[Federal Register: March 3, 2008 (Volume 73, Number 42)] [Proposed Rules] [Page 11376-11380] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr03mr08-21] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 071017599-7600-01] RIN 0648-AW16 Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; 2008 Georges Bank Cod Hook Sector Operations Plan and Agreement and Allocation of Georges Bank Cod Total Allowable Catch AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. ----------------------------------------------------------------------- SUMMARY: The Georges Bank (GB) Cod Hook Sector (Hook Sector) has submitted an Operations Plan and Sector Contract entitled, ``Georges Bank Cod Hook Sector Fishing Year 2008-2009 Operations Plan and Agreement'' (together referred to as the Sector Agreement), and an Environmental Assessment (EA), and has requested an allocation of GB cod, consistent with the Northeast (NE) Multispecies Fishery [[Page 11377]] Management Plan (FMP). This rule proposes to modify the eligibility criteria for membership in both the Hook Sector and the GB Cod Fixed Gear Sector (Fixed Gear Sector). This proposed rule provides interested parties an opportunity to comment on the proposed Hook Gear Sector Agreement prior to final approval or disapproval of the Hook Sector Operations Plan and allocation of GB cod Total Allowable Catch (TAC) to the Hook Sector for the 2008 fishing year (FY). DATES: Written comments must be received on or before March 18, 2008. ADDRESSES: You may submit comments, identified by 0648-AW16, by any one of the following methods: Electronic Submissions: Submit all electronic public comments via the Federal e-rulemaking portal: http:// www.regulations.gov. Mail: Paper, disk, or CD-ROM comments should be sent to Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope, ``Comments on the U.S./Canada TACs.'' Fax: (978) 281-9135. Instructions: All comments received are part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publically accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF formats only. Copies of the Sector Agreement and the EA are available from the NE Regional Office at the mailing address specified above. FOR FURTHER INFORMATION CONTACT: Thomas Warren, Fishery Policy Analyst, phone (978) 281-9347, fax (978) 281-9135, e-mail Thomas.Warren@NOAA.gov. SUPPLEMENTARY INFORMATION: NMFS announces that the Administrator, Northeast Region, NMFS (Regional Administrator), has made a preliminary determination that the Hook Sector Agreement, which contains the Sector Contract and Operations Plan, is consistent with the goals of the FMP and other applicable law and is in compliance with the regulations governing the development and operation of a sector as specified under Sec. 648.87. The final rule implementing Amendment 13 (69 FR 22906, April 27, 2004) specified a process for the formation of sectors within the NE multispecies fishery and the allocation of TAC (or days-at-sea (DAS)) for a specific groundfish species, implemented restrictions that apply to all sectors, authorized the Hook Sector, established the GB Cod Hook Sector Area (Sector Area), and specified a formula for the allocation of GB cod TAC to the Hook Sector. The principal Amendment 13 regulations applying to the Hook Sector specify that: (1) All vessels with a valid limited access NE multispecies DAS permit are eligible to participate in the Hook Sector, provided they have documented landings, through valid dealer reports submitted to NMFS, of GB cod during FY 1996 through 2001 when fishing with hook gear (i.e., jigs, demersel longline, or handgear); (2) membership in the Hook Sector is voluntary, and each member is required to remain in the Hook Sector for the entire fishing year and cannot fish outside the NE multispecies DAS program during the fishing year, unless certain conditions are met; (3) vessels fishing in the Hook Sector (participating vessels) are confined to fishing in the Hook Sector Area, which is that portion of the GB cod stock area north of 39[deg] 00' N. lat. and east of 79[deg] 40' W. long; and (4) participating vessels are required to comply with all pertinent Federal fishing regulations, unless specifically exempted by a Letter of Authorization issued by the Regional Administrator, and the provisions of an approved Operations Plan. While Amendment 13 authorized the Hook Sector, in order for GB cod to be allocated to the Hook Sector and the Hook Sector authorized to fish, the Hook Sector must submit an Operations Plan and Sector Contract to the Regional Administrator annually for approval. The Operations Plan and Sector Contract must contain certain elements, including a contract signed by all Hook Sector participants and a plan containing the management rules that the Hook Sector participants agree to abide by in order to avoid exceeding the allocated TAC. An additional analysis of the impacts of the Hook Sector's proposed operations may also be required in order to comply with the National Environmental Policy Act. Further, the public must be provided an opportunity to comment on the proposed Operations Plan and Sector Contract. The regulations require that, upon completion of the public comment period, the Regional Administrator will make a determination regarding approval of the Sector Contract and Operations Plan. If approved by the Regional Administrator, participating vessels would be authorized to fish under the terms of the Operations Plan and Sector Contract. The Hook Sector was authorized to fish in FYs 2004, 2005, 2006, and 2007, and, based upon the GB cod landings history of its members, was allocated 12.60, 11.70, 10.03, and 8.02 percent, respectively, of the annual GB cod TAC. On September 28, 2007, the Hook Sector submitted a FY 2008 Operations Plan and Sector Agreement and an Environmental Assessment (EA) to NMFS. The proposed 2008 Hook Sector Agreement and Operations Plan contains the same elements and proposed exemptions as the 2007 Hook Sector Agreement. The Hook Sector Agreement would be overseen by a Board of Directors and a Hook Sector Manager. The Hook Sector Agreement specifies, in accordance with Amendment 13, that the Hook Sector's GB cod TAC would be based upon the number of Hook Sector members and their historic landings of GB cod. The GB cod TAC is a ``hard'' TAC, meaning that, once the TAC is reached, Hook Sector vessels could not fish under a DAS, possess or land GB cod or other regulated species managed under the FMP (regulated species), or use gear capable of catching groundfish (unless fishing under charter/party or recreational regulations). Should the hard TAC be exceeded, the Hook Sector's allocation would be reduced by the overharvest in the following year. The proposed 2008 Operations Plan proposes the same exemptions, as in 2007, from the following restrictions of the FMP: The GB cod trip limit; the GB and Southern New England (SNE) limit on the number of hooks fished; the GB Seasonal Closure Area; the DAS Leasing Program vessel size restrictions; Differential DAS in the Gulf of Maine Differential DAS Area and in the SNE Differential DAS Area (those portions of the differential areas which overlap the Hook Sector Area); and the Western U.S./Canada Area 72-hr observer program notification. Justification for the proposed exemptions and analysis of the potential impacts of the Operations Plan are contained in the EA. A summary of the Initial Regulatory Flexibility Analysis (IRFA) is in the Classification section of this proposed rule. Nineteen prospective Hook Sector members signed the 2008 Hook Sector Contract. The GB cod TAC calculation is based upon the historic cod landings of the participating Hook Sector vessels, [[Page 11378]] regardless of gear used. The allocation percentage is calculated by dividing the sum of total landings of GB cod landed by prospective Hook Sector members in FY 1996 through 2001, by the sum of the total accumulated landings of GB cod landed by all NE multispecies vessels for the same time period. Based upon the 19 prospective Hook Sector members (and their associated GB cod history), the Hook Sector's share of the overall U.S. portion of the GB cod TAC would be 6.01 percent, or 1,354,393 lb (614 mt) (6.01 percent times the fishery-wide GB cod target TAC of 22,535,656 lb (10,222 mt)). If prospective members of the Hook Sector decide to not participate in the Hook Sector after the publication of this document and prior to a final decision by the Regional Administrator, the total number of participants in the Hook Sector and the Hook Sector TAC would be reduced from the numbers stated above. The Hook Sector Agreement contains procedures for the enforcement of the Hook Sector rules and a schedule of penalties, and provides the authority to the Hook Sector Manager to issue stop fishing orders to members of the Hook Sector. Participating vessels would be required to land fish only in designated landing ports and would be required to provide the Sector Manager with a copy of the Vessel Trip Report (VTR) within 48 hr of offloading. Dealers purchasing fish from participating vessels would be required to provide the Hook Sector Manager with a copy of the dealer report on a weekly basis. On a monthly basis, the Hook Sector Manager would transmit to NMFS a copy of the VTRs and the aggregate catch information from these reports. After 90 percent of the Hook Sector's allocation has been harvested, the Hook Sector Manager would be required to provide NMFS with aggregate reports on a weekly basis. A total of 1/12 of the Hook Sector's GB cod TAC, minus a reserve, would be allocated to each month of the fishing year. GB cod quota that is not landed during a given month would be rolled over into the following month. Once the aggregate monthly quota of GB cod is reached, for the remainder of the month, participating vessels could not fish under a NE multispecies DAS, possess or land GB cod or other regulated species, or use gear capable of catching regulated NE multispecies. Once the annual TAC of GB cod is reached, Hook Sector members could not fish under a NE multispecies DAS, possess or land GB cod or other regulated species, or use gear capable of catching regulated NE multispecies for the rest of the fishing year. The harvest rules would not preclude vessels from fishing under the charter/party or recreational regulations, provided the vessel fishes under the applicable charter/party and recreational rules on separate trips. For each fishing trip, participating vessels would be required to fish under the NE multispecies DAS program to account for any incidental groundfish species that they may catch while fishing for GB cod. In addition, participating vessels would be required to call the Hook Sector Manager prior to leaving port. All legal-sized cod caught would be retained and landed and counted against the Hook Sector's aggregate allocation. Participating vessels would not be allowed to fish with or have on board gear other than jigs, non-automated demersal longline, or handgear. NE multispecies DAS used by participating vessels while conducting fishery research under an Exempted Fishing Permit during the FY 2008 would be deducted from that Hook Sector member's individual DAS allocation. Similarly, all GB cod landed by a participating vessel while conducting research would count toward the Hook Sector's allocation of GB cod TAC. Participating vessels would be exempt from the GB Seasonal Closure Area during May. The EA prepared for the Hook Sector operations concludes that the biological impacts of the Hook Sector will be positive because the hard TAC and the use of DAS will provide two means of restricting both the landings and effort of the Hook Sector. Implementation of the Hook Sector would have a positive impact on essential fish habitat (EFH) and bycatch by allowing a maximum number of hook vessels to remain active in the hook fishery, rather than converting to (or leasing DAS to) other gear types that have greater impacts on EFH. The analysis of economic impacts of the Hook Sector concludes that Hook Sector members would realize higher economic returns if the Hook Sector were implemented. The EA asserts that fishing in accordance with the Hook Sector Agreement rules enables more efficient harvesting of GB cod with hook gear than would be possible if the vessels were fishing in accordance with the common pool (non-Sector) rules. The social benefits of the Hook Sector would accrue to Hook Sector members, as well as the Chatham/Harwichport, MA, community, which is highly dependent upon groundfish revenues. The EA concludes that the self-governing nature of the Hook Sector and the development of rules by the Hook Sector enables stewardship of the cod resource by Hook Sector members. The cumulative impacts of the Hook Sector are expected to be positive due to a positive biological impact, neutral impact on habitat, and a positive social and economic impact. In contrast, the cumulative impact of the no action alternative is estimated to be neutral, with negative social and economic impacts. Should the Regional Administrator approve the Hook Sector Agreement as proposed, a Letter of Authorization would be issued to each member of the Hook Sector exempting them, conditional upon their compliance with the Hook Sector Agreement, from the GB cod possession restrictions, the GB Seasonal Closure Area, the Western U.S./Canada Area 72-hr observer notification requirement, the DAS Leasing Program vessel size restrictions, differential DAS, and the limits on the number of hooks requirements as specified in Sec. Sec. 648.86(b)(2), 648.81(g), 648.85(a)(3)(ii)(C), 648.82(k)(4)(ix), 648.82 (e)(2), 648.80(a)(4)(v), and 648.80(b)(2)(v), respectively. NMFS also proposes to modify the regulations that define eligibility criteria for membership in the Hook Sector and the Fixed Gear Sector, in order to be consistent with the Council intent. The eligibility criteria for membership in the Hook Sector and Fixed Gear Sector were implemented by Amendment 13 and Framework Adjustment 42 (69 FR 22906, April 27, 2004; and 71 FR 62156, October 23, 2006, respectively). Of the several eligibility criteria for both these sectors in the implementing regulations, a criterion requiring documented landings of GB cod was not explicitly included as a criterion in the Council documents that proposed formation of the sectors. The implications of this eligibility criterion (requiring landings history of GB cod) were not apparent at the time of implementation, but became apparent during the evaluation of sector Operations Plans for FY 2008. Because the proposed roster for the Fixed Gear Sector for 2008 contains vessels that did not land GB cod during the period 1996 to 2001, the current regulations would prevent such vessels without landings from joining a sector. During the formation of the Hook Sector and Fixed Gear Sector, it was assumed that only vessels with GB cod landings would be interested in joining the sector, and therefore the landings criterion was not perceived as exclusionary. However, NMFS evaluated the pertinent information regarding the development of this regulation and concluded that this eligibility criterion does not reflect Council intent. Based on this evaluation, NMFS is proposing a [[Page 11379]] correction to the current regulations by eliminating the eligibility requirement (for landings) because it precludes vessels without GB cod landings history from joining either sector, and is more restrictive than the Council intent. Classification This proposed rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866. This proposed rule does not contain policies with federalism or ``takings'' implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively. An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). Below is a summary of the IRFA, which describes the economic impacts this proposed rule, if adopted, would have on small entities. 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 the EA prepared for this action. The Small Business Administration (SBA) size standard for small commercial fishing entities is $ 4 million in gross sales. All permitted and participating vessels in the groundfish fishery, including prospective Hook Sector members, are considered to be small entities because gross sales by any one entity (vessel) do not exceed this threshold, and, therefore there is no disproportionate impact between large and small entities. The number of prospective participants in the Hook Sector is 19 (or less), substantially less than the total number of active vessels in the groundfish fishery. These 19 vessels would be subject to the regulatory exemptions and operational restrictions proposed for the Hook Sector for FY 2008. Economic Impacts of the Proposed Action The proposed alternative would allocate a GB cod TAC of 614 mt to the Hook Sector. Once the GB cod TAC is harvested, participating vessels would not be allowed to fish under a DAS, possess or land GB cod, or other regulated species managed under the FMP, or use gear capable of catching groundfish (unless fishing under recreational or party/charter regulations). Vessels intending to fish in the Hook Sector during FY 2008 may not fish for NE multispecies under a NE multispecies DAS during FY 2008 until the Hook Sector Operations Plan is approved. Hook Sector vessels may only fish with jigs, non-automated demersel longline, or handgear. Under the proposed Operations Plan, members would be exempt from several restrictions of the FMP described in the preamble to this proposed rule and in the EA. The proposed alternative would positively impact the members of the Hook Sector 19 (or fewer) vessels that have voluntarily joined the Hook Sector, who are relatively dependant upon groundfish revenue compared to other participants in the groundfish fishery. The proposed alternative would indirectly benefit the communities of Chatham and Harwichport, MA, and to a lesser extent other Cape Cod communities involved in the groundfish fishery. During FY 2006, members of the Hook Sector made 359 fishing trips, landed 179,616 lb (81,472 kg) of cod and 258,544 lb (117,274 kg) of haddock, and generated approximately $ 269,424, and $ 310,253 in revenue from those species, respectively (assuming a dock-side price of $ 1.50 and $1.20 per lb, respectively). Hook Sector members also landed various other species, which contributed additionally to their revenue. In general, the operation of the Hook Sector would continue to mitigate the negative economic impacts that result from the current suite of regulations that apply to the groundfish fishery (most recently Framework Adjustment 42; October 23, 2006; 71 FR 62156). The Hook Sector, by fishing under rules that are designed to meet their needs (as well as the conservation requirements of the FMP), is afforded a larger degree of flexibility and efficiency, which result in economic gains. For example, Hook Sector members are able to plan their fishing activity and income in advance with more certainty due to the fact that there is a cod TAC, which is apportioned to each month of the year. They are able to maximize their efficiency (revenue per trip) due to the exemption from trip limits and hook numbers. For some vessel owners in the Hook Sector, participation in the Hook Sector enables their businesses to remain economically viable. Modification of the eligibility criteria for the Hook Sector and the Fixed Gear Sector would allow vessels without a history of landing GB cod the opportunity to participate in a sector and to therefore take advantage of the associated sector efficiencies and financial benefits. The number of vessels that this modification would impact is likely very small. Economic Impacts of Alternatives to the Proposed Action Under the No Action alternative, all Hook Sector members would remain in the common pool of vessels and fish under all the rules implemented by Amendment 13 and subsequent framework adjustments. Under the regulatory scenario of the No Action alternative, Hook Sector members would likely face increased economic uncertainty, a loss of efficiency, and revenue loss. Because cod usually represents a high proportion of total fishing income for hookgear vessels, revenues for Hook Sector members are sensitive to regulations that impact how and when they can fish for cod, such as trip limits and hook gear restrictions. Hook Sector members would be unnecessarily impacted by regulations designed to affect the catch of species that hook gear catches very little of (e.g., yellowtail flounder, because hook gear is more selective than other gear types). For example, under the No Action alternative, Hook Sector members would be affected by the differential DAS counting requirement, one of the objectives of which is to protect yellowtail flounder. If no action is taken to modify the sector eligibility criteria, vessels without a history of landing GB cod would not have an opportunity to participate in a sector and take advantage of the associated sector efficiencies and financial benefits. The number of vessels affected however, is likely very small. No other alternatives beyond the No Action were considered as part of this proposed action. The RFA requires each IRFA to include a description of significant alternatives that accomplish the objectives of applicable statues (in this case, sector provisions) and minimize any significant economic impact to small entities. The objectives of sector management, as originally developed and implemented under Amendment 13 to the NE Multispecies FMP, are to provide opportunities for like-minded vessel operators to govern themselves so that they can operate in a more effective and efficient manner. The GB Cod Hook Sector developed the proposed operations plan after consultation with prospective members. Prospective members then signed a binding sector contract to abide by the measures specified in the proposed operations plan. As described above, the proposed operations plan minimizes economic impacts to participating vessels by allowing them to operate more efficiently. Accordingly, the proposed operations plan reflects the management measures preferred by vessels participating in the GB Cod Hook Sector during FY 2008 and represents all of the significant alternatives that accomplish the objectives of sector provisions and [[Page 11380]] minimize economic impacts to small entities, as required by the RFA. Therefore, in conjunction with the NEPA requirement to consider a reasonable range of alternatives, no other alternatives were considered as part of this proposed action. Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Action This proposed rule contains no collection-of-information requirement subject to the Paperwork Reduction Act (PRA). 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 TAC allocations and plans of operation of sectors. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Reporting and record keeping requirements. Dated: February 26, 2008. Samuel D. Rauch III, 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. 648.87, paragraphs (d)(1)(ii) and (d)(2)(i) are revised to read as follows: Sec. 648.87 Sector allocation. * * * * * (d) * * * (1) * * * (ii) Eligibility. All vessels issued a valid limited access NE multispecies DAS permit are eligible to participate in the GB Cod Hook Sector. * * * * * (2) * * * (i) Eligibility. All vessels issued a valid limited access NE multispecies DAS permit are eligible to participate in the GB Cod Fixed Gear Sector. * * * * * [FR Doc. E8-4039 Filed 2-29-08; 8:45 am] BILLING CODE 3510-22-S
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