[Federal Register Volume 74, Number 171 (Friday, September 4, 2009)]
[Proposed Rules]
[Pages 45798-45801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21404]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0907281181-91191-01]
RIN 0648-AX93


Fisheries of the Northeastern United States; Modification to the 
Gulf of Maine/Georges Bank Herring Midwater Trawl Gear Authorization 
Letter

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

ACTION:  Proposed rule; request for comments.

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SUMMARY:  NMFS proposes modifications to the requirements for

[[Page 45799]]

midwater trawl vessels issued All Areas and/or Areas 2 and 3 Atlantic 
herring limited access permits fishing in Closed Area I (CA I). In 
order to fish in CA I, midwater trawl vessels with these permits would 
be required to carry a NMFS-approved observer and to bring the entire 
catch aboard the vessel, unless specific conditions are met, so that it 
is available to the observer for sampling. These proposed changes to 
the Gulf of Maine/Georges Bank (GOM/GB) Herring Midwater Trawl Gear 
Letter of Authorization (LOA) would be effective indefinitely, until 
changed by a subsequent action.

DATES:  Written comments must be received no later than 5 p.m. local 
time on September 21, 2009.

ADDRESSES:  You may submit comments, identified by 0648-AX93, 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, 55 Great Republic Drive, Gloucester, MA 01930-2276. Mark the 
outside of the envelope: ``Modification to GOM/GB Midwater Trawl LOA.''
     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 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). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF formats only.

FOR FURTHER INFORMATION CONTACT:  Douglas Potts, Fishery Policy 
Analyst, (978) 281-9341, fax (978) 281-9135.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to the Northeast Regional Office and by 
e-mail to [email protected], or fax to (202) 395-7285

SUPPLEMENTARY INFORMATION:

Background

    The New England Fishery Management Council (Council) voted at its 
April 8, 2009, Council meeting to request that the NMFS Northeast 
Regional Administrator modify the GOM/GB Herring Midwater Trawl Gear 
LOA to require midwater trawl vessels fishing in CA I to have 100-
percent observer coverage; be prohibited from slipping codends (the 
practice of opening the codend of the net and releasing the catch 
before all of it is brought on board); and be required to pump aboard 
the vessel all fish caught, to allow sampling by the observer.
    The final rule implementing Framework Adjustment 18 (FW 18) to the 
Northeast (NE) Multispecies Fishery Management Plan (FMP) (63 FR 7727, 
February 17, 1998) authorized midwater trawl vessels to fish in the 
groundfish year-round closed areas with specific conditions regarding 
bycatch of regulated multispecies. The FW 18 implementing regulations 
(Sec.  648.81(a)(2)(iii)), grant the Regional Administrator the 
authority to place restrictions and conditions in the LOA if it is 
determined that the bycatch of regulated multispecies in the groundfish 
closed areas exceeds, or is likely to exceed, 1 percent of herring and 
mackerel harvested, by weight, in the fishery or by any individual 
fishing operation. Recent analysis of at-sea observer data, presented 
by NMFS at the April 8, 2009, Council meeting, demonstrated that the 
bycatch of regulated multispecies in groundfish CA I exceeded 1 percent 
of herring caught on at least two individual fishing trips between May 
2004 and October 2008. Based on this information, the intent of the 
Council's motion is to collect additional information on bycatch by the 
midwater trawl directed herring fishery in CA I to determine whether 
revisions should be made to the exemption allowing these vessels to 
fish in groundfish closed areas.
    Therefore, based on the authority granted in the regulation cited 
above, in combination with section 402(a) of the Magnuson-Stevens Act, 
which allows NMFS to implement information collections or observer 
programs if additional information is necessary to monitor a fishery 
management plan, NMFS proposes to implement the Council's 
recommendation by adding language to the existing LOA to prohibit 
midwater trawl vessels with All Areas and/or Areas 2 and 3 limited 
access Atlantic herring permits from fishing in CA I without a NMFS-
approved at-sea observer aboard. The LOA would also stipulate that such 
vessels, while operating in CA I, would be prohibited, except under 
certain circumstances, from releasing fish from the net before all of 
the catch has been pumped aboard and made available to the observer for 
sampling.
    Starting in 2005 with FW 40-B to the NE Multispecies FMP (70 FR 
31323, June 1, 2005), vessels in the directed herring fishery (those 
permitted to land 500 mt of herring or more) have been required to 
notify NMFS at least 72 hr prior to departing on a herring trip into 
the GOM/GB Exemption Area, to facilitate observer deployment. In 2006, 
FW 43 to the NE Multispecies FMP (71 FR 46871, August 15, 2006) 
instituted a bycatch allowance of regulated groundfish for vessels in 
the directed herring fishery. Based on the precedent set in these 
previous Council actions, the measures proposed by this action would 
apply to vessels in the directed herring fishery, specifically those 
with All Areas and/or Areas 2 and 3 limited access Atlantic Herring 
permits.

Observer Provisions

    This proposed rule would require vessels using midwater trawl gear 
in the directed herring fishery to indicate their intention to fish in 
CA I when scheduling an observer through the Northeast Fishery Observer 
Program. This notification is intended to allow NMFS to ensure an 
observer is deployed on all vessels that intend to fish in CA I with 
midwater trawl gear. To ensure 100-percent observer coverage, midwater 
trawl vessels would not be permitted to fish in CA I without an 
observer.

Slipped Codend Provisions

    NMFS proposes that midwater trawl vessels in the directed herring 
fishery, that have indicated an intention to fish in CA I, and that 
have been assigned a NMFS-approved at-sea observer, would be 
prohibited, unless specific conditions are met, from releasing (i.e., 
slipping) fish from the codend of the net, transferring fish to another 
vessel that is not carrying a NMFS-approved observer, or otherwise 
discarding fish at sea, unless the fish have first been brought aboard 
the vessel and made available for sampling and inspection by the 
observer. Even if such a vessel did not fish an entire trip inside of 
CA I, it would be required to comply with these requirements for the 
entire trip to ensure that maximum amount of information is obtained.
    NMFS recognizes that there are certain conditions under which fish 
must be released from the codend without being sampled. Therefore, this 
provision is not intended to limit the

[[Page 45800]]

discretion of the captain to regulate the stability of the vessel in 
adverse sea conditions, and the operator would be permitted to dump 
fish if bringing them aboard the vessel could compromise the safety of 
the vessel or her crew. In addition, mechanical failure of the pump may 
preclude bringing some or all of a catch aboard the vessel. That part 
of the catch that could not be pumped aboard because of mechanical 
failure could be released. Mechanical or safety problems of sufficient 
magnitude to warrant slipping a codend would require termination of the 
fishing trip and the vessel's return to port. This requirement is 
designed to help ensure that safety or mechanical justifications for 
slipping a codend are not used as a false pretext to avoid sampling.
    NMFS recognizes that species composition in the catch, specifically 
a high concentration of spiny dogfish, can cause the fish pump to clog, 
slowing the pump-out process and potentially damaging the rest of the 
catch. Therefore, NMFS proposes allowing fish to be released unsampled 
if spiny dogfish are determined to comprise more than 50 percent of the 
catch, by weight. Pumping operations would have to be started so that 
the observer could determine that the quantity of spiny dogfish in the 
catch is sufficient to make pumping the remainder of the catch nearly 
impossible. A vessel would not be required to end the trip following a 
slipped codend due to a high concentration of spiny dogfish.
    If a codend is slipped, the vessel operator would be required to 
sign an affidavit to NOAA's Office of Law Enforcement (OLE) attesting 
to the specific reason for the release, and a good-faith estimate of 
both the total weight of fish caught and the weight of fish released. 
Completed and signed affidavits would be sent to OLE at the conclusion 
of the trip. Slipped codends for which an affidavit has been completed 
and signed, citing one of the exemptions mentioned above, would be 
presumed to be in accordance with the regulations unless a 
preponderance of the evidence demonstrates otherwise.
    Representatives of the commercial midwater trawl industry have 
asserted that short duration tows, or ``test tows,'' used to check the 
abundance of target and bycatch species in an area should not be 
required to be pumped aboard. Because the purpose of this proposed 
expansion of the information collection program is to increase the 
understanding of the bycatch of this fishery in CA I, it is necessary 
to collect information on bycatch in all tows made by midwater trawl 
vessels in CA I. However, the proposed regulations would not require a 
vessel to pump out the catch from a test tow if the net is simply reset 
without releasing the catch. In this circumstance, the catch from the 
test tow would remain in the codend and would be available to the 
observer to sample when the subsequent tow is pumped out. In addition, 
fish that a vessel would normally discard because of regulatory, 
market, or other factors, could be discarded, but only after being 
brought on board and sampled by the observer.

Request for Comments

    The public is invited to comment on any of the measures proposed in 
this proposed rule. NMFS is especially interested in receiving comments 
on proposed measures regarding the requirement for vessels to end a 
trip after a codend is slipped due to safety concerns or mechanical 
failure. Additionally, comment is specifically sought on whether or not 
50 percent is the appropriate level of spiny dogfish bycatch at which 
to allow a codend to be released. Comment is also sought regarding how 
much of the catch should be pumped to determine the level of dogfish 
bycatch, in order to justify slipping the codend and releasing the 
remainder of the tow without being sampled by the observer.

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 Atlantic Herring and NE Multispecies FMPs, other 
provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The NMFS Northeast Regional Administrator has determined that this 
proposed rule is a minor technical addition, correction, or change to a 
management plan and is therefore categorically excluded from the 
requirement to prepare an Environmental Impact Statement or equivalent 
document under the National Environmental Policy Act.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
This amendment does not significantly affect the practices of any 
fishing operation. It increases the rate of at-sea fishery observer 
coverage to 100 percent for midwater trawl vessels fishing in CA I. 
Sufficient observer sea-days have been allocated to this program to 
cover the expected fishing effort by midwater trawlers in CA I in the 
next fishing year. If the Northeast Fishery Observer Program is unable 
to provide an observer for a vessel that indicates an intention to fish 
in CA I, the vessel may still fish, but would be prohibited from 
fishing inside CA I on that trip. The rule also stipulates that, during 
trips when a vessel has indicated an intention to fish in CA I, the 
codend of the net may not be slipped and all fish must be pumped aboard 
the vessel, unless specific conditions are met. For example, exceptions 
would be made for a vessel if pumping out the net is not possible due 
to concerns for vessel safety, mechanical problems, or a high 
concentration of spiny dogfish. Currently, very few midwater trawl 
trips fish in CA I on an annual basis, and vessels that do not receive 
an observer are still able to fish in any other areas open to this 
gear. As a result, an initial regulatory flexibility analysis is not 
required and none has been prepared.
    This proposed rule contains one new collection-of-information 
requirement subject to review and approval by OMB under the Paperwork 
Reduction Act (PRA). The observer notification of a vessel's intention 
to fish in CA I will be added to the information collection for the 
Herring Vessel Observer Program Notification, which has been approved 
by OMB under control number 0648-0202. The public reporting burden for 
the Herring Vessel Observer Program Notification will not change, and 
is estimated to average 2 min per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. The new collection-of-information 
requirement pertaining to the slipped codend exemption affidavit has 
been submitted to OMB for approval. The public reporting burden for 
completion of the slipped codend exemption affidavit is estimated to 
average 5 min per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and

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clarity of the information to be collected; and ways to minimize the 
burden of the collection of information, including through the use of 
automated collection techniques or other forms of information 
technology. Send comments on these or any other aspects of the 
collection of information to NMFS at the ADDRESSES above, and e-mail to 
[email protected], or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: August 31, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out 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.  648.14, add paragraphs (r)(2)(v), (r)(2)(vi), and 
(r)(2)(vii) to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (r) * * *
    (2) * * *
    (v) Fish with midwater trawl gear in Closed Area I, as specified at 
Sec.  648.81(a), without a NMFS approved observer onboard, if the 
vessel holds an All Areas Limited Access Herring Permit and/or an Areas 
2 and 3 Limited Access Herring Permit.
    (vi) Release fish from the codend of the net, transfer fish to 
another vessel that is not carrying a NMFS-approved observer, or 
otherwise discard fish at sea before bringing the fish aboard and 
making it available to the observer for sampling, unless subject to one 
of the exemptions as defined at Sec.  648.80(d)(7)(ii), if the vessel 
has expressed an intention to fish in Closed Area I, as detailed at 
Sec.  648.80(d)(5) and is carrying an observer.
    (vii) Fail to complete, sign, and submit an affidavit if fish are 
released pursuant to the exemptions detailed at Sec.  648.80(d)(7)(ii).
* * * * *
    3. In Sec.  648.80, revise paragraph (d)(5) and add paragraph 
(d)(7) to read as follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

* * * * *
    (d) * * *
    (5) To fish for herring under this exemption, vessels issued an All 
Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit must provide notice of the following information 
to NMFS at least 72 hr prior to beginning any trip into these areas for 
the purposes of observer deployment: Vessel name; contact name for 
coordination of observer deployment; telephone number for contact; the 
date, time, and port of departure; and whether the vessel intends to 
engage in fishing in Closed Area I, as defined in Sec.  648.81(a), at 
any point in the trip; and
* * * * *
    (7) Fishing in Closed Area I. (i) No vessel issued an All Areas 
Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access 
Herring Permit may fish in, or possess or land fish from, Closed Area I 
with pelagic midwater trawl gear unless it has declared its intent to 
fish in Closed Area I as required by paragraph (d)(5) of this section, 
and is carrying a NMFS-approved observer.
    (ii) No vessel issued an All Areas Limited Access Herring Permit 
and/or an Areas 2 and 3 Limited Access Herring Permit that has declared 
its intent to fish with pelagic midwater trawl gear in Closed Area I, 
in accordance with paragraph (d)(5) of this section, and is carrying a 
NMFS-approved observer, may release fish from the codend of the net, 
transfer fish to another vessel that is not carrying a NMFS-approved 
observer (e.g. an Atlantic herring at-sea processing vessel or an 
Atlantic herring carrier vessel), or otherwise discard fish at sea, 
unless the fish has first been brought aboard the vessel and made 
available for sampling and inspection by the observer, except in the 
following circumstances:
    (A) The vessel operator has determined, and the preponderance of 
available evidence indicates that, there is a compelling safety reason; 
or
    (B) That mechanical failure of the fish pump precludes bringing the 
fish aboard the vessel for inspection; or,
    (C) After pumping of fish onto the vessel has begun, the vessel 
operator determines that spiny dogfish comprise at least 50 percent, by 
weight, of the catch, and observer sampling demonstrates that spiny 
dogfish comprise at least 50 percent, by weight, of the sampled catch.
    (iii) If fish are released prior to being brought aboard the vessel 
due to any of exceptions detailed in paragraphs (d)(7)(ii)(A) through 
(C) of this section, the vessel operator shall make all reasonable 
efforts to assist the observer in identifying the reason for the 
release; the total weight of fish caught, and the weight of fish 
released, and shall sign an affidavit attesting to this information. 
Further, if fish are discarded prior to being inspected by the 
observer, for either safety or mechanical reasons, as detailed in 
paragraphs (d)(7)(ii)(A) or (B) of this section, the vessel must end 
the trip and return to port without making additional tows.
* * * * *
[FR Doc. E9-21404 Filed 9-3-09; 8:45 am]
BILLING CODE 3510-22-S