[Federal Register Volume 74, Number 28 (Thursday, February 12, 2009)]
[Proposed Rules]
[Pages 7029-7032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3060]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 090123054-9058-01]
RIN 0648-XM12


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; 2009 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: 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 Fixed Gear Sector (Fixed Gear 
Sector) for fishing year (FY) 2009.
    Framework Adjustment (FW) 42 to the Northeast (NE) Multispecies 
Fishery Management Plan (FMP) implemented the Fixed Gear Sector and 
authorized allocation of up to 20 percent of the annual GB cod TAC to 
the Fixed Gear Sector. Pursuant to that authorization, a representative 
of the Fixed Gear Sector has submitted an operations plan and sector 
agreement (contract), and requested an allocation of GB cod to the 
Fixed Gear Sector for FY 2009.

DATES: Written comments must be received on or before February 27, 
2009.

ADDRESSES: You may submit comments, identified by 0648-XM12, 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 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

[[Page 7030]]

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 Fixed Gear Sector Operations Plan and 
Agreement, which contains the sector contract and operations plan, is 
consistent with the goals of the FMP, and other applicable law and is 
in compliance with the regulations governing the development and 
operation of a sector, as specified under 50 CFR 648.87, as they 
existed prior to the court order described in this proposed rule. 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, established the GB Cod Hook Sector Area (Sector Area), and 
specified a formula for the allocation of GB cod TAC to the sectors.
    FW 42 (October 23, 2006; 71 FR 62156) to the NE Multispecies FMP 
implemented the Fixed Gear Sector. On January 26, 2009, the U.S. 
District Court of Massachusetts (Court) issued an order in Commonwealth 
of Massachusetts by its Division of Marine Fisheries and State of New 
Hampshire by its Department of Fish and Game, Division of Marine 
Fisheries v. Carlos M. Gutierrez, et al., temporarily suspending FW 42. 
On February 2, 2009, NMFS filed a motion to alter or amend the Court's 
order. NMFS may not be able to finally approve the Fixed Gear Sector's 
proposed sector operations plan for FY 2009 while FW 42 is suspended. 
Accordingly, NMFS publishes this proposed rule with the condition that 
a final rule approving or disapproving the proposed sector operations 
may be contingent upon the removal of the suspension of FW 42. NMFS is 
taking this action at this time so that a final approval or disapproval 
of the proposed sector operations could me made in advance of the start 
of FY 2009 on May 1 should the suspension of FW 42 be lifted. This 
action must be taken at this time to allow sufficient time for 
publication of this proposed rule, a public comment period, and 
publication of a final rule no less than 30 days prior to the rule 
taking effect, consistent with the requirements of the Administrative 
Procedure Act, as specified at 5 U.S.C. 553.
    The principal regulations applying to the Fixed Gear Sector specify 
that: (1) All vessels with a valid limited access NE multispecies DAS 
permit are eligible to participate in the Fixed Gear Sector; (2) 
membership in the Fixed Gear Sector is voluntary, but each member is 
required to remain in the Fixed Gear 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 Fixed Gear 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 FW 42 implemented the Fixed Gear Sector, in order for GB cod 
to be allocated to the Fixed Gear Sector and for the Fixed Gear Sector 
to be authorized to fish, the Fixed Gear Sector must submit an 
operations plan and sector contract to the Regional Administrator 
annually for approval. The operations plan and sector contract must 
contain certain elements, including a contract signed by all Fixed Gear 
Sector participants and a plan containing the management rules that the 
Fixed Gear Sector participants agree to abide by in order to avoid 
exceeding the allocated TAC. An additional analysis of the impacts of 
the Fixed Gear Sector's proposed operations may 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 operations plan and 
sector contract. If approved by the Regional Administrator, 
participating vessels would be authorized to fish under the terms of 
the operations plan and sector contract.
    The Fixed Gear Sector was authorized to fish in FY 2006, FY 2007, 
and FY 2008, and, based upon the GB cod landings history of its 
members, was allocated <1.0, 10.7, and 13.99 percent, respectively, of 
the annual GB cod TAC.
    On September 30, 2008, the Fixed Gear 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 
Fixed Gear Sector Operations Plan and Agreement contains the same 
elements and proposed exemptions as the 2008 Fixed Gear Sector 
Operations Plan and Agreement. The Fixed Gear Sector would be overseen 
by a Board of Directors and a Sector Manager. The Fixed Gear Sector 
Agreement specifies, in accordance with Amendment 13, that the Fixed 
Gear Sector's GB cod TAC would be based upon the number of Fixed Gear 
Sector members and their historic landings of GB cod. The GB cod TAC is 
a ``hard'' TAC, meaning that, once the TAC is reached, Fixed Gear 
Sector vessels could not fish under a DAS, possess or land GB cod or 
other regulated species managed under the FMP (regulated species), or 
use gear capable of catching groundfish (unless fishing under charter/
party or recreational regulations). Should the hard TAC be exceeded, 
the Fixed Gear Sector's allocation would be reduced by the 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 (when fishing with hook gear); the 3,600-hook limit for longline 
gear in the GB Regulated Mesh Area (RMA); and the 2,000-hook limit for 
longline gear in the Gulf of Maine (GOM) and Southern New England (SNE) 
RMAs. Justification for the proposed exemptions and analysis of the 
potential impacts of the operations plan are contained in the EA. A 
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (IRFA) 
is summarized in the Classification section of this proposed rule.
    Twenty-three prospective Fixed Gear Sector members signed the 2009 
Fixed Gear Sector Contract. The GB cod TAC calculation is based upon 
the historic GB cod landings of the participating vessels, using all 
gear. The allocation percentage is calculated by dividing the sum of 
total landings of GB cod by Fixed Gear Sector members for FY 1996 
through 2001 by the sum of the total accumulated landings of GB cod 
harvested by all NE multispecies vessels

[[Page 7031]]

for the same time period. Based upon the 23 prospective members (and 
their associated GB cod landings history), the Fixed Gear Sector's 
share of the overall U.S. portion of the GB cod TAC would be 11.64 
percent, or 899,869 lb (408 mt) (11.64 percent times the U.S portion of 
the fishery-wide GB cod target TAC of 7,729,408 lb (3,506 mt)). If 
prospective members of the Fixed Gear Sector are deemed ineligible to, 
or decide not to, participate in the Fixed Gear Sector after the 
publication of this proposed rule and prior to a final decision by the 
Regional Administrator, it is possible that the total number of 
participants in the Fixed Gear Sector and the TAC for the Fixed Gear 
Sector may be reduced from the numbers above, but no additional members 
may join the Fixed Gear 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 Fixed Gear Sector Manager to issue stop fishing orders to members 
of the Fixed Gear Sector. 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 Fixed Gear 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. 
Participating vessels would be required to land fish only in designated 
landing ports and would be required to provide the Fixed Gear Sector 
Manager with a copy of the vessel trip report (VTR) within 48 hr of 
offloading. Dealers purchasing fish from participating vessels would be 
required to provide the Fixed Gear Sector Manager with a copy of the 
dealer report on a weekly basis. On a monthly basis, the Fixed Gear 
Sector Manager would transmit to NMFS aggregate catch data from dealer 
slips and aggregate discard data from the VTRs. After 90 percent of the 
Fixed Gear Sector's allocation has been harvested, the Fixed Gear 
Sector Manager would be required to provide NMFS with aggregate reports 
on a weekly basis. A total of 1/12 of the Fixed Gear Sector's GB cod 
TAC 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 Fixed Gear 
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, handgear, 
or sink gillnets. Participating Fixed Gear Sector vessels could use an 
unlimited number of hooks in the Sector Area and would be exempt from 
the GB Seasonal Closure Area when using hook gear. All of these 
exemptions were approved for FY 2006 and FY 2007.
    The EA prepared for the Fixed Gear Sector's operations concludes 
that the biological impacts of the Fixed Gear Sector will be positive 
because the hard TAC and the use of DAS would provide two means of 
restricting both the landings and effort of the Fixed Gear Sector. 
Implementation may have a positive impact on essential fish habitat and 
bycatch if the Fixed Gear Sector's quota is caught prior to the end of 
the fishing year by reducing the amount of time that gear would be in 
the water. The analysis of economic impacts of the Fixed Gear Sector 
concludes that the members would realize higher economic returns if the 
Fixed Gear Sector is implemented. The EA asserts that fishing in 
accordance with the sector contract rules enables more efficient 
harvesting of GB cod than would be possible if the participating 
vessels were fishing in accordance with the common pool (non-sector) 
rules. The social benefits of the Fixed Gear Sector would accrue to 
sector members, as well as the Chatham, MA, and Harwichport, MA, 
communities, which are more dependent upon groundfish revenues as a 
percentage of fishery-derived landings than many other communities. The 
EA concludes that the self-governing nature of the Fixed Gear Sector 
and the member's opportunity to develop rules governing the way in 
which they harvest their GB cod TAC enables stewardship of the cod 
resource by the Fixed Gear Sector. The cumulative impacts of the Fixed 
Gear Sector are expected to be positive due to a positive biological 
impact, potential positive impact on habitat, and a positive social and 
economic impact. In contrast, the cumulative impact of the no action 
alternative is estimated to be neutral, with negative social and 
economic impacts.
    Should the Regional Administrator approve the sector contract as 
proposed, a Letter of Authorization would be issued to each member of 
the Fixed Gear Sector exempting them, conditional upon their compliance 
with the sector contract, from the GB cod possession restrictions, the 
3,600-hook limit in the GB RMA, the 2,000-hook limit in the GOM and SNE 
RMAs, and the GB Seasonal Closure Area (when using hook gear), as 
specified in Sec. Sec.  658.86(b)(2), 648.80(a)(4)(v), 648.80(a)(3)(v), 
648.80(b)(2)(v), and 648.81(g), respectively.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this proposed rule is 
consistent with the Northeast Multispecies FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    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 prospective Fixed Gear Sector 
members, are considered to be small entities because gross sales by any 
one entity (vessel) do not exceed this threshold, and, therefore there 
is no disproportionate impact between large and small entities. While 
an entity may own multiple vessels, available data make it difficult to 
determine which vessels may be controlled by a single entity. For this 
reason, each vessel is treated as a single entity for purposes of size 
determination and impact assessment. All permitted and participating 
vessels in the groundfish fishery, including prospective Fixed Gear 
Sector members, are considered to be small entities because gross sales 
by any one entity (vessel) do not exceed this threshold. The number of 
prospective participants in the Fixed Gear Sector is 23, substantially 
less than

[[Page 7032]]

the total number of active vessels in the groundfish fishery. Only 
these 23 vessels would be subject to the regulatory exemptions and 
operational restrictions proposed for the Fixed Gear Sector for FY 
2009.

Economic Impacts of the Proposed Action

    The proposed alternative would allocate a GB cod TAC of 408 mt to 
the Fixed Gear Sector. Once the GB cod TAC is harvested, participating 
vessels would not be allowed to fish under a NE multispecies DAS, 
possess or land GB cod, or other regulated species managed under the NE 
multispecies FMP, or use gear capable of catching groundfish (unless 
fishing under recreational or charter/party regulations). Vessels 
intending to fish in the Fixed Gear Sector during FY 2009 may only fish 
with hook gear or sink gillnets. Under the proposed operations plan, 
members would be exempt from several restrictions of the FMP described 
in the preamble to this proposed rule and in the EA.
    The Fixed Gear 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.
    Cod, skate wings, and monkfish comprised the largest proportion of 
Fixed Gear Sector landings (40.70 percent, 23.62 percent, and 9.78 
percent respectively, in FY 2007). During FY 2007, members of the Fixed 
Gear Sector made 632 trips, landed 721,315 lb (327,183 kg) of cod, 
418,679 lb (189,910 kg) of skate wings, 173,270 lb (78,594 kg) of whole 
monkfish, and 20,209 lb (9,167 kg) of monkfish tails, and generated 
approximately $ 1,348,859; $ 230,273; $ 344,807; and $ 62,648 in 
revenue from those species, respectively (assuming dockside prices of $ 
1.87, $ 0.55, $ 1.99, and $ 3.10 per lb [$ 4.11, $ 1.21, $ 4.38 and $ 
6.82 per kg], respectively). Fixed Gear Sector members also landed 
various other species, which increased their 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). 
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 trip limits and limits on the number of hooks 
fished. Two hundred seventy-three of the Fixed Gear Sector's 632 trips 
(43 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 349,705 lb (158,624 kg) 
(46 percent of the Fixed Gear Sector's FY 2007 cod landings) being 
landed, rather than discarded. For some vessel owners in the Fixed Gear 
Sector, participation in the Fixed Gear 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 Fixed Gear Sector developed 
the proposed operations plan after consultation with prospective 
members. Prospective members then signed a binding sector contract to 
abide by the measures specified in the proposed operations plan. As 
described above, the proposed operations plan minimizes economic 
impacts to participating vessels by allowing them to operate more 
efficiently. Accordingly, the proposed operations plan reflects the 
management measures preferred by vessels participating in the Fixed 
Gear Sector during FY 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 2009 Fixed Gear Sector 
operations plan is disapproved and no modified operations plan is 
submitted. While the Fixed Gear Sector would remain implemented under 
the FMP, under the No Action Alternative, the Fixed Gear 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 FMP.
    Because cod usually represents a high proportion of total fishing 
income for Cape Cod-based fixed 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 Fixed Gear Sector vessels would 
experience revenue losses in comparison to the proposed action. It is 
more likely under the No Action alternative that disruption to the 
Chatham/Harwichport communities would occur.

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

    This proposed rule contains no collection-of-information 
requirement subject to the Paperwork Reduction Act.
    Regulations under the Magnuson-Stevens Fishery Conservation and 
Management Act require publication of this notification to provide 
interested parties the opportunity to comment on proposed sector 
operations plans and TAC allocations.

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

    Dated: February 6, 2009.
Samuel D. Rauch,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E9-3060 Filed 2-11-09; 8:45 am]
BILLING CODE 3510-22-S