistical area in each fishery; (4) the observed catch and discards of each species, by gear type and fishery, in each quarter; and (5) the observed catch and discards of each species, by gear type and fishery, in each statistical area.
Framework Adjustment and/or Annual Specification Provisions

The amendment enables the Councils to make changes to certain elements of the SBRM through framework adjustments and/or annual specification packages rather than full FMP amendments. All subject FMPs provide for an efficient process to modify aspects of the Northeast Region SBRM, as relates to each specific FMP, should the need arise and the appropriate Council determine that a change to the SBRM is warranted and needed to address a contemporary management or scientific issue. Depending on the provisions of each FMP, changes to the SBRM may be effected either through a framework adjustment to the FMP or through annual or periodic specifications. Such changes to the SBRM may include modifications to the CVbased performance standard, the means by which discard data are collected/obtained in the fishery, reporting on discards or the SBRM, or the stratification (modes) used as the basis for SBRMrelated analyses. Such changes may also include the establishment of a requirement for industryfunded observers and/or observer setaside provisions.

Prioritization Process

The amendment establishes a process to provide the Councils and the public with an opportunity to consider, and provide input into, the decisions regarding prioritization of atsea observer coverage allocations, if the expected resources necessary may not be available. In any year in which external operational constraints would prevent NMFS from fully implementing the required atsea observer coverage levels, the Regional Administrator and Science and Research Director will consult with the Councils to determine the most appropriate prioritization for how the available resources should be allocated. In order to facilitate this consultation, in these years, the Regional Administrator and the Science and Research Director will provide the Councils, at the earliest practicable opportunity: (1) The atsea observer coverage levels required to attain the SBRM performance standard in each applicable fishery; (2) the coverage levels that would be available if the resource shortfall were allocated proportionately across all applicable fisheries; (3) the coverage levels that incorporate the recommended prioritization; and (4) the rationale for the recommended prioritization. The recommended prioritization should be based on: Meeting the data needs of upcoming stock assessments; legal mandates of the agency under other applicable laws, such as the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA); meeting the data needs of upcoming fishery management actions, taking into account the status of each fishery resource; improving the quality of discard data across all fishing modes; and/or any other criteria identified by NMFS and/or the Councils. The Councils may choose to accept the proposed observer coverage allocation or to recommend revisions or additional considerations for the prioritized observer allocations ultimately adopted and implemented by the Regional Administrator and the Science and Research Director.
IndustryFunded Observers and Observer SetAside Program Provisions

The amendment implements consistent, crosscutting observer service provider approval and certification procedures and enables the Councils to implement either a requirement for industryfunded observers and/or an observer setaside program through a framework adjustment, rather than an FMP amendment.

Comments and Responses

A total of 11 individual comment letters were received on the proposed rule and the amendment.

Comment 1: A letter by representatives of a professional association for atsea fisheries observers raised concerns regarding the provision of the SBRM Amendment that establishes observer certification and approval procedures to allow a multiple service delivery model under an industryfunded observer program. The commenters specifically focused on concerns related to the contractual relationship that would be established between the observer service provider
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and the fishing vessel, rather than between the observer service provider and NMFS. The commenters refer to experience with a similar model utilized in Alaska under the North Pacific Groundfish Observer Program. The commenters cautioned that, in their opinion, such a contractual relationship may reduce the reliability of the data collected by the atsea observers due to the potential for bias and conflict of interest. The commenters also cited concerns over quality control of the data due to the lack of direct oversight by the agency. To remedy the potential problems they identified, the commenters suggested that NMFS evaluate the performance of approved observer service providers on an annual basis, increase Federal funding for observers contracted by and paid for by NMFS, and/or utilize an independent nonprofit organization (either an existing organization such as the Atlantic States Marine Fisheries Commission or an organization created specifically for this purpose) to provide an ``armslength'' relationship between the fishing industry, NMFS, and observer service providers.

Response: NMFS acknowledges that a perceived conflict of interest could be a potential issue for some types of industryfunded observer programs. Rigorous data quality assurance and control standards, observer training and certification programs, and frequent reviews and oversight of the observer data collection programs are all means to address these concerns. NMFS acknowledges that some of the issues raised by the commenter regarding the North Pacific Groundfish Observer Program have been previously identified as potential concerns with that model, but notes that there are significant differences between the North Pacific program and the single industryfunded program that is currently in place in the Northeast Region. These differences include the observer setaside that is an important component of the Northeast sea scallop observer program and serves to mitigate the conflict of interest concerns by providing a mechanism to offset the added cost to sea scallop fishing vessels of carrying an observer. Also, to minimize the likelihood that an observer would develop ties to a vessel owner/ operator and/or feel pressure by a vessel owner/operator to misreport, the regulations prohibit observer service providers from consecutively deploying the same observer on the same vessel and from deploying an observer on the same vessel more than twice per month.

While NMFS shares some of the concerns identified by the commenters relative to the need to ensure that there is no real or perceived conflict of interest between the atsea observers and the fishing vessels, and to ensure reliable, high quality data are collected and reported, none of these concerns are immediately applicable to this rulemaking. The regulatory changes implemented in this final rule merely establish the procedures that potential observer service providers must follow to be considered for approval, and the standards that they must meet on a continuing basis to maintain their certification to serve in the Northeast Region. However, excepting the sea scallop observer program that was formally implemented under a separate rulemaking (72 FR 32549, June 13, 2007), no other fisheries in the Northeast Region are operating under an industryfunded observer requirement that would utilize these regulations. This action makes no changes to the regulations or procedures established under Amendment 13 to the Sea Scallop FMP, other than to generalize the observer certification procedures to apply more broadly than for the sea scallop fishery alone. The intent of this action was to create a more efficient process for the Councils to develop future industryfunded programs, should the need arise in any fishery. Actual implementation of an industryfunded observer program that would enable fishing vessels to select from a list of approved observer service providers would require the appropriate Council to initiate, develop, and have approved such a program for each particular fishery.

The development of future Council fishery management actions to implement any additional industryfunded observer programs provides the appropriate opportunity to ensure that the programs fully address the data quality concerns and limitations noted by the commenters. NMFS is committed to ensuring that data collected and provided by atsea fisheries observers are of the highestpossible quality and meet all applicable standards for reliability, precision, and accuracy. Any proposal by a Council to implement a future industryfunded observer program, such as is currently in place for the sea scallop fishery, would be reviewed to ensure it fully explains and justifies how the data to be obtained through the program meet all appropriate quality standards.

Comment 2: One member of the public endorsed the comments of the observers' professional association, voicing his concern over industry funded observer programs as exist in Alaska under the North Pacific Groundfish Observer Program. The commenter added, however, that his concerns do not refer to the sea scallop observer program that is linked to an observer setaside program to offset the costs to the vessels of carrying an observer. The commenter is most concerned with the perceptions of conflict of interest that can arise under situations where the observer service provider is contractually linked, and dependent on, the fishing vessels rather than NMFS.

Response: The response above to comment 1 addresses the majority of the points raised by the commenter. As noted by the commenter, observer setaside programs, such as the Northeast sea scallop program, mitigate many of these concerns by providing a mechanism to offset the added cost to the vessel of carrying an observer. While there is no requirement to do so, NMFS fully anticipates that any program developed by a Council to implement an industryfunded observer program would be directly associated with an observer setaside program that offsets the additional costs to the vessels. No such program is currently proposed or under development by either Council, but the SBRM Amendment provides a mechanism for the Councils to develop and propose a setaside program that uses quota, daysatsea, increased trip limits, or other means to compensate fishing vessels that carry observers.

Comment 3: The comments submitted by a public interest environmental organization were very similar to those of the observers' professional association. The commenters oppose changing the NEFOP to a model based on the North Pacific Groundfish Observer Program, in which the industry finances the observer program through independent contracts with observer service providers. The commenters raised concerns regarding the appearance of a conflict of interest between the fishing vessels and the observer service providers, a threat of bias in the data collection, creating an economic incentive to avoid observation, less transparency of observer data, and a lack of control on harassment of an interference with observers. The comment letter also expressed concern that the SBRM would discourage monitoring for marine mammals and other nonbycatch related monitoring.

Response: Although the commenters in this case appear to have misunderstood the intent of the SBRM Amendment, NMFS takes their concerns seriously. The response above to comment 1 addresses the majority of the concerns raised by the commenters, but NMFS points out that the commenters
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claim that the SBRM Amendment effects a ``conversion'' of the NEFOP from one controlled by NMFS to an industryfunded program. This is not the case. The SBRM Amendment provides a mechanism for the Councils to develop and propose industryfunded observer programs that would serve to supplement the existing NMFSfunded observer program, but this action neither implements nor requires such a program. Currently, the Councils are free to develop and propose such a system (as was done in Amendment 13 to the Sea Scallop FMP); the SBRM Amendment allows the Councils to use the framework adjustment process to propose a similar program instead of requiring a full FMP amendment. NMFS fully anticipates that any such program would include an observer setaside mechanism, such as exists for the sea scallop fishery. As noted above and by other commenters, such a mechanism mitigates many of the concerns raised by the commenters.

NMFS disagrees with the commenter that such a system, should one be proposed by a Council and implemented by NMFS, would result in industry ``control'' of the observer program. The regulations at 50 CFR 648.11(h) and (i) provide extensive and detailed procedures that must be followed by all observer service providers in order to obtain and maintain NMFS certification as valid service providers. These regulations specifically address the issues of potential conflicts of interest (Sec. 648.11(h)(6)), harassment of or interference with observers (Sec. 648.11(h)(5)(vii)(F)), and data transparency (Sec. 648.11(h)(5)(vii)(A)). Regarding the concerns raised about the availability of the ``raw'' observer data, the regulations at Sec. 648.11(h)(5)(vii)(A) require that, in addition to providing summary data within 12 hours of landing, that the observer service providers ``provide the raw (unedited) data collected by the observer to NMFS within 72 hours of the trip landing.'' Regarding the commenters' opinion that the plan creates an economic incentive to evade observation, this claim does not take into account that observer set aside programs in many ways may actually create an incentive to be observed, as a setaside program would grant a vessel extra quota, trips, DAS, or increased possession limits in exchange for carrying an observer.

The commenters are also incorrect that the plan ``discourages'' marine mammal monitoring. NMFS acknowledges in the SBRM Amendment the importance of its mandate under other applicable laws, such as the MMPA and the Migratory Bird Act, but the focus of the SBRM is on those living marine resources defined as fish and bycatch under the Magnuson Stevens Act. Only the MagnusonStevens Act requires an SBRM to be established, and the MagnusonStevens Act specifically excludes certain types of organisms, specifically marine mammals and birds, from the definitions.

The commenters are mistaken to conclude that the ``SBRM is based on a flawed model.'' The actual SBRM established as a result of this action is wholly severable from the provision that authorizes the Councils to develop and propose an industryfunded observer program through a framework adjustment rather than an amendment to an FMP. The SBRM does not implement, require, or rely upon any industryfunded observer programs that may be developed and proposed by a Council in the future.

Comment 4: An organization representing a coalition of fishing interests involved in the Atlantic herring fishery submitted comments critical of the field sampling protocols and procedures used by atsea observers to monitor bycatch occurring in fisheries that pump their catch directly from the codend into the vessel hold. The commenters asserted that the current observer protocols for the herring fishery contain loopholes that were not addressed in the SBRM Amendment, due to the potential for unobserved catch to be released from the net without being brought on board the vessel for the observer to monitor. The commenters expressed concern regarding the lack of mandated observer coverage on atsea processing vessels, which transfer catch from the codend of catcher vessels to the hold of the processor vessel and about how pair trawls are treated if an observer is aboard only one of the paired vessels. The commenters also expressed concern that the filtering procedures described in the SBRM Amendment would result in exclusion of certain fishing modes (such as midwater trawls) from observer coverage due to low levels of coverage in the past (``the SBRM ensures that [the midwater trawl] mode will be unobserved in perpetuity'').

Response: All fishing vessels permitted by NMFS to operate in the Northeast Region under one or more of the FMPs subject to the SBRM Amendment are currently obligated to carry a NMFScertified observer on any trip for which they are requested by the Regional Administrator to do so (at Sec. 648(a), (b), (c) , and (d)). This requirement does not change, and is, in fact, reinforced in section 1.7 of the amendment. This requirement, by definition, applies to herring atsea processors. The commenters incorrectly claim that the SBRM excludes some fishing modes from observer coverage; in fact, according to the results of the importance filter adopted in the amendment, the coverage allocated to the New England midwater trawl fishing mode, cited by the commenters as ``unobserved in perpetuity,'' would be 316 days, nearly twice the coverage level in 2004 and would represent 11.5 percent of trips taken in 2004. The commenters appear to misunderstand the function of the importance filters, which is to eliminate certain species (those for which the total discards in a fishing mode is a negligible proportion of either the total discards of that species across all fishing modes, or for which the total discards of that species is a negligible proportion of total fishingrelated mortality of that species) from the calculation of the observer coverage allocation within a fishing mode (the allocation being no less than the highest coverage level of all species remaining after the importance filter is applied). Under no circumstances do the importance filters eliminate any fishing modes from the observer allocation process. This can be seen in Appendix C of the amendment in a table illustrating the results of applying the SBRM to the 2004 dataset. There is some level of observer coverage assigned to each of the 39 fishing modes addressed in the SBRM Amendment. In addition, the commenters asserted that the SBRM Amendment did not address the field sampling protocols to be used in collecting data by atsea fisheries observers. This is incorrect. Section 1.7 of the SBRM Amendment stipulates that ``The NEFOP shall serve as the primary mechanism to obtain data on discards in all Northeast Region commercial fisheries managed under one or more of the subject FMPs,'' and that ``all data obtained by the NEFOP under this SBRM shall be collected according to the techniques and protocols established and detailed in the Fisheries Observer Program Manual (NEFOP 2006a) and the Biological Sampling Manual (NEFOP 2006b).'' This section of the SBRM Amendment goes on to identify the minimum data fields to be collected by Northeast Region observers. The Fisheries Observer Program Manual and the Biological Sampling Manual provide general as well as specific instructions for atsea observers operating on midwater trawl, purse seine, and pair trawl vessels; these instructions and sampling priorities explicitly account, to the extent
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practicable, for the contingencies identified by the commenters (including pair trawls with only one vessel observed, pumped fish, loss of fish in the net, etc.).

Comment 5: A letter from an organization representing commercial fishermen from Cape Cod expressed concern with how the SBRM would perform in monitoring hard TACs (total allowable catch) and fishery sectors. The commenters acknowledged that at least some of the changes under the SBRM Amendment will improve the region's bycatch reporting, and characterized the importance filter process as ``crucial for prioritizing observer coverage.'' However, the commenters stressed three primary recommendations for improving the SBRM Amendment: (1) Ensuring that the SBRM provides a means to accurately and precisely quantify discards for all stocks across all stock areas; (2) identifying levels of monitoring coverage for sectors necessary for TAC management; and (3) providing a realtime, publiclyaccessible, and transparent reporting methodology that allows for enforcement of accountability measures.

Response: The commenters imply that the SBRM Amendment should have addressed the new requirement included in the MagnusonStevens Reauthorization Act of 2007 (MSRA) for all FMPs to include ``Annual Catch Limits'' (ACLs) and ``Accountability Measures'' (AMs) and indicate how the SBRM would perform in the face of these new requirements. However, the MSRA does not require ACLs and AMs be developed and implemented for any fishery until at least 2010 (for fisheries experiencing overfishing) or 2011 (for all other fisheries). Also, the new MSRA provision related to ACLs and AMs, by its very definition, applies to all catch, not just bycatch, and is a requirement much broader in scope than the requirement to establish an SBRM, which remains a separate requirement under the MagnusonStevens Act and was not modified by the MSRA. Section 1.2 of the SBRM Amendment acknowledges the changes promulgated through the MSRA, but explains that no changes to the amendment are necessary as a result. This action remains necessary primarily to correct deficiencies identified by the Court in Amendment 13 to the Northeast Multispecies FMP and Amendment 10 to the Sea Scallop FMP in order to bring the Northeast Region FMPs into compliance with the requirement to establish an SBRM as specified as section 303(a)(11) of the MagnusonStevens Act. As the Councils embark on fishery management actions to bring the FMPs into compliance with the new requirements of the MSRA, changes to the SBRM established herein may be necessary to accommodate the specific attributes of the ACLs and AMs that will be developed, but such changes would address specific management needs that go beyond the mandate of section 303(a)(11) to establish an SBRM to assess the amount and type of bycatch, which is the focus of this action. Because it is impossible at this time to foresee all the particular attributes of the various ACL and AM programs that may be developed and adopted by the two Councils for all 13 FMPs, and how the SBRM may need to change to accommodate those programs, it would be premature to attempt to craft an SBRM that could accommodate all possible ACL and AM outcomes, without resulting in an SBRM so vague and generalized as to be ineffectual at meeting its current objectives.

Regarding the specific points raised by the commenter, NMFS asserts that the Northeast Region SBRM is wholly sufficient to quantify discards for all stocks across all stock areas. Data collected by at sea fisheries observers provide sufficient information to determine the specific stocks of fish discarded, and the stock areas in which the discard event occurred. These data can be used to apportion the collected discard estimates across all stocks and stock areas. This is illustrated in Appendix F and Appendix G of the amendment, which provide example data queries and analyses based on the data collected by atsea observers and a sample format for the information requested by the Councils to be provided in annual discard reports. In both cases, discard data are summarized by stock and statistical area, which is a finer scale even than stock area (i.e., stock areas are composed of multiple statistical areas).

The commenters also suggest that the SBRM must identify observer coverage levels for fishery sectors authorized under an FMP to provide for a specific level of certainty in future TAC management programs. The commenters appear to assume that a onesizefitsall approach would be appropriate for all potential future instances of sector management. Sectors are unique and temporary fishery management provisions that authorize a collective of similar fishing vessels (e.g., hook vessels operating out of Cape Cod) to be granted a portion of a TAC for 1 year in exchange for abiding by the specific provisions and limitations identified in the sector management plan. Currently, there are two approved sectors operating in New England waters; both are authorized under the sector management provisions of Amendment 13 to the Northeast Multispecies FMP. As many as 19 additional multispecies sectors are under development, and the New England Council is considering adopting similar sector provisions in upcoming amendments to the other New England FMPs. The sector provisions of the Northeast Multispecies FMP require that the vessels interested in forming a sector prepare and submit annually a sector proposal that includes, among other things, ``detailed plans for the monitoring and reporting of landings and discards'' (at Sec. 648.87(b)(2)(vi)). Under the sector provisions of the FMP, it is the responsibility of the sector proponents to propose how discards will be monitored and reported, while the Council and NMFS retain the authority to determine if the proposed plans are sufficient. Sector proposals developed by members of the fishing industry are submitted to and reviewed by the New England Council. Those approved by the Council are incorporated into framework adjustments to the Northeast Multispecies FMP and submitted to NMFS for review. At that time, NMFS considers the specific provisions of the proposed sector plan to ensure it would meet all requirements of the FMP and be consistent with the provisions of the MagnusonStevens Act and other applicable law. Given the variety of sector proposals currently under development, and the expectation of additional sector provisions included in the other New England FMPs, it would not be practicable to stipulate in this amendment the specific levels of observer coverage that would be necessary for each sector, as this would depend on the number of vessels participating, the area(s) to be fished, the target and likely incidental species, fishing gear(s) used, and the other reporting mechanisms required under each sector plan. This action is focused on the requirement at section 303(a)(11) of the Magnuson Stevens Act to develop a methodology to assess the amount and type of bycatch and provides a framework for modifications to the overarching methodology to address specific future management needs. The Councils recognized the need for the SBRM Amendment to be flexible enough to adapt to such changes, noting in section 6.9.5 of the amendment that because new sector programs may be implemented through a framework adjustment, the same framework action could be used to ``modify the SBRM to
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ensure sufficient data are collected'' on discards.

The commenters asserted that the SBRM must establish a ``realtime, publiclyaccessible, and transparent reporting methodology.'' NMFS disagrees with the commenters on this point. The MagnusonStevens Act requires simply that an SBRM be established; it imposes no minimum legal requirements on whether this system provide data in real time, or the degree to which the data are publicly accessible. A ``realtime'' reporting system, as requested by the commenters, would require that data be presented in a publicly accessible medium as the discards are observed and documented by the atsea fisheries observer. This would provide no time for the fishing trip to end, for the observer to submit the data to NMFS, and for NMFS to review, edit, and audit the data prior to publishing the data. This would severely reduce the quality of the data and, in so doing, diminish the usefulness and reliability of the discard data. Data reduction and summaries are necessary in order to prevent the release of sensitive and proprietary data that is protected under the MagnusonStevens Act and other Federal statutes. NMFS concludes that it is more appropriate to engage a full data quality control and assurance program, as summarized in Appendix D of the SBRM Amendment, in order to ensure the resulting data are of the highest possible quality before they are released to the public or used in management.

Comment 6: A conservation organization submitted extensive comments on the SBRM Amendment and its proposed rule, urging that NMFS not approve the amendment. The comments addressed several elements of the SBRM Amendment, and include references to the results of a technical review of the amendment conducted under contract to another conservation organization. The responses to the comments identified in the technical review are addressed separately under comment 10. All other points raised in the comment letter are addressed in this response.

The commenters, while acknowledging that the SBRM Amendment ``dramatically'' improves upon prior documents by specifying a monitoring and reporting system that could be implemented, expressed concern that the amendment fails to actually establish this system because it vests NMFS with discretion as to the allocation of observer coverage if there are external constraints (such as an insufficient budget) that prevent full implementation. The commenters suggested that the amendment could have adopted a formal decision procedure that would stipulate how observers are to be allocated if there is a budget shortfall, such as requiring that the budget allocations be cut pro rata across all fishing modes, or to rank fishing modes according to a standard of priority and fully allocating observer coverage across priority modes until funding is exhausted.

The commenters claim that the SBRM Amendment fails to mandate that data be reported in a rational manner useful for fisheries management, and that the amendment fails to establish a reporting requirement that provides information on the amount, type, and disposition of bycatch. The commenters also claim that the amendment fails to recognize the fishery management needs of the Councils and the needs of the public.

The commenters claim that the amendment fails to establish an SBRM because it provides for framework adjustment provisions to enable the Councils to develop and propose changes to the SBRM. The commenters also claim that the SBRM Amendment fails to consider the bycatch of species that are not targeted under Northeast Region FMPs, including failing to consider alternatives for including ``nonmanaged'' species in the SBRM.

The commenters claim that NMFS ``locked'' the public and Fishery Management Councils out of the decisionmaking process to develop the SBRM Amendment. The commenters also claim that the SBRM Amendment violates NEPA because an environmental impact statement (EIS) was not prepared. Regarding the environmental assessment's (EA) compliance with NEPA, the commenters raised the following concerns: The EA fails to adequately discuss the purpose, need, and scope of the amendment; the EA fails to consider a reasonable range of alternatives, including performance standards other than 30 percent, different reporting formats or frequencies, or different ways to assess accuracy; the EA fails to consider cumulative environmental impacts; and the EA fails to adequately address protected resources.

Response: NMFS disagrees with the commenters' assertion that the amendment fails to establish an SBRM because it vests NMFS with some degree of discretion in cases where external operational constraints prevent full implementation of the resulting atsea observer allocations. The SBRM Amendment establishes an extensive and detailed methodology to utilize available observer data on discards occurring across all relevant Northeast Region fisheries, assess the degree to which those data meet the established performance standard, allocate observer coverage levels across all relevant fisheries to achieve said performance standard, and provide reports to the Fishery Management Councils on the discards that are occurring and on the effectiveness of the SBRM itself at meeting its objectives. The prioritization process is one component of the overall program that explicitly recognizes that external operational constraints (such as Congressional budget allocations) may occasionally prevent the full implementation of the SBRM. The process establishes a rigorous review and consultation process to engage the Councils and the public in determining the most appropriate approach to prioritize observer coverage on these occasions that reflects the needs and priorities of the agency and Councils at the time.

The commenters suggested that the amendment could have implemented a requirement to apportion any budget allocations pro rata across all fishing modes, or could have ranked fishing modes according to a specific standard of priority and require that observers be fully allocated to the highest priority modes in descending order until the available budget is exhausted. NMFS notes that several options such as these are described in section 6.6 of the amendment, but that the Councils recognized the importance of retaining sufficient flexibility in the SBRM to adapt to changing conditions and priorities in the fisheries. The approach suggested by the commenters would leave the Councils and NMFS with a rigid system that would require an FMP amendment to modify the priority allocation of resources. NMFS also notes that retaining some level of discretion in allocating resources is necessary for the agency to adequately meet its obligations under other laws in addition to the MagnusonStevens Act, such as the ESA and MMPA. Lastly, the commenters appeared to have misconstrued the instructions from the Court. Instead of requiring that the SBRM Amendment stipulate the precise areas where observers must be concentrated, the Court, in Oceana II, clarified that it ``only requires that the FMP establish some method for determining observer concentration instead of leaving all decisions to the Regional Administrator's discretion'' [See, Oceana II at p. 234 (footnote 41)]. The SBRM Amendment establishes a very specific method for determining observer allocations across all relevant fisheries, and does not leave ``all
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decisions'' to the Regional Administrator. Rather, only in years in which external operational constraints prevent full implementation would NMFS have any discretion to adapt the results of the SBRM, and only then following a review and consultation with the Councils in a public forum. NMFS asserts that this approach is consistent with both the intent of the SBRM provisions of the MagnusonStevens Act and the guidance provided by the Court.

NMFS rejects the commenters' claim that the SBRM Amendment fails to mandate that data be reported in a rational manner useful for fisheries management, and that the amendment fails to establish a reporting requirement that provides information on the amount, type, and disposition of bycatch. Section 6.4 of the SBRM Amendment describes the alternatives considered regarding potential reporting procedures, and section 1.7 of the amendment establishes the requirements for two types of reports to be prepared at different time intervals. The amendment requires an annual report be provided to the Councils to provide the data they requested on the current status of observer coverage and discard information, along with an additional report provided every 3 years that assesses the SBRM in a more comprehensive manner. The amendment, in sections 1.7 and 6.4, identifies the specific data elements to be provided in the reports, including the amount, species, location, and gear types involved. The information to be reported, the frequency, and the format for the reports was proposed and adopted by both Councils as their preferred alternative approach to obtaining SBRM reports on a routine basis. NMFS asserts that the Councils are in the best position to determine their needs as to SBRM reports, and, as such, the SBRM Amendment clearly reflects the needs of the Councils for this information.

NMFS disagrees with the commenters that the SBRM Amendment fails to actually establish an SBRM simply because it provides a procedure for the Councils to make changes to certain provisions of the SBRM through the use of framework adjustments rather than full FMP amendments. The intent of this provision of the amendment is to facilitate an efficient and timely process for the Councils to develop and submit proposed changes to the SBRM, limited within certain constraints. Nothing in this provision diminishes or abrogates the agency's obligation to carefully review any framework adjustment proposed by a Council to ensure that the proposed changes are consistent with the Magnuson Stevens Act, other applicable law, and do not undermine or contravene the parent FMP. The amendment clearly stipulates that intent, as at section 6.5.2, which provides that ``the intent of this [framework] provision is to provide an efficient means for the Council to change the performance standard in certain circumstances when a higher level of precision (i.e., reducing the CV to less than 30 percent) is desired for a particular fishery or management program [emphasis added].'' Providing this mechanism to modify certain elements of the SBRM is considered important because several provisions of the parent FMPs already establish framework adjustment protocols for items such as creating new special access programs (SAPs) or new fishery sectors. As these changes are developed through a framework adjustment process, changes to the SBRM may be necessary in order to ensure sufficient discard reporting in the new SAP or sector. Without the ability to effect the necessary changes to the SBRM through the framework adjustment implementing the SAP or sector, the Council would have to defer implementation of each such framework until an accompanying amendment could be developed to implement the changes to the SBRM. This delay would directly contravene the intent of the parent FMPs.

NMFS also disagrees with the commenters that the amendment failed to consider the bycatch of species that are not targeted under the Northeast Region FMPs. This issue is addressed in several sections of the amendment. First, section 1.7 of the amendment clearly stipulates that the data collected by atsea fisheries observers ``shall be collected on all species of biological organisms caught by the fishing vessel and brought on board, including species managed under the subject FMPs but also including species on nonmanaged fish, invertebrates, and marine plants.'' This section of the amendment continues to stipulate, in a footnote, that a complete list of the species for which the listed data elements are to be collected can be found in Appendix A and Appendix R of the Fisheries Observer Program Manual. These lists include more than 500 distinct species and species codes that must be accounted for by observers in their catch and discard reports. This provision of the SBRM requires that information regarding the discards of all species be reported by atsea observers and reported to NMFS. The same information collected on species managed under a subject Northeast Region FMP would also be available, at the same level of detail, on all other species. The SBRM, however, is specifically crafted around the species managed under a subject FMP, and it is these species, with the addition of threatened and endangered sea turtles, that drive the allocation of observers across the subject fishing modes. Contrary to the claim of the commenters, the Councils explicitly considered expanding this aspect of the SBRM calculations to include all nonmanaged species. This is described in section 6.8.1 of the amendment document and includes the Councils' rationale for not so expanding the SBRM.

NMFS rejects the claim by the commenters that the agency ``locked'' the public and Councils out of the decisionmaking process to develop the SBRM Amendment. The process to development the amendment included numerous and varied opportunities for the public and the Councils to fully engage and provide valued input, fulfilling the letter and spirit of NEPA. The commenters correctly pointed out that the primary analyses and technical materials were developed by a Fishery Management Action Team (FMAT) that was chaired by a NMFS staff member, but claim that this represents a ``flawed'' approach. The choice of a NMFS staff member to serve as chair of this technical group was suggested by the Councils as a way to help with staffing resource concerns shared by the Councils. However, in all respects other than the position of the group's chair, the membership of the FMAT reflected the standard operating procedures for Plan Development Teams (PDTs), as used by the New England Council, as well as FMATs as used by the MidAtlantic Council. The SBRM FMAT included staff from both Councils, the Northeast Fisheries Science Center, NOAA General Counsel, and the Northeast Regional Office, all with the requisite expertise and background in the subject matter.

All activities, analyses, and recommendations of the FMAT were reported to a Joint Oversight Committee composed of voting member of both Councils, and all such meetings of the SBRM Committee were held in public fora with advance notice to the public. Throughout the development of the amendment, the SBRM Committee held six public meetings ranging in location from Virginia Beach, VA, to Peabody, MA. All decisions of the Councils with regards to establishing the range of alternatives to be considered in the
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amendment, selecting the preferred alternatives, approval of the draft amendment for release to the public, reviewing the results of the analyses and information provided by the FMAT, assessing the comments submitted by the public on the draft amendment and the changes proposed to address those comments were first vetted through the SBRM Committee in public meetings. In addition to the six meetings of the SBRM Committee, the Councils met publicly a total of 13 times to receive reports on the progress of the SBRM Amendment, to review the decisions and recommendations of the SBRM Committee, and to formally approve and adopt the amendment for release to the public and, later, to submit for Secretarial review. There was also a public meeting at which members of both Councils' SSCs conducted a formal peerreview of the technical components of the SBRM Amendment, and two public hearings were held to provide ample opportunity for interested members of the public to provide comments on the draft amendment.

Lastly, NMFS disagrees with the assertion by the commenters that the SBRM Amendment violates NEPA because an EIS was not prepared. Consistent with NEPA, Council for Environmental Quality (CEQ) regulations, and NOAA administrative policy, NMFS and the Councils collaborated to prepare an EA to evaluate the significance of the environmental impacts expected as a result of the actions considered in the SBRM Amendment. The results of this assessment are provided in section 8.9.2 of the amendment, which supports the finding of no significant impacts (FONSI) signed by the agency on October 16, 2007. The commenters provided no evidence, nor even any claims, that the conclusions in the FONSI are not supported by the facts presented in the EA for this finding. Contrary to the claim of the commenters, NMFS asserts that the EA considers a sufficient range of alternatives to satisfy the requirements of NEPA. As described throughout the amendment (the Executive Summary and chapters 6, 7, and 8), the alternatives considered by the Councils were structured around seven specific elements that together comprise the Northeast Region SBRM. Multiple alternatives were developed and considered for each element and, in some cases, various suboptions were also developed and considered. As noted in Appendix E of the amendment, in response to a similar comment received on the draft amendment, the available permutations of the various alternatives considered in this action exceeds 1,400 if the suboptions are not counted. Accounting for the suboptions, the number of possible outcomes exceeds 2,100 distinct sets of management alternatives. In addition to the sets of alternatives expressly analyzed in the EA, the Councils considered, but ultimately rejected from detailed analysis, an additional four distinct alternatives. These additional alternatives are described in section 6.8 of the amendment, and, contrary to the claim of the commenters, include alternatives that specifically addresses setting alternate CV levels and different intervals for the SBRM reports.

NMFS disagrees with the commenters that the EA fails to adequately discuss the purpose, need, and scope of the amendment. All of these elements are specifically identified and are fully described in chapter 1 of the amendment. The commenters assert that the EA fails to consider cumulative environmental impacts. NMFS rejects this claim, as section 7.3 of the amendment explicitly provides a discussion of the expected cumulative effects associated with the action. NMFS asserts that this treatment of cumulative effects is consistent with CEQ regulations and current NOAA policy. Regarding protected resources, several elements of sections 7.1 and 7.2 of the amendment address the potential impacts of the actions on protected resources, and NMFS considers this treatment, along with sections 8.3 and 8.8 of the amendment, to be adequate under all applicable law. Endangered sea turtles are explicitly addressed in the SBRM (see chapters 5 and 6), and are afforded a priority superior to all other fish species by ``trumping'' the second and third level importance filters (i.e., if the results of the second and third level importance filters would result in an observer allocation to a fishing mode that is less than the number of sea days calculated to adequately observe sea turtles, then the higher sea turtle allocation is applied). As noted throughout the amendment document, the MagnusonStevens Act specifically excludes marine mammals and birds from the definitions of fish and bycatch and, therefore, the SBRM (because it exists solely as a MagnusonStevens Act construct) need not expressly account for marine mammals or birds. Therefore, NMFS considers the SBRM Amendment to adequately address protected resources.

Comment 7: A comment letter written on behalf of four conservation organizations raised many of the same concerns as the conservation organization noted above. In particular, the commenters frequently referred to the results of the technical review described below. The responses to the comments identified in the technical review are addressed separately under comment 10. All other points raised in the comment letter are addressed in this response.

The commenters claim that the SBRM Amendment fails to achieve the purpose of the action or meet the related requirements of the Magnuson Stevens Act and the prior Court orders because it fails to explain the methods and processes by which bycatch is currently monitored, fails to determine whether these methods and process should be modified and/or supplemented, and fails to document the SBRM established for all Northeast Region FMP fisheries. The commenters claim that the SBRM Amendment does not explain the methods by which data and information on discards are obtained by observers. The commenters reiterated the claim made in comment 4 that the SBRM Amendment ``conclude[s] that observer coverage is not warranted'' in the midwater trawl fishery.

The commenters claim that the SBRM Amendment fails to specify levels of observer coverage required for each FMP, citing concern that the ``mere performance targets'' leave the actual level of observer coverage entirely up to the agency. The commenters also claim that the SBRM fails to adequately cover ``nonmanaged'' bycatch species.

The commenters claim that NMFS ``prevented'' the New England and MidAtlantic Councils and the public from meaningfully participating in the development of the SBRM Amendment. Similar to the previous commenter, the commenters claim that an EIS should have been prepared, rather than the EA, and that the document therefore does not comply with NEPA. In particular, the commenters claim that the lack of an EIS: Limited the opportunities for public participation and stymied the involvement of the Councils; failed to consider a range of alternatives; and failed to ensure that decisionmakers and the public are well informed about the potential environmental impacts of the action. The commenters suggested that the amendment should have been presented in a more accessible format, claiming that the SBRM is a ``nearly incoherent document.'' The commenters claim that the FMAT formed to prepare the technical materials for the Councils was a ``failure'' and failed to engage the Councils. The commenters further claim that the SBRM Amendment was ``carefully steered around the avoidance
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of the public participation requirements of NEPA,'' and that opportunities for public participation, including the two public hearings, were limited to Council meetings with short agenda items and ``little or no'' opportunity for public comment. The commenters also criticized the amount of time available to review and comment on the amendment, claiming that much of the document was not available ``in any form'' until shortly before the Councils approved the document in June 2007. The commenters concluded by criticizing the 60day comment period on the amendment, claiming that this amount of time was insufficient.

The commenters suggested that NMFS engage independent and objective scientific expertise, along with the public, and prepare an EIS in support of a ``significantly revised'' SBRM Amendment. The commenters claim that the SBRM was never peer reviewed by independent reviewers at any stage of its development. The commenters recognized that the document was reviewed by members of the Councils' SSCs, but claim that these reviewers ``lacked the highly specialized expertise necessary to conduct a review of this nature,'' and that the reviewers cannot be considered as independent and objective because they serve as members of the Councils' SSCs.

Response: NMFS disagrees that the amendment fails to explain the methods and processes by which bycatch is currently monitored or that the amendment fails to evaluate whether these methods should be modified and/or supplemented, noting that chapter 4 addresses these specific issues. Additional information about the current bycatch data collection programs is provided in chapter 5 of the amendment and in associated reference documents that are clearly identified throughout the amendment. As noted above in response to comments on this issue, it is incorrect to conclude that the SBRM Amendment in any way suggests that observer coverage ``is not warranted'' in any fishing mode, including the New England midwater trawl mode, which the amendment indicates would be allocated 316 observer sea days based on the 2004 observer data, a twofold increase over the actual coverage in this fishing mode in 2004.

NMFS disagrees with the commenters' implication that the SBRM Amendment was intended to specify levels of observer coverage required for each FMP. Nothing in the MagnusonStevens Act, or in either relevant Court order described above, requires that an SBRM include specific observer coverage levels to be identified for each FMP. Rather, the intent of the MagnusonStevens Act SBRM provision, supported by the Court, was to establish procedures to determine the appropriate levels of coverage [See, Oceana II at p. 233 (footnote 38), where the Court states that ``Oceana I did not require that an FMP mandate a specific level of observer coverage'']. The amendment clearly establishes the procedures to be used to make these determinations and requires that the agency utilize these procedures (``Each year, the Regional Administrator and the Science and Research Director shall allocate sufficient atsea observer coverage to the applicable fisheries of the Northeast Region in order to achieve a level of precision . . . no greater than 30 percent for each applicable species and/or species group'' SBRM Amendment at section 1.7).

The commenters' claim that the agency ``prevented'' the Councils from participating in a meaningful way in the development of the amendment is patently false. As described earlier in response to previous comments, the development of the SBRM Amendment was conducted under the oversight of a joint Council committee that included members from both Councils. All decisions regarding the development of the amendment were made by the Councils and were based on the
recommendations of the SBRM Oversight Committee. Contrary to the claim of the commenters, the evidence clearly indicates that both Councils were fully engaged in the development of this amendment, and there were no actions taken on the part of the agency to ``prevent'' such engagement.

NMFS considers the SBRM Amendment and associated EA to comply fully with the requirements of NEPA, the CEQ regulations, and NOAA Administrative Order 2166, and, therefore, rejects the assertion by the commenters that an EIS should have been prepared. According to the CEQ regulations, and all available guidance on the subject, an EIS need only be prepared when an EA or other related analysis identifies significant effects on the environment or if the facts available to the action agency cannot support the conclusions required in order to make a FONSI. The EA associated with the SBRM Amendment fully evaluated the expected direct, indirect, and cumulative impacts likely to result from implementation of the action. The EA, in both form and scope, followed all agency guidelines for an EA associated with an FMP amendment. As noted in response to previous comments, a full range of reasonable alternatives was considered by the Councils during the development of the amendment, and all relevant effects of the action, and its alternatives, were identified and made available to the relevant decisionmakers. In response to the claim that the amendment document is ``nearly incoherent,'' NMFS notes that at no stage in the development of the amendment did anyone else raise such a comment. NMFS considers this amendment to be an organized, wellwritten, and approachable document that includes each element required by NEPA and all applicable laws. The inclusion in the amendment of highly technical concepts and methodologies was necessary in order to treat the statistical analyses and modeling elements inherent in the development of an SBRM in a complete and transparent manner. Great care was taken to present this information clearly, to organize the amendment in a logical manner, and to use clear prose to the extent possible.

NMFS disagrees with the claim that the FMAT process was a failure. The FMAT members included representatives from bot

FOR FURTHER INFORMATION CONTACT Michael Pentony, Senior Fishery Policy Analyst, 9782819283.