[Federal Register Volume 72, Number 72 (Monday, April 16, 2007)]
[Proposed Rules]
[Pages 18937-18940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1882]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070321063-7063-01; I.D. 031607E]
RIN 0648-AV22


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; 2007 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: Proposed rule; request for comments.

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SUMMARY: Framework Adjustment (FW) 42 to the Northeast (NE) 
Multispecies Fishery Management Plan (FMP) created the Georges Bank 
(GB) Cod Fixed Gear Sector (Fixed Gear Sector) and authorized 
allocation of up to 20 percent of the annual GB cod total allowable 
catch (TAC) to the Fixed Gear Sector. Pursuant to that authorization, a 
representative of the Fixed Gear Sector has submitted an Operations 
Plan, Sector Agreement (Contract) and requested an allocation of GB cod 
to the Fixed Gear Sector for fishing year 2007 (FY 2007). A 
Supplemental Environmental Assessment (EA) has also been prepared. This 
document provides interested parties an opportunity to comment on the 
proposed Sector Operations Plan and EA prior to final approval or 
disapproval of the Sector Operations Plan and allocation of GB cod TAC 
to the Fixed Gear Sector for FY 2007.

DATES: Written comments must be received on or before May 1, 2007.

ADDRESSES: You may submit written comments by any of the following 
methods:
     Mail: Paper, disk, or CD-ROM 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 Cod Fixed Gear Sector 2007 Operations 
Plan.''
     Fax: (978) 281-9135.
     E-mail: [email protected].
     Federal e-Rulemaking Portal: http://www.regulations.gov.
    Copies of the Sector Agreement and the EA are available from the NE

[[Page 18938]]

Regional Office at the mailing address specified above. Written 
comments regarding the burden-hour estimates or other aspects of the 
collection-of-information requirements contained in the proposed rule 
may be submitted to the address above or by e-mail to [email protected]">[email protected], or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Mark Grant, Fishery Management 
Specialist, phone (978) 281-9145, 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 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).
    FW 42 (71 FR 62156, October 23, 2006) established the Fixed Gear 
Sector. The FW 42 regulations that apply to the Fixed Gear Sector 
specify that: (1) all vessels with a valid limited access NE 
multispecies DAS permit are eligible to participate in the Fixed Gear 
Sector, provided they have documented landings of GB cod through valid 
dealer reports submitted to NMFS during FY 1996 through 2001 
(regardless of gear fished); (2) membership in the Fixed Gear Sector is 
voluntary, and each member must remain in the Fixed Gear Sector for the 
entire fishing year and may not fish outside the NE multispecies DAS 
program during the fishing year, unless certain conditions are met; (3) 
vessels fishing in the Fixed Gear Sector (participating vessels) are 
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 must comply with 
all pertinent Federal fishing regulations, unless specifically exempted 
by a Letter of Authorization, and the provisions of an approved 
Operations Plan.
    Although FW 42 established 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 Fixed Gear Sector 
participants and a plan containing the management rules that the Fixed 
Gear Sector participants agree to abide by in order to avoid exceeding 
the allocated TAC. An additional analysis of the impacts of the Fixed 
Gear 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.
    The Fixed Gear Sector submitted an initial version of the 
Operations Plan and Sector Contract to NMFS on January 22, 2007. The 
Fixed Gear Sector subsequently submitted additional iterations of the 
Operations Plan to clarify the Operations Plan and refine the analyses, 
with a final submission date of March 7, 2007. A Supplemental 
Environmental Assessment was also prepared.
    The Fixed Gear Sector would be overseen by a Board of Directors and 
a Sector Manager. The Sector Contract specifies, in accordance with 
Amendment 13, that the Sector's GB cod TAC would be based upon the 
number of Fixed Gear Sector members and their historic landings of GB 
cod. The GB cod TAC is a ``hard'' TAC, meaning that, once the TAC is 
reached, Fixed Gear Sector vessels could not fish under a NE 
multispecies 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).
    The proposed 2007 Operations Plan proposes exemption from the 
following restrictions of the FMP: GB cod trip limit, the GB Seasonal 
Closure Area (when fishing with hook gear), the 3,600-hook limit for 
longline gear in the GB Regulated Mesh Area (RMA), and the 2,000-hook 
limit in the Gulf of Maine (GOM) and Southern New England (SNE) RMAs. 
Justification for the proposed exemptions and analysis of the potential 
impacts of the Operations Plan are contained in the EA. A Regulatory 
Impact Review/Initial Regulatory Flexibility Analysis (IRFA) is 
summarized in the Classification section of this proposed rule.
    As of March 7, 2007, 19 prospective Fixed Gear Sector members had 
signed the 2007 Sector Contract. The GB cod TAC calculation is based 
upon the historic GB cod landings of the participating 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 (12,119,410 lb (5,497 
mt)/113,278,842 lb (51,382.4 mt)). The resulting number is 900 mt, or 
10.70 percent of the proposed fishery-wide GB cod target TAC of 8,416 
mt. If prospective members of the Fixed Gear Sector change their minds 
about participating in the Fixed Gear Sector after the publication of 
this proposed rule 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, but no additional members may join the Fixed Gear Sector for FY 
2007 fishing year.
    The Sector Contract contains procedures for the enforcement of the 
Operations Plan, 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 Fixed Gear Sector Manager with a copy of the Vessel Trip 
Report (VTR) within 48 hrs 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 
aggregate catch data from dealer slips and aggregate discard data from 
the VTRs. 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 may not fish under a NE 
multispecies DAS, possess or land GB cod or other regulated species, or

[[Page 18939]]

use gear capable of catching regulated NE multispecies. 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 regulations 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. 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. Participating Fixed Gear Sector 
vessels fishing with hook gear could use an unlimited number of hooks 
in the Sector Area and would be exempt from the GB Seasonal Closure 
Area during May.
    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 and the use of DAS will provide two means of 
restricting both the landings and effort of the Fixed Gear Sector. 
Implementation would have a positive impact of essential fish habitat 
(EFH) and bycatch by allowing a maximum number of hook and gillnet 
vessels to remain active in those fisheries, rather than converting to 
(or leasing DAS to) other gear types that have greater impacts on EFH. 
The analysis of economic impacts of the Fixed Gear Sector concludes 
that the members would realize higher economic returns if the Fixed 
Gear Sector is implemented. The EA asserts that fishing in accordance 
with the Sector Contract rules enables more efficient harvesting of GB 
cod with hook and gillnet 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 members as 
well as the Chatham and Harwichport, MA, communities, which are more 
dependent upon groundfish revenues than other communities. The 
supplemental EA concludes that the self-governing nature of the Fixed 
Gear Sector and the development of rules by the members enables 
stewardship of the cod resource by the Fixed Gear Sector. The 
cumulative impacts of the Fixed Gear Sector are expected to be positive 
due to a positive biological impact, positive 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.
    Should the Regional Administrator approve the Sector Contract 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 Contract, from the GB cod possession restrictions, the 
3,600-hook limit in the GB RMA, the 2,000-hook limit in the GOM and SNE 
RMAs and the GB Seasonal Closure Area when using hook gear, as 
specified in Sec. Sec.  658.86(b)(2), 648.80(a)(4)(v), 648.80(a)(3)(v), 
648.80(b)(2)(v) and 648.81(g), respectively.

Classification

    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 IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act. 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 sections 1.0 and 2.0 of the EA prepared for this 
action. The Small Business Administration size standard for small 
commercial fishing entities is $4 million in average annual receipts, 
and the size standard for small charter/party operators is $6.5 million 
in average annual receipts. 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. All permitted and participating vessels in the groundfish 
fishery, including prospective Fixed Gear Sector members, are 
considered to be small entities because gross sales by any one entity 
(vessel) do not exceed this threshold. The number of prospective 
participants in the Fixed Gear Sector is 19, substantially less than 
the total number of active vessels in the groundfish fishery. Only 
these 19 vessels would be subject to the regulatory exemptions and 
operational restrictions proposed for the Fixed Gear Sector for FY 
2007.

Economic Impacts of the Proposed Action

    The proposed alternative would allocate a GB cod TAC of 900 mt to 
the Fixed Gear Sector. Once the GB cod TAC is harvested, participating 
vessels would not be allowed to fish under a NE multispecies DAS, 
possess or land GB cod, or other regulated species managed under the NE 
multispecies 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 during the 2007 fishing year 
may only fish with hook gear or gillnet gear and may not fish for NE 
multispecies under a NE multispecies DAS during the 2007 fishing year 
until the Sector Operations Plan is approved. Under the proposed 
Operations Plan, members would be exempt from several restrictions of 
the FMP described in the preamble to this proposed rule and in the EA.
    The fixed gear fishermen and the Chatham and Harwichport, MA, 
communities are dependent upon GB cod and other groundfish. The 
Amendment 13 restrictions that reduced the GB cod trip limit had a 
disproportionate affect on these fixed gear fishermen. According to 
Amendment 13, Chatham's overall community dependence on NE multispecies 
as a percentage of total fisheries revenues from federally permitted 
vessels averaged about 71 percent and likely at least some of the 
active groundfish vessels in Chatham and Harwichport are even more than 
71% dependent on the multispecies fishery. Because the Fixed Gear 
Sector was implemented late in the 2006 FY and only one vessel 
participated, quantitative data on the precise economic impact of the 
Fixed Gear Sector does not exist. However, a qualitative assessment of 
the Fixed Gear Sector is possible.
    The proposed alternative would positively impact the 19 vessels 
that have voluntarily joined the Fixed Gear Sector, who are relatively 
dependent upon cod revenue compared to other participants in the 
groundfish fishery. The proposed alternative would indirectly benefit 
the communities of Chatham and Harwichport, MA, and to a lesser extent 
other Cape Cod, MA, communities involved in the groundfish fishery. 
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

[[Page 18940]]

Plan enables Fixed Gear Sector members to fish under a set of rules 
crafted by Fixed Gear Sector members in order to adapt to current 
economic and fishing conditions. The Fixed Gear Sector, by fishing 
under rules that are designed to meet their needs (as well as the 
conservation requirements of the FMP), is afforded a larger degree of 
flexibility and efficiency, which result in economic gains. For 
example, Fixed Gear Sector members are able to plan their fishing 
activity and income in advance with more certainty due to the fact that 
there is a cod TAC, which is apportioned to each month of the year. 
They are able to maximize their efficiency (revenue per trip), by 
targeting seasonal aggregations of cod, due to the exemption from trip 
limits and hook numbers. Thus, this proposed rule would enable Fixed 
Gear Sector members to remain economically viable by maximizing 
revenues and minimizing expenses in the short term. This would also 
help to maintain associated shoreside job opportunities.

Economic Impacts of Alternatives to the Proposed Action

    Under the No Action alternative, all Fixed Gear 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 Cape Cod-based gillnet and hookgear vessels, revenues for 
such vessel owners are very sensitive to regulations that impact how 
and when they can fish for cod, such as trip limits and restrictions on 
the number of hooks fished. Under the common pool rules implemented by 
FW 42 (e.g., differential DAS counting) and Amendment 13 (restrictive 
daily trip limits for cod), 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 rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act (PRA) and which has been approved by OMB 
under control number 0648-0202. Public reporting burden for the 
Submission of a Plan of Operation for an Approved Sector Allocation is 
estimated to average 50 hr per response, and for the Annual Reporting 
Requirements for Sectors is estimated to average 6 hr per response, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. Send comments regarding this 
burden estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-
mail to [email protected], or fax to (202) 395-7285. 
Nothwithstanding any other provision of the law, no person is required 
to respond to, nor shall any person be subject to a 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.
    Regulations under the Magnuson-Stevens Fishery Conservation and 
Management Act require publication of this notification to provide 
interested parties the opportunity to comment on proposed TAC 
allocations and plans of operation of sectors.

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

    Dated: April 11, 2007.
Samuel D. Rauch III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 07-1882 Filed 4-12-07; 10:41 am]
BILLING CODE 3510-22-S