[Federal Register Volume 72, Number 89 (Wednesday, May 9, 2007)]
[Rules and Regulations]
[Pages 26325-26327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2281]



[[Page 26325]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No 070322064-7097-02.; I.D. 030607E]
RIN 0648-AV20


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; 2007 Georges Bank Cod 
Hook 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.

-----------------------------------------------------------------------

SUMMARY: This final rule implements the Georges Bank (GB) Cod Hook 
Sector Fishing Year (FY) 2007 Operations Plan and Agreement, approved 
by the Administrator, Northeast Region, NMFS (Regional Administrator). 
Amendment 13 to the Northeast (NE) Multispecies Fishery Management Plan 
(FMP) (Amendment 13) authorized allocation of up to 20 percent of the 
annual GB cod total allowable catch (TAC) to the GB Cod Hook Sector 
(Sector). Pursuant to that authorization, the Sector submitted an 
Operations Plan and Sector Contract entitled, ``Georges Bank Cod Hook 
Sector Fishing Year 2007-2008 Operations Plan and Agreement'' (together 
referred to as the Sector Agreement) and requested an allocation of GB 
cod, consistent with regulations implementing Amendment 13. This action 
results in authorization of the Sector Operations Plan during the 2007 
fishing year and allocation of 675 mt of GB cod to the Sector.

DATES: Effective May 3, 2007.

ADDRESSES: Copies of the Sector Agreement and the environmental 
assessment (EA) are available from the NE Regional Office: Patricia A. 
Kurkul, Regional Administrator, NMFS, Northeast Regional Office, 1 
Blackburn Drive, Gloucester, MA 01930. The Final Regulatory Flexibility 
Analysis (FRFA) consists of the Initial Regulatory Flexibility Analysis 
(IRFA), public comments and responses, and the summary of impacts and 
alternatives contained in the Classification section of the preamble of 
this final rule. A copy of the Environmental Assessment (EA)/Regulatory 
Impact Review (RIR)/FRFA is accessible via the Internet at http://www.noaa.gov/nero/regs/com.html. Written comments regarding the burden-
hour estimates or other aspects of the collection-of-information 
requirements contained in this final rule may be submitted in writing 
to the address above or by e-mail to [email protected]">[email protected] or fax 
to (202) 395-7285.

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

SUPPLEMENTARY INFORMATION: A proposed rule that solicited public 
comment on the Sector Agreement was published in the Federal Register 
on April 16, 2007 (72 FR 18940), and public comments were accepted 
through May 1, 2007. The Regional Administrator approved the FY 2007 
Sector Operations Plan, based on public comment and input from the New 
England Fishery Management Council (Council), and based on a 
determination that the Operations Plan and Agreement are 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 Sec.  648.87. Details pertaining to the principal 
regulations applying to the Sector, the process of review and approval 
of sectors, and facts regarding the Sector's submission of the FY 2007 
Sector Agreement are contained in the proposed rule. A supplemental EA 
entitled ``Approval of the Georges Bank Cod Hook Sector Operations 
Plan,'' which analyzes the impacts of the proposed Sector Agreement, 
was also prepared.
    The 2007 Sector Agreement and Operations Plan contains the same 
elements as the FY 2006 Sector Agreement. The Sector Agreement will be 
overseen by a Board of Directors and a Sector Manager. The Sector's GB 
cod TAC is based upon the number of Sector members and their qualifying 
historic landings of GB cod. The GB cod TAC is a ``hard'' TAC, meaning 
that, once the TAC is reached, Sector vessels may 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). Should the hard TAC be exceeded, the Sector's allocation 
will be reduced by the overharvest in the following year.
    The 2007 Operations Plan includes exemptions from the following 
restrictions of the FMP: The Gulf of Maine (GOM) and GB cod trip limit; 
the GOM, GB, and Southern New England (SNE) limit on the number of 
hooks fished; the GB Seasonal Closure Area; the DAS Leasing Program 
vessel size restrictions; differential DAS in the GOM Differential DAS 
Area and in the SNE Differential DAS Area (in those portions of the 
differential areas that overlap the Sector Area); and the Western U.S./
Canada Area 72-hr observer program notification. In addition, the 
Operations Plan allows Sector members to fish in the ``common pool,'' 
subject to all of the restrictions of the FMP, prior to approval of the 
Operations Plan. If Sector members fish during FY 2007 under ``common 
pool'' rules, prior to fishing in the approved Sector, all cod caught 
will count toward the Sectors GB cod TAC. This flexibility was 
requested so that Sector members would be able to fish immediately at 
the beginning of the fishing year, and not be required to wait until 
approval of the Operations Plan. Justification for the other exemptions 
and analysis of the potential impacts of the Operations Plan are 
contained in the EA.
    A total of 25 Sector members signed the FY 2007 Sector Contract and 
will participate in the Sector. The proposed rule indicated that 35 
Sector members and a GB cod TAC of 798 mt were expected (9.48 percent 
of the TAC); however, after the Operations Plan was submitted to NMFS, 
10 individuals decided not to join the Sector. The GB cod TAC 
calculation is based upon the qualifying historic cod landings of the 
participating Sector vessels, regardless of gear used. The allocation 
percentage is calculated by dividing the sum of total landings of GB 
cod landed by Sector members in FY 1996 through 2001, by the sum of the 
total accumulated landings of GB cod landed by all NE multispecies 
vessels for the same time period (9,084,963 lb (4,121 mt)/113,278,842 
lb (51,382.42 mt)). Based upon the qualifying landings history of the 
25 Sector members, the Sector TAC of GB cod is 675 mt (8.02 percent 
times the fishery-wide GB cod target TAC of 8,416 mt). The fishery-wide 
GB cod target TAC of 8,416 mt is less than the total GB cod target TAC 
proposed for FY 2007 (9,822 mt) because the 9,822 mt includes Canadian 
catch.
    The Sector Agreement contains procedures for the enforcement of the 
Sector rules, a schedule of penalties, and provides the authority to 
the Sector Manager to issue stop fishing orders to members of the 
Sector. Participating vessels are required to land fish only in 
designated landing ports and are required to provide the Sector Manager 
with a copy of the Vessel Trip Report (VTR) within 48 hr of offloading.

[[Page 26326]]

Dealers purchasing fish from participating vessels are required to 
provide the Sector Manager with a copy of the dealer report on a weekly 
basis. On a monthly basis, the Sector Manager must transmit to NMFS a 
copy of the VTRs and the aggregate catch information from these 
reports. After 90 percent of the Sector's allocation has been 
harvested, the Sector Manager is required to provide NMFS with 
aggregate reports on a weekly basis. A total of 1/12 of the Sector's GB 
cod TAC, minus a reserve, will be allocated to each month of the 
fishing year. GB cod quota that is not landed during a given month will 
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 use gear capable of 
catching regulated NE multispecies. Once the annual TAC of GB cod is 
reached, Sector members may 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 do 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 are 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 are required to call the Sector 
Manager prior to leaving port. All legal-sized cod caught must be 
retained and landed and count against the Sector's aggregate 
allocation. Participating vessels are not allowed to fish with or have 
on board gear other than jigs, non-automated demersal longline, or 
handgear. NE multispecies DAS used by participating vessels while 
conducting fishery research under an Exempted Fishing Permit during FY 
2007 will be deducted from that Sector member's individual DAS 
allocation. Similarly, all GB cod landed by a participating vessel 
while conducting research will count toward the Sector's allocation of 
GB cod TAC. Participating vessels will be exempt from the GB Seasonal 
Closure Area during May.
    A Letter of Authorization will be issued to each member of the 
Sector exempting them, conditional upon their compliance with the 
Sector Agreement, from the GOM and GB cod possession restrictions; the 
GB Seasonal Closure Area; the Western U.S./Canada Area 72-hr observer 
notification requirement; the DAS Leasing Program vessel size 
restrictions; differential DAS; the limits on the number of hooks 
requirements; and the prohibition on fishing as a Sector vessel and 
``common-pool'' vessel during the same fishing year, as specified in 
Sec. Sec.  648.86(b)(2), 648.81(g), 648.85(a)(3)(ii)(C), 
648.82(k)(4)(ix), 648.82 (e)(2), 648.80(a)(4)(v), and 
648.87(b)(1)(xii), respectively.

Comments and Responses

    One comment on the Operations Plan was received.
    Comment: The commenter did not support the allowance of any 
exemptions in order to conserve the fish stocks.
    Response: The EA concludes that the approval of the Operations Plan 
would result in positive environmental impacts. The authorized 
exemptions are contingent upon compliance with the Operations Plan, 
including the GB cod hard TAC. NMFS's approval of the exemptions is 
consistent with the FMP and the Magnuson-Stevens Fishery Conservation 
and Management Act. This will not have a negative impact on fish 
stocks.

Classification

    NMFS has determined that this final rule is consistent with the 
FMP, the Magnuson-Stevens Act, and other applicable laws.
    This final rule has been determined to be not significant for the 
purposes of Executive Order (E.O.) 12866.
    Pursuant to 5 U.S.C. 553(d)(1), the Assistant Administrator for 
Fisheries, NOAA, (AA) finds justification to waive the delay in 
effectiveness of this action, because it provides the basis for NMFS to 
immediately grant the following exemptions from the regulations 
implementing the FMP for sector members, while the regulations shall 
remain applicable to non-members:
    1. GOM and GB cod trip limit;
    2. GB Seasonal Closure;
    3. GOM, GB, and SNE limit on number of hooks fished;
    4. DAS Leasing Program vessel size restriction;
    5. Differential DAS (in the GOM Differential DAS Area and the SNE 
Differential DAS Area); and
    6. The Western U.S./Canada Management Area 72-hr observer program 
notification.
    Because the Sector will be fishing under a hard TAC for GB cod, 
effort controls (i.e., exemptions 1-5 above) are not necessary to 
constrain the impact of the Sector on the GB cod stock. Should the 
Sector's allocated GB cod TAC be harvested, participating vessels would 
no longer be allowed to fish under a NE multispecies 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). Sector members will be required to fish 
under their current NE multispecies DAS allocation to account for any 
other regulated NE multispecies that they may catch while fishing for 
GB cod and are restricted to using hook gear only. Because hook gear 
has nearly zero interaction with GB yellowtail flounder, Sector vessels 
are exempt from the requirement to call the observer program 72 hours 
in advance of starting a NE multispecies DAS when fishing in the 
Western U.S./Canada Area (number 6 above), since this requirement is 
primarily concerned with monitoring catch of GB yellowtail flounder.
    This final rule does not contain policies with federalism or 
``takings'' implications as those terms are defined in Executive Order 
(E.O.) 13132 and E.O. 12630, respectively.
    A FRFA was prepared as required by section 603 of the Regulatory 
Flexibility Act (RFA). A summary of the IRFA was published in the 
proposed rule for this action and is not repeated here. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained in the preamble to the proposed rule and in the EA 
prepared for this action, and is 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 public comments pertaining to the IRFA or the economic effects 
of this action were received, nor any changes made to the action as 
described by the proposed rule.

Description of and Estimate of the Number of Small Entities To Which 
the Proposed Rule Would Apply

    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

[[Page 26327]]

and participating vessels in the groundfish fishery, including 
prospective Hook Gear Sector members, are considered to be small 
entities according to this standard and, therefore, there is no 
differential impact between large and small entities. The number of 
participants in the Sector is 25, substantially less than the total 
number of active vessels in the groundfish fishery. Only these 25 
vessels would be subject to the regulatory exemptions and operational 
restrictions proposed for the Sector for FY 2007.

Description of Steps the Agency Has Taken To Minimize the Economic 
Impact on Small Entities Consistent With the Stated Objectives of 
Applicable Statutes

    Approval of the FY 2007 Sector Operations Plan results in an 
allocation of 675 mt of GB cod to the GB Cod Hook Sector, and the 
minimization of economic impacts on the Sector. Once the GB cod TAC is 
harvested, participating vessels are not be allowed to fish under a NE 
Multispecies 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 party/charter regulations). 
Vessels intending to fish in the Sector during FY 2007 may fish prior 
to approval of the Sector Operations Plan, provided they comply with 
all requirements of the FMP, and report any cod caught to the Sector 
Manager. Sector vessels may only fish with jigs, non-automated demersel 
longline, or handgear. Under the Operations Plan, members are exempt 
from several restrictions of the FMP described in the preamble of the 
proposed rule, this final rule, and in the EA.
    The reasons for approving the 2007 Sector Operations as proposed 
are as follows: Operation of the Sector would positively impact the 
members of the Sector (25 vessels or less) that have voluntarily joined 
the Sector, who are relatively dependent upon groundfish revenue 
compared to other participants in the groundfish fishery. Sector 
operations will indirectly benefit the communities of Chatham and 
Harwichport, MA, and to a lesser extent, other Cape Cod communities 
involved in the groundfish fishery. During FY 2005, members of the 
Sector landed 275,743 lb (125,054 kg) of cod and 1,114,401 lb (505,397 
kg) of haddock, generating approximately $402,000, and $1,314,000 in 
revenue, respectively (assuming a dock-side price of $1.46 and $1.18 
per lb, respectively). Sector members also landed various other 
species, which contributed slightly more to their revenue. In general, 
the operation of the Sector will continue to mitigate the negative 
economic impacts that result from the current suite of regulations that 
apply to the groundfish fishery (most recently, Framework Adjustment 
42; 71 FR 62156; October 23, 2006). The 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 is expected to result in economic gains. For 
example, 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 also 
able to maximize their efficiency (revenue per trip) due to the 
Sector's exemption from trip limits and hook numbers. For some vessel 
owners in the Sector, participation in the Sector enables their 
businesses to remain economically viable. For the above reasons, 
approval of the 2007 Sector Operations minimizes the impact on small 
entities.
    In contrast, under the No Action alternative, all Sector members 
would have remained in the common pool of vessels and fished under all 
the rules implemented by Amendment 13 and subsequent Framework 
Adjustments. Under the regulatory scenario of the No Action 
alternative, relative to the preferred alternative, Sector members 
would likely have faced increased economic uncertainty, loss of 
efficiency, and loss of revenue. Because cod usually represents a high 
proportion of total fishing income for hook gear vessels, revenues for 
Sector members are sensitive to regulations that impact how and when 
they can fish for cod, such as trip limits and hook gear restrictions. 
Sector members would have beeen unnecessarily impacted by regulations 
designed to affect the catch of species of which hook gear catches very 
little (e.g., yellowtail flounder, because hook gear is more selective 
than other gear types). For example, under the No Action alternative, 
Sector members would have been affected by the differential DAS 
counting requirement, one of the objectives of which is to protect 
yellowtail flounder.

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

    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by the Office of Management and Budget (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.

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

    Dated: May 3, 2007.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 07-2281 Filed 5-3-07; 5:04 pm]
BILLING CODE 3510-22-P