[Federal Register Volume 77, Number 85 (Wednesday, May 2, 2012)]
[Rules and Regulations]
[Pages 26129-26148]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-10527]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 120120056-2414-02]
RIN 0648-XA797
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; 2012 Sector Operations Plans and Contracts, and
Allocation of Northeast Multispecies Annual Catch Entitlements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule partially approves, and implements, 19
Northeast (NE) multispecies (groundfish) sector operations plans and
contracts for fishing year (FY) 2012, and allocates quotas of NE
multispecies to the sectors. This final rule does not approve certain
exemptions and measures proposed in the operations plans, as explained
below. Approval of sector operations plans is necessary to allocate
quota to the sectors and to grant the sectors regulatory exemptions.
This provides vessels participating in sectors with increased
operational flexibility while limiting overall fishing mortality. This
final rule also announces a preliminary allocation to the New Hampshire
State-Operated Permit Bank.
DATES: Effective May 1, 2012, through April 30, 2013; except the
exemption from the requirement to declare intent to fish in the Eastern
U.S./Canada Special Access Program and the Closed Area II Yellowtail
Flounder/Haddock Special Access Program prior to leaving the dock,
which will become effective on further notification.
ADDRESSES: Copies of each sector's final operations plan and contract,
the environmental assessment (EA), and the Final Regulatory Flexibility
Analysis (FRFA) are available from the NMFS Northeast Regional Office:
Daniel M. Morris, Acting Regional Administrator, National Marine
Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. These
documents are also accessible via the Federal eRulemaking Portal:
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mark Grant, Sector Policy Analyst,
phone (978) 281-9145, fax (978) 281-9135.
SUPPLEMENTARY INFORMATION: A proposed rule soliciting public comment on
the 19 sector operations plans and contracts was published in the
Federal Register on February 15, 2012 (77 FR 8780), with public
comments accepted through March 1, 2012. After review of the public
comments, NMFS has partially approved the 19 sector operations plans
and contracts, determining the operations plans, as approved, to be
consistent with the goals of the Northeast (NE) Multispecies Fishery
Management Plan (FMP) and the sector regulations at Sec. 648.87.
Background
The NE groundfish sector management system is a voluntary system
that allocates a portion of groundfish stocks to self-selecting groups
of permit holders, called sectors. Sector members are granted increased
operational flexibility through exemptions from regulations in exchange
for taking on additional responsibility. The annual allocations to
sectors are called Annual Catch Entitlements (ACE) and are based on the
collective fishing history of the sectors' members. Sectors are self-
selecting, meaning each sector can choose its members. Sectors may pool
harvesting resources and consolidate operations to fewer vessels, if
they desire.
NMFS received operations plans and preliminary contracts for FY
2012 from 19 sectors (see Table 1). In accordance with the sector
regulations, the proposed rule for this action sought comment on the 19
operations plans and contracts for FY 2012, and the exemptions
proposed. The Administrator of NMFS for the NE Region (Regional
Administrator) has made a determination that the 19 sector operations
plans and contracts, as approved, are consistent with the goals of the
FMP, and comply with sector operation measures.
Amendment 13 to the FMP (69 FR 22906, April 27, 2004) established a
process for forming sectors within the groundfish fishery, implemented
restrictions applicable to all sectors, and authorized allocation of a
total allowable catch (TAC) for specific groundfish species to a
sector. Amendment 16 to the FMP (74 FR 18262, April 9, 2010) expanded
sector management, revised the two existing sectors to comply with the
expanded sector rules (summarized below), and authorized an additional
17 sectors, for a total of 19 sectors. Framework Adjustment (FW) 45 to
the FMP (76 FR 23042, April 25, 2011) further revised the rules for
sectors and authorized five new sectors (for a total of 24 sectors).
The FMP defines a sector as ``[a] group of persons (three or more
persons, none of whom have an ownership interest in the other two
persons in the sector) holding limited access vessel permits who have
voluntarily entered into a contract and agree to certain fishing
restrictions for a specified period of time, and which has been granted
a TAC(s) [sic] in order to achieve objectives consistent with
applicable FMP goals and objectives.'' A sector's TAC is called an ACE.
Regional Administrator approval authorizes a sector to fish and
allocates an ACE for stocks of regulated NE multispecies. Each
individual sector's ACE for a particular stock represents a share of
that stock's annual catch limit (ACL) available to commercial NE
multispecies vessels, and each ACE is based upon the landings history
of permits participating in that sector.
Nineteen sectors submitted operations plans and sector contracts,
and requested allocation of stocks regulated under the FMP for FY 2012.
The operations plans were similar to previously approved versions, but
include changes to incorporate the additional requested exemptions.
Five sectors chose not to submit operations plans and contracts for FY
2012: The Georges Bank (GB) Cod Hook Sector; Northeast Fishery Sector
(NEFS) I; the State of New Hampshire Permit Bank Sector; the
Commonwealth of Massachusetts Permit Bank Sector; and, the State of
Rhode Island Permit Bank Sector. The State of Maine Permit Bank Sector,
Northeast Fishery Sector IV and Sustainable Harvest Sector 3 would
operate as private lease-only sectors. The Sustainable Harvest Sector 3
has not explicitly prohibited fishing activity, and may transfer
permits to active vessels.
A separate rule (77 FR 16942, March 23, 2012) approves Amendment
17, which authorizes the allocation of ACE to state-operated permit
banks without requiring those state-operated permit banks to comply
with the administrative and procedural requirements for groundfish
sectors. State-operated permit banks have until April 1, 2012, to
declare whether each of their permits will contribute to the permit
bank's ACE or will be used to provide DAS to common pool vessels. This
final rule approves the Maine Permit Bank Sector; however, the State of
Maine may elect to instead operate in FY 2012 under the state-operated
permit bank provisions, as authorized by Amendment 17.
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Table 1--Summary of the Number of Permits, Active Vessels, Gear Type, and Area Fished for the Approved FY 2012
Sectors *
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Number of Gear type(s) fished
Sector Permit count active vessels (percent) Area(s) fished
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Fixed Gear Sector (FGS)........ 105 37 Gillnet: 45................. Gulf of Maine.
Hook Gear: 55............... Inshore Georges
Bank.
Offshore Georges
Bank.
Southern New
England/Mid-
Atlantic.
Maine Permit Bank Sector 8 0 N/A......................... N/A.
(MEPBS).
Northeast Coastal Communities 28 10 Trawl: 83................... Gulf of Maine.
Sectors (NCCS).
Hook Gear: 17............... Inshore Georges
Bank.
Offshore Georges
Bank.
Southern New
England/Mid-
Atlantic.
NEFS 10........................ 54 21 Trawl: 65................... Gulf of Maine.
Gillnets: 34................ Inshore Georges
Bank.
Southern New
England/Mid-
Atlantic.
NEFS 11........................ 44 35 Trawl: 15................... Gulf of Maine.
Gillnet: 85................. Southern New
England/Mid-
Atlantic.
NEFS 12........................ 11 10 Trawl: 65................... Gulf of Maine.
Gillnet: 30................. Inshore Georges
Bank.
Hook: 5..................... .................
NEFS 13........................ 38 29 Trawl: 96................... Gulf of Maine.
Gillnet: 4.................. Inshore Georges
Bank.
Offshore Georges
Bank.
Southern New
England/Mid-
Atlantic.
NEFS 2......................... 79 70 Trawl: 100.................. Gulf of Maine.
Inshore Georges
Bank.
Offshore Georges
Bank.
Southern New
England/Mid
Atlantic.
NEFS 3......................... 83 35 Gillnet: 95................. Gulf of Maine.
Hook Gear: 5................ Inshore Georges
Bank.
Offshore Georges
Bank.
Southern New
England/Mid-
Atlantic.
NEFS 4......................... 49 0 N/A......................... N/A.
NEFS 5......................... 29 22 Trawl: 100.................. Inshore Georges
Bank.
Offshore Georges
Bank.
Southern New
England/Mid-
Atlantic.
NEFS 6......................... 19 4 Trawl: 100.................. Gulf of Maine.
Inshore Georges
Bank.
Offshore Georges
Bank.
Southern New
England/Mid-
Atlantic.
NEFS 7......................... 20 18 Trawl: 56................... Gulf of Maine.
Gillnet: 44................. Inshore Georges
Bank.
Offshore Georges
Bank.
Southern New
England/Mid-
Atlantic.
NEFS 8......................... 20 12 Trawl: 100.................. Gulf of Maine.
Inshore Georges
Bank.
Offshore Georges
Bank.
Southern New
England/Mid-
Atlantic.
NEFS 9......................... 61 18 Trawl: 100.................. Gulf of Maine.
Inshore Georges
Bank.
Offshore Georges
Bank.
Southern New
England/Mid-
Atlantic.
Port Clyde Community Groundfish 42 32 Trawl: 46................... Gulf of Maine.
Sector (PCCGS).
Gillnet: 54................. Inshore Georges
Bank.
Offshore Georges
Bank.
Sustainable Harvest Sector 1 116 41 Trawl: 90................... Gulf of Maine.
(SHS 1).
Gillnet: 10................. Inshore Georges
Bank.
Offshore Georges
Bank.
Southern New
England/Mid-
Atlantic.
Sustainable Harvest Sector 3 19 0 Trawl: 100.................. Gulf of Maine.
(SHS 3).
Inshore Georges
Bank.
Offshore Georges
Bank.
Southern New
England/Mid-
Atlantic.
Tri-State Sector (TSS)......... 18 6 Trawl: 83................... Gulf of Maine.
Gillnet: 16................. Inshore Georges
Bank.
Hook gear: 1................ Offshore Georges
Bank.
Southern New
England/Mid-
Atlantic.
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* The data in this table are from the sector rosters submitted as of December 1, 2011, and are subject to change
based on final sector rosters.
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Allocation of ACEs
As of December 1, 2011, 845 of the 1,475 eligible NE multispecies
permits have preliminarily enrolled in a sector or state-operated
permit bank for FY 2012. These permits account for approximately 99
percent of the FY 2012 commercial groundfish sub-ACL. Table 1 includes
a summary of permits enrolled in a sector as of December 1, 2011.
Permits not enrolled in a sector have through April 30, 2012, to join a
sector. Permits enrolled in a sector have until April 30, 2012, to
withdraw from a sector and join the common pool for FY 2012. State-
operated permit banks must notify NMFS by April 1 whether each of their
permits will contribute to the permit bank's ACE or will be used to
provide DAS to common pool vessels. NMFS will publish final ACEs for
sectors and state-operated permit banks, and common pool sub-ACL
totals, based upon final rosters and permit bank declarations, as soon
as possible after the start of FY 2012.
ACEs are calculated by summing the potential sector contributions
(PSC) of permits enrolled in a sector, or state-operated permit bank,
for a stock and then multiplying that percentage by the available
commercial sub-ACL for that stock. Table 2 shows the cumulative
percentage of each commercial sub-ACL each sector and state-operated
permit bank will receive, based on their rosters as of December 1,
2011.
Individual permits are not assigned a PSC for Eastern GB cod or
Eastern GB haddock; rather the GB cod and GB haddock allocation of each
sector and state-operated permit bank is divided into a Western ACE and
an Eastern ACE for each stock. Eastern GB cod and haddock ACEs are to
be harvested exclusively in the Eastern U.S./Canada Area and are based
on the sector's, or permit bank's, percentage of the GB cod and haddock
ACLs. For example, if a sector is allocated 4 percent of the GB cod ACL
and 6 percent of the GB haddock ACL, the sector is allocated 4 percent
of the Eastern U.S./Canada Area GB cod TAC and 6 percent of the Eastern
U.S./Canada Area GB haddock TAC as its Eastern GB cod and haddock ACEs.
These amounts are then subtracted from the sector's overall GB cod and
haddock allocations to determine its Western GB cod and haddock ACEs.
An interim final rule (77 FR 19944, April 3, 2012) set the ACL for
GOM cod for FY 2012, along with a sub-ACL of GOM cod for the commercial
fishery. The commercial fishery sub-ACL for GOM cod is 4,170 mt. The
commercial fishery sub-ACL is allocated to sectors, state-operated
permit banks, and the common pool based on the total permit enrollment
in all sectors and state-operated permit banks, and the cumulative GOM
cod PSCs associated with the sectors and state-operated permit banks.
This results in a common pool sub-ACL of 81 mt. The remainder of the
GOM cod commercial sub-ACL (4,089 mt) is the potential sector catch for
FY2012. The potential sector catch is reduced by 471 mt to account for
possible carryover of GOM cod ACE from FY 2011. The 471-mt reduction is
necessary to ensure sector catch in FY 2012 contributes to a reduction
in overfishing of GOM cod. The remaining amount, after reduction for
potential ACE carryover, is the sector sub-ACL (3,618 mt). The sector
sub-ACL for GOM cod (3,618 mt) is divided among the sectors and state-
operated permit banks based on their PSCs.
The PSCs of all sectors and state-operated permit banks do not add
up to 100 percent because some limited access permits are enrolled in
the common pool. To account for this when allocating the GOM cod sector
sub-ACL among only sectors and state-operated permit banks, the GOM cod
PSC of each sector and each state-operated permit bank was divided by
the sum of all sectors' and state-operated permit banks' GOM cod PSCs.
This determines each sector's and state-operated permit bank's share (a
percentage) of the sector sub-ACL. Therefore, a sector's GOM cod ACE is
calculated by multiplying the sector's share (calculated as described
above and listed in Table 3) by the sector sub-ACL (3,618 mt) instead
of multiplying the sector's GOM cod PSC (as listed in Table 2) by the
commercial sub-ACL for GOM cod (4,170 mt).
Tables 4 and 5 show the ACEs each sector and state-operated permit
bank will be allocated based on their December 1, 2011, sector rosters
for FY 2012, including any PSC corrections that have been made since
the proposed rule published. The final ACEs, to the nearest pound, are
provided to the individual sectors and state-operated permit banks, and
NMFS uses those final ACEs for monitoring sector catch. While the
common pool does not receive a specific allocation of ACE, the common
pool sub-ACLs have been included in each of these tables for
comparison.
At the start of FY 2012, NMFS will withhold 20 percent of each
sector's FY 2012 ACE (the ACE buffer) for each stock to allow time to
process any FY 2011 ACE transfers and to determine whether the FY 2012
ACE allocated to any sector needs to be reduced, or any overage
penalties need to be applied to accommodate an FY 2011 ACE overage by
that sector. Sectors will be allowed to trade ACE, exclusively to
balance any overages, for 2 weeks following the finalization of sector
catch for FY 2011. The New England Fishery Management Council (Council)
and sector managers will be notified of this deadline in writing and
the decision will be announced on the NMFS Northeast Regional Office
Web site (http://www.nero.noaa.gov/).
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Sector Operations Plans and Contracts
NMFS received 19 sector operations plans and contracts by the
September 1, 2011, deadline, and subsequently received preliminary
rosters by the December 1, 2011, deadline for FY 2012. Each sector
elected to submit a single document that is both the sector's contract
and the sector's operations plan. Therefore, these submitted operations
plans not only contain the rules under which each sector would fish,
but also provide the legal contract that binds the sector's members to
the sector and its operations plan.
Each sector conducts fishing activities according to its approved
operations plan; however, each operations plan and sector member must
comply with the regulations governing sectors, which are found at Sec.
648.87. All permit holders with a limited access NE multispecies permit
that was valid as of May 1, 2008, are eligible to participate in a
sector, including holders of inactive permits currently held in
confirmation of permit history (CPH). While membership in each sector
is voluntary, each member (and his/her permits enrolled in the sector)
must remain with the sector for the entire FY, and cannot fish in the
NE multispecies days-at-sea (DAS) program outside of the sector (i.e.,
in the common pool) during the FY. Participating vessels are required
to comply with all applicable Federal fishing regulations, except as
specifically exempted by a letter of authorization (LOA) issued by the
Regional Administrator. Sector operations plans may be amended in-
season if a change is necessary and agreed to by NMFS, provided the
change is consistent with the sector administration provisions. These
changes are included in updated LOAs issued to sector members and
through amendments to the approved operations plan.
NMFS allocates to sectors, and state-operated permit banks, all
large-mesh groundfish stocks for which member permits have landings
history, with the exception of Atlantic halibut, windowpane flounder,
Atlantic wolffish, and the Southern New England/Mid-Atlantic (SNE/MA)
stock of winter flounder. NMFS does not allocate Atlantic halibut,
northern windowpane flounder, southern windowpane flounder, Atlantic
wolffish, SNE/MA winter flounder, and ocean pout because these stocks
have small ACLs, and permits have limited landings history. Instead,
these stocks are managed with trip limits. Allocating these stocks
would complicate monitoring of sector operations and would require a
different scheme for determining each permit's potential sector
contribution.
Sector vessels are required to retain all legal-sized allocated
groundfish, unless NMFS grants the sector an exemption allowing the
sector's vessels to discard legal-sized unmarketable fish at sea. Catch
(including discards) of all allocated groundfish stocks by a sector's
vessels counts against the sector's ACE, unless the catch is an element
of a separate ACL sub-component, such as groundfish caught when fishing
in an exempted fishery, or yellowtail flounder caught when fishing in
the Atlantic sea scallop fishery. Sector vessels fishing for monkfish,
skate, lobster (with non-trap gear), and spiny dogfish when on a sector
trip (e.g., not fishing under provisions of a NE multispecies exempted
fishery) will have their groundfish catch (including discards) on those
trips debited against the sector's ACE. Ratios to calculate discards on
unobserved sector trips are determined by NMFS based on observed trips.
Sectors must not exceed any ACE during the FY. Amendment 16
required sectors to develop independent third-party dockside monitoring
(DSM) programs to verify landings at the time they are weighed by the
dealer, and to certify that the landing weights are accurate as
reported by the dealer. FW 45 sets the required coverage level for DSM
to the level that NMFS funds. For FY 2012, NMFS will not fund a DSM
program; therefore, the DSM level for FY 2012 is zero. Amendment 16
also required that sectors design, implement, and fund an at-sea
monitoring (ASM) program beginning in FY 2012. However, for 2012, NMFS
will fund and operate an ASM program for all sectors. The details of
the ASM program run by NMFS are included in Appendix 3 of Sector
Operations Plan, Contract, and Environmental Assessment Requirements
Fishing Year 2012 (copies available from NMFS, see ADDRESSES). The ASM
coverage rate target is 17 percent, in addition to the expected 8-
percent coverage rate of the Northeast Fishery Observer Program
(NEFOP). These two programs are expected to result in coverage of 25
percent of all sector trips and will be the basis for calculating
discards by sector vessels. As discussed later, NMFS has determined
that this level of observer coverage is sufficient to monitor sector
fishing activity for purposes of calculating when ACLs have been
achieved.
Sectors are required to monitor their landings and available ACE,
and submit weekly catch reports to NMFS. In addition, the sector
manager is required to provide NMFS with aggregate sector reports on a
daily basis after reaching a threshold (specified in the operations
plan). Once a sector catches its ACE for a particular stock, the sector
is required to cease all fishing operations in that stock area until it
acquires additional ACE for that stock. Sectors may transfer ACE
between themselves, but sectors may not transfer ACE to or from common
pool vessels. Each sector must submit an annual report to NMFS and the
Council within 60 days of the end of the FY detailing the sector's
catch (landings and discards by the sector), enforcement actions, and
pertinent information necessary to evaluate the biological, economic,
and social impacts from the sector, as directed by NMFS.
Each sector contract provides procedures to enforce the sector
operations plan, explains sector monitoring and reporting requirements,
presents a schedule of penalties, and provides authority to sector
managers to issue stop fishing orders to sector members that violate
provisions of the operations plan and contract. Sector members may be
held jointly and severally liable for ACE overages, discarding of
legal-sized fish, and/or misreporting of catch (landings or discards).
Each sector operations plan submitted for FY 2012 states that the
sector will withhold an initial reserve from the sector's sub-
allocation to each individual member to prevent the sector from
exceeding its ACE. Each sector contract also details the method for
initial ACE allocation to sector members; for FY 2012, each sector
plans to allocate each sector member an amount of fish equal to the
amount each individual member's permit contributed to the sector's ACE,
minus a reserve.
In order to comply with the National Environmental Policy Act
(NEPA) in an efficient manner, a single EA was prepared analyzing all
19 operations plans. The sector EA is tiered from the Environmental
Impact Statement (EIS) prepared for Amendment 16 and the EA prepared
for Framework Adjustment 45. The summary findings of the EA conclude
that each sector will likely produce similar effects that will result
in non-significant impacts. An analysis of aggregate sector impacts was
also conducted and the Regional Administrator has issued a Finding of
No Significant Impact for the sector EA.
Amendment 16 contains several ``universal'' regulatory exemptions
that apply to all sectors. These universal exemptions apply to: Trip
limits on allocated stocks; the GB Seasonal Closure Area; NE
multispecies DAS restrictions; the requirement to use a 6.5-inch (16.5-
cm) mesh codend when
[[Page 26137]]
fishing with selective gear on GB; and portions of the Gulf of Maine
(GOM) Rolling Closure Areas (RCA).
Sectors may request additional exemptions from NE multispecies
regulations through their sector operations plan. Regulations prohibit
sectors from requesting exemptions from year-round closed areas (CA),
permitting restrictions, gear restrictions designed to minimize habitat
impacts, and reporting requirements (excluding DAS reporting
requirements or DSM requirements). If NMFS grants an exemption to a
sector, NMFS issues each sector vessel a LOA authorizing the exemption
for each such vessel.
Approved FY 2012 Exemptions
A total of 49 exemptions from the NE multispecies regulations were
requested by sectors through their FY 2012 operations plans. This final
rule authorizes 20 exemptions (see Table 6) for the sectors that
requested them, after NMFS thoroughly reviewed and considered public
comments on the exemption requests.
In FY 2011, sectors were exempted from the following 16
requirements; and these exemptions are again approved for FY 2012: (1)
120-day block out of the fishery required for Day gillnet vessels; (2)
20-day spawning block out of the fishery required for all vessels; (3)
limits on the number of gillnets imposed on Day gillnet vessels; (4)
prohibition on a vessel hauling another vessel's gillnet gear; (5)
limits on the number of gillnets that may be hauled on GB when fishing
under a groundfish/monkfish DAS; (6) limits on the number of hooks that
may be fished; (7) DAS Leasing Program length and horsepower
restrictions; (8) the GOM Sink Gillnet Mesh Exemption January through
April; (9) extension of the GOM Sink Gillnet Mesh Exemption through
May; (10) prohibition on discarding legal-size unmarketable fish; (11)
daily catch reporting by sector managers for sector vessels
participating in the CA I Hook Gear Haddock Special Access Program
(SAP); (12) gear requirements in the U.S./Canada Management Area; (13)
powering vessel monitoring systems (VMS) while at the dock; (14) DSM
for vessels fishing west of 72[deg]30' W. long.; (15) DSM for Handgear
A-permitted sector vessels; and (16) DSM for monkfish trips in the
monkfish Southern Fishery Management Area (SFMA).
NMFS has also approved new exemptions for FY 2012 from the
following four requirements: (17) Prohibition on fishing inside and
outside of the CA I Hook Gear Haddock SAP while on the same trip; (18)
6.5-inch (16.5-cm) minimum mesh size requirement for trawl nets (to
allow 6-inch (15.2-cm) mesh); (19) prohibition on a vessel hauling
another vessel's hook gear; and (20) the requirement to declare intent
to fish in the Eastern U.S./Canada SAP and the CA II Yellowtail
Flounder/Haddock SAP prior to leaving the dock (with an effective date
to be determined).
Disapproved Exemptions for FY 2012
NMFS has denied new exemptions from the following five requirements
in FY 2012, which were proposed for approval: (21) Seasonal
restrictions for the Eastern U.S./Canada Haddock SAP; (22) seasonal
restriction for the CA II Yellowtail Flounder/Haddock SAP; (23) maximum
ACE carry-over provision; (24) ACE buffer provision; and (25) minimum
fish size provisions for haddock. The reasons for these denials are
detailed later in this preamble.
NMFS has denied exemptions from the following 13 requirements
because they are prohibited by FMP regulations: (26) Year-round access
to the Cashes Ledge Closure Area; (27) year-round access to CA I; (28)
year-round access to CA II; (29) year-round access to the Western GOM
Closure Area; (30) extrapolation of discarded fish pieces across
strata; (31) authorization to use video monitoring in place of ASM;
(32) all hail requirements; (33) year-round access to the Eastern U.S./
Canada Area; (34) ASM for sector vessels; (35) ASM for trips targeting
dogfish; (36) ASM for hook-only and Handgear A vessels; (37) ASM for
extra-large mesh gillnet vessels; and (38) the ASM standard for random
trip selection.
NMFS has denied exemptions from the following eight requirements
because they were previously rejected, and sector applicants provided
no new information that would warrant an exemption: (39) Minimum fish
sizes to allow 100-percent retention; (40) minimum fish sizes to retain
12-inch (30.5-cm) yellowtail flounder; (41) VMS messages be sent
directly to NMFS; (42) weekly catch report requirements; (43)
prohibition on pair trawling; (44) minimum hook size; (45) 6.5-inch
(16.5-cm) minimum mesh size for trawls to allow 5-inch (12.7-cm) mesh
when targeting redfish; and (46) sector roster submission by the
December 1 deadline.
NMFS has denied exemptions from the following three requirements
because they may jeopardize rebuilding of the GOM cod stock, which is
overfished and experiencing overfishing: (47) the April GOM Rolling
Closure Area; (48) the May GOM Rolling Closure Area; and (49) the June
GOM Rolling Closure Area.
This final rule implements approved FY 2012 exemptions only for
sectors that requested those exemptions through their sector operations
plans (see Table 6). The accompanying EA has analyzed all approved
exemption requests as if all sectors had requested all exemptions.
Therefore, sectors not granted an approved exemption in this final rule
may request any of the approved exemptions at any time during the FY,
except the discarding exemption, and could add these exemptions to
their operations plans through amendments to those plans. Approved
amendments to operations plan will be posted on the Northeast Regional
Office Web site at: http://www.nero.noaa.gov/sfd/sfdmultisectorinfo.html under `Other Resources.' NMFS also issues
sector vessels updated LOAs reflecting any approved amendments to their
sector's operations plan.
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Approved FY 2012 Sector Exemption Requests--Regulations That Were
Previously Exempted for FY 2011
In FY 2011, sectors were exempted from the following 16
requirements; and these exemptions are again approved for FY 2012: (1)
120-day block out of the fishery required for Day gillnet vessels; (2)
20-day spawning block out of the fishery required for all vessels; (3)
limits on the number of gillnets imposed on Day gillnet vessels; (4)
prohibition on a vessel hauling another vessel's gillnet gear; (5)
limits on the number of gillnets that may be hauled on GB when fishing
under a groundfish/monkfish DAS; (6) limits on the number of hooks that
may be fished; (7) DAS Leasing Program length and horsepower
restrictions; (8) the GOM Sink Gillnet Mesh Exemption January through
April; (9) extension of the GOM Sink Gillnet Mesh Exemption through
May; (10) prohibition on discarding legal-size unmarketable fish; (11)
daily catch reporting by sector managers for sector vessels
participating in the CA I Hook Gear Haddock Special Access Program
(SAP); (12) gear requirements in the U.S./Canada Management Area; (13)
powering vessel monitoring systems (VMS) while at the dock; (14) DSM
for vessels fishing west of 72[deg]30' W. long.; (15) DSM for Handgear
A-permitted sector vessels; and (16) DSM for monkfish trips in the
monkfish Southern Fishery Management Area (SFMA). Details of these
exemptions and the rationale for approving them can be found in the
proposed rule for this action, and the final rule for FY 2011, and are
not repeated in this final rule. Comments on these exemptions are
addressed in detail below.
Approved Exemption Requests--New Exemptions for FY 2012
17. Prohibition on Fishing Inside and Outside the CA I Hook Gear
Haddock SAP While on the Same Trip
FW 40A established the CA I Hook Gear Haddock SAP to allow
additional access to healthy stocks on a category B DAS using selective
gears. This SAP had quotas for groundfish stocks to prevent
overfishing. Under the rules implementing FW 40A, NE multispecies
vessels fishing on a trip within this SAP were prohibited from
deploying fishing gear outside of the SAP on the same trip when they
declared into the SAP (Sec. 648.85(b)(7)(iv)(G)). This restriction was
established to avoid potential quota monitoring and enforcement
complications that could arise when a vessel fishes both inside and
outside the SAP on the same trip.
This final rule grants an exemption from the prohibition on fishing
inside and outside of the CA I Hook Gear Haddock SAP on the same trip
for FY 2012. However, to ensure accurate accounting of catch in this
SAP, vessels using this exemption are prohibited from towing a trawl,
or setting fixed gear, across the border of the SAP. The intent is that
each tow or haul of gear occurs entirely inside, or entirely outside,
the SAP boundaries. NMFS proposed requiring vessels using this
exemption to send NMFS a VMS catch report that specifically identifies
GB haddock (and any other shared allocation) catch from inside the SAP
prior to the end of the trip, or within 24 hr of landing, to identify
catch from inside and outside the SAP on the same trip. However, sector
vessels participating in this SAP are already required to send a daily
VMS catch report. Therefore, to streamline reporting, NMFS will use the
daily VMS catch report from vessels participating in this SAP to
identify catch from inside the SAP separately from catch outside the
SAP on the same trip. Vessels fishing both inside and outside this SAP
on the same trip must report only catch within the SAP in their daily
VMS catch report. Vessels will send their daily VMS catch report to
NMFS if their sector is also granted an exemption from the requirement
for daily catch reporting by the sector manager for vessels
participating in the CA I Hook Gear Haddock SAP (11 above).
This exemption will increase sector operational flexibility and
efficiency. NMFS has no reason to believe that this particular catch
report would be any less accurate than the existing sector catch
reports; however, the Regional Administrator reserves the right to
revoke this exemption if it is determined that the exemption negatively
impacts monitoring.
18. 6.5-Inch (16.5-cm) Minimum Mesh Size Requirement for Trawl Nets
An exemption from the 6.5-inch (16.5-cm) minimum mesh size for
trawl net cod ends to allow sector vessels to use 6-inch (15.2-cm) mesh
codends on trawl nets in all regulated mesh areas to target redfish is
approved for FY 2012. The exemption is intended to increase the catch
of redfish, increase the operational flexibility of sector vessels, and
increase the profit margins of sector fishermen. Sector vessels
participating in the directed redfish fishery under this exemption will
be required to declare their intention to the Sector Manager at least
48 hr prior to departure, comply with the pre-trip notification system
(PTNS) requirements, and may only use this exemption on trips carrying
either an at-sea monitor or NEFOP observer to monitor catch and
bycatch. Daily catch reports must be submitted to the Sector Manager to
ensure that all catch is harvested within the sector's ACE. The
Regional Administrator reserves the right to revoke this exemption if
it is determined the exemption is negatively impacting spawning fish or
populations of stocks the current minimum mesh sizes were intended to
protect.
The 6.5-inch (16.5-cm) minimum mesh size was initially adopted
through interim rules in 2001 and 2002 (67 FR 21140, April 29, 2002; 67
FR 50292, August 1, 2002), and made permanent through Amendment 13. FW
42 further modified the mesh regulations in the SNE and MA regulated
mesh areas (RMA) to reduce discards of yellowtail flounder. The
regulations at Sec. 648.80 specify the minimum mesh size that may be
used in fishing nets on vessels fishing in the GOM, GB, SNE, and MA
RMAs. Minimum mesh size restrictions have been used with other
management measures to reduce overall mortality on groundfish stocks,
as well as to reduce discarding, and improve survival, of sub-legal
groundfish. These requirements were intended to protect spawning fish
and increase the size of targeted fish. Mesh selectivity is only one of
a number of factors that influences the overall selection pattern in a
fishery. Fishermen can influence the size of the fish they catch by
fishing at different times of the year, in different locations, or by
using different gear or techniques.
Although a codend minimum mesh size of 6 inches (15.2 cm) is
smaller than the current legal size for standard trawl gear, it is the
same size codend mesh currently authorized for use on GB by sector
vessels using selective gears. Available mesh selectivity studies show
that 6-inch (15.2-cm) mesh is unlikely to increase sub-legal catch for
cod and haddock, but information is lacking for other stocks and mesh
sizes. For this reason, NMFS will monitor this exemption to ensure that
this exemption does not result in a greater retention of sub-legal
groundfish, as well as non-allocated species and bycatch. If an
exemption from the 6.5-inch (16.5-cm) minimum mesh size restriction
increases sub-legal groundfish bycatch by sector vessels, then juvenile
escapement, stock age structure, and overall mortality reduction
objectives could be undermined. Further, equity may be a concern if
sub-legal bycatch triggered management actions affecting the entire
fishery, including non-sector vessels. The LOA issued to sector vessels
that qualify for this exemption
[[Page 26141]]
will specify the requirements for using 6-inch (15.2-cm) mesh to help
ensure the provision is enforceable.
NMFS is currently funding a study through the Northeast Cooperative
Research Partners Program to investigate strategies and methods to
sustainably harvest the redfish resource in the GOM through a network
approach, including fishing enterprises, gear manufacturers,
researchers, social and economic experts, and managers. This approach
includes investigating success of various mesh sizes within the
fishery. It is anticipated that results from that research will be
available in the near future and would be used in further evaluating
requests for exemption from the minimum mesh size requirements.
19. Prohibition on a Vessel Hauling Another Vessel's Hook Gear
An exemption from the prohibition on a vessel hauling another
vessel's hook gear is approved for FY 2012. This exemption will allow
fishermen from within the same sector to haul each other's hook gear.
The exemption from hook limits and implementation of ACE as a mortality
control make it unnecessary to prevent a vessel from hauling another
vessel's gear as an effort control. Consistent with the exemption
approved for community gillnets, all vessels utilizing community hook
gear will be jointly liable for any violations associated with that
gear. This joint liability would assist in the enforcement of
regulations. Additionally, each member intending to haul the same gear
will be required to mark the gear, consistent with Sec. Sec.
648.14(k)(6)(ii)(B) and 648.84(a).
Current regulations prohibit one vessel from hauling another
vessel's hook gear (Sec. 648.14(k)(6)(ii)(B)). The regulations were
developed to facilitate the enforcement of existing hook regulations
that were created as effort and mortality controls, and no provisions
exist in the regulations allowing for multiple vessels to haul the same
gear. The increased flexibility afforded by this exemption may increase
efficiency.
20. Requirement To Declare Intent To Fish in the Eastern U.S./Canada
Haddock SAP and the CA II Yellowtail Flounder/Haddock SAP Prior To
Leaving the Dock
An exemption from the requirement to declare intent to fish in the
Eastern U.S./Canada Haddock SAP and the CA II Yellowtail Flounder/
Haddock SAP prior to leaving the dock is granted for FY 2012. This
exemption will allow sector vessels to declare their intent to fish in
these SAPs while at sea. This exemption will not be effective until
such time that the VMS system is modified to accommodate making these
declarations at sea. Sectors granted this exemption will be notified by
electronic mail when this exemption takes effect, and sector vessels
will be issued new LOAs explaining how to make declarations using this
exemption and including any additional requirements for using this
exemption.
NE multispecies vessels are required to declare that they will be
fishing in either the Eastern U.S./Canada Haddock SAP or the CA II
Yellowtail Flounder/Haddock SAP prior to leaving the dock (Sec. Sec.
648.85(b)(8)(v)(D) and 648.85(b)(3)(v)). This measure was included in
the final rule implementing Framework 40A to ensure that vessels
fishing exclusively in those areas could be credited DAS for their
transit time to and from these SAPs. Because sector catch is limited by
ACE, DAS credit for trips in these SAPs is no longer necessary.
Disapproved Exemption Requests--New Exemptions Requests That Were
Proposed for Approval
21. Seasonal Restriction for the Eastern U.S./Canada Haddock SAP
SAPs allow access to year-round closed areas in order to facilitate
access to groundfish stocks that can support an increase in mortality.
The Eastern U.S./Canada Haddock SAP was implemented with a sunset date
by FW 40A in 2004 to provide an opportunity to target haddock while
fishing on a Category B DAS in, and near, CA II (69 FR 67780, November
19, 2004). The SAP required vessels to use gear that reduced the catch
of cod and other stocks of concern. The SAP had a season of May 1
through December 31 to reduce effort during periods of groundfish
spawning. In 2006, FW 42 implemented this SAP permanently and shortened
the season to August 1 through December 31 to reduce cod catch.
Subsequent actions approved additional gear types for use in this SAP.
For sector vessels, the only benefit of this SAP is that it
provides access to the northern tip of CA II. Amendment 16 exempts
sectors from the gear requirements of this SAP because sector catch is
constrained by ACEs, but sectors are still required to comply with
reporting requirements and the restricted season for access from August
1 through December 31 (Sec. 648.85(b)(3)(iv)). Sectors argue that
their catch is restricted by ACE and their access to the SAP area in
the northern tip of CA II should not be seasonally restricted. Sectors
further argue that impacts to the physical environment and essential
fish habitat (EFH) will be negligible because any increase in effort
will be minor and the portion of CA II included in this SAP is outside
any habitat areas of particular concern (HAPC). However, NMFS is
concerned that this exemption may have negative effects on allocated
stocks by allowing an increase in effort in a time and place where
those stocks, particularly haddock, aggregate to spawn.
Amendment 16 prohibits sectors from being granted exemptions from
year-round closed areas. NMFS requested comment on whether it is
appropriate to exempt sectors from a SAP season, given that the portion
of the SAP in the closed area is already open part of the year, or if
the Council's current prohibition on allowing exemptions from closed
areas applies to SAPs. No comment was received from the Council
regarding its intent. This exemption is denied because it is unclear
whether the Council meant for sectors to be allowed exemptions from SAP
seasons or if their intent was to prohibit such exemptions because it
is a year-round closed area.
22. Seasonal Restriction for the CA II Yellowtail Flounder/Haddock SAP
SAPs allow access to year-round closed areas in order to facilitate
access to groundfish stocks that can support an increase in fishing
mortality. The CA II Yellowtail Flounder/Haddock SAP was implemented by
Amendment 13 in 2004 to provide an opportunity to target yellowtail
flounder in CA II on a Category B DAS. Vessels were required to use
either a flounder net or other gear types approved for use in the
Eastern U.S./Canada Area. The SAP season ran from June 1 through
December 31. In 2005, FW 40 B made this SAP permanent and shortened the
season to July 1 through December 31 to reduce interference with
spawning yellowtail flounder (70 FR 31323, June 1, 2005).
Amendment 16 further revised this SAP by opening the SAP to target
haddock from August 1 through January 31, when the SAP is not open to
allow targeting of GB yellowtail flounder. Sectors are required to
comply with the SAP reporting requirements and the restricted season of
August 1 through January 31 (Sec. 648.85(b)(3)(iii)). When open only
to target haddock, the flounder net is not authorized and only approved
trawl gears or hook gear may be used. The gear requirements were
implemented to avoid catching yellowtail flounder when the SAP was open
only to the targeting of haddock.
Unlike the Eastern U.S./Canada Haddock SAP, the CA II Yellowtail
[[Page 26142]]
Flounder/Haddock SAP provides access to a large area in CA II. Sectors
are required to use the same approved gears as the common pool to
reduce the advantage sector vessels have over common pool vessels.
Sectors argue that their catch is restricted by ACE and their access to
the SAP area in CA II should not be restricted.
The seasonal restriction on this SAP was put in place to allow
vessels to target denser populations of yellowtail flounder and haddock
while avoiding cod in the summer and spawning groundfish in the spring.
Impacts to the physical environment and EFH would be negligible because
any increase in effort would be minor and the portion of CA II included
in this SAP is outside any HAPC. However, NMFS is concerned that this
exemption could have negative effects on allocated stocks by increasing
effort in a time and place where those stocks, particularly haddock,
aggregate to spawn.
Amendment 16 prohibits sectors from being granted exemptions from
year-round closed areas. NMFS requested comment on whether it is
appropriate to exempt sectors from a SAP season, given that the portion
of the SAP in the closed area is already open part of the year, or if
the Council's current prohibition on allowing exemptions from closed
areas applies to SAPs. No comment was received from the Council
regarding its intent. This exemption is denied because it is unclear
whether the Council meant for sectors to be allowed exemptions from SAP
seasons or if their intent was to prohibit such exemptions because it
is a year-round closed area.
23. Maximum ACE Carryover Provision
Each sector is allowed to carry over up to 10 percent of its
original ACE allocation of each stock from one FY to the next, with the
exception of GB yellowtail flounder (Sec. 648.87(b)(1)(i)(C)).
Allowing a sector to carry over a portion of its allocation reduces
concern that a sector may leave ACE uncaught to avoid accidentally
exceeding its ACE. Sectors requested an exemption to carry over up to
50 percent of unused ACE into the following FY. Allowing sectors to
carry over ACE would provide greater flexibility in when and how they
fish during a given FY.
NMFS conducted a limited preliminary analysis of increasing the
current ACE carryover limits and the resultant potential for
overfishing in the subsequent year. This analysis was included in the
draft EA published with the proposed rule for this action. Based on the
preliminary analysis, the Regional Administrator proposed to allow
sectors to carry over 11-30 percent of each stock's ACE (except GOM cod
and GB yellowtail flounder) from FY 2011 to FY 2012. NMFS provided the
analysis to the Council with a request that its Scientific and
Statistical Committee (SSC) review it and recommend to NMFS whether or
not to allow increased carryover for any stocks, and if so, what level
above 10 percent would be appropriate. NMFS is concerned that an
increase in ACE carryover could allow a substantial increase in catch
beyond what has been analyzed in setting the FY 2012 ACLs. In a letter
dated January 20, 2012, the Council raised a number of questions (see
proposed rule) about the preliminary analysis and the legality of such
carryovers in light of Magnuson-Stevens Act requirements. This final
rule denies this exemption, and the final EA lists this exemption as
considered, but rejected, because the important scientific and legal
issues raised by the Council remain unresolved. A future action could
grant this exemption if the issues are resolved and the resolution
supports granting this exemption.
24. ACE Buffer Provision
Amendment 16 implemented the ACE buffer provision to ensure that
each sector would have 20 percent of its ACE available to account for
any potential overage from the previous year. At the beginning of each
FY, NMFS withholds 20 percent of a sector's ACE for each stock for up
to 61 days (i.e., through June 30), or longer (Sec.
648.87(b)(1)(iii)(C)). This hold gives NMFS time to finalize sector
catch and ACE trades that take place after the end of the FY, and to
apply any overage penalties to a sector that exceeded its ACE. Sectors
are requesting to be exempted from this 20-percent ACE buffer
restriction when a sector manager reports that the sector has not
exceeded any of its ACE. Sectors sought this exemption to increase
operational flexibility and efficiency to bring additional revenue into
the sector.
This exemption is denied because NMFS does not have the ability to
verify whether a sector manager's report is accurate until the annual
reconciliation process, as discussed above, is complete. Due to this
time lag, it is possible that sectors could potentially exceed their
ACE in a subsequent FY after an overage has occurred before the second
year's ACE is reduced by the first year's overage. For example, if a
sector was allocated 100 mt of a stock in year 1, but caught 120 mt,
the sector would be required to pay back 20 mt in year 2. However, if
the sector fished its complete allocation for year 2 before NMFS
discovered the overage from year 1, the sector would then also have
overfished the reduced year 2 allocation.
25. Minimum Fish Size Provisions for Haddock
Commercial haddock catch must be at least 18 inches (45.7 cm) to be
retained by a vessel (Sec. 648.83(a)(1)). This restriction includes
whole fish or any part of a fish while possessed on board a vessel,
with the exception of a small amount of fish (up to 25 lb (11.3 kg))
that each person on board may retain for at-home consumption (Sec.
648.83(a)(2)). The 18-inch (45.7-cm) minimum size for haddock was first
implemented by an interim action in 2009 (74 FR 17030, April 13, 2009).
This was a reduction from the previous minimum size of 19 inches (48.3
cm), designed to reduce discards and increase yield. The 18-inch (45.7-
cm) minimum size was made permanent by Amendment 16.
Sectors requested an exemption from the minimum fish size
regulation for the purpose of landing headed and gutted haddock that
are less than 18 inches (45.7 cm) as a headed and gutted haddock
provide a value-added product. This exemption request is intended to
allow legal-sized fish that were previously landed whole to be landed
headed, or headed and gutted, without a change to the actual size
composition of the catch.
This exemption has been denied by NMFS because of enforceability
concerns and issues with properly monitoring catch for this stock that
could potentially have negative impacts on the stock assessments. There
are no accepted conversion factors to accurately determine the whole
weight or length of headed and gutted haddock. Therefore, it would not
be possible to accurately track that catch against sector ACEs, and it
would be impossible for enforcement to determine whether the headed
fish came from legal-sized fish. In addition, increases in the
proportion of fish landed without heads would negatively impact stock
assessment work because biological samples (ages and lengths) cannot be
obtained from fish landed without heads.
Disapproved Exemption Requests--Exemptions Denied Because They Are
Prohibited
Amendment 16 contains several ``universal'' exemptions applicable
to all sectors and authorized sectors to request additional exemptions
from NE multispecies regulations through their sector operations plans.
However, Amendment 16 also prohibits sectors from requesting exemptions
from year-round closed areas, permitting
[[Page 26143]]
restrictions, gear restrictions designed to minimize habitat impacts,
and reporting requirements (excluding DAS reporting requirements).
Exemptions were requested by several sectors that are specifically
prohibited (e.g., access to permanent closed areas) or that fall
outside of the NE multispecies regulations (e.g., Eastern U.S./Canada
in-season actions).
In a letter dated September 1, 2010, NMFS notified the Council that
NMFS interprets the reporting requirement exemption prohibition broadly
to apply to all monitoring requirements, including ASM, DSM, ACE
monitoring, and the counting of discards against sector ACE. In this
letter (copies are available from NMFS, see ADDRESSES), NMFS also
requested that the Council define which regulations sectors may not be
exempted from. On November 18, 2010, the Council addressed this letter
by voting to include in FW 45 the removal of DSM from the list of
regulations that sectors may not be exempted from, but did not take
such action for ASM, ACE monitoring, VTR regulations, or counting of
discards against ACE.
NMFS has denied exemptions from the following 13 requirements
because they are prohibited: (26) Year-round access to the Cashes Ledge
Closure Area; (27) year-round access to CA I; (28) year-round access to
CA II; (29) year-round access to the Western GOM Closure Area; (30)
extrapolation of discarded fish pieces across strata; (31)
authorization to use video monitoring in place of ASM; (32) hail
requirements; (33) year-round access to the Eastern U.S./Canada Area;
(34) ASM for sector vessels; (35) ASM for trips targeting dogfish; (36)
ASM for hook-only and Handgear A vessels; (37) ASM for extra-large mesh
gillnet vessels; and (38) the ASM standard for random trip selection.
Disapproved Exemption Requests--Exemptions Denied Because They Were
Previously Rejected and No New Information Was Provided
NMFS has denied exemptions from the following eight requirements
because they were previously rejected, and sectors provided no new
information in support: (39) Minimum fish sizes, to allow 100-percent
retention; (40) minimum fish sizes, to retain 12-inch (30.5-cm)
yellowtail flounder; (41) that VMS messages be sent directly to NMFS;
(42) weekly catch report requirements; (43) no pair trawling; (44)
minimum hook size; (45) 6.5-inch (16.5-cm) minimum mesh size for trawls
to allow 5-inch (12.7-cm) mesh when targeting redfish; and (46)
submitting a roster by the deadline. Exemptions 39 through 46 are not
analyzed in the EA because no new information was available to change
the analyses previously published in past EAs. The details of these
exemption requests, analysis of these exemptions, and the reasons they
were previously denied are contained in the final rules approving
sectors for FYs 2010 and 2011, and their accompanying EAs. The
requesting sectors provided no new information, justification,
rationale, or mitigation to address these concerns.
Disapproved Exemption Requests--Exemptions Denied Because They May
Jeopardize Rebuilding of the GOM Cod Stock
NMFS has denied exemptions from the following three requirements
because they may jeopardize rebuilding of the GOM cod stock, which a
new stock assessment has determined is overfished and experiencing
overfishing: (47) April GOM Rolling Closure Area; (48) May GOM Rolling
Closure Area; and (49) June GOM Rolling Closure Area.
NMFS denied requests for additional exemptions from GOM Rolling
Closure Areas in FYs 2010 and 2011 because of concerns that directly
targeting spawning aggregations can adversely impact the reproductive
potential of a stock, as opposed to post-spawning mortality. In
addition, those requests were disapproved because the existing GOM
Rolling Closure Areas provide some protection to harbor porpoise and
other marine mammals.
In response to requests for additional exemptions from GOM Rolling
Closure Areas (including new exemption requests that would exclude
gillnet gear) and discussions about increasing access to these areas at
the Council's Lessons Learned Sector Workshop, the Regional
Administrator considered proposing partial exemption from some of the
closures as a short-term solution while the Council considered the
long-term future of these closures as part of the pending omnibus
habitat amendment. Options considered for possible exemptions would
have required trawl vessels to use selective trawl gears, excluded
gillnet gear, and prohibited hook gear from using squid or mackerel as
bait. However, given the new status of the GOM cod stock, NMFS has
denied additional exemptions from the GOM RCAs, and these exemptions
are listed as considered, but rejected, in the final EA.
Disapproved Provisions of Operations Plans
NMFS has disapproved a provision proposed in the NEFS 5, NEFS 7,
and NEFS 13 operations plans that would allow their members to
participate in a fishery for bait skate, regardless of whether the
sectors had ACE available for all allocated stocks, from June 1 through
December 1, in waters off southern Massachusetts, Rhode Island,
Connecticut, and New York. Currently, the majority of the area in the
proposed provision lies within the Mid-Atlantic Exemption Area, where
vessels that are issued a valid Skate Bait LOA may participate in the
skate bait fishery when not on a declared groundfish trip. Although
this provision as a whole has been denied, sector (and common pool)
vessels may currently participate in the skate bait fishery in the
entire Mid-Atlantic Exemption Area.
NMFS is currently considering a request, submitted by NEFS 5, for
an exempted fishery identical in description to the denied skate bait
provision in the operations plans of NEFS 5, NEFS 7, and NEFS 13. A
fishery exemption may be approved if the Regional Administrator
determines that the percentage of regulated species caught as bycatch
is, or can be reduced to, less than 5 percent, by weight, of total
catch, and that such exemption will not jeopardize fishing mortality
objectives. Unlike the GOM haddock sink gillnet program that was denied
for the fishery as a whole, but granted to sectors as an exemption
because their ACEs controlled their overall catch, the bait skate
fishery provision requested in these three operations plans
specifically requests authorization to fish without the sector being
accountable for its vessels' groundfish catch. Without ACE
accountability, participation by sector vessels would not be
substantially different from participation by common pool vessels.
Therefore, NMFS has not approved this provision of the sectors'
operations plans, because this exempted fishery request is currently
being considered for all appropriately permitted vessels under separate
rulemaking.
Comments and Responses
Eight letters, many addressing multiple issues, were submitted from
several entities: Oceana, the Massachusetts Division of Marine
Fisheries (DMF), the Council, the Northeast Sector Service Network
(NESSN), Associated Fisheries of Maine, and three individuals. Only
comments that were within the scope of this rulemaking, including the
analyses used to support these measures, are responded to below.
[[Page 26144]]
General Comments
Comment 1: One fisherman commented that sectors have negatively
impacted his business operations.
Response: The commenter was not specific about the nature or cause
of the negative impacts to his business. However, he is free to
participate in the common pool and fish under DAS, rather than
participating in a sector. Sectors are temporary, voluntary, fluid
associations of vessels that can join together to take advantage of
flexibilities and efficiencies that sectors are afforded. Vessel owners
may choose to join a sector or not, and can change their decision from
one year to the next, based on what they believe are the best
opportunities for them at that point in time. The proposed rule
announced that some sector rosters will be opened until April 30,
allowing additional opportunity for each eligible NE multispecies
permit holder to evaluate their personal best option for FY 2012.
Comment 2: One individual commented that all exemption requests
should be denied because fish stocks do not belong to sectors.
Response: Groundfish stock ownership is not relevant to exemption
request decisions. Unlike an individual fishing quota or individual
transferable quota, sectors are allocated quotas on an annual basis and
do not own either a groundfish stock or access to a groundfish stock.
Annual allocations are determined based on the ACL and annual voluntary
membership of the sector. The FMP grants sectors universal exemptions
from some effort control measures, and allows sectors the opportunity
to request additional exemptions from existing regulations, but not
from a sector's ACE. The approved exemptions will allow sector members
greater flexibility in harvesting their allocation and additional
opportunities to attempt to obtain optimum yield from the fishery
without jeopardizing the rebuilding plans for overfished stocks.
Comment 3: NESSN and the AFM supported granting the 16 exemptions
that were approved for FY 2011.
Response: NMFS approved the 16 exemptions from the NE multispecies
regulations in FY 2011 because many of the regulations were designed to
limit fishing mortality by controlling fishing effort. These
regulations are no longer necessary because sectors are restricted to
an ACE for each groundfish stock that limits overall fishing mortality.
Other exemptions were granted from dockside monitoring requirements to
exclude trips and vessels that landed minimal amounts of groundfish. No
contrary information has been provided about the effect of the
exemptions used in FY 2011. The rationales for approving the exemptions
for FY 2011 continue to apply in FY 2012; therefore, all exemptions
granted in FY 2011 have been approved for FY 2012.
Comment 4: AFM supported granting the nine novel exemptions
proposed for approval for FY 2012.
Response: NMFS has approved four of the novel exemptions proposed
for approval, and denied the remaining five. Exemptions are approved or
denied individually, and the rationale for each decision is discussed
in this preamble and in responses to specific comments.
SAP Seasons
Comment 5: AFM supported granting an exemption from the seasonal
restrictions for both the Eastern U.S./Canada Haddock SAP and the CA II
Yellowtail Flounder/Haddock SAP, stating that this was not in conflict
with the regulations and that an increase in effort on spawning haddock
is not a concern due to the robust condition of GB haddock and
underharvest of the GB haddock ACL. One anonymous commenter opposed the
requests due to concern for GB cod spawning, and stated that the
Council specifically did not exempt sectors from the seasons of these
SAPs.
Response: Amendment 16 prohibits granting sectors exemptions from
year-round closed areas. NMFS requested comment on whether it is
appropriate to exempt sectors from a SAP season, given that the portion
of the SAP in the closed area is already open part of the year, or if
the current prohibition on allowing exemptions from closed areas
applies to SAPs. The Council did not comment regarding its intent for
this provision. Therefore, NMFS denied this exemption because it is
unclear whether the Council meant for sectors to be allowed exemptions
from SAP seasons within closed areas or if sectors should be prohibited
from such exemptions because it is a year-round closed area.
Haddock Minimum Size
Comment 6: NESSN supported exemption from the minimum fish size
provisions for haddock. They further stated that NMFS's experience in
implementing similar regulations for monkfish should provide an
adequate knowledge base to determine appropriate ways to address their
concerns about enforcement issues at sea.
Response: NMFS denied an exemption request from the minimum fish
size requirements in FY 2010, stating that it would present significant
enforcement concerns by allowing different fish sizes in the market
place and because of concerns that the exemption could potentially
increase the targeting of juvenile fish. This exemption is being denied
again for FY 2012 for similar reasons.
Unlike the monkfish fishery, there are no currently accepted
conversion factors to accurately determine the whole weight or length
of headed and gutted haddock. Given this, it would not be possible to
accurately track that catch against sector ACEs, and it would be
problematic to enforce that the headed fish came from legal-sized fish.
Increases in the proportion of fish landed without heads would also
negatively impact stock assessment work because biological samples
(ages and lengths) cannot be obtained from fish landed without heads.
These issues are not comparable to the monkfish fishery. That fishery
has a separate minimum size for monkfish tails, accepted conversion
factors to determine whole weight from tail weight, and monkfish are
best aged using vertebrae, unlike haddock, which are aged using
otoliths located in the head.
ACE Buffer Provision
Comment 7: AFM and NESSN supported granting an exemption from the
20-percent ACE buffer provision. NESSN supported granting the exemption
on a sector-by-sector basis if the sector has actively engaged
throughout the year to address elements impacting the accuracy of that
sector's reports. Further, NESSN commented that NMFS could release some
portion of ACE buffer prior to the end of reconciliation, based on
outstanding data elements and their possible impact on final ACE
balance.
Response: This exemption was denied because NMFS has no ability to
verify whether a sector manager's report is accurate until the annual
reconciliation process is complete. NMFS anticipates completing FY 2011
reconciliation weeks faster than FY 2010 reconciliation due to
improvements to the process and the cooperation of sectors, which would
mitigate the commenters' concerns.
Requirement To Declare Intent To Fish in SAPs Prior To Leaving the Dock
Comment 8: AFM and NESSN supported granting an exemption from the
requirement that a vessel declare its intent to fish in the Eastern
U.S./Canada SAP and the CA II Yellowtail Flounder/Haddock SAP prior to
leaving the dock to reduce administrative burden and cost for vessels.
[[Page 26145]]
Response: NMFS agrees and this exemption is granted for FY 2012.
This exemption allows sector vessels to declare their intent to fish in
the Eastern U.S./Canada SAP and the CA II Yellowtail Flounder/Haddock
SAP while at sea. The effective date of this exemption is being delayed
until the VMS system is modified to accommodate making these
declarations at sea. NMFS will notify the sectors once this
modification is finalized.
6.5-Inch (16.5-cm) Minimum Mesh Size Requirement for Trawl Nets
Comment 9: The Council, NESSN, and AFM all supported an exemption
from the 6.5-inch (16.5-cm) minimum mesh size to allow the use of 6-
inch (15.2-cm) codends on trawl nets when targeting redfish. The
Council supported this exemption to more fully utilize the available
ACLs of the healthy redfish stock and to enable the achievement of
optimum yield. NESSN referenced studies in 2008 and 2009, which
demonstrated that 6.5-inch (16.5-cm) mesh is inefficient for catching
redfish, and asserted that the requirement for vessels to carry an LOA
would facilitate enforcement.
Response: NMFS agrees and has approved an exemption that will allow
vessels to fish 6.0-inch (15.2-cm) mesh codends when targeting redfish.
Sector vessels fishing under this exemption will be required to have a
LOA on board the vessel, which will facilitate enforcement. This
exemption will provide additional flexibility for vessels to develop
techniques to better target redfish. Mesh selectivity is only one of a
number of factors that influences the overall selection pattern in a
fishery. Fishermen can influence the size of fish they catch by fishing
at different times of the year, in different locations, or by using
different gear or techniques. This exemption should increase the catch
of redfish, increase the operational flexibility of sector vessels, and
increase profit margins of sector fishermen. Vessels may only use this
exemption when at-sea monitors or NEFOP observers are on board. This
will provide information about bycatch in this fishery to better
facilitate monitoring of the impact of this exemption. The Regional
Administrator reserves the right to revoke this exemption if it is
determined the exemption is negatively impacting spawning fish or
populations of stocks the current minimum mesh sizes were intended to
protect. NMFS is currently funding a study to investigate strategies
and methods to sustainably harvest the redfish resource in the GOM. It
is anticipated that results from that research will be available in the
near future and would be used in further evaluating requests for
exemption from the minimum mesh size.
ASM Coverage Level for FY 2012
Comment 10: Oceana commented that Amendment 16 requires sector
operations plans to demonstrate an adequate level of ASM and asserted
that the ASM program currently proposed for FY 2012 will leave the NE
multispecies fishery out of compliance with the mandates of the
Magnuson-Stevens Act. DMF also asserted that the ASM coverage level is
unacceptably low.
Response: Amendment 16 required that sectors design, implement, and
fund an ASM program beginning in FY 2012. However, for 2012, NMFS will
fund and operate an ASM program for all sectors; therefore, it is
unnecessary for each sector operations plan to specify the details of
an ASM program for FY 2012. The details of the ASM program run by NMFS
are included in Appendix 3 of Sector Operations Plan, Contract, and
Environmental Assessment Requirements Fishing Year 2012 (copies
available from NMFS, see ADDRESSES). For FY 2012, the ASM coverage rate
target is 17 percent, in addition to the expected 8-percent coverage
rate of the NEFOP. These two programs are expected to result in
coverage of 25 percent of all sector trips and will be the basis for
calculating discards by sector vessels. This level of observer coverage
is sufficient to monitor sector fishing activity for purposes of
calculating when ACLs have been achieved.
Beginning in FY 2012, Amendment 16 requires that the levels of ASM
coverage shall be specified by NMFS and must be sufficient to
accurately monitor sector operations and at least meet the 30-percent
coefficient of variation (C.V.) specified in the Standardized Bycatch
Reporting Methodology (SBRM) (73 FR 4736, January 28, 2008). This does
not mean that Amendment 16 requires the discard rate for each
individual sector (or every combination of sector, area and gear
(stratum)), to be monitored with this level of precision. Analyses
(copies available from NMFS, see ADDRESSES) of FY 2010 (the only
complete year of data available) shows that the 25-percent coverage
rate proposed for FY 2012 would be sufficient to accurately monitor
sector operations and meet the 30-percent C.V., as specified in the
SBRM.
Comment 11: DMF urged NMFS to reconsider approval of sector
exemptions granting freedom without the accountability provided by
higher levels of catch monitoring.
Response: NMFS has approved 20 exemptions for FY 2012, including
many that grant increased flexibility, and believes that the current
level of monitoring is sufficient to monitor sector fishing activity
for purposes of calculating when ACLs have been achieved. Analysis of
the C.V. achieved for each stock in FY 2011 cannot yet be determined
because FY 2011 continues through April 30, 2012. However, as noted
above, analyses of FY 2010 show that the 25-percent coverage rate
proposed for FY 2012 would be sufficient to accurately monitor sector
operations and meet the 30-percent C.V., as specified in the SBRM.
Limit on the Number of Gillnets for Day Gillnet Vessels
Comment 12: DMF commented that NMFS should deny or revise the
exemption from net limits for Day gillnet vessels based on the impact
that gillnets have on spawning aggregations. DMF cited research by
Dean, et. al. recently published in the North American Journal of
Fisheries Management (32:124-134, 2012).
Response: NMFS granted an exemption from the Day gillnet limits in
FYs 2010 and 2011, and is granting this exemption again in FY 2012, to
allow sector vessels to fish up to 150 nets (any combination of
flatfish or roundfish nets) in any RMA. This will provide greater
operational flexibility to sector vessels in deploying gillnet gear.
This measure was designed to control fishing effort and, therefore, is
no longer necessary for sectors because their stock ACEs limit overall
fishing mortality. Data from FY 2010 (Table 4.1.4.2-2 of the EA) show
that sink gillnet gear days went down by 4.66 percent from FY 2009
(prior to this sector exemption) to FY 2010 (the first year the
exemption was granted).
The information DMF cites regarding the impact of fishing on
spawning aggregations is not specific to the number of gillnets an
individual may fish at one time, but is more generally applicable to
the locations and timing of spawning closures developed by the Council.
The Council's Habitat Committee is currently working on an omnibus
amendment to revise all closed areas in the NE, including consideration
of the location and timing of rolling closure areas.
Limits on the Number of Hooks That May Be Fished
Comment 13: DMF commented that the exemption from hook limits is
[[Page 26146]]
unwise because there has been a shift to targeting GOM cod from GB cod.
Response: NMFS has granted this exemption for FY 2012 because catch
data show that sector ACEs continue to limit GOM cod mortality. Data
from FY 2010 (EA Table 4.1.4.2-4) shows that longline gear days went up
377.48 percent from FY 2009 (prior to this sector exemption) to FY 2010
(the first year the exemption was granted). However, longline catch of
groundfish went down 30 percent (EA Table 4.1.5-1) from 2009 to 2010
and remains only 2 percent (EA Table 4.1.4.2-1) of groundfish catch.
Further, not all longline use targets GOM cod, or even groundfish.
GOM Rolling Closure Areas
Comment 14: DMF commented that NMFS should consider granting
exemptions to the April, May, and June GOM Rolling Closures Areas, but
require the sectors to implement the strategy the Northeast Seafood
Coalition provided in its comments on the proposed rule for FY 2010
sector operations plans, or a modified version of the strategy.
Response: NMFS has denied this exemption for FY 2012 because of the
new overfished status of the GOM cod stock and concerns that disrupting
spawning aggregations can adversely impact the reproductive potential
of a stock. As shown in the information cited by DMF in its comments
(see Response to Comment 12), fishing activity disrupts spawning
aggregations, causing impacts to the stock beyond the mortality of the
individual fish caught.
The strategy proposed in 2010 by the Northeast Seafood Coalition
included vessels fishing on a rotating basis to limit daily effort,
limiting the percentage of cod ACEs that could be taken in April, and
incorporating a sentinel vessel providing information on bycatch and
spawning fish to other vessels. However, that proposed system is
untested. Therefore, it is not appropriate at this time to use this
strategy as the basis of an exemption to the GOM Rolling Closure Areas,
given the poor condition of the GOM cod stock.
The Gulf of Maine Research Institute (GMRI) recently applied for an
Exempted Fishing Permit to allow the testing of a real-time monitoring
system that, if successful, could facilitate this exemption in the
future. NMFS continues to work with GMRI to develop its proposal into a
scientifically rigorous study. Sectors could test these strategies at
any time in areas that are currently open to fishing.
Maximum ACE Carryover Provision
Comment 15: AFM supported an exemption to increase the carryover of
unused ACE from the currently allowed 10 percent to the level that
would not undermine rebuilding. NESSN also supported an exemption to
increase the carryover of unused ACE as long as such carryover does not
result in overfishing, impede rebuilding objectives, or threaten the
health of a stock. In addition, NESSN suggested NMFS should
preliminarily approve this exemption and actively engage sector and
industry members to ensure that there is a clear understanding and
agreement on what the potential short- and long-term implications of
this request may be, allowing each sector to opt in or out after a
clear understanding of how the exemption would be implemented.
Response: NMFS has denied this exemption, and the final EA lists
this exemption as considered, but rejected, given that the important
scientific and legal issues raised by the Council remain unresolved.
NMFS is also concerned that an increase in ACE carryover could allow a
substantial increase in catch beyond what was analyzed in setting the
FY 2012 ACLs. Because of these unanswered questions, NMFS cannot
conclude that the carryover would not result in overfishing, impede
rebuilding objectives, or threaten the health of a stock. NMFS will
continue to work on resolving the biological, legal, and policy issues
associated with increasing ACE carryover. A future action could grant
this exemption if all concerns are resolved.
Classification
The Administrator, Northeast Region, NMFS, determined that this
annual sector approval is necessary for the conservation and management
of the NE multispecies fishery and that it is consistent with the
Magnuson-Stevens Fishery Conservation and Management Act and other
applicable laws.
This final rule is exempt from review under Executive Order (E.O.)
12866.
The Assistant Administration for Fisheries (AA) finds that there is
adequate justification under 5 U.S.C. 553(d)(1) to waive the 30-day
delay in effective date because this final rule relieves several
restrictions. This final rule helps the NE multispecies fishery
mitigate the adverse economic impacts resulting from continued efforts
to end overfishing and rebuild overfished stocks, and increases the
economic efficiency of vessel operations through the authorization of
19 sector operations plans for FY 2012. As explained in detail above,
20 exemptions from NE multispecies regulations have been approved for
FY 2012, which provide increased flexibility to all of the sectors by
exempting them from effort control restrictions and administrative
burdens that would be unnecessarily onerous for fishing vessels whose
fishing activity is constrained by a hard quota.
Additionally, there is good cause under 5 U.S.C. 553(d)(3) to waive
the 30-day delay in effective date. Failure to waive the 30-day delay
in effectiveness could result in short-term adverse economic impacts to
NE multispecies vessels and associated fishing communities. A delay in
implementing this final rule would prevent owners who have signed up to
join a sector in FY 2012 (845 permits, 57 percent of eligible
groundfish permits, accounting for 99 percent of the historical
commercial NE multispecies catch) from taking advantage of the
flexibility in vessel operations this final rule implements, thereby
undermining the intent of the rule. For example, when this final rule
takes effect, sector vessels will receive exemptions from trip limits,
DAS limits, and seasonal closure areas that this final rule allows, but
would be prohibited from fishing for groundfish during the delayed
effectiveness period. Vessels committed to a sector may not fish in
both the common pool and a sector in the same FY. Consequently, vessels
currently signed into a sector would be forced to cease fishing
operations entirely during the delay in effectiveness to maintain their
sector membership for FY 2012. If they choose to fish in the common
pool (i.e., fish during the delay in effectiveness under existing
regulations), they would thereby lose for the entirety of FY 2012 the
mitigating economic efficiencies associated with the restrictions from
which sector vessels are relieved. This would also reduce the economic
efficiency of the majority of the fleet (400+ active vessels) until
such measures become effective, and cause unnecessary adverse economic
impacts to affected vessels. This would be contrary not only to the
interest of the fishing communities, but to the public at large;
prohibiting a significant portion of the fleet from fishing reduces the
availability of local seafood. For the reasons outlined above, the
requirement to delay implementation of this final rule for a period of
30 days is hereby waived.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires
agencies to assess the economic impacts of their proposed regulations
on small entities. The objective of the RFA is to consider
[[Page 26147]]
the impacts of a rulemaking on small entities, and the capacity of
those affected by regulations to bear the direct and indirect costs of
regulation. Size standards for all for-profit economic activities or
industries are in the North American Industry Classification System.
The Small Business Administration (SBA) defines a small business in the
commercial fishing and recreational fishing sector as a firm with
receipts (gross revenues) of up to $4 million.
A Final Regulatory Flexibility Analysis (FRFA) was prepared for
this final rule, as required by section 604 of the Regulatory
Flexibility Act (RFA). The FRFA consists of the Initial Regulatory
Flexibility Analysis (IRFA), the relevant portions of the proposed rule
describing sector operations plans and requested exemptions, the
corresponding analysis in the EA prepared for this action, the
discussions, including responses to public comments included in this
final rule, and this summary of the FRFA. This FRFA also incorporates
by reference the IRFA prepared for the FW 47 proposed rule (77 FR
18176, March 27, 2012). In the IRFA prepared for Framework 47, sectors
were used as the regulated entity for the first time as an alternative
approach for analyzing the impacts of Framework 47. A copy of this
analysis is available from NMFS (see ADDRESSES).
Need for, and Objectives of, This Rule
Approval of sector operations plans is necessary to allocate quota
to the sectors and to grant the sectors regulatory exemptions. The
intended effect is to provide vessels participating in sectors with
increased operational flexibility. The flexibility afforded sectors
includes exemptions from certain specified regulations, as well as the
ability to request additional exemptions. The objective of the action
is to authorize the operations of 19 sectors in FY 2012, and to allow
the permits enrolled in sectors and the New England communities where
they dock and land to benefit from sector operations.
Summary of Public Comments
All public comments, including those in response to the IRFA and
comments regarding the economic effects of the rule not specifically
addressed to the IRFA, and our response to those comments, are
contained in this preamble.
Description and Estimate of the Number of Small Entities Affected
The number of entities affected will be the number of permits
enrolled in sectors for FY 2012. The maximum number of entities that
could be affected by this action is 1,475, the number of permits
eligible to join a sector for FY 2012. This action will likely affect
about 845 entities, which represents the number of permits enrolled in
sectors and state-operated permit banks as of December 1, 2011. Sector
rosters for FY 2012 may change through April 30, 2012; therefore, it is
not possible to know the final number of entities affected before May
1, the date on which this action takes effect. However, based on FY
2010 and FY 2011, we expect the number of entities affected to change
very little. Each of these permits is a small entity, based on the
definition as stated above and explained below. The economic impact
resulting from this action on these small entities is positive, since
the action provides additional operational flexibility to vessels
participating in NE multispecies sectors for FY 2012. In addition, this
action further mitigates negative impacts from the implementation of
Amendment 16, FW 44, and FW 45, which placed additional effort
restrictions on the groundfish fleet.
The SBA size standard for small commercial fishing entities (North
American Industry Classification System code 114111) is up to $4
million in annual 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. NMFS acknowledges there are
entities that qualify as large business entities based on rules of
affiliation. However, reliable ownership affiliation data were not
available during the analyses of Amendment 16 and FW 45. Therefore, to
be consistent with those analyses, this final rule continues to
consider each operating unit as a small entity for purposes of the RFA,
and, therefore, there is no differential impact between small and large
entities.
In the IRFA prepared for Framework 47, sectors were used as the
regulated entity for the first time to estimate impacts of the proposed
action. Sectors were used as the entity for that analysis, in part,
because each vessel's PSC only becomes fishable quota if the vessel is
a member of a sector. Since sectors are allocated ACE based on the
cumulative PSC of each individual sector member, considering sectors as
an affiliated entity provides an alternative approach for analyzing the
impacts of Framework 47.
Reporting, Recordkeeping and Other Compliance Requirements
This final rule contains no collection-of-information requirement
subject to the Paperwork Reduction Act. This action reduces reporting
requirements compared to the no-action alternative. Exemptions
implemented through this action are documented in a LOA issued to each
vessel participating in an approved sector. The exemptions from the 20-
day spawning block and the 120-day gillnet block will reduce the
reporting burden for sector vessels, because exemptions from these
requirements eliminate the need to report the blocks to the NMFS
Interactive Voice Response system.
Sector vessels exempt from the gillnet limit (up to 150 nets) are
also exempt from current tagging requirements, and are instead required
to tag gillnets with one tag per net. Compliance with the tagging
requirement will not necessarily require sector vessels to purchase
additional net tags, as each vessel is already issued up to 150 tags.
However, sector vessels that have not previously purchased the maximum
number of gillnet tags may find it necessary to purchase additional
tags to comply with this requirement at a cost of $1.20 per tag.
The exemption to allow a vessel to haul another vessel's gillnet
gear requires each vessel to tag all gear it is authorized to haul.
Because of the existing 150-tag limit, no additional tags may be
purchased.
The exemption from the limit on the number of hooks does not
involve reporting requirements, but may result in increased costs for
hooks and rigging (groundline, gangions, anchors) if a vessel chooses
to increase the amount of gear fished. Circle hooks of the legal
minimum size (12/0) cost about $0.19 each without rigging.
The GOM Sink Gillnet exemption does not involve additional
reporting requirements. However, to use this exemption, sector vessels
may need to purchase 6-inch (15.2-cm) mesh gillnet nets. At the time
this FRFA was prepared, no cost information was available for a 6-inch
(15.2-cm) mesh gillnet panel. However, the cost of a 6.5-inch (16.5-cm)
mesh 300-ft (91.4-m) gillnet panel, complete with floats and break-away
links, is estimated at $310. The quantity of 6-inch (15.2-cm) mesh
gillnets purchased by a vessel to participate in this program will
depend on the vessel's gillnet designation (a Day gillnet vessel would
have a 150-net limit) and the perceived economic benefits of utilizing
the exemption,
[[Page 26148]]
which may be based on market conditions.
Exempting sectors from the requirement to submit a daily catch
report for all vessels participating in the CA I Hook Gear Haddock SAP
does not change the reporting burden of individual participating
vessels, as the vessels would merely change the recipient of their
current daily report.
Other exemptions granted by this action involve no additional
reporting requirements. Sector reporting and recordkeeping regulations
do not exempt participants from state and Federal reporting and
recordkeeping, but are mandated above and beyond current state and
Federal requirements. A full list of compliance, recording, and
recordkeeping requirements exists in the final rules implementing
Amendment 16 and each approved FY 2012 sector operations plan.
Steps the Agency Has Taken To Minimize Significant Adverse Economic
Impact on Small Entities
This action will create a positive economic impact for the
participating sector vessels because it mitigates the impacts from
restrictive management measures implemented under the NE Multispecies
FMP. Little quantitative data on the precise economic impacts to
individual vessels are available. The 2010 Final Report on the
Performance of the Northeast Multispecies (Groundfish) Fishery (May
2010-April 2011) (copies are available from NMFS, see ADDRESSES)
documents that all measures of gross revenue per trip and per day
absent in 2010 were higher for the average sector vessel and lower for
the average common pool vessel. However, the report stipulates this
comparison is not useful for evaluating the relative performance of DAS
and sector-based management because of fundamental differences between
these groups of vessels, which were not accounted for in the analyses.
Accordingly, quantitative analysis of the impacts of sector operations
plans is still limited. NMFS anticipates that by switching from effort
controls of the common pool regime to operating under a sector ACE,
sector members will remain economically viable while adjusting to
changing economic and fishing conditions. Thus, this final rule
provides benefits to sector members that they would not have under the
No Action Alternative. The preamble discusses reasons for approval or
disapproval of each requested exemption.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, an LOA, or letter of authorization, for each
permit holder enrolled in a sector that also serves as small entity
compliance guide (the guide) was prepared. Copies of this final rule
are available from the Northeast Regional Office, and the guide, i.e.,
permit holder letter or bulletin, will be sent to all holders of NE
multispecies permits enrolled in a sector. The guide and this final
rule will be available upon request (see ADDRESSES).
On February 3, 2012, NMFS published final rules listing the Gulf of
Maine distinct population segment (DPS) of Atlantic sturgeon as
threatened, and listing the New York Bight, Chesapeake Bay, Carolina,
and South Atlantic DPSs of Atlantic sturgeon as endangered, effective
April 6, 2012. Preliminary analysis indicates that multiple Atlantic
sturgeon DPSs may be affected by the continued operation of the NE
multispecies fishery and formal consultation under Section 7 of the ESA
has been reinitiated and is ongoing for the NE multispecies fishery.
The previous Biological Opinion for the NE multispecies fishery
completed in October 2010 concluded that the actions considered would
not jeopardize the continued existence of any listed species. This
Biological Opinion will be updated and additional evaluation will be
included to describe any impacts of the NE multispecies fishery on
Atlantic sturgeon DPSs and define any measures needed to mitigate those
impacts, if necessary. It is anticipated that any measures, terms and
conditions included in an updated Biological Opinion will further
reduce impacts to the species. It is expected that the completion of
the Biological Opinion will occur before the beginning of the 2012 NE
multispecies fishing year on May 1, 2012. NMFS has determined that
continued operation of the fishery during the consultation period is
not likely to jeopardize the continued existence of listed species.
Authority: 16 U.S.C. 1801 et seq.
Dated: April 26, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator For Regulatory Programs, National
Marine Fisheries Service.
[FR Doc. 2012-10527 Filed 5-1-12; 8:45 am]
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