[Federal Register Volume 75, Number 68 (Friday, April 9, 2010)]
[Rules and Regulations]
[Pages 18113-18132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7236]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0912081429-0114-02]
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: Final rule.

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SUMMARY: This final rule implements 17 sector operations plans and 
contracts for fishing year (FY) 2010. In order to be considered for 
approval on a parallel track with Amendment 16 to the Northeast (NE) 
Multispecies Fishery Management Plan (FMP), representatives from 17 
sectors submitted operations plans and sector contracts, and requested 
an allocation of stocks regulated under the FMP for FY 2010. NMFS 
received sector operations plans and contracts from the Northeast 
Fishery Sectors (NFS) II through XIII, the Sustainable Harvest Sector 
(SHS), the Tri-State Sector (TSS), the Northeast Coastal Communities 
Sector (NCCS), the Georges Bank Cod Fixed Gear Sector (FGS), and the 
Port Clyde Community Groundfish Sector (PCCGS).
    Following approval of the Amendment 16 sector measures and 
provisions, the Administrator, NE Region, NMFS (Regional Administrator) 
has partially approved the operations plans and contracts, and 
allocated an annual catch entitlement (ACE) of certain NE multispecies 
stocks to the NFS II-XIII, the FGS, the SHS, the TSS, the PCCGS, and 
the NCCS.

DATES: Effective May 1, 2010 through April 30, 2011.

ADDRESSES: Copies of each sector's final operations plan, contract, and 
environmental assessment (EA), and the Final Regulatory Flexibility 
Analysis (FRFA) are available from the NMFS Northeast Regional Office: 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. These documents 
are also accessible via the Federal eRulemaking Portal: http://www.regulations.gov.

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

SUPPLEMENTARY INFORMATION: A proposed rule soliciting public comment on 
17 sector operations plans and contracts was published in the Federal 
Register on December 22, 2009 (74 FR 68015), with public comments 
accepted through January 21, 2010. After review of the public comments, 
NMFS has partially approved the 17 sector operations plans and 
contracts, determining the operations plans to be consistent with the 
goals of the FMP, as described in Amendment 16 and other applicable 
laws, and in compliance with the proposed measures that govern the 
development and operation of a sector as specified in Section 4.2.3 of 
Amendment 16.

Background

    While the Amendment 13 final rule (69 FR 22906, April 27, 2004) 
implemented the Georges Bank (GB) Cod Hook Sector in 2004, and the 
Framework Adjustment (FW) 42 final rule (71 FR 62156, October 23, 2006) 
implemented the FGS in 2006, Amendment 16 revises and expands the rules 
for these two existing sectors and authorizes an additional 17 new 
sectors, including the NFS I through XIII, the SHS, the TSS, the NCCS, 
and the PCCGS. Managers of two (2) of the 19 sectors authorized under 
Amendment 16 did not submit an operations plan for FY 2010.
    Three separate actions associated with Amendment 16 are applicable 
to NE multispecies permit holders for FY 2010: A proposed rule that 
contains implementing regulations for the partially approved Amendment 
16 (74 FR 69382, December 31, 2009) includes rebuilding programs for NE 
multispecies stocks newly classified as being overfished and subject to 
overfishing; revisions to existing management measures necessary to end 
overfishing, rebuild overfished stocks, and mitigate adverse economic 
impacts of increased effort controls; and significant revisions to 
existing sector management measures. In accordance with Amendment 16, a 
proposed rule specific to sectors published on December 22, 2009, (74 
FR 68015) and discussed authorization of 17 sector operations plans and 
contracts for FY 2010. This final rule implements the approved 
operations plans. Also in accordance with Amendment 16, a third 
proposed rule for FW 44 published on February 1, 2010 (75 FR 5016), 
which proposed specifications of catch levels for FY 2010-2012, in 
accordance with the process specified in Amendment 16, and detailed 
additional management measures to augment Amendment 16.
    Thus, the final rules for Amendment 16, sector operations, and FW 
44 are closely related, and each rule relies on the other two. It is 
necessary to employ all three rules to implement Amendment 16 as 
intended by the New England Fishery Management Council (Council). While 
Amendment 16 implements management measures and processes for the FMP, 
FW 44 specifies catch levels according to the policies and procedures 
in Amendment 16, and this sector operations rule authorizes the 
operation of sectors. For example, Amendment 16 must be implemented for 
the 17 new sectors to be authorized. FW 44 specifies overfishing 
levels, acceptable biological catches, annual catch limits (ACLs) and 
allocates catch among components of the fishery, including the division 
of the catch between sector and common pool vessels according to the 
Amendment 16 ACL specification process. Final rules for the three 
actions, if all are approved,

[[Page 18114]]

are intended to be published nearly simultaneously in order to become 
effective concurrently on May 1, 2010. Therefore, NMFS suggests that 
interested readers review all three rules in order to fully understand 
the measures being implemented pursuant to Amendment 16 and its related 
rulemakings.
    Permit owners that have indicated their intent to participate in 
one of the 17 approved sectors account for 812 of the 1,477 eligible NE 
multispecies permit holders, representing approximately 98 percent of 
the historical commercial NE multispecies catch from the qualifying 
period. Table 1 (below) includes permit owners who joined a sector as 
of January 22, 2010. These permit owners have until April 30, 2010, to 
withdraw from a sector and fish in the common pool for FY 2010. This 
final rule responds to public comments on the proposed rule and 
implements the approved additional regulation exemptions that were 
requested by the individual sectors.
    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 total allowable catch 
(TAC) is referred to as an 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 during 
each FY. Each individual sector's ACE for a particular stock represents 
a share of that stock's ACL available to commercial NE multispecies 
vessels, based upon the potential sector contributions (PSC) of permits 
participating in that sector for that FY. 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 2 shows the ACE percentages each 
sector will receive according to the permits enrolled as of January 22, 
2010, while Tables 3a and 3b provide the corresponding ACE amounts each 
sector will be allocated.
    Amendment 16 will allow sectors to trade ACE for use during that 
FY. Although some of the assigned ACEs to one sector are as high as 50 
percent, and technically, a sector could acquire an unlimited amount of 
ACE from another sector by transferring ACE, analysis by the Groundfish 
Plan Development Team (PDT) during the development of Amendment 16 
suggested that it is unlikely that any one sector could accumulate a 
sufficient share of a stock to exercise market power over the rest of 
the fishery. Moreover, because sector ACEs are temporary in nature and 
depend upon the collective PSCs of participating vessels, no one sector 
will be allocated a permanent share of any resource. This further 
limits the ability of a sector to influence market conditions for a 
particular stock over the long term. Allowing sectors to trade ACE will 
minimize the influence of the initial sector allocation, including any 
cap on initial allocations.
    If a sector intends to fish in a given FY, it must submit an 
operations plan, sector contract, and EA to NMFS by September 1 of the 
year prior to the FY in question. On September 1, 2009, 17 sectors 
submitted to NMFS operations plans and contracts (as single documents) 
for FY 2010. The operations plans contain the rules under which each 
sector will fish and the legal contract that binds members to a sector 
and its operations plan. Sectors will be allocated all regulated 
multispecies stocks for which members have landings history, with the 
exception of Atlantic halibut, windowpane flounder, Atlantic wolffish, 
and Southern New England/Mid-Atlantic (SNE/MA) winter flounder. In 
addition, sectors will not be allocated ocean pout. Sector vessels must 
retain all legal-sized allocated groundfish while fishing on a sector 
trip. Catch of all allocated groundfish stocks by any of a sector's 
vessels will count against the sector's ACE, unless the catch is an 
element of a separate ACL sub-component, such as groundfish catch in an 
exempted fishery, or catch of yellowtail flounder in the Atlantic sea 
scallop fishery. Sector vessels fishing for monkfish, skate, American 
lobster (with non-trap gear) and spiny dogfish will 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 will be determined by NMFS as developed from at-sea 
monitoring observations.
    As provided in Amendment 16, ACE can be transferred between 
sectors, although ACE transfers to or from common pool vessels are 
prohibited. Both the SHS and the TSS operations plans describe how 
landings history from permits within the sector will be attributed to 
sector members. Under Amendment 16, however, catch history is frozen; 
therefore, the statements in the contracts for the SHS and TSS have no 
legal standing unless a subsequent Council action adopts them. Each 
sector must ensure that its ACE is not exceeded during the FY. Sectors 
are required to monitor their landings, track their available ACE, and 
submit weekly catch reports to NMFS. Once a sector's ACE for a 
particular stock is caught, a sector is required to cease all fishing 
operations in that stock area until it acquires additional ACE for that 
stock. Each sector must also submit an annual report to NMFS and the 
Council within 60 days of the end of the FY detailing all of the 
sector's catch (landings and discards of all stocks by the sector), 
enforcement actions, and pertinent information necessary to evaluate 
the biological, economic, and social impacts from the sector.
    All sector operations plans and contracts detail 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. Amendment 16 specifies that sector members may 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 approved for FY 2010 states that the sector will 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 will allow its members to harvest an amount of fish equal to the 
PSC that each individual member's permit contributed to the sector's 
ACE.
    Amendment 16 contains 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 days-at-sea (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 applicable 
regulations in their sector operations plan. However, Amendment 16 
states that sector vessels may not request exemptions from certain 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).

[[Page 18115]]

    All vessels that fish in an approved sector, with the exception 
noted below, will receive a letter of authorization (LOA) for FY 2010 
to fish under regulations that apply to the sector in which they are 
enrolled for the FY. Permits and vessels that committed to NFS IV, 
which is a lease-only sector, will not receive an LOA to fish, as no 
vessels in that sector are authorized to actively fish.
    In order to comply with the National Environmental Policy Act 
(NEPA), an EA was prepared for each operations plan. All sector EAs are 
tiered from the Environmental Impact Statement (EIS) for Amendment 16. 
The summary findings of each EA conclude that each sector will likely 
produce similar effects that result in non-significant impacts. An 
analysis of aggregate sector impacts was also conducted and Findings of 
No Significant Impact for all sector EAs were issued by the Regional 
Administrator on February, 26, 2010.

      Table 1--Summary of the Number of Permits, Active Vessels, and Active Permits for the FY 2010 Sectors
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                                                                                                      Percentage
                                                                                         Percentage     (%) of
                                                  Number of    Percentage   Number of      (%) of      permits
                  Sector name                     individual     (%) of       active       active      that are
                                                   permits*    individual   vessels**     vessels       active
                                                                permits                  within the   within the
                                                                                          fleet***      sector
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FGS............................................           95         6.43           50         6.77        52.63
NCCS...........................................           19         1.29           19         2.57       100.00
NFS II.........................................           81         5.48           43         5.82        53.09
NFS III........................................           81         5.48           50         6.77        61.73
NFS IV.........................................           48         3.25            0         0.00         0.00
NFS V..........................................           41         2.78           37         5.01        90.24
NFS VI.........................................           18         1.22            8         1.08        44.44
NFS VII........................................           27         1.83           21         2.84        77.78
NFS VIII.......................................           22         1.49           16         2.17        72.73
NFS IX.........................................           51         3.45           22         2.98        43.14
NFS X..........................................           44         2.98           34         4.60        77.27
NFS XI.........................................           48         3.25           38         5.14        79.17
NFS XII........................................            8         0.54            4         0.54        50.00
NFS XIII.......................................           35         2.37           29         3.92        82.86
PCGGS..........................................           43         2.91           28         3.79        65.12
SHS............................................          129         8.73           44         5.95        34.11
TSS............................................           22         1.49           10         1.35        45.45
All Sectors....................................          812        54.98          453        61.30        55.79
Common Pool....................................          665        45.02          286        38.70
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*The data are based on signed sector contracts as of January 22, 2010.
** The data are based on each sector's final EA as of February 18, 2010.
*** In 2007, 601 limited access multispecies vessels and 138 open-access vessels landed groundfish.


[[Page 18116]]


                                                     Table 2--Percentage (%) of ACE Each Sector Will Receive by Stock for FY 2010 *[dagger]
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                                                                                           GB        SNE/MA      CC/GOM                                      GOM
                  Sector name                      GB    GOM cod      GB        GOM    yellowtail  yellowtail  yellowtail   Plaice    Witch    GB Winter    Winter    Redfish   White    Pollock
                                                 cod**            haddock**   haddock   flounder    flounder    flounder             flounder   flounder   flounder              hake
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FGS...........................................    28.03     1.90       6.41      1.29        0.01        0.18        1.83     0.55       0.80       0.03       2.24      2.89     5.92      7.81
NCCS..........................................     0.16     0.47       0.12      0.23        0.84        0.53        0.46     0.14       0.21       0.07       0.45      0.44     0.87      0.44
NFS II........................................     5.48    19.19      11.63     17.87        1.70        1.68       19.31     8.37      13.24       1.69      19.85     16.54     6.17     12.34
NFS III.......................................     1.19    16.43       0.17     11.65        0.05        0.40        9.01     4.41       3.03       0.03      10.91      1.47     5.12      7.70
NFS IV........................................     4.71     8.66       5.42      6.72        2.16        2.68        7.20     9.24       9.28       0.71       7.63      6.46     7.97      5.65
NFS V.........................................     2.95     0.23       5.40      0.68        9.62       26.67        1.69     2.24       2.62       2.60       0.71      0.42     0.39      0.43
NFS VI........................................     1.87     1.90       2.67      3.46        1.34        4.85        2.08     3.58       4.19       0.84       3.33      5.48     3.77      3.30
NFS VII.......................................     6.01     0.61       5.25      0.73       16.14        4.15        4.86     4.02       4.06      17.02       3.22      0.56     0.78      0.78
NFS VIII......................................     7.36     0.47       6.61      0.20       15.93        5.96        7.29     2.44       3.13      20.63       3.36      0.44     0.51      0.64
NFS IX........................................    12.49     1.67      10.32      4.77       18.95        7.14        9.63     7.55       7.63      33.65       2.58      5.79     4.10      3.82
NFS X.........................................     0.97     5.04       0.26      2.70        0.02        0.47       11.48     1.73       2.89       0.01      16.22      0.57     0.93      1.45
NFS XI........................................     0.40    13.69       0.04      3.23        0.00        0.01        2.22     1.87       1.86       0.00       2.13      1.88     4.85      9.28
NFS XII.......................................     0.04     1.30       0.00      0.28        0.00        0.00        0.51     0.38       0.28       0.00       0.35      0.07     0.04      0.06
NFS XIII......................................     7.54     0.76      14.09      0.61       15.48       11.45        3.36     3.43       4.55      10.83       1.69      4.54     1.81      2.23
PCGGS.........................................     0.21     4.76       0.05      2.32        0.00        0.70        0.98     6.42       4.45       0.01       2.15      2.56     4.62      4.30
SHS...........................................    16.71    17.93      29.60     40.93        8.34       11.50       10.91    39.74      34.19       8.50       7.20     48.99    50.28     37.99
TSS...........................................     0.86     1.10       1.46      0.74        7.24        1.22        3.20     1.41       1.39       1.94       3.54      0.01     0.14      0.06
All Sectors...................................    96.98    96.09      99.51     98.42       97.82       79.60       96.01    97.52      97.80      98.56      87.57     99.10    98.27     98.29
Common Pool...................................     3.02     3.91       0.49      1.58        2.18       20.40        3.99     2.48       2.20       1.44      12.43      0.90     1.74      1.72
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* The data in this table are based on signed sector contracts as of January 22, 2010.
** Eastern U.S./Canada cod and haddock percentages equal the PSC % of GB cod and GB haddock, respectively.
[dagger] Percentages have been rounded to the nearest hundredth of a percent in this table, but PSC data are calculated to seven decimal places. Therefore, in some cases, this table shows a
  sector allocated 0% of an ACE, when in fact that sector is allocated a small amount of that stock.


                                                         Table 3a--ACE (in Metric Tons) Each Sector Will Receive by Stock for FY 2010 *
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                                        GB     GB               GB       GB                 GB        SNE/MA      CC/GOM                                      GOM
             Sector name               cod    cod   GOM cod  haddock  haddock    GOM    yellowtail  yellowtail  yellowtail   Plaice    Witch    GB winter    winter   Redfish   White    Pollock
                                       east   west             east     west   haddock   flounder    flounder    flounder             flounder   flounder   flounder             hake
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FGS.................................     95    867       87      768     1822       11           0           1          14       16          7          0          4      198      151       215
NCCS................................      1      5       22       14       34        2           8           2           4        4          2          1          1       30       22        12
NFS II..............................     19    169      876     1394     3309      147          16           5         150      238        113         31         31     1132      158       339
NFS III.............................      4     37      750       21       49       96           0           1          70      126         26          1         17      100      131       211
NFS IV..............................     16    146      395      650     1543       55          21           8          56      263         79         13         12      442      204       155
NFS V...............................     10     91       11      648     1537        6          93          83          13       64         22         48          1       29       10        12
NFS VI..............................      6     58       87      321      761       29          13          15          16      102         36         16          5      375       96        91
NFS VII.............................     20    186       28      630     1495        6         156          13          38      115         35        315          5       38       20        21
NFS VIII............................     25    228       21      792     1881        2         154          18          57       69         27        382          5       30       13        18
NFS IX..............................     42    386       76     1237     2936       39         183          22          75      215         65        623          4      396      105       105
NFS X...............................      3     30      230       31       74       22           0           1          89       49         25          0         26       39       24        40
NFS XI..............................      1     12      625        4       11       27           0           0          17       53         16          0          3      129      124       255
NFS XII.............................      0      1       59        1        1        2           0           0           4       11          2          0          1        5        1         2
NFS XIII............................     25    233       35     1689     4009        5         149          36          26       98         39        201          3      311       46        61
PCGGS...............................      1      6      217        6       14       19           0           2           8      183         38          0          3      175      118       118
SHS.................................     56    517      819     3549     8422      338          80          36          85     1132        291        157         11     3354     1285      1044
TSS.................................      3     27       50      175      416        6          70           4          25       40         12         36          6        1        4         2
All Sectors **......................    328   2999     4389    11928    28310      812         943         247         748     2777        833       1826        138     6786     2522      2701
                                                    [dagger  [dagger  [dagger                                                                    [dagger]             [dagger  [dagger
                                                          ]        ]        ]                                                                                               ]        ]
Common Pool **......................     10     93      178       60      142       13          21          63          31       71         19         26         20       62       44        47
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    Total **........................    338   3092     4567    11988    28452      825         964         310         779     2848        852       1852        158     6848     2566      2748
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* The data in this table are based on signed sector contracts as of January 22, 2010. 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.
** These totals are based off of the groundfish sub-ACLs provided in FW 44.
[dagger] These totals are based off the groundfish sub-ACLs provided in FW 44 and do not equal the totals of all sector ACEs when summed due to rounding differences.


[[Page 18117]]


                                                          Table 3b--ACE (in 1,000 lbs.) Each Sector Will Receive by Stock for FY 2010 *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    GB       GB                 GB        SNE/MA      CC/GOM                          GB        GOM
             Sector name               GB cod   GB cod  GOM cod  haddock  haddock    GOM    yellowtail  yellowtail  yellowtail   Plaice    Witch    winter    winter   Redfish   White   Pollock
                                        east     west              east     west   haddock   flounder    flounder    flounder            flounder  flounder  flounder             hake
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
FGS.................................      209     1911      191     1693     4018       24           0           1          31       35        15         1         8      437      334      473
NCCS................................        1       11       48       32       76        4          18           4           8        9         4         3         2       67       49       27
NFS II..............................       41      374     1932     3073     7294      325          36          11         332      526       249        69        69     2496      348      747
NFS III.............................        9       81     1654       46      109      212           1           3         155      277        57         1        38      221      289      466
NFS IV..............................       35      321      871     1433     3401      122          46          18         124      580       174        29        27      975      449      343
NFS V...............................       22      201       23     1428     3388       12         204         182          29      140        49       106         2       63       22       26
NFS VI..............................       14      128      191      707     1678       63          28          33          36      225        79        34        12      827      212      200
NFS VII.............................       45      410       61     1389     3296       13         343          28          83      253        76       695        11       85       44       47
NFS VIII............................       55      502       47     1747     4146        4         339          41         125      153        59       842        12       66       29       39
NFS IX..............................       93      851      168     2727     6472       87         403          49         165      474       143      1374         9      873      231      232
NFS X...............................        7       66      507       68      162       49           0           3         197      108        54         0        56       86       52       88
NFS XI..............................        3       27     1378       10       23       59           0           0          38      117        35         0         7      283      273      562
NFS XII.............................        0        3      131        1        3        5           0           0           9       24         5         0         1       11        2        4
NFS XIII............................       56      514       77     3724     8838       11         329          78          58      215        85       442         6      685      102      135
PCGGS...............................        2       14      479       13       30       42           0           5          17      403        84         0         8      386      260      260
SHS.................................      124     1139     1805     7823    18567      744         177          79         187     2495       642       347        25     7394     2833     2302
TSS.................................        6       59      110      387      918       14         154           8          55       89        26        79        12        2        8        4
All Sectors **......................      723     6611     9676    26297    62413     1790        2079         544        1649     6123      1837      4026       305    14961     5560     5955
                                                        [dagger  [dagger  [dagger                                                                  [dagger]            [dagger  [dagger
                                                              ]        ]        ]                                                                                            ]        ]
Common Pool **......................       23      206      392      132      313       29          46         139          69      156        41        57        43      137       98      104
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total **........................      746     6817    10068    26429    62726     1819        2125         683        1718     6279      1878      4083       348    15098     5658     6059
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* The data in this table are based on signed sector contracts as of January 22, 2010. Numbers are rounded to the nearest thousand lb. Sectors that appear to be allocated 0 are in fact
  allocated less than 1,000 lb of that stock.
** These totals are based off of the groundfish sub-ACLs provided in FW 44.
[dagger] These totals are based off the groundfish sub-ACLs provided in FW 44 and do not equal the totals of all sector ACEs when summed due to rounding differences.


[[Page 18118]]

Approved Sector Exemption Requests

    In addition to the universal exemptions in Amendment 16, sectors 
requested several additional exemptions from the NE multispecies 
regulations in their sector operations plans. After thorough review and 
consideration of public comments on the exemption requests, NMFS 
authorizes exemptions from the following regulations for the individual 
sectors that requested them: (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. Details of 
these exemptions are discussed below.

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

    This measure was implemented in 1997 under FW 20 (62 FR 15381, 
April 1, 1997) to help ensure that management measures for Day gillnet 
vessels were comparable to effort controls placed on other fishing gear 
types (the proposed rule for this action erroneously stated that this 
action had been implemented in 1996 under Amendment 7). Regulations at 
Sec.  648.82(j)(1)(ii) require that each NE multispecies gillnet vessel 
declared into the Day gillnet category 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. This measure was designed to 
control fishing effort and, therefore, is no longer necessary for 
sectors because sectors are restricted to an ACE for each groundfish 
stock, which limits overall fishing mortality. Because sector vessels 
are prohibited from discarding all legal-sized allocated fish when on a 
sector trip, and are restricted by their ACE, vessels will likely fish 
more selectively, which in turn, can increase each vessel's catch per 
unit of effort (CPUE) and reduce the number of days that fixed gear is 
in the water. Similarly, protected species (such as harbor porpoise and 
humpback whales) may benefit from less fishing effort and fewer gear 
days. Therefore, exemptions from the Day gillnet vessel 120-day block 
requirement are granted for FY 2010 to the following sectors that 
requested this exemption: NFS III, NFS XI, FGS, SHS, TSS, and PCCGS.

2. 20-Day Spawning Block

    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 of cod is most 
prevalent in the GOM. While this measure was designed to reduce fishing 
effort on spawning fish stocks, sector vessels will utilize an ACE to 
restrict their fishing mortality. Undersized fish caught by sector 
vessels cannot be kept and, additionally, the catch will count against 
the sector's ACE. This creates a strong incentive for sectors to avoid 
catching undersized fish. In addition, there are minimal temporal and 
spatial restrictions associated with this regulation, and allowing 
fishermen to select any 20-day period out of the fishery does not 
necessarily prevent them from harvesting spawning fish. Based on this 
information, an exemption from the 20-day spawning block out of the 
fishery is granted for FY 2010 to the following sectors that requested 
this exemption: The NCCS, the SHS, and the TSS.

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

    One sector, the SHS, requested that their vessels be allowed to 
fish up to 150 gillnets (any combination of flatfish or roundfish nets) 
in each of the groundfish regulated mesh areas (RMAs). Current gear 
restrictions in the RMAs 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)(B)(2)); 50 gillnets in the GB 
RMA (Sec.  648.80(a)(4)(iv)(B)(2)); and 75 gillnets in the SNE and MA 
RMAs (Sec.  648.80(b)(2)(iv)(B)(1), and Sec.  648.80(c)(2)(v)(B)(1), 
respectively). Regulations require nets to be marked with either one or 
two tags per gillnet depending on the type of net and RMA fished, for 
the purpose of enforcing gillnet limits. 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, 
thus undermining the applicable DAS effort controls. Because this 
measure was designed to control fishing effort, NMFS believes that a 
net restriction is no longer necessary, since the sector is confined to 
an ACE for each stock, which caps overall fishing effort. Although this 
exemption could allow fishing effort from gillnet vessels in the SHS to 
increase if the SHS receives additional ACE through a transfer from 
another sector, sectors that trade ACE to SHS would have a reduction in 
effort and gear use; any additional effort resulting from this 
exemption would likely be offset between trading sectors. In addition 
ACLs cap the entire fleet's total catch. Therefore, SHS vessels are 
granted this exemption and are authorized to use up to 150 roundfish or 
flatfish nets in each area (up to 150 nets total). SHS vessels are also 
exempt from the current tagging requirements and, instead, will be 
required to mark their gear with one tag per net. The LOA issued to the 
sector vessels that qualify for this exemption will specify the tagging 
provisions to ensure it is an enforceable provision.

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

    Both NFS III and XI requested an 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). These sectors argued that 
the regulations pertaining to gear-marking controls, 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 argued 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, both sectors that requested this exemption have specified in 
their operations plans that all vessels participating in community 
fixed gear will be held jointly liable for any violations associated 
with that gear. Given this, NMFS endorses the efforts by these two 
sectors to reduce the amount of gillnet gear in the water and approves 
this exemption request. The LOA issued to the sector vessels that 
qualify for this exemption will specify the tagging provisions to 
ensure it is an enforceable provision.

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

    The FGS requested 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)(B), 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

[[Page 18119]]

mortality control under Amendment 13. The FGS proposed 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. NMFS agrees with the FGS that this 
exemption will allow fishermen additional opportunities to tend gear, 
and can reduce gear soak time. NMFS supports the attempt by the FGS to 
increase its CPUE and authorizes this exemption request. This exemption 
does not permit the use of additional nets; it only allows nets 
deployed under existing net limits in the NE Multispecies and Monkfish 
FMPs, to be hauled more efficiently by vessels dually permitted under 
both FMPs.

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

    The FGS requested 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 confined to an ACE for each stock, which 
restricts fishing mortality. 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 more than 4,500 rigged hooks 
in the MA RMA. This exemption has been granted to the GB Cod Hook 
Sector every year since 2004. The potential for gear interactions 
between protected resources and longline/hook gear is much lower than 
the interaction potential from bottom trawl or gillnet gear. In 
addition, the use of longline/hook gear minimizes fishing impacts on 
benthic habitat. Based on this analysis, NMFS grants this exemption to 
the FGS for FY 2010.

7. Length and Horsepower Restrictions of the DAS Leasing Program

    While Amendment 16 exempts sector vessels from the requirement to 
use NE multispecies DAS to harvest groundfish, some sector vessels will 
still need to use NE multispecies DAS under specific circumstances; for 
example, when fishing for monkfish. Both the SHS and TSS requested an 
exemption from the DAS Leasing Program length and horsepower 
restrictions, arguing 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. NMFS concurs 
and approves this exemption request. As this exemption was only 
requested by the SHS and TSS, only these two sectors will be exempt 
from the DAS Leasing Program length and horsepower restrictions, and 
thus leasing under this exemption can only occur within and between the 
SHS and the TSS.

Disapproved Exemption Requests

    After completing an initial review of the 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 
requested exemption. Some of the sectors chose to remove these 
exemption requests from their operations plans, while other sectors did 
not. After reconsidering, NMFS included all of these exemption requests 
of serious concern in the proposed rule and solicited public comment on 
these requests. Public comment that was received pertaining to these 
exemptions did not provide any new data or sufficient additional 
rationale to convince NMFS to change its previous stance on these 
requests. Therefore, requests for exemption from the GOM Rolling 
Closure Areas beyond the universal exemption in Amendment 16, the 72-
hour 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 
(eVTRs) in replace of paper vessel trip reports (VTRs), the minimum 6-
inch (16.51-cm) spacing requirement for de-hookers, and the minimum 
fish size requirements, are not approved by NMFS for any sectors for FY 
2010. These requests and NMFS decision on them are discussed below.

1. GOM Rolling Closure Areas

    NFSs II, III, VI, X, XI, XII, and the SHS requested additional 
exemptions from the GOM Rolling Closure Areas beyond those granted as 
universal exemptions under Amendment 16. Specifically, sectors 
requested exemptions from the 30-minute blocks 124, 125, 132, and 133 
in April; and block 138 in May. The Council exempted sectors from 
certain GOM Rolling Closure Areas in Amendment 16, with the exception 
of areas that the Council believed should remain closed to protect 
spawning aggregations. The Council tasked the PDT with periodically 
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. Subsequently, at its November 2009 
meeting, the Council voted to endorse the SHS's request for an 
exemption to the rolling closure for block 138 in May.
    The sectors requesting this exemption argued that, because they are 
restricted to an ACE for each groundfish stock that caps overall 
fishing mortality, exemptions to the Rolling Closure Areas should be 
granted because they are mortality closures. The Rolling Closure Areas 
were initially implemented in 1998 under FW 25 to the FMP to reduce 
fishing effort in the ``areas of highest cod landings.'' However, FW 26 
referred to the Rolling Closure Areas implemented under FW 25 as 
``inshore `cod spawning' closures.'' The stated purpose and need under 
FW 26 (section 3.0) states that the Council wanted to ``take additional 
action to protect cod during the 1999 spawning season * * * and 
immediate action is necessary to reduce catches and protect the 
spawning stock.'' As a result, FW 26 expanded the time period of these 
``cod spawning'' closures, which include several of the 30-minute 
blocks that sectors have now requested exemption from. The final rule 
implementing FW 26 (64 FR 2601, January 15, 1999) specified that the 
Council undertook the action because of the ``opportunity to delay 
fishing mortality on mature cod during the spring spawning period, a 
time when stocks aggregate and are particularly vulnerable to fishing 
pressure.''
    These exemption requests fail to consider that, despite ACE limits, 
direct targeting of spawning aggregations can adversely impact the 
reproductive potential of a stock as opposed to post-spawning 
mortality. Northeast Fisheries Science Center's (NEFSC) spring survey 
data for 2006-2008 indicate that very high concentrations of cod 
(highest quartile of tows by weight) continue to be present in the 
April GOM Rolling Closure Area, especially west of 69[deg]30[min] W. 
long., while moderate concentrations of cod are found in block 138. 
Justification that demonstrates that spawning fish could be avoided was 
not provided by the individual sectors (see comments and response). In 
addition to protecting spawning fish, the GOM Rolling Closure Areas 
afford some protection to harbor porpoise and other marine mammals. As 
a result of these concerns, this exemption request has not been 
approved.

[[Page 18120]]

2. 72-Hour Observer Notification Requirement

    Vessels are currently required to call into the Northeast Fisheries 
Observer Program (NEFOP) 72-hour prior to leaving for a trip into a 
special management program (Sec.  648.85). Under Amendment 16, this 
requirement is expanded to require all groundfish trips to be called 
into NEFOP in order for NMFS to accurately assign coverage to all 
vessels; however, NMFS is reducing the observer notification 
requirement from 72-hour to 48-hour in the final rule implementing 
Amendment 16. Eight of the 12 NFSs and the FGS requested an exemption 
from this requirement, claiming that sector vessels should be permitted 
to hire an at-sea monitor through a private contract arrangement with a 
NMFS-approved observer company if that company can respond in less 
time. This request is problematic for several reasons. First, data 
gathered by NMFS observers is more comprehensive and detailed than data 
gathered by at-sea monitors, even though those monitors would be 
acquired through a NMFS-approved observer company. NEFOP observer data 
is necessary to generate accurate discard estimations for sector 
vessels. Second, the NEFOP selection protocol for sectors is a robust 
and consistent sampling scheme which requires all trips to be included 
in the sampling pool from which trips are selected for observer 
coverage. Allowing a sector to self-select certain trips for separate 
sampling undermines the ability for a truly representative sample to be 
selected. This exemption request would reduce observer data available 
to NEFOP and potentially introduce bias into the NEFOP monitoring 
sampling system. Moreover, because of the additional logistical demands 
imposed on the NEFOP resulting from the increased NMFS-funded at-sea 
monitoring program for all groundfish vessels, it is necessary that 
NMFS require a minimum 48-hour notification for all trips. Therefore, 
this exemption request has not been approved.

3. Halibut One-Fish Trip Limit

    The NCCS requested an exemption from the 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. While the sector argued that the exemption may 
actually reduce mortality on halibut stocks because the State seasonal 
limit will be extremely low in FY 2010, possibly only 25 or 30 fish per 
permitted vessel, the 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. Federally permitted vessels 
fishing in the State fishery are currently required to abide by the 
most restrictive regulations, which in this case is one halibut per 
trip. 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. Therefore, this exemption request has not been approved.

4. VMS Requirements

    All 12 of the NFSs requested a VMS exemption that would allow a 
central sector server to relay member vessel catch reports and logbook 
data to NMFS. The sectors anticipate that, in order to facilitate 
electronic data transmission from its vessels to a sector-operated data 
collection and distribution Web portal, an administrative exemption 
would be necessary to allow the server to relay catch reports and 
logbook data on behalf of sector member vessels. 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 is 
not approvable.
    Sector vessels may send their data electronically to the sector to 
facilitate monitoring, but must transmit required reports directly to 
NMFS.

5. eVTRs

    All of the NFSs, as well as the SHS and TSS, requested to use eVTRs 
in place of paper VTRs for transmitting catch data to NMFS. A pilot 
study is currently underway that would use eVTRs as well as paper VTRs 
to determine the viability of eVTRs as a replacement to the paper 
version. Until the pilot study determines that eVTRs can fulfill all 
NMFS requirements, this exemption request cannot be granted.

6. Fairlead Roller Spacing on De-hookers

    The FGS 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. De-hookers with a spacing of less than 6 
inches (15.24 cm) were originally prohibited in a 2002 Secretarial 
interim rule, and then implemented year-round in 2004 under Amendment 
13, to discourage de-hooking strategies that may reduce survival rates 
of discarded fish. The sector argued that a prohibition on de-hookers 
requires a modification to longline gear haulers that is inefficient 
and unnecessary. NMFS believes that reducing the fairlead roller 
spacing on de-hookers will increase the mortality rates of discarded 
fish and, therefore, is not consistent with National Standard 9. Based 
on these concerns, this exemption request has not been approved.

7. Minimum Fish Size Requirements

    The FGS and the TSS requested an exemption from the minimum 
groundfish fish size requirements. The FGS claimed that allowing full 
retention of all catch would eliminate discards and increase 
profitability without additional mortality. Further, the sector 
contended that it should be permitted to land fish less than the 
current minimum fish size because 100-percent discard mortality is 
presently assumed by NMFS, and because the sector's ACE would be 
debited for all discards. The TSS, which requested an exemption from 
the Federal minimum fish size requirements for American plaice and 
witch flounder, stated that many of these fish caught by their member 
vessels are less than 1-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.
    Granting an exemption from minimum fish sizes would present NMFS 
with significant enforcement issues by allowing two different fish 
sizes in the marketplace. Also, NMFS is concerned that this exemption 
could potentially increase the targeting of juvenile fish. As a result 
of these concerns, these exemption requests from the minimum fish size 
requirements have not been approved.

Comments

    Thirty-seven comments were submitted on behalf of 12 individuals, 
the SHS, FGS, NCCS, all 12 NFSs, four fishing industry organizations, 
two professional organizations, two environmental organizations, the 
Council, and the Massachusetts Division of Marine Fisheries (DMF). Only 
comments that were applicable to the proposed measures, including the 
analyses used to support these measures, are responded to in this rule.

[[Page 18121]]

    Many comments from individuals, the SHS, NSC, NFS, NCCS, the 
Associated Fisheries of Maine (AFM), the United National Fishermen's 
Association (UNFA), and the Association of Professional Observers 
(APO), questioned various measures in Amendment 16 that apply to 
sectors. While NMFS understands why these comments were submitted under 
the proposed rule for sector operations plans, contracts, and 
allocations, the comments are more applicable to regulations 
implementing Amendment 16; therefore, comments on the following sector 
management topics were addressed in the Amendment 16 final rule rather 
than this rule (Table 4).

   Table 4--Comments Submitted on This Rule That Are Addressed in the
                         Amendment 16 Final Rule
------------------------------------------------------------------------
                                               Comment  number(s) in
           Comment topic/issue               amendment 16  final rule
------------------------------------------------------------------------
Allocation of NE multispecies to sectors  2, 45
eVTRs...................................  25
Sector management measures (generally)..  44, 45, 47, 48, 49
Transfer of management authority from     45
 NMFS to sector managers.
Sector operation costs..................  46
Sector managers computing daily discard   53
 rates.
Sector annual report requirements.......  55
``Freezing'' of catch history...........  60
Levels of observer coverage.............  61
Differing roles of at-sea monitors and    63, 64, 65, 66, 67
 fishery observers, eligibility
 standards.
ACE overages............................  75
Trading of ACE between sectors..........  80
Permit banks............................  87
------------------------------------------------------------------------

Sectors and Sector Operations Plans

    Comment 1: One individual questioned how sector ACEs would prevent 
discards. The UNFA inquired whether, if a sector had little allocation 
of a relatively abundant species, such as redfish, it could reduce that 
sector's ability to catch other species.
    Response 1: A sector is limited to the ACEs it is allocated, as 
well as any ACE it may acquire through an ACE transfer; and each sector 
vessel must retain all legal-sized groundfish caught when fishing as a 
sector vessel. In addition, a discard rate, calculated by NMFS, will be 
applied to all sector landings and, therefore, sector ACEs. If a sector 
catches its entire ACE for any stock, it cannot fish in that stock area 
for the remainder of the FY, unless additional ACE is acquired. For 
example, if a sector harvests its ACE for GOM cod, it must cease all 
fishing in the GOM cod stock area, except if using exempted gear or in 
an exempted fishery. Alternatively, if a sector reaches its ACE for a 
stock that is found in all stock areas, such as redfish, the sector 
cannot fish in any area unless and until it acquires additional redfish 
ACE. These stock areas are detailed in the Amendment 16 final rule. 
Sectors may acquire additional ACE via an ACE transfer from another 
sector to resume fishing. Furthermore, sector members can be held 
jointly and severally liable for illegal discarding or misreporting 
catch.
    Comment 2: The SHS, the NSC, and all 12 NFS disagreed with the 
requirement that sector managers must increase the frequency for 
submitting sector reports from weekly to daily once 80 percent of any 
sector ACE is reached, or when 20 percent or more of the sector's ACE 
of any stock is harvested for 2 consecutive weeks. The sectors claimed 
this requirement will unnecessarily increase the administrative burden 
on sector managers.
    Response 2: NMFS is requiring increased reporting when specific 
thresholds are reached for several reasons. Close monitoring will help 
prevent a sector from exceeding its ACE, especially after a sector 
reaches an ACE reporting threshold. Due to the small amount of ACE that 
some sectors may have for particular stocks, it is possible for a 
sector to quickly, and unintentionally, reach and exceed an ACE. While 
it is the sector manager's responsibility to ensure that his or her 
sector does not exceed its ACE for any stock, it is ultimately NMFS' 
responsibility to monitor sector catches and prevent overfishing from 
occurring. Therefore, increased reporting by sectors that meet or 
exceed these threshold requirements is necessary. An alternative 
threshold for increasing reporting frequency may be implemented during 
FY 2010 if agreed to by a sector and NMFS.
    Comment 3: The SHS suggested rephrasing a statement in the proposed 
rule which states that ``[s]ector vessels would be required to retain 
all legal-sized allocated groundfish,'' to ``[s]ector vessels fishing 
with gear capable of catching ground fish would be required to retain 
all legal-sized allocated groundfish.''
    Response 3: The Amendment 16 regulations define a sector trip, with 
respect to the NE multispecies fishery, as any trip taken by a sector 
vessel subject to the restrictions and conditions of an approved sector 
operations plan, in which the vessel declared its intent to fish in the 
NE multispecies fishery. There is evidence that suggests that some 
gears considered not capable of catching groundfish (i.e., exempted 
gear) can, in fact, catch groundfish. While this rule does not contain 
any regulations, revising Amendment 16 regulations from an inaccurate 
list of gear-types that are considered incapable of catching groundfish 
may result in an inaccurate account of groundfish catch. Therefore, all 
sector trips are required to retain all legal-sized groundfish.
    Comment 4: Oceana, referencing section 4.2.3.5.3 of the Amendment 
16 Final Environmental Impact Statement (FEIS), which says ``Sector 
operations plans will specify how a sector will monitor its catch to 
assure that sector catch does not exceed the sector allocation,'' 
questioned why the majority of sector operations plans then make 
reference to following NMFS' instructions in calculating discards. For 
example, the SHS's operation plan states that, ``[m]embers of the 
Sector agree that discards will be calculated as directed by NMFS, 
based on 30-percent

[[Page 18122]]

at-sea-monitoring conducted by the NMFS.''
    Response 4: Section 4.2.3.5.3 of Amendment 16 clarifies that 
``[a]ssumed discard rates will be applied to sectors unless an at-sea 
monitoring system (such as a sector's independent monitoring program, a 
Federal monitoring program, or other program that NMFS determines is 
adequate) provides accurate information for use of actual discard 
rates.'' No sector has elected to develop its own at-sea monitoring 
program; therefore, all sectors will utilize the monitoring program 
implemented by NMFS. However, two sectors have stated that they may pay 
monitoring providers for increased at-sea monitoring coverage levels 
above those required and implemented by NMFS and NEFOP. While all 
sectors will begin FY 2010 with an assumed discard rate calculated by 
NMFS, NMFS has developed a monitoring program that will enable it to 
provide each sector with sector-specific, gear specific, discard rates 
that will provide more accuracy than an assumed discard rate. 
Accordingly, NMFS required that each sector operations plan state that 
the sector will utilize discard rates ``as directed by NMFS.'' 
Amendment 16 does not require sectors to independently develop their 
own at-sea catch monitoring system that accounts for discards until FY 
2012. This implementation is phased-in so that sectors have time to 
develop these systems, locate qualified vendors, and have their 
programs approved by NMFS.
    Comment 5: The UNFA questioned how permit holders were expected to 
make an informed decision on sectors when Amendment 16 measures were 
not fully approved.
    Response 5: Although Amendment 16 measures were not approved until 
January 21, 2010, NMFS believes ample information and time were 
provided for eligible NE multispecies permit holders to enroll in a 
sector for FY 2010. In anticipation that Amendment 16 would be 
approved, NMFS mailed all limited access NE multispecies permit holders 
letters dated February 17, 2009, and March 25, 2009, which explained 
the Council's recommended process for determining a permit's PSC for FY 
2010, and notified fishermen of the release of landings data. A letter 
dated May 1, 2009, was sent to permit holders detailing each permit's 
PSC for the five different PSC options being considered by the Council 
for Amendment 16, including the two different allocation baselines the 
Council was considering. Permit holders also received a letter dated 
May 14, 2009, that notified them of the timeline for implementation of 
sectors for FY 2010, explained more about PSCs, and provided them with 
additional vessel and permit data to help them make an informed 
decision about whether or not to join a sector for FY 2010.
    Amendment 16, which includes new sector regulations and 
authorization for up to 19 sectors, was approved by the Council on June 
25, 2009. Following the Council's approval of FW 44 on November 18, 
2009, in which it established NE multispecies ACLs for FY 2010-2012, a 
second round of permit holder letters, which provided each limited 
access NE multispecies permit holder with information about their 
groundfish PSCs, was mailed on December 23, 2009. A proposed rule 
summarizing sector operations plans, contracts, and allocations was 
published in the Federal Register on December 22, 2009, and the 
proposed rule for Amendment 16 was published on December 31, 2009. NE 
multispecies permit holders who could have enrolled in a sector had 
until January 22, 2010, to commit to a particular sector, and have 
until April 30, 2010, to opt out of a sector, unless the contract for 
the sector to which they committed states otherwise. Therefore, NMFS 
believes that sector participants had ample information and time to 
make an informed decision on sectors even though the final rule for 
Amendment 16 had not been published in the Federal Register.
    Comment 6: The Council expressed concern with the process NMFS used 
while reviewing exemption requests within sector operations plans and 
the accompanying EAs. The Council asserted that the review process by 
NMFS ``unilaterally expanded the list of measures from which an 
exemption cannot be granted'' and was inconsistent with the FMP. The 
Council reiterated that Amendment 16 allows sectors to request 
additional exemptions to supplement the universal exemptions approved 
in Amendment 16.
    Response 6: As the proposed rule explained, after an initial review 
of the sector operations plans and EAs, ``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.'' 
NMFS initially contacted the sector managers regarding these 
``exemptions of serious concern'' to clarify its apprehension with 
those particular exemption requests. This initial dialogue provided 
sector managers an opportunity to either remove the exemption 
request(s) from their operations plans and EAs, thus reducing their 
administrative burden, or provide early notice and additional time to 
gather additional supporting evidence for why the exemption request 
should be approved by NMFS. Some sectors removed these exemption 
requests from their operations plans and others did not.
    While this early notification was an attempt by NMFS to maintain 
transparency in its review process, NMFS later recognized that 
requesting sector managers to alter their operations plans and EAs 
prior to public review was not necessarily most beneficial to the 
public. Therefore, NMFS decided to include all legally permissible 
exemption requests in the proposed rule, except those measures that 
were also under consideration in Amendment 16 (i.e., the GOM Sink 
Gillnet Pilot Program). NMFS explained that, if public comment on these 
exemptions of serious concern provided additional support that 
convinced NMFS to change its earlier stance on these exemption 
requests, the sector operations plans and EAs would be revised 
accordingly. Thus, sectors were provided an opportunity to request 
additional regulatory exemptions beyond the universal exemptions 
specified in Amendment 16 and NMFS' decision on these requests are 
documented in the preamble.
    Comment 7: The Council commented that some exemption requests 
contained no analysis supporting approval or disapproval of the sector 
exemptions. The Council expressed concern that the public could not 
provide informed comment on an exemption request that lacks analysis.
    Response 7: As explained in the proposed rule, after completing an 
initial review of 17 sector operations plans and contracts submitted on 
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. At the request of NMFS, some 
of the sectors removed these exemption requests from their operations 
plans, while other sectors did not. After reconsideration, NMFS 
included all of the exemption requests of serious concern in the 
proposed rule, and solicited public comment on these requests. While 
most of the exemption requests that were removed by the sectors lacked 
any supporting analysis in the EAs, sectors were given until January 
27, 2010, to further justify their

[[Page 18123]]

exemption requests prior to publication of the final rule.
    This deadline was necessary because NMFS needed time to review the 
final EAs to meet a May 1, 2010 implementation deadline. However, no 
new analyses were provided during this time or during the public 
comment period on the proposed rule.
    NMFS is aware that the public did not have an opportunity to 
provide comment for those exemption requests that lacked an 
accompanying analysis. Had additional analyses been provided by the 
sector, or if new information had been brought forward from the public 
in support of such exemption requests during the public comment period, 
NMFS would have conducted additional analyses and sought further public 
comment on these exemption requests, consistent with the Administrative 
Procedure Act (APA).
    Comment 8: Prior to publishing the proposed rule, NMFS requested 
that sectors remove exemption requests that repeated measures already 
proposed under Amendment 16. One of the requests removed by several 
sectors pertained to the GOM Sink Gillnet Pilot Program. The GOM Sink 
Gillnet Pilot Program was subsequently disapproved in Amendment 16. The 
SHS, the AFM, the NSC, all 12 NFSs, and the Council asked what actions 
NMFS is considering for exemption requests that were removed from 
sector operations plans due to consideration in Amendment 16, but which 
were then disapproved. These sectors argued that, although the measure 
was disapproved in Amendment 16, sectors should still be able to 
request an exemption from the regulation.
    Response 8: NMFS initially requested that sectors remove exemptions 
from regulations that were being considered in Amendment 16, to reduce 
effort duplication. NMFS will work with sector managers regarding 
reconsideration of this particular exemption request and may approve or 
disapprove these requests in a future rulemaking. NMFS may solicit 
additional public comment on granting approved sectors exemption 
requests to all sectors if additional rulemaking is initiated.
    Comment 9: The APO, the UNFA, and one individual, commented that 
two of the 19 sectors authorized under Amendment 16 neglected to 
provide the necessary operations plans and EAs, which prevented the 
public from reviewing these sectors' environmental impacts.
    Response 9: While 19 sectors were authorized under Amendment 16, 
only 17 sectors submitted operations plans to NMFS for FY 2010. The two 
sectors that did not submit an operations plan or EA to NMFS, the GB 
Cod Hook Sector and the NFS I, are, therefore, not approved in this 
final rule.
    Comment 10: The Council commented that the operations plan 
submitted by NFS IV, which proposes to operate as a lease-only sector 
for FY 2010, is inconsistent with the NFS IV proposal as reviewed and 
approved for Amendment 16. In addition, the DMF commented that a lease-
only sector does not meet the Council's intent for sectors.
    Response 10: NMFS contends that all sector proposals submitted to 
and reviewed by the Council for inclusion in Amendment 16 constituted 
an initial submission that was offered by the sector as a best estimate 
of what its membership would resemble. Section 4.3.6 of Amendment 16 
says, ``[w]hen submitted, most applications were based on the existing 
sector regulations that were adopted by Amendment 13. Since several 
Council policies may revise those regulations, some of the applications 
may be modified.'' It was understood by the Council that exact 
membership numbers and details for each sector were subject to change, 
and that these changes would be made available for public review and 
comment within the proposed rule for sector operations plans, 
contracts, and allocations was published. Following the extension of 
the January 22, 2010, enrollment deadline, many sectors have 
transformed dramatically from what each sector presented to the Council 
for consideration in Amendment 16. For instance, in Amendment 16, the 
SHS predicted its membership to be comprised of ``more than 70'' permit 
holders; as of January 22, 2010, there were 129 permits associated with 
the SHS. Section 4.2.3.2 of Amendment 16 details requirements for a 
sector, such as providing a list of all vessels that would be part of 
the sector, including an indication for each vessel of whether it would 
continue to fish, and a detailed plan for consolidation of ACE, if any 
is desired, as well as an explanation of the quantity and duration of 
any redistribution of ACE or DAS within the sector. NFS IV has met 
these and all other requirements in section 4.2.3.2. Moreover, 
Amendment 16 does not require a sector to actively engage in fishing 
operations. In fact, section 4.2.3.7 of Amendment 16 states that ``all 
or a portion of a sector's ACE of any stock can be transferred to 
another sector.'' There are currently no regulations that prevent a 
sector from forming and transferring its entire ACE to another sector.
    Lastly, NMFS endorses the transparent approach taken by the NFS IV. 
For instance, if the NFS IV was not permitted to operate as a lease-
only sector, it is likely that the permits within this sector would 
have simply been scattered among all 12 NFS, making it more difficult 
to determine the environmental impacts of these permits and to follow 
the resulting consolidation and potential redirection of effort 
associated with the permits.
    Comment 11: One individual and the UNFA commented that the proposed 
rule did not address recreational sectors.
    Response 11: Under Amendment 16, only limited access NE 
multispecies permit holders can join a sector. It should be noted, 
though, that no one from the recreational industry requested that a 
recreational sector be included as an option in Amendment 16; 
therefore, the Council did not approve any recreational sectors in 
Amendment 16.
    Comment 12: The UNFA commented that the proposed sector rule is in 
violation of the Paperwork Reduction Act (PRA) because the sector 
reporting requirements duplicate existing requirements.
    Response 12: This rule does not implement reporting requirements. 
The sector reporting requirements are established in Amendment 16 and 
were addressed in the Amendment 16 proposed and final rules consistent 
with the PRA.

Sector EAs

    Comment 13: Oceana commented that fundamental information about the 
sectors, including sector participants, expected fishing activity, and 
sector administration by NMFS is vague or non-existent.
    Response 13: Each sector EA contains a description of the sector, 
including numbers of permit holders, active vessels, gear types, 
geographic areas in which sector members will fish, and a description 
of the primary ports for the sector's landings. While the EAs were 
being prepared, NMFS surveyed each sector manager or representative 
regarding their sector's expected fishing patterns and potential 
redirection of effort; in all cases the sector managers/representatives 
responded that current fishing behavior and patterns would not change 
as a result of operating under sector management in FY 2010. Since 
sector allocation will be managed closely through mandatory reporting 
and monitoring requirements, the operations plan for each sector 
includes a detailed monitoring plan developed in concert with NMFS to 
which members must adhere.

[[Page 18124]]

    Comment 14: For FY 2010, 17 sector operations plans, each 
accompanied by an EA, were included in the proposed rule. Oceana 
commented that, due to the significant changes that will occur under 
Amendment 16 and the wide range of sector operations plans, all sector 
environmental impacts must be incorporated into one single NEPA 
document that explains, analyzes, and considers alternatives for the 
management of the groundfish fishery overall.
    Response 14: NMFS is not required to prepare one NEPA document for 
all the sector management alternatives considered for the groundfish 
fishery. As mentioned in the introductory section of the EAs for each 
of the 17 sectors, the analysis in each EA tiers off the information 
and analysis contained in the Amendment 16 FEIS. The Amendment 16 FEIS 
analyzes measures that achieve the necessary mortality targets, provide 
opportunities to target healthy stocks, mitigate the economic impacts 
of the measures, and improve administration of the fishery. In the 
FEIS, 17 new sectors are authorized and new criteria are set for these 
sectors, as well as the existing 2 sectors, regarding development of 
their operations plans. The impacts associated with the specific 
actions, including regulatory exemptions, of each sector are captured 
in the individual sector EAs, while the impacts associated with 
Amendment 16 (the action authorizing the formation of sectors and their 
general rules and regulations) are more broadly analyzed in the 
Amendment 16 FEIS. As stated in the Council on Environmental Quality's 
(CEQ) Regulations for Implementing the Procedural Provisions of NEPA 
(40 CFR 1502.20), ``tiering'' is encouraged to eliminate repetitive 
discussions of the same issues and focuses on the actual issues ripe 
for decision at each level of environmental review. The cumulative 
impacts of all sectors operating under their allocations or ACE have 
been considered, and this assessment is found in every sector EA.
    Comment 15: Oceana commented that, without a firm binding statement 
of a sector's enrollment, quota allocation, and its intended plan of 
operations for FY 2010, the public is left to review an incomplete EA 
that could change significantly between the end of the current comment 
period and the beginning of FY 2010. Additionally, Oceana stated that 
NMFS must require meaningful information as the basis of these 
important documents and provide for resubmission of NEPA documentation 
if changes are made to sectors, as currently proposed.
    Response 15: The September 1, 2009, rosters represented 
approximately 95 percent of the groundfish ACLs, which was discussed 
and analyzed in the cumulative effects assessment of each individual 
sector EA. Because harvest of 95 percent of the ACLs by sectors was 
already analyzed in the EAs, any additional individual that decides to 
join a sector after the September 1, 2009, date would not substantially 
alter the impacts from what had been analyzed in the draft EAs, unless, 
as discussed in Section 1 of each EA, additional members triggered 
specific criteria that may necessitate a supplemental EA (i.e., 
different fishing behaviors, gears, geographic areas). Furthermore, 
each of the EAs considered unlimited trading of ACE between sectors, as 
permitted in Amendment 16, which could increase or decrease an 
individual sector's ACE. Therefore, impacts associated with any 
increases or decreases in sector ACEs due to the addition of permits 
after September 1, 2009, are within the range analyzed in the EAs. As 
of January 22, 2010, 812 of 1,477 NE multispecies permits, which 
account for more than 98 percent of groundfish historically landed, had 
enrolled in a sector.
    Comment 16: Oceana commented that, although the sectors have 
provided preliminary non-binding information about vessels that will 
operate in each sector, information about gear usage is crude and that 
accurate and precise information about each sector's fishing plans must 
be included in each of the sector EA documents before they can be 
approved.
    Response 16: The EAs that were available to the public at the time 
of the proposed rule were prepared based on the rosters and gear types 
represented by the member vessels as of September 1, 2009. The EAs have 
since been revised to analyze the sector rosters and gear types as of 
January 22, 2010. Although NMFS provided an additional opportunity for 
sectors to re-open their rosters to allow for new members to enroll or 
transfer from one sector to another, dramatic change in the composition 
of each sector's fleet did not occur. As of January 22, 2010, 13 of the 
17 sectors will predominantly fish with trawl gear; two will 
predominantly fish with fixed gear; and one is comprised equally of 
gillnetters and trawlers. Further, the overall character of the fleet 
that currently operates under common pool management measures will not 
change due to the implementation of the FY 2010 sectors. As explained 
in response 10, sectors stated in their operations plans that fishing 
behavior and patterns for sector member vessels would not change as a 
result of operating under sector management. Because sector members 
have until April 30, 2010, the day prior to the start of FY 2010, to 
withdraw from their sector and fish in the common pool, the potential 
make-up of the sectors (i.e., gear usage ratio, number of members) 
remains subject to change.
    Comment 17: Oceana commented that the use of particular gears (for 
example, bottom trawls) and the effects of fishing on EFH by sector 
vessels are tersely discussed in many of the EA documents that support 
each sector. Oceana further asserted that, despite boilerplate findings 
in these EAs that demonstrate significant impacts of bottom-tending 
mobile gears on EFH, there is no discussion or exploration of 
alternatives to these gears. Finally, Oceana claimed that failing to 
complete a robust analysis of gear usage and fully explore 
alternatives, including requiring other gears to be used to prosecute 
the fishery, violates NEPA.
    Response 17: The purpose and need of these EAs, as required by 
Amendment 16, was to assess impacts of each sector's operations plan. 
Significant impacts to EFH by fishing gears for sector vessels were 
discussed in the Amendment 16 FEIS and are not repeated in these EAs. 
Use of bottom-tending mobile gear by fishermen would have the same 
impact to habitat, whether vessels were operating under the Amendment 
16 common pool rules or under the harvest rules specified in the sector 
operations plan, because the overall mortality limits constraining 
effort are the same for the management options.
    Comment 18: Oceana commented that section 4.1.4 of the sector EAs, 
which consists of documents prepared by Entrix, Inc. [``Gear Types and 
Interaction with Habitat''] seem to be virtually identical, and the 
discussion of a specific sector's effects on EFH is inadequate.
    Response 18: According to CEQ regulations (40 CFR 1502.15), the 
Affected Environment section of an EA must describe the environment of 
the area(s) to be affected by the alternatives under consideration, and 
the description should be no longer than is necessary to understand the 
effects of the alternatives. In compliance with CEQ regulations, the 
Affected Environment section in the sector EAs (section 4) is a 
description of the valued ecosystem components (VECs); physical 
environment (including EFH); the allocated target species; the non-
allocated target and bycatch species; protected resources; and the 
human communities, including the social and economic environment. 
Section 5 of

[[Page 18125]]

each sector EA, ``Impacts of the Proposed Action and Alternatives'' 
discusses sector-specific impacts on EFH and other VECs ecosystem 
components. Since the composition of gear used by the fleet is not 
changing as a result of the formation of sectors, overall impacts to 
habitat and EFH are expected to be no different than under current 
management measures.

Exemption Requests

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

    Comment 19: The AFM, NSC, FGS, SHS, each NFS, Council, DMF, 
Environmental Defense Fund (EDF), Cape Cod Commercial Hook Fishermen's 
Association (CCCHFA), and four individuals commented in support of the 
exemption request from the 120-day block requirement out of the fishery 
for Day gillnet vessels. They stated that this regulation is an effort 
control that is no longer necessary in a fishery managed under an ACE, 
and that FY 2010 allocations make this effort control unnecessary. The 
AFM, SHS, and one individual pointed out that this exemption would 
reduce the administrative burden on sectors. Addressing NMFS' concern 
about possible untended and/or ghost gear that could result from 
granting this exemption request, the Council and three individuals 
commented that efforts by fishermen to prevent gear loss and maintain 
product quality would prevent gear from being tended less often.
    Response 19: NMFS agrees with these comments and has approved this 
exemption request for FY 2010.
    Comment 20: The Council commented that the 120-day block 
requirement out of the fishery for Day gillnet vessels was not approved 
in Amendment 7, as stated in the sector proposed rule, but rather was 
adopted in FW 20 (62 FR 15382; April 1, 1997) to make the effort 
control program more effective for Day gillnet vessels.
    Response 20: NMFS agrees and has acknowledged this error in the 
preamble to this final rule.
    Comment 21: The Council disagrees that exemption from the 120-day 
block requirement out of the fishery for Day gillnet vessels could lead 
to an increase in gear days, and the DMF commented that the concerns 
expressed by NMFS in the proposed rule are inconsistent with the 
``philosophy that sectors will fish in a way to characterize themselves 
as stewards of the resource.''
    Response 21: In the proposed rule, NMFS stated, ``if some vessels 
are not selective and/or if they catch less fish, CPUE could decrease 
and more fixed gear could be deployed.'' Although it is unclear what 
affect sector vessels may have on CPUE, NMFS agrees with the commenters 
that CPUE will most likely increase, and has approved the exemption 
requests from the 120-day block requirement out of the fishery for Day 
gillnet vessels.

Prohibition on a Vessel Hauling Another Vessel's Gillnet Gear

    Comment 22: The NSC, and the 12 NFS it supports, commented that NFS 
III and XI requested an exemption from the prohibition on a vessel 
hauling another vessel's gillnet gear to offset NMFS' concerns 
regarding potential increases in CPUE from exempting the 120-day block 
requirement out of the fishery for Day gillnet vessels. DMF, EDF, and 
the FGS commented in support of these sectors' request for the purpose 
of increasing harvest flexibility through the use of community fixed 
gear.
    Response 22: NMFS endorses the efforts by the NFSs III and XI to 
improve CPUE and reduce gear days and has approved their request for an 
exemption from the prohibition on a vessel hauling another vessel's 
gillnet gear.

20-Day Spawning Block Requirement Out of the Fishery

    Comment 23: The AFM, SHS, and six individuals supporting those 
sectors' exemption requests from the 20-day spawning block requirement 
out of the fishery, said that this regulation is an effort control no 
longer necessary in a fishery managed under an ACE, that reduced 
allocations for FY 2010 make this effort control unnecessary, and that 
this exemption would reduce the administrative burden on sectors. The 
AFM, SHS, EDF, the Council, and five individuals commented that the 20-
day spawning block does not cover all peak spawning times, that the 
benefits of this regulation are unclear, and that this measure is 
therefore ineffective. The Council further commented that the 20-day 
spawning block was developed without any analysis on spawning stocks, 
and DMF supported the exemption request provided that each sector 
included a detailed strategy for avoiding pre-spawning and spawning 
stocks. One individual suggested fishermen are less likely to target 
spawning stocks since market prices are lower for spawning fish. The 
NCCS opposed this exemption request, claiming this measure set a 
precedent for the protection of spawning fish.
    Response 23: NMFS agrees with these comments and has approved this 
exemption request from the 20-day spawning block for FY 2010. While 
NMFS supports the protection of spawning stocks, prohibiting vessels 
from fishing 20 days within a 3-month spawning period will likely 
provide minimal benefit to the stocks.

Limitation on the Number of Gillnets Imposed on Day Gillnet Vessels

    Comment 24: The AFM, SHS, EDF, and four individuals supported 
easing the limitation on the number of gillnets for Day gillnet vessels 
to 150 nets in each of the RMAs. These commenters stated that this 
regulation is an effort control no longer necessary in a fishery 
managed under an ACE, and that reduced allocations for FY 2010 make 
this effort control unnecessary. The FGS supported this exemption 
because it would provide increased flexibility for fishermen while 
minimizing environmental impacts.
    Response 24: NMFS agrees with these comments and has approved the 
SHS's request for exemption from the limitation on the number of 
gillnets for Day gillnet vessels in the SHS sector (not to exceed 150 
gillnets).
    Comment 25: Comments by the AFM and four individuals argued that 
NMFS' Protected Resources Division extrapolates takes of marine mammals 
based on the amount of fish caught in gillnets, not by the number of 
gillnets in the water.
    Response 25: Estimating the number of takes of marine mammals is 
not equivalent to predicting potential fixed gear interactions with 
protected resources. The proposed rule explained that protected 
resources could be ``negatively impacted by an increase in gear days 
and more fishing effort,'' as well as ``spatial and temporal changes in 
fixed gear location and how these changes interact with protected 
species.'' NMFS believes that, while an increase in the number of 
gillnets could increase gear interactions with protected species, 
simply changing where and when the gear is used could also have a 
negative (or positive) impact on protected resources. Nonetheless, 
granting this exemption will likely increase CPUE and reduce gear 
interaction with protected resources, and therefore, it has been 
approved.
    Comment 26: Comments by the AFM and four individuals contended that 
NMFS incorrectly stated that nets in the water will increase in the GB 
and SNE RMAs, as gillnet vessels can already fish 150 monkfish nets in 
those areas.
    Response 26: Gillnet restrictions for vessels with Category C, D, 
F, G, and H monkfish permits that also possess a limited access NE 
multispecies permit (Sec.  648.92(b)(8)(i)(B)), do in fact allow

[[Page 18126]]

vessels fishing under a monkfish DAS to fish with, haul, or possess, 
any combination of monkfish, roundfish, and flatfish nets, up to 150 
total gillnets. However, current groundfish gear restrictions in the 
groundfish RMAs 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 SNE and MA RMAs (Sec. Sec.  
648.80(b)(2)(iv) and 648.80(c)(2)(v), respectively). Thus, not all NE 
multispecies vessels (vessels without a Category C, D, F, G, or H 
monkfish permit) are able to fish 150 nets in those areas.
    Comment 27: The AFM commented that gillnet vessel owners should be 
allowed to change their annual designation as Day or Trip gillnet 
vessel for FY 2010 once NMFS has decided on the fate of this exemption 
request.
    Response 27: Consistent with current policy, gillnet vessels may 
change their designation as either a Day or Trip gillnet vessel within 
45 days of permit issuance, provided the vessel has not yet fished in 
the FY. This final rule, therefore, provides opportunity for sector 
vessels to change their gillnet designation prior to the start of FY 
2010.
    Comment 28: The DMF opposed granting an exemption from regulations 
limiting the number of gillnets for Day gillnet vessels due to a lack 
of ``meaningful'' at-sea sampling coverage for sectors until FY 2012. 
DMF expressed concern that gillnets generate a large amount of bycatch, 
which could result in unrecorded discards as SHS vessels attempt to 
prevent ACEs from being exceeded.
    Response 28: When the Council adopted Amendment 16, the Council 
neither selected the option to require 100-percent observer coverage, 
nor required sectors or the common pool to be subject to an at-sea 
monitoring program in FY 2010. However, NMFS agrees with the basic 
concept advocated by DMF that higher levels of observer coverage are 
more effective at collecting the data necessary to monitor groundfish 
landings and discards under Amendment 16. NMFS has funding to provide 
approximately 38-percent at-sea monitoring coverage for sector vessels, 
in addition to fully funding 50-percent dockside monitoring coverage 
for FY 2010. This is a significant increase in current at-sea 
monitoring levels, and dockside monitoring is entirely new. Such 
coverage levels should provide sufficient information to more than meet 
the minimum requirements of the Standard Bycatch Reporting Methodology 
(SBRM), while providing additional coverage to monitor sector 
operations under Amendment 16. Distribution of such funds was intended 
to accomplish the dual goal of monitoring both at-sea catch and 
dockside landings to ensure that discards are accurately estimated and 
landings data are validated.
    Comment 29: One individual stated that permitting the SHS to fish 
up to 150 gillnets in any of the Rolling Closure Areas was an 
inequitable advantage for the sector over common pool vessels, and that 
it would have a detrimental effect on other fisheries.
    Response 29: All limited access NE multispecies permit holders have 
been provided the opportunity to enroll in a sector. Sector vessels 
have been granted exemptions from several regulations that common pool 
vessels are still required to follow because each sector voluntarily 
accepted increased responsibilities in exchange for an ACE to limit its 
catch. NMFS believes that requiring sectors to retain all legal-sized 
groundfish and to deduct all non-exempted catch (both landings and 
discards) from its ACE will increase the accountability of sector 
vessels and will reduce the impact from groundfish vessels on other 
fisheries.

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

    Comment 30: The DMF, EDF, CCCHFA, and FGS, commented in support of 
exempting FGS vessels from the limit on the number of gillnets that may 
be hauled on GB when fishing under a groundfish/monkfish DAS.
    Response 30: NMFS believes this exemption will enhance fishing 
vessel flexibility and improve CPUE while reducing the environmental 
impact of fishing and, therefore, has approved this exemption request.

Limitation on the Number of Hooks That May Be Fished

    Comment 31: The CCCHFA and FGS both supported the FGS' exemption 
request from the limit on the number of hooks that may be fished. DMF 
also endorsed this request, provided the sector offers rationale for 
why the exemption is necessary, includes details on what their maximum 
hook limit would be, and provides a strategy for avoiding pre-spawning 
and spawning stocks.
    Response 31: NMFS encourages the use of fishing gear that results 
in minimal environmental impact and believes that the FGS provided 
adequate rationale for their hook gear exemption request in their 
operations plan and EA. NMFS does not believe it is necessary for the 
FGS to detail how many hooks will be used, but encourages the FGS to 
develop a strategy for avoiding spawning stocks.

Length and Horsepower Restrictions on DAS Leasing

    Comment 32: EDF, AFM, and five individuals commented in support of 
exemption requests made by the SHS and TSS from the length and 
horsepower restrictions on DAS leasing. EDF and one individual stated 
that there was no need for such an effort control while the sectors are 
restricted to an ACE. Three other individuals and AFM claimed that 
monkfish bycatch would be better accounted for as a result of this 
exemption. An additional individual commented that DAS and quotas would 
remain intertwined until a comprehensive plan is completed, and this 
exemption will ease the transition.
    Response 32: NMFS agrees that restricting a sector to its ACE 
reduces the need for DAS leasing restrictions and concurs that granting 
this exemption will ease the transition for limited access monkfish and 
NE multispecies limited access permitted vessels into sectors and catch 
share management. Additional horsepower could allow a vessel to catch 
more fish in less time with less of an impact on the environment. 
Because vessel replacements will continue to be restricted by length 
overall and horsepower limits, this exemption is not expected to change 
the character of the fleet. Although an exemption from HP restrictions 
could allow a vessel to catch fish more quickly, NMFS disagrees that 
this exemption would result in improved accounting of bycatch. This 
exemption would enable SHS and TSS permitted vessels to better match 
their groundfish DAS with monkfish DAS and fish groundfish DAS and 
monkfish DAS simultaneously. This would allow for sector vessels to 
retain more monkfish and groundfish, increase vessel profits, and 
reduce regulatory discards.
    Comment 33: Three individuals commented in opposition to the 
exemption from DAS and horsepower leasing restrictions. Two of these 
individuals were concerned about a re-direction of effort toward the 
monkfish and skate fisheries, and the third individual commented that, 
because DAS is the primary mortality control for monkfish, these 
regulations should remain.
    Response 33: NMFS surveyed the sectors' expected fishing patterns 
and potential redirection of effort for FY 2010, and, in all cases, the 
sectors

[[Page 18127]]

responded that current fishing behavior and patterns would not change 
as a result of operating under sector management. Further, monkfish 
mortality controls in the Monkfish FMP are not based on groundfish DAS. 
Sector vessels are still required to use a monkfish DAS when targeting 
monkfish.
    Comment 34: DMF questioned whether DAS that otherwise would have 
been used by sector vessels for groundfish fishing could now be leased 
to sector vessels targeting monkfish.
    Response 34: Since sector vessels are no longer subject to 
groundfish DAS, sector vessels that do not plan to harvest more than 
the incidental catch limit of monkfish could lease their groundfish DAS 
to another sector vessel that intends to target monkfish. Sector 
vessels fishing on a sector trip for monkfish, or any other non-
groundfish fishery that is not exempted (e.g., skates), are required to 
use a groundfish DAS. However, the monkfish FMP mortality controls are 
not based on groundfish DAS, so this provision would not compromise the 
ability of the monkfish FMP to meet its mortality targets.

Exemption Requests That Were Not Approved

GOM Rolling Closure Areas

    Comment 35: NSC, AFM and one individual asserted that the GOM 
Rolling Closure Areas were not designed to protect spawning fish. NSC 
argued that it was therefore inappropriate to reject such a request 
based on ancillary benefits that Rolling Closure Areas may provide to 
spawning fish and marine mammals. AFM, SHS, and one individual 
specified that the Rolling Closure Areas were no longer necessary for 
mortality control since sectors would be limited to their ACEs. 
Conversely, EDF commented that ancillary benefits may be sufficient 
justification for denying exemption requests. DMF, CCCHFA, and NCCS 
commented that protection of spawning fish was a part of the Rolling 
Closure Areas, while CCCHFA and FGS specifically commented that 
spawning fish require additional protections.
    The SHS argued in their EA that fishing methods and areas fished 
would not result in additional interactions between gear and protected 
resources. The six NFSs that requested exemption from 30-minute blocks 
124, 125, 132, and 133 in April contended in their operations plans and 
contracts that their members' knowledge would enable them to avoid 
spawning aggregations of fish and that not granting their request could 
prematurely end commercial access to haddock in those areas. The NFSs 
provided a strategy to minimize the impacts to spawning fish while 
promoting benefits to sector members.
    Response 35: NMFS agrees that the Rolling Closure Areas were 
implemented to protect spawning fish. Although FW 25 to the FMP 
initially implemented the closures to protect groundfish stocks in 
1998, FW 26 identified and enhanced these areas, which were referred to 
as ``cod spawning'' closures. The final rule implementing FW 26 
specified that the Council undertook the action because of the 
``opportunity to delay fishing mortality on mature cod during the 
spring spawning period, a time when stocks aggregate and are 
particularly vulnerable to fishing pressure.'' Based on this 
information, NMFS is reluctant at this time to grant further exemptions 
to the GOM Rolling Closure Areas beyond the universal exemptions 
approved in Amendment 16, and has, therefore, not approved the sectors' 
additional GOM Rolling Closure Area exemption requests.
    Comment 36: The Council, AFM, SHS and two individuals commented 
that the ``Council endorses requests made by sectors that they be 
exempt from the rolling closure block 138 in May.'' SHS, AFM and one 
individual stated that block 138 is the only block closed east of 
70[deg] W. long. and is particularly important to Maine and New 
Hampshire vessels that fish close to shore. One individual commented 
that exemption from block 138 would reduce an administrative burden 
placed on vessels and another individual supports this exemption in 
order to give vessels additional flexibility.
    Response 36: NMFS acknowledges the Council's endorsement of 
sectors' right to request additional exemptions from Rolling Closure 
Areas and, therefore, solicited comment on these requested exemptions. 
However, NMFS has disapproved the request for an exemption from block 
138 for the reasons set forth in the preamble: These exemption requests 
fail to consider that direct targeting of spawning aggregations can 
adversely impact the reproductive potential of a stock as opposed to 
post-spawning mortality; NEFSC spring survey data for 2006-2008 
indicate that very high concentrations of cod (highest quartile of tows 
by weight) continue to be present in the April GOM Rolling Closure 
Area, especially west of 69[deg]30' W. long., while moderate 
concentrations of cod are found in block 138; justification that 
demonstrates that spawning fish could be avoided was not provided by 
the individual sectors (see comments and response); and the GOM Rolling 
Closure Areas also afford some protection to harbor porpoise and other 
marine mammals. As a result of these concerns, this exemption request 
was not approved.
    Comment 37: The NSC commented that in an attempt to offset 
potential effort on spawning stocks that could result from an exemption 
from blocks 124, 125, 132, and 133 in April, NFSs did not request 
exemption from the 20-day spawning block that is required by all 
vessels. These NFS sectors also offered to limit the percentage of 
their cod allocations that could be taken during April to further 
address any common pool inequities.
    Response 37: NMFS acknowledges that the NFSs' operations plans 
included strategies to mitigate potential adverse impacts of additional 
exemptions from the Rolling Closure Areas. However, NMFS has 
disapproved the request for an exemption from 30-minute blocks 124, 
125, 132, and 133 in April because the rationale provided was 
insufficient for the reasons explained earlier in the preamble and 
above under Response 37.
    Comment 38: NSC requested that NMFS not defer approval of 
additional Rolling Closure Area exemptions until analyzed by the 
Council's PDT, since there has been a lack of data since the areas 
closed in 1998 under FW 25.
    Response 38: NMFS disagrees that there is a lack of data and has 
used data from the NEFSC's annual spring bottom trawl surveys in 
evaluating these exemptions. Data from 2006 through 2008 demonstrate 
that many of the highest catches of Atlantic cod occur in most of the 
30-minute blocks from which sectors have requested exemptions. NEFSC 
reviewed the exemptions requests and have raised concerns that granting 
exemptions from blocks 124, 125, 132, and 133 in April would have 
severe negative impacts on spawning fish, while granting an exemption 
from block 138 in May would have a moderate negative impact on spawning 
fish.
    Comment 39: DMF commented that NMFS should not approve any 
additional exemptions from GOM Rolling Closure Areas until sectors have 
operated for at least 1 year.
    Response 39: NMFS acknowledges this comment and points out that 
additional exemption requests from the GOM Rolling Closure Areas have 
not been granted for FY 2010.

[[Page 18128]]

72-Hour Observer Notification Requirement

    Comment 40: The NSC and all 12 NFSs support an exemption from the 
72-hour observer notification requirement. EDF argued that, while the 
full suite of data collected by NEFOP is valuable, the primary 
monitoring goal of catch shares is tracking catch. EDF opined that, if 
a sector can hire an approved third-party at-sea monitor, they should 
be freed from the constraints of the NEFOP program. However, EDF also 
proposed setting a cap on how many trips could be exempted from NEFOP, 
to ensure NEFOP goals are not undermined. The FGS commented that the 
NEFOP notice requirement of 72 hour disproportionately impacts day 
boats, which cannot accurately forecast trips 3 days in advance and, 
therefore, are generally excluded from fisheries requiring such notice. 
DMF opposes the exemption, concurring with NMFS' rationale in the 
proposed rule.
    Response 40: NMFS disagrees with EDF's assertion. A catch-share 
based fishery increases the importance of timely and accurate discard 
monitoring as well as landings. NMFS' intent in implementing additional 
at-sea monitoring (30-percent of trips, in addition to existing NEFOP 
coverage for sector vessels) is to track catch (landings and discards). 
In order to properly select trips for observer coverage and at-sea 
monitoring coverage, NEFOP must be notified of all trips.
    NMFS also disagrees with FGS' assertion that day boats are 
prevented from participating because of the NEFOP notice requirement. 
Day vessels are currently allowed to notify NEFOP of all possible trips 
for a week at a time with no penalty for canceling trips. This allows 
day vessels to make decisions on a daily basis without undermining trip 
selection by NEFOP. This provision remains unchanged for sector dayboat 
vessels for FY 2010. Further, NMFS has reduced the requirement from 72- 
to 48-hour for all groundfish vessels in the final rule implementing 
Amendment 16 to ease the burden on vessels.

Halibut One-Fish Trip Limit

    Comment 41: NCCS, the only sector to request exemption from the 
halibut one-fish trip limit, commented that halibut is showing a 
recovery in eastern Maine and that Maine's State fishery for Atlantic 
halibut provides valuable stock information. The NCCS also stated that 
allowing vessels to participate in the Maine State fishery would keep 
mortality of Atlantic halibut consistent with current fishing 
practices. EDF commented in support of the exemption request, asserting 
that Canadian data shows a more robust Atlantic halibut population in 
Canadian waters than assessments focused on U.S. waters suggest. 
Conversely, the Council disagreed with allowing an exemption from the 
one-fish halibut provision, noting that Amendment 16 requires a 27-
percent reduction in Atlantic halibut mortality and that this exemption 
request is inconsistent with the rebuilding plan in Amendment 16.
    Response 41: NMFS agrees with the Council's comment that Atlantic 
halibut still requires a substantial mortality reduction. NMFS agrees 
with the Council that maintaining current mortality rules for Atlantic 
halibut would be inconsistent with the rebuilding program, and has 
therefore disapproved this exemption request. Furthermore, NMFS 
disagrees with NCCS that this exemption would maintain current Atlantic 
halibut mortality levels because the NCCS vessels are currently 
prohibited from participating in the Maine State fishery.
    Comment 42: NCCS argued that adopting the State fishery's 
restrictive annual limit could result in lower total halibut landings. 
The Council commented that it is unclear how fishing under State limits 
would affect Atlantic halibut mortality.
    Response 42: NMFS disagrees with this comment by the NCCS. All 
Federally permitted vessels are currently prohibited from targeting 
Atlantic halibut. Maine, however, allows a fishery for State-only 
permitted vessels to target Atlantic halibut, with the result that 
participating vessels change their operations with the express goal of 
increasing their catch of Atlantic halibut. The one-fish trip limit for 
Atlantic halibut in the Federal rebuilding program prevents a targeted 
fishery while reducing discard of bycatch.

VMS Requirements

    Comment 43: NSC and 12 NFSs argued for the ability to utilize a 
central sector server to relay member vessel catch reports and logbook 
data to NMFS, commenting that they began development of a NFS sector 
data system prior to NMFS hosting workshops on sector monitoring, that 
the NFS is dependent on their integrated systems, and that NMFS should 
immediately adopt electronic signature technology, currently in use by 
financial and high-technology industries, which the NFS sectors are 
prepared to deploy. DMF opposed this exemption, based on NMFS' 
rationale that these data would not be tamper-proof.
    Response 43: NMFS acknowledges that NSC initiated software 
development prior to the first workshop NMFS held in June 2009, but 
disagrees that this is sufficient sole rationale for NMFS to approve 
the NFSs exemption request from NMFS' VMS requirements. The NSC has not 
yet responded to NMFS' request for an electronic signature proposal to 
review. Electronic signatures are one aspect of the NMFS-sponsored eVTR 
pilot study (discussed in more detail below) currently underway as a 
means to evaluate exemptions that would facilitate electronic exchange 
of data between sector vessels, sector managers, and NMFS.
    Comment 44: The Council commented that a VMS exemption request 
appears inconsistent with the Amendment 16 measures prohibiting sectors 
from requesting exemptions from reporting requirements.
    Response 44: NMFS disagrees, as this exemption request is not from 
the reporting requirement, but from the specified method for meeting 
the reporting requirement. Still, the exemption request from VMS 
reporting requirements was not approved.
    Comment 45: EDF commented that real-time reporting is critical and 
this exemption would facilitate timely reporting.
    Response 45: NMFS agrees that real-time reporting is critical and 
believes that this exemption and others like it could be granted once 
the pilot study that is currently under way determines a method that 
fulfills all necessary requirements mandated by NMFS.

eVTRs

    Comment 46: DMF asserted that an exemption from paper VTRs should 
not be granted until the viability of eVTRs as a replacement for paper 
VTRs is tested.
    Response 46: NMFS agrees and has initiated a pilot study to test 
the feasibility of using eVTRs to fulfill all paper VTR requirements.
    Comment 47: CCCHFA and FGS referred to previous eVTR pilot studies 
in the Northeast and urged NMFS to use these as a basis to approve this 
exemption for FY 2010. EDF asserted that eVTR tests in other regions 
appear to document eVTRs as successful.
    Response 47: NMFS acknowledges that some eVTR testing has 
previously occurred in the Northeast region, but disagrees this is 
sufficient basis for approving eVTRs at this time. Previous studies did 
not comprehensively study the use of multiple systems or the use

[[Page 18129]]

of eVTRs to meet all requirements of paper VTRs. Remaining unresolved 
issues with approving eVTRs will be tested in the pilot study mentioned 
above.
    Comment 48: FGS asserted that paper-based reporting results in 
delayed analysis and promotes ``failing'' management policies. EDF 
further asserted that the paper system has inherent flaws, including 
time lags and the opportunity for human error. NSC, the 12 NFSs, and 
CCCHFA urged NMFS to approve eVTRs as quickly as possible.
    Response 48: NMFS disagrees that paper-based reporting systems 
promote failing management policies. However, NMFS does agree that 
eVTRs should be approved as quickly as possible if they are shown to 
fulfill all paper VTR requirements.
    Comment 49: NSC and all 12 NFSs commented that the proposed use of 
paper VTRs by sector managers for ACE monitoring is an unachievable 
requirement that will drain the limited time and resources of fishermen 
and sectors. NSC also pointed out that disapproval of an exemption from 
paper VTRs fails to recognize that NMFS must wait for paper VTRs to 
accomplish catch monitoring while the private sector is expected to 
accomplish the task in 36 hours.
    Response 49: NMFS disagrees that the use of paper VTRs establishes 
an unachievable requirement for sectors. Sector members are required to 
provide copies of their VTRs to the sector manager within 24 hours of 
the end of each trip. Each reporting week ends on Saturday and sector 
weekly reports are due to NMFS by 23:59 of the following Thursday. 
Therefore, sector managers will have a minimum of 96 hours to 
incorporate data from paper VTRs in their weekly report to NMFS. This 
information will provide NMFS with more real-time monitoring 
information.
    Comment 50: NSC and all 12 NFSs stated that it is inconsistent for 
NMFS to deny an exemption to use eVTRs until tested while implementing 
a requirement for trip end hails that will use the same VMS technology.
    Response 50: NMFS is not implementing a requirement for either trip 
start or trip end hails to be sent via VMS. The Dockside Monitoring 
Standards require that the transmission of all vessel hails be either 
as an e-mail via VMS, or some other electronic method, as determined by 
the sector. This standard was specifically set to allow sectors to 
choose and develop any electronic means for transmitting hails. At the 
request of multiple sectors, NMFS has added trip start hail and trip 
end hail forms to VMS for use by any sector that elects to use them. 
Further, to mitigate the risk of any electronic hail system failure, 
the Dockside Monitoring Standards also stipulate that ``if the vessel 
does not receive confirmation within 10 minutes, the captain must 
contact the vendor to confirm the trip start hail via an independent 
backup system (e.g., a phone number) that must be set up by the DSM 
vendor.'' The 10-minute window applies to trip start hails to minimize 
the time a vessel must delay departing on a trip due to a failure of 
the primary hail transmission method selected by the sector. The 10-
minute window does not apply to trip end hails in acknowledgement that 
vessels may have limited communication capabilities at sea and that 
vessels should not be forced to delay their return to port due to a 
failure of the primary hail transmission method selected by the sector. 
However, no vessel may unload its catch until it is either met by a 
dockside monitor or issued a waiver from dockside monitoring.

Fairlead Roller Spacing on De-Hookers

    Comment 51: DMF submitted a comment supporting NMFS' stated 
rationale for denying this exemption.
    Response 51: NMFS agrees and has denied this exemption request.

Minimum Fish Size Requirements

    Comment 52: DMF opposed an exemption from the minimum fish size 
requirements based on NMFS' concerns pertaining to enforceability and 
the potential to target juvenile fish. EDF also commented, stating that 
this exemption may result in increased targeting of juveniles with a 
negative impact on spawning. The Council commented that this exemption 
could lead to a change in size selectivity that could lead to an 
increase in mortality for a given weight or age-class of fish which 
could invalidate the projections used to determine ABCs and ACLs.
    Response 52: NMFS agrees and has denied this exemption request.
    Comment 53: EDF commented that granting this exemption may reduce 
discards of dead and dying fish.
    Response 53: NMFS agrees, but has denied this exemption based on 
the enforcement issues and risks to juvenile fish stated above.

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 final 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 final rule contains no implementing regulations, it is 
exempt from review under Executive Order (E.O.) 12866.
    Pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 
553(d)(3), NMFS finds good cause to waive the 30-day delay in 
effectiveness of this rule. Publication of this rule is conditional 
upon approval and publication of the final rule for Amendment 16. These 
rules also must be in effect at the beginning of FY 2010 on May 1, 
2010, to fully capture their environmental and economic benefits. 
However, the time available for this rulemaking and for Amendment 16 
was constrained by multiple factors, including the development of 
Amendment 16 and Framework 44, data availability, and the scheduling of 
U.S. and international management bodies, which delayed this 
rulemaking. Due to these constraints, the rulemaking could not be 
completed further in advance of May 1, 2010, and in order to have this 
action effective at the beginning of FY 2010, it is necessary to waive 
the 30-day delay period for this rule.
    This waiver is necessary and in the public interest. This rule 
relieves several restrictions for the NE multispecies fishery in order 
to help mitigate the adverse economic impacts resulting from continued 
efforts to end overfishing and rebuild overfished stocks in Amendment 
16, and increases the economic efficiency of vessel operations through 
the authorization of 17 new sector operations plans for FY 2010. 
Failure to waive the 30-day delay in effectiveness could result in 
short-term adverse economic impacts to NE multispecies vessels and 
associated fishing communities, as well as to the fish stocks subject 
to this rule. Without this rule, vessels that have signed up to join a 
sector in FY 2010 (812 vessels, 55% of the groundfish fleet) would not 
be able to take advantage of the flexibility in vessel operations this 
rule implements. For example, sector vessels would receive exemptions 
from trip limits, DAS, and seasonal closure areas that this rule 
allows. Moreover, because vessels committed to a sector may not fish in 
both the common pool and a sector in the same FY, vessels currently 
signed into a sector would be forced to cease fishing operations 
entirely during the delay in effectiveness, or forego sector membership 
for the entire FY, thereby losing the mitigating economic efficiencies 
of the restrictions relieved for sector vessels. This would also

[[Page 18130]]

reduce the economic efficiency of the majority of the fleet until such 
measures become effective, and cause unnecessary adverse economic 
impacts to affected vessels. Moreover, this rule, along with Amendment 
16 and FW 44, is intended to end overfishing of various stocks in the 
Northeast and to assist in the rebuilding of overfished stocks. Without 
these rules, several stocks are likely to continue to experience 
overfishing, and rebuilding of stocks, as required by the Magnuson-
Stevens Act, would likely be compromised. This would be contrary to not 
only the interest of the fishing communities, but to the public at 
large, as overfishing and overfished stocks decreases the ability of 
the public to enjoy that stock for recreational, aesthetic, or other 
reasons, and reduces the availability of seafood. Therefore, delayed 
implementation of these measures beyond May 1, 2010, is contrary to the 
public interest, and the requirement to delay implementation of this 
rule for a period of 30 days is hereby waived.
    A Final Regulatory Flexibility Analysis (FRFA) was prepared for 
both this rule and the Amendment 16 final rule, as required by section 
604 of the Regulatory Flexibility Act (RFA). The FRFA is comprised of 
the economic impacts identified in the Initial Regulatory Flexibility 
Analysis (IRFA), which was summarized in the preamble of the proposed 
rule, the corresponding analyses in the EAs prepared for this action, 
and the discussions, including responses to public comments included in 
this rule. 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 and, thus, are not repeated here.

Summary of the Issues Raised by Public Comments in Response to the IRFA

    DMF commented that the IRFA did not include specific information 
detailing Federal subsidies for administrative costs, such as those for 
sector formation or potential costs to sectors for dockside and at-sea 
monitoring. DMF suggested that providing additional information on 
Federal funds that have been devoted to sector implementation could 
help the public understand why many fishermen would prefer to enroll in 
a sector opposed to fishing in the common pool.

A Summary of the Assessment of the Agency of Such Issues, and a 
Statement of Any Changes Made From the Proposed Rule as a Result of 
Such Comments

    This FRFA details funds set towards sector implementation. NMFS 
spent $490,000 on an environmental services contractor to assist in 
drafting the sector EAs and to conduct NEPA analysis for each sector. 
In past years, this cost has been borne by each sector. NMFS has funded 
the estimated full cost of the first year of dockside monitoring, via a 
$1.2 million grant awarded to the GOM Research Institute (GMRI). NMFS 
has distributed the $490,000 of funds among the sectors to cover start-
up and management costs. A portion of this amount was awarded to GMRI, 
which administered sub-awards to each of the sectors. In addition, NMFS 
awarded a grant worth $230,000 to the State of Maine, which is making 
sub-awards to Maine-based sectors to cover start-up and operating 
costs. Lastly, NMFS, at considerable cost, is providing a four-fold 
increase in the level of at-sea monitoring for sector vessels.

Description of and Estimate of the Number of Small Entities to Which 
the Proposed Rule Would Apply

    This action will affect regulated entities engaged in commercial 
fishing for groundfish that have elected to join one of the 17 sectors 
that have submitted operations plans and been approved for FY 2010. Any 
limited access Federal permit under the 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 January 22, 2010, a total of 812 of 
1,477 eligible NE multispecies permits indicated their intent to join a 
sector. Table 1 presents a summary of the number and percent of 
individual and active permits enrolled in a sector for FY 2010 as of 
January 22, 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 be reduced.

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

    This rule contains no collection-of-information requirement subject 
to the PRA.

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

    Joining a sector is voluntary. This means that a permit holder's 
decision of whether to join a sector will be based on the option that 
is expected to offer the greater economic advantage--i.e., joining a 
sector or fishing under effort controls in the common pool. Since 
sectors are granted certain universal exemptions, and all sectors may 
request and be granted additional exemptions from regulatory measures 
that apply to common pool vessels, sector vessels are afforded greater 
flexibility than common pool vessels. Sector members no longer have 
groundfish catch limited by DAS allocations and are, instead, 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 collectively bear the 
administrative costs associated with preparing an EA, as well as the 
costs associated with sector management, dockside monitoring, and 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 illustrate 
the fact that the potential administrative costs associated with 
joining a sector could have influenced a permit holder's decision on 
committing to a sector. The majority of these administrative costs are 
subsidized by NMFS for 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

[[Page 18131]]

it difficult to assess the economic impact on these fishing businesses. 
The only sector 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 GB Cod Hook 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). The number of 
permits enrolled in a sector ranges from 8 to 129. The allocation to 
any given sector is based on the combined sum of the PSC for each stock 
associated with all permits enrolled in that sector. All sector 
operations plans convert the total ACE into an individual share 
proportional to the PSC that each member brings to the sector. This 
share is then 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 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.
    The EIS for Amendment 16 compared economic impacts of sector 
measures with common pool measures, and analyzed costs and benefits of 
the universal exemptions. In addition to the universal exemptions 
proposed for sectors in Amendment 16, several exemptions requested by 
various sectors could provide economic incentives to enroll in a 
sector. All exemptions requested by the sectors were intended to 
provide positive social and economic effects to sector members and 
ports. The following exemptions have been granted to the requesting 
sectors because each sector's ACE reduces the need for effort controls, 
and there are perceived economic benefits from such exemptions: The Day 
gillnet vessel 120-day block requirement out of the fishery; the 
prohibition on a vessel hauling gear that was set by another vessel; 
the 20-day spawning block out of the fishery; the limit on the number 
of hooks that may be fished; the limitation on the number of gillnets 
that may be hauled on GB when fishing under a groundfish/monkfish DAS; 
the limit on the number of nets (not to exceed 150) that may be 
deployed by Day gillnet vessels; and the length and horsepower 
restrictions of the DAS Leasing Program.
    Exemption from the Day gillnet vessel 120-day block requirement out 
of the fishery was requested by NFSs III and XI, the FGS, the SHS, the 
TSS, 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-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 could allow sector members 
to realize the cost savings associated with retiring the redundant 
vessel.
    NFSs III and XI requested an exemption from the prohibition on a 
vessel hauling gear that was set by another vessel. The community fixed 
gear exemption will allow sector vessels in the Day gillnet category to 
effectively pool gillnet gear that may be hauled or set by sector 
members. Along with a possible reduction in total gear fished, this 
provision could reduce the total amount of gear that has to be 
purchased and maintained by participating sector members, resulting in 
some uncertain level of cost savings.
    The FGS requested an exemption from the number of hooks that may be 
fished, and an exemption from the limitation on the number of gillnets 
that may be hauled on GB when fishing under a groundfish/monkfish DAS. 
These exemptions could provide vessel owners with the flexibility to 
adapt the number of hooks fished to existing fishing and market 
conditions and to haul monkfish gillnets set under the monkfish 
regulations more efficiently. This exemption could also provide an 
opportunity to improve vessel profitability.
    The NCCS, SHS, and TSS requested an 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. Granting this exemption could provide vessel owners with 
greater opportunity to make more efficient use of their vessel.
    The SHS requested an exemption from the limit on the number of nets 
(not to exceed 150) that may be deployed by Day gillnet vessels. This 
will provide greater flexibility to deploy fishing gear by 
participating sector members according to operational and market needs.
    The SHS and TSS requested 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 
will allow greater flexibility to lease DAS between vessels of 
different sizes. However, the efficiency gains of doing so are 
uncertain and may be limited because the exemption would only apply to 
TSS and SHS members. Since DAS will not be required to harvest 
groundfish, the economic importance of this exemption will be 
associated with the need to use groundfish DAS when fishing in other 
fisheries, for example, monkfish.
    Several comments that addressed requested exemptions about which 
NMFS had serious concerns were received; however, these comments did 
not provide any new or additional data to convince NMFS to approve 
these exemptions of serious concern. The exemption requests that are 
not approved for FY 2010 are from the GOM Rolling Closure Areas beyond 
the proposed Amendment 16 universal exemption areas; the 72-hour 
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.

[[Page 18132]]

    In addition to the universal rolling closure exemptions described 
in section 4.2.3.9 of Amendment 16, six of the NFSs and the SHS 
requested additional exemptions from GOM Rolling Closure Areas. These 
include 30-minute 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 could have improved 
profitability, since higher catch rates would mean that the same amount 
of groundfish could be caught at a lower cost. However, as previously 
explained, these exemptions were not granted because of impacts to 
spawning fish.
    Eight of the NFSs and the FGS requested an exemption from the 72-
hour observer notification requirements for NMFS-funded at-sea 
monitoring. The economic impacts of providing an exemption to the 72-
hour observer notification requirement are uncertain, but this 
exemption could have provided vessel owners with additional flexibility 
when planning and preparing for fishing trips. Nonetheless, logistical 
constraints on the NEFOP prevent the authorization of this exemption. 
In addition, NMFS has already reduced this requirement from 72-hour to 
48-hour in the final rule implementing Amendment 16.
    The NCCS requested an exemption that would allow members to fish 
under Maine State regulations for halibut while fishing in State 
waters. The exemption could have provided additional fishing 
opportunities to improve sector member profitability. However, the 
potential to realize any improved profitability would have been limited 
by Maine State regulations that restrict the number of halibut that may 
be landed during a prescribed season to 50 fish per person. This 
exemption was not granted because 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 NFSs 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 have likely provided 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, would have created insurmountable 
enforcement problems with the chain of custody of information. Denial 
of this exemption does not preclude sector member vessels from also 
sending reports to their sector manager or transmitting hails through 
the sector server for the purpose of dockside monitoring program 
requirements.
    All of the NFSs, as well as the Sustainable Harvest and TSSs, 
requested permission to use eVTRs in place of paper VTRs to transmit 
catch data to NMFS. While this exemption would have likely reduced the 
administrative burden on sectors, this exemption was not granted, as an 
eVTR system that would address all of the needs of NMFS has not yet 
been developed. A pilot study is underway that would use eVTRs as well 
as paper VTRs to determine the viability of eVTRs as a replacement to 
the paper version. This option can be considered at a later date if 
NMFS' assessment of the pilot study concludes that eVTRs can fulfill 
all necessary requirements.
    The FGS 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. Exemption from this requirement would have provided 
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 FGS and the TSS requested exemption from existing regulations 
that provide for minimum fish sizes for several different species. Any 
fish caught that measures 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 have improved the 
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 have 
increased the total value of the ACE. However, the magnitude of this 
potential benefit is uncertain, since the marketability of smaller size 
fish is unknown. Moreover, an exemption from the minimum fish size 
requirement presents significant enforcement issues by allowing two 
different fish sizes in the marketplace. Granting this exemption could 
also increase targeting of juvenile fish or increase mortality of a 
given weight, or year class(es), of fish.
    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 implemented under 
proposed Amendment 16, under the No Action alternative for this rule, 
no sector would receive an authorization to fish, an allocation to 
fish, or any exemptions from the regulations. 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 FW 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.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1966 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to sector members that also serves as 
small entity compliance guide (the guide) was prepared. Copies of this 
final rule are available from the Regional Administrator. The guide and 
this final rule will be available upon request.

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

    Dated: March 26, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2010-7236 Filed 3-31-10; 4:15 pm]
BILLING CODE 3510-22-P