[Federal Register Volume 70, Number 235 (Thursday, December 8, 2005)]
[Rules and Regulations]
[Pages 72934-72937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23803]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050517132-5132-01; I.D. 051105D]
RIN 0648-AT36


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Haddock Incidental Catch Allowance for the 
Atlantic Herring Fishery

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

ACTION: Temporary rule; emergency action; response to public comments; 
extension of effective period.

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SUMMARY: NMFS is promulgating this temporary rule to continue the 
effectiveness of emergency regulations that established an incidental 
haddock catch allowance for the Atlantic herring fishery. Emergency 
action was initially

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requested by the New England Fishery Management Council (Council). 
Measures that were implemented June 12, 2005, are extended through this 
action for an additional 180 days. In developing these measures, NMFS 
considered recommendations made by the Council's Ad-hoc Bycatch 
Committee and the Council. These measures are intended to maintain a 
haddock possession tolerance as close to zero as practicable, while 
allowing the herring industry to operate.

DATES: The expiration date of the amendments published June 13, 2005 
(70 FR 34055) regarding 50 CFR 648.14, 648.15, 648.80, 648.83, and 
648.86 is extended from December 10, 2005 to June 6, 2006. The 
amendment to 15 CFR 902.1 and 50 CFR 648.2 is not affected by this 
action.

ADDRESSES: Copies of the emergency rule and its Regulatory Impact 
Review (RIR) are available from Patricia A. Kurkul, Regional 
Administrator, National Marine Fisheries Service, One Blackburn Drive, 
Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Brian Hooker, Fishery Policy Analyst, 
phone: (978) 281-9220; fax: (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    Regulations established under the Fishery Management Plan for the 
Northeast Multispecies Fishery (NE Multispecies FMP) prohibit vessels 
fishing for Atlantic herring (herring) from possessing or landing any 
groundfish species, including haddock. In July 2004, NOAA's Office of 
Law Enforcement (OLE) observed prohibited juvenile haddock in catches 
being landed by midwater trawl vessels fishing for herring on Georges 
Bank (GB). Representatives of the herring industry requested a series 
of meetings with staff from OLE and the Northeast Regional Office to 
report that they were encountering haddock unusually high in the water 
column, and were unable to avoid catching it, even with midwater trawl 
gear. The issue was raised to the attention of the Council, which voted 
on March 30, 2005, to request emergency action to authorize all 
Category I herring vessels to possess up to 1,000 lb (454 kg) of 
haddock incidentally caught when fishing for herring. NMFS received the 
Council's formal request for emergency action on April 6, 2005. A 
temporary rule implementing the emergency measures was published on 
June 13, 2005 (70 FR 34055), and is effective through December 10, 
2005. Public comments were accepted through July 13, 2005.
    While these measures are not intended to directly reduce potential 
interactions between herring vessels and haddock, as interim measures, 
they are intended to provide an allowance for the herring fishery to 
operate while the Council develops a long-term solution through 
Amendment 1 to the Fishery Management Plan for the Atlantic Herring 
Fishery (Herring FMP). Since Amendment 1 is not expected to be 
implemented until summer 2006, it is prudent to continue the measures 
implemented through the emergency rule for an additional 180 days as 
authorized under section 305(c)(3)(B) of the Magnuson-Stevens Fishery 
Conservation and Management Act.
    The following provisions are continued through this temporary rule 
that extends the emergency action: (1) Suspension of the prohibition on 
the possession of haddock by vessels using purse seines or midwater 
trawls (including pair trawls), (2) establishment of a 1,000-lb (454-
kg) haddock incidental possession limit for Category 1 herring vessels, 
(3) suspension of the haddock minimum fish size for Category 1 herring 
vessels, (4) prohibition on the purchase and sale of haddock landed by 
Category 1 herring vessels for human consumption, (5) establishment of 
a provision to require herring processors to cull landings made by 
Category I herring vessels and retain haddock for inspection by 
enforcement officials, (6) establishment of a requirement to provide 
advance notification prior to landing for all Category 1 herring 
vessels via the Vessel Monitoring System (VMS), and (7) establishment 
of an incidental catch TAC (bycatch cap) on the total amount of haddock 
that can be landed under the haddock incidental catch possession limit. 
NMFS will continue to monitor a 270,000-lb (122,470-kg) haddock bycatch 
cap based on actual landings reported by vessels and dealers/
processors, as well as any other landings based on observer reports or 
enforcement actions. As of November 2005, only an estimated 11.32 
percent of the total haddock bycatch cap have been reported landed from 
Category 1 herring vessels. If these actual reported or observed 
landings under the incidental possession limit reach the bycatch cap, 
the directed herring fishery in the GB haddock stock area will be 
closed, and a prohibition on the possession of haddock would be 
reinstated for all Category 1 herring vessels fishing in all other 
areas. The current absolute prohibition on the possession of haddock 
appears unrealistic, given the potential for haddock and herring 
interactions. The measures being extended through this rule reflect the 
intention of maintaining a haddock possession tolerance as close to 
zero as practicable, while allowing the herring industry to operate. 
According to all available data, Category 1 herring vessels have done 
well in avoiding haddock during the initial effective period of the 
emergency rule. However, as a precautionary measure it is prudent to 
continue the emergency action for up to an additional 180 days, or 
until Amendment 1 to the Herring FMP can be implemented, if approved.
    This temporary rule maintains the current cap on the total amount 
of observed and reported haddock that can be landed by Category 1 
herring vessels. The bycatch cap is a backstop on the total amount of 
haddock permitted to be landed in order to mitigate any unexpected 
haddock harvest levels. Thus, the herring fishery will not be allowed 
an unlimited harvest of haddock. NMFS will use landings reported by 
vessels and dealers/processors, as well as any other landings reported 
through observer reports or enforcement actions, to determine if 
observed and reported landings reach the bycatch cap level. If the 
bycatch cap is reached, the directed herring fishery in the GB haddock 
stock area will be closed, and the emergency measures that authorize 
Category 1 vessels to possess haddock will be terminated. If the 
fishery is closed due to attainment of the bycatch cap, the measures 
established by this action to require herring processors and dealers to 
retain haddock landed by Category 1 herring vessels would remain in 
effect, as would the requirement for Category 1 herring vessels to 
provide advance notification of landing, to ensure that the closure is 
enforceable.

Management Measures

    Additional background and explanation of the management measures 
being extended by this temporary rule contained in the preamble of the 
June 13, 2005, emergency rule and are not repeated here.

Comments and Responses

    Nine letters were received during the comment period for the 
initial temporary rule implementing the emergency action to address 
haddock bycatch in the herring fishery. These comments included two 
letters from non-governmental organizations, one letter from the Maine 
Department of Marine Resources, five letters from industry members, and 
one letter from the general public. NMFS has not

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responded to the comments that were not specific to the emergency 
management measures contained in the initial temporary rule. The 
comments are summarized and addressed in the proceeding paragraphs.

Rationale Behind a Haddock Bycatch Allowance in the Herring Fishery

    Comment 1: Four comments were received questioning the rationale 
for allowing Category 1 herring vessels to catch haddock when this 
species was previously prohibited. Commenters stated that Category 1 
herring vessels should not be allowed to catch haddock, since they use 
a mesh size that is prohibited in the directed haddock fishery, and 
because herring vessels are not historical participants in the 
groundfish fishery and should, therefore, not be eligible to 
participate in any capacity now that the haddock resource is 
recovering.
    Response: Some allowance to allow Category 1 herring vessels to 
land haddock is needed to allow the herring fishery to operate. 
Regulations prior to the emergency action prohibited any possession of 
haddock by Category 1 herring vessels. This temporary action allows a 
limited amount of haddock to be possessed if caught coincidental to the 
herring fishery. The 270,000-lb (122,470-kg) haddock bycatch cap, is 
roughly equivalent to 1 percent of the 2005 GB haddock bycatch cap and 
less than 1 percent of the Council-recommended 2006 GB haddock total 
allowable catch (TAC). The groundfish fleet only caught 16 percent of 
the 2004 Eastern U.S./Canada haddock TAC, and has only caught 7 percent 
of the 2005 haddock TAC as of November 2005. As a result, it is not 
expected that the bycatch cap will hinder harvesting efforts in the 
directed haddock fishery, nor will it undermine haddock conservation 
measures of the NE Multispecies FMP. It is also important to note that 
NMFS has prohibited Category 1 herring vessels from selling landed 
haddock for human consumption, which significantly reduces any 
incentive to catch haddock.

Monitoring of the Haddock TAC

    Comment 1: Three comments were received regarding the monitoring of 
the haddock bycatch cap. Commenters requested that reported haddock 
catch be extrapolated to the entire Category 1 herring vessel fishing 
trips, similar to bycatch monitoring programs in the groundfish 
fishery.
    Response: This action does not include a measure to extrapolate the 
reported haddock bycatch to all Category 1 herring trips, as the 
haddock bycatch events of the summer of 2004 showed that haddock 
bycatch events were not consistent across the fishery, but rather rare 
events. This variability led NMFS to conclude that it could not 
meaningfully extrapolate landings of haddock to the entire herring 
fishery. Furthermore, the 2005 herring fishing year was the first 
fishing year in which NMFS at-sea observers used a newly developed 
sampling protocol for determining the percent composition of haddock in 
the herring catch.
    Comment 2: Two comments were received requesting that NMFS specify 
the level of at-sea observer coverage and the dockside monitoring 
protocol in the temporary rule.
    Response: NMFS has relied on its existing programs to monitor the 
fishery. It would not be appropriate for NMFS to arbitrarily commit 
resources that it can not guarantee would be available for the duration 
of the emergency, and that may not be necessary to get reliable 
information sufficient to monitor this fishery.

Duration of Herring Fishery Closure Area if Bycatch Cap is Exceeded

    Comment 1: One comment was received requesting that NMFS clarify 
how the closure of the herring fishery in the GB stock area would be 
administered if the haddock bycatch cap is attained. The commenter 
noted that a new herring fishing year begins January 1, 2006, and a new 
groundfish fishing year begins May 1, 2006. The commenter asked when a 
closure, if required, would end.
    Response: Although not explicit in the initial temporary rule it is 
the intention of NMFS that the GB haddock stock area would re-open to 
the harvest of herring upon the expiration of the emergency rule that 
authorized the closure, unless additional management measures are 
implemented that address the situation at that time. However, in the 
absence of these temporary emergency measures, the haddock bycatch 
possession limit would be zero.

Area of the GB Haddock Stock Closure

    Comment 1: One comment was received regarding the western boundary 
of the area that would be closed to Category 1 herring vessels if the 
bycatch cap is reached. The commenter suggests that the western 
boundary of the closure area includes areas where haddock are sparse, 
and thus would not serve any benefit in conserving the haddock 
resource. Furthermore, the commenter stated that this area is important 
to the herring fishery and should not be included in any closure.
    Response: Including the entire GB stock area as part of the area 
that would be closed once the haddock bycatch cap is reached was a 
provision recommended by the Council's Bycatch Committee to ensure that 
no further incidental haddock catch occurs in the herring fishery. The 
stock that NMFS is trying to protect through this action is the GB 
haddock stock. Thus, it is prudent to close the GB haddock stock area, 
already defined in the regulations, if and when it is determined that 
the herring fishery has reached the bycatch cap in a given groundfish 
fishing year.
Classification
    This emergency rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This action continues emergency measures implemented June 13, 2005, 
for 180 days beyond the current expiration date of December 10, 2005, 
because the conditions prompting the initial emergency action still 
remain. The public was provided with the opportunity to submit public 
comment on these measures, and those comments are responded to in this 
rule. Therefore, the Assistant Administrator for Fisheries, NOAA (AA) 
finds that it would be impracticable and contrary to the public 
interest to delay the extension of these measures by providing 
additional opportunities for public comment, and finds good cause to 
waive additional public comments under U.S.C. 553 (b)(B).
    Because this rule continues to relieve a restriction by maintaining 
a haddock possession limit for Category 1 herring vessels, it is not 
subject to the 30-day delayed effectiveness provision of the 
Administrative Procedure Act pursuant to 5 U.S.C. 553(d)(1). The 
possession limit for haddock for vessels using purse seine or midwater 
trawl gear in the Gulf of Maine and Georges Bank Exemption Area, absent 
this temporary rule, is 0 lb (0 kg). This emergency action continuance 
will maintain the haddock possession limit at 1,000 lb (454 kg) for 
these vessels.
Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirement
    This emergency rule extends a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA). Category 1 herring 
vessels will remain required to notify OLE via VMS of the port in which 
they will land their catch. Notice is required prior to landing. The 
public's reporting burden for the collection-of-information 
requirements includes the time for reviewing instructions, searching

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existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection-of-information requirements. 
These requirements have been approved by the Office of Management and 
Budget (OMB) under control number 0648-0521 (5 min/response).
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

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

    Dated: December 5, 2005.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 05-23803 Filed 12-5-05; 2:09 pm]
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