[Federal Register Volume 71, Number 229 (Wednesday, November 29, 2006)]
[Rules and Regulations]
[Pages 69070-69073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9452]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 060808213-6300-02; I.D. 073106C]
RIN 0648-AU56


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; 2006 Georges Bank Cod 
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: Final rule.

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SUMMARY: NMFS announces partial approval of an Operations Plan and 
Sector Contract titled ``GB Cod Fixed Gear Sector Operations Plan and 
Agreement'' (together referred to as the Sector Operations Plan), and 
the associated allocation of Georges Bank (GB) cod, consistent with 
regulations implementing Amendment 13, as modified by Framework 
Adjustment (FW) 42 to the Northeast (NE) Multispecies Fishery 
Management Plan (FMP) for fishing year (FY) 2006. The intent of this 
action is to allow regulated harvest of NE multispecies by the GB Cod 
Fixed Gear Sector (Fixed Gear Sector), consistent with the objectives 
of the FMP.

DATES: Effective November 22, 2006, through April 30, 2007.

ADDRESSES: Copies of the Sector Operations Plan and the Environmental 
Assessment (EA) are available upon request from the NE Regional Office 
at the following mailing address: George H. Darcy, Assistant Regional 
Administrator for Sustainable Fisheries, NMFS, Northeast Regional 
Office, 1 Blackburn Drive, Gloucester, MA 01930. These documents may 
also be requested by calling (978) 281-9315.

FOR FURTHER INFORMATION CONTACT: Mark Grant, Fishery Management 
Specialist, phone (978) 281-9145, fax (978) 281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: The final rule implementing Amendment 13 to 
the FMP (69 FR 22906, April 27, 2004) specified a process for the 
formation of sectors within the NE multispecies fishery and the 
allocation of total allowable catch (TAC) or days-at-sea (DAS) for 
specific NE multispecies, implemented restrictions that apply to all 
sectors, and authorized the first sector of the FMP (the GB Cod Hook 
Gear Sector). The final rule implementing FW 42 (71 FR 62156, October 
23, 2006) creates the Fixed Gear Sector, the second approved sector of 
the FMP. Creation of the Fixed Gear Sector authorizes the Regional 
Administrator to allocate a GB cod TAC to the Fixed Gear Sector and 
exempt members from FMP restrictions on an annual basis.
    In accordance with the regulations that specify the process of 
sector approval, and in anticipation of approval of the Fixed Gear 
Sector, the Fixed Gear Sector submitted an initial version of the 
Sector Operations Plan and EA to NMFS on February 1, 2006. A final 
version was submitted on September 18, 2006. According to these 
documents, the Fixed Gear Sector will be overseen by a Board of 
Directors and a Sector Manager. Consistent with Amendment 13, the cod 
TAC for the Fixed Gear Sector is based upon the number of participants 
and their historic landings of GB cod. In addition, participating 
vessels will be required to fish under their Amendment 13 DAS 
allocations to account for any incidental groundfish species that they 
may catch while fishing for GB cod. The GB cod TAC is a ``hard'' TAC, 
meaning that, once the TAC is reached, Fixed Gear Sector vessels may 
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) for the remainder of the fishing year.
    Each Fixed Gear Sector member will be required to fish with jigs, 
demersal longline, handgear or gillnets; remain in the Fixed Gear 
Sector for the entire fishing year; and be confined to fishing in the 
Sector Area, which is that portion of the GB cod stock area north of 
39o 00' N. lat. and east of 71o 40' W. long. Fixed Gear Sector members 
will be required to comply with all pertinent Federal fishing 
regulations, unless specifically exempted by a Letter of Authorization 
(LOA), and with the provisions of the approved Operations Plan. Fixed 
Gear Sector members will be exempted from the GB cod possession limits, 
the requirements of the GOM cod trip limit exemption program, and the 
GB Seasonal Closure Area (when fishing with hook gear).
    On August 22, 2006, a proposed rule was published in the Federal 
Register (71 FR 48903) that requested comments on the Operations Plan 
and EA. The

[[Page 69071]]

proposed rule announced that the Operations Plan proposed a geographic 
area for the Fixed Gear Sector that was different from the Sector Area 
proposed in FW 42 and specifically solicited comments on the larger 
area proposed in the Operations Plan. The comment period closed on 
September 21, 2006.
    Two Fixed Gear Sector members have 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 Fixed Gear 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 the two prospective Fixed Gear Sector members, 
the Fixed Gear Sector TAC of GB cod will be 121 mt (1.98 percent of the 
U.S. portion of the fishery-wide GB cod target TAC of 6,132 mt).

Disapproved Measure

    The proposed rule for FW 42 specified the same geographic area for 
the Fixed Gear Sector (i.e., the Sector Area) as the area that was 
implemented in the Amendment 13 final rule for the GB Cod Hook Gear 
Sector. Conversely, the Fixed Gear Sector's Operations Plan, Sector 
Agreement, and EA proposed a geographic area for the Fixed Gear Sector 
that was substantially different from this Sector Area. The geographic 
area proposed in the Operations Plan and Sector Agreement included the 
Sector Area, but extended it south to 35 00' N. lat. and west to the 
coast. The Operation's Plan for the Fixed Gear Sector states that Fixed 
Gear Sector participants should be allowed to fish in an area larger 
than the GB Cod Hook Sector area in order to pursue an offshore gillnet 
fishery for monkfish. Because the goal of the Fixed Gear Sector is 
similar to the GB Cod Hook Sector, i.e., to target cod and other NE 
multispecies, the rationale to expand the Sector Area for participants 
in the Fixed Gear Sector for the purpose of targeting monkfish is not 
consistent with the objectives of the FMP and is, therefore, not 
justified in this action. Furthermore, expansion of this area must be 
implemented through the existing FMP framework adjustment process.

Comments and Responses

    Thirty-three comments were received on this action. In addition, 36 
comments sent in response to the proposed rule for FW 42, and which 
directly addressed the Operations Plan, were also considered for this 
action. Combined, 58 separate entities commented on the Operations Plan 
(some entities submitted separate comments to both proposed rules). 
Only comments received before the deadline were considered.
    Comment letters were received from Associated Fisheries of Maine, 
the Maine Department of Marine Resources; the Cape Cod Commercial Hook 
Fishermen's Association; the GB Cod Hook Sector; the Fixed Gear Sector; 
the Portland Fish Exchange; the Boards of Selectmen of Orleans, 
Harwich, Brewster, Chatham, and Yarmouth, MA; Representative William 
Delahunt; Massachusetts State Senator Robert O'Leary; the Downeast 
Initiative; the Conservation Law Foundation; AJ Marine Hydraulic 
Equipment; Environmental Defense; the National Environmental Trust; one 
recreational fisherman; three industry members not associated with a 
sector; and 36 industry members associated with the two sectors.
    Comment 1: One commenter did not specifically address either the 
Operations Plan or EA, but opposed any expansion of commercial fishing 
and asserted that a portion of GB should be reserved for recreational 
fishermen.
    Response: Amendment 13 to the FMP established the process by which 
a group of individuals may form a sector. One of the requirements of 
this procedure is that all of the participating vessels are limited 
access NE multispecies permit holders. Reserving a portion of GB or any 
associated fish species as a sector is not a viable option under 
current regulations, nor is there any other mechanism by which a 
portion of the NE multispecies fishery or associated fishing area can 
be reserved for recreational fishers, since recreational fishers do not 
have a limited access NE Multispecies permit specific for their 
fishery.
    Comment 2: Fifty-one commenters supported the Fixed Gear Sector and 
approval of the Operations Plan. Generally, the commenters supported 
the idea of a sector because they felt it could help to reduce fishing 
waste, involve communities in management, and allow for greater 
responsibility and accountability in the fishing industry.
    Response: NMFS agrees and has approved the Fixed Gear Sector's 
Operations Plan.
    Comment 3: Two commenters specified that the Fixed Gear Sector 
should be allowed access only to the GB Cod Hook Gear Sector Area, and 
two commenters believed that the expanded geographic area proposed in 
the Sector Operations Plan should be vetted by the Council prior to 
approval. Twenty-five comments were received on the proposed rule for 
FW 42, requesting that NMFS modify the Sector Area to reflect the 
larger area proposed by the Sector's Operations Plan to facilitate 
pursuit of an offshore monkfish fishery. A further 19 comments 
supported the expanded Sector Area proposed in the Operations Plan to 
direct effort away from the Gulf of Maine. Eight of the 19 comments 
specified that the expanded Sector Area proposed would allow the Fixed 
Gear Sector to maintain a traditional winter fishery focused on 
offshore monkfish while accounting for GB cod bycatch.
    Response: Because the goal of the Fixed Gear Sector is similar to 
the GB Cod Hook Gear Sector, i.e., to target cod and other NE 
multispecies, the rationale to expand the Sector Area for participants 
in the Fixed Gear Sector for the purpose of targeting monkfish is not 
consistent with the objectives of the FMP, and is, therefore, not 
justified. Furthermore, changing the geographic area of a sector needs 
to be considered by the New England Fishery Management Council 
(Council) and must be implemented through rulemaking under the 
framework adjustment process in the FMP. For these reasons, NMFS has 
disapproved expansion of the Sector Area for the Fixed Gear Sector.
    Comment 4: Six commenters believe that the Fixed Gear Sector should 
be required to have TACs for all species. One noted that input controls 
could have been proposed in lieu of TACs for all species. Two 
commenters also expressed concern that the Fixed Gear Sector will 
reduce the effectiveness of the net cap on pollock and monkfish. Two 
commenters expressed concern that the Fixed Gear Sector could cause 
redirected effort and impact other portions of the industry.
    Response: The assertion that a sector should be governed by a TAC 
for each species has previously been considered in the context of the 
GB Cod Hook Gear Sector. Because the Fixed Gear Sector would continue 
to be bound by both species-specific possession limits and DAS effort 
controls, TACs are unnecessary for each species. A TAC is issued for GB 
cod in lieu of possession limits. The comment suggesting that input 
controls could have been proposed in lieu of TACs is without merit 
because the Fixed Gear Sector has proposed input controls in the form 
of DAS and gear restrictions. Similarly, concerns regarding pollock and 
monkfish caps, and the potential for

[[Page 69072]]

redirected effort are unfounded because the Fixed Gear Sector will 
continue to be bound by DAS and possession limits for all other 
species. Additionally, the Fixed Gear Sector may not 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) once the Sector's cod TAC is 
reached.
    Comment 5: One commenter believes that the TAC monitoring protocol 
proposed in the Sector's Operations Plan is insufficient to ensure 
timely monitoring of monthly quotas and suggested that daily Vessel 
Monitoring System (VMS) reporting, standard for other parts of the 
industry, would be more effective than Vessel Trip Reports (VTRs) 
submitted monthly to NMFS.
    Response: The TAC monitoring system proposed by the Fixed Gear 
Sector is modeled after the system used by the GB Cod Hook Gear Sector. 
During 3 years of operations this system has been successful at 
managing both the cod TAC and monthly quota. Further, the Sector 
Manager is empowered to require an observer be present at offloading of 
all catch to enhance monitoring.
    LOAs will be issued to members of the Fixed Gear Sector exempting 
them, conditional upon their compliance with the Sector Operations 
Plan, from the requirements of the GOM cod trip limit exemption 
program, the GB Seasonal Closure Area (when fishing with hook gear), 
and the GB cod possession limit restrictions, as specified in 
Sec. Sec.  648.86(b)(4), 648.81(g), and 648.86(b)(1) and (2), 
respectively.

Classification

    NMFS has determined that this final rule is consistent with the FMP 
and is consistent with the Magnuson-Stevens Fishery Conservation and 
Management Act and other applicable laws.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
pursuant to 5 U.S.C 553(d)(3) to waive the 30-day delay in 
effectiveness. Formation of the Fixed Gear Sector is authorized by the 
final rule implementing FW 42, in accordance with procedures and 
requirements implemented by Amendment 13, and became effective on 
November 22, 2006 (71 FR 62156). Creation of the Fixed Gear Sector 
allows the Regional Administrator to allocate a GB cod TAC to the Fixed 
Gear Sector and exempt Fixed Gear Sector members from FMP restrictions 
on an annual basis. Therefore, this action could not be taken prior to 
the effective date of FW 42, November 22, 2006. FW 42 was scheduled to 
take effect on May 1, 2006, the beginning of the 2006 fishing year; 
however, final adoption of FW 42 by the Council was delayed for several 
months, which substantially hindered the ability of NMFS to implement 
the rule in the expected time frame. Under the Sector allocation 
provisions specified in 648.87(b)(1)(xii), vessels that fish under the 
DAS program outside the Sector allocation in a given fishing year may 
not participate in a Sector during the same fishing year. Thus, the two 
vessels that have agreed to participate in the Fixed Gear Sector have 
been prohibited from fishing in the groundfish DAS program since May 1, 
2006, pending the creation of the Fixed Gear Sector. Each of the 
vessels that have agreed to participate in the Fixed Gear Sector 
possesses only two limited access permits: Lobster and groundfish. The 
lobster fishery, for which these vessels are permitted, is seasonal, 
with catches slowing during late fall and remaining low through the 
winter. Thus, while both of these vessels have been able to fish in the 
lobster fishery since May 1, 2006, the seasonality of that fishery 
means that they are more dependent on groundfish for their livelihood 
at this time of year.
    Both vessels that have signed on to the Fixed Gear Sector are 
considered small vessels (<50 ft), which are more adversely impacted by 
weather conditions than other vessels. In addition, since these vessels 
are rigged for lobster and hook gear, they are what is referred to as 
``open'' vessels (i.e., no shelter is available during fishing 
operations) and are exposed to the elements during fishing operations. 
In addition, the homeport of one vessel, Chatham, is notoriously 
dangerous to access, particularly during inclement weather. If they 
cannot begin to fish immediately, then they may effectively be deprived 
of the majority of the rest of the fishing season because of the 
likelihood of a great number of days of inclement weather.. At this 
point in the fishing year, there remain a limited number of groundfish 
days which will have weather in which these two vessels can safely 
travel to the Sector area on Georges Bank, and since they have already 
missed the bulk of the season, any further delay would deprive them of 
a meaningful chance to pursue their livelihood.
    This final rule has been determined to be not significant for 
purposes of Executive Order (E.O.) 12866. This final rule does not 
contain policies with federalism or ``takings'' implications as those 
terms are defined in E.O. 13132 and E.O. 12630, respectively. There are 
no Federal rules that duplicate, overlap, or conflict with this final 
rule.
    An EA has been prepared for this final rule in compliance with the 
National Environmental Policy Act (NEPA). In addition, an EA was 
prepared for FW 42 to the FMP, which references the Fixed Gear Sector. 
Copies of both of these EAs may be obtained from the Regional 
Administrator (see ADDRESSES).
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), prepared this Final Regulatory Flexibility Analysis (FRFA) in 
support of the 2006 GB Fixed Gear Sector Operations Plan and allocation 
of GB cod TAC. The FRFA incorporates the economic impacts summarized in 
the Initial Regulatory Flexibility Analysis (IRFA) included in the 
proposed rule and the corresponding analysis in the EA prepared for 
this action. A summary of the IRFA was published in the proposed rule 
for this action and is not repeated here. A description of why this 
action was considered, along with the objectives of, and the legal 
basis for, this rule are contained in the preamble to the proposed rule 
and are not repeated here.

Summary of the Issues Raised by Public Comments in Response to the 
IRFA. A summary of the Assessment of the Agency of Such Issues, and a 
Statement of Any Changes Made from the Proposed Rule as a Result of 
Such Comments

    No comments pertaining to the IRFA or the economic impacts of the 
rule were received during the comment period for this action.

Description of and Estimate of the Number of Small Entities to Which 
the Final Rule Would Apply

    All vessels issued a limited access NE multispecies permit and 
allocated DAS are eligible to participate in the Fixed Gear Sector. 
Although the nearly 1,000 vessels issued a limited access NE 
multispecies permit and allocated DAS are eligible to participate in 
this Sector, it is expected that a substantially smaller number of 
vessels will actually participate in the Fixed Gear Sector. Due to 
delays in the review and approval of FW 42, to date, only two vessels 
have signed the 2006 Sector Contract. However, it is expected that 
approximately 23 vessels will participate in a proposed Fixed Gear 
Sector during FY 2007, based upon preliminary estimates.
    The Small Business Administration (SBA) size standard for small 
commercial fishing entities is $4 million in gross sales, and the size 
standard for small charter/party operators is $6.5

[[Page 69073]]

million. Available data for FY 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 charter/party fishing entities would fall 
under the SBA size standard for small entities and, therefore, there is 
no differential impact between large and small entities.

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

    This rule contains no collection-of-information requirements 
subject to the Paperwork Reduction Act.

Description of Steps the Agency Has Taken to Minimize the Significant 
Economic Impact on Small Entities Consistent with the Stated Objectives 
of Applicable Statues

    Two alternatives were considered regarding the 2006 Fixed Gear 
Sector Operations Plan and allocation of GB cod TAC: The no-action 
alternative and the proposed alternative. Under the no-action 
alternative, all Fixed Gear Sector vessels would remain in the common 
pool of vessels and be subject to all of the regulations implemented by 
Amendment 13 and subsequent adjustments to the FMP, and would not be 
allocated any portion of the GB cod target TAC. The proposed 
alternative implemented by this action, enables vessels to fish under 
the restrictions of the Operations Plan summarized above and allocates 
a portion of the GB cod target TAC to Fixed Gear Sector vessels.
    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. As a result, 
the reduced number of available DAS and restrictive trip limits 
implemented by recent management actions such as FW 42 would result in 
revenue losses for Fixed Gear Sector vessels under the no-action 
alternative. In contrast, the 2006 Sector Operations Plan includes a 
number of provisions that would allow Fixed Gear Sector vessels to 
remain economically viable, minimize vessel expenses, and maximize 
consistent revenue streams throughout the fishing year compared to the 
no-action alternative, without compromising conservation objectives of 
the FMP. Such provisions include the establishment of a hard TAC for GB 
cod landed by Fixed Gear Sector vessels, the even distribution of the 
allocated GB cod TAC throughout the fishing year, the ability to pool 
available DAS among Fixed Gear Sector vessels, and exemption from the 
GB Seasonal Closure Area for hook gear vessels. By facilitating the 
continued supply of groundfish, the preferred alternative allows Fixed 
Gear Sector vessels to maximize revenues from available fishing 
opportunities and, therefore, minimizes adverse economic impacts on 
small entities compared to the no-action alternative.

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

    Dated: November 22, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 06-9452 Filed 11-24-06; 2:07 pm]
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