Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; 2006 Georges Bank Cod Fixed Gear Sector Operations Plan and Agreement and Allocation of Georges Bank Cod Total Allowable Catch, 69070-69073 [06-9452]
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Federal Register / Vol. 71, No. 229 / Wednesday, November 29, 2006 / Rules and Regulations
(c) Primary Constituent Elements. The
primary constituent elements essential
for conservation of the Southern
Resident killer whale are:
(1) Water quality to support growth
and development;
(2) Prey species of sufficient quantity,
quality, and availability to support
individual growth, reproduction, and
development, as well as overall
population growth; and (3) Passage
conditions to allow for migration,
resting, and foraging.
(d) Sites owned or controlled by the
Department of Defense. Critical habitat
does not include the following areas
owned or controlled by the Department
of Defense, or designated for its use, in
the State of Washington, including
shoreline, nearshore areas around
structures such as docks and piers, and
marine areas:
(1) Naval Undersea Warfare Center,
Keyport;
(2) Naval Ordnance Center, Port
Hadlock (Indian Island);
(3) Naval Fuel Depot, Manchester;
(4) Naval Air Station, Whidbey Island;
(5) Naval Station, Everett;
(6) Naval Hospital Bremerton;
(7) Fort Lewis (Army);
(8) Pier 23 (Army);
(9) Puget Sound Naval Ship Yard;
(10) Strait of Juan de Fuca naval airto-surface weapon range, restricted area;
(11) Strait of Juan de Fuca and
Whidbey Island naval restricted areas;
(12) Admiralty Inlet naval restricted
area;
(13) Port Gardner Naval Base
restricted area;
(14) Port Orchard Passage naval
restricted area;
(15) Sinclair Inlet naval restricted
area;
(16) Carr Inlet naval restricted area;
(17) Port Townsend/Indian Island/
Walan Point naval restricted area; and
(18) Crescent Harbor Explosive
Ordnance Units Training Area.
[FR Doc. 06–9453 Filed 11–28–06; 8:45 am]
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BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 060808213–6300–02; I.D.
073106C]
RIN 0648–AU56
Magnuson-Stevens Act Provisions;
Fisheries of the Northeastern United
States; Northeast Multispecies
Fishery; 2006 Georges Bank Cod Fixed
Gear Sector Operations Plan and
Agreement and Allocation of Georges
Bank Cod Total Allowable Catch
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
SUMMARY: NMFS announces partial
approval of an Operations Plan and
Sector Contract titled ‘‘GB Cod Fixed
Gear Sector Operations Plan and
Agreement’’ (together referred to as the
Sector Operations Plan), and the
associated allocation of Georges Bank
(GB) cod, consistent with regulations
implementing Amendment 13, as
modified by Framework Adjustment
(FW) 42 to the Northeast (NE)
Multispecies Fishery Management Plan
(FMP) for fishing year (FY) 2006. The
intent of this action is to allow regulated
harvest of NE multispecies by the GB
Cod Fixed Gear Sector (Fixed Gear
Sector), consistent with the objectives of
the FMP.
DATES: Effective November 22, 2006,
through April 30, 2007.
ADDRESSES: Copies of the Sector
Operations Plan and the Environmental
Assessment (EA) are available upon
request from the NE Regional Office at
the following mailing address: George
H. Darcy, Assistant Regional
Administrator for Sustainable Fisheries,
NMFS, Northeast Regional Office, 1
Blackburn Drive, Gloucester, MA 01930.
These documents may also be requested
by calling (978) 281–9315.
FOR FURTHER INFORMATION CONTACT:
Mark Grant, Fishery Management
Specialist, phone (978) 281–9145, fax
(978) 281–9135, e-mail
Mark.Grant@NOAA.gov.
The final
rule implementing Amendment 13 to
the FMP (69 FR 22906, April 27, 2004)
specified a process for the formation of
sectors within the NE multispecies
fishery and the allocation of total
allowable catch (TAC) or days-at-sea
SUPPLEMENTARY INFORMATION:
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(DAS) for specific NE multispecies,
implemented restrictions that apply to
all sectors, and authorized the first
sector of the FMP (the GB Cod Hook
Gear Sector). The final rule
implementing FW 42 (71 FR 62156,
October 23, 2006) creates the Fixed Gear
Sector, the second approved sector of
the FMP. Creation of the Fixed Gear
Sector authorizes the Regional
Administrator to allocate a GB cod TAC
to the Fixed Gear Sector and exempt
members from FMP restrictions on an
annual basis.
In accordance with the regulations
that specify the process of sector
approval, and in anticipation of
approval of the Fixed Gear Sector, the
Fixed Gear Sector submitted an initial
version of the Sector Operations Plan
and EA to NMFS on February 1, 2006.
A final version was submitted on
September 18, 2006. According to these
documents, the Fixed Gear Sector will
be overseen by a Board of Directors and
a Sector Manager. Consistent with
Amendment 13, the cod TAC for the
Fixed Gear Sector is based upon the
number of participants and their
historic landings of GB cod. In addition,
participating vessels will be required to
fish under their Amendment 13 DAS
allocations to account for any incidental
groundfish species that they may catch
while fishing for GB cod. The GB cod
TAC is a ‘‘hard’’ TAC, meaning that,
once the TAC is reached, Fixed Gear
Sector vessels may 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) for the
remainder of the fishing year.
Each Fixed Gear Sector member will
be required to fish with jigs, demersal
longline, handgear or gillnets; remain in
the Fixed Gear Sector for the entire
fishing year; and be confined to fishing
in the Sector Area, which is that portion
of the GB cod stock area north of 39o
00’ N. lat. and east of 71o 40’ W. long.
Fixed Gear Sector members will be
required to comply with all pertinent
Federal fishing regulations, unless
specifically exempted by a Letter of
Authorization (LOA), and with the
provisions of the approved Operations
Plan. Fixed Gear Sector members will be
exempted from the GB cod possession
limits, the requirements of the GOM cod
trip limit exemption program, and the
GB Seasonal Closure Area (when fishing
with hook gear).
On August 22, 2006, a proposed rule
was published in the Federal Register
(71 FR 48903) that requested comments
on the Operations Plan and EA. The
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proposed rule announced that the
Operations Plan proposed a geographic
area for the Fixed Gear Sector that was
different from the Sector Area proposed
in FW 42 and specifically solicited
comments on the larger area proposed
in the Operations Plan. The comment
period closed on September 21, 2006.
Two Fixed Gear Sector members have
signed the 2006 Sector Contract. The GB
cod TAC calculation is based upon the
historic cod landings of the
participating Fixed Gear Sector vessels,
using all gear. The allocation percentage
is calculated by dividing the sum of
total landings of GB cod by Fixed Gear
Sector members for FY 1996 through
2001, by the sum of the total
accumulated landings of GB cod
harvested by all NE multispecies vessels
for the same time period (2,240,110 lb
(1,016.1 mt)/ 113,278,842 lb (51,382.4
mt)). The resulting number is 1.98
percent. Based upon the two
prospective Fixed Gear Sector members,
the Fixed Gear Sector TAC of GB cod
will be 121 mt (1.98 percent of the U.S.
portion of the fishery-wide GB cod
target TAC of 6,132 mt).
Disapproved Measure
The proposed rule for FW 42
specified the same geographic area for
the Fixed Gear Sector (i.e., the Sector
Area) as the area that was implemented
in the Amendment 13 final rule for the
GB Cod Hook Gear Sector. Conversely,
the Fixed Gear Sector’s Operations Plan,
Sector Agreement, and EA proposed a
geographic area for the Fixed Gear
Sector that was substantially different
from this Sector Area. The geographic
area proposed in the Operations Plan
and Sector Agreement included the
Sector Area, but extended it south to 35
00’ N. lat. and west to the coast. The
Operation’s Plan for the Fixed Gear
Sector states that Fixed Gear Sector
participants should be allowed to fish in
an area larger than the GB Cod Hook
Sector area in order to pursue an
offshore gillnet fishery for monkfish.
Because the goal of the Fixed Gear
Sector is similar to the GB Cod Hook
Sector, i.e., to target cod and other NE
multispecies, the rationale to expand
the Sector Area for participants in the
Fixed Gear Sector for the purpose of
targeting monkfish is not consistent
with the objectives of the FMP and is,
therefore, not justified in this action.
Furthermore, expansion of this area
must be implemented through the
existing FMP framework adjustment
process.
Comments and Responses
Thirty-three comments were received
on this action. In addition, 36 comments
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sent in response to the proposed rule for
FW 42, and which directly addressed
the Operations Plan, were also
considered for this action. Combined, 58
separate entities commented on the
Operations Plan (some entities
submitted separate comments to both
proposed rules). Only comments
received before the deadline were
considered.
Comment letters were received from
Associated Fisheries of Maine, the
Maine Department of Marine Resources;
the Cape Cod Commercial Hook
Fishermen’s Association; the GB Cod
Hook Sector; the Fixed Gear Sector; the
Portland Fish Exchange; the Boards of
Selectmen of Orleans, Harwich,
Brewster, Chatham, and Yarmouth, MA;
Representative William Delahunt;
Massachusetts State Senator Robert
O’Leary; the Downeast Initiative; the
Conservation Law Foundation; AJ
Marine Hydraulic Equipment;
Environmental Defense; the National
Environmental Trust; one recreational
fisherman; three industry members not
associated with a sector; and 36
industry members associated with the
two sectors.
Comment 1: One commenter did not
specifically address either the
Operations Plan or EA, but opposed any
expansion of commercial fishing and
asserted that a portion of GB should be
reserved for recreational fishermen.
Response: Amendment 13 to the FMP
established the process by which a
group of individuals may form a sector.
One of the requirements of this
procedure is that all of the participating
vessels are limited access NE
multispecies permit holders. Reserving
a portion of GB or any associated fish
species as a sector is not a viable option
under current regulations, nor is there
any other mechanism by which a
portion of the NE multispecies fishery
or associated fishing area can be
reserved for recreational fishers, since
recreational fishers do not have a
limited access NE Multispecies permit
specific for their fishery.
Comment 2: Fifty-one commenters
supported the Fixed Gear Sector and
approval of the Operations Plan.
Generally, the commenters supported
the idea of a sector because they felt it
could help to reduce fishing waste,
involve communities in management,
and allow for greater responsibility and
accountability in the fishing industry.
Response: NMFS agrees and has
approved the Fixed Gear Sector’s
Operations Plan.
Comment 3: Two commenters
specified that the Fixed Gear Sector
should be allowed access only to the GB
Cod Hook Gear Sector Area, and two
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commenters believed that the expanded
geographic area proposed in the Sector
Operations Plan should be vetted by the
Council prior to approval. Twenty-five
comments were received on the
proposed rule for FW 42, requesting that
NMFS modify the Sector Area to reflect
the larger area proposed by the Sector’s
Operations Plan to facilitate pursuit of
an offshore monkfish fishery. A further
19 comments supported the expanded
Sector Area proposed in the Operations
Plan to direct effort away from the Gulf
of Maine. Eight of the 19 comments
specified that the expanded Sector Area
proposed would allow the Fixed Gear
Sector to maintain a traditional winter
fishery focused on offshore monkfish
while accounting for GB cod bycatch.
Response: Because the goal of the
Fixed Gear Sector is similar to the GB
Cod Hook Gear Sector, i.e., to target cod
and other NE multispecies, the rationale
to expand the Sector Area for
participants in the Fixed Gear Sector for
the purpose of targeting monkfish is not
consistent with the objectives of the
FMP, and is, therefore, not justified.
Furthermore, changing the geographic
area of a sector needs to be considered
by the New England Fishery
Management Council (Council) and
must be implemented through
rulemaking under the framework
adjustment process in the FMP. For
these reasons, NMFS has disapproved
expansion of the Sector Area for the
Fixed Gear Sector.
Comment 4: Six commenters believe
that the Fixed Gear Sector should be
required to have TACs for all species.
One noted that input controls could
have been proposed in lieu of TACs for
all species. Two commenters also
expressed concern that the Fixed Gear
Sector will reduce the effectiveness of
the net cap on pollock and monkfish.
Two commenters expressed concern
that the Fixed Gear Sector could cause
redirected effort and impact other
portions of the industry.
Response: The assertion that a sector
should be governed by a TAC for each
species has previously been considered
in the context of the GB Cod Hook Gear
Sector. Because the Fixed Gear Sector
would continue to be bound by both
species-specific possession limits and
DAS effort controls, TACs are
unnecessary for each species. A TAC is
issued for GB cod in lieu of possession
limits. The comment suggesting that
input controls could have been
proposed in lieu of TACs is without
merit because the Fixed Gear Sector has
proposed input controls in the form of
DAS and gear restrictions. Similarly,
concerns regarding pollock and
monkfish caps, and the potential for
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redirected effort are unfounded because
the Fixed Gear Sector will continue to
be bound by DAS and possession limits
for all other species. Additionally, the
Fixed Gear Sector may not 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 charter/party regulations)
once the Sector’s cod TAC is reached.
Comment 5: One commenter believes
that the TAC monitoring protocol
proposed in the Sector’s Operations
Plan is insufficient to ensure timely
monitoring of monthly quotas and
suggested that daily Vessel Monitoring
System (VMS) reporting, standard for
other parts of the industry, would be
more effective than Vessel Trip Reports
(VTRs) submitted monthly to NMFS.
Response: The TAC monitoring
system proposed by the Fixed Gear
Sector is modeled after the system used
by the GB Cod Hook Gear Sector. During
3 years of operations this system has
been successful at managing both the
cod TAC and monthly quota. Further,
the Sector Manager is empowered to
require an observer be present at
offloading of all catch to enhance
monitoring.
LOAs will be issued to members of
the Fixed Gear Sector exempting them,
conditional upon their compliance with
the Sector Operations Plan, from the
requirements of the GOM cod trip limit
exemption program, the GB Seasonal
Closure Area (when fishing with hook
gear), and the GB cod possession limit
restrictions, as specified in
§§ 648.86(b)(4), 648.81(g), and
648.86(b)(1) and (2), respectively.
Classification
NMFS has determined that this final
rule is consistent with the FMP and is
consistent with the Magnuson-Stevens
Fishery Conservation and Management
Act and other applicable laws.
The Assistant Administrator for
Fisheries, NOAA, finds good cause
pursuant to 5 U.S.C 553(d)(3) to waive
the 30-day delay in effectiveness.
Formation of the Fixed Gear Sector is
authorized by the final rule
implementing FW 42, in accordance
with procedures and requirements
implemented by Amendment 13, and
became effective on November 22, 2006
(71 FR 62156). Creation of the Fixed
Gear Sector allows the Regional
Administrator to allocate a GB cod TAC
to the Fixed Gear Sector and exempt
Fixed Gear Sector members from FMP
restrictions on an annual basis.
Therefore, this action could not be taken
prior to the effective date of FW 42,
November 22, 2006. FW 42 was
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13:36 Nov 28, 2006
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scheduled to take effect on May 1, 2006,
the beginning of the 2006 fishing year;
however, final adoption of FW 42 by the
Council was delayed for several months,
which substantially hindered the ability
of NMFS to implement the rule in the
expected time frame. Under the Sector
allocation provisions specified in
648.87(b)(1)(xii), vessels that fish under
the DAS program outside the Sector
allocation in a given fishing year may
not participate in a Sector during the
same fishing year. Thus, the two vessels
that have agreed to participate in the
Fixed Gear Sector have been prohibited
from fishing in the groundfish DAS
program since May 1, 2006, pending the
creation of the Fixed Gear Sector. Each
of the vessels that have agreed to
participate in the Fixed Gear Sector
possesses only two limited access
permits: Lobster and groundfish. The
lobster fishery, for which these vessels
are permitted, is seasonal, with catches
slowing during late fall and remaining
low through the winter. Thus, while
both of these vessels have been able to
fish in the lobster fishery since May 1,
2006, the seasonality of that fishery
means that they are more dependent on
groundfish for their livelihood at this
time of year.
Both vessels that have signed on to
the Fixed Gear Sector are considered
small vessels (<50 ft), which are more
adversely impacted by weather
conditions than other vessels. In
addition, since these vessels are rigged
for lobster and hook gear, they are what
is referred to as ‘‘open’’ vessels (i.e., no
shelter is available during fishing
operations) and are exposed to the
elements during fishing operations. In
addition, the homeport of one vessel,
Chatham, is notoriously dangerous to
access, particularly during inclement
weather. If they cannot begin to fish
immediately, then they may effectively
be deprived of the majority of the rest
of the fishing season because of the
likelihood of a great number of days of
inclement weather.. At this point in the
fishing year, there remain a limited
number of groundfish days which will
have weather in which these two vessels
can safely travel to the Sector area on
Georges Bank, and since they have
already missed the bulk of the season,
any further delay would deprive them of
a meaningful chance to pursue their
livelihood.
This final rule has been determined to
be not significant for purposes of
Executive Order (E.O.) 12866. This final
rule does not contain policies with
federalism or ‘‘takings’’ implications as
those terms are defined in E.O. 13132
and E.O. 12630, respectively. There are
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no Federal rules that duplicate, overlap,
or conflict with this final rule.
An EA has been prepared for this final
rule in compliance with the National
Environmental Policy Act (NEPA). In
addition, an EA was prepared for FW 42
to the FMP, which references the Fixed
Gear Sector. Copies of both of these EAs
may be obtained from the Regional
Administrator (see ADDRESSES).
NMFS, pursuant to section 604 of the
Regulatory Flexibility Act (RFA),
prepared this Final Regulatory
Flexibility Analysis (FRFA) in support
of the 2006 GB Fixed Gear Sector
Operations Plan and allocation of GB
cod TAC. The FRFA incorporates the
economic impacts summarized in the
Initial Regulatory Flexibility Analysis
(IRFA) included in the proposed rule
and the corresponding analysis in the
EA prepared for this action. A summary
of the IRFA was published in the
proposed rule for this action and is not
repeated here. A description of why this
action was considered, along with the
objectives of, and the legal basis for, this
rule are contained in the preamble to
the proposed rule and are not repeated
here.
Summary of the Issues Raised by Public
Comments in Response to the IRFA. 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
No comments pertaining to the IRFA
or the economic impacts of the rule
were received during the comment
period for this action.
Description of and Estimate of the
Number of Small Entities to Which the
Final Rule Would Apply
All vessels issued a limited access NE
multispecies permit and allocated DAS
are eligible to participate in the Fixed
Gear Sector. Although the nearly 1,000
vessels issued a limited access NE
multispecies permit and allocated DAS
are eligible to participate in this Sector,
it is expected that a substantially
smaller number of vessels will actually
participate in the Fixed Gear Sector.
Due to delays in the review and
approval of FW 42, to date, only two
vessels have signed the 2006 Sector
Contract. However, it is expected that
approximately 23 vessels will
participate in a proposed Fixed Gear
Sector during FY 2007, based upon
preliminary estimates.
The Small Business Administration
(SBA) size standard for small
commercial fishing entities is $4 million
in gross sales, and the size standard for
small charter/party operators is $6.5
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Such provisions include the
establishment of a hard TAC for GB cod
landed by Fixed Gear Sector vessels, the
even distribution of the allocated GB
cod TAC throughout the fishing year,
the ability to pool available DAS among
Fixed Gear Sector vessels, and
exemption from the GB Seasonal
Closure Area for hook gear vessels. By
facilitating the continued supply of
groundfish, the preferred alternative
allows Fixed Gear Sector vessels to
maximize revenues from available
fishing opportunities and, therefore,
minimizes adverse economic impacts on
small entities compared to the no-action
alternative.
Description of the Projected Reporting,
Recordkeeping, and Other Compliance
Requirements of the Final Rule
This rule contains no collection-ofinformation requirements subject to the
Paperwork Reduction Act.
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million. Available data for FY 2004
gross sales show that the maximum
gross sales for any single commercial
fishing vessel was $1.8 million, and the
maximum gross sales for any affected
party/charter vessel was $1.0 million.
While an entity may own multiple
vessels, available data make it difficult
to determine which vessels may be
controlled by a single entity. For this
reason, each vessel is treated as a single
entity for purposes of size determination
and impact assessment. This means that
all commercial and charter/party fishing
entities would fall under the SBA size
standard for small entities and,
therefore, there is no differential impact
between large and small entities.
Dated: November 22, 2006.
John Oliver,
Deputy Assistant Administrator for
Operations, National Marine Fisheries
Service.
[FR Doc. 06–9452 Filed 11–24–06; 2:07 pm]
Description of Steps the Agency Has
Taken to Minimize the Significant
Economic Impact on Small Entities
Consistent with the Stated Objectives of
Applicable Statues
Two alternatives were considered
regarding the 2006 Fixed Gear Sector
Operations Plan and allocation of GB
cod TAC: The no-action alternative and
the proposed alternative. Under the noaction alternative, all Fixed Gear Sector
vessels would remain in the common
pool of vessels and be subject to all of
the regulations implemented by
Amendment 13 and subsequent
adjustments to the FMP, and would not
be allocated any portion of the GB cod
target TAC. The proposed alternative
implemented by this action, enables
vessels to fish under the restrictions of
the Operations Plan summarized above
and allocates a portion of the GB cod
target TAC to Fixed Gear Sector vessels.
Because cod usually represents a high
proportion of total fishing income for
gillnet and hookgear vessels, revenues
for such vessel owners are very sensitive
to changes in cod trip limits. As a result,
the reduced number of available DAS
and restrictive trip limits implemented
by recent management actions such as
FW 42 would result in revenue losses
for Fixed Gear Sector vessels under the
no-action alternative. In contrast, the
2006 Sector Operations Plan includes a
number of provisions that would allow
Fixed Gear Sector vessels to remain
economically viable, minimize vessel
expenses, and maximize consistent
revenue streams throughout the fishing
year compared to the no-action
alternative, without compromising
conservation objectives of the FMP.
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Authority: 16 U.S.C. 1801 et seq.
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
69073
defray the cost of carrying observers.
Under the emergency action, scallop
vessel owners, operators, or vessel
managers are required to procure
certified fishery observers for specified
scallop fishing trips from an approved
observer service provider. The
emergency rule maintains the existing
requirements for scallop vessel owners
to pay for observers whether or not
scallop TAC or DAS set-aside is
available. This extension of the
emergency rule ensures that observers
can continue to be deployed in the
scallop fishery throughout the year.
DATES: The amendments in this rule to
paragraphs (g), (h), and (i), are effective
November 29, 2006, through June 11,
2007. The emergency rule published
June 16, 2006 (71 FR 34842), is
extended from December 13, 2006,
through June 11, 2007.
ADDRESSES: Written comments
regarding the burden-hour estimate or
other aspects of the collection-ofinformation requirement contained in
this rule should be submitted to the
Regional Administrator at the address
above and by e-mail to
DavidlRostker@omb.eop.gov, or fax to
(202) 395–7285.
[Docket No. 060608158–6158–01; I.D.
051806E]
FOR FURTHER INFORMATION CONTACT:
Peter W. Christopher, Fishery Policy
Analyst, 978–281–9288; fax 978–281–
9135.
RIN 0648–AU47
SUPPLEMENTARY INFORMATION:
50 CFR Part 648
Fisheries of the Northeastern United
States; Atlantic Sea Scallop Fishery;
Emergency Rule
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; emergency
action extended.
AGENCY:
SUMMARY: This rule continues
management measures implemented by
a June 16, 2006, emergency interim final
rule that were set to expire on December
13, 2006. In the June 16, 2006,
emergency action, NMFS implemented
an observer service provider program for
the Atlantic sea scallop (scallop) fishery
including criteria for becoming an
approved observer service provider,
observer certification criteria,
decertification criteria, and observer
deployment logistics. Through the
emergency rule, NMFS re-activated the
industry-funded observer program
implemented under the Atlantic Sea
Scallop Fishery Management Plan
(FMP) through a scallop total allowable
catch (TAC) and days-at-sea (DAS) setaside program that helps vessel owners
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On June
16, 2006, an emergency rule
implemented an observer service
provider certification program that
enabled NOAA Fisheries Service to
reactivate the Scallop FMP’s observer
set-aside program. The emergency rule
was necessary to resolve an issue with
the observer program that rendered the
Scallop FMP’s observer set-aside
program inoperable. Further, the
Northeast Fisheries Science Center’s
(NEFSC’s) FY 2006 level of funding for
the observer program provided for only
minimal coverage in the scallop fishery,
and that is not expected to change in FY
2007. Additional background relative to
the need for the action is included in
the June 16, 2006, emergency rule, and
is not repeated here.
The emergency rule established a
program that allows observer service
providers to be certified by NOAA
Fisheries Service to deploy observers on
scallop vessels. Certified observer
service providers are required to meet
specified criteria in order to remain
certified under the emergency rule. In
addition, vessel owners are required to
procure observers from an approved
observer service provider and must pay
for the observer. To help defray the
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]]>Agencies
[Federal Register Volume 71, Number 229 (Wednesday, November 29, 2006)]
[Rules and Regulations]
[Pages 69070-69073]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9452]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 060808213-6300-02; I.D. 073106C]
RIN 0648-AU56
Magnuson-Stevens Act Provisions; Fisheries of the Northeastern
United States; Northeast Multispecies Fishery; 2006 Georges Bank Cod
Fixed Gear 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: Final rule.
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SUMMARY: NMFS announces partial approval of an Operations Plan and
Sector Contract titled ``GB Cod Fixed Gear Sector Operations Plan and
Agreement'' (together referred to as the Sector Operations Plan), and
the associated allocation of Georges Bank (GB) cod, consistent with
regulations implementing Amendment 13, as modified by Framework
Adjustment (FW) 42 to the Northeast (NE) Multispecies Fishery
Management Plan (FMP) for fishing year (FY) 2006. The intent of this
action is to allow regulated harvest of NE multispecies by the GB Cod
Fixed Gear Sector (Fixed Gear Sector), consistent with the objectives
of the FMP.
DATES: Effective November 22, 2006, through April 30, 2007.
ADDRESSES: Copies of the Sector Operations Plan and the Environmental
Assessment (EA) are available upon request from the NE Regional Office
at the following mailing address: George H. Darcy, Assistant Regional
Administrator for Sustainable Fisheries, NMFS, Northeast Regional
Office, 1 Blackburn Drive, Gloucester, MA 01930. These documents may
also be requested by calling (978) 281-9315.
FOR FURTHER INFORMATION CONTACT: Mark Grant, Fishery Management
Specialist, phone (978) 281-9145, fax (978) 281-9135, e-mail
Mark.Grant@NOAA.gov.
SUPPLEMENTARY INFORMATION: The final rule implementing Amendment 13 to
the FMP (69 FR 22906, April 27, 2004) specified a process for the
formation of sectors within the NE multispecies fishery and the
allocation of total allowable catch (TAC) or days-at-sea (DAS) for
specific NE multispecies, implemented restrictions that apply to all
sectors, and authorized the first sector of the FMP (the GB Cod Hook
Gear Sector). The final rule implementing FW 42 (71 FR 62156, October
23, 2006) creates the Fixed Gear Sector, the second approved sector of
the FMP. Creation of the Fixed Gear Sector authorizes the Regional
Administrator to allocate a GB cod TAC to the Fixed Gear Sector and
exempt members from FMP restrictions on an annual basis.
In accordance with the regulations that specify the process of
sector approval, and in anticipation of approval of the Fixed Gear
Sector, the Fixed Gear Sector submitted an initial version of the
Sector Operations Plan and EA to NMFS on February 1, 2006. A final
version was submitted on September 18, 2006. According to these
documents, the Fixed Gear Sector will be overseen by a Board of
Directors and a Sector Manager. Consistent with Amendment 13, the cod
TAC for the Fixed Gear Sector is based upon the number of participants
and their historic landings of GB cod. In addition, participating
vessels will be required to fish under their Amendment 13 DAS
allocations to account for any incidental groundfish species that they
may catch while fishing for GB cod. The GB cod TAC is a ``hard'' TAC,
meaning that, once the TAC is reached, Fixed Gear Sector vessels may
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) for the remainder of the fishing year.
Each Fixed Gear Sector member will be required to fish with jigs,
demersal longline, handgear or gillnets; remain in the Fixed Gear
Sector for the entire fishing year; and be confined to fishing in the
Sector Area, which is that portion of the GB cod stock area north of
39o 00' N. lat. and east of 71o 40' W. long. Fixed Gear Sector members
will be required to comply with all pertinent Federal fishing
regulations, unless specifically exempted by a Letter of Authorization
(LOA), and with the provisions of the approved Operations Plan. Fixed
Gear Sector members will be exempted from the GB cod possession limits,
the requirements of the GOM cod trip limit exemption program, and the
GB Seasonal Closure Area (when fishing with hook gear).
On August 22, 2006, a proposed rule was published in the Federal
Register (71 FR 48903) that requested comments on the Operations Plan
and EA. The
[[Page 69071]]
proposed rule announced that the Operations Plan proposed a geographic
area for the Fixed Gear Sector that was different from the Sector Area
proposed in FW 42 and specifically solicited comments on the larger
area proposed in the Operations Plan. The comment period closed on
September 21, 2006.
Two Fixed Gear Sector members have signed the 2006 Sector Contract.
The GB cod TAC calculation is based upon the historic cod landings of
the participating Fixed Gear Sector vessels, using all gear. The
allocation percentage is calculated by dividing the sum of total
landings of GB cod by Fixed Gear Sector members for FY 1996 through
2001, by the sum of the total accumulated landings of GB cod harvested
by all NE multispecies vessels for the same time period (2,240,110 lb
(1,016.1 mt)/ 113,278,842 lb (51,382.4 mt)). The resulting number is
1.98 percent. Based upon the two prospective Fixed Gear Sector members,
the Fixed Gear Sector TAC of GB cod will be 121 mt (1.98 percent of the
U.S. portion of the fishery-wide GB cod target TAC of 6,132 mt).
Disapproved Measure
The proposed rule for FW 42 specified the same geographic area for
the Fixed Gear Sector (i.e., the Sector Area) as the area that was
implemented in the Amendment 13 final rule for the GB Cod Hook Gear
Sector. Conversely, the Fixed Gear Sector's Operations Plan, Sector
Agreement, and EA proposed a geographic area for the Fixed Gear Sector
that was substantially different from this Sector Area. The geographic
area proposed in the Operations Plan and Sector Agreement included the
Sector Area, but extended it south to 35 00' N. lat. and west to the
coast. The Operation's Plan for the Fixed Gear Sector states that Fixed
Gear Sector participants should be allowed to fish in an area larger
than the GB Cod Hook Sector area in order to pursue an offshore gillnet
fishery for monkfish. Because the goal of the Fixed Gear Sector is
similar to the GB Cod Hook Sector, i.e., to target cod and other NE
multispecies, the rationale to expand the Sector Area for participants
in the Fixed Gear Sector for the purpose of targeting monkfish is not
consistent with the objectives of the FMP and is, therefore, not
justified in this action. Furthermore, expansion of this area must be
implemented through the existing FMP framework adjustment process.
Comments and Responses
Thirty-three comments were received on this action. In addition, 36
comments sent in response to the proposed rule for FW 42, and which
directly addressed the Operations Plan, were also considered for this
action. Combined, 58 separate entities commented on the Operations Plan
(some entities submitted separate comments to both proposed rules).
Only comments received before the deadline were considered.
Comment letters were received from Associated Fisheries of Maine,
the Maine Department of Marine Resources; the Cape Cod Commercial Hook
Fishermen's Association; the GB Cod Hook Sector; the Fixed Gear Sector;
the Portland Fish Exchange; the Boards of Selectmen of Orleans,
Harwich, Brewster, Chatham, and Yarmouth, MA; Representative William
Delahunt; Massachusetts State Senator Robert O'Leary; the Downeast
Initiative; the Conservation Law Foundation; AJ Marine Hydraulic
Equipment; Environmental Defense; the National Environmental Trust; one
recreational fisherman; three industry members not associated with a
sector; and 36 industry members associated with the two sectors.
Comment 1: One commenter did not specifically address either the
Operations Plan or EA, but opposed any expansion of commercial fishing
and asserted that a portion of GB should be reserved for recreational
fishermen.
Response: Amendment 13 to the FMP established the process by which
a group of individuals may form a sector. One of the requirements of
this procedure is that all of the participating vessels are limited
access NE multispecies permit holders. Reserving a portion of GB or any
associated fish species as a sector is not a viable option under
current regulations, nor is there any other mechanism by which a
portion of the NE multispecies fishery or associated fishing area can
be reserved for recreational fishers, since recreational fishers do not
have a limited access NE Multispecies permit specific for their
fishery.
Comment 2: Fifty-one commenters supported the Fixed Gear Sector and
approval of the Operations Plan. Generally, the commenters supported
the idea of a sector because they felt it could help to reduce fishing
waste, involve communities in management, and allow for greater
responsibility and accountability in the fishing industry.
Response: NMFS agrees and has approved the Fixed Gear Sector's
Operations Plan.
Comment 3: Two commenters specified that the Fixed Gear Sector
should be allowed access only to the GB Cod Hook Gear Sector Area, and
two commenters believed that the expanded geographic area proposed in
the Sector Operations Plan should be vetted by the Council prior to
approval. Twenty-five comments were received on the proposed rule for
FW 42, requesting that NMFS modify the Sector Area to reflect the
larger area proposed by the Sector's Operations Plan to facilitate
pursuit of an offshore monkfish fishery. A further 19 comments
supported the expanded Sector Area proposed in the Operations Plan to
direct effort away from the Gulf of Maine. Eight of the 19 comments
specified that the expanded Sector Area proposed would allow the Fixed
Gear Sector to maintain a traditional winter fishery focused on
offshore monkfish while accounting for GB cod bycatch.
Response: Because the goal of the Fixed Gear Sector is similar to
the GB Cod Hook Gear Sector, i.e., to target cod and other NE
multispecies, the rationale to expand the Sector Area for participants
in the Fixed Gear Sector for the purpose of targeting monkfish is not
consistent with the objectives of the FMP, and is, therefore, not
justified. Furthermore, changing the geographic area of a sector needs
to be considered by the New England Fishery Management Council
(Council) and must be implemented through rulemaking under the
framework adjustment process in the FMP. For these reasons, NMFS has
disapproved expansion of the Sector Area for the Fixed Gear Sector.
Comment 4: Six commenters believe that the Fixed Gear Sector should
be required to have TACs for all species. One noted that input controls
could have been proposed in lieu of TACs for all species. Two
commenters also expressed concern that the Fixed Gear Sector will
reduce the effectiveness of the net cap on pollock and monkfish. Two
commenters expressed concern that the Fixed Gear Sector could cause
redirected effort and impact other portions of the industry.
Response: The assertion that a sector should be governed by a TAC
for each species has previously been considered in the context of the
GB Cod Hook Gear Sector. Because the Fixed Gear Sector would continue
to be bound by both species-specific possession limits and DAS effort
controls, TACs are unnecessary for each species. A TAC is issued for GB
cod in lieu of possession limits. The comment suggesting that input
controls could have been proposed in lieu of TACs is without merit
because the Fixed Gear Sector has proposed input controls in the form
of DAS and gear restrictions. Similarly, concerns regarding pollock and
monkfish caps, and the potential for
[[Page 69072]]
redirected effort are unfounded because the Fixed Gear Sector will
continue to be bound by DAS and possession limits for all other
species. Additionally, the Fixed Gear Sector may not 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 charter/party regulations) once the Sector's cod TAC is
reached.
Comment 5: One commenter believes that the TAC monitoring protocol
proposed in the Sector's Operations Plan is insufficient to ensure
timely monitoring of monthly quotas and suggested that daily Vessel
Monitoring System (VMS) reporting, standard for other parts of the
industry, would be more effective than Vessel Trip Reports (VTRs)
submitted monthly to NMFS.
Response: The TAC monitoring system proposed by the Fixed Gear
Sector is modeled after the system used by the GB Cod Hook Gear Sector.
During 3 years of operations this system has been successful at
managing both the cod TAC and monthly quota. Further, the Sector
Manager is empowered to require an observer be present at offloading of
all catch to enhance monitoring.
LOAs will be issued to members of the Fixed Gear Sector exempting
them, conditional upon their compliance with the Sector Operations
Plan, from the requirements of the GOM cod trip limit exemption
program, the GB Seasonal Closure Area (when fishing with hook gear),
and the GB cod possession limit restrictions, as specified in
Sec. Sec. 648.86(b)(4), 648.81(g), and 648.86(b)(1) and (2),
respectively.
Classification
NMFS has determined that this final rule is consistent with the FMP
and is consistent with the Magnuson-Stevens Fishery Conservation and
Management Act and other applicable laws.
The Assistant Administrator for Fisheries, NOAA, finds good cause
pursuant to 5 U.S.C 553(d)(3) to waive the 30-day delay in
effectiveness. Formation of the Fixed Gear Sector is authorized by the
final rule implementing FW 42, in accordance with procedures and
requirements implemented by Amendment 13, and became effective on
November 22, 2006 (71 FR 62156). Creation of the Fixed Gear Sector
allows the Regional Administrator to allocate a GB cod TAC to the Fixed
Gear Sector and exempt Fixed Gear Sector members from FMP restrictions
on an annual basis. Therefore, this action could not be taken prior to
the effective date of FW 42, November 22, 2006. FW 42 was scheduled to
take effect on May 1, 2006, the beginning of the 2006 fishing year;
however, final adoption of FW 42 by the Council was delayed for several
months, which substantially hindered the ability of NMFS to implement
the rule in the expected time frame. Under the Sector allocation
provisions specified in 648.87(b)(1)(xii), vessels that fish under the
DAS program outside the Sector allocation in a given fishing year may
not participate in a Sector during the same fishing year. Thus, the two
vessels that have agreed to participate in the Fixed Gear Sector have
been prohibited from fishing in the groundfish DAS program since May 1,
2006, pending the creation of the Fixed Gear Sector. Each of the
vessels that have agreed to participate in the Fixed Gear Sector
possesses only two limited access permits: Lobster and groundfish. The
lobster fishery, for which these vessels are permitted, is seasonal,
with catches slowing during late fall and remaining low through the
winter. Thus, while both of these vessels have been able to fish in the
lobster fishery since May 1, 2006, the seasonality of that fishery
means that they are more dependent on groundfish for their livelihood
at this time of year.
Both vessels that have signed on to the Fixed Gear Sector are
considered small vessels (<50 ft), which are more adversely impacted by
weather conditions than other vessels. In addition, since these vessels
are rigged for lobster and hook gear, they are what is referred to as
``open'' vessels (i.e., no shelter is available during fishing
operations) and are exposed to the elements during fishing operations.
In addition, the homeport of one vessel, Chatham, is notoriously
dangerous to access, particularly during inclement weather. If they
cannot begin to fish immediately, then they may effectively be deprived
of the majority of the rest of the fishing season because of the
likelihood of a great number of days of inclement weather.. At this
point in the fishing year, there remain a limited number of groundfish
days which will have weather in which these two vessels can safely
travel to the Sector area on Georges Bank, and since they have already
missed the bulk of the season, any further delay would deprive them of
a meaningful chance to pursue their livelihood.
This final rule has been determined to be not significant for
purposes of Executive Order (E.O.) 12866. This final rule does not
contain policies with federalism or ``takings'' implications as those
terms are defined in E.O. 13132 and E.O. 12630, respectively. There are
no Federal rules that duplicate, overlap, or conflict with this final
rule.
An EA has been prepared for this final rule in compliance with the
National Environmental Policy Act (NEPA). In addition, an EA was
prepared for FW 42 to the FMP, which references the Fixed Gear Sector.
Copies of both of these EAs may be obtained from the Regional
Administrator (see ADDRESSES).
NMFS, pursuant to section 604 of the Regulatory Flexibility Act
(RFA), prepared this Final Regulatory Flexibility Analysis (FRFA) in
support of the 2006 GB Fixed Gear Sector Operations Plan and allocation
of GB cod TAC. The FRFA incorporates the economic impacts summarized in
the Initial Regulatory Flexibility Analysis (IRFA) included in the
proposed rule and the corresponding analysis in the EA prepared for
this action. A summary of the IRFA was published in the proposed rule
for this action and is not repeated here. A description of why this
action was considered, along with the objectives of, and the legal
basis for, this rule are contained in the preamble to the proposed rule
and are not repeated here.
Summary of the Issues Raised by Public Comments in Response to the
IRFA. 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
No comments pertaining to the IRFA or the economic impacts of the
rule were received during the comment period for this action.
Description of and Estimate of the Number of Small Entities to Which
the Final Rule Would Apply
All vessels issued a limited access NE multispecies permit and
allocated DAS are eligible to participate in the Fixed Gear Sector.
Although the nearly 1,000 vessels issued a limited access NE
multispecies permit and allocated DAS are eligible to participate in
this Sector, it is expected that a substantially smaller number of
vessels will actually participate in the Fixed Gear Sector. Due to
delays in the review and approval of FW 42, to date, only two vessels
have signed the 2006 Sector Contract. However, it is expected that
approximately 23 vessels will participate in a proposed Fixed Gear
Sector during FY 2007, based upon preliminary estimates.
The Small Business Administration (SBA) size standard for small
commercial fishing entities is $4 million in gross sales, and the size
standard for small charter/party operators is $6.5
[[Page 69073]]
million. Available data for FY 2004 gross sales show that the maximum
gross sales for any single commercial fishing vessel was $1.8 million,
and the maximum gross sales for any affected party/charter vessel was
$1.0 million. While an entity may own multiple vessels, available data
make it difficult to determine which vessels may be controlled by a
single entity. For this reason, each vessel is treated as a single
entity for purposes of size determination and impact assessment. This
means that all commercial and charter/party fishing entities would fall
under the SBA size standard for small entities and, therefore, there is
no differential impact between large and small entities.
Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Final Rule
This rule contains no collection-of-information requirements
subject to the Paperwork Reduction Act.
Description of Steps the Agency Has Taken to Minimize the Significant
Economic Impact on Small Entities Consistent with the Stated Objectives
of Applicable Statues
Two alternatives were considered regarding the 2006 Fixed Gear
Sector Operations Plan and allocation of GB cod TAC: The no-action
alternative and the proposed alternative. Under the no-action
alternative, all Fixed Gear Sector vessels would remain in the common
pool of vessels and be subject to all of the regulations implemented by
Amendment 13 and subsequent adjustments to the FMP, and would not be
allocated any portion of the GB cod target TAC. The proposed
alternative implemented by this action, enables vessels to fish under
the restrictions of the Operations Plan summarized above and allocates
a portion of the GB cod target TAC to Fixed Gear Sector vessels.
Because cod usually represents a high proportion of total fishing
income for gillnet and hookgear vessels, revenues for such vessel
owners are very sensitive to changes in cod trip limits. As a result,
the reduced number of available DAS and restrictive trip limits
implemented by recent management actions such as FW 42 would result in
revenue losses for Fixed Gear Sector vessels under the no-action
alternative. In contrast, the 2006 Sector Operations Plan includes a
number of provisions that would allow Fixed Gear Sector vessels to
remain economically viable, minimize vessel expenses, and maximize
consistent revenue streams throughout the fishing year compared to the
no-action alternative, without compromising conservation objectives of
the FMP. Such provisions include the establishment of a hard TAC for GB
cod landed by Fixed Gear Sector vessels, the even distribution of the
allocated GB cod TAC throughout the fishing year, the ability to pool
available DAS among Fixed Gear Sector vessels, and exemption from the
GB Seasonal Closure Area for hook gear vessels. By facilitating the
continued supply of groundfish, the preferred alternative allows Fixed
Gear Sector vessels to maximize revenues from available fishing
opportunities and, therefore, minimizes adverse economic impacts on
small entities compared to the no-action alternative.
Authority: 16 U.S.C. 1801 et seq.
Dated: November 22, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
[FR Doc. 06-9452 Filed 11-24-06; 2:07 pm]
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