[Federal Register Volume 75, Number 170 (Thursday, September 2, 2010)]
[Proposed Rules]
[Pages 53939-53946]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-21996]
[[Page 53939]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 100818375-0379-02]
RIN 0648-XX84
Magnuson-Stevens Act Provisions; Fisheries of the Northeastern
United States; Northeast Multispecies Fishery; Proposed Rule To
Implement Addenda to 17 Fishing Year (FY) 2010 Sector Operations Plans
and Contracts
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: This action proposes to add certain exemptions from Federal
fishing regulations to some or all Northeast (NE) multispecies sector
operations plans that were previously approved by the final sector rule
published April 9, 2010. That rule approved FY 2010 sector operations
plans and contracts and allocations of Annual Catch Entitlements (ACE)
for 17 sectors in the NE multispecies fishery. In addition to several
universal exemptions approved in the final rule for Amendment 16 the NE
Multispecies Fisheries Management Plan (FMP), the final sector rule
also approved several additional exemptions from NE multispecies
regulations for those sectors that requested them through their
respective sector operations plans. The sectors requested several
exemptions in the FY 2010 operations plans that NMFS subsequently
disapproved for various reasons, including that they were not allowed
as exemptions under Amendment 16, or that they were being addressed in
the Amendment 16 proposed rule. Among these was a request to
participate in the Gulf of Maine (GOM) Haddock Sink Gillnet Pilot
Program, a program proposed in Amendment 16 that would have allowed the
seasonal use of 6-inch (15.24-cm) mesh gillnets in the GOM Regulated
Mesh Area (RMA) to target haddock. The GOM Sink Gillnet Pilot Program
was subsequently disapproved by NMFS in Amendment 16. NMFS has
undertaken this action to consider an exemption functionally equivalent
to the GOM Haddock Sink Gillnet Pilot Program for all FY 2010 sectors.
NMFS is also considering granting an exemption that would allow the
discarding of unmarketable fish at sea.
DATES: Written comments must be received on or before September 17,
2010.
ADDRESSES: You may submit comments, identified by 0648-XX84, by any one
of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal: http://www.regulations.gov.
Fax: (978) 281-9135, Attn: Melissa Vasquez.
Mail: Paper, disk, or CD-ROM comments should be sent to
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries
Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the
outside of the envelope: ``Comments on 2010 Sector Exemption Rule.''
Instructions: All comments received are part of the public record
and will generally be posted to http://www.regulations.gov without
change. No comments will be posted for public viewing until after the
comment period has closed. All Personal Identifying Information (for
example, name, address, etc.) voluntarily submitted by the commenter
may be publicly accessible. Do not submit Confidential Business
Information or otherwise sensitive or protected information. NMFS will
accept anonymous comments (enter N/A in the required fields, if you
wish to remain anonymous). You may submit attachments to electronic
comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file
formats only.
Copies of requests for addenda to the FY 2010 sector operations
plans and contracts, and the supplemental environmental assessment
(EA), are available from the NMFS NE Regional Office at the mailing
address specified above. An Initial Regulatory Flexibility Analysis
(IRFA) was prepared for this proposed rule and is comprised of the EA,
the preamble, and the Classification sections of the proposed rule.
FOR FURTHER INFORMATION CONTACT: Melissa Vasquez, Fishery Policy
Analyst, phone (978) 281-9166, fax (978) 281-9135.
SUPPLEMENTARY INFORMATION: This action proposes to implement addenda to
FY 2010 NE multispecies sector operations plans and contracts that
would add certain exemptions from Federal fishing regulations for FY
2010 sectors. The Administrator, NE Region, NMFS (Regional
Administrator), has made a preliminary determination that the addenda
to the 17 approved FY 2010 sector operations plans and contracts are
consistent with the goals of the FMP as described in Amendment 16, and
other applicable laws, and are in compliance with the regulations that
govern NE multispecies sector allocation management as specified in 50
CFR 648.87.
Background
A final rule published April 9, 2010 (75 FR 18113), approved FY
2010 sector operations plans and contracts and allocations of ACE for
17 NE multispecies sectors. The Amendment 16 regulations governing the
development of sector operations plans and contracts allow for a sector
to request exemptions from Federal fishing regulations through the
sector operations plan and contract submitted to NMFS for approval on
an annual or bi-annual basis (Sec. 648.87(b)(2)(xv)). Pursuant to
Sec. 648.87(c)(2), the Regional Administrator may exempt vessels
participating in a sector from certain Federal fishing regulations, in
addition to the Amendment 16 universal exemptions already approved for
all sectors. Regulations prohibit sectors from requesting exemptions
that involve NE multispecies year-round closure areas, permitting
restrictions (e.g., vessel upgrades, etc.), gear restrictions designed
to minimize habitat impacts (e.g., roller gear restrictions, etc.), and
reporting requirements (not including days-at-sea (DAS) reporting
requirements or Special Access Program (SAP)-specific reporting
requirements). For FY 2010, the final rule implementing FY 2010 sectors
approved several new exemptions from NE multispecies regulations for
those sectors that requested them through their sector operations
plans. Specifically, certain sectors received exemptions from the
following measures: (1) 120-day blockout of the fishery required for
Day gillnet vessels; (2) 20-day spawning blockout of the fishery
required for all vessels; (3) limitation on the number of gillnets
imposed on Day gillnet vessels; (4) prohibition on a vessel hauling
another vessel's gillnet gear; (5) limitation on the number of gillnets
that may be hauled on Georges Bank (GB) when fishing under a
groundfish/monkfish DAS; (6) limits on the number of hooks that may be
fished; and (7) DAS Leasing Program length and horsepower restrictions.
The sectors also requested several exemptions in the FY 2010
operations plans that NMFS subsequently disapproved, because they are
prohibited from being requested or because similar exemption requests
[[Page 53940]]
were being addressed in the Amendment 16 proposed rule. Among these was
a request by the Sustainable Harvest Sector to participate in the GOM
Haddock Sink Gillnet Pilot Program, a program proposed in Amendment 16
that would have allowed the seasonal use of 6-inch (15.24-cm) mesh
gillnets in the GOM RMA (as opposed to the current 6.5-inch (16.51-cm)
mesh requirement) for the purposes of targeting GOM haddock.
Upon initial review of the FY 2010 sector operations plans and
contracts, NMFS requested that sectors remove exemption requests that
repeated measures already proposed under Amendment 16, including the
GOM Haddock Sink Gillnet Pilot Program. The Pilot Program was
subsequently disapproved by NMFS in Amendment 16 because of concern
that it could increase catch of overfished stocks, such as cod, and
therefore undermine the rebuilding programs for these stocks.
In comments on the proposed FY 2010 sector rule, the Sustainable
Harvest Sector, the New England Fishery Management Council (Council),
and 14 other commenters asked what actions NMFS was considering for
exemption requests such as the pilot program that were removed from
sector operations plans to reduce duplication with Amendment 16, but
which were subsequently disapproved. NMFS responded in a March 23,
2010, letter to the Council that it would work with sector managers
regarding reconsideration of the pilot program for sectors in a
separate rulemaking. At that time, NMFS noted it would also consider
granting approved sector exemption requests to all FY 2010 sectors, if
appropriate, through additional rulemaking. As a result, in April 2010,
NMFS solicited requests from the approved FY 2010 sectors to determine
if they would be interested in an exemption that would be functionally
equivalent to the GOM Haddock Sink Gillnet Pilot Program, as well as
any additional exemptions approved in the final sector rule which their
sector had not previously requested. In response, all 17 sectors
submitted requests for addenda to their operations plans and contracts
to incorporate additional exemptions. Therefore, 17 addenda to the
approved FY 2010 sector operations plans and contracts, and the
additional exemptions requested therein, are being proposed for
implementation in this proposed rule.
Among the exemptions being proposed is a partial exemption from the
requirement to retain and land all legal-sized fish of the 14 stocks
allocated to sectors. Recently, NMFS has received correspondence from
members of industry and sector managers expressing concerns with the
prohibition on discarding legal-sized fish of allocated stocks by
sector vessels, specifically legal-sized unmarketable fish. Regulations
at Sec. 648.87 (b)(1)(v)(A) specifically prohibit sector vessels from
discarding legal-sized regulated species allocated to sectors. This
requirement applies to all fish or pieces of fish above the minimum
size, including fish that may be considered unmarketable, as well as
carcasses. Sector members and managers have stated that the need to
separate the unmarketable fish from the food-grade product within
limited deck and storage space has created operational difficulties and
potential safety hazards at sea. Although this problem was raised to
the Council during the development of Amendment 16, no exceptions to
this requirement were considered or recommended.
To address this concern, this action proposes a partial exemption
in each sector operations plan from the prohibition on discarding of
legal-sized unmarketable fish of allocated stocks, provided that the
legal-sized unmarketable fish are accounted for in the discard rate, as
determined through observer coverage, similar to how other allowable
discards are accounted for. For the purposes of this exemption,
unmarketable fish is defined as any legal-sized fish the vessel owner/
captain elects not to retain, because of condition or marketability
problems.
Proposed Exemptions
The final rule approving FY 2010 sector operations plans and
contracts granted additional exemptions only to the sectors that
originally requested those exemptions. NMFS is proposing expanding
these previously approved sector-specific exemptions to those
additional sectors that have requested them through addenda to their FY
2010 sector operations plans and contracts. Of the 17 sectors that
requested additional exemptions, 13 sectors requested all of the
approved FY 2010 sector exemptions which they had not previously
requested, 2 sectors requested 3 additional exemptions, 1 sector
requested 2 additional exemptions, and 1 sector requested only one
additional exemption (Table 1). One sector also requested 4 new
exemptions that had not been previously approved for FY 2010 sectors.
Those new exemptions are not being proposed in this action, because it
was determined that adding these exemptions to the list of alternatives
could result in implementation delays that would reduce the efficacy of
this action for FY 2010 sectors. However, sectors will be able to
propose these and other new exemptions in their operations plans for FY
2011.
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[GRAPHIC] [TIFF OMITTED] TP02SE10.007
The following are the previously approved exemptions expanded to
additional sectors, as well as new exemptions proposed in this rule:
1. GOM Haddock Sink Gillnet Exemption (Newly Proposed for Sectors)
This exemption is functionally equivalent to a pilot program that
was proposed by the Council in Amendment 16 to allow vessels to
potentially catch more haddock seasonally in the GOM. The regulations
currently require a minimum mesh size of 6.5-in (16.51-cm) for gillnets
in the GOM RMA (Sec. 648.80(a)(3)(iv)). Minimum mesh size requirements
have been used, along with other management measures, to reduce overall
mortality on groundfish stocks, as well as to reduce discarding and
improve survival of sub-legal groundfish. This exemption would allow FY
2010 sector vessels to use 6-inch (15.24-cm) mesh stand-up gillnets in
the GOM RMA from January 1, 2011 to April 30, 2011, when fishing for
haddock. The designation of this season is consistent with the original
pilot program proposal and is the time period when haddock are most
available in the GOM. Sector vessels utilizing this exemption would be
prohibited from using tie-down gillnets during this period. The GOM
Haddock Sink Gillnet Program, as proposed by the Council, included the
provision that Day gillnet vessels would not be able to fish with,
possess, haul, or deploy more than 30 nets per trip. Consistent with
the original scope of the pilot program, NMFS is proposing that Day
gillnet vessels utilizing this exemption also be limited to 30 nets per
trip during this period. However, to maximize the flexibility for
sector vessels fishing under this exemption, as well as the general
utility of this exemption, NMFS is requesting public comment on a net
limit between 30 and 150 stand-up nets for Day gillnet vessels
utilizing the GOM Sink Gillnet Exemption. NMFS has analyzed the impacts
of Day gillnet vessels using up to 150 nets, the most expansive number,
in the supplemental EA prepared for this action. Day gillnet vessels
participating in sectors granted the exemption from Day gillnet net
limits, are exempt from the general net limit in the GOM RMA, and would
be able to fish up to 150 nets in the GOM RMA when not participating in
this program. The Letter of Authorization (LOA) issued to the sector
vessels that qualify for this exemption will specify the net
restrictions to help ensure the provision is enforceable. There would
be no limit on the number of nets that participating Trip gillnet
vessels would be able to fish with, possess, haul, or deploy, during
this period, because Trip gillnet vessels are required to remove all
gillnet gear from the water before returning to port at the end of a
fishing trip.
[[Page 53942]]
This exemption would provide sector vessels the opportunity to
potentially catch more haddock in the GOM, a fully rebuilt stock.
Recent gillnet selectivity studies, explained in the Amendment 16 Final
Environmental Impact Statement (FEIS), indicate that 6.5-inch (16.51
cm) sink gillnets retain few haddock and that 6-inch (15.24 cm) mesh
gillnets might improve the ability for gillnets to better target
haddock. However, the Amendment 16 FEIS also noted that gillnets are
effective at catching cod and pollock and that, if the catch rates of
these species were to be maintained or increased under the pilot
program, mortality on these stocks could increase. NMFS disapproved the
GOM Haddock Sink Gillnet Pilot Program in the final rule implementing
Amendment 16 because of its potential to increase catch and fishing
mortality of GOM cod and pollock, two stocks that, at the time, both
required reductions in mortality under established rebuilding programs,
without substantially increasing the catch of haddock. Recently, new
scientific information has indicated that pollock is not overfished,
overfishing is not occurring, and the stock is rebuilt. NMFS believes
that impacts to allocated target stocks, like GOM cod, resulting from
this exemption would be expected to be negligible, because fishing
mortality by sector vessels is restricted by an ACE for allocated
stocks, which caps overall mortality. This exemption may increase
revenues for sectors fishing with gillnet gear, by allowing a greater
catch of haddock to be retained, thus increasing efficiency and revenue
in the fishery.
A comment by the Conservation Law Foundation on the Amendment 16
proposed rule expressed concern that the original GOM Haddock Sink
Gillnet Pilot Program could impact Atlantic wolffish, which migrate
through the proposed program area. The 2008 report of the Northeast
Data Poor Stocks Working Group Meeting noted only a weak indication of
seasonal migration by wolffish in the GOM as they move from shallow to
deep water in autumn and then deep to shallow water in spring. It may
be that smaller mesh gillnets would increase or decrease catch of
wolffish during January through April; however, there is little
information at this time that would support either conclusion.
Furthermore, bycatch of wolffish and other non-allocated stocks when
fishing under this exemption would be tied to effort on allocated
stocks, which would be limited overall by the sector's ACE. NMFS will
monitor the level of bycatch of groundfish to determine whether it is a
problem under this exemption.
It is possible that a higher net limit for Day gillnet vessels
participating in this program could result in an increase in the number
of gillnets in the water at one time and therefore potentially increase
interactions with protected species. However, if additional nets result
in greater efficiency, then it is also possible that an increase in
nets could decrease the overall number of soak hours throughout the
year, thus potentially reducing interactions with protected species.
Sector vessels utilizing this exemption would still be required to
comply with all requirements of the Harbor Porpoise Take Reduction Plan
and Atlantic Large Whale Take Reduction Plan. The GOM Haddock Sink
Gillnet exemption has been requested by Northeast Fishery Sectors II
and III, V-VIII, and X-XII, the Sustainable Harvest Sector, the Port
Clyde Community Groundfish Sector, the GB Cod Fixed Gear Sector and the
Tri-State Sector.
2. Discarding Exemption
The regulations prohibit sector vessels from discarding any of the
14 legal-sized regulated species allocated to sectors (Sec.
648.87(b)(1)(v)(A)). Amendment 16 implemented this provision to ensure
that the sector's ACE is accurately monitored. Members of industry have
requested a partial exemption from this requirement with respect to
unmarketable fish, because of concerns that retaining and landing large
amounts of unmarketable fish and carcasses is creating operational
difficulties and unsafe working conditions for sector vessels at sea.
Available data from the Northeast Fishery Observer Program (NEFOP) for
sector trips monitored during the first three months of FY 2010
indicate that sector vessels may land as much as 1,000 lb (453.59 kg)
of damaged fish and carcasses on a given trip. To comply with this
requirement, sector vessels have had to store this unmarketable fish on
the vessel, in some cases in totes on deck, creating unsafe work
conditions. Anecdotal information suggests that fish dealers typically
dispose of unmarketable fish for sector vessels as a courtesy. However,
there is currently little data available to indicate the scope of this
occurrence among dealers, and any other methods of disposal used by
sector vessels.
The Regional Administrator is proposing a partial exemption from
the requirement to retain all legal-sized fish for FY 2010 sectors that
would allow sector vessels to discard these fish under the condition
that legal-sized unmarketable allocated fish are accounted for in the
overall sector-specific discard rates in the same way discards of
undersized fish are currently accounted for, through observer or at-sea
monitoring coverage. This exemption would enhance operational
flexibility and safer working conditions to sector vessels. In
addition, this exemption would relieve the burden on sector vessels and
their dealers from having to dispose of the unmarketable fish upon
landing. The determination of what fish should be discarded under this
exemption would be at the discretion of the vessel operator. There
would be an incentive for vessel operators to retain and market as much
of their catch of allocated stocks as possible to maximize the value of
the sector's ACE, because discarded fish would still count against the
sector's ACE without any financial benefit. Thus, it is unlikely that
this exemption would lead to more discards, but would provide that
flexibility to sector vessels. This exemption would be expected to
result in negligible impacts to allocated species and non-allocated
species and bycatch, because discarded fish are already deceased.
Impacts to protected resources and the physical environment would also
be expected to be negligible, because overall effort by sectors is
limited by an ACE. Implementation of this exemption for all sectors may
increase safety at sea, and may increase the expected profit margins of
fishermen by eliminating any costs associated with disposal of the
unmarketable fish, thereby resulting in a low positive impact on sector
participants and ports. This exemption is proposed for 16 sectors:
Sustainable Harvest Sector, the Tri-State Sector, the GB Cod Fixed Gear
Sector, the Port Clyde Community Groundfish Sector, the Northeast
Coastal Communities Sector, and Northeast Fishery Sectors II and III,
and V-XIII.
3. 120-Day Block Requirement Out of the Fishery for Day Gillnet Vessels
The 120-day block requirement out of the fishery for Day gillnet
vessels was implemented in 1997 under Framework 20 (62 FR 15381, April
1, 1997) to help ensure that management measures for Day gillnet
vessels were comparable to effort controls placed on other fishing gear
types, given that gillnets continue to fish as long as they are in the
water. Regulations at Sec. 648.82(j)(1)(ii) require that each NE
multispecies gillnet vessel declared into the Day gillnet category
declare and take 120 days out of the non-exempt gillnet fishery. Each
period of time taken must be a minimum of 7 consecutive days, and at
least 21 of the 120 days must be taken between June 1
[[Page 53943]]
and September 30. An exemption to this requirement was previously
approved for the following six sectors in the final rule approving FY
2010 sector operations plans and contracts: Northeast Fishery Sectors
(NEFS) III and XI, the GB Bank Cod Fixed Gear Sector, the Sustainable
Harvest Sector, the Tri-State Sector, and the Port Clyde Community
Groundfish Sector. This action proposes that eight additional sectors
would be exempted from this Day gillnet requirement through an
operations plan addendum: Northeast Fishery Sectors II, V-VIII, X and
XII, and the Tri-State Sector. This exemption was previously approved
for the FY 2010 sectors that originally requested this based upon the
rationale that this measure was designed to control fishing effort and,
therefore, is no longer necessary for sectors because sectors are
restricted to an ACE for each groundfish stock, which limits overall
fishing mortality. Under this proposed rule, this exemption for all
sectors would increase the operational flexibility of sector vessels
and would be expected to increase profit margins of sector fishermen.
For additional information on this exemption, please refer to the
proposed and final sector rule (74 FR 68015 and 75 FR 18113),
respectively.
4. 20-Day Spawning Block
Regulations at Sec. 648.82(g) require vessels to declare out and
be out of the NE multispecies DAS program for a 20-day period each
calendar year between March 1 and May 31, when spawning is most
prevalent in the GOM. This regulation was developed to reduce fishing
effort on spawning groundfish stocks and was previously approved for FY
2010 sectors based upon the rationale that the sector's ACE will
restrict fishing mortality, making this measure no longer necessary as
an effort control. Exemption from this requirement would provide vessel
owners with greater flexibility to plan operations according to fishing
and market conditions. For additional information on this exemption,
please refer to the proposed and final sector rule (74 FR 68015 and 75
FR 18113), respectively. This exemption was previously approved for the
Sustainable Harvest Sector, the Tri-State Sector, and the Northeast
Coastal Communities Sector. An additional 13 sectors would receive this
exemption through this action: Northeast Fishery Sectors II and III,
and V-XIII, the GB Cod Fixed Gear Sector, and the Port Clyde Community
Groundfish Sector.
5. Limitation on the Number of Gillnets for Day Gillnet Vessels
Current gear restrictions in the groundfish RMAs restrict Day
gillnet vessels from fishing more than: 100 gillnets (of which no more
than 50 can be groundfish gillnets) in the GOM RMA (Sec.
648.80(a)(3)(iv)); 50 gillnets in the GB RMA (Sec. 648.80(a)(4)(iv));
and 75 gillnets in the Mid-Atlantic (MA) RMA (Sec. 648.80(b)(2)(iv)).
This exemption, as previously approved for the Sustainable Harvest
Sector in the final sector rule for FY 2010, allows sector vessels to
fish up to 150 nets (any combination of flatfish or groundfish nets) in
each of the RMAs, and would provide greater operational flexibility to
sector vessels in deploying gillnet gear. This exemption was previously
approved because it is designed to control fishing effort and is no
longer necessary for sector vessels, since each sector is restricted by
an ACE for each stock, which caps overall fishing mortality. For
additional information on this exemption, please refer to the proposed
and final sector rule (74 FR 68015 and 75 FR 18113), respectively.
Since publication of the final sector rule for FY 2010, this exemption
has been requested by 12 additional sectors: The Port Clyde Community
Groundfish Sector, the Tri-State Sector, the GB Cod Fixed Gear Sector,
the Northeast Fishery Sectors II and III, V-VIII, and X-XII.
6. Prohibition on a Vessel Hauling Another Vessel's Gillnet Gear
Northeast Fishery Sectors III and XI received an exemption for FY
2010 from current regulations that prohibit one vessel from hauling
another vessel's gillnet gear (Sec. Sec. 648.14(k)(6)(ii)(A) and
648.84) in order to share fixed gear among sector vessels. This
exemption was originally approved to allow sector vessels to reduce
costs by pooling gillnet gear, and because it was determined that the
regulations pertaining to hauling and setting responsibilities are no
longer necessary when sectors are confined to an ACE for each stock.
Consistent with the exemption as originally approved, the sectors
requesting this exemption have proposed that all vessels utilizing
community fixed gear be jointly liable for any violations associated
with that gear. For additional information on this exemption, please
refer to the proposed and final sector rule (74 FR 68015 and 75 FR
18113), respectively. This exemption is proposed for an 11 additional
sectors: The Northeast Fishery Sectors II, V-VIII, X and XII, the
Sustainable Harvest Sector, the Port Clyde Community Groundfish Sector,
the GB Cod Fixed Gear Sector and the Tri-State Sector.
7. Limitation on the Number of Gillnets That May Be Hauled on GB When
Fishing Under a Groundfish/Monkfish DAS
The GB Cod Fixed Gear Sector received an exemption for FY 2010 from
the limit on the number of gillnets that may be hauled on GB when
fishing under a groundfish/monkfish DAS. Current regulations at Sec.
648.80(a)(4)(iv) prohibit Day gillnet vessels fishing on a groundfish
DAS from possessing, deploying, fishing, or hauling more than 50 nets
on GB. This exemption was previously approved, because it would allow
nets deployed under existing net limits of the Monkfish FMP to be
hauled more efficiently by vessels dually permitted under both FMPs.
For additional information on this exemption, please refer to the
proposed and final sector rule (74 FR 68015 and 75 FR 18113),
respectively. This exemption is proposed for an additional 12 sectors
for FY 2010: Northeast Fishery Sectors II and III, V-VIII, and X-XII,
the Sustainable Harvest Sector, the Port Clyde Community Groundfish
Sector, and the Tri-State Sector.
8. Limitation on the Number of Hooks That May Be Fished
The GB Cod Fixed Gear Sector was granted an exemption for FY 2010
from the number of hooks that a vessel may fish on a given fishing
trip. Current regulations (Sec. 648.80) prohibit vessels from fishing
or possessing more than 2,000 rigged hooks in the GOM RMA, more than
3,600 rigged hooks in the GB RMA, more than 2,000 rigged hooks in the
Southern New England (SNE) RMA, or 4,500 rigged hooks in the MA RMA.
This exemption was approved in the final sector rule for FY 2010
because it would allow sector vessels to more efficiently harvest ACE
and is no longer a necessary control on effort by sector vessels. For
additional information on this exemption, please refer to the proposed
and final sector rule (74 FR 68015 and 75 FR 18113), respectively. This
exemption has been granted to the GB Cod Hook Sector every year since
2004. This action proposes that an additional 13 sectors would be
exempted from this requirement: the Northeast Fishery Sectors II and
III, V-VIII, and X-XII, the Sustainable Harvest Sector, the Port Clyde
Community Groundfish Sector, the Tri-State Sector, and the Northeast
Coastal Communities Sector.
[[Page 53944]]
9. Length and Horsepower Restrictions on DAS Leasing
While sector vessels are exempt from the requirement to use NE
multispecies DAS to harvest groundfish, sector vessels have been
allocated and still need to use NE multispecies DAS for specific
circumstances. For example, the Monkfish FMP includes a requirement
that limited access monkfish Category C and D vessels harvesting more
than the incidental monkfish catch must fish under both a monkfish and
a groundfish DAS. Therefore, sector vessels may still use, and lease,
NE multispecies DAS.
The Sustainable Harvest Sector and Tri-State Sector received an
exemption from the DAS Leasing Program length and horsepower baseline
restrictions on DAS leases between vessels within their individual
sectors as well with vessels in other sectors with this exemption.
Restricting sectors to their ACEs eliminates the need to use vessel
characteristics to control fishing effort. Further, exemption from this
restriction allows sector vessels greater flexibility in the
utilization of ACE and DAS. Approving this exemption for additional
sectors could increase the profitability of sector participants by
expanding the pool of eligible lessors and lessees for any given
vessel. Providing greater flexibility in the distribution of DAS could
result in increased effort on non-allocated target stocks, such as
monkfish and skates. However, sectors predicted little consolidation
and redirection of effort in their FY 2010 operations plans. In
addition, any potential redirection in effort would be restricted by
the sector's ACE for each stock, as well as effort controls in other
fisheries (e.g., trip limits and DAS). For additional information on
this exemption, please refer to the proposed and final sector rule (74
FR 68015 and 75 FR 18113), respectively. This proposed action would
exempt the Northeast Fishery Sectors II-XIII, the GB Cod Fixed Gear
Sector, and the Port Clyde Community Groundfish Sector from the
requirements.
Supplemental Environmental Assessment
In accordance with the National Environmental Policy Act, one
supplemental EA was prepared for the 17 operations plan addenda. The
supplemental EA is tiered from the Environmental Impact Statement (EIS)
for Amendment 16 and the 17 sector EAs prepared for the 17 sector
operations plans and contracts approved for FY 2010. The supplemental
EA for this action examines the biological, economic, and social
impacts associated with the GOM Haddock Sink Gillnet Exemption. It also
provides a cumulative effects analysis (CEA) that addresses the
combined impact of the direct and indirect effects of all proposed
exemptions if approved for all the FY 2010 sectors. For the purpose of
this analysis, the supplemental EA assumes that all 17 sectors have
requested and are proposed to be approved for all additional
exemptions, because an individual sector approved for a given exemption
could have access to unlimited allocation through ACE trading. The
summary finding of the supplemental EA concludes that, operating under
the proposed exemptions, the sectors would produce similar effects that
have non-significant impacts. An analysis of aggregate sector impacts
was also conducted. Visit http://www.regulations.gov to view the
supplemental EA prepared for the 17 sector operations plan addenda that
this rule would implement.
Classification
Pursuant to Sec. 304(b)(1)(A) of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act), the Assistant
Administrator for Fisheries, NOAA, has determined that this proposed
rule is consistent with the NE Multispecies FMP, other provisions of
the Magnuson-Stevens Act, and other applicable law, subject to further
consideration after public comment.
This proposed rule is exempt from review under Executive Order
(E.O) 12866.
An initial regulatory flexibility analysis (IRFA), consisting of
this section, the preamble of this proposed rule, and the supplemental
EA prepared for this action, was prepared as required by Sec. 603 of
the Regulatory Flexibility Act (RFA). This IRFA describes the economic
impact that the proposed rule, if adopted, would have on small
entities. A description of the action, why it is being considered, and
the legal basis for this action are contained in the preamble to this
proposed rule and in Sections 1.0, 2.0, and 3.0 of the supplemental EA
prepared for this action. A summary of the analysis follows.
Economic Impacts of the Proposed Action on Regulated Small Entities
Enrolled in a Sector
This proposed action would affect regulated entities engaged in
commercial fishing for groundfish that are enrolled in any one of the
17 sectors that are operating in FY 2010. Anyone with a valid limited
access Federal permit under the NE Multispecies FMP is eligible to join
a sector. The Small Business Administration (SBA) size standard for
commercial fishing (NAICS code 114111) is $4 million in sales.
Available data indicate that, based on 2005-2007 average conditions,
median gross annual sales by commercial fishing vessels were just over
$200,000, and no single fishing entity earned more than $2 million
annually. Since available data are not adequate to identify affiliated
vessels, each operating unit is considered a small entity for purposes
of the RFA, and, therefore, there is no differential impact between
small and large entities. As of April 30, 2010, a total of 762 of the
1,477 eligible permits are enrolled in sectors for FY 2010.
The EIS for Amendment 16 compares economic impacts of sector
measures with non-sector measures, and analyzes costs and benefits of
the universal exemptions. The proposed rule proposing approval of the
FY 2010 sector operations plans and contracts (74 FR 68015, December
22, 2009) discussed the economic impacts of the additional exemptions
requested by sectors. This proposed rule and the accompanying
supplemental EA discuss the economic impacts of approving the GOM Sink
Gillnet Exemption and the partial exemption from the prohibition on
discarding, as well as expanding the additional exemptions approved for
FY 2010 sectors. The exemptions considered in this proposed rule would
provide additional economic flexibility to vessels already
participating in NE multispecies sectors during FY 2010. All exemptions
requested by the sectors are intended to provide positive social and
economic effects to sector members and ports.
The GOM Haddock Sink Gillnet Exemption is being requested by
Northeast Fishery Sectors II and III, V-VIII, and X-XII, the
Sustainable Harvest Sector, the Port Clyde Community Groundfish Sector,
the GB Cod Fixed Gear Sector, and the Tri-State Sector, which represent
616 permits. The exemption would allow the use of 6-inch (15.24 cm)
mesh gillnets in the GOM RMA from January 1, 2011-April 30, 2011. This
exemption would provide participating sector vessels an opportunity to
potentially retain more GOM haddock, a healthy stock, and share in the
benefits from the stock recovery. To utilize this exemption, it would
be necessary for participating sector vessels to purchase 6-inch (15.24
cm) mesh gillnets. However, it would allow a greater catch of haddock,
which may increase revenues for gillnet fishermen and the ports where
they land their fish, particularly if participating
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vessels are able to change fishing behavior to selectively target this
stock and minimize catch of other allocated target stocks.
The Sustainable Harvest Sector, the Tri-State Sector, the GB Cod
Fixed Gear Sector, the Port Clyde Community Groundfish Sector, the
Northeast Coastal Communities Sector, and Northeast Fishery Sectors II
and III, and V-XIII, representing 716 permits, are requesting exemption
from the regulations that currently prohibit sector vessels from
discarding any legal-sized regulated species allocated to sectors.
Sector vessels have had to retain legal-sized unmarketable fish, which
requires them to store this fish on the vessel while at sea, in some
cases in large quantities in totes on deck, creating unsafe work
conditions. In addition, sector vessels have had to determine a method
of disposal of any unmarketable fish landed. Anecdotal information
indicates that some fish dealers dispose of unmarketable fish for
sector vessels as a courtesy; however, the scope of this occurrence and
any operational costs incurred by the dealer or vessels is unknown. A
partial exemption from this regulation that would allow sector vessels
to discard unmarketable fish would provide sector vessels more
operational flexibility and improve safety conditions at sea. It would
also relieve the burden, if any, on sector vessels and their dealers to
find a way to dispose of the unmarketable fish once landed.
Exemption from the Day gillnet 120-day block requirement out of the
fishery is being requested by the Northeast Fishery Sectors II, V-VIII,
X and XII, and the Tri-State Sector. Existing regulations require that
vessels using gillnet gear remove all gear from the water for 120 days
per year. Since the time out from fishing is up to the vessel owner to
decide (with some restrictions), many affected vessel owners have
purchased more than one vessel such that one may be used while the
other is taking its 120-day block out of the groundfish fishery, to
provide for sustained fishing income. Acquiring a second vessel adds
the expense of outfitting another vessel with gear and maintaining that
vessel. The exemption from the 120-day block would allow sector members
to realize the cost savings associated with retiring the redundant
vessel. Furthermore, this exemption would provide additional
flexibility to sector vessels to maximize the utility of other sector-
specific and universal exemptions, such as the exemption from the GB
Seasonal Closure in May and portions of the GOM Rolling Closure Areas.
Several of the FY 2010 sectors, representing 390 permits, are already
utilizing this exemption and approving the requests by additional
sectors for this exemption would extend this flexibility and potential
economic benefits to an additional 245 permits.
The Northeast Fishery Sectors II, V-VIII, X and XII, the
Sustainable Harvest Sector, the Port Clyde Community Groundfish Sector,
the GB Cod Fixed Gear Sector and the Tri-State Sector are requesting
exemption from the prohibition on a vessel hauling gear that was set by
another vessel. The community fixed gear exemption would allow sector
vessels in the Day gillnet category to effectively pool gillnet gear
that may be hauled or set by sector members. This provision would
reduce the total amount of gear that would have to be purchased and
maintained by participating sector members resulting in some uncertain
level of cost savings, along with a possible reduction in total gear
fished. This exemption has already been approved for 120 permits in FY
2010 sectors and approving these additional requests would extend the
exemption to an additional 496 permits.
The Northeast Fishery Sectors II and III, V-VIII, and X-XII, the
Sustainable Harvest Sector, the Port Clyde Community Groundfish Sector,
the Tri-State Sector, and the Northeast Coastal Communities Sector,
representing an additional 540 permits, are requesting exemption from
the number of hooks that may be fished. These exemptions would provide
vessel owners in these additional sectors with the flexibility to adapt
the number of hooks fished to existing fishing and market conditions.
This exemption would also provide an opportunity to improve vessel
profitability. The exemption from the number of hooks that may be
fished has been granted to the GB Cod Hook Sector every year since 2004
and was granted to the GB Cod Fixed Gear Sector for FY 2010. Approving
this exemption for these additional sectors would extend the potential
economic benefits to more vessels in other sectors.
Northeast Fishery Sectors II and III, V-VIII, and X-XII, the
Sustainable Harvest Sector, the Port Clyde Community Groundfish Sector,
and the Tri-State Sector have requested to be exempt from the
limitation on the number of gillnets that may be hauled on GB when
fishing under a groundfish/monkfish DAS. Approving this exemption would
increase operational flexibility for an additional 522 permits,
providing an opportunity for a substantial portion of the fleet to
improve vessel profitability.
Northeast Fishery Sectors II and III, and V-XIII, the GB Cod Fixed
Gear Sector, and the Port Clyde Community Groundfish Sector, are
requesting exemption from the required 20-day spawning block out of the
fishery. Exemption from the 20-day spawning block would improve
flexibility to match trip planning decisions to existing fishing and
market conditions. Although vessel owners currently have the
flexibility to schedule their 20-day block according to business needs
and may use that opportunity to perform routine or scheduled
maintenance, vessel owners may prefer to schedule these activities at
other times of the year, or may have unexpected repairs. Removing this
requirement may not have a significant impact, but would still provide
vessel owners with greater opportunity to make more efficient use of
their vessel. This exemption was previously approved for 3 sectors
representing 153 permits. Approving these exemption requests would
extend the exemption to an additional 563 permits.
The Port Clyde Community Groundfish Sector, the Tri-State Sector,
the GB Cod Fixed Gear Sector, the Northeast Fishery Sectors II and III,
V-VIII, and X-XII, are requesting an exemption from the limit on the
number of nets (not to exceed 150) that may be deployed by Day gillnet
vessels. This exemption would provide greater flexibility to deploy
fishing gear by participating sector members according to operational
and market needs. A total of 116 permits participating in FY 2010
sectors are already exempt from this requirement. The proposed action
would extend this flexibility and potential economic benefits to an
additional 500 permits.
The Port Clyde Community Groundfish Sector, the GB Cod Fixed Gear
Sector, and Northeast Fishery Sectors II-XIII, request exemption from
regulations that currently limit leasing of DAS to vessels within
specified length and horsepower restrictions. Current restrictions
create a system in which a small vessel may lease DAS from virtually
any other vessel, but is limited in the number of vessels that small
vessels may lease to. The opposite is true for larger vessels.
Exemption from these restrictions would allow greater flexibility to
lease DAS between vessels of different sizes and may be expected to
expand the market of potential lessees for some vessels. The efficiency
gains of this exemption as approved for the Tri-State Sector and the
Sustainable Harvest Sector were limited because the exemption would
only apply to leases between Tri-State
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Sector and Sustainable Harvest Sector members, representing 135
permits. This proposed action would extend this exemption to an
additional 609 permits, which would not only potentially increase
efficiency for the additional sectors for which this exemption is
approved, but also for members of the Tri-State and Sustainable Harvest
Sectors by expanding the pool of potential lessees with this exemption.
Since DAS would not be required while fishing for groundfish, the
economic importance of this exemption would be associated with the need
to use groundfish DAS when fishing in other fisheries, for example,
monkfish.
Economic Impacts of the Alternative to the Proposed Action
Under the No Action alternative, one or more of the sectors'
requests for operations plan addenda would be disapproved, which would
result in sector vessels operating under the operations plans and
exemptions as approved for the start of the 2010 FY in the final rule
published April 9, 2010 (75 FR 18113). Under this scenario, sector
vessels may experience the efficiency gains and economic benefits of
sector participation and the exemptions for which they have already
been approved, as described in the IRFA for the proposed rule proposing
approval of FY 2010 sector operations and exemptions. However, sector
vessels would not be provided the opportunity to benefit from the
increase in the operational flexibility that may be gained from all the
exemptions available to FY 2010 sectors and revenues would be expected
to be lower than under the proposed action. Relative to the proposed
action, it is more likely under the No Action alternative that the
ports and fishing communities where sectors plan to land their fish
would be negatively impacted.
Allowing sectors to propose either entirely new exemptions or
variations of previously approved exemptions was considered. However,
this alternative was considered unreasonable because these exemptions
are discrete measures which, by their nature, do not lend themselves to
alternate configurations, and allowing sectors to propose entirely new
exemptions or changing already approved exemptions to the list of
alternatives could result in implementation delays that would reduce
the utility of this action for sectors in this fishing year (FY 2010).
In addition, this action is intended to be a continuing part of a
longer action implementing Amendment 16, Framework Adjustment 44 to the
NE Multispecies FMP, and the final rule approving FY 2010 sector
operations plans, in which other alternative measures have already been
considered. The FY 2010 sectors will have an opportunity to propose any
new or revised exemptions in their operations plans for FY 2011.
Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule
This proposed rule contains no collection-of-information
requirement subject to the
Paperwork Reduction Act
Regulations under the Magnuson-Stevens Fishery Conservation and
Management Act require publication of this notification to provide
interested parties the opportunity to comment on proposed sector
operations plan addenda.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 27, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2010-21996 Filed 9-1-10; 8:45 am]
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