[Federal Register Volume 73, Number 48 (Tuesday, March 11, 2008)]
[Proposed Rules]
[Pages 12941-12945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4803]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 071017601-7812-02]
RIN 0648-AW17


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; 2008 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.

[[Page 12942]]


ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule provides interested parties an opportunity 
to comment on the proposed Sector Operations Plan and Supplemental 
Environmental Assessment (EA) prior to final approval or disapproval of 
the Sector Operations Plan and allocation of Georges Bank (GB) cod 
total allowable catch (TAC) to the Fixed Gear Sector for fishing year 
(FY) 2008.
    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 TAC to the Fixed Gear Sector. Pursuant to 
that authorization, a representative of the Fixed Gear Sector has 
submitted an Operations Plan and Sector Agreement (Contract), and 
requested an allocation of GB cod to the Fixed Gear Sector for FY 2008.

DATES: Written comments must be received on or before March 26, 2008.

ADDRESSES: You may submit comments, identified by 0648-AW17, by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov,
     Fax: (978) 281-9135, Attn: Mark Grant,
     Mail: One Blackburn Drive, Gloucester, MA 01930.
    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 file 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: Mark Grant, Fishery Policy Analyst, 
phone (978) 281-9145, fax (978) 281-9135, e-mail [email protected].

SUPPLEMENTARY INFORMATION: NMFS announces that the Administrator, NE 
Region, NMFS (Regional Administrator), has made a preliminary 
determination that the Fixed Gear 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 
for specific groundfish species (or days-at-sea (DAS)), implemented 
restrictions that apply to all sectors, and authorized the first sector 
of the FMP (the GB Cod Hook Sector).
    The Fixed Gear Sector was established by FW 42 (71 FR 62156, 
October 23, 2006). 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 was authorized to fish in FY 2006 and FY 
2007, and, based upon the GB cod landings history of its members, was 
allocated <1.0 and 10.7 percent, respectively, of the annual GB cod 
TAC.
    On September 28, 2007, the Fixed Gear Sector submitted a draft FY 
2008 Operations Plan and Sector Agreement and a Supplemental EA to 
NMFS. The proposed 2008 Fixed Gear Sector Agreement and Operations Plan 
contains the same elements and proposed exemptions as the 2007 Fixed 
Gear Sector Agreement and Operations Plan. The Fixed Gear Sector 
Agreement would be overseen by a Board of Directors and a Sector 
Manager. The Fixed Gear Sector Agreement specifies, in accordance with 
Amendment 13, that the Fixed Gear 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 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 Fixed Gear Sector's allocation 
would be reduced by the overharvest in the following year.
    The 2008 Operations Plan proposes exemptions from the following 
restrictions of the FMP: The 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 for 
longline gear 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.
    In a concurrent proposed rule NMFS proposed to modify the 
regulations that define eligibility criteria for membership in the GB 
Cod Hook Sector and the Fixed Gear Sector, in order to

[[Page 12943]]

be consistent with the New England Fishery Management Council's 
(Council's) intent. The criterion requiring documented landings of GB 
cod to be eligible to join the GB cod Hook and Fixed Gear Sectors was 
not explicitly included in the Council documents that proposed 
formation of the two sectors, Amendment 13 and FW 42, respectively. 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. 
The proposed roster for the Fixed Gear Sector for FY 2008 contains 
vessels that did not land GB cod during the period 1996 to 2001. The 
current regulations would prevent such vessels without GB cod landings 
from joining a sector. In anticipation of the approval of the proposed 
change to sector eligibility requirements, the Fixed Gear Sector has 
included vessels without a history of landing GB cod in its proposed 
roster for FY 2008.
    Twenty-nine prospective Fixed Gear Sector members signed the 2008 
Fixed Gear 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. Based upon the 29 
prospective members (and their associated GB cod landings history), the 
Fixed Gear Sector's share of the overall U.S. portion of the GB cod TAC 
would be 13.99 percent, or 3,152,802 lb (1,430 mt) (13.99 percent times 
the fishery-wide GB cod target TAC of 22,535,656 lb (10,222 mt)). If 
prospective members of the Fixed Gear Sector are deemed ineligible to, 
or decide not to, participate 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 2008. Also, the TAC for the Fixed Gear Sector could 
be further reduced, should the provision in the GB Cod Hook Sector 
proposed rule that revises the eligibility criterion for both sectors 
not be approved.
    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 hr 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 
use gear capable of catching regulated NE multispecies. The harvest 
rules would not preclude a vessel 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 would provide two means of 
restricting both the landings and effort of the Fixed Gear Sector. 
Implementation may have a positive impact on essential fish habitat 
(EFH) and bycatch, if the Fixed Gear Sector's quota is caught prior to 
the end of the fishing year, by reducing the amount of time that gear 
would be in the water. 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 sector members, as well as the Chatham, MA, and Harwichport, 
MA, communities, which are more dependent upon groundfish revenues as a 
percentage of fishery-derived landings than many other communities. The 
EA concludes that the self-governing nature of the Fixed Gear Sector 
and the member's opportunity to develop rules governing the way in 
which they harvest their GB cod TAC 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, potential 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

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the Northeast Multispecies FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.

[[Page 12944]]

    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). The IRFA consists of this section, the preamble 
and the EA prepared for this action. 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, 2.0, and 3.0 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. 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, 
and, therefore there is no disproportionate impact between large and 
small entities. 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 29, substantially less than the total number of 
active vessels in the groundfish fishery. Only these 29 vessels would 
be subject to the regulatory exemptions and operational restrictions 
proposed for the Fixed Gear Sector for FY 2008.

Economic Impacts of the Proposed Action

    The proposed alternative would allocate a GB cod TAC of 1,430 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 FY 2008 may only fish 
with hook gear or gillnet gear and may not fish for NE multispecies 
under a NE multispecies DAS during FY 2008 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, MA, 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 percent dependent on the NE multispecies fishery. Because the Fixed 
Gear Sector was implemented late in FY 2006, and data from FY 2007 are 
not yet complete, only limited quantitative data on the precise 
economic impact of the Fixed Gear Sector are available. In FY 2006, the 
Fixed Gear Sector made one trip and landed 5 lb (2.3 kg) of GB cod; 
preliminary FY 2007 data show that the Sector has made 564 trips and 
landed 735,355 lb (333,551 kg) of GB cod. However, a qualitative 
assessment of the Fixed Gear Sector is possible.
    The proposed alternative would positively impact the 29 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, MA, 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 and subsequent framework adjustments. Specifically, the 
proposed Operations 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. 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. For example, preliminary data from FY 2007 
indicate that Fixed Gear Sector members landed 735,355 lb (333,551 kg) 
of GB cod in 564 trips; however, had the Fixed Gear Sector members been 
subject to the daily trip limit (1,000 lb/day; 454 kg/day) in place for 
the common pool vessels (non-sector vessels), they would have been 
prevented from landing 171,355 lb (77,725 kg) of that total.
    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.
    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 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 Fixed Gear 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 Fixed 
Gear Sector during FY 2008 and represents all of the significant 
alternatives that accomplish the objectives of sector provisions and 
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

[[Page 12945]]

other alternatives were considered as part of this proposed action.

Economic Impacts of Alternative 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. Based on the limited FY 2007 data, 
assuming a dock-side price of $1.50 per lb ($3.30 per kg) for cod, 
members of the Fixed Gear Sector would already have lost $257,032.50 
(171,355 lb (77,725 kg) X $1.50 per lb ($3.30 per kg)) in revenue if 
they were not exempt from the cod possession limit. 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 proposed rule contains no collection-of-information 
requirement subject to the Paperwork Reduction Act.
    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: March 6, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service
[FR Doc. E8-4803 Filed 3-10-08; 8:45 am]
BILLING CODE 3510-22-S