[Federal Register Volume 73, Number 42 (Monday, March 3, 2008)]
[Proposed Rules]
[Pages 11376-11380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4039]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 071017599-7600-01]
RIN 0648-AW16


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; 2008 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:  Proposed rule; request for comments.

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SUMMARY:  The Georges Bank (GB) Cod Hook Sector (Hook Sector) has 
submitted an Operations Plan and Sector Contract entitled, ``Georges 
Bank Cod Hook Sector Fishing Year 2008-2009 Operations Plan and 
Agreement'' (together referred to as the Sector Agreement), and an 
Environmental Assessment (EA), and has requested an allocation of GB 
cod, consistent with the Northeast (NE) Multispecies Fishery

[[Page 11377]]

Management Plan (FMP). This rule proposes to modify the eligibility 
criteria for membership in both the Hook Sector and the GB Cod Fixed 
Gear Sector (Fixed Gear Sector). This proposed rule provides interested 
parties an opportunity to comment on the proposed Hook Gear Sector 
Agreement prior to final approval or disapproval of the Hook Sector 
Operations Plan and allocation of GB cod Total Allowable Catch (TAC) to 
the Hook Sector for the 2008 fishing year (FY).

DATES:  Written comments must be received on or before March 18, 2008.

ADDRESSES: You may submit comments, identified by 0648-AW16, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-rulemaking portal: http://www.regulations.gov.
     Mail: Paper, disk, or CD-ROM comments should be sent to 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of 
the envelope, ``Comments on the U.S./Canada TACs.''
     Fax: (978) 281-9135.
    Instructions: All comments received are part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publically 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF formats only.
    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: NMFS announces that the Administrator, 
Northeast Region, NMFS (Regional Administrator), has made a preliminary 
determination that the Hook Sector Agreement, which contains the 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 
Sec.  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 (or days-at-sea 
(DAS)) for a specific groundfish species, implemented restrictions that 
apply to all sectors, authorized the Hook Sector, established the GB 
Cod Hook Sector Area (Sector Area), and specified a formula for the 
allocation of GB cod TAC to the Hook Sector.
    The principal Amendment 13 regulations applying to the Hook Sector 
specify that: (1) All vessels with a valid limited access NE 
multispecies DAS permit are eligible to participate in the Hook Sector, 
provided they have documented landings, through valid dealer reports 
submitted to NMFS, of GB cod during FY 1996 through 2001 when fishing 
with hook gear (i.e., jigs, demersel longline, or handgear); (2) 
membership in the Hook Sector is voluntary, and each member is required 
to remain in the Hook Sector for the entire fishing year and cannot 
fish outside the NE multispecies DAS program during the fishing year, 
unless certain conditions are met; (3) vessels fishing in the Hook 
Sector (participating vessels) are confined to fishing in the Hook 
Sector Area, which is that portion of the GB cod stock area north of 
39[deg] 00' N. lat. and east of 79[deg] 40' W. long; and (4) 
participating vessels are required to comply with all pertinent Federal 
fishing regulations, unless specifically exempted by a Letter of 
Authorization issued by the Regional Administrator, and the provisions 
of an approved Operations Plan.
    While Amendment 13 authorized the Hook Sector, in order for GB cod 
to be allocated to the Hook Sector and the Hook Sector authorized to 
fish, the Hook 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 Hook Sector participants and a plan 
containing the management rules that the Hook Sector participants agree 
to abide by in order to avoid exceeding the allocated TAC. An 
additional analysis of the impacts of the Hook Sector's proposed 
operations may also 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 Hook Sector was authorized to fish in FYs 2004, 2005, 2006, and 
2007, and, based upon the GB cod landings history of its members, was 
allocated 12.60, 11.70, 10.03, and 8.02 percent, respectively, of the 
annual GB cod TAC.
    On September 28, 2007, the Hook Sector submitted a FY 2008 
Operations Plan and Sector Agreement and an Environmental Assessment 
(EA) to NMFS. The proposed 2008 Hook Sector Agreement and Operations 
Plan contains the same elements and proposed exemptions as the 2007 
Hook Sector Agreement. The Hook Sector Agreement would be overseen by a 
Board of Directors and a Hook Sector Manager. The Hook Sector Agreement 
specifies, in accordance with Amendment 13, that the Hook Sector's GB 
cod TAC would be based upon the number of Hook Sector members and their 
historic landings of GB cod. The GB cod TAC is a ``hard'' TAC, meaning 
that, once the TAC is reached, Hook 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). 
Should the hard TAC be exceeded, the Hook Sector's allocation would be 
reduced by the overharvest in the following year.
    The proposed 2008 Operations Plan proposes the same exemptions, as 
in 2007, from the following restrictions of the FMP: The GB cod trip 
limit; the 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 Gulf of Maine 
Differential DAS Area and in the SNE Differential DAS Area (those 
portions of the differential areas which overlap the Hook Sector Area); 
and the Western U.S./Canada Area 72-hr observer program notification. 
Justification for the proposed exemptions and analysis of the potential 
impacts of the Operations Plan are contained in the EA. A summary of 
the Initial Regulatory Flexibility Analysis (IRFA) is in the 
Classification section of this proposed rule.
    Nineteen prospective Hook Sector members signed the 2008 Hook 
Sector Contract. The GB cod TAC calculation is based upon the historic 
cod landings of the participating Hook Sector vessels,

[[Page 11378]]

regardless of gear used. The allocation percentage is calculated by 
dividing the sum of total landings of GB cod landed by prospective Hook 
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. Based upon the 19 prospective Hook Sector 
members (and their associated GB cod history), the Hook Sector's share 
of the overall U.S. portion of the GB cod TAC would be 6.01 percent, or 
1,354,393 lb (614 mt) (6.01 percent times the fishery-wide GB cod 
target TAC of 22,535,656 lb (10,222 mt)). If prospective members of the 
Hook Sector decide to not participate in the Hook Sector after the 
publication of this document and prior to a final decision by the 
Regional Administrator, the total number of participants in the Hook 
Sector and the Hook Sector TAC would be reduced from the numbers stated 
above.
    The Hook Sector Agreement contains procedures for the enforcement 
of the Hook Sector rules and a schedule of penalties, and provides the 
authority to the Hook Sector Manager to issue stop fishing orders to 
members of the Hook 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 hr of offloading. Dealers purchasing fish from participating 
vessels would be required to provide the Hook Sector Manager with a 
copy of the dealer report on a weekly basis. On a monthly basis, the 
Hook Sector Manager would transmit to NMFS a copy of the VTRs and the 
aggregate catch information from these reports. After 90 percent of the 
Hook Sector's allocation has been harvested, the Hook Sector Manager 
would be required to provide NMFS with aggregate reports on a weekly 
basis. A total of 1/12 of the Hook 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, Hook 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 Hook 
Sector Manager prior to leaving port. All legal-sized cod caught would 
be retained and landed and counted against the Hook 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, or 
handgear. NE multispecies DAS used by participating vessels while 
conducting fishery research under an Exempted Fishing Permit during the 
FY 2008 would be deducted from that Hook Sector member's individual DAS 
allocation. Similarly, all GB cod landed by a participating vessel 
while conducting research would count toward the Hook Sector's 
allocation of GB cod TAC. Participating vessels would be exempt from 
the GB Seasonal Closure Area during May.
    The EA prepared for the Hook Sector operations concludes that the 
biological impacts of the Hook 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 Hook Sector. Implementation of the Hook 
Sector would have a positive impact on essential fish habitat (EFH) and 
bycatch by allowing a maximum number of hook vessels to remain active 
in the hook fishery, rather than converting to (or leasing DAS to) 
other gear types that have greater impacts on EFH. The analysis of 
economic impacts of the Hook Sector concludes that Hook Sector members 
would realize higher economic returns if the Hook Sector were 
implemented. The EA asserts that fishing in accordance with the Hook 
Sector Agreement rules enables more efficient harvesting of GB cod with 
hook gear than would be possible if the vessels were fishing in 
accordance with the common pool (non-Sector) rules. The social benefits 
of the Hook Sector would accrue to Hook 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 Hook Sector and the development of rules by the Hook Sector enables 
stewardship of the cod resource by Hook Sector members. The cumulative 
impacts of the Hook 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.
    Should the Regional Administrator approve the Hook Sector Agreement 
as proposed, a Letter of Authorization would be issued to each member 
of the Hook Sector exempting them, conditional upon their compliance 
with the Hook Sector Agreement, from the 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, and the limits on the 
number of hooks requirements 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 648.80(b)(2)(v), respectively.
    NMFS also proposes to modify the regulations that define 
eligibility criteria for membership in the Hook Sector and the Fixed 
Gear Sector, in order to be consistent with the Council intent. The 
eligibility criteria for membership in the Hook Sector and Fixed Gear 
Sector were implemented by Amendment 13 and Framework Adjustment 42 (69 
FR 22906, April 27, 2004; and 71 FR 62156, October 23, 2006, 
respectively). Of the several eligibility criteria for both these 
sectors in the implementing regulations, a criterion requiring 
documented landings of GB cod was not explicitly included as a 
criterion in the Council documents that proposed formation of the 
sectors. The implications of this eligibility criterion (requiring 
landings history of GB cod) were not apparent at the time of 
implementation, but became apparent during the evaluation of sector 
Operations Plans for FY 2008. Because the proposed roster for the Fixed 
Gear Sector for 2008 contains vessels that did not land GB cod during 
the period 1996 to 2001, the current regulations would prevent such 
vessels without landings from joining a sector.
    During the formation of the Hook Sector and Fixed Gear Sector, it 
was assumed that only vessels with GB cod landings would be interested 
in joining the sector, and therefore the landings criterion was not 
perceived as exclusionary. However, NMFS evaluated the pertinent 
information regarding the development of this regulation and concluded 
that this eligibility criterion does not reflect Council intent. Based 
on this evaluation, NMFS is proposing a

[[Page 11379]]

correction to the current regulations by eliminating the eligibility 
requirement (for landings) because it precludes vessels without GB cod 
landings history from joining either sector, and is more restrictive 
than the Council intent.

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 (RFA). Below is a summary of the IRFA, which describes 
the economic impacts 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 EA prepared for this action. 
The Small Business Administration (SBA) size standard for small 
commercial fishing entities is $ 4 million in gross sales. All 
permitted and participating vessels in the groundfish fishery, 
including prospective Hook Sector members, are considered to be small 
entities because gross sales by any one entity (vessel) do not exceed 
this threshold, and, therefore there is no disproportionate impact 
between large and small entities. The number of prospective 
participants in the Hook Sector is 19 (or less), substantially less 
than the total number of active vessels in the groundfish fishery. 
These 19 vessels would be subject to the regulatory exemptions and 
operational restrictions proposed for the Hook Sector for FY 2008.

Economic Impacts of the Proposed Action

    The proposed alternative would allocate a GB cod TAC of 614 mt to 
the Hook Sector. Once the GB cod TAC is harvested, participating 
vessels 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 
party/charter regulations). Vessels intending to fish in the Hook 
Sector during FY 2008 may not fish for NE multispecies under a NE 
multispecies DAS during FY 2008 until the Hook Sector Operations Plan 
is approved. Hook Sector vessels may only fish with jigs, non-automated 
demersel longline, or handgear. 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 proposed alternative would positively impact the members of the 
Hook Sector 19 (or fewer) vessels that have voluntarily joined the Hook 
Sector, who are relatively dependant upon groundfish 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 communities 
involved in the groundfish fishery. During FY 2006, members of the Hook 
Sector made 359 fishing trips, landed 179,616 lb (81,472 kg) of cod and 
258,544 lb (117,274 kg) of haddock, and generated approximately $ 
269,424, and $ 310,253 in revenue from those species, respectively 
(assuming a dock-side price of $ 1.50 and $1.20 per lb, respectively). 
Hook Sector members also landed various other species, which 
contributed additionally to their revenue. In general, the operation of 
the Hook Sector would 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; October 
23, 2006; 71 FR 62156). The Hook 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, Hook 
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) due to the exemption from 
trip limits and hook numbers. For some vessel owners in the Hook 
Sector, participation in the Hook Sector enables their businesses to 
remain economically viable.
    Modification of the eligibility criteria for the Hook Sector and 
the Fixed Gear Sector would allow vessels without a history of landing 
GB cod the opportunity to participate in a sector and to therefore take 
advantage of the associated sector efficiencies and financial benefits. 
The number of vessels that this modification would impact is likely 
very small.

Economic Impacts of Alternatives to the Proposed Action

    Under the No Action alternative, all Hook Sector members would 
remain in the common pool of vessels and fish under all the rules 
implemented by Amendment 13 and subsequent framework adjustments. Under 
the regulatory scenario of the No Action alternative, Hook Sector 
members would likely face increased economic uncertainty, a loss of 
efficiency, and revenue loss. Because cod usually represents a high 
proportion of total fishing income for hookgear vessels, revenues for 
Hook Sector members are sensitive to regulations that impact how and 
when they can fish for cod, such as trip limits and hook gear 
restrictions. Hook Sector members would be unnecessarily impacted by 
regulations designed to affect the catch of species that hook gear 
catches very little of (e.g., yellowtail flounder, because hook gear is 
more selective than other gear types). For example, under the No Action 
alternative, Hook Sector members would be affected by the differential 
DAS counting requirement, one of the objectives of which is to protect 
yellowtail flounder.
    If no action is taken to modify the sector eligibility criteria, 
vessels without a history of landing GB cod would not have an 
opportunity to participate in a sector and take advantage of the 
associated sector efficiencies and financial benefits. The number of 
vessels affected however, is likely very small.
    No other alternatives beyond the No Action were considered as part 
of this proposed action. The RFA requires each IRFA to include a 
description of significant alternatives that accomplish the objectives 
of applicable statues (in this case, sector provisions) and minimize 
any significant economic impact to small entities. The objectives of 
sector management, as originally developed and implemented under 
Amendment 13 to the NE Multispecies FMP, are to provide opportunities 
for like-minded vessel operators to govern themselves so that they can 
operate in a more effective and efficient manner. The GB Cod Hook 
Sector developed the proposed operations plan after consultation with 
prospective members. Prospective members then signed a binding sector 
contract to abide by the measures specified in the proposed operations 
plan. As described above, the proposed operations plan minimizes 
economic impacts to participating vessels by allowing them to operate 
more efficiently. Accordingly, the proposed operations plan reflects 
the management measures preferred by vessels participating in the GB 
Cod Hook Sector during FY 2008 and represents all of the significant 
alternatives that accomplish the objectives of sector provisions and

[[Page 11380]]

minimize economic impacts to small entities, as required by the RFA. 
Therefore, in conjunction with the NEPA requirement to consider a 
reasonable range of alternatives, no other alternatives were considered 
as part of this proposed action.

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

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

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and record keeping requirements.

    Dated: February 26, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons stated in the preamble, 50 CFR part 648 is proposed 
to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  648.87, paragraphs (d)(1)(ii) and (d)(2)(i) are revised 
to read as follows:


Sec.  648.87  Sector allocation.

* * * * *
    (d) * * *
    (1) * * *
    (ii) Eligibility. All vessels issued a valid limited access NE 
multispecies DAS permit are eligible to participate in the GB Cod Hook 
Sector.
* * * * *
    (2) * * *
    (i) Eligibility. All vessels issued a valid limited access NE 
multispecies DAS permit are eligible to participate in the GB Cod Fixed 
Gear Sector.
* * * * *
[FR Doc. E8-4039 Filed 2-29-08; 8:45 am]
BILLING CODE 3510-22-S