[Federal Register Volume 77, Number 203 (Friday, October 19, 2012)]
[Proposed Rules]
[Pages 64305-64308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-25809]



[[Page 64305]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120905422-2521-01]
RIN 0648-BC50


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Exempted Fishery for the Cape Cod Spiny Dogfish 
Fishery

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

ACTION: Proposed rule, request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes to modify the regulations implementing the 
Northeast (NE) Multispecies Fishery Management Plan (FMP) to allow 
vessels to fish with gillnet and longline gear from June through 
December, and with handline gear from June through August, in a portion 
of inshore Georges Bank (GB) each year, outside of the requirements of 
the NE multispecies fishery. This action would allow vessels to harvest 
spiny dogfish and other non-groundfish species in a manner that is 
consistent with the bycatch reduction objectives of the FMP.

DATES: Comments must be received no later than 5 p.m., eastern daylight 
time, on November 5, 2012.

ADDRESSES: An environmental assessment (EA) was prepared for the 
Secretarial Amendment that describes the proposed action and other 
considered alternatives, and provides an analysis of the impacts of the 
proposed measures and alternatives. Copies of the Secretarial 
Amendment, including the EA and the Initial Regulatory Flexibility 
Analysis (IRFA), are available on request from John K. Bullard, 
Regional Administrator, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930. These documents are also available online 
at http://www.nero.noaa.gov.
    You may submit comments, identified by FDMS docket number NOAA-
NMFS-2012-0195, by any one of the following methods:
     Written comments (paper, disk, or CD-ROM) should be sent 
to Paul J. Howard, Executive Director, New England Fishery Management 
Council, 50 Water Street, Mill 2, Newburyport, MA 01950. Mark the 
outside of the envelope, ``Comments on Spiny Dogfish Exempted 
Fishery.''
     Comments also may be sent via facsimile (fax) to (978) 
465-3116.
     Submit all electronic public comments via the Federal e-
Rulemaking Portal: http://www.regulations.gov.
    Instructions: Comments will be posted for public viewing as they 
are received. All comments received are a part of the public record and 
will generally be posted to http://www.regulations.gov without change. 
All Personal Identifying Information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit Confidential Business Information or otherwise sensitive or 
protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.

FOR FURTHER INFORMATION CONTACT: Travis Ford, Fishery Policy Analyst, 
978-281-9233; fax 978-281-9135; email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    Current regulations, implementing Framework Adjustment 9 (60 FR 
19364, April 18, 1995) and expanded under Amendment 7 to the FMP (61 FR 
27710, May 31, 1996), contain a NE multispecies fishing mortality and 
bycatch reduction measure that is applied to the Gulf of Maine (GOM), 
GB, and Southern New England (SNE) Exemption Areas found in Sec.  
648.80. A vessel may not fish in these areas unless it is fishing under 
a NE multispecies or a scallop DAS allocation, is fishing on a sector 
trip, is fishing with exempted gear, is fishing under the Small Vessel 
Handgear (A or B) or Party/Charter permit restrictions, or is fishing 
in an exempted fishery. The procedure for adding, modifying, or 
deleting fisheries from the list of exempted fisheries is found in 
Sec.  648.80(a)(8). A fishery may be exempted by the NMFS Regional 
Administrator (RA), after consultation with the New England Fishery 
Management Council (Council), if the RA determines, based on available 
data or information, that the bycatch of regulated species is, or can 
be reduced to, less than 5 percent by weight of the total catch and 
that such exemption will not jeopardize the fishing mortality 
objectives of the FMP.
    Representatives from the NE multispecies sector fleet submitted two 
exempted fishery requests to the RA in December 2011, requesting we 
consider an exempted fishery for gillnet, longline, and handline 
vessels targeting dogfish in portions of the GOM and GB. Sector vessels 
targeting spiny dogfish in the requested areas are currently required 
to fish on a declared NE multispecies trip. Vessels are charged a 
discard rate for regulated species bycatch that is determined by the 
NMFS Northeast Fisheries Observer Program (NEFOP) and at-sea monitoring 
(ASM) discard data. The discard rate is based on the sector, area 
fished, and gear type, and is referred to as a discard stratum. Because 
the specified target species (groundfish) is not a distinctive part of 
each discard stratum, vessels that are targeting spiny dogfish (and 
catching very little to no groundfish) are being charged the same 
discard rate as all other declared groundfish trips in that discard 
stratum. This leads to applying higher than observed discard rates of 
groundfish when targeting spiny dogfish. Forfeiting the value of these 
calculated discards, that otherwise could be available for catching and 
landed for sale on directed regulated species trips, has created an 
economic burden for sector fishermen. This has particularly affected 
the sector's ``choke stocks,'' i.e., fish for which the sector has a 
small amount of quota, either because of a low catch history or a small 
annual catch limit (ACL) for the stock.
    The original requests from industry proposed a year-round exempted 
fishery in statistical areas 514, 515, and 521 for vessels using 
gillnet gear with large and extra-large mesh (>6.5-inches (16.5-cm)), 
longline, and handline gear. Due to relatively higher groundfish 
bycatch in large portions of these requested areas, this action 
proposes to exempt vessels from the NE multispecies regulations in a 
smaller portion of statistical area 521 off the coast of Cape Cod, MA. 
We further modified the time for the exemption to only during the 
months of June through December for vessels using gillnet and longline 
gear. In addition, this action proposes to exempt handline gear in the 
same smaller portion of statistical area 521 for June through August.
    NEFOP and ASM data from all declared groundfish trips using large 
and extra-large mesh gillnets (>6.5-inch (16.5-cm) mesh), longline, and 
handline gears from 2010 to 2011 were analyzed. The area and months 
were revised based on information that shows, of a total of 642 
observed trips using the proposed gears in fishing years (FY) 2010 and 
2011, the average percentage of groundfish caught was 0.09 percent for 
this proposed alternative (Alternative 1, as referred to in the 
Environmental Assessment). Further, observed trip data

[[Page 64306]]

for Alternative 1 show no trips that caught greater than 5 percent 
regulated groundfish.
    The majority of groundfish bycatch species in the spiny dogfish 
fishery are GB cod and pollock. In a 2012 operational assessment, GB 
cod was determined to be overfished and experiencing overfishing. In 
the Stock Assessment Review Committee 50 assessment in 2010, it was 
determined that pollock was not overfished and was not subject to 
overfishing.
    For the trips analyzed under Alternative 1, no single month's 
average NE multispecies catch exceeded 0.38 percent of the total catch. 
On the 642 trips analyzed, a total of 798.6 lb (362.2 kg) of cod and 
324.8 lb (147.3 kg) of pollock were caught. This represents an average 
of 1.24 lb (0.56 kg) and 0.51 lb (0.23 kg) per trip, respectively. 
Based on these very low observed amounts, the discards expected from 
this exemption should not cause the ACL for these species to be 
exceeded.
    We assessed a second alternative exemption for gillnet, longline, 
and handline gears in the same modified area year-round. The data 
indicate that Alternative 2 (the non-preferred alternative) would 
likely result in a higher percentage of groundfish catch because 
several handline trips caught greater than 5 percent multispecies from 
September through December. In addition, the RA could not make a 
determination as to whether regulated groundfish bycatch was < 5 
percent during the months of January through May, given little to no 
observer data were available from the area during this time.
    Although this action would exempt vessels using these gears in this 
area and from the NE multispecies regulations, this action is not 
likely to increase effort in the spiny dogfish fishery. The existing 
spiny dogfish fishery is limited by an annual quota and a 3,000-lb 
(1,360.78-kg) trip limit. Therefore, this action itself is not expected 
to jeopardize mortality objectives of any stock, but rather ease some 
of the burden on vessels participating in the NE multispecies fishery.

Proposed Measures

Cape Cod Spiny Dogfish Exemption Area

    The RA has determined that an exempted spiny dogfish fishery in a 
specifically defined portion of inshore GB area meets the exemption 
requirements in Sec.  648.80(a)(8)(i) because, based on an analysis of 
available data, the bycatch of regulated species by vessels that would 
fish under this exemption is less than 5 percent, by weight, of the 
total catch and is not expected to jeopardize the fishing mortality 
objectives of the NE Multispecies FMP. Therefore, this rule proposes to 
implement an exempted fishery for eligible vessels when using 6.5-inch 
(16.5-cm) mesh or greater gillnet gear, and longline gear in a portion 
of inshore Georges Bank off of Cape Cod, MA, from June through December 
of each year. In addition, this action proposes to exempt handline gear 
in the same area in June through August. The area of this proposed 
exempted fishery would be referred to as the Cape Cod Spiny Dogfish 
Exemption Area.
    The Cape Cod Spiny Dogfish Exemption Area is defined by the 
straight lines connecting the following points in the order stated 
(copies of a chart depicting the area are available from the RA upon 
request):

------------------------------------------------------------------------
             Point                     N. lat.             W. long.
------------------------------------------------------------------------
CCD 1..........................  42/00'               70/00'
CCD 2..........................  42/00'               69/47.5'
CCD 3..........................  41/40'               69/47.5'
CCD 4..........................  41/29.5'             69/35.5'
CCD 5..........................  41/29.5'             69/23'
CCD 6..........................  41/26'               69/20'
CCD 7..........................  41/20'               69/20'
CCD 8..........................  41/20'               (\1\)
CCD 9..........................  (\2\)                70/00'
CCD 10.........................  (\3\)                 70/00'
CCD 11.........................  (\4\)                 70/00'
CCD 1..........................  42/00'               70/00'
------------------------------------------------------------------------
(1) The eastern coastline of Nantucket, MA at 41[deg]20' N. lat.
(2) The northern coastline of Nantucket, MA at 70[deg]00' W. long.
(3) The southern coastline of Cape Cod, MA at 70[deg]00' W. long., then
  along the eastern coastline of Cape Cod, MA to CCD 11.
(4) The northern coastline of Cape Cod, MA at 70[deg]00' W. long.

    As required by existing regulations, vessels intending to land 
spiny dogfish under this exemption would need to hold a Federal spiny 
dogfish permit and comply with existing spiny dogfish per trip and 
annual quota limits. A participating vessel may possess and land up to 
3,000 lb (1,360.78 kg) of spiny dogfish per trip. In addition, vessels 
would be limited by the spiny dogfish annual quota that is divided into 
two seasons to help maintain availability throughout the fishing year.
    Establishing the proposed Cape Cod Spiny Dogfish Exemption Area 
should result in a more accurate discard calculation for spiny dogfish 
and NE multispecies DAS and sector trips. Because these trips would be 
exempt from NE multispecies regulations, discards of regulated NE 
multispecies associated with these trips would no longer be deducted 
from sector or common pool sub-ACLs that make up the commercial 
groundfish sub-ACL. Instead, the calculated discards would be deducted 
from the ``other subcomponents'' sub-ACL.
    In the NE multispecies fishery, discard rates for regulated species 
are calculated over an entire discard stratum, i.e., sector, area, and 
gear type. Currently, when spiny dogfish vessels are fishing on 
declared groundfish trips, they are charged a calculated discard rate 
equivalent to trips targeting groundfish in the same discard stratum. 
For example, a spiny dogfish vessel catching 3,000 lb (1,360.78 kg) of 
spiny dogfish is charged a groundfish discard rate as if that vessel 
caught 3,000 lb (1,360.78 kg) of groundfish. These discards are 
deducted from the sector or common pool sub-ACL. The data analyzed from 
observed trips under Alternative 1, however, showed that these trips 
averaged a catch of 0.09 percent of multispecies (an average of 2.65 lb 
(1.20 kg) per trip). Calculating discards using this more accurate rate 
results in a lower deduction from the sub-ACL than applying the 
groundfish discard rate to 3,000 lb (1,360.78 kg) of catch. Granting 
this exemption would provide vessels the opportunity to catch the 
groundfish on groundfish targeted trips that was formerly counted as 
discarded on spiny dogfish trips. Conversely, because the lower 
multispecies discards observed on spiny dogfish targeted trips will no 
longer be included when determining the groundfish discard rate for 
targeted groundfish trips, the actual amounts discarded on declared 
groundfish trips would likely be more accurately reflected. The 
increase in the calculated discard rate for targeted groundfish trips 
is not expected to be significant.

Classification

    This proposed rule is consistent with the NE Multispecies FMP, 
other provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Pursuant to 5 U.S.C. 603, an IRFA has been prepared, which 
describes the economic impacts that this proposed rule, if adopted, 
would have on small entities. A description of the reasons why this 
action is being considered, as well as the objectives of and legal 
basis for this proposed rule, can be found in the preamble to this 
proposed rule and are not repeated here. There are no Federal rules 
that duplicate, overlap, or conflict with the proposed rule. This

[[Page 64307]]

proposed rule does not include any new reporting, recordkeeping or 
other compliance requirements. This action proposes to create a new 
spiny dogfish exemption area for gillnet, longline, and handline 
vessels off the coast of Cape Cod, MA. Vessels participating in this 
exemption would declare ``out-of-fishery'' on their Vessel Monitoring 
Systems.
    This action was compared to two different alternatives for the 
exemption. Alternatives to the proposed exemption include exempting the 
same area for a longer period of time, i.e., year-round, and a No 
Action Alternative, which would continue to require vessels fishing in 
this area to be on a declared NE multispecies trip from June through 
December and therefore subject to the NE multispecies discard rate for 
such trips.

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

    All of the potentially affected businesses are considered small 
entities under the standards described in NOAA Fisheries guidelines 
because they have gross receipts that do not exceed $4 million 
annually.

Economic Impacts of This Proposed Action

    Compared to the No Action Alternative, the Preferred Alternative 
(Alternative 1) is expected to benefit the local fishing communities 
that have historically depended on the spiny dogfish fishery off Cape 
Cod, MA. This exemption was requested by members of the NE multispecies 
fishing industry, specifically sector members. The cost of fishing for 
spiny dogfish has become increasingly high primarily due to the 
deduction of calculated discards from each vessel's sector annual catch 
entitlement (ACE) when fishing on a sector trip. Thus, the proposed 
action would allow vessels to fish under this exemption outside of the 
groundfish regulations, which proposes to prevent discards from being 
deducted from a sector's ACE at a higher rate than is actually 
occurring. The EA for this proposed action estimates that the exemption 
could save vessels fishing under this proposed exemption approximately 
$24,000 a year in discards alone.
    With the elimination of these low groundfish discard trips from the 
sector's discard stratum, the overall discard rate for the sector will 
likely increase because the spiny dogfish targeted trips that were 
observed were keeping the discard rate for trips targeting groundfish 
artificially low. While this change will result in an increase of the 
overall sector's discard rate on groundfish targeted trips, the 
increase would not represent a significant cost to the sector vessels 
that are not participating in the exemption. In addition, the 
calculated discard rates for both groundfish vessels and spiny dogfish 
vessels would be more accurate as a result of the exemption; more 
accurate discards are not expected to have an economic effect on the 
fishing community as a whole. Further, participation in this exemption 
is voluntary. A vessel may still choose to target spiny dogfish during 
the exemption period while on a declared groundfish trip should it be 
to their benefit.

Economic Impacts of Alternatives to the Proposed Action

    The impacts of Alternative 2, which extends the exemption for the 
entire year, would be expected to be similar to the impacts of the 
Preferred Alternative, but the expanded time would allow more vessels a 
greater opportunity to participate in the exempted fishery. The EA for 
this action estimates that Alternative 2 would save the industry an 
additional $877.93 compared to Alternative 1. However, the data 
indicate that Alternative 2 would likely result in a higher percentage 
of groundfish catch because several handline trips caught greater than 
5 percent multispecies from September through December. In addition, 
the RA could not make a determination as to whether regulated 
groundfish bycatch was <5 percent during the months of January through 
May, given little to no observer data were available from the area 
during this time for all of the gear types. Providing an exemption for 
trips that caught over 5 percent groundfish, or in areas where no data 
are available, would be contrary to the purpose and requirements of the 
Magnuson Stevens Fishery Conservation and Management Act and the NE 
multispecies regulations. Therefore, this alternative was not selected.
    The No Action Alternative would have a negative economic impact on 
spiny dogfish vessels relative to the Preferred Alternative. Under the 
No Action Alternative, sector fishermen targeting spiny dogfish would 
continue fishing on declared groundfish trips only to be charged a 
higher than observed groundfish discard rate for their trip targeting 
spiny dogfish. The spiny dogfish fishery is a valuable resource. The 
groundfish discards that are attributed to these trips come directly 
out of the vessel's sector's ACE, which takes away the opportunity to 
catch these fish in the future. Thus, sectors requested an exemption 
because of the economic burden that the cost of multispecies discards 
applied to these trips had on sector fishermen targeting other stocks 
(i.e., spiny dogfish). As described above, it is estimated that this 
proposed action could save vessels fishing under this exemption 
approximately $24,000 a year in discards alone, compared to the No 
Action alternative.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: October 15, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 648 is proposed 
to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

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

    2. In Sec.  648.14, paragraph (k)(5)(i) is revised to read as 
follows:


Sec.  648.14  Prohibitions.

* * * * *
    (k) * * *
    (5) * * *
    (i) Violate any of the provisions of Sec.  648.80, including 
paragraphs (a)(5), the Small-mesh Northern Shrimp Fishery Exemption 
Area; (a)(6), the Cultivator Shoal Whiting Fishery Exemption Area; 
(a)(9), Small-mesh Area 1/Small-mesh Area 2; (a)(10), the Nantucket 
Shoals Dogfish Fishery Exemption Area; (a)(11), the GOM Scallop Dredge 
Exemption Area; (a)(12), the Nantucket Shoals Mussel and Sea Urchin 
Dredge Exemption Area; (a)(13), the GOM/GB Monkfish Gillnet Exemption 
Area; (a)(14), the GOM/GB Dogfish Gillnet Exemption Area; (a)(15), the 
Raised Footrope Trawl Exempted Whiting Fishery; (a)(16), the GOM Grate 
Raised Footrope Trawl Exempted Whiting Fishery; (a)(18), the Great 
South Channel Scallop Dredge Exemption Area; (a)(19), the Cape Cod 
Spiny Dogfish Exemption Area; (b)(3), exemptions (small mesh); (b)(5), 
the SNE Monkfish and Skate Trawl Exemption Area; (b)(6), the SNE 
Monkfish and Skate Gillnet Exemption Area; (b)(8), the SNE Mussel and 
Sea Urchin Dredge Exemption Area; (b)(9),

[[Page 64308]]

the SNE Little Tunny Gillnet Exemption Area; (b)(11), the SNE Scallop 
Dredge Exemption Area; or (b)(12), the SNE Skate Bait Trawl Exemption 
Area. Each violation of any provision in Sec.  648.80 constitutes a 
separate violation.
* * * * *
    3. In Sec.  648.80, paragraph (a)(3)(vi) is revised, and paragraph 
(a)(19) is added to read as follows:


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

* * * * *
    (a) * * *
    (3) * * *
    (vi) Other restrictions and exemptions. A vessel is prohibited from 
fishing in the GOM or GB Exemption Area as defined in paragraph (a)(17) 
of this section, except if fishing with exempted gear (as defined under 
this part) or under the exemptions specified in paragraphs (a)(5) 
through (7), (a)(9) through (a)(16) and (a)(18) through (a)(19), (d), 
(e), (h), and (i) of this section; or if fishing under a NE 
multispecies DAS; or if fishing on a sector trip; or if fishing under 
the Small Vessel or Handgear A permit specified in Sec.  648.82(b)(5) 
and (6), respectively; or if fishing under a Handgear B permit 
specified in Sec.  648.88(a); or if fishing under the scallop state 
waters exemptions specified in Sec.  648.54 and paragraph (a)(11) of 
this section; or if fishing under a scallop DAS in accordance with 
paragraph (h) of this section; or if fishing pursuant to a NE 
multispecies open access Charter/Party or Handgear permit specified in 
Sec.  648.88; or if fishing as a charter/party or private recreational 
vessel in compliance with Sec.  648.89. Any gear used by a vessel in 
this area must be authorized under one of these exemptions. Any gear on 
a vessel that is not authorized under one of these exemptions must be 
stowed as specified in Sec.  648.23(b).
* * * * *
    (19) Cape Cod Spiny Dogfish Exemption Area. Vessels issued a 
limited access permit that have declared out of the DAS program as 
specified in Sec.  648.10, or that have used up their DAS allocations, 
may fish in the Cape Cod Spiny Dogfish Exemption Area as defined under 
paragraph (a)(19)(i) of this section, when not under a NE multispecies 
or scallop DAS, provided the vessel complies with the requirements 
specified in paragraph (a)(19)(ii) of this section.
    (i) Area definition. The Cape Cod Spiny Dogfish Exemption Area is 
defined by the straight lines connecting the following points in the 
order stated (copies of a chart depicting the area are available from 
the Regional Administrator upon request):

                  Cape Cod Spiny Dogfish Exemption Area
  [June 1 through December 31, unless otherwise specified in paragraph
                     (a)(19)(ii)(C) of this section]
------------------------------------------------------------------------
             Point                     N. lat.             W. long.
------------------------------------------------------------------------
CCD 1..........................  42/00'               70/00'
CCD 2..........................  42/00'               69/47.5'
CCD 3..........................  41/40'               69/47.5'
CCD 4..........................  41/29.5'             69/35.5'
CCD 5..........................  41/29.5'             69/23'
CCD 6..........................  41/26'               69/20'
CCD 7..........................  41/20'               69/20'
CCD 8..........................  41/20'               (\1\)
CCD 9..........................  (\2\)                70/00'
CCD 10.........................  (\3\)                70/00'
CCD 11.........................  (\4\)                70/00'
CCD 1..........................  42/00'               70/00'
------------------------------------------------------------------------
(\1\) The eastern coastline of Nantucket, MA at 41[deg]20' N. lat.
(\2\) The northern coastline of Nantucket, MA at 70[deg]00' W. long.
(\3\) The southern coastline of Cape Cod, MA at 70[deg]00' W. long.,
  then along the eastern coastline of Cape Cod, MA to Point 11.

    (ii) Requirements. (A) A vessel fishing in the Cape Cod Spiny 
Dogfish Exemption Area specified in this paragraph (a)(19) may not fish 
for, possess on board, or land any NE regulated species.
    (B) Vessels may use gillnet gear, as specified in Sec.  
648.80(a)(4)(iv) or longline gear as specified in Sec.  648.80(a)(4)(v) 
from June 1 through December 31.
    (C) Vessels may use handline gear from June 1 through August 31.
* * * * *
[FR Doc. 2012-25809 Filed 10-18-12; 8:45 am]
BILLING CODE 3510-22-P