[Federal Register Volume 73, Number 98 (Tuesday, May 20, 2008)]
[Proposed Rules]
[Pages 29098-29103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11303]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 080306389-8391-01]
RIN 0648-AW53


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Allowance of New Gear (Eliminator Trawl) in 
Specific Special Management Programs

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes approval for using another type of trawl gear 
known as the ``eliminator trawl'' in the Regular B Days-at-Sea (DAS) 
Program and the Eastern U.S./Canada Haddock Special Access Program 
(SAP). Vessels fishing in the Regular B DAS Program and the Eastern 
U.S./Canada Haddock SAP must use approved trawl gear in order to reduce 
the catch of multispecies (groundfish) stocks of concern. The Northeast 
(NE) Regional Administrator, NMFS, may approve additional gears for use 
in these programs if research demonstrates that the gear meets specific 
standards for the reduction of catch of stocks of concern. The intent 
of this action is to reduce catch of stocks of concern in the NE 
multispecies fishery.

DATES: Comments must be received by June 4, 2008.

ADDRESSES: You may submit comments, identified by 0648-AW53, 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 eliminator trawl.''
     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

[[Page 29099]]

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 Technical Report ``Bycatch Reduction in the Directed 
Haddock Bottom Trawl Fishery'' and a diagram of the eliminator trawl 
may be obtained from NMFS at the mailing address specified above; 
telephone (978) 281-9315. NMFS prepared an Initial Regulatory 
Flexiblity Analysis (IRFA), which is contained in the Classification 
section of this proposed rule.

FOR FURTHER INFORMATION CONTACT: Thomas Warren, Fishery Policy Analyst, 
(978) 281-9347, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: The NE Multispecies Fishery Management Plan 
(FMP) contains broadly applied input control regulations that are 
designed to protect stocks that need reductions in fishing mortality. 
Because such regulations apply in a broad manner, they not only 
restrict fishing effort on stocks of concern, but also restrict fishing 
effort on stocks that do not need reductions in fishing mortality. 
Therefore, SAPs were implemented in the FMP to increase access to 
stocks that do not need reductions in fishing mortality. A SAP 
authorizes additional fishing effort in order to allow an increased 
yield in specific stocks without undermining the achievement of the 
goals of the FMP. For example, SAPs may allow the use of Category B DAS 
or allow temporary access to a closed area to increase access to 
particular stocks. To help ensure that catch of stocks of concern is 
reduced to acceptable levels, vessels fishing in a SAP are subject to 
additional fishing restrictions than those that apply to vessels 
fishing in the NE multispecies fishery at large. Framework Adjustment 
(FW) 40-A (69 FR 67780; November 19, 2004) implemented the Regular B 
DAS Program and the Eastern U.S./Canada Haddock special management 
programs that currently include gear restrictions designed to 
substantially reduce the catch of stocks of concern.
    The Regular B DAS Program, which initially did not contain any gear 
restrictions, was later modified under FW 42 (71 FR 62156; October 23, 
2006) to require trawl vessels to use a haddock separator trawl in 
order to further reduce the potential for vessels to catch stocks of 
concern-- notably, cod, yellowtail flounder, and winter flounder. The 
Eastern U.S./Canada Haddock SAP, from its inception, contained a more 
restrictive requirement specifying that any vessel fishing in the 
program must use a haddock separator trawl. FW 42 also authorized the 
Regional Administrator to approve other gear types for use in the 
Regular B DAS Program and the Eastern U.S./Canada Haddock SAP to reduce 
catch of stocks of concern, based upon approved gear standards, but did 
not contain any standards for evaluating proposed additional gear 
types. On December 26, 2007, based upon recommendations of the New 
England Fishery Management Council (Council), NMFS implemented specific 
gear standards that could be used to evaluate additional gear proposed 
for use in these programs to reduce catch of stocks of concern and 
clarified the process by which new gear would be considered (72 FR 
72965).
    The December 26, 2007 rule specified that, to be approved, new gear 
must first be compared to an appropriately selected control gear. Based 
on this comparison, new gear can be approved if it meets one of the 
following two standards: (1) Use of the gear must result in a 
statistically significant reduction, compared to the control gear, of 
at least 50 percent (by weight, on a trip-by-trip basis) in catch of 
each regulated species stock of concern, or other non-groundfish stocks 
that are overfished or subject to overfishing identified by the 
Council; or (2) the use of the gear must result in a catch of each 
regulated NE multispecies stock of concern, or other non-groundfish 
stocks that are overfished or subject to overfishing identified by the 
Council, that is less than 5 percent of the total catch of regulated 
groundfish (by weight, on a trip-by-trip basis). Neither of these 
requirements apply to regulated species identified by the Council as 
not being subject to gear performance standards. Because many species 
in the fishery are caught together, and the dynamic nature of the 
status of stocks, the performance standard must have a reasonable 
amount of flexibility in order to be practical.
    One of these standards must be met in a completed experiment, where 
comparisons of new gear are made to an appropriately selected control 
gear that has been reviewed according to the standards established by 
the Council's research policy, before the gear can be considered and 
approved by the Regional Administrator. In addition, a request for 
approval of the use of additional gear in the Regular B DAS Program and 
the Eastern U.S./Canada Haddock SAP must be made by either the Council 
or the Council's Executive Committee.
    Regarding the proposal to approve the gear specified in this 
action, an experiment was conducted by the University of Rhode Island, 
Rhode Island Sea Grant Program, in conjunction with members of the 
fishing industry, from September 2004 through July 2006, to investigate 
a large-mesh experimental net known as the ``eliminator trawl'', 
designed to capture haddock while reducing the catch of cod and other 
species. Two fishing vessels with equivalent length, horsepower, and 
fishing capacity participated in the study, and compared the eliminator 
trawl with a control net (constructed with currently legal 
specifications) using side-by-side tows. Four trips, conducted in the 
months of June, November, December, and April, resulted in 107 
comparison tows, 100 of which were analyzed. The final report, 
``Bycatch Reduction in the Directed Haddock Bottom Trawl Fishery'' (URI 
Fisheries Center Technical Report: 01-06; October 2006) included the 
following results and conclusions: Haddock was the dominant species 
caught in the experimental net, and represented 77 percent of the total 
catch. The overall rounded ratio of haddock to cod in the experimental 
and control nets was 20:1 and 3:1, respectively. A statistical 
comparison by tow indicated that there was a significant difference in 
the catch weights between the control and the experimental nets for 
cod, yellowtail flounder, winter flounder, witch flounder, American 
plaice, white hake, monkfish, skates, and other non- groundfish 
species. The eliminator trawl caught less of these species than the 
control net, whereas there was no statistical difference in the weight 
of haddock caught between the two nets.
    A February 5, 2007, review by the Northeast Fisheries Science 
Center, NMFS's NE State, Federal, and Constituent Programs Office noted 
the successful conclusion of the research project, and the Council's 
Research Steering Committee reviewed the research on March 29, 2007. 
Both reviews agreed that the experiment successfully demonstrated that 
the net design allowed the harvest of haddock, while reducing catches 
of cod and other stocks of concern. Although the NE Multispecies Plan 
Development Team did not review the experimental results, a February 8, 
2008, memorandum from the Council's Executive Director to the Council 
indicated that the Council staff had reviewed the experimental data and 
concluded that the eliminator trawl clearly met the first regulatory 
standard for approval of new gear requiring a

[[Page 29100]]

showing of more than a 50- percent reduction compared to the control 
gear of catch of regulated species stocks of concern. On February 13, 
2008, the Council passed a motion that the haddock eliminator trawl be 
recommended to the Regional Administrator for use in the Eastern U.S./
Canada Haddock SAP and the Regular B DAS Program, and on February 19, 
2008, the Council sent the Regional Administrator a letter requesting 
approval of this gear.
    Based upon the final report, ``Bycatch Reduction in the Directed 
Haddock Bottom Trawl Fishery,'' and the Council's February 19, 2008, 
letter, NMFS is proposing approval of the eliminator trawl. The 
pertinent information indicates that the catch of each regulated 
species stock of concern, as well as other species, declined by more 
than 50 percent with use of the eliminator trawl, which complies with 
the first standard for approval of additional gear. The proposed 
eliminator trawl net specifications are based upon input from the 
individuals involved in the eliminator trawl research, and NMFS gear 
experts. Approval of the eliminator trawl would allow trawl vessels 
fishing in the Regular B DAS Program or the Eastern U.S./Canada Haddock 
SAP a choice of whether to use the haddock separator trawl or the 
eliminator trawl. The size of the eliminator trawl specified would be 
appropriate for fishing vessels with engines of at least 600 
horsepower. The results of the experiment cannot be used to extrapolate 
to smaller scale eliminator trawl gear that could be readily used by 
smaller horsepower vessels.
    The Council identified that the gear performance standards do not 
apply to haddock, pollock, and redfish. Haddock, pollock, and redfish 
are target stocks for which no reductions in fishing mortality are 
required. The researchers could not conduct statistical tests on 
Atlantic halibut because the species was not present in sufficient 
numbers (defined by the researchers as present in at least 10 paired 
tows), and therefore the gear standard could not be applied in a 
meaningful way to Atlantic halibut. Because Atlantic halibut is caught 
in very low numbers by the trawl fishery, and is subject to a 
possession limit of one fish per trip, NMFS has determined that the 
lack of information on the compliance of Atlantic halibut with gear 
standards is not sufficient justification for disapproval of the 
eliminator trawl. Furthermore, it is likely that the selectivity of the 
eliminator trawl for Atlantic halibut is low, given the similarity in 
body shape and ecology of the Atlantic halibut to the other flatfishes, 
which were less numerous in the eliminator trawl. This application of 
the gear standard is consistent with the intent of the Council (i.e., 
reasonable flexibility in application of the gear standards) and the 
goal of providing opportunities and incentives for the fishing industry 
to utilize gear that results in substantial reductions in bycatch.
    NMFS is not proposing that vessels must have their eliminator trawl 
net inspected and certified by a net manufacturer, as suggested by 
Council staff in the attachment to the Council's February 19, 2008, 
letter to NMFS. The stated concern is that slight modifications in the 
net configuration could alter the effectiveness of the net in reducing 
catches of species of concern. Inspection by a net manufacturer would 
not prevent a vessel operator from modifying his/her net after such an 
inspection occurred, would impose additional costs to the industry, 
would be difficult to enforce, and would be redundant, because the net 
manufacturer can verify to the net purchaser what he/she is purchasing 
at the time of purchase. The fisherman is responsible for the 
compliance of his/her gear with the regulations, and NMFS and the 
United States Coast Guard enforce the gear regulations. Furthermore, 
this requirement was not proposed by the Council (based on the 
Council's pertinent motion).

Classification

    NMFS has determined that the proposed rule is consistent with the 
FMP and has preliminarily determined that this rule is consistent with 
the Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    An initial regulatory flexibility analysis (IRFA) has been 
prepared, as required by section 603 of the Regulatory Flexibility Act 
(RFA), consisting of this proposed rule, the following analysis, and 
the Categorical Exclusion prepared for this action. The IRFA below 
describes the economic impact this proposed rule, if adopted, would 
have on small entities.
    Allowing the use of the eliminator trawl in the Regular B DAS 
Program and the Eastern U.S./Canada Haddock SAP would provide the 
fishing industry more flexibility in the use of trawl gear that 
minimizes catch of stocks of concern by providing them with a choice of 
whether to use the haddock separator trawl or the eliminator trawl. 
Vessels fishing under a Regular B DAS in these programs must comply 
with restrictive landing limits of various species. The choice of two 
nets would enable a vessel owner to decide which net is the most cost 
effective means of targeting haddock and complying with the landing 
restrictions. A description of the objectives and legal basis for the 
proposed eliminator trawl is contained in the SUMMARY of this proposed 
rule.
    Under the Small Business Administration (SBA) size standards for 
small fishing entities ($ 4.0 million in annual gross sales), all 
permitted and participating vessels in the groundfish fishery are 
considered to be small entities and, therefore, there are no 
disproportionate impacts between large and small entities. Gross sales 
by any one entity (vessel) do not exceed this threshold. The maximum 
number of small entities that could be affected by the proposed 
approval of the eliminator trawl are approximately 1,200 vessels; i.e., 
those issued limited access NE multispecies DAS permits that have an 
allocation of Category A or B DAS. Realistically, however, the number 
of vessels that choose to fish in either of these programs, and that 
would therefore be subject to the associated restrictions, including 
the use of either the haddock separator trawl or the eliminator trawl, 
would be substantially smaller. For example, in fishing year (FY) 2005, 
132 vessels fished in either the Regular B DAS Program or the Eastern 
U.S./Canada Haddock SAP. In FY 2006, there were only 45 vessels that 
fished in either program. Although it is possible that, under future 
circumstances, more vessels may elect to participate in these programs, 
a large increase in the numbers of participants is unlikely. 
Furthermore, some participants in the Regular B DAS Program and in the 
SAP may not have sufficient engine horsepower to use the eliminator 
trawl, and, therefore, may not be able to use the trawl.
    Based on information from a commercial net manufacturer, the cost 
of purchasing a new eliminator trawl net is approximately $ 13,000. A 
squid trawl net could be modified into an eliminator trawl for 
approximately $ 1,000, by replacing the last belly portion of the net 
and putting in a rockhopper sweep. If 130 vessels fished in either of 
the special management programs that require the use of a specialized 
trawl, and the vessel operators decided to purchase the eliminator 
trawl net, the total cost to the industry would be approximately 
$1,690,000. It is likely that many vessels that have fished in these 
programs in the past using a separator trawl may choose not to purchase 
an eliminator trawl. Vessels choosing to use the eliminator trawl would 
incur the purchase cost and other

[[Page 29101]]

adjustment costs. The decision to do so, and to thereby fish in a 
special management program offering additional revenue opportunities is 
a voluntary decision based on the individual vessel's assessment of 
profitability.
    Because of the context in which this action is proposed, there are 
only two alternatives under consideration: The no action alternative 
and approval of the eliminator trawl. Consideration of another trawl 
gear (i.e., a third alternative) in addition to the eliminator trawl is 
not proposed at this time. The process of conducting gear research and 
reviewing such research is time consuming and costly, and the standards 
for approval must be met. Although other trawl gear research is either 
underway or proposed, the eliminator trawl is the only gear that has 
been vetted through the review process and recommended by the Council. 
Additional research is being proposed by two of the co-authors of 
``Bycatch Reduction in the Directed Haddock Bottom Trawl Fishery'' that 
will investigate the use of an eliminator trawl net designed for 
smaller vessels with 250 to 550 horsepower engines.
    Performance standards rather than design standards are utilized for 
the evaluation of new trawl gear, in order to provide conservation 
engineers flexibility in design and a meaningful standard for the 
achievement of the goal of bycatch reduction. The performance standards 
under Sec.  648.85(b)(6)(iv)(J)(2) were developed for the specific 
purpose of evaluating additional fishing gear for these special 
management programs.
    The proposed action would not modify any collection of information, 
reporting, or recordkeeping requirements. The proposed net does not 
duplicate, overlap, or conflict with any other Federal rules.

    Dated: May 14, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, 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.  648.2, new definitions for ``fishing circle,'' 
``stretched mesh,'' and ``sweep'' are added in alphabetical order, to 
read as follows:


Sec.  648.2  Definitions.

* * * * *
    Fishing circle, with respect to the NE multispecies limited access 
fishery, means the calculated circumference of a bottom trawl based on 
the number of meshes and stretched mesh length at the narrow, aft end 
of the square of the net.
* * * * *
    Stretched mesh, with respect to the NE multispecies eliminator 
trawl, means mesh that is pulled so that slack in the mesh is 
eliminated and the mesh opening is closed.
* * * * *
    Sweep, with respect to the NE multispecies limited access fishery, 
means the part of a bottom trawl that, during normal use, is in contact 
with the sea floor along the outer edges of the lower webbing of the 
net.
* * * * *
    3. In Sec.  648.14, paragraphs (a)(132) and (b)(81) are revised to 
read as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (132) If fishing with trawl gear under a NE multispecies DAS in the 
Eastern U.S./Canada defined in Sec.  648.85(a)(1)(ii), fail to fish 
with a haddock separator trawl or a flounder trawl net, as specified in 
Sec.  648.85(a)(3)(iii), unless otherwise allowed under the Eastern 
U.S./Canada Haddock SAP rules in Sec.  648.85(b)(8)(v)(E).
* * * * *
    (b) * * *
    (81) If fishing in the Regular B DAS Program specified in Sec.  
648.85(b)(6), fail to use a haddock separator trawl as described under 
Sec.  648.85(a)(3)(iii)(A), or other approved gear as described under 
Sec.  648.85(b)(6)(iv)(J).
* * * * *
    4. In Sec.  648.85, paragraphs (b)(6)(iv)(J)(1) and (b)(8)(v)(E) 
introductory heading and (b)(8)(v)(E)(1) are revised, and paragraph 
(b)(6)(iv)(J)(3) is added to read as follows:


Sec.  648.85  Special management programs.

* * * * *
    (b) * * *
    (6) * * *
    (iv) * * *
    (J) * * *
    (1) Vessels fishing with trawl gear in the Regular B DAS Program 
must use the haddock separator trawl or eliminator trawl net, as 
described under paragraphs (a)(3)(iii)(A) and (b)(6)(iv)(J)(3) of this 
section, respectively, or other type of gear if approved as described 
under this paragraph (b)(6)(iv)(J). Other gear may be on board the 
vessel, provided it is stowed when the vessel is fishing under the 
Regular B DAS Program.
* * * * *
    (3) Eliminator Trawl. The eliminator trawl is a four-seam bottom 
groundfish trawl designed to reduce the bycatch of cod while retaining 
or increasing the catch of haddock, when compared to traditional 
groundfish trawls. An eliminator trawl must be constructed in 
accordance with the following standards:
    (i) The net must be constructed with four seams (i.e., a net with a 
top and bottom panel and two side panels), and include at least the 
following net sections as depicted in Figure 1 of this part 
``Nomenclature for 4-seam eliminator trawl'' (this figure is also 
available from the Administrator, Northeast Region): Top jib, bottom 
jib, jib side panels (x 2), top wing, bottom wing, wing side panels (x 
2), square, bunt, square side panels (x 2), first top belly, first 
bottom belly, first belly side panels (x 2), second top belly, second 
bottom belly, second belly side panels (x 2), and third bottom belly.
    (ii) The first bottom belly, bunt, the top and bottom wings, and 
the top and bottom jibs, jib side panels, and wing side panels (the 
first bottom belly and all portions of the net in front of the first 
bottom belly, with the exception of the square and the square side 
panels) must be at least two meshes long in the fore and aft direction. 
For these net sections the stretched length of any single mesh must be 
at least 7.9 ft (240 cm).
    (iii) Mesh size in all other sections must be consistent with mesh 
size requirements specified under Sec.  648.80 and meet the following 
minimum specifications: Each mesh in the square, square side panels, 
and second bottom belly must be 31.5 inches (80 cm); each mesh in the 
first and second top belly, the first belly side panels, and the third 
bottom belly must be at least 7.9 inches (20 cm); and 6 inches or 
larger in sections following the second top belly and third bottom 
belly sections, all the way to the codend. The mesh size requirements 
of the top sections apply to the side panel sections.
    (iv) The trawl must have a fishing circle of at least 398 ft (121.4 
m). This number is calculated by separately counting the number of 
meshes for each section of the net at the wide, fore end of the first 
bottom belly, and then calculating a stretched length as follows: For 
each section of the net (first bottom belly, two belly side panels and 
first top belly) multiply the number of meshes times the length of each 
stretched mesh to get the stretched mesh length for that section, and 
then add the sections

[[Page 29102]]

together. For example, if the wide, fore end of the bottom belly of the 
eliminator trawl is 22 meshes (and the mesh is at least 7.9 ft (240 
cm)), the stretched mesh length for that section of the net is derived 
by multiplying 22 times 7.9 ft (240 cm) and equals 173.2 ft (52.8 m). 
The top and sides (x 2) of the net at this point in the trawl are 343 
meshes (221 + 61 + 61, respectively) (each 7.9 inches (20 cm)), which 
equals 225.1 ft (68.6 m) stretched length. The stretched lengths for 
the different sections of mesh are added together (173.2 ft + 225.1 ft 
(52.8 + 68.6 m)) and result in the length of the fishing circle, in 
this case 398.3 ft (121.4 m).
    (v) The trawl must have at least three 1-square meter or larger 
kite panels on the forward end of the square to help maximize headrope 
height, for the purpose of capturing rising fish. A kite panel is a 
flat structure, usually semi-flexible used to modify the shape of trawl 
and mesh openings by providing lift when a trawl is moving through the 
water.
    (vi) The sweep must consist of rockhoppers, which are graduated 
from 16-inch (40-cm) diameter in the center down to 12-inch (30-cm) 
diameter at the wing ends. There must be six or fewer 12 to16-inch (30 
to 40-cm) rockhopper discs over any 10-ft (3.0 m) length of the sweep. 
The 12 to16 inch (30 to 40-cm) discs must be spaced evenly, with one 
disc placed approximately every 2 ft (60 cm) along the sweep. The 12 to 
16-inch (30 to 40-cm) discs must be separated by smaller discs, no 
larger than 3.5 inches (8.8 cm) in diameter.
* * * * *
    (8) * * *
    (v) * * *
    (E) Gear requirement (1) A NE multispecies vessel fishing in the 
Eastern U.S./Canada Haddock SAP must use the haddock separator trawl or 
eliminator trawl net, as described under paragraphs (a)(3)(iii)(A) and 
(b)(6)(iv)(J)(3) of this section, respectively, or other type of gear, 
if approved as described under this paragraph (b)(8)(v)(E). No other 
type of fishing gear may be on the vessel when on a trip in the Eastern 
U.S./Canada Haddock SAP, with the exception of a flounder net, as 
described in paragraph (a)(3)(iii) of this section, provided that the 
flounder net is stowed in accordance with Sec.  648.23(b).
* * * * *
    5. In part 648, add Figure 1 as follows:
BILLING CODE 3510-22-S

[[Page 29103]]

[GRAPHIC] [TIFF OMITTED] TP20MY08.015

[FR Doc. E8-11303 Filed 5-19-08; 8:45 am]
BILLING CODE 3510-22-C