[Federal Register Volume 73, Number 70 (Thursday, April 10, 2008)]
[Rules and Regulations]
[Pages 19439-19441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7639]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 071017601-8510-02]
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.

ACTION: Final rule.

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SUMMARY: This final rule implements the Georges Bank (GB) Cod Fixed 
Gear Sector (Fixed Gear Sector) Fishing Year (FY) 2008 Operations Plan 
and Agreement, approved by the Administrator, Northeast (NE) Region, 
NMFS (Regional Administrator), and allocates a hard total allowable 
catch (TAC) of GB cod to the Fixed Gear Sector. Framework 42 (FW 42) to 
the NE Multispecies Fishery Management Plan (FMP) authorized allocation 
of up to 20 percent of the annual GB cod TAC to the Fixed Gear Sector. 
Pursuant to that authorization, the Fixed Gear Sector submitted an 
Operations Plan and Sector Contract entitled, ``Georges Bank Cod Fixed 
Gear 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 for FY 2008 and allocation of 1,430 mt of GB cod to the Sector.

DATES: Effective May 1, 2008, through April 30, 2009.

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. These 
documents are also accessible via the Federal eRulemaking Portal: 
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mark Grant, Sector Policy Analyst, 
phone (978) 281-9145, fax (978) 281-9135, e-mail [email protected].

SUPPLEMENTARY INFORMATION: A proposed rule soliciting public comment on 
the Sector Agreement for the Fixed Gear Sector was published in the 
Federal Register on March 11, 2008 (73 FR 12942), with public comment 
accepted through March 26, 2008. The Regional Administrator approved 
the FY 2008 Sector Operations Plan, based 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 Fixed Gear Sector, the process of 
review and approval of sectors, and facts regarding the Fixed Gear 
Sector's submission of the FY 2008 Sector Agreement are contained in 
the proposed rule. An EA entitled ``Approval of the Georges Bank Cod 
Fixed Gear Sector Operations Plan Fishing Year 2008,'' which analyzes 
the impacts of the proposed Fixed Gear Sector operations, was also 
prepared.
    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.
    The 2008 Fixed Gear Sector Agreement contains the same elements and 
exemptions as the 2007 Fixed Gear Sector Agreement and Operations Plan. 
The Fixed Gear Sector Agreement will be overseen by a Board of 
Directors and a Sector Manager. The Fixed Gear Sector's GB cod TAC is 
based upon the number of Fixed Gear 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, Fixed Gear 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). 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 2008 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. Should 
the hard TAC be exceeded, the Sector's allocation in the following year 
will be reduced by an amount equivalent to the overharvest.
     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; and the GB Seasonal Closure Area when using 
hook gear. Justification for the proposed exemptions and analysis of 
the potential impacts of the Operations Plan are contained in the EA.
    A total of 29 Fixed Gear Sector members signed the FY 2008 Fixed 
Gear Sector Contract. The GB cod TAC calculation is based upon the 
historic cod landings of the participating Fixed Gear Sector vessels, 
regardless of gear used. The allocation percentage is calculated by 
dividing the sum of total landings of GB cod landed by Fixed Gear 
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 qualifying landings histories 
of the Fixed Gear Sector members, the Fixed Gear Sector's share of the 
overall U.S. portion of the GB cod TAC is 13.99 percent, or 3,152,802 
lb (1,430 mt) (13.99 percent times the fishery-wide U.S. portion of the 
GB cod target TAC of 22,535,656 lb (10,222 mt)).
    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 are required to land 
fish only in designated landing ports and are 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 are 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 must 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 is 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, is 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

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GB cod or other regulated species, or use gear capable of catching 
regulated NE multispecies. The harvest rules do 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 are 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 are required to call the Sector Manager prior to 
leaving port. All legal-sized cod caught must be retained, landed and 
counted against the Fixed Gear Sector's aggregate allocation. 
Participating vessels may not 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 may use 
an unlimited number of hooks in the Sector Area and are exempt from the 
GB Seasonal Closure Area during May.

Comments and Responses

    Three comments were received on this action. One from the Cape Cod 
Hook Commercial Fishermen's Association (CCCHFA), one from 
representatives of both the Fixed Gear Sector and the GB Cod Hook Gear 
Sector, and the third from a member of the general public.
    Comment 1: The comment is not directly relevant to this action 
because the commenter suggested that all allocations of fish be reduced 
50 percent this year and 10 percent each subsequent year, asserting 
that the Sector Area is overfished.
    Response: This comment is not relevant to this action.
    Comments 2 and 3: The comments from CCCHFA and representatives of 
the two sectors both supported the approval of the Fixed Gear Sector's 
FY 2008 Operations Plan and Agreement. Both comments noted that the 
operations of the Fixed Gear Sector have reduced discards of GB cod, 
provided flexibility to members to make market-based decisions, and 
increased profitability for members.
    Response: NMFS agrees and has approved the FY 2008 Operations Plan 
and Agreement.
    A Letter of Authorization will be issued to each member of the 
Fixed Gear Sector exempting them, conditional upon their compliance 
with the Sector Contract, from the GOM and 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.  648.86(b)(1) and (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 Fishery Conservation and Management Act, and 
other applicable laws.
    Pursuant to 5 U.S.C. 553(d)(1), the Assistant Administrator for 
Fisheries, NOAA, (Assistant Administrator) has determined that this 
rule is not subject to the 30-day delayed effectiveness provision of 
the Administrative Procedure Act because it provides the basis for NMFS 
to grant, effective with the start of the fishing year on May 1, 2008, 
Fixed Gear Sector members exemptions from the following regulations 
implementing the FMP:
    1. GOM and GB cod trip limits;
    2. GB Seasonal Closure Area when using hook gear; 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 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 or sink gillnets only.
    In order for GB cod to be allocated to the Fixed Gear Sector and 
the Fixed Gear Sector authorized to fish in FY 2008, the Fixed Gear 
Sector must submit an Operations Plan and Sector Contract to the 
Regional Administrator for approval. The regulations at Sec.  648.87(c) 
authorize the Regional Administrator to approve or disapprove sector 
operations after the receipt of the required documents, including a 
complete roster of all parties, vessels, and vessel owners who will 
participate in the sector. The Fixed Gear Sector did not submit its 
final FY 2008 roster until January 28, 2008, which delayed publication 
of the proposed rule until March 11, 2008, with a comment period that 
ended on March 26, 2008. Because the final FY 2008 roster included 
vessels that did not meet the GB cod landings requirement previously 
codified at Sec.  648.87(d)(2)(i), NMFS could not approve their 
participation until after the rule removing that eligibility 
requirement from the sector regulations published on April 3, 2008. 
Establishing an effective date 30 days after the publication of this 
final rule would prevent the Fixed Gear Sector from commencing sector 
operations with the start of the fishing year on May 1, 2008.
    Implementation of the Sector Operations Plan is meant to mitigate 
adverse economic impacts that resulted from Amendment 13 and FW 42 to 
the FMP. Delaying the implementation beyond May 1, 2008, would result 
in an unnecessary economic loss to the members of the Fixed Gear Sector 
because vessels would be prevented from fishing in a month when 15 
percent of the annual GB cod landings historically occur, and when the 
price for GB cod is highest. During the month of May landings of cod by 
hook gear are at their highest, and the Fixed Gear Sector is exempt 
from both hook limits and a seasonal closure of a large portion of its 
historic fishing area while using hook gear. Further, vessels 
participating in the Fixed Gear Sector in FY 2007 are currently 
operating under the exemptions above. Delaying implementation beyond 
May 1, 2008, would create a gap in the annual exemptions for this 
sector, forcing these vessels to remove gear currently in the water at 
a high expense.
    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. 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 Regulatory Flexibility Act 
(RFA), prepared this FRFA in support of the 2008 GB Cod Fixed Gear 
Sector Operations Plan and allocation of GB cod TAC. The FRFA 
incorporates the economic impacts identified in the Initial RFA (IRFA), 
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

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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 public comments pertaining to the IRFA or the economic effects 
of this action were received.

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 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. The number of participants in the 
Fixed Gear Sector is 29, substantially less than the total number of 
active vessels in the groundfish fishery. These 29 vessels will be 
subject to the regulatory exemptions and operational restrictions 
approved for the Fixed Gear Sector for FY 2008.

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

    Approval of the FY 2008 Sector Agreement results in an allocation 
of 1,430 mt of GB cod to the Fixed Gear Sector and exemptions from 
several restrictions of the FMP and minimization of economic impacts on 
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 
FMP, or use gear capable of catching groundfish (unless fishing under 
recreational or party/charter regulations). Fixed Gear Sector vessels 
may only fish with jigs, non-automated demersal longline, handgear, or 
sink gillnets.
    This action will positively impact the 29 vessels that have 
voluntarily joined the Fixed Gear Sector, who are relatively more 
dependant upon groundfish revenue compared to other participants in the 
groundfish fishery. The approval of the Fixed Gear 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. Preliminary FY 2007 
data show that the Sector has made 564 trips and landed 735,355 lb 
(333,551 kg) of GB cod; 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. 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. 
Fixed Gear Sector members also landed various other species, which 
added to their total revenue. In general, the operation of the Fixed 
Gear 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 FW 42; October 23, 2006; 71 FR 
62156). 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. For example, 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) due to the exemption from cod possession limits and 
hook numbers. For some vessel owners in the Fixed Gear Sector, 
participation in the Fixed Gear 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 Fixed Gear 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 alternative implemented by this rule, 
Fixed Gear Sector members would likely have faced increased economic 
uncertainty, loss of efficiency, and loss of revenue, as noted above. 
Because cod usually represents a high proportion of total fishing 
income for fixed gear vessels, revenues for Fixed Gear Sector members 
are sensitive to regulations that impact how and when they can fish for 
cod, such as possession limits and restrictions on the number of hooks 
that can be fished.
    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 Fixed Gear 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 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 
other alternatives were considered prior to approval of this action.

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

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

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

    Dated: April 4, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. E8-7639 Filed 4-9-08; 8:45 am]
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