[Federal Register Volume 74, Number 26 (Tuesday, February 10, 2009)]
[Proposed Rules]
[Pages 6564-6568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2781]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 090122047-9050-01]
RIN 0648-XM11


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; 2009 Georges Bank Cod 
Hook Sector Operations Plan and Agreement, and Allocation of Georges 
Bank Cod Total Allowable Catch

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

ACTION: Proposed rule; request for comments.

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

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 a Georges Bank (GB) cod 
total allowable catch (TAC) to the GB Cod Hook Sector (Hook Sector) for 
fishing year (FY) 2009.
    Amendment 13 to the Northeast (NE) Multispecies Fishery Management 
Plan (FMP) implemented the Hook Sector and authorized annual allocation 
of up to 20 percent of the GB cod TAC to the Hook Sector. Pursuant to 
that authorization, a representative of the Hook Sector has submitted 
an operations plan and sector agreement (contract), and requested an 
allocation of GB cod to the Hook Sector for FY 2009.

DATES: Written comments must be received on or before February 25, 
2009.

ADDRESSES: You may submit comments, identified by 0648-XM11, 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: 55 Great Republic Drive, Gloucester, MA 01930.
    Instructions: All comments received are part of the public record 
and will

[[Page 6565]]

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 publicly accessible. Do 
not submit Confidential Business Information or otherwise sensitive or 
protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments 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, Sector 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 2009 Hook Sector Operations Plan and Agreement, 
which contains the sector contract and operations plan, is consistent 
with the goals of the FMP, as currently implemented, 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, implemented the Hook Sector, established the GB Cod Hook 
Sector Area (Sector Area), and specified a formula for the allocation 
of GB cod TAC to the Hook Sector.
    The principal regulations applying to the Hook Sector specify that: 
(1) All vessels with a valid limited access NE multispecies DAS permit 
are eligible to participate in the Hook Sector; (2) membership in the 
Hook Sector is voluntary, but each member is required to remain in the 
Hook Sector for the entire fishing year and cannot fish in the NE 
multispecies DAS program outside the sector during the fishing year, 
unless certain conditions are met; (3) vessels fishing in the Hook 
Sector are confined to fishing in the 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 are required to 
comply with all pertinent Federal fishing regulations, unless 
specifically exempted by a Letter of Authorization issued by the 
Regional Administrator, and the provisions of an approved operations 
plan.
    While Amendment 13 implemented the Hook Sector, in order for GB cod 
to be allocated to the Hook Sector and for the Hook Sector to be 
authorized to fish, the Hook Sector must submit an operations plan and 
sector contract to the Regional Administrator annually for approval. 
The operations plan and sector contract must contain certain elements, 
including a contract signed by all Hook Sector participants and a plan 
containing the management rules that the Hook Sector participants agree 
to abide by in order to avoid exceeding the allocated TAC. An 
additional analysis of the impacts of the Hook Sector's proposed 
operations may also be required in order to comply with the National 
Environmental Policy Act. Further, the public must be provided an 
opportunity to comment on the proposed operations plan and sector 
contract. The regulations require that, upon completion of the public 
comment period, the Regional Administrator will make a determination 
regarding approval of the sector contract and operations plan. If 
approved by the Regional Administrator, participating vessels would be 
authorized to fish under the terms of the operations plan and sector 
contract.
    The Hook Sector was authorized to fish in FYs 2004, 2005, 2006, 
2007, and 2008; and, based upon the GB cod landings history of its 
members, was allocated 12.60, 11.70, 10.03, 8.02, and 6.44 percent, 
respectively, of the annual GB cod TAC.
    On September 30, 2008, the Hook Sector submitted its FY 2009 
operations plan and sector agreement to NMFS. A draft environmental 
assessment (EA) was submitted on November 14, 2008. The proposed 2009 
Hook Sector agreement and operations Plan contains the same elements 
and proposed exemptions as the 2008 Hook Sector agreement and 
operations plan. The Hook Sector would be overseen by a Board of 
Directors and a Sector Manager. The Hook Sector Agreement specifies, in 
accordance with Amendment 13, that the Hook Sector's GB cod TAC would 
be based upon the number of Hook Sector members and their historic 
landings of GB cod. The GB cod TAC is a ``hard'' TAC, meaning that, 
once the TAC is reached, Hook Sector vessels could not fish under a 
DAS, possess or land GB cod or other regulated species managed under 
the FMP (regulated species), or use gear capable of catching groundfish 
(unless fishing under charter/party or recreational regulations). 
Should the hard TAC be exceeded, the Hook Sector's allocation would be 
reduced by the amount of the overharvest in the following year.
    The 2009 operations plan proposes exemptions from the following 
restrictions of the FMP: The GB cod trip limit; the GB Seasonal Closure 
Area; the 3,600-hook limit for longline gear in the GB Regulated Mesh 
Area (RMA); the 2,000-hook limit for longline gear in the Gulf of Maine 
(GOM) and Southern New England (SNE) RMAs; the Western U.S./Canada Area 
72-hr observer notification requirement; the DAS Leasing Program vessel 
size restrictions; and differential DAS counting implemented by 
Framework Adjustment (FW) 42 and any temporary rules. 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.
    Twenty-four prospective Hook Sector members signed the 2009 Hook 
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 Hook 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 24 
prospective members (and their associated GB cod landings history), the 
Hook Sector's share of the overall U.S. portion of the GB cod TAC would 
be 8.09 percent, or 625,570 lb (284 mt) (8.09 percent times the 
fishery-wide GB cod target TAC of 7,729,408 lb (3,506 mt)). If 
prospective members of the Hook Sector are deemed ineligible to, or 
decide not to, participate in the Hook 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 Hook Sector and the TAC for the Hook Sector may be reduced from the 
numbers above, but no additional members may join the Hook Sector for 
FY 2009.
    The Sector Contract contains procedures for the enforcement of the 
operations plan, a schedule of penalties, and provides the authority to 
the Hook Sector Manager to issue stop fishing orders to members of the 
Hook Sector. Participating vessels would be required to land fish only 
in designated landing ports and would be required to provide the Hook 
Sector Manager with a copy of the Vessel Trip Report (VTR) within 48

[[Page 6566]]

hr of offloading. Dealers purchasing fish from participating vessels 
would be required to provide the Hook Sector Manager with a copy of the 
dealer report on a weekly basis. On a monthly basis, the Hook Sector 
Manager would transmit to NMFS aggregate catch data from dealer slips 
and aggregate discard data from the VTRs. After 90 percent of the Hook 
Sector's allocation has been harvested, the Hook Sector Manager would 
be required to provide NMFS with aggregate reports on a weekly basis. A 
total of 1/12 of the Hook Sector's GB cod TAC 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. If 
landings exceed the monthly quota, the excess would be deducted from 
subsequent monthly quotas to ensure the Hook Sector does not exceed its 
GB cod TAC. 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.
    Participating vessels would not be allowed to fish with or have on 
board gear other than jigs, non-automated demersal longline, or 
handgear. Participating Hook Sector vessels could use an unlimited 
number of hooks in the Sector Area and would be exempt from the GB 
Seasonal Closure Area.
    Participating vessels would be required to call the Sector Manager 
prior to leaving port on a fishing trip. All legal-sized cod caught 
would be retained, landed and counted against the Hook Sector's GB cod 
TAC. 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 have a 1,000-lb (454-
kg) trip limit for white hake (consistent with current regulations); a 
2,000-lb (907-kg) trip limit for GB winter flounder (more restrictive 
than current regulations); and a 100-lb (45-kg) trip limit for all 
yellowtail flounder (more restrictive than current regulations). All of 
these exemptions were approved for FY 2006 and FY 2007.
    In FY 2006 and FY 2007 the exemption from differential DAS counting 
was approved because the combination of a hard TAC for GB cod and 
specific trip limits for GB winter flounder, yellowtail flounder, and 
white hake was determined to be conservation equivalent to differential 
DAS counting in the existing GOM and SNE Differential DAS Areas for 
meeting the mortality reduction and stock rebuilding goals of both the 
2006 Secretarial Action and FW 42. NMFS is concerned about granting 
this exemption in FY 2009 because of the new differential DAS counting 
area proposed in the Secretarial Interim Action (74 FR 2959). The 
proposed Hook Sector operations plan and agreement, and supporting EA, 
were drafted and submitted prior to the publication of the proposed 
Secretarial Interim Action and therefore do not contain a justification 
for, or analysis of the impacts of, exempting the Hook Sector from the 
proposed differential DAS area. Therefore, NMFS may partially approve 
the Hook Sector operations plan and agreement, disapproving the 
differential DAS exemption requested, unless further information 
demonstrates that the operations plan would be the conservation 
equivalent of the differential DAS counting. Accordingly, NMFS is 
particularly interested in receiving public comment on the Hook 
Sector's request for an exemption from differential DAS counting as 
proposed in the Secretarial Interim Action.
    The EA prepared for the Hook Sector's operations concludes that the 
biological impacts of the Hook 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 Hook Sector. Implementation may have a 
positive impact on essential fish habitat and bycatch, if the Hook 
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 Hook Sector concludes that the 
members would realize higher economic returns if the Hook Sector is 
implemented. The EA asserts that fishing in accordance with the Sector 
Contract rules enables more efficient harvesting of GB cod with hook 
gear than would be possible if the participating vessels were fishing 
in accordance with the common pool (non-sector) rules. The social 
benefits of the Hook 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 Hook 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 Hook Sector. The 
cumulative impacts of the Hook 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 Hook 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, the GB Seasonal Closure Area, the Western U.S./Canada Area 72-hr 
observer notification requirement, the DAS Leasing Program vessel size 
restrictions, and differential DAS counting, as specified in Sec. Sec.  
658.86(b)(2), 648.80(a)(4)(v), 648.80(a)(3)(v), 648.80(b)(2)(v), 
648.81(g), 648.85(a)(3)(ii)(C), 648.82(k)(4)(ix), 648.82 (e)(2), 
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 NE Multispecies FMP as currently implemented, other 
provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment, particularly in 
light of whether the Secretarial Interim Action is implemented.
    This action is exempt from review under Executive Order (E.O.) 
12866.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. The IRFA 
consists of this section, the preamble, and the EA prepared for this 
action. 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. A summary of the analysis follows. A copy of this analysis 
is available from NMFS (see ADDRESSES).
    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

[[Page 6567]]

prospective Hook Sector members, are considered to be small entities 
because gross sales by any one entity (vessel) do not exceed this 
threshold, and, therefore there is no disproportionate impact between 
large and small entities. 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 Hook 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 
Hook Sector is 24, substantially less than the total number of active 
vessels in the groundfish fishery. Only these 24 vessels would be 
subject to the regulatory exemptions and operational restrictions 
proposed for the Hook Sector for FY 2009.

Economic Impacts of the Proposed Action

    The proposed alternative would allocate a GB cod TAC of 284 mt to 
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 NE 
multispecies FMP, or use gear capable of catching groundfish (unless 
fishing under recreational or charter/party regulations). Vessels 
intending to fish in the Hook Sector during FY 2009 may only fish with 
hook gear. 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 Hook Sector 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 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 it was likely that at least some of the 
active groundfish vessels in Chatham and Harwichport were even more 
than 71-percent dependent on the NE multispecies fishery.
    Haddock and cod comprised the largest proportion of Hook Sector 
landings (62.47 percent and 32.46 percent, respectively, in FY 2007). 
During FY 2007, members of the Hook Sector made 239 trips, landed 
155,453 lb (70,512 kg) of cod and 299,126 lb (135,681 kg) of haddock, 
and generated approximately $ 290,697, and $ 523,471 in revenue from 
those species, respectively (assuming a dockside price of $ 1.87 and $ 
1.75 per lb [$4.11 and $ 3.85 per kg], respectively). The FY 2007 data 
indicated a 34-percent decline in the number of trips, a 13-percent 
decline in cod landings, and a 16-percent increase in haddock landings 
compared to FY 2006. The net effect was a 3.2-percent increase in 
revenue from cod and haddock and a 55-percent increase in revenue per 
trip from these species compared to FY 2006. Hook Sector members also 
landed various other species, which increased 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 FW 42; 
October 23, 2006; 71 FR 62156). The Hook Sector, by fishing under rules 
that are designed to meet their needs (as well as the conservation 
requirements of the FMP), is afforded a larger degree of flexibility 
and efficiency, which result in economic gains. For example, Hook 
Sector members are able to plan their fishing activity and income in 
advance with more certainty due to the fact that there is a cod TAC, 
which is apportioned to each month of the year. They are able to 
maximize their efficiency (revenue per trip) due to the exemption from 
trip limits and limits on the number of hooks fished. Forty-one of the 
Hook Sector's 239 trips (17 percent) in FY 2007 landed more than the 
daily GB cod trip limit (1,000 lb/day; 454 kg/day) in place for the 
common pool vessels (non-sector vessels). This resulted in an 
additional 77,429 lb (35,121 kg) (49.8 percent of the Hook Sector's FY 
2007 cod landings) being landed, rather than discarded. For some vessel 
owners in the Hook Sector, participation in the Hook Sector enables 
their businesses to remain economically viable.
    No other alternatives in addition to the No Action and the proposed 
action were considered. 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 objective of 
sector management, as originally developed and implemented under 
Amendment 13 to the FMP, is 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 
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 Hook Sector during 
FY 2009 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 as part of this 
proposed action.

Economic Impacts of Alternative to the Proposed Action

    Under the No Action alternative, the Hook Sector operations plan is 
disapproved and no modified operations plan is submitted. While the 
Hook Sector would remain implemented under the NE Multispecies FMP 
under the No Action Alternative, the Hook Sector would not be 
authorized to fish, would not be allocated a GB cod TAC, and all 
vessels would remain in the Common Pool and fish under the regulations 
implemented in Amendment 13 and subsequent FW to the NE Multispecies 
FMP.
    Because cod usually represents a high proportion of total fishing 
income for Cape Cod-based hook gear 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 Hook Sector vessels would experience 
revenue losses in comparison to proposed action. It is more likely 
under the No Action alternative that disruption to the Chatham/
Harwichport communities would occur.
    If the proposed Hook Sector operations plan is approved without the 
exemption from differential DAS counting it will have a lesser benefit 
to the members, but will not result in the same level of revenue losses 
as the No Action alternative.

[[Page 6568]]

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 sector 
operations plans and TAC allocations.

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

    Dated: February 4, 2009
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E9-2781 Filed 2-9-09; 8:45 am]
BILLING CODE 3510-22-S