[Federal Register Volume 71, Number 162 (Tuesday, August 22, 2006)]
[Proposed Rules]
[Pages 48903-48906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-13867]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 060808213-6213-01; I.D. 073106C]
RIN 0648-AU56


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; 2006 Georges Bank Fixed 
Gear Sector Operations Plan and Agreement and Allocation of Georges 
Bank Cod Total Allowable Catch

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

ACTION:  Proposed rule; request for comments.

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SUMMARY:  Framework Adjustment (FW) 42 to the Northeast (NE) 
Multispecies Fishery Management Plan (FMP) and FW 3 to the Monkfish FMP 
propose creation of the Georges Bank (GB) Cod Fixed Gear Sector (Fixed 
Gear Sector). If approved in FW 42/FW 3, the Fixed Gear Sector would be 
eligible for an annual allocation of up to 20 percent of the annual GB 
cod total allowable catch (TAC). Therefore, in accordance with the FMP, 
and pursuant to the anticipated approval of FW 42/FW 3, a 
representative of the Fixed Gear Sector submitted an Operations Plan, 
Sector Agreement (Contract), and Environmental Assessment (EA), and 
requested an allocation of GB cod to the Fixed Gear Sector for fishing 
year 2006 (FY 2006).
    The Administrator, Northeast Region, NMFS (Regional Administrator), 
has determined that documents submitted by the Fixed Gear Sector comply 
with the procedural regulations regarding an annual Operations Plan and 
Sector Contract. This noticedocument provides interested parties an 
opportunity to comment on the proposed Sector Operations Plan and EA 
(prior to approval or disapproval of FW 42, which would authorize the 
formation of the Fixed Gear Sector), and prior to final approval or 
disapproval of the Sector Operations Plan and allocation of GB cod TAC 
to the Fixed Gear Sector for FY 2006. Comments regarding the formation 
of the Fixed Gear Sector (as opposed to the FY 2006 Operations Plan and 
Sector Contract, which are the subject of this proposed rule) should be 
submitted as described in the proposed rule for FW 42.

DATES:  Written comments must be received on or before September 21, 
2006.

ADDRESSES:  Written comments should be sent to Patricia A. Kurkul, 
Regional Administrator, NMFS, Northeast Regional Office, 1 Blackburn 
Drive, Gloucester, MA 01930. Mark the outside of the envelope 
``Comments on GB Fixed Gear Sector Operations Plan.'' Comments may also 
be sent via fax to (978) 281-9135, or submitted via e-mail to: 
[email protected], or the Federal e-Rulemaking Portal: http://www.regulations.gov.
    Copies of the Sector Agreement and the EA are available from the NE 
Regional Office at the mailing address specified above.

FOR FURTHER INFORMATION CONTACT:  Thomas Warren, Fishery Policy 
Analyst, phone (978) 281-9347, fax (978) 281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: The Regional Administrator has made a 
preliminary determination that the Fixed Gear Sector Contract and 
Operations Plan is consistent with the goals of the FMP and other 
applicable law and is in compliance with the regulations governing the 
development and operation of a sector as specified under 50 CFR 648.87. 
The final rule implementing Amendment 13 (69 FR 22906, April 27, 2004) 
specified a process for the formation of sectors within the NE 
multispecies fishery and the allocation of TAC for specific groundfish 
species (or days-at-sea (DAS)), implemented restrictions that apply to 
all sectors, and authorized the first sector of the FMP (GB Cod Hook 
Sector).
    If FW 42/FW 3 are approved as proposed, the Fixed Gear Sector would 
be an approved sector, and the regulations that would apply to the 
Fixed Gear Sector specify that: (1) Aall

[[Page 48904]]

vessels with a valid limited access NE multispecies DAS permit are 
eligible to participate in the Sector, provided they have documented 
landings of GB cod through valid dealer reports submitted to NMFS of GB 
cod during FY 1996 through 2001 (regardless of gear fished); (2) 
membership in the Sector is voluntary, and each member would be 
required to remain in the Sector for the entire fishing year and could 
not fish outside the NE multispecies DAS program during the fishing 
year, unless certain conditions are met; (3) vessels fishing in the 
Sector (participating vessels) would be confined to fishing in the GB 
Cod Hook Sector Area, which is that portion of the GB cod stock area 
north of 39[deg]00' N. lat. and east of 71[deg]40' W. long; and (4) 
participating vessels would be required to comply with all pertinent 
Federal fishing regulations, unless specifically exempted by a Letter 
of Authorization, and the provisions of an approved Operations Plan. 
This current regulations that apply to all sectors would also apply to 
the Fixed Gear Sector.
    Although FW 42/FW 3 would establish the Fixed Gear Sector, in order 
for GB cod to be allocated to the Fixed Gear Sector and the Fixed Gear 
Sector authorized to fish, the Fixed Gear Sector must submit an 
Operations Plan and Sector Contract to the Regional Administrator 
annually for approval. The Operations Plan and Sector Contract must 
contain certain elements, including a contract signed by all Sector 
participants and a plan containing the management rules that the Sector 
participants agree to abide by in order to avoid exceeding the 
allocated TAC. An additional analysis of the impacts of the Sector's 
proposed operations may be required in order to comply with the 
National Environmental Policy Act. Further, the public must be provided 
an opportunity to comment on the proposed Operations Plan and Sector 
Contract. The regulations require that, upon completion of the public 
comment period, the Regional Administrator will make a determination 
regarding approval of the Sector Contract and Operations Plan. If 
approved by the Regional Administrator, participating vessels would be 
authorized to fish under the terms of the Operations Plan and Sector 
Contract.
    In anticipation of approval of the Fixed Gear Sector in FW 42/FW 3, 
the Fixed Gear Sector submitted an initial version of the Operations 
Plan, Sector Contract, and EA to NMFS on February 1, 2006. On June 13, 
2006, the Fixed Gear Sector submitted a revised version, after making 
modifications to the Operations Plan and EA, and submitted a final 
version on June 28, 2006.
    The Sector Agreement would be overseen by a Board of Directors and 
a Sector Manager. The Sector Agreement specifies, in accordance with 
Amendment 13, that the Sector's GB cod TAC would be based upon the 
number of Sector members and their historic landings of GB cod. The GB 
cod TAC is a ``hard'' TAC, meaning that, once the TAC is reached, 
Sector vessels could not fish under a DAS, possess or land GB cod or 
other regulated species managed under the FMP (regulated species), or 
use gear capable of catching groundfish (unless fishing under charter/
party or recreational regulations).
    As of June 28, 2006, two prospective Fixed Gear Sector members had 
signed the 2006 Sector Contract. The GB cod TAC calculation is based 
upon the historic cod landings of the participating Fixed Gear Sector 
vessels, using all gear. The allocation percentage is calculated by 
dividing the sum of total landings of GB cod by Sector members for FY 
1996 through 2001, by the sum of the total accumulated landings of GB 
cod harvested by all NE multispecies vessels for the same time period 
(2,240,110 lb (1,016.1 mt)/ 113,278,842 lb (51,382.4 mt)). The 
resulting number is 1.98 percent. Based upon these two prospective 
Sector members, the Sector TAC of GB cod would be 121 mt (1.98 percent 
of the fishery-wide GB cod target TAC of 6,132 mt). The fishery-wide GB 
cod target TAC of 6,132 mt is less than the GB cod target TAC specified 
for 2006 (7,458 mt) because the 7,458 mt includes Canadian catch. That 
is, the fishery-wide GB cod target TAC of 6,132 mt was calculated by 
subtracting the GB cod TAC specified for Canada under the U.S./Canada 
Resource Sharing Understanding for FY 2006 (1,326 mt), from the overall 
GB cod target TAC of 7,458 mt specified by the New England Fishery 
Management Council (Council) for FY 2006 (71 FR 25095, April 28, 2006). 
If prospective members of the Sector change their minds about 
participating in the Fixed Gear Sector after the publication of this 
notice and prior to a final decision by the Regional Administrator, it 
is possible that the total number of participants in the Sector and the 
TAC for the Sector may be reduced from the numbers above.
    The Fixed Gear Sector Agreement contains procedures for the 
enforcement of the Sector rules, a schedule of penalties, and provides 
the authority to the Fixed Gear Sector Manager to issue stop fishing 
orders to members of the Fixed Gear Sector. Participating vessels would 
be required to land fish only in designated landing ports and would be 
required to provide the Sector Manager with a copy of the Vessel Trip 
Report (VTR) within 48 hrhours of offloading. Dealers purchasing fish 
from participating vessels would be required to provide the Fixed Gear 
Sector Manager with a copy of the dealer report on a weekly basis. On a 
monthly basis, the Fixed Gear Sector Manager would transmit to NMFS a 
copy of the VTRs and the aggregate catch information from these 
reports. After 90 percent of the Fixed Gear Sector's allocation has 
been harvested, the Fixed Gear Sector Manager would be required to 
provide NMFS with aggregate reports on a weekly basis. A total of 1/12 
of the Fixed Gear Sector's GB cod TAC, minus a reserve, would be 
allocated to each month of the fishing year. GB cod quota that is not 
landed during a given month would be rolled over into the following 
month. Once the aggregate monthly quota of GB cod is reached, for the 
remainder of the month, participating vessels could not fish under a NE 
multispecies DAS, possess or land GB cod or other regulated species, or 
use gear capable of catching regulated NE multispecies. Once the annual 
TAC of GB cod is reached, Fixed Gear Sector members could not fish 
under a NE multispecies DAS, possess or land GB cod or other regulated 
species, or use gear capable of catching regulated NE multispecies for 
the rest of the fishing year. The harvest rules would not preclude 
vessels from fishing under the charter/party or recreational 
regulations, provided the vessel fishes under the applicable charter/
party and recreational rules on separate trips. For each fishing trip, 
participating vessels would be required to fish under the NE 
multispecies DAS program to account for any incidental groundfish 
species that they may catch while fishing for GB cod. In addition, 
participating vessels would be required to call the Sector Manager 
prior to leaving port. There would be no trip limit for GB cod for 
participating vessels. All legal-sized cod caught would be retained and 
landed and counted against the Fixed Gear Sector's aggregate 
allocation. Participating vessels would not be allowed to fish with or 
have on board gear other than jigs, non-automated demersal longline, 
handgear, or sink gillnets, and participating Fixed Gear Sector vessels 
fishing with hook gear would be exempt from the GB Seasonal Closure 
Area during May.
    The Operations Plan submitted by the Fixed Gear Sector proposes 
that Sector members be allowed to fish in a geographic area that 
extends farther

[[Page 48905]]

south (south to 35[deg] 00' N. Lat.) and west (to the coast) than does 
the area specified in the FW 42 proposed rule, which states that the 
Fixed Gear Sector would fish only in the GB Cod Hook Sector Area, which 
is substantially smaller, and does not include the areas to the south 
or west of GB. In FW 42, the Council proposed that the Fixed Gear 
Sector be required to fish in the GB Cod Hook Sector Area, and included 
such a requirement in the proposed regulations, because the GB Cod Hook 
Sector, which has very similar goals is subject to this requirement 
(i.e., targeting GB cod). FW 42, which proposes to create the GB Cod 
Fixed Gear Sector, did not describe or define a geographic area 
associated with the Fixed Gear Sector. For both Amendment 13 and FW 42 
(proposed), the justification for defining the geographic area in the 
regulations, in contrast to defining the area only in the Operations 
Plan, is that the area where a sector fishes is one of the fundamental 
attributes that defines a sector. Because the Fixed Gear Sector 
Operations Plan proposes a geographic area that is different from that 
proposed in FW 42, NMFS is particularly interested in receiving public 
comments on this subject.
    The EA prepared for the Fixed Gear Sector operations concludes that 
the biological impacts of the Fixed Gear Sector will be positive 
because the hard TAC for GB cod will ensure that the Fixed Gear Sector 
members will not be contributing to overfishing of GB cod, and the use 
of fixed gear will preclude the use of other gear that may have greater 
negative bycatch and habitat impacts. Implementation of the Fixed Gear 
Sector would have a positive impact on essential fish habitat (EFH) and 
bycatch by allowing a maximum number of hook or gillnet vessels to 
remain active in the fishery, rather than converting to (or leasing DAS 
to) other gear types that have greater impacts on EFH. DAS will provide 
two means of restricting both the landings and effort of the Fixed Gear 
Sector. Monthly quota targets would spread out the catch throughout the 
fishing year and prevent the harvest of the cod TAC in an intensive 
manner. The prohibition on discarding would reduce regulatory 
discarding, and the elimination of the daily trip limit would allows 
vessel to operate more efficiently. The analysis of economic impacts of 
the Fixed Gear Sector concludes that Fixed Gear Sector members would 
enable member businesses to remain economically viable by realizing 
higher economic returns, if the Fixed Gear Sector were implemented. The 
EAEnvironmental Assessment (EA) asserts that fishing in accordance with 
the Sector Agreement rules enables more adaptable and efficient 
harvesting of GB cod with fixed gear than would be possible if the 
vessels were fishing in accordance with the common pool (non-Sector) 
rules. The social benefits of the Fixed Gear Sector would accrue to 
Fixed Gear Sector members, as well as the Chatham/Harwichport, MA, 
community, which is highly dependent upon groundfish revenues. The EA 
concludes that the self-governing nature of the Fixed Gear Sector and 
the development of rules by the Fixed Gear Sector enables stewardship 
of the cod resource by Fixed Gear Sector members. The cumulative 
impacts of the Fixed Gear Sector are expected to be positive due to a 
positive biological impact, neutral impact on habitat, and a positive 
social and economic impact. In contrast, the cumulative impact of the 
no action alternative is estimated to be neutral, with negative social 
and economic impacts on the fixed gear fishery.
    Should the Regional Administrator approve the Sector Agreement as 
proposed, a Letter of Authorization would be issued to each member of 
the Fixed Gear Sector exempting them, conditional upon their compliance 
with the Sector Agreement, from the GB cod possession restrictions and 
the requirements of the GOM trip limit exemption program, as specified 
in Sec.  648.86(b).
    Regulations under the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) require publication of this 
notification to provide interested parties the opportunity to comment 
on proposed TAC allocations and plans of operation of sectors.

Classification

    At this time, NMFS has not made a final determination that the 
measures this proposed rule would implement are consistent with the 
national standards of the Magnuson-Stevens Act and other applicable 
laws. NMFS, in making the final determination, will take into account 
the data, views, and comments received during the comment period.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order (E.O.) 12866.
    This proposed rule does not contain policies with federalism or 
``takings'' implications as those terms are defined in E.O. 13132 and 
E.O. 12630, respectively.
    An Initial Regulatory Flexibility Analysis (IRFA) was prepared, 
which has been modified by NMFS for this action, as required by section 
603 of the Regulatory Flexibility Act (RFA). Below is a summary of the 
IRFA, which describes the economic impact this proposed rule, if 
adopted, would have on small entities. A description of the action, why 
it is being considered, and the legal basis for this action are 
contained in the preamble to this proposed rule and in the Executive 
Summary and section 3.0 of the EA prepared for this action. The 
Proposed Alternative would approve the Operations Plan for the 2006 
fishing year and allocate a GB cod TAC of 121 mt to the Fixed Gear 
Sector. Once the GB cod TAC is reached, participating vessel would not 
be allowed to fish under a DAS, possess or land GB cod, or other 
regulated species managed under the FMP, or use gear capable of 
catching groundfish (unless fishing under recreational or charter/party 
regulations). Vessels intending to fish in the Fixed Gear Sector this 
fishing year may not fish for NE multispecies under a groundfish DAS 
this fishing year until the Sector Operations Plan is approved, and 
Fixed Gear Sector vessels may use either hook gear or gillnet gear 
only. Under the proposed Operations Plan, members using hook gear would 
be exempt from the May GB Seasonal Closure.
    The Small Business Administration (SBA) size standard for small 
commercial fishing entities is $4 million in gross sales, and the size 
standard for small party/charter operators is $6.5 million. Available 
data for fishing year 2004 gross sales show that the maximum gross 
sales for any single commercial fishing vessel was $1.8 million, and 
the maximum gross sales for any affected party/charter vessel was $1.0 
million. While an entity may own multiple vessels, available data make 
it difficult to determine which vessels may be controlled by a single 
entity. For this reason, each vessel is treated as a single entity for 
purposes of size determination and impact assessment. This means that 
all commercial and party/charter fishing entities would fall under the 
SBA size standard for small entities and, therefore, there is no 
differential impact between large and small entities.

Economic Impacts of the Proposed Action

    The fixed gear fishermen and the Chatham/Harwichport communities 
are dependaent upon GB cod and other groundfish. The Amendment 13 
restrictions that reduced the GB cod trip limit had a disproportionate 
affect on the Chatham fixed gear fishermen.

[[Page 48906]]

According to Amendment 13, Chatham's overall community dependence on 
multispecies as a percentage of total fisheries revenues from federally 
permitted vessels averaged about 71 percent. Allocation of cod TAC to a 
sector and the development of alternative fishing restrictions would 
mitigate the impacts of Amendment 13. Specifically, the proposed 
Operations Plan enables Fixed Gear Sector members to fish under a set 
of rules crafted by Sector members in order to adapt to current 
economic and fishing conditions. This rule would enable Fixed Gear 
Sector members to remain economically viable by maximizing revenues and 
minimizing expenses in the short term, and help to maintain associated 
shoreside job opportunities.
    Because of the time elapsed between the beginning of the fishing 
year on May 1, 2006, and the anticipated effective date of FW 42, as 
well as the fact that Sector members are not allowed to fish during the 
fishing year prior to the approval of the Sector Operations Plan, many 
prospective members were forced to choose between fishing during the 
summer and foregoing participation in the Fixed Gear Sector for FY 
2006, or to abstain from fishing in order to preserve eligibility to 
participate in the Fixed Gear Sector. Because June, July, and August 
are traditionally the most profitable months of the fishing year, many 
fishermen could not afford to not fish, despite the economic benefits 
the Sector has to offer. Many fishermen make 50 percent or more of 
their annual income in those 3 months alone. Therefore, the number of 
vessels participating in the Fixed Gear Sector in FY 2006 is 
significantly lower than anticipated.

Economic Impacts of Alternative to the Proposed Action

    Under the No Action alternative, all Sector members would remain in 
the common pool of vessels and fish under all the rules implemented by 
Amendment 13 and subsequent Framework Adjustments, and there would be 
no allocation of GB cod to the Fixed Gear Sector. Because cod usually 
represents a high proportion of total fishing income for gillnet and 
hookgear vessels, revenues for such vessel owners are very sensitive to 
changes in cod trip limits. Under the scenario of reduced DAS 
anticipated under FW 42 and a restrictive daily trip limit that would 
be in place under the no action alternative, it is likely that Fixed 
Gear Sector vessels would experience revenue losses. It is more likely 
under the No Action alternative that disruption to the Chatham/
Harwichport communities would occur.

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule

    This proposed rule contains no collection-of-information 
requirement subject to the Paperwork Reduction Act (PRA).

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

    Dated: August 16, 2006.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E6-13867 Filed 8-21-06; 8:45 am]
BILLING CODE 3510-22-S