[Federal Register Volume 74, Number 70 (Tuesday, April 14, 2009)]
[Rules and Regulations]
[Pages 17107-17111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8508]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 090123054-9591-02 ]
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: 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) 2009 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 Adjustment 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 2009-2010 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 2009 and allocation of 503.8 mt of GB cod 
to the Fixed Gear Sector.

DATES: Effective May 1, 2009, through April 30, 2010.

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, 55 Great Republic Drive, Gloucester, MA 01930. These 
documents are also accessible via the Federal eRulemaking Portal: 
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Melissa Vasquez, Fishery Management 
Specialist, phone (978) 281-9166, fax

[[Page 17108]]

(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 February 12, 2009, (74 FR 7029) with public comment 
accepted through February 27, 2009. The Regional Administrator approved 
the FY 2009 Sector Operations Plan, after review of the public 
comments, and based on a determination that the Operations Plan and 
Agreement are consistent with the goals of the FMP and applicable law 
and are 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 2009 Sector 
Agreement are contained in the proposed rule. An EA entitled ``Georges 
Bank Cod Fixed Gear Sector: An Environmental Assessment,'' which 
analyzes the impacts of the proposed Fixed Gear Sector operations, was 
also prepared and is available to the public (see ADDRESSES).
    On January 16, 2009, NMFS published a proposed interim action (74 
FR 2959) that proposed measures intended to reduce overfishing on 
certain groundfish stocks. The proposed rule soliciting public comment 
on the Sector Agreement for the Fixed Gear Sector referenced three 
proposed interim measures that would impact operations of the Fixed 
Gear Sector: A 3,506-mt overall U.S. GB cod TAC; an expanded Gulf of 
Maine (GOM) differential Day-at-Sea (DAS) counting area that overlaps 
the GB Cod Hook Sector Area (Hook Sector Area); and elimination of the 
current prohibition on leasing DAS between sector vessels and non-
sector vessels. On April 13, 2009, NMFS published a temporary final 
rule that differs from the proposed interim rule. This final rule 
approving the Fixed Gear Sector's FY 2009 Sector Operations Plan 
incorporates the changes implemented by the temporary final rule.
    The Fixed Gear Sector was authorized to fish in FYs 2006, 2007, and 
2008, and, based upon the GB cod landings history of its members, was 
allocated <1.0, 10.7, and 14.0 percent, respectively, of the annual GB 
cod TACs.
    The 2009 Fixed Gear Sector Agreement contains the same elements and 
exemptions as the 2008 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 
historical 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 DAS, possess or land GB cod or other 
regulated species managed under the FMP (regulated species), or use 
gear capable of catching groundfish (unless fishing under charter/party 
or recreational regulations). Should the hard TAC be exceeded, the 
Sector's allocation in the following year will be reduced by an amount 
equivalent to the overharvest.
     The FY 2009 Sector Agreement contains exemptions from the 
following restrictions of the FMP: The GB cod trip limit; the GOM, GB, 
and Southern New England (SNE) limits 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 23 Fixed Gear Sector members signed the FY 2009 Fixed 
Gear Sector Contract. The GB cod TAC calculation is based upon the 
historical 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 11.64 percent, or 1,110,689 
lb (503.8 mt) (11.64 percent times the fishery-wide U.S. portion of the 
GB cod target TAC of 9,541,607 lb (4,328 mt)). This is a larger TAC 
than the 408-mt TAC contained in the proposed rule for this action 
because the temporary final rule implements a 4,328-mt U.S. share of 
the GB cod target TAC rather than the 3,506-mt target TAC previously 
proposed.
     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. 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, as 
defined under Sec.  648.87, and are exempt from the GB Seasonal Closure 
Area during May.

Comments and Responses

    Seven comments were received that addressed this action. Four 
comments were from commercial fishing industry groups, one from an 
environmental organization, one from the New England Fishery Management 
Council (Council), and one from an individual. Six of the commenters 
supported approval of the operations plan and no commenters opposed it.
    Comment 1: The Fixed Gear Sector, GB Cod Hook Sector (Hook Sector), 
and Cape Cod Commercial Hook Fishermen's Association (CCCHFA) each 
commented that the FY 2009 GB cod TAC reduction proposed in the 
Secretarial interim action will likely

[[Page 17109]]

result in an early end to the fishing year for the Fixed Gear Sector. 
All three recommended allowing the existing sectors to transfer or 
lease cod quota in FY 2009 to mitigate the impact of the proposed TAC 
reduction, and suggested that the proposed interim reduction in DAS and 
the proposed SNE Closure Area would minimize additional mortality on 
associated stocks of concern.
    Response: This action allocates a larger GB cod TAC to the Fixed 
Gear Sector than was proposed because the temporary final rule 
implements a 4,328-mt U.S. share of the GB cod target TAC rather than 
the 3,506-mt target TAC previously proposed. However, this is still a 
reduction from FY 2008. The proposed FY 2009 Operations Plan and 
Agreement did not contain provisions for quota transfers or leases 
between existing sectors and, thus, the Council and public have not had 
an opportunity to comment on such measures. Further, the EA contains no 
analysis of quota transfers or leases. Because the public has not had 
opportunity to consider allowing quota transfers and leases among the 
existing sectors, nor review an analysis of this measure, quota 
transfers and leases are not authorized under this action.
    Comment 2: The GB cod TAC proposed for allocation to the Fixed Gear 
Sector was based on the 3,506-mt U.S. fishery-wide GB cod target TAC 
published in the proposed interim action. In a comment on the proposed 
rule, the Council asserted that the GB cod TAC proposed to be allocated 
to the Fixed Gear Sector was incorrectly based on the estimated TAC for 
the entire GB cod stock, including the portion of that TAC that is 
caught by Canadian vessels in Canadian waters (1,173 mt for 2009). The 
Council stated that the Fixed Gear Sector's GB cod TAC should be based 
on 2,333 mt (3,506 mt -- 1,173 mt).
    Response: The 3,506-mt figure was correct, and was based on the 
4,679-mt estimated TAC for the entire GB cod stock (4,679 mt - 1,173 
mt) that was proposed for FY 2009. Accordingly, the Fixed Gear Sector 
TAC was correct as proposed. However, this action allocates a larger GB 
cod TAC (503.8 mt) to the Fixed Gear Sector than was proposed (408 mt) 
because the temporary final rule implements a 4,328-mt U.S. share of 
the GB cod target TAC rather than the 3,506-mt target TAC previously 
proposed.
    Comment 3: The Hook Sector, Fixed Gear Sector, CCCHFA, 
Environmental Defense Fund, Midcoast Fishermen's Association and Island 
Institute; and one individual supported the approval of the Fixed Gear 
Sector's FY 2009 Operations Plan and Agreement. These comments each 
stated that the operations of the Fixed Gear Sector have reduced 
discards of GB cod, increased accountability, and improved 
profitability for members.
    Response: NMFS agrees and has approved the FY 2009 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 3,600-hook limit in the 
GB Regional Management Area (RMA), the 2,000-hook limit in the GOM and 
SNE RMAs, the GB Seasonal Closure Area when using hook gear, and the GB 
cod possession restrictions as specified in Sec. Sec.  648.80, 648.81, 
and 648.86, 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, 2009, 
Fixed Gear Sector members exemptions from the following regulations 
implementing the FMP:
    1. 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.
    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 2009, the Fixed Gear 
Sector must submit an Operations Plan and Sector Contract to the 
Regional Administrator for approval. The Fixed Gear Sector submitted 
its FY 2009 Operations Plan on September 30, 2008, followed by signed 
Sector Contracts on October 1, 2008, and an EA on November 14, 2008. On 
January 16, 2009, NMFS published a proposed interim action that 
proposed measures intended to reduce overfishing on certain groundfish 
stocks, based on a new benchmark stock assessment completed in August 
2008. Three of the proposed interim measures would have impacted 
operations of the Fixed Gear Sector: A 3,506-mt overall U.S. GB cod 
TAC; an expanded Gulf of Maine Differential DAS counting area that 
overlaps the Hook Sector Area; and elimination of the current 
prohibition on leasing DAS between sector vessels and non-sector 
vessels. NMFS also published a proposed rule soliciting comment on the 
proposed Operations Plan of the Fixed Gear Sector on February 12, 2009, 
and specifically solicited comment on the interaction of the proposed 
interim action and the proposed sector operations. The comment period 
on the proposed sector operations plan ended on February 27, 2009. On 
April 13, 2009, NMFS published a temporary final rule that differs from 
the proposed interim rule. The Regional Administrator approved the FY 
2009 Sector Operations Plan, after review of the public comments and a 
determination that the Operations Plan and Agreement are consistent 
with the goals of the FMP and applicable law, and are in compliance 
with the regulations governing the development and operation of a 
sector as specified under Sec.  648.87.
     Implementation of the Sector Operations Plan is meant to mitigate 
adverse economic impacts that resulted from Amendment 13 and FW 42 to 
the FMP by granting exemptions to the Fixed Gear Sector. 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, 2009. Delaying the 
implementation beyond May 1, 2009, 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

[[Page 17110]]

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 2008 are currently operating under the exemptions above. 
Delaying implementation beyond May 1, 2009, 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 is exempt from the procedures of Executive Order 
(E.O.) 12866 because this action contains no implementing regulations. 
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.
     NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), prepared this FRFA in support of the 2009 GB Cod Fixed Gear 
Sector Operations Plan and allocation of GB cod TAC. The FRFA 
incorporates the economic impacts identified in the Initial Regulatory 
Flexibility Analysis (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 objectives of, and the legal basis for, this rule are 
contained in the preamble to this rule, as well as in sections 1.0, 
2.0, and 3.0 of the EA prepared for this action, which 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 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 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.

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.

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

    This action allocates a GB cod TAC of 503.8 mt to the Fixed Gear 
Sector. Once the GB cod TAC is harvested, participating vessels will 
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). Vessel owners 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 will 
be exempt from several restrictions of the FMP described in the 
preamble to this 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 and communities. 
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.
    In contrast, under the No Action Alternative, the Fixed Gear Sector 
members would have remained in the common pool and fished under the 
regulations implemented in Amendment 13 and subsequent actions. 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

[[Page 17111]]

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 and Harwichport communities would occur. A 
copy of this analysis is available from NMFS (see ADDRESSES).
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to Fixed Gear Sector members that 
also serves as a small entity compliance guide (the guide) was 
prepared. Copies of this final rule are available from the Regional 
Administrator. The guide and this final rule will be available upon 
request.

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

    Dated: April 8, 2009.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. E9-8508 Filed 4-13-09; 8:45 am]
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