[Federal Register Volume 73, Number 65 (Thursday, April 3, 2008)]
[Rules and Regulations]
[Pages 18215-18219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6953]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 071017599-8435-02]
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: Final rule.

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SUMMARY: This final rule implements the Georges Bank (GB) Cod Hook 
Sector (Hook Sector) Fishing Year (FY) 2008 Operations Plan and 
Agreement, approved by the Administrator, Northeast Region, NMFS 
(Regional Administrator), and modifies the eligibility criteria for 
membership for the Hook Sector and the GB Cod Fixed Gear Sector (Fixed 
Gear Sector). 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 Hook 
Sector. Pursuant to that authorization, the Sector 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 requested an allocation of GB cod, consistent with the FMP. 
This action results in authorization of the Sector Operations Plan 
during the 2008 fishing year and allocation of 658 mt of GB cod to the 
Sector. This rule also modifies the eligibility criteria for membership 
in both the Hook Sector and the Fixed Gear Sector by allowing vessels 
without GB cod landings history to join a sector.

DATES: Effective May 1, 2008.

ADDRESSES: Copies of the Sector Agreement, EA and the Final Regulatory 
Flexibility Analysis (FRFA) are available from the Northeast Regional 
Office: Patricia A. Kurkul, Regional Administrator, National Marine 
Fisheries Service, One Blackburn Drive, Gloucester, MA 01930. The EA 
and FRFA are also accessible via the Internet at http://www.noaa.gov/nero/regs/com.html.

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 soliciting public comment on 
the Sector Agreement for the Hook Sector was published in the Federal 
Register on March 3, 2008 (73 FR 11376), with public comment accepted 
through March 18, 2008. The Regional Administrator approved the FY 2008 
Sector Operations Plan, based

[[Page 18216]]

on public comment, 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 Hook 
Sector, the process of review and approval of sectors, and facts 
regarding the Sector's submission of the FY 2008 Sector Agreement are 
contained in the proposed rule. An EA entitled ``Approval of the 
Georges Bank Cod Hook Sector Operations Plan Fishing Year 2008'', which 
analyzes the impacts of the proposed Hook Sector operations, was also 
prepared.
    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.
    The 2008 Sector Agreement contains the same elements as the FY 2007 
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 
caught, Sector vessels may not fish 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). 
Should the hard TAC be exceeded, the Sector's allocation will be 
reduced by the overharvest in the following year.
    The FY 2008 Sector Agreement contains exemptions from the following 
restrictions of the FMP: The GB and Gulf of Maine (GOM) 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 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 total of nineteen 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, 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 qualifying landings histories of the Hook Sector 
members, the Hook Sector's share of the overall U.S. portion of the GB 
cod TAC is 658 mt (6.44 percent), or 1,450,566 lb (6.44 percent times 
the fishery-wide GB cod target TAC of 10,222 mt). Note, the proposed 
rule contained a calculation error that has been corrected in this 
final rule. Specifically, the proposed rule GB cod TAC of 614 mt was 
incorrect because it was based upon an incorrect percentage share of 
6.01 percent, however the correct percentage share is 6.44 percent, 
which results in a correct TAC of 658 mt.
    The 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 will 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 will 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 will 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 
will 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, 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, Hook 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 will 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 will 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 will 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 will 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 will be exempt from the 
GB Seasonal Closure Area during May.
    A Letter of Authorization will be issued to each member of the Hook 
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, and the limits on the number of hooks 
requirements as specified in Sec. Sec.  648.86(b)(1) and (2); 
648.81(g); 648.85(a)(3)(ii)(C); 648.82(k)(4)(ix); 648.82 (e)(2); 
648.80(a)(3)(v) and (a)(4)(v); and 648.80(b)(2)(v), respectively. If 
the effective date of the approval of the Hook Sector is past May 1, 
2008, the Hook Sector would be allowed to fish under common pool rules 
until the Hook Sector is approved, as authorized by Sec.  
648.87(b)(1)(xii).
    Based on the authority granted to the Secretary of Commerce under 
Section 305(d) (16 U.S.C. 1855(d)) of the Magnuson-Stevens Act, this 
final rule also modifies the regulations that define eligibility 
criteria for membership in the Hook Sector and the Fixed Gear Sector, 
in order to be consistent with the original 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

[[Page 18217]]

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 correcting 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 Council intent.

Comments and Responses

    One pertinent comment was received from a representative of the 
Hook Sector on the proposed rule.
    Comment: The commenter expressed strong support for approval of the 
Hook Sector Operations Plan and the modification to the eligibility 
criteria for the Hook Sector and the Fixed Gear Sector.
    Response: NMFS is approving the Hook Sector for FY 2008 and 
modifying the eligibility criteria.

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.
    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.
    The Assistant Administrator for Fisheries finds that the need to 
implement these measures in a timely manner in order to allow the Hook 
Sector to fish at the start of the fishing year, constitutes good cause 
under authority contained in 5 U.S.C. 553(d)(3), to establish an 
effective date less than 30 days after the date of publication. Because 
this final rule authorizes the Hook Sector to fish under the Hook 
Sector's Operations Plan, members of the Hook Sector may not fish under 
the Hook Sector rules until the final rule is effective. If the 
effective date is delayed past May 1, 2008, the members would be 
precluded from fishing under Operations Plan rules, which provide 
relief from various restrictions of the Fishery Management Plan, and 
enable more efficient fishing practices. A delay would likely result in 
economic harm to the sector members by not allowing them to fish during 
a very productive time of the fishing year.
    Under an approved Operations Plan, with an effective date of May 1, 
2008, the Hook Sector would be afforded exemptions from a seasonal 
closure on Georges Bank, the differential Day-at-Sea (DAS) requirement, 
the restriction on number of hooks, cod possession limits, the observer 
notification requirement for the Western U.S./Canada Area, and the DAS 
Leasing Program size restriction. The approval would coincide with the 
beginning of the Fishing Year, May 1, which is one of the most 
productive months for the fishery. If the effective date of the 
approved Operations Plan is delayed, Hook Sector members would be 
fishing under the more restrictivecommon pool'' regulations 
until the approval. The GB seasonal closure and the cod trip limits are 
two such regulations that would preclude or severely constrain their 
fishing operations. The GB seasonal closure, which includes the area 
traditionally fished by the Hook Sector, would prevent the Hook Sector 
members from fishing on easily accessible fishing grounds. Due to the 
current high cost of fuel, and the relatively small size of vessels in 
the Hook Sector, it is not likely that vessels would travel a long 
distance to fish in open areas, and there would be no revenue earned. 
Even if vessels chose to travel to open fishing areas, they would be 
subject to relatively low cod trip limits, and the other restrictions 
which would result in low economic returns.
    The need to establish an effective date less than 30 days after the 
date of publication results from the objective of allowing vessels to 
fish in the Hook Sector as of May 1, 2008, the beginning of the fishing 
year, and the timing of the rulemaking process. The time period under 
which these regulations were developed was short due to the complexity 
and length of the process governing the Operations Plans approval. Due 
to the limited time available to develop this rulemaking, there was 
insufficient time remaining to allow for the full 30-day delay in 
effectiveness. Therefore, for the reason above, the AA finds good cause 
to waive the 30-day delay in effectiveness and to make these 
regulations effective on May 1, 2008.
    Because the Hook Sector will be fishing under a hard TAC for GB 
cod, effort controls (i.e., the exemptions) are not necessary to 
constrain the impact of the Sector on the GB cod stock. Should the 
Sector's allocated GB cod TAC be caught, 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.
    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. In this final rule, a minor increase was 
made to the size of the GB cod TAC in order to correct a calculation 
error in the proposed rule, which will result in the potential for 
additional revenue for the Hook Sector.

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

    The Small Business Administration (SBA) size standard for small 
commercial fishing entities is $ 4 million in annual gross sales. All 
permitted and participating vessels in the groundfish fishery, 
including prospective Hook Sector members, are considered to be small 
entities because

[[Page 18218]]

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 will be 
subject to the regulatory exemptions and operational restrictions 
approved for the Hook Sector for FY 2008.

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

    Approval of the FY 2008 Sector Agreement results in an allocation 
of 658 mt of GB cod to the Hook Sector, and minimization of economic 
impacts on the Hook 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 FMP, or use gear capable of catching groundfish 
(unless fishing under recreational or party/charter regulations). Hook 
Sector vessels may only fish with jigs, non-automated demersel 
longline, or handgear. Under the Sector Agreement, members will be 
exempt from several restrictions of the FMP described in the preamble 
to the proposed and final rule and in the EA.
    This action will positively impact the members of the Hook Sector's 
19 vessels that have voluntarily joined the Hook Sector, who are 
relatively dependendant upon groundfish revenue compared to other 
participants in the groundfish fishery. The approval of the Hook Sector 
and allocation of GB cod TAC 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 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 will 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. For the above reasons, approval of the FY 
2008 Sector Agreement 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 been 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.
    No other alternatives beyond the No Action were considered during 
the development of this 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, 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 Hook Sector developed the Sector 
Agreement after consultation with prospective members. Prospective 
members then signed a binding sector contract to abide by the measures 
specified in the Sector Agreement. As described above, the approved 
Sector Agreement minimizes economic impacts to participating vessels by 
allowing them to operate more efficiently. Accordingly, the approved 
Sector Agreement 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 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 prior to approval of this action.
    Modification of the eligibility criteria for the Hook Sector and 
the Fixed Gear Sector will 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. 
Although, the number of vessels that this modification will impact is 
likely very small, this change in the eligibility requirement minimizes 
economic impacts on such vessels by allowing the opportunity to fish in 
the Hook Sector that would not otherwise be possible.

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

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

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: March 28, 2008.
James W. Balsiger,
Acting Assistant Administrator For Fisheries, National Marine Fisheries 
Service/

0
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

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.87, paragraphs (d)(1)(ii) and (d)(2)(i) are revised to 
read as follows:


Sec.  648.87  Sector allocation.

* * * * *

[[Page 18219]]

    (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. E8-6953 Filed 4-2-08; 8:45 am]
BILLING CODE 3510-22-S