[Federal Register Volume 74, Number 244 (Tuesday, December 22, 2009)]
[Proposed Rules]
[Pages 68015-68027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30386]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0912081429-91430-01]
RIN 0648-XS55


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; 2010 Sector Operations 
Plans and Contracts, and Allocation of Northeast Multispecies Annual 
Catch Entitlements

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

ACTION: Proposed rule; request for comments.

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SUMMARY: Amendment 13 to the Northeast (NE) Multispecies Fishery 
Management Plan (FMP) established a process for the formation of 
sectors and for annual NMFS Northeast Regional Administrator approval 
of proposed sector operations. Proposed Amendment 16, currently under 
NMFS review, with an expected implementation date of May 1, 2010, if 
approved, would significantly revise sector allocation management 
measures and expand sector management by authorizing up to 19 sectors 
for fishing year (FY) 2010.
    Representatives from 17 sectors have submitted operations plans and 
sector contracts, and requested an allocation of stocks regulated under 
the FMP for FY 2010 at this time, in order to be timely considered for 
approval on a parallel track with the review of Amendment 16. NMFS 
received sector operations plans and contracts from the Northeast 
Fishery Sectors II through XIII, the Sustainable Harvest Sector, the 
Tri-State Sector, the Northeast Coastal Communities Sector, the Georges 
Bank (GB) Cod Fixed Gear Sector, and the Port Clyde Community 
Groundfish Sector. The intention of this action is to provide 
interested parties an opportunity to comment on the proposed 17 sector 
agreements for FY 2010 prior to final approval or disapproval of the 
operations plans. Because the approval and operation of these sector 
proposals are conditional on approval of proposed Amendment 16 
measures, final action regarding the approval of these proposals will 
not be made unless and until a final decision on Amendment 16 has been 
made.

DATES: Written comments must be received on or before January 21, 2010.

ADDRESSES: You may submit comments, identified by 0648-XS55, 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: William Whitmore.
     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. Mark the 
outside of the envelope: ``Comments on 2010 Sector Operations Plans and 
Contracts.''
    Instructions: All comments received are part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. No comments will be posted for public viewing until after the 
comment period has closed. 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 operations plans and contracts and 
supplemental environmental assessments (EA) are available from the NMFS 
NE Regional Office at the mailing address specified above. An Initial 
Regulatory Flexibility Analysis (IRFA) was prepared for this proposed 
rule and is comprised of the EAs, and the preamble and the 
Classification sections of this proposed rule.

FOR FURTHER INFORMATION CONTACT: William Whitmore, Sector Policy 
Analyst, phone (978) 281-9182, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: NMFS announces that the Administrator, NE 
Region, NMFS (Regional Administrator), has made a preliminary 
determination that 17 sector operations plans and

[[Page 68016]]

contracts, which were initially submitted to NMFS on September 1, 2009, 
are consistent with the goals of the FMP, as described in proposed 
Amendment 16 and other applicable laws, and are in compliance with the 
proposed measures that would govern the development and operation of a 
sector as specified in Section 4.2.3 of the Amendment 16 Final 
Environmental Impact Statement (FEIS).

Background

    The final rule implementing Amendment 13 (69 FR 22906, April 27, 
2004) specified a process for forming sectors within the NE 
multispecies fishery, implemented restrictions applicable to all 
sectors, and authorized allocation of a total allowable catch (TAC) for 
specific groundfish species to a sector. As approved in Amendment 13, 
sector operations plans and contracts must contain certain elements, 
including a contract signed by all sector participants and an 
operations plan containing rules that sector members agree to abide by 
to avoid exceeding their sector TAC. An environmental assessment (EA), 
or other appropriate analysis, must be prepared for each sector that 
analyzes the individual and cumulative impacts of all proposed sector 
operations. Additionally, the public must be provided an opportunity to 
comment on each proposed sector operations plan, sector contract, and 
EA. The regulations require that, upon completion of the public comment 
period, the Regional Administrator must make a determination regarding 
approval of the sectors operations plans and contracts.
    While Amendment 13 implemented the GB Cod Hook Sector in 2004, and 
Framework Adjustment (FW) 42 (71 FR 62156, October 23, 2006) 
implemented the GB Cod Fixed Gear Sector in 2006, Amendment 16, as 
proposed, would revise and expand the rules for these two existing 
sectors and authorize an additional 17 new sectors, including the 
Northeast Fishery Sectors II through XIII, the Sustainable Harvest 
Sector, the Tri-State Sector, the Northeast Coastal Communities Sector, 
and the Port Clyde Community Groundfish Sector. Because the approval 
and operation of these sector proposals are conditional on approval of 
measures proposed in Amendment 16, final action regarding the approval 
of these proposals will not be made unless and until a final decision 
on Amendment 16 has been made.
    Representatives from 17 of the 19 sectors proposed in Amendment 16 
have submitted operations plans and sector contracts, and requested an 
allocation of stocks regulated under the FMP for FY 2010. As currently 
proposed, one of these 17 sectors, Northeast Fishery Sector IV, would 
operate as a lease-only sector. Neither the GB Cod Hook Sector nor 
Northeast Fishery Sector I chose to submit an operations plan and 
sector contract at this time. FY 2010 would be the first year of 
operation for 16 of the 17 sectors, if approved. Permit owners that 
have indicated their intent to participate in one of the proposed 17 
sectors account for 784 of the 1,480 eligible NE multispecies permit 
holders, representing approximately 95 percent of the historical 
commercial NE multispecies catch. Table 1 (below) includes permit 
owners who joined a sector as of September 1, 2009. The 784 permits 
specified above include additional permit owners who enrolled in a 
sector up through November 20, 2009. These permit owners have until 
April 30, 2010, to withdraw from a sector and fish in the common pool 
for FY 2010. Further, additional permit owners who wish to join a 
sector may be included in the final sector rule, provided that no 
significantly new analysis is needed and the general conclusions of the 
draft environmental documents remain unchanged. This proposed rule 
summarizes sector requirements as proposed in Amendment 16, details 
regulation exemptions requested by sectors, and summarizes the 
applicable environmental analyses. Comments on general sector 
provisions should be addressed to the Amendment 16 proposed rulemaking; 
comments on sector operations plans and EAs should be submitted for 
this rulemaking (see ADDRESSES).
    Amendment 16 defines a sector as ``[a] group of persons (three or 
more persons, none of whom have an ownership interest in the other two 
persons in the sector) holding limited access vessel permits who have 
voluntarily entered into a contract and agree to certain fishing 
restrictions for a specified period of time, and which has been granted 
a TAC(s) [sic] in order to achieve objectives consistent with 
applicable FMP goals and objectives.'' A sector's TAC is also referred 
to as an annual catch entitlement (ACE). Regional Administrator 
approval is required in order for the sectors to be authorized to fish 
and to be allocated an ACE for most stocks of regulated NE multispecies 
and ocean pout during each FY. Each individual sector's ACE for a 
particular stock would represent a share of that stock's annual catch 
limit (ACL) available to commercial NE multispecies vessels, based upon 
the potential sector contributions (PSC) of permits participating in 
that sector. Sectors are self-selecting, meaning each sector maintains 
the ability to choose its members. Sectors may pool harvesting 
resources and consolidate operations to fewer vessels, if they desire.

 Table 1--Summary of the Number of Permits, Members, Active Vessels, Gear Type, and Area Fished for the Proposed
                                                FY 2010 Sectors *
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                                                             Number of
             Sector                 Permits     Number of      active      Gear type fished     Regulated mesh
                                    enrolled     members      vessels                                areas
----------------------------------------------------------------------------------------------------------------
Northeast Fishery Sector II.....           75           22        20-25  90% trawl, 10%       GOM, GB, and
                                                                          gillnet.             southern NE.
Northeast Fishery Sector III....           74           30        25-30  5% trawl, 90%        GOM, GB, and
                                                                          gillnet, 5%          southern NE.
                                                                          longline.
Northeast Fishery Sector IV.....           47           12        10-15  Lease-only sector..  GOM, GB, and
                                                                                               southern NE.
Northeast Fishery Sector V......           39           12        10-15  90% trawl, 10%       Southern NE, GB.
                                                                          gillnet.
Northeast Fishery Sector VI.....           21           12        10-15  90% trawl, 10%       GOM, GB, and
                                                                          gillnet.             southern NE.
Northeast Fishery Sector VII....           25           12        10-15  90% trawl, 10%       GOM, GB, and
                                                                          gillnet.             southern NE.
Northeast Fishery Sector VIII...           22           22        20-25  90% trawl, 10%       GOM, GB, and
                                                                          gillnet.             southern NE.
Northeast Fishery Sector IX.....           44           22        20-25  90% trawl, 10%       GOM, GB, and
                                                                          gillnet.             southern NE.
Northeast Fishery Sector X......           33           22        20-25  90% trawl, 5%        GOM, GB, and
                                                                          gillnet, 5%          southern NE.
                                                                          longline.
Northeast Fishery Sector XI.....           47           22        20-25  10% trawl, 85%       Primarily GOM.
                                                                          gillnet, 5%
                                                                          longline.
Northeast Fishery Sector XII....           10           22        20-25  90% trawl, 10%       Primarily GOM.
                                                                          gillnet.

[[Page 68017]]

 
Northeast Fishery Sector XIII...           31           10        15-22  90% trawl, 10%       GOM, GB, and
                                                                          gillnet.             southern NE.
Fixed Gear Sector...............           88           54           35  75% gillnet, 20%     GOM, GB, and
                                                                          longline, 5% hook    southern NE.
                                                                          gear.
Sustainable Harvest Sector......           93           31           44  Trawl, gillnet,      GOM, GB, and
                                                                          hook and line,       southern NE.
                                                                          longlines **.
Port Clyde Sector...............           39           29           26  50% trawl, 50%       GOM.
                                                                          gillnet.
Tri-State Sector................           16           13           14  90% trawl, 10%       GOM, GB, and
                                                                          gillnet/trawl/       southern NE.
                                                                          longline.
Northeast Coastal Community                19           19           17  1 otter trawl, all   GOM, GB, and
 Sector.                                                                  others hook gear.    southern NE.
----------------------------------------------------------------------------------------------------------------
* The data in this table is from the sector operations plans and EAs submitted September 1, 2009, and is subject
  to change based on final sector rosters.
** No gear mix ratio was described in this sector's EA.

Sector ACEs

    Sectors can determine the percentage of each stock's ACL they will 
be allocated based on the PSC of each member's permit. As of November 
20, 2009, 784 of the 1,480 eligible NE multispecies permits, which 
would account for approximately 95 percent of the historical commercial 
NE multispecies landings during the qualifying period selected by the 
New England Fishery Management Council (Council) in Amendment 16, have 
enrolled in a sector. Permits enrolled in a sector, and the vessels 
associated with those permits, have until April 30, 2010, to withdraw 
from a sector and fish in the common pool for FY 2010. Table 2 details 
the ACE percentages each sector would receive according to their 
memberships as of November 20, 2009. Tables 3a and 3b detail the ACEs 
(in metric tons and tons) each sector would be allocated based on their 
November 20, 2009 sector rosters for FY 2010.5

[[Page 68018]]



                                               Table 2--Percentage (%) of the Proposed ACE Each Sector Would Receive by Stock for FY 2010*[dagger]
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                                                                                                                Southern
                                                                                                                   New
                                                                                GB      Cape cod/      GB       England/                                            GOM
                    Sector                     GOM cod   GB cod     GOM      haddock       GOM     yellowtail     Mid-      Pollock   Redfish   White    Plaice    winter   GB winter    Witch
                                                           **     haddock       **     yellowtail   flounder    Atlantic                         hake             flounder   flounder   flounder
                                                                                        flounder               yellowtail
                                                                                                                flounder
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Northeast Fishery Sector II..................    18.94     5.47      17.67      11.63       19.32        1.70        1.64     12.26     16.54     6.10     8.36      19.88       1.67      13.27
Northeast Fishery Sector III.................    15.95     1.18      11.43       0.17        9.01        0.05        0.40      6.82      1.14     4.51     4.30      10.89       0.03       2.96
Northeast Fishery Sector IV..................     8.65     4.71       6.72       5.42        7.20        2.16        2.68      5.65      6.46     7.97     9.24       7.63       0.71       9.28
Northeast Fishery Sector V...................     0.25     3.14       0.68       5.66        1.70        9.71       26.26      0.55      0.60     0.52     2.65       0.71       2.66       2.97
Northeast Fishery Sector VI..................     2.13     2.73       3.56       2.95        2.26        2.10        5.04      3.78      5.61     4.37     4.12       3.39       2.70       4.71
Northeast Fishery Sector VII.................     0.58     6.29       0.64       5.17        5.26       16.90        4.49      0.77      0.54     0.77     4.23       3.23      17.55       4.11
Northeast Fishery Sector VIII................     0.47     7.36       0.20       6.61        7.29       15.93        5.96      0.64      0.44     0.51     2.44       3.36      20.63       3.13
Northeast Fishery Sector IX..................     1.66    12.14       4.77      10.13        9.19       17.68        6.78      3.81      5.79     4.09     7.30       2.55      32.56       7.53
Northeast Fishery Sector X...................     4.39     0.83       2.12       0.68        9.71        1.34        1.24      1.41      0.56     0.91     1.29      12.19       0.68       1.93
Northeast Fishery Sector XI..................    13.68     0.40       3.23       0.04        2.21        0.00        0.01      9.28      1.88     4.85     1.87       2.13       0.00       1.86
Northeast Fishery Sector XII.................     1.55     0.05       0.51       0.00        0.59        0.00        0.04      0.14      0.07     0.11     0.45       0.45       0.02       0.34
Northeast Fishery Sector XIII................     0.76     7.40       0.60      13.61        3.17       14.15       10.52      2.22      4.54     1.81     3.40       1.59      10.16       4.50
Fixed Gear Sector............................     1.90    28.08       1.29       6.41        1.83        0.01        0.18      7.81      2.89     5.92     0.55       2.24       0.03       0.80
Sustainable Harvest Sector...................    16.55    15.28      36.15      28.40       10.37        7.42       10.70     35.73     47.47    43.44    35.70       6.75       6.56      31.50
Port Clyde Sector............................     4.77     0.21       2.32       0.05        1.07        0.00        0.65      4.35      2.56     4.63     6.42       2.06       0.01       4.43
Tri-State Sector.............................     2.23     1.11       5.60       1.84        4.79        5.41        0.55      1.29      1.05     5.66     3.64       7.49       1.64       3.34
Northeast Coastal Community Sector...........     0.51     0.16       0.25       0.12        0.46        0.84        0.53      0.46      0.48     0.90     0.24       0.47       0.07       0.27
All Sectors..................................    94.95    96.53      97.75      98.90       95.43       95.40       77.68     96.98     98.61    97.07    96.19      87.01      97.67      96.91
Common Pool..................................     5.05     3.47       2.25       1.10        4.57        4.60       22.32      3.02      1.39     2.93     3.81      12.99       2.33       3.09
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* The data in this table is based on signed roster contracts as of November 30, 2009.
** Eastern US/Canada cod and haddock percentages equal the PSC % of GB cod and GB haddock.
[dagger] Percentages have been rounded to the nearest hundredth of a percent in this table, but thousandths of a percent are used in calculating ACEs in metric tons and tons. In some cases,
  this table shows a sector allocated 0% of an ACE, but that sector is allocated a small amount of that stock.


                                                    Table 3a--Proposed ACE (in Metric Tons) Each Sector Would Receive by Stock for FY 2010 *
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                                                        Other           Eastern   Other     CC/GOM        GB        SNE/MA                                             GOM       GB
                Sector                   GOM   Eastern    GB     GOM       GB       GB    yellowtail  yellowtail  yellowtail   Pollock   Redfish   White    Plaice   winter    winter     Witch
                                         cod    GB cod   cod   haddock  haddock  haddock   flounder    flounder    flounder                         hake            flounder  flounder  flounder
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Northeast Fishery Sector II...........    865       19    169      146     1394     3308         150          17           5       337      1132      156      238        31        31       113
Northeast Fishery Sector III..........    728        4     36       94       20       48          70           0           1       187        78      115      122        17         1        25
Northeast Fishery Sector IV...........    395       16    146       55      650     1543          56          22           9       155       442      204      263        12        13        79
Northeast Fishery Sector V............     11       11     97        6      678     1610          13          97          87        15        41       13       75         1        49        25
Northeast Fishery Sector VI...........     97        9     84       29      354      840          18          21          17       104       384      112      117         5        50        40
Northeast Fishery Sector VII..........     26       21    194        5      620     1472          41         169          15        21        37       20      120         5       325        35
Northeast Fishery Sector VIII.........     21       25    228        2      792     1881          57         159          20        18        30       13       69         5       382        27
Northeast Fishery Sector IX...........     76       41    375       39     1215     2883          72         177          23       105       396      105      208         4       603        64
Northeast Fishery Sector X............    200        3     26       18       82      195          76          13           4        39        38       23       37        19        13        16
Northeast Fishery Sector XI...........    625        1     12       27        4       11          17           0           0       255       128      124       53         3         0        16
Northeast Fishery Sector XII..........     71        0      1        4        1        1           5           0           0         4         5        3       13         1         0         3
Northeast Fishery Sector XIII.........     35       25    229        5     1632     3872          25         141          35        61       311       46       97         3       188        38
Fixed Gear Sector.....................     87       95    868       11      768     1823          14           0           1       215       198      151       16         4         0         7
Sustainable Harvest Sector............    756       52    472      298     3405     8081          81          74          36       982      3250     1110     1017        11       121       268
Port Clyde Sector.....................    218        1      6       19        6       14           8           0           2       120       175      118      183         3         0        38
Tri-State Sector......................    102        4     34       46      220      522          37          54           2        35        72      145      104        12        30        28
Northeast Coastal Community Sector....     23        1      5        2       15       34           4           8           2        13        33       23        7         1         1         2
All Sectors...........................   4336      326   2984      807    11856    28138         743         953         258      2665      6751     2481     2740       137      1809       826
Common Pool...........................    230       12    108       19      132      314          36          46          74        83        95       75      109        20        43        26
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* The data in this table is based on signed roster contracts as of November 30, 2009. Numbers are rounded to the nearest metric ton, but allocations are made in pounds. In some cases, this
  table shows a sector allocated 0 metric tons, but that sector is allocated a small amount of that stock in pounds.


[[Page 68019]]


                                                       Table 3b--Poundage of ACE (in Tons) by Stock Proposed for Each Sector for FY 2010 *
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                                                        Other           Eastern   Other     CC/GOM        GB        SNE/MA                                             GOM       GB
                Sector                   GOM   Eastern    GB     GOM       GB       GB    yellowtail  yellowtail  yellowtail   Pollock   Redfish   White    Plaice   winter    winter     Witch
                                         cod    GB cod   cod   haddock  haddock  haddock   flounder    flounder    flounder                         hake            flounder  flounder  flounder
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Northeast Fishery Sector II...........    954       20    187      161     1537     3647         166          19           6       371      1248      172      263        35        34       125
Northeast Fishery Sector III..........    803        4     40      104       22       53          77           1           1       207        86      127      135        19         1        28
Northeast Fishery Sector IV...........    436       18    161       61      717     1701          62          24          10       171       487      225      290        13        15        87
Northeast Fishery Sector V............     13       12    107        6      748     1774          15         107          96        17        46       15       83         1        54        28
Northeast Fishery Sector VI...........    107       10     93       32      390      926          19          23          18       115       423      123      129         6        55        44
Northeast Fishery Sector VII..........     29       23    214        6      684     1622          45         186          16        23        41       22      133         6       358        39
Northeast Fishery Sector VIII.........     23       27    251        2      873     2073          63         175          22        19        33       14       77         6       421        29
Northeast Fishery Sector IX...........     84       45    414       43     1339     3178          79         195          25       116       437      115      229         4       665        71
Northeast Fishery Sector X............    221        3     28       19       90      215          83          15           5        43        42       26       41        21        14        18
Northeast Fishery Sector XI...........    689        1     13       29        5       12          19           0           0       281       142      137       59         4         0        17
Northeast Fishery Sector XII..........     78        0      2        5        1        1           5           0           0         4         6        3       14         1         0         3
Northeast Fishery Sector XIII.........     38       28    252        5     1798     4268          27         156          39        67       343       51      107         3       207        42
Fixed Gear Sector.....................     96      105    957       12      847     2009          16           0           1       237       218      167       17         4         1         7
Sustainable Harvest Sector............    833       57    521      329     3753     8908          89          82          39      1083      3582     1224     1121        12       134       296
Port Clyde Sector.....................    240        1      7       21        6       15           9           0           2       132       193      130      201         4         0        42
Tri-State Sector......................    112        4     38       51      243      576          41          60           2        39        79      159      114        13        33        31
Northeast Coastal Community Sector....     25        1      5        2       16       38           4           9           2        14        36       25        8         1         1         3
All Sectors...........................   4780      360   3289      889    13069    31016         819        1051         285      2938      7442     2735     3020       151      1994       910
Common Pool...........................    254       13    119       20      146      346          39          51          82        91       105       82      120        23        48        29
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* The data in this table is based on signed roster contracts as of November 30, 2009. Numbers are rounded to the nearest metric ton, but allocations are made in pounds. In some cases, this
  table shows a sector allocated 0 metric tons, but that sector is allocated a small amount of that stock in pounds.


[[Page 68020]]

Sector Operations Plans and Contracts

    All sectors must, on an annual basis, submit an operations plan, 
sector contract, and EA to NMFS for the following FY. On September 1, 
2009, 17 sectors submitted an operations plan and contract for FY 2010 
to NMFS. Each sector operations plan contains the rules under which 
each sector would fish. The sector contract provides the legal contract 
that binds members to a sector and its operations plan.
    While each sector conducts fishing activities according to its 
approved operations plan, Section 4.2.3 of the Amendment 16 FEIS 
contains numerous provisions that, if approved, would apply to all 
sector operations plans and sector members. All permit holders with a 
valid limited access NE multispecies days-at-sea (DAS) permit as of May 
1, 2008, are eligible to participate in a sector, including those 
permits currently held in confirmation of permit history. While 
membership in each sector is voluntary, each member (and their permits 
associated with the sector) must remain with the sector for the entire 
FY, and cannot fish in the NE multispecies DAS program outside of the 
sector (i.e., in the common pool) during the FY. Participating vessels 
would be required to comply with all pertinent Federal fishing 
regulations, unless specifically exempted by a letter of authorization 
(LOA) issued by the Regional Administrator, as part of the approval of 
a sector's operations plan, as described further below. Sector 
operations plans may be amended in-season if a change is necessary and 
agreed to by NMFS, provided the change does not require a modification 
to the Amendment 16 regulations. These changes would be included in 
updated LOAs issued to sector members.
    As proposed in Amendment 16, sectors would be allocated all large-
mesh groundfish stocks for which members have landings history, with 
the exception of Atlantic halibut, ocean pout, windowpane flounder, 
Atlantic wolffish, and Southern New England/Mid-Atlantic winter 
flounder. Sector vessels would be required to retain all legal-sized 
allocated groundfish. Catch of all allocated groundfish stocks by a 
sector's vessels would count against the sector's ACE, unless the catch 
is an element of a separate ACL sub-component, such as groundfish catch 
in exempted fisheries, or catch of yellowtail flounder in the Atlantic 
sea scallop fishery. Sector vessels fishing for monkfish, skate, 
lobster (with non-trap gear) and spiny dogfish (outside an exempted 
fishery) would have their groundfish catch (including discards) on 
those trips debited against the sector's ACE, unless the vessel is 
fishing for such species under the provisions of a NE multispecies 
exempted fishery. Discard rates applied to sectors would be determined 
by NMFS through at-sea monitoring.
    Amendment 16 proposes that ACE could be transferred between 
sectors, although ACE transfers to or from common pool vessels would be 
prohibited. Each sector would be required to ensure that its ACE is not 
exceeded during the FY. Sectors would be required to develop 
independent third-party dockside monitoring programs. During FY 2010, 
50 percent of trips by each sector would be randomly selected for 
dockside monitoring to verify at the time it is weighed by the dealer 
and to certify the landings weights are accurate as reported by the 
dealer. Sectors would be required to monitor their landings and 
available ACE and submit weekly catch reports to NMFS. In addition, the 
sector manager would be required to provide NMFS with aggregate sector 
reports on a daily basis when either 80 percent of any one of the 
sector's groundfish ACEs are reached, or when, for two consecutive 
weekly reporting periods, 20 percent or more of the remaining portion 
of any ACE is harvested, whichever occurs first. Once a sector's ACE 
for a particular stock is caught, a sector would be required to cease 
all fishing operations in that stock area until it could acquire 
additional ACE for that stock. Each sector would be required to submit 
an annual report to NMFS and the Council within 60 days of the end of 
the FY detailing the sector's catch (landings and discards by the 
sector), enforcement actions, and pertinent information necessary to 
evaluate the biological, economic, and social impacts from the sector.
    Sector contracts provide procedures to enforce the sector 
operations plan, explain sector monitoring and reporting requirements, 
present a schedule of penalties, and provide authority to sector 
managers to issue stop fishing orders to sector members. Sector members 
could be held jointly and severally liable for ACE overages, discarding 
of legal-sized fish, and/or misreporting of catch (landings or 
discards). Each sector contract submitted for FY 2010 states that the 
sector would withhold an initial reserve from each member's individual 
allocation to prevent the sector from exceeding its ACE. Each sector 
contract also details the method for initial ACE allocation to sector 
members; for FY 2010, each sector has proposed that each sector member 
could harvest an amount of fish equal to the proportion of PSC that 
each individual member's permit contributed to the sector's ACE.
    Amendment 16 proposes several ``universal'' exemptions that are 
applicable to all sectors. These universal exemptions include 
exemptions from trip limits on allocated stocks, the GB Seasonal Closed 
Area, NE multispecies DAS restrictions, the requirement to use a 6.5-
inch (16.51-cm) mesh codend when fishing with selective gear on GB, and 
portions of the Gulf of Maine (GOM) Rolling Closure Areas. Sectors may 
request additional exemptions from Amendment 16 regulations in their 
sector operations plan. However, sector vessels would not be allowed 
exemptions from several NE multispecies management measures, including 
year-round closed areas, permitting restrictions, gear restrictions 
designed to minimize habitat impacts, and reporting requirements (not 
including DAS reporting requirements).

Proposed Exemptions

    In addition to the universal exemptions proposed in Amendment 16, 
sectors have requested several additional exemptions from the NE 
multispecies regulations in their sector operations plans. The requests 
include exemptions from the: (1) 120-day block out of the fishery 
required for Day gillnet vessels; (2) 20-day spawning block out of the 
fishery required for all vessels; (3) limitation on the number of 
gillnets imposed on Day gillnet vessels; (4) prohibition on a vessel 
hauling another vessel's gillnet gear; (5) limitation on the number of 
gillnets that may be hauled on GB when fishing under a groundfish/
monkfish DAS; (6) limits on the number of hooks that may be fished; and 
(7) DAS Leasing Program length and horsepower restrictions. NMFS is 
soliciting public comment on these exemptions and is especially 
interested in receiving comments on the exemption requests from the Day 
gillnet 120-day block out requirement, the 20-day spawning block out 
requirement, and the limitation on the number of gillnets imposed on 
Day gillnet vessels, because of particular concerns regarding the 
impacts of these exemptions.

1. 120-Day Block Requirement Out of the Fishery for Day Gillnet Vessels

    This measure was implemented in 1996 under Amendment 7 (61 FR 
27709, May 31, 1996) to help ensure that Day gillnet management 
measures were comparable to effort controls placed on other fishing 
gear types. Regulations at 50 CFR Sec.  648.82(j)(1)(ii) require that 
each NE multispecies gillnet vessel declared into the Day gillnet 
category

[[Page 68021]]

declare and take 120 days out of the non-exempt gillnet fishery. Each 
period of time taken must be a minimum of 7 consecutive days, and at 
least 21 of the 120 days must be taken between June 1 and September 30. 
Six sectors requested an exemption from this Day gillnet requirement, 
arguing that this measure was designed to control fishing effort and, 
therefore, is no longer necessary because sectors are restricted to a 
hard TAC (i.e., ACE) for each groundfish stock, which limits overall 
fishing mortality. Exemption from the Day gillnet 120-day block 
requirement is being requested by Northeast Fishery Sectors III and XI, 
the GB Cod Fixed Gear Sector, the Sustainable Harvest Sector, the Tri-
State Sector, and the Port Clyde Community Groundfish Sector. The Tri-
State Sector initially requested this exemption in the first draft of 
its sector operations plan, and later removed the request from their 
operations plan after no gillnet vessels committed to the sector. After 
sector rosters were re-opened on October 30, 2009, additional gillnet 
vessels joined the Tri-State Sector. Therefore, while there is an 
exemption request in the sector's most final operations plan, an 
analysis for this exemption is not in the sector's EA. The Tri-State 
Sector's EA would contain the necessary analysis for this exemption 
request in their final EA, which would be available to the public on 
publication of the sector final rule. Similar analysis for this 
exemption can be found in the EAs prepared for the other sectors 
requesting an exemption from the Day gillnet 120-day block requirement.
    Depending on the selectivity and catch rates of the vessels 
requesting this exemption, sector vessels that are no longer subject to 
the 120-day block requirement could increase their catch per unit 
effort (CPUE) and reduce the number of days that fixed gear is in the 
water. However, NMFS is concerned about this exemption because, if some 
vessels are not selective and/or if they catch less fish, CPUE could 
decrease and more fixed gear could be deployed. Similarly, protected 
species (such as harbor porpoise and humpback whales) could benefit 
from less fishing effort and fewer gear days, but, conversely, could be 
negatively impacted by an increase in gear days and more fishing 
effort. Impacts to protected species also depend on spatial and 
temporal changes in fixed gear location and how these changes interact 
with protected species. Additionally, it is possible that this fixed 
gear exemption could allow sector vessels to ``hold'' additional bottom 
ground, disadvantaging common pool vessels. Moreover, gillnet gear that 
is not tended regularly could increase ghost fishing (i.e., gear that 
could continue to catch fish or entangle protected resources if loose 
or lost).

2. 20-Day Spawning Block

    The Northeast Coastal Communities Sector, the Sustainable Harvest 
Sector, and the Tri-State Sector are requesting exemption from the 20-
day spawning block requirement out of the fishery. Regulations at Sec.  
648.82(g) require vessels to declare out and be out of the NE 
multispecies DAS program for a 20-day period each calendar year between 
March 1 and May 31, when spawning is most prevalent in the GOM. The 
sectors argue that an exemption from the 20-day spawning block 
requirement would allow for greater fishing flexibility and could 
increase efficiency and reduce overall gear time in the water. Sectors 
requesting an exemption from the 20-day spawning block requirement 
state that this measure, while designed to control fishing effort on 
spawning fish stocks, is ineffective and no longer necessary because 
each sector would utilize an ACE to restrict its fishing effort. The 
sectors claim that the ability for a vessel owner to select any 20-day 
period (between March 1 and May 31) out of the fishery, as allowed 
under the current regulations, makes the measure ineffective for 
protecting spawning stocks.
    This regulation was developed to protect spawning groundfish stocks 
and, therefore, NMFS is seeking public comment about potential 
biological impacts this exemption could bring to spawning stocks, 
including the disruption of spawning aggregations.

3. Limitation on the Number of Gillnets for Day Gillnet Vessels

    Current gear restrictions in the groundfish regulated mesh areas 
(RMA) restrict Day gillnet vessels from fishing more than: 100 gillnets 
(of which no more than 50 can be roundfish gillnets) in the GOM RMA 
(Sec.  648.80(a)(3)(iv)); 50 gillnets in the GB RMA (Sec.  
648.80(a)(4)(iv)); and 75 gillnets in the Mid-Atlantic RMA (Sec.  
648.80(b)(2)(iv)). These restrictions were implemented in 1996 under 
Amendment 7 and revised in Amendment 13 to prevent an uncontrolled 
increase in the number of nets being fished, and thus, undermining the 
applicable effort controls. The Sustainable Harvest Sector is 
requesting that their vessels be allowed to fish up to 150 nets (any 
combination of flatfish or roundfish nets) in each of the RMAs. The 
current regulations require either one or two tags per net depending on 
the type of gillnet and RMA fished. Because vessels under this 
exemption would no longer be restricted by the number of roundfish or 
flatfish nets in each area (up to 150 nets), the Sustainable Harvest 
Sector is also requesting that the two tag per net requirement be 
replaced with one tag per net. This exemption would increase the number 
of gillnets that could be fished per permit in the Sustainable Harvest 
Sector by 50 percent in the GOM RMA, by 200 percent in the GB RMA, and 
by 100 percent in the SNE RMA. The Sustainable Harvest Sector 
rationalizes that, because this measure was designed to control fishing 
effort, it is no longer necessary, since the sector is restricted to an 
ACE for each stock that caps overall fishing effort.
    The concern raised by NMFS regarding potential increased gear under 
item number 1 (an exemption from the 120-day block out requirement) are 
applicable for this exemption request as well.

4. Prohibition on a Vessel Hauling Another Vessel's Gillnet Gear

    Northeast Fishery Sectors III and XI are requesting exemption from 
current regulations that prohibit one vessel from hauling another 
vessel's gillnet gear (Sec. Sec.  648.14(k)(6)(ii)(A) and 648.84). The 
sectors requesting this exemption believe that the regulations 
pertaining to gear marking controls and setting and hauling 
responsibilities are no longer necessary, because the sector would be 
confined to an ACE for each stock and that ``community'' fixed gear 
would allow fishermen greater flexibility. In addition, the sectors 
argue that shared fixed-gear fishing effort could potentially reduce 
the amount of gillnet gear in the water and minimize the use of gear to 
``hold'' additional bottom ground. Pursuant to a request by NMFS, the 
sectors requesting this exemption have proposed that all vessels 
participating in community fixed gear be jointly liable for any 
violations associated with that gear.

5. Limitation on the Number of Gillnets That May Be Hauled on GB When 
Fishing Under a Groundfish/Monkfish DAS

    The GB Cod Fixed Gear Sector requests an exemption from the limit 
on the number of gillnets that may be hauled on GB when fishing under a 
groundfish/monkfish DAS. Current regulations at Sec.  648.80(a)(4)(iv), 
which prohibit Day gillnet vessels fishing on a groundfish DAS from 
possessing, deploying, fishing, or hauling more than 50 nets on GB, 
were implemented as a groundfish mortality control under Amendment 13. 
The GB Cod Fixed Gear

[[Page 68022]]

Sector proposes that this exemption would increase efficiency of its 
gillnet vessels by allowing them to haul additional nets per trip--nets 
which are already permitted in the water under the Monkfish FMP. The 
sector argues that this would allow additional opportunities to tend 
gear and would likely reduce gear soak time. This exemption does not 
permit the use of additional nets; it would only allow nets deployed 
under existing net limits, according to the Monkfish FMP, to be hauled 
more efficiently by vessels dually permitted under both FMPs.

6. Limitation on the Number of Hooks That May Be Fished

    The GB Cod Fixed Gear Sector requests an exemption from the number 
of hooks that a vessel may fish on a given fishing trip, claiming that 
this measure, which was initially implemented through an interim action 
(67 FR 50292, August 1, 2002) and made permanent through Amendment 13, 
was designed to control fishing effort and, therefore, is no longer 
necessary because the sector is restricted to an ACE for each stock, 
which caps mortality from fishing. Current regulations (Sec.  648.80) 
prohibit vessels from fishing or possessing more than 2,000 rigged 
hooks in the GOM RMA, more than 3,600 rigged hooks in the GB RMA, more 
than 2,000 rigged hooks in the SNE RMA, or 4,500 rigged hooks in the MA 
RMA.
    Again, the concerns raised by NMFS regarding potential increased 
gear under items number 1 and number 3, which also could potentially 
allow additional fixed gear to be fished, are applicable for this 
exemption request as well. However, the potential problems associated 
with longline/hook gear would likely result in lesser impacts than 
those associated with gillnets. For example, the potential for gear 
interaction between protected resources and longline/hook gear is much 
lower than the interaction potential from gillnet gear. Also, while it 
is possible for lost longline/hook gear to ghost fish, the resulting 
impacts would likely be less than impacts from a gillnet ghost fishing.

7. Length and Horsepower Restrictions on DAS Leasing

    While Amendment 16 would exempt sector vessels from the requirement 
to use NE multispecies DAS to harvest groundfish, some sector vessels 
would still need to use NE multispecies DAS under specific 
circumstances, e.g., the Monkfish FMP includes a requirement that 
limited access monkfish Category C and D vessels harvesting more than 
the incidental monkfish catch must fish under both a monkfish and a 
groundfish DAS. Therefore, sector vessels may still use, and lease, NE 
multispecies DAS.
    The Sustainable Harvest Sector and Tri-State Sector have requested 
an exemption from the DAS Leasing Program length and horsepower 
restrictions in their operations plans, within their individual sectors 
as well with other sectors. The sectors requesting an exemption for the 
DAS leasing specifications state that sector ACEs eliminate the need to 
use vessel characteristics to control fishing effort and that removal 
of this restriction would allow sector vessels more flexibility. It is 
important to note that, because this exemption was only requested by 
the Sustainable Harvest Sector and Tri-State Sector, if approved, only 
these two sectors would be exempt from the DAS Leasing Program length 
and horsepower restrictions. Thus, this exemption would not apply to 
the other approved sectors and therefore, leasing under this exemption 
could only occur between the Sustainable Harvest Sector and the Tri-
State Sector.
    Details of the justifications for the proposed exemptions and 
analyses of the potential impacts of the operations plans are contained 
in the sector EAs.

Requested Exemptions for Which There Are Serious Concerns

    After completing an initial review of 17 sector operations plans 
and contracts submitted September 1, 2009, NMFS provided each sector 
with comments, including an assessment of which exemption requests NMFS 
would likely disapprove because of serious concerns with negative 
environmental impacts that could result from granting the exemption. 
Some of the sectors chose to remove these exemption requests from their 
operations plans, while other sectors did not. After reconsideration, 
NMFS has decided to include all of these exemption requests of serious 
concern in the proposed rule, and moreover, is soliciting public 
comment on these requests. If public comment on these exemptions of 
serious concern provides additional support that convinces NMFS to 
change its earlier stance on such requests, the sector operations plans 
and EAs would be revised accordingly. If necessary, NMFS would submit a 
supplemental EA.
    Of central concern to NMFS are exemption requests from the GOM 
Rolling Closure Areas beyond the proposed Amendment 16 universal 
exemption areas, the 72-hr observer notification requirement for NMFS-
funded at-sea monitoring coverage, the Atlantic halibut one-fish trip 
limit during the Maine seasonal halibut fishery, the vessel monitoring 
system (VMS) reporting requirements, the use of electronic vessel trip 
reports (VTRs) in replace of paper VTRs, the minimum 6-inch (16.51-cm) 
spacing requirement for de-hookers, and the minimum fish size 
requirements, as discussed further below.

1. GOM Rolling Closure Areas

    Amendment 16 proposes universal sector exemptions from portions of 
the current GOM Rolling Closure Areas. Six of the Northeast Fishery 
Sectors and the Sustainable Harvest Sector requested additional 
exemptions from these rolling closures, specifically from statistical 
blocks 124, 125, 132, and 133 in April; and block 138 in May. At its 
November meeting, the Council endorsed the sector's request for an 
exemption to the rolling closure for block 138. In Amendment 16, the 
Council voted to exempt sectors from the GOM Rolling Closure Areas, 
with the exception of portions of these areas that the Council believed 
should remain closed to protect spawning aggregations. The Council 
tasked the Groundfish Plan Development Team (PDT) with reviewing and 
analyzing the existing GOM Rolling Closure Areas to determine which 
areas should remain closed, but stipulated that sectors may request 
specific exemptions from the GOM Rolling Closure Areas in their sector 
operations plans.
    The sectors requesting this exemption make the argument that, 
because they are restricted to an ACE for each groundfish stock that 
caps overall fishing mortality, exemptions to the rolling area closures 
should be granted because they are mortality closures. The Sustainable 
Harvest sector contends that statistical block 138, from which they are 
requesting an exemption during the month of May, does not overlap with 
any areas regulated by the Atlantic Large Whale Take Reduction Plan 
(ALWTRP) and that trawl gear, which would be the primary fishing gear 
utilized by the sector, is not regulated by the Harbor Porpoise Take 
Reduction Plan (HPTRP). The six Northeast Fishery Sectors requesting 
exemption from statistical blocks 124, 125, 132, and 133 in April 
contend that their members have a vast amount of experience and 
knowledge identifying spawning aggregations of fish and that 
eliminating access to these additional rolling closure areas requested 
in this exemption would prematurely end commercial access to the 
haddock stocks, which are fully rebuilt, in those areas. The Northeast 
Fishery Sectors further commented that they have

[[Page 68023]]

designed a strategy to minimize the impacts to spawning fish while 
promoting benefits to sector members. Under this strategy, Northeast 
Fishery Sector vessels would fish on rotating schedules to limit daily 
effort, would utilize a sentinel vessel to survey the area for the 
presence of spawning fish, and would utilize a bycatch/spawning fish 
notification system through an onboard computer system to reduce the 
potential for sector vessels to overharvest spawning stocks of fish. 
Northeast Fishery Sectors requesting this exemption would restrict the 
harvesting of GOM cod in these areas by capping the percentage of the 
sector's available ACE that could be taken during the requested 
exemption period. Trawling vessels would minimize their gear impacts by 
reducing the time that they tow their nets along the bottom. In 
addition to abiding by all Federal fishing regulations, sector vessels 
would adhere to all applicable Massachusetts Department of Marine 
Fisheries cod conservation measures. Finally, the Northeast Fishery 
Sectors contend that vessels fishing in the requested exemption areas 
would provide additional data, which could improve scientific knowledge 
for the purpose of protecting spawning cod.
    NMFS is seeking public comment about these additional exemption 
requests from the GOM Rolling Closure Areas due to the ancillary 
benefits the GOM RCAs provide to spawning fish in the GOM, as well as 
the protection these areas afford harbor porpoise and other marine 
mammals.

2. 72-Hour Observer Notification Requirement

    Vessels are currently required to call into the Northeast Fisheries 
Observer Program 72 hours prior to leaving for a trip into a special 
management program (Sec.  648.85). Eight of the 12 Northeast Fishery 
Sectors and the GB Cod Fixed Gear Sector are requesting exemption from 
this requirement, arguing that, if they can hire an at-sea monitor 
through a private contract arrangement with a NMFS-approved observer 
company that can respond in less time, they should be able to do so. 
NMFS is proposing to reduce this requirement from 72 hr to 48 hr in the 
proposed rule for Amendment 16.
    This notification requirement is necessary because of the 
additional logistical demands imposed on the NMFS Observer Program 
resulting from the increased NMFS funded at-sea monitoring program for 
all groundfish vessels. An exemption from the observer notification 
requirement is of significant concern due to the difficulties this 
would pose for the NMFS Observer Program to maintain a random selection 
of observer coverage. Lastly, an observer from the NMFS Observer 
Program is required to gather more data than an at-sea monitor, thus 
this exemption would reduce the amount of fisheries data available to 
managers.

3. Halibut One-Fish Trip Limit

    The Northeast Coastal Communities Sector has requested an exemption 
from the NE multispecies FMP one-fish per trip Atlantic halibut 
possession limit in order to allow member vessels to participate in the 
State of Maine's halibut fishery, which has a 50-fish seasonal limit. 
The sector rationalizes that because halibut mortality would be 
controlled by existing state regulations, including area restrictions, 
seasonal restrictions, a minimum size limit, a minimum trip limit, a 
minimum hook size, and tagging requirements, mortality would remain 
consistent with previous fishing practices.
    The Atlantic halibut stock is currently overfished and experiencing 
overfishing. The NE multispecies FMP includes a rebuilding program for 
Atlantic halibut that permits a one-fish per trip possession limit to 
prevent a targeted fishery while minimizing discards. Allowing an 
exemption from the one-fish halibut trip limit specifically to allow 
sector vessels to participate in a targeted halibut fishery would be 
inconsistent with the rebuilding program of the FMP.

4. VMS Requirements

    All 12 of the Northeast Fishery Sectors request a VMS exemption 
that would allow a central sector server to relay member vessel catch 
reports and logbook data to NMFS. Currently, catch data are sent 
directly from the vessel to NMFS through VMS. The sector anticipates 
that, in order to facilitate electronic data transmission from its 
vessels to a sector-operated data collection and distribution Web 
portal, an administrative exemption may be necessary to allow the 
server to relay catch reports and logbook data on behalf of sector 
member vessels. Thus, under this exemption, catch data would go from 
the vessel to a central server maintained by the sector, and the 
sector's server would then relay the data to NMFS.
    NMFS' Office of Law Enforcement has raised serious concerns about 
this exemption request, given that the chain of custody of catch 
information would be interrupted and, therefore, open to tampering. 
Until such time that NMFS can ensure that the flow of information under 
such an exemption is tamper-proof, this type of reporting exemption 
would be difficult to approve.

5. Electronic VTRs (eVTRs)

    All of the Northeast Fishery Sectors, as well as the Sustainable 
Harvest and Tri-State Sectors, requested permission to use eVTRs in 
place of paper VTRs to transmit catch data to NMFS. A pilot study is 
currently being developed that would use eVTRs as well as paper VTRs to 
determine the viability of eVTRs as a replacement to the paper version. 
Should the pilot study, which will include both sector and common pool 
vessels, determine that eVTRs can fulfill all necessary requirements, 
this option could be considered at a later date. However, NMFS 
considers it premature to allow eVTRs without first determining the 
viability of this electronic report.

6. Fairlead Roller Spacing on De-Hookers

    The GB Cod Fixed Gear Sector requested an exemption from the 
prohibition on the use of de-hookers (crucifiers) with less than 6-inch 
(15.24-cm) spacing between the fairlead rollers. The sector argues that 
a prohibition on de-hookers requires a modification to longline gear 
haulers that is inefficient and unnecessary. De-hookers with a spacing 
of less than 6 inches (15.24-cm) were originally prohibited in the 2002 
interim rule, and then included in Amendment 13, to discourage de-
hooking strategies that may reduce survival rates of discarded fish.
    NMFS believes that this exemption request is not warranted because 
the current prohibition minimizes the mortality of discarded fish.

7. Minimum Fish Size Requirements

    The GB Cod Fixed Gear Sector and the Tri-State Sector requested an 
exemption from the minimum groundfish fish size requirements. Current 
regulations specify minimum size (total length) for nine groundfish 
species: Cod, haddock, pollock, witch flounder, yellowtail flounder, 
American plaice, Atlantic halibut, winter flounder, and Acadian 
redfish. The GB Cod Fixed Gear sector argues that allowing full 
retention of all catch would eliminate discards and increase 
profitability without additional mortality. Further, the sector 
contends that, because 100-percent discard mortality is presently 
assumed by NMFS, and because the sector's ACE, which would cap the 
sector's catch, would be debited for all discards, the sectors should 
be allowed to land fish less than the current minimum fish size. The 
Tri-State Sector, which requests an exemption from the

[[Page 68024]]

Federal minimum fish size requirements for American plaice and witch 
flounder, states that many of these fish that their member vessels 
catch are less than one inch (2.54-cm) smaller than the current minimum 
fish size requirements and are already dead when discarded, thus making 
the requirement of discarding sub-legal fish wasteful.
    NMFS has a serious concern about exempting vessels from the minimum 
fish size, as this would present significant enforcement issues by 
allowing two different fish sizes in the marketplace. NMFS is also 
concerned that this exemption could potentially increase the targeting 
of juvenile fish.

Requested Exemptions Previously Prohibited or Included in Amendment 16

    Exemptions requested by several sectors for increased access to 
Special Access Programs (SAPs), inter-sector DAS leasing, and a 
decrease in the minimum mesh size requirements for gillnets, are either 
specifically prohibited in Amendment 16 or are already included in the 
Amendment 16 proposed rule. Accordingly, these exemptions are not 
proposed in this rule.
    As previously stated, Amendment 16 prohibits sectors from 
requesting exemptions from year-round closed areas, permitting 
restrictions, gear restrictions designed to minimize habitat impacts, 
and reporting requirements (excluding DAS reporting requirements). The 
Closed Area II Yellowtail Flounder SAP and the Eastern U.S./Canada 
Haddock SAP are both programs that provide seasonal access to year-
round closed areas. Exemptions that would expand access to these year-
round closures would be prohibited under Amendment 16.
    Exemption requests to authorize inter-sector DAS leasing, year-
round access to the Eastern U.S./Canada Area, and a decrease in the 
minimum mesh size requirements for gillnets in the GOM from January to 
April are all proposed in Amendment 16. In addition, an exemption from 
regulations pertaining to the possession of additional nets while using 
either a haddock separator trawl or a Ruhle trawl is being proposed in 
the Amendment 16 regulations as a correction, since this omission in 
the current regulations is the result of an administrative oversight in 
a previous rulemaking.
    Northeast Fishery Sector IV, which would operate as a lease-only 
sector, originally requested a suite of exemptions similar to those 
requested by other Northeast Fishery Sectors. However, because the 
permitted vessels within Northeast Fishery Sector IV (the transferor) 
would undertake no actual fishing operations, the exemption requests 
would not be applicable and are, therefore, moot and not proposed in 
this rule.

Sector EAs

    In order to comply with the National Environmental Policy Act, an 
EA was prepared for each operations plan. All sector EAs are tiered 
from the Environmental Impact Statement (EIS) for Amendment 16 to the 
NE Multispecies FMP. The EA for each sector examines the biological, 
economic, and social impacts unique to each sector's proposed 
operations, including requested exemptions, and provides a cumulative 
effects analysis (CEA) that addresses the combined impact of the direct 
and indirect effects of a particular sector and the other proposed 
sectors. The summary findings of each EA conclude that each sector 
would produce similar effects that have non-significant impacts. An 
analysis of aggregate sector impacts was also conducted. Visit http://www.regulations.gov to view the EAs prepared for each of the 17 sectors 
that this rule would implement.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), the Assistant 
Administrator for Fisheries, NOAA, has determined that this proposed 
rule is consistent with the NE Multispecies FMP, other provisions of 
the Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    Because this proposed rule contains no implementing regulations, it 
is exempt from review under Executive Order (E.O.) 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared as 
required by Sec.  603 of the Regulatory Flexibility Act (RFA). The IRFA 
describes the economic impact that the proposed rule, if adopted, would 
have on small entities. The IRFA consists of this section and the 
preamble of this proposed rule, and the EAs 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 EAs prepared for this 
action. A summary of the analysis follows. A copy of this analysis is 
available from NMFS (see ADDRESSES).

Economic Impacts on Regulated Small Entities Enrolled in a Sector

    This proposed action would affect regulated entities engaged in 
commercial fishing for groundfish that have elected to join any one of 
the 17 proposed sectors that have submitted operations plans for FY 
2010. Any limited access Federal permit under the NE Multispecies FMP 
is eligible to join a sector (Table 4). The Small Business 
Administration (SBA) size standard for commercial fishing (NAICS code 
114111) is $4 million in sales. Available data indicate that, based on 
2005-2007 average conditions, median gross annual sales by commercial 
fishing vessels were just over $200,000, and no single fishing entity 
earned more than $2 million annually. Since available data are not 
adequate to identify affiliated vessels, each operating unit is 
considered a small entity for purposes of the RFA, and, therefore, 
there is no differential impact between small and large entities. As of 
November 20, 2009, a total of 784 of 1,480 eligible permits elected to 
join a sector. Table 4 presents a summary of the number and percent of 
individual and active permits currently enrolled in a sector for FY 
2010. Since individuals may withdraw from a sector at any time prior to 
the beginning of FY 2010, the number of permits participating in 
sectors on May 1, 2010, and the resulting sector ACE allocations, may 
change.
    Joining a sector is voluntary. This means that the decision whether 
or not to join a sector may be based upon which option--joining a 
sector or fishing under effort controls in the common pool--offers the 
greater economic advantage. Since sectors would be granted certain 
universal exemptions, and may request and be granted additional 
exemptions from regulatory measures that will apply to common pool 
vessels, sector vessels would be afforded greater flexibility. Sector 
members would no longer have groundfish catch limited by DAS 
allocations and would, instead, be limited by their available ACE. In 
this manner the economic incentive changes from maximizing the value of 
throughput of all species on a DAS to maximizing the value of the 
sector ACE. This change places a premium on timing of landings to 
market conditions, as well as changes in the selectivity and 
composition of species landed on fishing trips.
    Unlike common pool vessels, sectors bear the administrative costs 
associated with preparing an EA, as well as the costs associated with 
sector management, dockside monitoring, and

[[Page 68025]]

at-sea monitoring. The magnitude of the administrative costs for sector 
formation and operation is estimated to range from $60,000 to $150,000 
per sector, and the potential cost for dockside and at-sea monitoring 
ranges from $13,500 to $17,800 per vessel. These estimates serve to 
illustrate the fact that the potential administrative costs associated 
with joining a sector may be expected to influence a vessel owner's 
decision. The majority of these administrative costs would be 
subsidized by NMFS in FY 2010. Whether these subsidies, which include 
providing financial support for preparation of sector EAs, dockside 
monitoring, and at-sea monitoring, will continue beyond FY 2010 is not 
known. Nevertheless, these subsidies may make joining a sector a more 
attractive economic alternative for FY 2010.
    The substantial changes affecting vessels that choose to join a 
sector make it difficult to assess the economic impact on these fishing 
businesses. The only sector that has submitted an operations plan for 
FY 2010 that has been operating since a sector allocation was first 
authorized in 2004 is the GB Cod Hook Sector. The average revenue per 
sector member increased from $61,000 in FY 2004 to $112,000 in FY 2008. 
Comparative analysis of vessels using similar gear that did not join a 
sector suggests that vessels that joined the sector were more 
technically efficient. Whether this difference in efficiency was 
because of the flexibility associated with regulatory exemptions, or 
due to a self-selection effect, is unknown. Nevertheless, available 
information suggests that economic performance among sector vessels may 
be expected to improve relative to common pool vessels that remain 
under effort controls.
    Small entity impacts may differ depending on sector-specific 
operations plans. The number of permits that have enrolled in each 
sector, as well as the operating characteristics of the sector, may 
have an economic affect on sector members (Table 1). Sector enrollment 
in each of the 17 sectors varies from 10 to 54 members and the number 
of permits enrolled in a sector ranges from 10 to 93. The allocation to 
any given sector is based on the combined sum of the PSC for each stock 
associated with all permits enrolled in a sector. All sector operations 
plans would convert the total ACE into an individual catch share 
proportional to the PSC that each member brings to the sector. This 
share would be allocated to the member to be fished by that member or 
traded to another sector member.
    Sector operations plans include a number of harvesting rules 
designed to track catches, as required, but also contain provisions 
that would require advance notification of when the sector or sector 
member may be approaching a harvest share limit or the sector's ACE for 
a given stock. This system may provide the information needed to allow 
sector members to more fully utilize their harvest share.

 Table 4--Summary of the Number and Percent of Individual and Active Permits for Currently Enrolled in a Sector
                                                   for FY 2010
----------------------------------------------------------------------------------------------------------------
                                                     Number of      Percent of       Number of      Percent of
                     Sector                         individual      individual    active permits  active permits
                                                     permits *        permits            *              **
----------------------------------------------------------------------------------------------------------------
Northeast Fishery Sector II.....................              75             5.1              44             7.3
Northeast Fishery Sector III....................              74             5.0              47             7.8
Northeast Fishery Sector IV.....................              47             3.2               0             0.0
Northeast Fishery Sector V......................              39             2.6              34             5.7
Northeast Fishery Sector VI.....................              21             1.4               9             1.5
Northeast Fishery Sector VII....................              25             1.7              19             3.2
Northeast Fishery Sector VIII...................              22             1.5              16             2.7
Northeast Fishery Sector IX.....................              44             3.0              22             3.7
Northeast Fishery Sector X......................              33             2.2              27             4.5
Northeast Fishery Sector XI.....................              47             3.2              37             6.2
Northeast Fishery Sector XII....................              10             0.7               6             1.0
Northeast Fishery Sector XIII...................              31             2.1              25             4.2
Fixed Gear Sector...............................              88             5.9              39             6.5
Sustainable Harvest Sector......................              93             6.3              44             7.3
Port Clyde Sector...............................              39             2.6              27             4.5
Tri-State Sector................................              16             1.1              14             2.3
Northeast Coastal Community Sector..............              19             1.3              17             2.8
                                                 ---------------------------------------------------------------
    All Sectors.................................             723            48.9             427            71.0
                                                 ---------------------------------------------------------------
    Common Pool.................................             757            51.1             174            29.0
----------------------------------------------------------------------------------------------------------------
* Number of permits in each sector is from sector operation plans and EAs submitted September 1, 2009.
** In 2007, 601 limited access multispecies vessels and 138 open access vessels landed groundfish.

Economic Impacts of Exemptions Requested in the Proposed Action That 
Are Not flagged as ``Requested Exemptions for Which There Are Serious 
Concerns''

    The EIS for Amendment 16 to the NE Multispecies FMP compares 
economic impacts of sector measures with common pool measures, and 
analyzes costs and benefits of the universal exemptions. This proposed 
rule provides further discussion on the additional exemptions requested 
by sectors. Several additional exemptions requested by various sectors 
could provide economic incentives to enroll in a sector. All exemptions 
requested by the sectors are intended to provide positive social and 
economic effects to sector members and ports.
    Exemption from the Day gillnet 120-day block requirement out of the 
fishery is requested by Northeast Fishery Sectors III and XI, the GB 
Cod Fixed Gear Sector, the Sustainable Harvest Sector, the Tri-State 
Sector, and the Port Clyde Sector. Existing regulations require that 
vessels using gillnet gear remove all gear from the water for 120 days 
per year. Since the time out from fishing is up to the vessel owner to 
decide (with some restrictions), many affected vessel owners have 
purchased more than one vessel such that one may be used while the 
other is taking its 120-

[[Page 68026]]

day block out of the groundfish fishery, to provide for sustained 
fishing income. Acquiring a second vessel adds the expense of 
outfitting another vessel with gear and maintaining that vessel. The 
exemption from the 120-day block would allow sector members to realize 
the cost savings associated with retiring the redundant vessel.
    Northeast Fishery Sectors III and XI are requesting exemption from 
the prohibition on a vessel hauling gear that was set by another 
vessel. The community fixed gear exemption would allow sector vessels 
in the Day gillnet category to effectively pool gillnet gear that may 
be hauled or set by sector members. This provision would reduce the 
total amount of gear that would have to be purchased and maintained by 
participating sector members resulting in some uncertain level of cost 
savings, along with a possible reduction in total gear fished.
    The GB Cod Fixed Gear Sector is requesting exemption from the 
number of hooks that may be fished, and exemption from the limitation 
on the number of gillnets that may be hauled on GB when fishing under a 
groundfish/monkfish DAS. These exemptions would provide vessel owners 
with the flexibility to adapt the number of hooks fished to existing 
fishing and market conditions. This exemption would also provide an 
opportunity to improve vessel profitability. The exemption from the 
number of hooks that may be fished has been granted to the GB Cod Hook 
Sector every year since 2004.
    The Northeast Coastal Communities Sector, Sustainable Harvest 
Sector, and Tri-State Sector are requesting exemption from the required 
20-day spawning block out of the fishery. Exemption from the 20-day 
spawning block would improve flexibility to match trip planning 
decisions to existing fishing and market conditions. Although vessel 
owners currently have the flexibility to schedule their 20-day block 
according to business needs and may use that opportunity to perform 
routine or scheduled maintenance, vessel owners may prefer to schedule 
these activities at other times of the year, or may have unexpected 
repairs. Removing this requirement may not have a significant impact, 
but would still provide vessel owners with greater opportunity to make 
more efficient use of their vessel.
    The Sustainable Harvest Sector is requesting an exemption from the 
limit on the number of nets (not to exceed 150) that may be deployed by 
Day gillnet vessels. This would provide greater flexibility to deploy 
fishing gear by participating sector members according to operational 
and market needs.
    The Sustainable Harvest Sector and Tri-State Sector request 
exemptions from regulations that currently limit leasing of DAS to 
vessels within specified length and horsepower restrictions. Current 
restrictions create a system in which a small vessel may lease DAS from 
virtually any other vessel, but is limited in the number of vessels 
that small vessels may lease to. The opposite is true for larger 
vessels. Exemption from these restrictions would allow greater 
flexibility to lease DAS between vessels of different sizes. The 
efficiency gains of doing so are uncertain and may be limited because 
the exemption would only apply to Tri-State Sector and Sustainable 
Harvest Sector members. Since DAS would not be required while fishing 
for groundfish, the economic importance of this exemption would be 
associated with the need to use groundfish DAS when fishing in other 
fisheries, for example, monkfish.

Economic Impacts of Requested Exemptions for which there are Serious 
Concerns

    There are several requested exemptions about which NMFS has serious 
concerns. NMFS has informed the sector managers of these concerns. 
These exemption requests are from the GOM Rolling Closure Areas beyond 
the proposed Amendment 16 universal exemption areas, the 72-hr observer 
notification requirements for NMFS-funded at-sea monitoring, the 
Atlantic halibut one-fish trip limit during the Maine seasonal halibut 
fishery, the VMS reporting requirements, the paper VTR requirement, the 
prohibition on de-hookers, and the minimum fish size requirements. The 
economic impacts of not approving these exemptions are provided below.
    In addition to the universal rolling closure exemptions as 
described in Section 4.2.3.9 of Amendment 16, six of the Northeast 
Fishery Sectors and the Sustainable Harvest Sector requested additional 
exemptions from GOM Rolling Closure Areas. These include statistical 
blocks 124, 125, 132, and 133 in April; and block 138 in May. The 
Council voted to exempt sectors from the GOM Rolling Closure Areas, 
with the exception of portions that the Council believes should remain 
closed to protect cod spawning aggregations. Exempting sector vessels 
from additional rolling closures beyond the universal exemptions 
proposed by the Council in Amendment 16 would likely result in improved 
profitability, since higher catch rates would mean that the same amount 
of groundfish could be caught at a lower cost. However, the additional 
rolling closure area blocks requested for exemption were specifically 
not exempted by the Council because these areas provide ancillary 
benefits to spawning fish and, in addition, provide protection for 
harbor porpoise and other marine mammals.
    Eight of the Northeast Fishery Sectors and the GB Cod Fixed Gear 
Sector requested an exemption from the 72-hr observer notification 
requirements for NMFS-funded at-sea monitoring. The economic impacts of 
providing an exemption to the 72-hr observer notification requirement 
are uncertain, but this exemption could provide vessel owners with 
additional flexibility when planning and preparing for fishing trips. 
However, logistical constrains on the NMFS Northeast Observer Program 
would make granting this exemption very difficult. NMFS is proposing to 
reduce this requirement from 72 hr to 48 hr in Amendment 16.
    The Northeast Coastal Communities Sector requested an exemption 
that would allow members to fish under Maine state regulations for 
halibut while fishing in state waters. The exemption would provide 
additional fishing opportunities to improve sector member 
profitability. The potential to realize any improved profitability 
would be limited by Maine state regulations that restrict the number of 
halibut that may be landed during a prescribed season to 50 fish per 
person. The halibut stock remains overfished; thus, allowing an 
exemption from the halibut trip limit specifically to allow sector 
vessels to participate in a targeted halibut fishery would be 
inconsistent with the rebuilding program of the FMP.
    All of the Northeast Fishery Sectors requested an exemption from 
the requirement that vessels transmit reports directly to NMFS via VMS. 
The economic impacts of providing an exemption from this requirement 
are uncertain. The exemption would likely provide the sector as a whole 
with some flexibility to more efficiently handle the flow of 
information between the sector and NMFS in meeting the reporting 
requirements. Nonetheless, allowing vessels to submit required reports 
and declarations to a third party, rather than to NMFS directly, 
creates significant enforcement problems with the chain of custody of 
information. Denial of this exemption would not preclude sector member 
vessels from transmitting hails through the sector server for the 
purpose of dockside monitoring program requirements.

[[Page 68027]]

    All of the Northeast Fishery Sectors, as well as the Sustainable 
Harvest and Tri-State Sectors, requested permission to use eVTRs in 
place of paper VTRs to transmit catch data to NMFS. While this 
exemption would likely reduce the administrative burden on sectors, 
NMFS believes it is still premature, as an eVTR system that would 
address all of the needs of NMFS has not yet been developed. A pilot 
study is currently being developed that would use eVTRs as well as 
paper VTRs to determine the viability of eVTRs as a replacement to the 
paper version. Should the pilot study determine that eVTRs can fulfill 
all necessary requirements, this option could be considered at a later 
date.
    The GB Cod Fixed Gear Sector requested an exemption from the 
prohibition on the use of de-hookers with less than 6-inch (15.24-cm) 
spacing between the fairlead rollers. Not granting this exemption would 
require modification of long-line gear haulers that are already in use. 
Exemption from this requirement would provide affected vessel owners 
with greater flexibility to rig their vessels to maximize operational 
efficiency. However, the interim final rule implemented in 2002, and 
Amendment 13 in 2004, prohibited de-hookers with spacing less than 6 
inches (15.24 cm) to discourage de-hooking strategies that may reduce 
survival of discarded fish. Additionally, National Standard 9 requires 
that NMFS minimize the mortality of bycatch that cannot be avoided.
    The GB Cod Fixed Gear Sector and the Tri-State Sector requested 
exemption from existing regulations that provide for minimum fish sizes 
for several different species. Any fish caught that is below the 
minimum size must be discarded. To the extent that some portion of 
these fish would otherwise be marketable, exemption from minimum fish 
sizes would improve economic efficiency of member vessel owners. Since 
all discarded fish are assumed dead and would count against the 
sector's ACE, opportunities to maximize retention of any marketable 
fish would increase the total value of the ACE. The magnitude of this 
potential benefit is uncertain, since the marketability of smaller size 
fish is unknown. Yet an exemption from the minimum fish size 
requirement presents significant enforcement issues by allowing two 
different fish sizes in the marketplace. Moreover, this exemption could 
potentially increase targeting of juvenile fish.

Economic Impacts of the Alternative to the Proposed Action

    Under the No Action alternative, none of the FY 2010 sector 
operations plans would be approved, and no sector would be approved to 
operate in FY 2010. While the sectors could remain authorized under 
proposed Amendment 16, under the No Action alternative for this rule, 
no sector would receive a LOA to fish or an allocation to fish. Under 
this scenario, vessels would remain in the common pool and fish under 
the common pool regulations in the FMP. Because of effort control 
changes proposed in both Amendment 16 and Framework 44, it is likely 
that vessels enrolled in a sector for FY 2010 and forced to fish in the 
common pool would experience revenue losses in comparison to the 
proposed action. It is more likely under the No Action alternative that 
the ports and fishing communities where sectors plan to land their fish 
would be negatively impacted.

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: December 16, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator, for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. E9-30386 Filed 12-21-09; 8:45 am]
BILLING CODE 3510-22-P