[Federal Register Volume 72, Number 90 (Thursday, May 10, 2007)]
[Rules and Regulations]
[Pages 26563-26566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2302]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070321063-7098-02; I.D. 031607E]
RIN 0648-AV22


Magnuson-Stevens Fishery Conservation and Management 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: Final rule.

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SUMMARY: NMFS announces approval of an Operations Plan and Sector 
Contract for the Georges Bank (GB) Cod Fixed Gear Sector (Fixed Gear 
Sector) entitled: ``GB Cod Fixed Gear Sector Operations Plan and 
Agreement'' (together referred to as the Sector Operations Plan), and 
the associated allocation of GB cod for fishing year (FY) 2007. The 
intent of this action is to allow regulated harvest of Northeast (NE) 
multispecies by the Fixed Gear Sector, consistent with the Operations 
Plan and objectives of the NE Multispecies Fishery Management Plan 
(FMP).

DATES: Effective May 4, 2007, through April 30, 2008.

ADDRESSES: Copies of the Fixed Gear 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: Framework Adjustment (FW) 42 (71 FR 62156, 
October 23, 2006) authorized the Fixed Gear Sector and authorized the 
Regional Administrator to allocate a GB cod total allowable catch (TAC) 
to the Fixed Gear Sector and exempt members from FMP restrictions on an 
annual

[[Page 26564]]

basis. In order for GB cod to be allocated to the Fixed Gear Sector, 
and for the Fixed Gear Sector to be authorized to fish for each fishing 
year, the Fixed Gear Sector must submit an Operations Plan and Sector 
Contract to the Regional Administrator annually for approval.
    In accordance with the regulations, the Fixed Gear Sector submitted 
an initial version of the Operations Plan and Sector Contract, 
including a supplemental environmental assessment (EA) to NMFS on 
January 22, 2007. The Fixed Gear Sector subsequently submitted 
additional iterations of the Operations Plan and EA to clarify the 
Operations Plan and refine the analyses, with a final submission date 
of March 7, 2007. The Fixed Gear Sector will be overseen by a Board of 
Directors and a Sector Manager. The Sector Contract specifies, in 
accordance with Amendment 13 to the FMP, that the Sector's GB cod TAC 
will be based upon the number of Fixed Gear Sector members and their 
qualifying historic landings of GB cod. The GB cod TAC is a ``hard'' 
quota, meaning that, once the TAC is reached, Fixed Gear Sector vessels 
will be prohibited from fishing under a NE multispecies day-at-sea 
(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 FY 2007.
    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 
39[deg]00' N. lat. and east of 71[deg]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. Based 
on approval of the Operations Plan, Fixed Gear Sector members will be 
exempted from the following restrictions of the FMP: GB cod trip limit; 
the GB Seasonal Closure Area (when fishing with hook gear); and the 
3,600-hook limit and 2,000-hook limit for vessels fishing with longline 
gear in the GB), Gulf of Maine (GOM) and Southern New England (SNE) 
Regulated Mesh Areas (RMAs), respectively. In addition, the Operations 
Plan allows Fixed Gear 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 Fixed Gear Sector members fish during FY 2007 under 
``common pool'' rules, prior to fishing in the approved Sector, all cod 
caught will count towards the Fixed Gear Sector's GB cod TAC. This 
flexibility was requested so that Fixed Gear Sector members will 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 proposed exemptions and analysis of the potential 
impacts of the Operations Plan are contained in the EA. A Final 
Regulatory Flexibility Analysis (FRFA) is contained in the 
Classification section of this final rule. On April 16, 2007, a 
proposed rule was published in the Federal Register (72 FR 18937) that 
requested comments on the Operations Plan and EA. The comment period 
closed on May 1, 2007.
    Sixteen Fixed Gear Sector members have signed the 2007 Sector 
Contract. The GB cod TAC calculation is based upon the qualifying 
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 
(10,379,065 lb (4,708 mt)/ 113,278,842 lb (51,382.4 mt)). The resulting 
number is 9.16 percent. Based upon the 16 Fixed Gear Sector members, 
the Fixed Gear Sector TAC of GB cod is 771.1 mt (9.16 percent of the 
U.S. portion of the fishery-wide GB cod target TAC of 8,416 mt) for FY 
2007.

Comments and Responses

    One comment was received on this action from a member of the 
general public during the public comment period.
    Comment 1: The commenter did not specifically address either the 
Operations Plan or EA, but suggested that the Sector Area should be 
closed to all fishing, asserting that the Sector Area is overfished.
    Response: Amendment 13 to the FMP implemented a rebuilding plan for 
all overfished stocks managed under the FMP. As part of this rebuilding 
plan, Amendment 13 established the process by which a group of 
individuals may form a sector. The Fixed Gear Sector is a group of 
self-selecting fishermen that have come together voluntarily and 
cooperatively for the purposes of efficiently harvesting GB cod under a 
hard TAC to meet the overfishing mandates of the Sustainable Fisheries 
Act amendments to the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). The EA prepared for the Fixed 
Gear Sector operations concludes that the biological impacts will be 
positive because the hard TAC for GB cod will ensure that the Fixed 
Gear Sector members will not contribute to the overfishing of GB cod, 
and because the elimination of the possession limit for GB cod will 
result in more efficient harvest of the cod TAC and, therefore, a 
reduction in the amount of time gear is in the water and available to 
interact with protected resources. In addition, the EA concludes that 
this action will have a positive impact on Essential Fish Habitat 
(EFH), given that vessels fishing in this sector will be confined to 
gear types that have less impact on EFH than most other groundfish 
gears. Further, by continuing to fish under their allocated NE 
multispecies DAS as a method to account for other regulated species 
caught, the Fixed Gear Sector complies with the rebuilding plan for all 
NE multispecies stocks. The Sector Area does not need to be closed to 
all fishing because there are regulatory restrictions in place design 
to protect and rebuild fish stocks in accordance with applicable laws.
    LOAs will be issued to members of the Fixed Gear Sector exempting 
them, conditional upon their compliance with the Sector Operations 
Plan, 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

    NMFS has determined that this final rule is consistent with the 
FMP, the Magnuson-Stevens Act, and other applicable laws.
    Pursuant to 5 U.S.C. 553(d)(1), the Assistant Administrator for 
Fisheries, NOAA, (Assistant Administrator) finds justification to waive 
the delay in effectiveness of this action, because it provides the 
basis for NMFS to immediately grant sector members the following 
exemptions from the regulations implementing the FMP:
    1. GB cod trip limit;
    2. GB Seasonal Closure; and
    3. GOM, GB and SNE limit on number of hooks fished.
    These regulations will remain applicable to ``common pool'' 
vessels. Because the Fixed Gear Sector will be fishing under a hard TAC 
for GB cod, effort controls (i.e., exemptions 1-3 above) are not 
necessary to constrain the impact of the Fixed Gear Sector on the GB 
cod stock. Should the Fixed Gear

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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). Fixed Gear 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.
    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. A copy of this EA may be obtained 
(see ADDRESSES).
    NMFS, pursuant to section 604 of the RFA, prepared this FRFA in 
support of the 2007 GB Cod Fixed Gear Sector Operations Plan and 
allocation of GB cod TAC. The FRFA incorporates the economic impacts 
identified in the Initial Regulatory Flexibility Analysis, which was 
summarized in the preamble of the proposed rule and the corresponding 
analysis in the EA prepared for this action. 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

    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 according to this standard and, 
therefore, there is no differential impact between large and small 
entities. The number of participants in the Fixed Gear Sector is 16, 
substantially less than the total number of active vessels in the 
groundfish fishery (nearly 1,000). Only these 16 vessels would be 
subject to the regulatory exemptions and operational restrictions 
proposed for the Fixed Gear Sector for FY 2007.

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

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

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

    Because this action is limited to reviewing and approving or 
disapproving the 2007 Fixed Gear Sector Operations Plan submitted by 
the Fixed Gear Sector, only two alternatives were considered regarding 
the 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.
    The fixed gear fishermen and the Chatham and Harwichport, MA, 
communities (homeports for all Fixed Gear Sector vessels) 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. 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 that disruption to the 
Chatham/Harwichport communities would occur under the no-action 
alternative. In contrast, the proposed alternative would positively 
impact the 16 vessels that have voluntarily joined the Fixed Gear 
Sector, who are relatively dependent upon cod revenue compared to other 
participants in the groundfish fishery.
    Approval of the Operations Plan enables Fixed Gear Sector members 
to fish under a set of rules crafted by members in order to adapt to 
current economic and fishing conditions. The 2007 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, an exemption from cod possession limits, an exemption 
from the GB Seasonal Closure Area for hook gear vessels, and exemptions 
from the maximum number of hooks that may be fished. 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.


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    Dated: May 4, 2007.
William T. Hogarth
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 07-2302 Filed 5-4-07; 2:47 pm]
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