[Federal Register Volume 77, Number 217 (Thursday, November 8, 2012)]
[Proposed Rules]
[Pages 66947-66950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27245]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120813331-2562-01]
RIN 0648-XC164


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; Proposed Rule to 
Implement a Targeted Acadian Redfish Fishery for Sector Vessels

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This action would expand on a previously approved sector 
exemption by allowing groundfish sector trawl vessels to harvest 
redfish using nets with codend mesh as small as 4.5 inches (11.4 cm). 
In addition, this action proposes to implement an industry-funded at-
sea monitoring program for sector trips targeting redfish with trawl 
nets with mesh sizes that are less than the regulated mesh size 
requirement.

DATES: Written comments must be received on or before November 23, 
2012.

ADDRESSES: A copy of the accompanying environmental assessment and the 
final draft of Component 2 of the REDNET project are available from the 
NMFS Northeast Regional Office: John K. Bullard, 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.
    You may submit comments, identified by NOAA-NMFS-2011-0264, by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov.
     Fax: (978) 281-9135, Attn: William Whitmore.
     Mail: Paper, disk, or CD-ROM comments should be sent to 
John K. Bullard, Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the 
outside of the envelope: ``Comments on Redfish Rule.''
    Instructions: All comments received are part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. No comments will be posted for public viewing until after the 
comment period has closed. All Personal Identifying Information (for 
example, name, address, etc.) voluntarily submitted by the commenter 
may be publicly accessible. Do not submit Confidential Business 
Information or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter N/A in the required fields, if you 
wish to remain anonymous). You may submit attachments to electronic 
comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file 
formats only.
    Once submitted to NMFS, copies of addenda to FY 2012 sector 
operations plans detailing industry-funded monitoring plans, and the 
supplemental environmental assessment (EA), will be available from the 
NMFS NE Regional Office at the mailing address above.

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

SUPPLEMENTARY INFORMATION:

Background

1. Exemption from 6.5-inch (16.5-cm) Codend Mesh Size so Vessels Can 
Target Redfish

    Regulations from Amendment 16 to the Northeast (NE) Multispecies 
Fishery Management Plan (FMP) allow a sector to request exemptions from 
Federal fishing regulations through its annual operations plan (for 
more information on sector operations plans and regulatory exemptions, 
see the fishing year 2012 sector operations plan proposed rule, 77 FR 
8780, February 15, 2012).
    In their 2011 and 2012 operations plans, several sectors in the NE 
multispecies fishery requested an exemption from NE multispecies codend 
mesh-size restrictions so they could use 5-inch (12.7-cm) codend mesh 
to target redfish, a fully rebuilt groundfish stock. These requests 
were denied because, at that time, we were waiting for results from a 
collaborative redfish research project that was looking at redfish 
bottom trawl fishing using small-mesh nets. The project, known as 
REDNET, is comprised of a group of researchers, commercial fishermen, 
and other interested stakeholders who are working to further improve 
and develop the redfish fishery. Sectors also requested an exemption to 
use 6-inch (15.2-cm) mesh to target redfish in their 2012 operations 
plans. This exemption was approved, and an explanation is provided 
below.
    On December 1, 2011, following the completion of a portion of the 
REDNET project, the Sustainable Harvest Sector and the Northeast 
Fishery Sectors submitted an exemption request to us to use 4.5-inch 
(11.4-cm) codend mesh to target redfish in a portion of the Gulf of 
Maine, east of the year-round Western Gulf of Maine Closure Area. The 
sectors submitted preliminary results from the REDNET project to 
justify their exemption request. Sectors are normally required to 
submit their exemption requests by September 1 to ensure that any 
necessary analyses can be included in the required environmental 
assessment (EA) in time for fishing operations to start at the 
beginning of the following fishing year (i.e., May 1). Due to the late 
timing of this 4.5-inch (11.4-cm) codend mesh exemption request, we 
were unable to include any analyses to accompany the rulemaking for the 
fishing year 2012 sector operations plans. We explained to the 
requesting sectors that the initial study results from the REDNET 
research project showed some potential that 4.5-inch (11.4-cm) codend 
mesh could be used to successfully target redfish with minimal bycatch 
of other fish species. But we also commented that the study would need 
to be completed and reviewed prior to the exemption being considered by 
NMFS. We also informed the sectors that the study results should be 
sent through the New England Fishery Management Council's (Council) 
Research Steering Committee for review.
    Preliminary findings from Component 2 (of 6) of the REDNET report 
were presented to the Council on February 1, 2012. Following the 
presentation, the Council requested that NMFS expedite approval of a 
sector exemption allowing vessels to more easily target redfish. In 
response to the Council's request, and because we determined that a 
reduction to 6.0-inch (15.2-cm) codend mesh represented a minor change, 
sectors were granted an exemption from mesh size restrictions for 
fishing year 2012, and are now able to utilize 6.0-inch (15.2-cm) 
codend mesh to target redfish (see the final rule approving sector 
operations plans (77 FR 26129; May 2, 2012)). As proposed by the 
sectors, vessels fishing with 6.0-inch (15.2-cm) codend mesh size on 
the exemption trips are required to have a NMFS-certified observer or 
at-sea monitor on board. In addition, vessels targeting redfish under 
this exemption must notify their sector manager that they intend to 
target redfish and must submit daily catch reports to their sector 
manager.

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    A report summarizing the results of Component 2 of the REDNET 
project was completed in April 2012. Although the results were 
encouraging, the report lacked detail with regard to the actual design 
of the gear tested, the operational procedures vessels used when 
targeting redfish and what a ``significant'' amount of minimal bycatch 
of other fish species is. Also, Component 2 of the REDNET project was 
considered exploratory/demonstration fishing and was not a designed 
study.
    In a May 21, 2012, letter to the Council, we requested that the 
Council's Research Steering Committee review the summary report 
mentioned above at its June 25, 2012, meeting and provide comments on 
the report, as well as on the feasibility for granting a regulatory 
exemption to allow sector vessels to use codend mesh as small as 4.5 
inches (11.4-cm) to target redfish. The Research Steering Committee 
reviewed the REDNET report and identified concerns similar to those 
listed above. The Committee recommended that an exemption allowing 
vessels to use 4.5-inch (11.4-cm) mesh codend to target redfish be 
approved annually based on catch information from the previous year.
    As explained above, exemptions are normally proposed, reviewed, and 
approved through the final rule implementing the annual sector 
operations plans; however, sectors can request exemptions at any time 
within the fishing year. Because the Council has requested that NMFS 
pursue exemptions allowing sector vessels to more efficiently target 
redfish, and the Research Steering Committee has endorsed the approval 
of a 4.5-inch (11.4-cm) mesh exemption, this action proposes a 4.5-inch 
(11.4-cm) codend trawl mesh exemption for potential mid-year 
implementation. All measures proposed for this exemption are also being 
extended to the currently approved 6-inch (15.2-cm) codend mesh 
exemption.
    To aid in identifying trips targeting redfish with small-mesh nets, 
all sector trawl vessels that intend to target redfish with codend mesh 
greater than or equal to 4.5 inches (11.4-cm) but less than 6.5 inches 
(16.5-cm) (the required regulated codend mesh size for the area 
fished), would be required to have an observer or at-sea monitor on 
board, and would be required to submit a trip start hail prior to 
leaving port. Sector vessels intending to utilize this exemption would 
also be required to submit a trip start hail identifying the trip as 
one that will target redfish under the exemption.
    To ensure that this exemption does not negatively impact fish 
stocks, we are proposing two catch thresholds that, if exceeded by a 
sector, could, taking into account the circumstances, result in the 
NMFS Northeast Regional Administrator rescinding approval of the 
exemption for the sector in question. To help ensure that vessels do 
not direct on other species of fish while using small mesh, monthly 
catch amounts under this exemption must be comprised of at least 80 
percent redfish. Additionally, to help mitigate catches of sub-legal 
sized groundfish, total groundfish discards (excluding redfish 
discards), may not exceed 5 percent of all groundfish caught when 
directing on redfish with small-mesh nets. These thresholds were 
determined to be consistent with catch information from REDNET trips. 
The final report for Component 2 of the REDNET project is available for 
review and the analyses for these thresholds are included in the 
accompanying EA (see ADDRESSES section). This rule also proposes that 
the Regional Administrator could further adjust these two thresholds, 
if necessary, to help ensure that vessels are directing on redfish and 
catching minimal amounts of undersized groundfish.
    Sector catch utilizing this exemption would be analyzed monthly 
with a cumulative calculation. If a sector exceeds either of the 
thresholds, it would have 1 month to correct this overage. If, after 1 
month, the sector has still exceeded either threshold, the exemption 
for that particular sector could be revoked by the Regional 
Administrator for the remainder of the fishing year through a notice 
published consistent with the Administrative Procedure Act. An interim 
reporting process would be developed to monitor catch under this 
exemption. Because of these catch thresholds, a catch monitoring 
program, and the requirement to submit a trip start hail, sector 
vessels would no longer be required to submit daily catch reports they 
currently submit when utilizing the 6.0-inch (15.2-cm) codend mesh 
exemption. The reporting mechanisms used for submitting catch data may 
be adjusted at any time if deemed necessary by the Regional 
Administrator.
    In addition, the Regional Administrator would reserve the right to 
revoke this exemption if it is determined that the exemption is 
negatively impacting spawning fish, rebuilding efforts for any 
groundfish stocks, or populations of stocks that the current minimum 
codend mesh size of 6.5 inches (16.5-cm) was intended to protect.
    Vessels requesting this exemption have asked that they be allowed 
to fish under this exemption with small mesh and fish with regulated 
codend mesh nets for other groundfish stocks on the same trip. 
Supporters of this request claim that vessels need this additional 
flexibility on a trip to maximize profits, arguing that catch 
information could be linked to the mesh size fished by observers or at-
sea monitors. NMFS has some concern about vessels fishing multiple mesh 
sizes on the same trip. Both NMFS' Office of Law Enforcement and the 
U.S. Coast Guard have commented that allowing vessels to fish multiple 
mesh sizes on the same trip undermines the ability to monitor the catch 
composition that corresponds with each mesh size fished, and to ensure 
that groundfish are not targeted with undersized mesh. Because 
observers and at-sea monitors do not observe every haul (fishing 
operations may occur while they are sleeping), exact catch from these 
hauls cannot be identified and included in catch thresholds. Also, 
during unmonitored times, vessels have an opportunity to either 
illegally discard fish caught with smaller mesh in an effort to remain 
within the catch thresholds or target groundfish with the smaller mesh 
nets. Because adequate catch monitoring is necessary to apply the 
proposed bycatch thresholds and to differentiate catch between small 
and standard groundfish mesh sizes, we are expecting that the majority 
of hauls be recorded by an at-sea monitor or observer on a trip 
targeting redfish. If the majority of haul backs are not observed, the 
Regional Administrator could revoke the exemption.
    Despite the concerns described above, we are proposing that trawl 
vessels targeting redfish using nets of codend mesh less than the 
regulated mesh size be allowed; however, we are specifically requesting 
public comment on this issue. If this flexibility measure is approved, 
the thresholds would only be applied to portions of the trip when 
vessels are trawling with small mesh.

2. Request To Develop Industry-Funded At-Sea Monitoring Programs for 
Trips Targeting Redfish

    Currently, any sector vessel targeting redfish under a mesh size 
exemption is required to have an at-sea monitor or observer on board. 
Some sectors are concerned that their ability to utilize this exemption 
is restricted because vessels have to wait to be randomly selected for 
a federally funded observer or at-sea monitor. As a result, several 
sectors have asked to work with us to develop an industry-funded at-sea

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monitoring program so they could take more trips targeting redfish. 
After considering the request, we have determined that we could support 
a small-scale industry-funded program. Limitations to the size of the 
program are due to a limited pool of available at-sea monitors and 
observers.
    Specifically, 4 sectors (26 vessels) have expressed interest in 
funding additional at-sea monitoring coverage for trips targeting 
redfish. Here, NMFS proposes that any sector interested in developing 
an industry-funded at-sea monitoring program be required to develop a 
monitoring plan and include this plan in its operations plan. The 
monitoring plan would be reviewed by NMFS, and if it is determined that 
the plan is sufficient, it would be approved along with the rest of the 
sector's operations plan. For fishing year 2012, any approved at-sea 
monitoring program would be included as an addendum to the sector's 
operations plan.
    NMFS also proposes that a vessel in a sector that has an approved 
industry-funded at-sea monitoring program must notify NMFS of its 
intent to take a small-mesh trip targeting redfish at least 48 hours in 
advance. Instead of calling into the Pre-Trip Notification System 
currently established for sector vessels, the vessel would call into a 
separate system when intending to fish under the small-mesh exemption. 
Vessels enrolled in a sector that has an approved industry-funded 
monitoring program would forfeit the opportunity to have a federally 
funded observer or at-sea monitor assigned for coverage. In other 
words, any vessel in a sector that has an approved industry-funded 
program and that elects to target redfish under the redfish exemption 
would be required to pay for at-sea monitoring coverage for that trip. 
Once a sector has an approved at-sea monitoring program for targeted 
redfish trips, the sector may not opt-out of the program until the 
following fishing year.
    Alternatively, vessels could elect to target redfish under the 
small-mesh exemption only when randomly assigned a federally funded 
observer or at-sea monitor. Importantly, under this proposal, all 
groundfish catch from a declared small-mesh redfish trip would be 
debited against the sector's allocation. Catch from small-mesh redfish 
trips would not be factored into a sector's overall discard rate, 
regardless of whether the monitor is federally or industry funded. 
Because normal groundfish trips and targeted redfish trips may exhibit 
different behavior and/or catch rates, the discarded fish should be 
treated differently based on the trip that is taken.

Classification

    The NMFS Assistant Administrator has made a preliminary 
determination that this proposed rule is consistent with the NE 
Multispecies FMP, other provisions of the Magnuson-Stevens Act, and 
other applicable law, subject to further consideration after public 
comment. This action is exempt from review under Executive Order (E.O.) 
12866.
    This proposed rule would expand on a previously approved regulatory 
exemption for NE multispecies sector trawl vessels by allowing them to 
target redfish with codend mesh nets as small as 4.5 inches (11.4-cm). 
In addition, this action would allow sectors to develop and fund their 
own at-sea monitor program for trips targeting redfish.
    Public comments on the proposed rule must be received by the end of 
the comment period. All comments received by the end of the comment 
period will be considered in the approval/disapproval decision. To be 
considered, comments must be received by close of business on the last 
day of the comment period; that does not mean postmarked or otherwise 
transmitted by that date.
    Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5 
U.S.C. 601-12, the Chief Counsel for Regulation of the Department of 
Commerce certified to the Chief Counsel for Advocacy of the Small 
Business Administration (SBA) that this action, if implemented, would 
not have a significant economic impact on a substantial number of small 
entities; therefore, an Initial Regulatory Flexibility Analysis (IRFA) 
has not been prepared. The factual basis for this determination is 
explained below.
    There are two objectives of this proposed action. The first is to 
authorize a regulatory exemption that would allow NE multispecies 
sector vessels to fish bottom trawls with codend mesh sizes greater or 
equal to 4.5 inches (11.4-cm) but less than 6.5 inches (16.5-cm) when 
targeting redfish. The second is to allow sectors to develop an 
industry-funded at-sea monitoring program for trips targeting redfish. 
All sector vessels could potentially utilize the mesh-size exemption. 
Currently, approximately 4 sectors, or 26 of 850 sector vessels signed 
into the 2012 fishing year sector program, have expressed interest in 
developing an industry-funded at-sea monitoring program.
    Because of the limited scope of this proposed rule, the impacts of 
the preferred alternatives would only directly affect a small number of 
small businesses. As stated above, four sectors have expressed interest 
in funding an at-sea monitoring program. The SBA size standard for 
small fishing entities is $4 million in gross sales. No groundfish 
entity (vessel) exceeds this threshold. Therefore, all permitted and 
participating vessels in the groundfish fishery are considered to be 
small fishing entities. It is anticipated that the approximately 26 
vessels from these sectors that have expressed interest will target 
redfish with small mesh on 102 trips. This represents roughly 6 percent 
of active groundfish vessels and 0.7 percent of the groundfish trips 
taken by those vessels. Importantly, the proposals in this rule are 
strictly voluntary; these actions were requested by fishermen to 
enhance fishing opportunities, improve operational flexibility, and 
increase profits.
    The RFA requires Federal agencies to consider disproportionality 
and profitability to determine the significance of regulatory impacts. 
If approved, all sector vessels would have the same opportunity to 
utilize smaller codend mesh to target redfish. Accordingly, no small 
entities would be disproportionately impacted in relation to large 
entities.
    Allowing sector vessels to fish with smaller mesh while targeting 
redfish would increase fishing efficiency and, therefore, revenue. Due 
to limits in Federal funding for observer coverage, sector vessels are 
unable to fish for redfish with small mesh as frequently as they would 
like, because observers or at-sea monitors are not available to monitor 
trips. Allowing sectors to pay for additional at-sea monitoring, as 
they requested, would increase operational flexibility by allowing 
vessels to take more trips. The catch from these additional trips would 
increase profits. These provisions are not restrictions, but requests 
by sectors that could improve efficiencies and increase profits. 
Therefore, the profitability criterion is not met because no reductions 
in profit are expected for any small entities.
    Because this proposal would only provide economic benefits to the 
affected small entities, there is no significant economic impact to a 
substantial number of small entities. No assumptions are necessary to 
conduct the analyses in support of this conclusion. As a result, an 
IRFA is not required and none has been prepared.

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

    This proposed rule contains no collection-of-information 
requirement subject to the Paperwork Reduction Act.

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    Regulations under the Magnuson-Stevens Fishery Conservation and 
Management Act require publication of this notification to provide 
interested parties the opportunity to comment on proposed sector 
operations plan addenda.

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

    Dated: November 1, 2012.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, performing the 
functions and duties of the Assistant Administrator for Fisheries, 
National Marine Fisheries Service.
[FR Doc. 2012-27245 Filed 11-7-12; 8:45 am]
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