Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Allowance of New Gear (Haddock Rope Trawl, Previously Referred to as the Eliminator Trawl) in Specific Special Management Programs, 40186-40192 [E8-15950]
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§ 64.1200
Federal Register / Vol. 73, No. 135 / Monday, July 14, 2008 / Rules and Regulations
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[FR Doc. E8–15994 Filed 7–11–08; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[MM Docket No. 99–25; FCC 07–204]
Creation of a Low Power Radio Service
Federal Communications
Commission.
ACTION: Final rule; announcement of
effective date.
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AGENCY:
Synopsis
SUMMARY: In this document, the
Commission announces that the Office
of Management and Budget (OMB) has
approved, for a period of three years, the
revised information collections
associated with the Creation of a Low
Power Radio Service. This notice is
consistent and satisfies the Ordering
Clause of the Report and Order
published at 73 FR 3202–02, on January
17, 2008, which stated that changes to
FCC Form 314, Application for Consent
to Assignment of Broadcast Station
Construction Permit or License and FCC
Form 315, Application for Consent to
Transfer Control of Entity Holding
Broadcast Station Construction Permit
or License, OMB Control Number 3060–
0031, will become effective 60 days after
a notice is published in the Federal
Register announcing OMB approval of
the forms.
DATES: FCC Forms 314 and 315 are
effective September 12, 2008.
FOR FURTHER INFORMATION CONTACT:
Peter Doyle or Kelly Donohue, Audio
Division, Media Bureau at (202) 418–
2700.
SUPPLEMENTARY INFORMATION: This
document announces that, on June 23,
2008, OMB approved, for a period of
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three years, the revised information
collection requirements resulting in
changes to FCC Forms 314 and 315
contained in the Commission’s Report
and Order concerning the Creation of a
Low Power Radio Service, FCC 07–204,
published at 73 FR 3202–02, January 17,
2008. The OMB Control Number is
3060–0031 for both FCC Forms 314 and
315. The Commission publishes this
notice as an announcement of the
effective date of the forms and
announcement of OMB approval for the
information collections. If you have any
comments on the burden estimates
listed below, or how the Commission
can improve the collections and reduce
any burdens caused thereby, please
write to Cathy Williams, Federal
Communications Commission, Room 1–
C823, 445 12th Street, SW., Washington,
DC 20554. Please include the OMB
Control Number 3060–0031 in your
correspondence. The Commission will
also accept your comments via the
Internet if you send them to
PRA@fcc.gov. To request materials in
accessible formats for people with
disabilities (Braille, large print,
electronic files, audio format), send an
e-mail to fcc504@fcc.gov or call the
Consumer & Governmental Affairs
Bureau at (202) 418–0530 (voice), (202)
418–0432 (TTY).
As required by the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507),
the FCC is notifying the public that it
received OMB approval on June 23,
2008, for the revised information
collection requirements resulting in
changes to FCC Forms 314 and 315. The
OMB Control Number assigned to the
information collections is 3060–0031.
For revisions to Forms 314 and 315 the
total annual reporting burden for
respondents for these collections of
information, including the time for
gathering and maintaining the collection
of information, is estimated to be: 4,510
respondents, total annual burden hours
of 18,790 hours, and $33,989,570 in
total annual costs.
Under 5 CFR 1320, an agency may not
conduct or sponsor a collection of
information unless it displays a current,
valid OMB Control Number.
No person shall be subject to any
penalty for failing to comply with a
collection of information subject to the
Paperwork Reduction Act that does not
display a valid OMB Control Number.
The foregoing notice is required by the
Paperwork Reduction Act of 1995,
Public Law 104–13, October 1, 1995, 44
U.S.C. 3507.
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Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8–15845 Filed 7–11–08; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 080306389–8810–02]
RIN 0648–AW53
Fisheries of the Northeastern United
States; Northeast Multispecies
Fishery; Allowance of New Gear
(Haddock Rope Trawl, Previously
Referred to as the Eliminator Trawl) in
Specific Special Management
Programs
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
SUMMARY: NMFS approves the use of an
additional type of trawl gear known as
the ‘‘haddock rope trawl’’ (formerly
called the ‘‘eliminator trawl’’) in the
Regular B Days-at-Sea (DAS) Program
and the Eastern U.S./Canada Haddock
Special Access Program (SAP). Vessels
fishing in the Regular B DAS Program or
the Eastern U.S./Canada Haddock SAP
must use approved trawl gear in order
to reduce the catch of Northeast (NE)
multispecies (groundfish) stocks of
concern. The NE Regional
Administrator, NMFS, may approve
additional gears for use in these
programs if research demonstrates that
the gear meets specific standards for the
reduction of catch of stocks of concern.
The intent of this action is to reduce
catch of stocks of concern in the NE
multispecies fishery and to provide for
the conservation and management of
stocks managed by the NE Multispecies
Fishery Management Plan (FMP).
DATES: This rule is effective August 13,
2008.
ADDRESSES: Copies of the Technical
Report ‘‘Bycatch Reduction in the
Directed Haddock Bottom Trawl
Fishery’’ and a diagram of the haddock
rope trawl may be obtained from NMFS
at the following address: National
Marine Fisheries Service, One
Blackburn Drive, Gloucester, MA 01930;
telephone (978) 281–9315. NMFS
prepared a Final Regulatory Flexiblity
Analysis (FRFA), which is contained in
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the Classification section of this final
rule.
FOR FURTHER INFORMATION CONTACT:
Thomas Warren, Fishery Policy Analyst,
(978) 281–9347, fax (978) 281–9135, email Thomas.Warren@NOAA.gov.
SUPPLEMENTARY INFORMATION: A
proposed rule for this action was
published on May 20, 2008 (73 FR
29098), with public comment accepted
though June 4, 2008. In that proposed
rule and other documents relied on for
this rule, the haddock rope trawl was
referred to as the ‘‘eliminator trawl.’’
Based on concerns about possible
infringement of a trademark for the term
‘‘eliminator trawl,’’ as more fully
explained in Comment 1 and the
response thereto, below, the newly
approved gear is call the haddock rope
trawl. A detailed description of the need
for, and use of, additional types of trawl
gear, and a description of the review
process used to evaluate the haddock
rope trawl performance, was contained
in the preamble of the proposed rule
and is not repeated here.
Specific gear standard requirements
that must be used to evaluate additional
gear proposed for use in the Regular B
DAS Program and the Eastern U.S./
Canada Haddock SAP were
implemented through proposed and
final rulemaking in 2007 (72 FR 72965).
The 2007 gear standards regulation
specified that, to be approved, new gear
must first be compared to an
appropriately selected control gear.
Based on this comparison, new gear can
be approved if it meets one of the
following two standards: (1) Use of the
gear must result in a statistically
significant reduction, compared to the
control gear, of at least 50 percent (by
weight, on a trip-by-trip basis) in catch
of each regulated NE multispecies stock
of concern, or other non-groundfish
stocks that are overfished or subject to
overfishing identified by the New
England Fishery Management Council
(Council); or (2) the use of the gear must
result in a catch of each regulated NE
multispecies stock of concern, or other
non-groundfish stocks that are
overfished or subject to overfishing
identified by the Council, that is less
than 5 percent of the total catch of
regulated groundfish (by weight, on a
trip-by-trip basis). Neither of these
requirements apply to regulated species
identified by the Council as not being
subject to gear performance standards.
Because many species in the fishery are
caught together, and the dynamic nature
of the status of stocks, the performance
standard must have a reasonable
amount of flexibility in order to be
practical. The Council identified that
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the gear performance standards do not
apply to haddock, pollock, and redfish.
Haddock, pollock, and redfish are target
stocks for which no reductions in
fishing mortality are required.
One of these standards must be met in
a completed experiment, where
comparisons of new gear are made to an
appropriately selected control gear that
has been reviewed according to the
standards established by the Council’s
research policy, before the gear can be
considered and approved by the
Regional Administrator. In addition, a
request for approval of the use of
additional gear in the Regular B DAS
Program and the Eastern U.S./Canada
Haddock SAP must be made by either
the Council or the Council’s Executive
Committee.
On February 19, 2008, the Council
sent the Regional Administrator a letter
requesting approval of this gear. Based
upon the final report, ‘‘Bycatch
Reduction in the Directed Haddock
Bottom Trawl Fishery,’’ and the
Council’s letter, NMFS is approving the
haddock rope trawl. The pertinent
information indicates that the catch of
each NE multispecies species stock of
concern, as well as other species,
declined by more than 50 percent with
use of the haddock rope trawl, which
complies with the first standard for
approval of additional gear. The
haddock rope trawl net specifications
were derived from input from the
individuals involved in the haddock
rope trawl research and NMFS gear
experts, as well as comments received
from individuals during the comment
period on the proposed rule. Approval
of the haddock rope trawl will allow
trawl vessels fishing in the Regular B
DAS Program and the Eastern U.S./
Canada Haddock SAP a choice of
whether to use the haddock separator
trawl or the haddock rope trawl. The
size of the haddock rope trawl specified
in this final rule is appropriate for
fishing vessels with engines of at least
600 horsepower. The results of the
experiment could not be used to
extrapolate to smaller scale haddock
rope trawl gear used by smaller
horsepower vessels.
Comments and Responses
Eight comments were received on the
proposed rule from the Council, an
anonymous citizen, members of a
research/educational institution, the
State of Maine Division of Marine
Resources, an environmental
organization, a fishing industry
association, and a fishing gear
manufacturer.
Comment 1: One commenter claimed
that the trawl manufacturer that made
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the prototype net used in the research,
Superior Trawl, has a trademark on the
name ‘‘eliminator trawl,’’ and was
concerned that referring to the net as the
eliminator trawl in this final rule would
preclude other net manufacturers from
making and/or selling the trawl and,
therefore, create a situation where only
one company could legally manufacture
or sell the specified net.
Response: NMFS acknowledges this
comment and replaces all references to
the ‘‘eliminator trawl’’ made in the
proposed rule with ‘‘haddock rope
trawl’’ in this final rule. The haddock
rope trawl prototype was built by
Superior Trawl of Rhode Island, based
on collaborative research. At the time
the proposed rule was published, NMFS
was unaware that Superior Trawl had
claimed a right to the name ‘‘eliminator
trawl.’’ A representative of Superior
Trawl indicated to NMFS that they
intend to file a trademark application
with the U.S. Patent and Trademark
Office and have begun using the letters
‘‘TM’’ in association with the eliminator
trawl on their website. To avoid any
possible violations of trademark laws
and any confusion in the fishing
industry by the use of the term
‘‘eliminator trawl,’’ NMFS renamed the
gear ‘‘haddock rope trawl.’’
Comment 2: Six comments strongly
supported approval of the haddock rope
trawl for various reasons, including the
potential of the gear to enhance
economic benefits by allowing access to
haddock, the reduction of cod bycatch,
and encouragement of the use of
innovative gear technology. One
commenter noted that this net was the
grand prize winner in the 2007
International Smart Gear Competition,
and has been successfully tested in the
United Kingdom.
Response: NMFS agrees that approval
of the haddock rope trawl will have
positive impacts on the fishery,
including access to haddock, resulting
in increased economic benefits,
additional flexibility for vessels
participating in the special management
programs, and further incentive to
develop and use new gear technology.
Comment 3: One commenter was
concerned that various required
elements of the haddock rope trawl
would preclude modification of the net
so that it could be used by small vessels.
Specifically, the commenter believed
that the key specification required for
proper functioning of the net is the
large-mesh (7.9–ft (240–cm)) elements of
the net, and that the fishing circle
requirement, kite panel requirement,
small mesh requirements, and
rockhopper specifications would not
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improve effectiveness, and were not
adaptable to smaller vessels.
Response: NMFS disagrees that the
haddock rope trawl should be specified
in a manner that removes important
elements of the trawl design in order to
be adaptable to smaller vessels. The
haddock rope trawl as specified in the
proposed rule is essentially a
description of the net used in the
research summarized in the paper
‘‘Bycatch Reduction in the Directed
Haddock Bottom Trawl Fishery.’’ The
research investigated the catch by a
specific size and configuration of trawl
gear, and the conclusions of that
research pertain only to trawl nets of
similar configuration. The modifications
suggested by the commenter would be
substantial, and the conclusions
regarding the effectiveness of the net
cannot be extrapolated to a trawl
configuration that is so different from
that documented by the researchers. The
research paper stated that the two
vessels involved in the research both
had engines of 675 HP, and indicated
that the results of the experiment cannot
be used to extrapolate to smaller scale
haddock rope trawl gear that could be
readily used by smaller horsepower
vessels. The proposed rule noted that
the size of the haddock rope trawl
specified would be appropriate for
fishing vessels with engines of at least
600 HP. Although NMFS supports the
objective of approving a net of similar
design as the haddock rope trawl for use
by smaller vessels, such a net is outside
the scope of this final rule. Research is
currently underway testing a smaller,
modified version of the haddock rope
trawl, and at-sea observations indicate
that this smaller net may also be
effective at reducing bycatch.
Comment 4: One commenter
requested clarification of whether the
rockhopper sizes specified in the
regulations were maximum or minimum
sizes, and what ‘‘graduated’’
rockhoppers meant.
Response: The 12- to 16–inch (30- to
40–cm) rockhopper size specifications
are minimums, and the small discs (3.5–
inch (8.8–cm)) are maximum size
specifications. The large spaces between
the rockhoppers and the small discs
located between the rockhoppers are
intended to allow flatfish and skates to
escape more easily. The different sized
rockhoppers must be arranged along the
sweep in size order (graduated), with
the largest rockhopper disc in the center
of the sweep and the smaller
rockhopper at the wing ends. This final
rule incorporates these clarifications to
the rockhopper specifications.
Comment 5: One commenter claimed
that some elements of the haddock rope
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trawl requirements are difficult or
impossible to enforce.
Response: NMFS agrees that it may be
difficult for law enforcement personnel
to verify that a particular trawl net is
consistent with the haddock rope trawl
specifications due to their complexity,
and the challenge of manipulating and
measuring large nets while at sea.
However, enforcement officers could
verify the specifications of a net on
shore, or under certain conditions at sea
and determine whether the net is in
compliance with the regulations.
Because the haddock rope trawl is
limited to two special management
programs, and because vessels must
declare into these programs via the
Vessel Monitoring System prior to
leaving the dock, enforcement personnel
will be able to determine which vessels
are subject to the haddock rope trawl
regulations.
Comment 6: One commenter
suggested that the minimum mesh size
requirements be expressed as averages
over multiple meshes, instead of being
specified on an individual mesh basis,
and suggested that the number of
meshes included in the requirement
should depend on the size of the mesh.
Further, the commenter suggested that
the mesh size requirements include a 5–
percent tolerance. The suggestions are
based on the concern that, with time
and usage, mesh may shrink, stretch, or
distort, increasing the likelihood that,
when measured, the size of an
individual mesh will be inconsistent
with the required mesh size and,
therefore, making compliance with the
mesh size regulations difficult for
fishermen.
Response: NMFS agrees that the
commenter has a valid concern, but
disagrees that a substantive change to
the regulations as proposed are
necessary. The specification of trawl
mesh sizes should not be confused with
the method of measuring and verifying
such specifications. These are two
different issues. The current regulations
under § 648.80(f)(2) specify methods to
measure mesh over multiple meshes,
which should address the commenter’s
concerns. These regulations state that
mesh sizes are the average of 20
consecutive meshes, measured along the
long axis of the net. In order to address
this issue, the regulations for the
haddock rope trawl specified in this
final rule will reference the regulations
that specify the methods to measure
mesh (§ 648.80(f)(2)), in order to make it
clear that, when possible, the mesh
should be measured over 20 meshes. A
single standard of 20 measures is more
simple than enumerating different
number of meshes to count depending
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upon mesh size. NMFS disagrees that
the regulation should specify a 5–
percent tolerance provision to address
the potential variability of mesh sizes
for the reason stated above. Procedures
utilized by NMFS and the U.S. Coast
Guard allow discretion to enforce
fishery regulations in a fair, reasonable,
and practical manner.
Comment 7: One commenter noted
that there is no justification for the size
specification of 1.0 square m for each of
the three kite panels included in the
haddock rope trawl specification,
because the size kite panel utilized in
the experiment was more precisely 0.9
square m. The commenter further
suggested alternative language to require
that the total kite panel surface area
must be 2.7 square m (i.e., remove the
requirement for three kite panels and
state a total surface area requirement
instead).
Response: Although the research that
tested the haddock rope trawl utilized
three kite panels, and noted a surface
area of 1 square m for each (and the
proposed rule reflected this
specification), because the commenter is
one of the principal investigators of the
research and the proposed modification
is relatively minor, NMFS agrees to the
commenter’s suggestion. Implementing
a 2.7 square m standard for total kite
panel surface area instead of requiring
three kite panels will allow additional
flexibility for vessel owners to utilize
one or multiple kite panels to maximize
headrope height, and will more
precisely reflect the kite panel surface
area of 2.7 square m utilized in the
research, without compromising the
benefits of the gear. Accordingly, this
change was made in this final rule.
Changes From the Proposed Rule
NMFS has made several changes to
the proposed rule, including changes as
a result of public comment. These
changes are listed below in the order
that they appear in the regulations.
In § 648.2, the definition of ‘‘stretched
mesh’’ has been revised to change the
name of the trawl from ‘‘eliminator
trawl’’ to ‘‘haddock rope trawl.’’
In § 648.14, paragraph (c)(89) has been
added to prohibit fishing with or
possession of a haddock rope trawl that
does not comply with the net
specifications (if electing to fish with a
haddock rope trawl).
In § 648.85, paragraph (b)(6)(iv)(J)(1)
has been revised to change the name of
the trawl from eliminator trawl to
haddock rope trawl.
In § 648.85, paragraph (b)(6)(iv)(J)(3),
the introductory text has been revised to
change the name of the trawl from
eliminator trawl to haddock rope trawl,
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and to cross reference the regulations
under § 648.80(f)(2) that specify how
trawl mesh is measured.
In § 648.85, paragraph
(b)(6)(iv)(J)(3)(ii) is revised to further
describe that large mesh is measured
knot to knot.
In § 648.85, paragraph
(b)(6)(iv)(J)(3)(v) is revised to state that
the total surface area of the kite panel(s)
must be 2.7 square m, rather than
requiring three 1.0 square m kites.
In § 648.85, paragraph
(b)(6)(iv)(J)(3)(vi) is revised to clarify the
meaning of ‘‘graduated’’ and state that
the large rockhopper sizes are minimum
specifications.
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.
This final rule is published pursuant
to 50 CFR part 648 and has been
determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared a FRFA, which
incorporates the IRFA and this final
rule, and describes the economic impact
that this action may have on small
entities. Four comments on the
economic impacts of the haddock rope
trawl approval were received.
Allowing the use of the haddock rope
trawl in the Regular B DAS Program and
the Eastern U.S./Canada Haddock SAP
would provide the fishing industry
more flexibility in the use of trawl gear
that minimizes catch of stocks of
concern by providing them with a
choice of whether to use the haddock
separator trawl or the haddock rope
trawl. Vessels fishing under a Regular B
DAS in these programs must comply
with restrictive landing limits of various
species. The choice of two nets would
enable a vessel owner to decide which
net is the most cost effective means of
targeting haddock and complying with
the landing restrictions. A description of
the objectives and legal basis for the
proposed haddock rope trawl is
contained in the SUMMARY of this final
rule.
Under the Small Business
Administration (SBA) size standards for
small fishing entities ($ 4.0 million in
annual gross sales), all permitted and
participating vessels in the groundfish
fishery are considered to be small
entities and, therefore, there are no
disproportionate impacts between large
and small entities. Gross sales by any
one entity (vessel) do not exceed this
threshold. The maximum number of
small entities that could be affected by
the approval of the haddock rope trawl
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are approximately 1,200 vessels; i.e.,
those issued limited access NE
multispecies DAS permits that have an
allocation of Category A or B DAS.
Realistically, however, the number of
vessels that choose to fish in either of
these programs, and that would be
subject to the associated restrictions,
including the use of either the haddock
separator trawl or the haddock rope
trawl, would be substantially smaller.
For example, in fishing year (FY) 2005,
132 vessels fished in either the Regular
B DAS Program or the Eastern U.S./
Canada Haddock SAP. In FY 2006, there
were only 45 vessels that fished in
either program. Although it is possible
that, under future circumstances, more
vessels may elect to participate in these
programs, a large increase in the
numbers of participants is unlikely.
Furthermore, some participants in the
Regular B DAS Program and in the SAP
may not have sufficient engine
horsepower to use the haddock rope
trawl, and, therefore, may not be able to
use the trawl.
Based on information from a
commercial net manufacturer, the cost
of purchasing a new haddock rope trawl
net is approximately $ 13,000. A squid
trawl net could be modified into a
haddock rope trawl for approximately $
1,000, by replacing the last belly portion
of the net and putting in a rockhopper
sweep. If 130 vessels fished in either of
the special management programs that
require the use of a specialized trawl,
and the vessel operators decided to
purchase the haddock rope trawl net,
the total cost to the industry would be
approximately $ 1,690,000. It is likely
that many vessels that have fished in
these programs in the past using a
separator trawl may choose not to
purchase a haddock rope trawl. Vessels
choosing to use the haddock rope trawl
would incur the purchase cost and other
adjustment costs. The decision to do so,
and to thereby fish in a special
management program offering
additional revenue opportunities is a
voluntary decision based on the
individual vessel’s assessment of
profitability. Individual businesses
(vessel owners) can make the decision
to incur the costs of using a haddock
rope trawl based upon the costs and
benefits to their business.
Because the haddock rope trawl is the
only gear that has been vetted through
the review process and recommended
by the Council, there were only two
alternatives under consideration, and
NMFS was left with only two options:
to approve the haddock rope trawl or
continue with the status quo (the no
action alternative). NMFS selected
approval of the haddock rope trawl
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because it determined that approval of
the haddock rope trawl provides more
flexibility to the fishing industry when
compared to the no action alternative,
and provides increased opportunity for
vessels to minimize catch of stocks of
concern while generating revenue from
special management programs.
Three commenters commented
specifically on the economic impacts of
approval of the haddock rope trawl. One
commenter commented not directly on
the economic impacts, but on the fact
that the haddock rope trawl, as
specified, would not be appropriate for
smaller vessels. One commenter
supported approval of the haddock rope
trawl gear due to its potential to
facilitate access to the haddock
resource, and estimated increased
revenues of $30 million. A second
commenter stated that approval of the
net would help with vessels’ economic
survival. A third commenter was
concerned about the economic impact
on trawl gear manufacturers because he
claimed that the name ‘‘eliminator
trawl’’ is a registered trademark of a
particular trawl manufacturer. The
commenter was worried that the name
eliminator trawl would be legally
reserved for the exclusive use of the one
manufacturer that had registered
eliminator trawl as its trademark, and
therefore other companies that did not
have a right to use the name eliminator
trawl may be precluded from marketing
and selling the net, or would have to
avoid the use of the name eliminator
trawl. Either of these situations could
negatively impact other sellers of the
eliminator trawl. Because of the
potential for confusion in the fishing
industry or infringement on the
trademark by sellers, NMFS renamed
the trawl specified in the regulations in
order to preclude potential impacts on
these businesses (which includes small
entities).
A fourth commenter noted that the
haddock rope trawl, as specified, would
not be appropriate for smaller vessels,
with the unstated implication that the
net approval would not provide any
benefits to small vessels. This rule does
not intentionally preclude the use of the
gear based on vessel size or horsepower,
but NMFS realizes that an unavoidable
consequence of this rule may be that
smaller vessels or vessels with less than
600 HP may not be able to use this gear.
However, given the nature of this rule,
there is no other alternative. The
process of conducting gear research and
reviewing such research is timeconsuming and costly, and the
standards for approval must be met. The
research paper that documented the
effectiveness of the haddock rope trawl
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indicated that the results of the
experiment could not be used to
extrapolate to smaller scale haddock
rope trawl gear that could be readily
used by smaller horsepower vessels.
The haddock rope trawl is the only gear
that has been vetted through the review
process and recommended by the
Council. Although NMFS supports the
objective of approving a net of similar
design as the haddock rope trawl for use
by smaller vessels, such a net is outside
the scope of this final rule. Additional
research is being proposed by two of the
co-authors of ‘‘Bycatch Reduction in the
Directed Haddock Bottom Trawl
Fishery’’ that will investigate the use of
a haddock rope trawl net designed for
smaller vessels with 250 to 550 HP
engines. Performance standards, rather
than design standards, are utilized for
the evaluation of new trawl gear, in
order to provide conservation engineers
flexibility in design and a meaningful
standard for the achievement of the goal
of bycatch reduction. The performance
standards under § 648.85(b)(6)(iv)(J)(2)
were developed for the specific purpose
of evaluating additional fishing gear for
these special management programs.
The net effect of this gear not being
available to smaller size or horsepower
vessels is the same as the status quo.
Any economic impact of this rule will
be based upon a vessel owner’s decision
to purchase and use the haddock rope
trawl, based upon their assessment of
profitability. This action does not
modify any collection of information,
reporting, or recordkeeping
requirements. The haddock rope trawl
net does not duplicate, overlap, or
conflict with any other Federal rules.
Section 212 of the Small Business
Regulatory Enforcement Fairness Act of
1996 states that, for each rule or group
of related rules for which an agency is
required to prepare a FRFA, the agency
shall publish one or more guides to
assist small entities in complying with
the rule, and shall designate such
publications as ‘‘small entity
compliance guides.’’ The agency shall
explain the actions a small entity is
required to take to comply with a rule
or group of rules. As part of this
rulemaking process, a letter to permit
holders that also serves as a small entity
compliance guide (the guide) was
prepared. Copies of this final rule are
available from the Northeast Regional
Office, and the guide, i.e., permit holder
letter, will be sent to all holders of
limited access DAS permits for the NE
multispecies fishery. The guide and this
final rule will be posted on the NMFS
NE Regional Office Web site at https://
www.nero.noaa.gov and will also be
available upon request.
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Dated: July 8, 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 amended as follows:
I
PART 648—FISHERIES OF THE
NORTHEASTERN UNITED STATES
1. The authority citation for part 648
continues to read as follows:
I
Authority: 16 U.S.C. 1801 et seq.
2. In § 648.2, new definitions for
‘‘fishing circle,’’ ‘‘stretched mesh,’’ and
‘‘sweep’’ are added in alphabetical
order, to read as follows:
I
§ 648.2
Definitions.
*
*
*
*
*
Fishing circle, with respect to the NE
multispecies limited access fishery,
means the calculated circumference of a
bottom trawl based on the number of
meshes and stretched mesh length at the
narrow, aft end of the square of the net.
*
*
*
*
*
Stretched mesh, with respect to the
NE multispecies haddock rope trawl,
means mesh that is pulled so that slack
in the mesh is eliminated and the mesh
opening is closed.
*
*
*
*
*
Sweep, with respect to the NE
multispecies limited access fishery,
means the part of a bottom trawl that,
during normal use, is in contact with
the sea floor along the outer edges of the
lower webbing of the net.
*
*
*
*
*
I 3. In § 648.14, paragraphs (a)(132) and
(c)(81) are revised and paragraph (c)(89)
is added to read as follows:
§ 648.14
Prohibitions.
(a) * * *
(132) If fishing with trawl gear under
a NE multispecies DAS in the Eastern
U.S./Canada Area defined in
§ 648.85(a)(1)(ii), fail to fish with a
haddock separator trawl or a flounder
trawl net, as specified in
§ 648.85(a)(3)(iii), unless otherwise
allowed under the Eastern U.S./Canada
Haddock SAP rules in
§ 648.85(b)(8)(v)(E).
*
*
*
*
*
(c) * * *
(81) If fishing in the Regular B DAS
Program specified in § 648.85(b)(6), fail
to use a haddock separator trawl as
described under § 648.85(a)(3)(iii)(A), or
other approved gear as described under
§ 648.85(b)(6)(iv)(J).
*
*
*
*
*
(89) If possessing a haddock rope
trawl, either at sea or elsewhere, as
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allowed under § 648.85(b)(6)(iv)(J)(1) or
(b)(8)(v)(E)(1), fail to comply with the
net specifications under
§ 648.85(b)(6)(iv)(J)(3).
*
*
*
*
*
I 4. In § 648.85, paragraphs
(b)(6)(iv)(J)(1) and (b)(8)(v)(E)
introductory heading and (b)(8)(v)(E)(1)
are revised, and paragraph (b)(6)(iv)(J)(3)
is added to read as follows:
§ 648.85
Special management programs.
*
*
*
*
*
(b) * * *
(6) * * *
(iv) * * *
(J) * * *
(1) Vessels fishing with trawl gear in
the Regular B DAS Program must use
the haddock separator trawl or haddock
rope trawl net, as described under
paragraphs (a)(3)(iii)(A) and
(b)(6)(iv)(J)(3) of this section,
respectively, or other type of gear if
approved as described under this
paragraph (b)(6)(iv)(J). Other gear may
be on board the vessel, provided it is
stowed when the vessel is fishing under
the Regular B DAS Program.
*
*
*
*
*
(3) Haddock Rope Trawl. The
haddock rope trawl is a four-seam
bottom groundfish trawl designed to
reduce the bycatch of cod while
retaining or increasing the catch of
haddock, when compared to traditional
groundfish trawls. A haddock rope trawl
must be constructed in accordance with
the standards described and referenced
in this paragraph § 648.85(b)(6)(iv)(J)(3).
The mesh size of a particular section of
the haddock rope trawl is measured in
accordance with § 648.80(f)(2), unless
insufficient numbers of mesh exist, in
which case the maximum total number
of meshes in the section will be
measured (between 2 and 20 meshes).
(i) The net must be constructed with
four seams (i.e., a net with a top and
bottom panel and two side panels), and
include at least the following net
sections as depicted in Figure 1 of this
part ANomenclature for 4–seam
haddock rope trawl@ (this figure is also
available from the Administrator,
Northeast Region): Top jib, bottom jib,
jib side panels (x 2), top wing, bottom
wing, wing side panels (x 2), square,
bunt, square side panels (x 2), first top
belly, first bottom belly, first belly side
panels (x 2), second top belly, second
bottom belly, second belly side panels
(x 2), and third bottom belly.
(ii) The first bottom belly, bunt, the
top and bottom wings, and the top and
bottom jibs, jib side panels, and wing
side panels (the first bottom belly and
all portions of the net in front of the first
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bottom belly, with the exception of the
square and the square side panels) must
be at least two meshes long in the fore
and aft direction. For these net sections,
the stretched length of any single mesh
must be at least 7.9 ft (240 cm),
measured in a straight line from knot to
knot.
(iii) Mesh size in all other sections
must be consistent with mesh size
requirements specified under § 648.80
and meet the following minimum
specifications: Each mesh in the square,
square side panels, and second bottom
belly must be 31.5 inches (80 cm); each
mesh in the first and second top belly,
the first belly side panels, and the third
bottom belly must be at least 7.9 inches
(20 cm); and 6 inches (15.24 cm) or
larger in sections following the second
top belly and third bottom belly
sections, all the way to the codend. The
mesh size requirements of the top
sections apply to the side panel
sections.
(iv) The trawl must have a fishing
circle of at least 398 ft (121.4 m). This
number is calculated by separately
counting the number of meshes for each
section of the net at the wide, fore end
of the first bottom belly, and then
calculating a stretched length as follows:
For each section of the net (first bottom
belly, two belly side panels and first top
belly) multiply the number of meshes
times the length of each stretched mesh
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to get the stretched mesh length for that
section, and then add the sections
together. For example, if the wide, fore
end of the bottom belly of the haddock
rope trawl is 22 meshes (and the mesh
is at least 7.9 ft (240 cm)), the stretched
mesh length for that section of the net
is derived by multiplying 22 times 7.9
ft (240 cm) and equals 173.2 ft (52.8 m).
The top and sides (x 2) of the net at this
point in the trawl are 343 meshes (221
+ 61 + 61, respectively) (each 7.9 inches
(20 cm)), which equals 225.1 ft (68.6 m)
stretched length. The stretched lengths
for the different sections of mesh are
added together (173.2 ft + 225.1 ft (52.8
+ 68.6 m)) and result in the length of the
fishing circle, in this case 398.3 ft (121.4
m).
(v) The trawl must have a single or
multiple kite panels with a total surface
area of at least 29.1 sq. ft. (2.7 sq. m) on
the forward end of the square to help
maximize headrope height, for the
purpose of capturing rising fish. A kite
panel is a flat structure, usually semiflexible used to modify the shape of
trawl and mesh openings by providing
lift when a trawl is moving through the
water.
(vi) The sweep must include
rockhoppers of various sizes, which are
arranged along the sweep in size order,
graduated from 16–inch (40–cm)
diameter in the sweep center down to
12–inch (30–cm) diameter at the wing
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ends. There must be six or fewer 12to16–inch (30- to 40–cm) rockhopper
discs over any 10–ft (3.0–m) length of
the sweep. The 12- to16- inch (30- to
40–cm) discs (minimum size) must be
spaced evenly, with one disc placed
approximately every 2 ft (60 cm) along
the sweep. The 12- to 16–inch (30- to
40–cm) discs must be separated by
smaller discs, no larger than 3.5 inches
(8.8 cm) in diameter.
*
*
*
*
*
(8) * * *
(v) * * *
(E) Gear requirement—(1) A NE
multispecies vessel fishing in the
Eastern U.S./Canada Haddock SAP must
use the haddock separator trawl or
haddock rope trawl net, as described
under paragraphs (a)(3)(iii)(A) and
(b)(6)(iv)(J)(3) of this section,
respectively, or other type of gear, if
approved as described under this
paragraph (b)(8)(v)(E). No other type of
fishing gear may be on the vessel when
on a trip in the Eastern U.S./Canada
Haddock SAP, with the exception of a
flounder net, as described in paragraph
(a)(3)(iii) of this section, provided that
the flounder net is stowed in accordance
with § 648.23(b).
*
*
*
*
*
I 5. In part 648, add Figure 1 to read as
follows:
BILLING CODE 3510–22–S
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BILLING CODE 3510–22–C
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Agencies
[Federal Register Volume 73, Number 135 (Monday, July 14, 2008)]
[Rules and Regulations]
[Pages 40186-40192]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-15950]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 080306389-8810-02]
RIN 0648-AW53
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Allowance of New Gear (Haddock Rope Trawl,
Previously Referred to as the Eliminator Trawl) in Specific Special
Management Programs
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS approves the use of an additional type of trawl gear
known as the ``haddock rope trawl'' (formerly called the ``eliminator
trawl'') in the Regular B Days-at-Sea (DAS) Program and the Eastern
U.S./Canada Haddock Special Access Program (SAP). Vessels fishing in
the Regular B DAS Program or the Eastern U.S./Canada Haddock SAP must
use approved trawl gear in order to reduce the catch of Northeast (NE)
multispecies (groundfish) stocks of concern. The NE Regional
Administrator, NMFS, may approve additional gears for use in these
programs if research demonstrates that the gear meets specific
standards for the reduction of catch of stocks of concern. The intent
of this action is to reduce catch of stocks of concern in the NE
multispecies fishery and to provide for the conservation and management
of stocks managed by the NE Multispecies Fishery Management Plan (FMP).
DATES: This rule is effective August 13, 2008.
ADDRESSES: Copies of the Technical Report ``Bycatch Reduction in the
Directed Haddock Bottom Trawl Fishery'' and a diagram of the haddock
rope trawl may be obtained from NMFS at the following address: National
Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930;
telephone (978) 281-9315. NMFS prepared a Final Regulatory Flexiblity
Analysis (FRFA), which is contained in
[[Page 40187]]
the Classification section of this final rule.
FOR FURTHER INFORMATION CONTACT: Thomas Warren, Fishery Policy Analyst,
(978) 281-9347, fax (978) 281-9135, e-mail Thomas.Warren@NOAA.gov.
SUPPLEMENTARY INFORMATION: A proposed rule for this action was
published on May 20, 2008 (73 FR 29098), with public comment accepted
though June 4, 2008. In that proposed rule and other documents relied
on for this rule, the haddock rope trawl was referred to as the
``eliminator trawl.'' Based on concerns about possible infringement of
a trademark for the term ``eliminator trawl,'' as more fully explained
in Comment 1 and the response thereto, below, the newly approved gear
is call the haddock rope trawl. A detailed description of the need for,
and use of, additional types of trawl gear, and a description of the
review process used to evaluate the haddock rope trawl performance, was
contained in the preamble of the proposed rule and is not repeated
here.
Specific gear standard requirements that must be used to evaluate
additional gear proposed for use in the Regular B DAS Program and the
Eastern U.S./Canada Haddock SAP were implemented through proposed and
final rulemaking in 2007 (72 FR 72965). The 2007 gear standards
regulation specified that, to be approved, new gear must first be
compared to an appropriately selected control gear. Based on this
comparison, new gear can be approved if it meets one of the following
two standards: (1) Use of the gear must result in a statistically
significant reduction, compared to the control gear, of at least 50
percent (by weight, on a trip-by-trip basis) in catch of each regulated
NE multispecies stock of concern, or other non-groundfish stocks that
are overfished or subject to overfishing identified by the New England
Fishery Management Council (Council); or (2) the use of the gear must
result in a catch of each regulated NE multispecies stock of concern,
or other non-groundfish stocks that are overfished or subject to
overfishing identified by the Council, that is less than 5 percent of
the total catch of regulated groundfish (by weight, on a trip-by-trip
basis). Neither of these requirements apply to regulated species
identified by the Council as not being subject to gear performance
standards. Because many species in the fishery are caught together, and
the dynamic nature of the status of stocks, the performance standard
must have a reasonable amount of flexibility in order to be practical.
The Council identified that the gear performance standards do not apply
to haddock, pollock, and redfish. Haddock, pollock, and redfish are
target stocks for which no reductions in fishing mortality are
required.
One of these standards must be met in a completed experiment, where
comparisons of new gear are made to an appropriately selected control
gear that has been reviewed according to the standards established by
the Council's research policy, before the gear can be considered and
approved by the Regional Administrator. In addition, a request for
approval of the use of additional gear in the Regular B DAS Program and
the Eastern U.S./Canada Haddock SAP must be made by either the Council
or the Council's Executive Committee.
On February 19, 2008, the Council sent the Regional Administrator a
letter requesting approval of this gear. Based upon the final report,
``Bycatch Reduction in the Directed Haddock Bottom Trawl Fishery,'' and
the Council's letter, NMFS is approving the haddock rope trawl. The
pertinent information indicates that the catch of each NE multispecies
species stock of concern, as well as other species, declined by more
than 50 percent with use of the haddock rope trawl, which complies with
the first standard for approval of additional gear. The haddock rope
trawl net specifications were derived from input from the individuals
involved in the haddock rope trawl research and NMFS gear experts, as
well as comments received from individuals during the comment period on
the proposed rule. Approval of the haddock rope trawl will allow trawl
vessels fishing in the Regular B DAS Program and the Eastern U.S./
Canada Haddock SAP a choice of whether to use the haddock separator
trawl or the haddock rope trawl. The size of the haddock rope trawl
specified in this final rule is appropriate for fishing vessels with
engines of at least 600 horsepower. The results of the experiment could
not be used to extrapolate to smaller scale haddock rope trawl gear
used by smaller horsepower vessels.
Comments and Responses
Eight comments were received on the proposed rule from the Council,
an anonymous citizen, members of a research/educational institution,
the State of Maine Division of Marine Resources, an environmental
organization, a fishing industry association, and a fishing gear
manufacturer.
Comment 1: One commenter claimed that the trawl manufacturer that
made the prototype net used in the research, Superior Trawl, has a
trademark on the name ``eliminator trawl,'' and was concerned that
referring to the net as the eliminator trawl in this final rule would
preclude other net manufacturers from making and/or selling the trawl
and, therefore, create a situation where only one company could legally
manufacture or sell the specified net.
Response: NMFS acknowledges this comment and replaces all
references to the ``eliminator trawl'' made in the proposed rule with
``haddock rope trawl'' in this final rule. The haddock rope trawl
prototype was built by Superior Trawl of Rhode Island, based on
collaborative research. At the time the proposed rule was published,
NMFS was unaware that Superior Trawl had claimed a right to the name
``eliminator trawl.'' A representative of Superior Trawl indicated to
NMFS that they intend to file a trademark application with the U.S.
Patent and Trademark Office and have begun using the letters ``TM'' in
association with the eliminator trawl on their website. To avoid any
possible violations of trademark laws and any confusion in the fishing
industry by the use of the term ``eliminator trawl,'' NMFS renamed the
gear ``haddock rope trawl.''
Comment 2: Six comments strongly supported approval of the haddock
rope trawl for various reasons, including the potential of the gear to
enhance economic benefits by allowing access to haddock, the reduction
of cod bycatch, and encouragement of the use of innovative gear
technology. One commenter noted that this net was the grand prize
winner in the 2007 International Smart Gear Competition, and has been
successfully tested in the United Kingdom.
Response: NMFS agrees that approval of the haddock rope trawl will
have positive impacts on the fishery, including access to haddock,
resulting in increased economic benefits, additional flexibility for
vessels participating in the special management programs, and further
incentive to develop and use new gear technology.
Comment 3: One commenter was concerned that various required
elements of the haddock rope trawl would preclude modification of the
net so that it could be used by small vessels. Specifically, the
commenter believed that the key specification required for proper
functioning of the net is the large-mesh (7.9-ft (240-cm)) elements of
the net, and that the fishing circle requirement, kite panel
requirement, small mesh requirements, and rockhopper specifications
would not
[[Page 40188]]
improve effectiveness, and were not adaptable to smaller vessels.
Response: NMFS disagrees that the haddock rope trawl should be
specified in a manner that removes important elements of the trawl
design in order to be adaptable to smaller vessels. The haddock rope
trawl as specified in the proposed rule is essentially a description of
the net used in the research summarized in the paper ``Bycatch
Reduction in the Directed Haddock Bottom Trawl Fishery.'' The research
investigated the catch by a specific size and configuration of trawl
gear, and the conclusions of that research pertain only to trawl nets
of similar configuration. The modifications suggested by the commenter
would be substantial, and the conclusions regarding the effectiveness
of the net cannot be extrapolated to a trawl configuration that is so
different from that documented by the researchers. The research paper
stated that the two vessels involved in the research both had engines
of 675 HP, and indicated that the results of the experiment cannot be
used to extrapolate to smaller scale haddock rope trawl gear that could
be readily used by smaller horsepower vessels. The proposed rule noted
that the size of the haddock rope trawl specified would be appropriate
for fishing vessels with engines of at least 600 HP. Although NMFS
supports the objective of approving a net of similar design as the
haddock rope trawl for use by smaller vessels, such a net is outside
the scope of this final rule. Research is currently underway testing a
smaller, modified version of the haddock rope trawl, and at-sea
observations indicate that this smaller net may also be effective at
reducing bycatch.
Comment 4: One commenter requested clarification of whether the
rockhopper sizes specified in the regulations were maximum or minimum
sizes, and what ``graduated'' rockhoppers meant.
Response: The 12- to 16-inch (30- to 40-cm) rockhopper size
specifications are minimums, and the small discs (3.5-inch (8.8-cm))
are maximum size specifications. The large spaces between the
rockhoppers and the small discs located between the rockhoppers are
intended to allow flatfish and skates to escape more easily. The
different sized rockhoppers must be arranged along the sweep in size
order (graduated), with the largest rockhopper disc in the center of
the sweep and the smaller rockhopper at the wing ends. This final rule
incorporates these clarifications to the rockhopper specifications.
Comment 5: One commenter claimed that some elements of the haddock
rope trawl requirements are difficult or impossible to enforce.
Response: NMFS agrees that it may be difficult for law enforcement
personnel to verify that a particular trawl net is consistent with the
haddock rope trawl specifications due to their complexity, and the
challenge of manipulating and measuring large nets while at sea.
However, enforcement officers could verify the specifications of a net
on shore, or under certain conditions at sea and determine whether the
net is in compliance with the regulations. Because the haddock rope
trawl is limited to two special management programs, and because
vessels must declare into these programs via the Vessel Monitoring
System prior to leaving the dock, enforcement personnel will be able to
determine which vessels are subject to the haddock rope trawl
regulations.
Comment 6: One commenter suggested that the minimum mesh size
requirements be expressed as averages over multiple meshes, instead of
being specified on an individual mesh basis, and suggested that the
number of meshes included in the requirement should depend on the size
of the mesh. Further, the commenter suggested that the mesh size
requirements include a 5-percent tolerance. The suggestions are based
on the concern that, with time and usage, mesh may shrink, stretch, or
distort, increasing the likelihood that, when measured, the size of an
individual mesh will be inconsistent with the required mesh size and,
therefore, making compliance with the mesh size regulations difficult
for fishermen.
Response: NMFS agrees that the commenter has a valid concern, but
disagrees that a substantive change to the regulations as proposed are
necessary. The specification of trawl mesh sizes should not be confused
with the method of measuring and verifying such specifications. These
are two different issues. The current regulations under Sec.
648.80(f)(2) specify methods to measure mesh over multiple meshes,
which should address the commenter's concerns. These regulations state
that mesh sizes are the average of 20 consecutive meshes, measured
along the long axis of the net. In order to address this issue, the
regulations for the haddock rope trawl specified in this final rule
will reference the regulations that specify the methods to measure mesh
(Sec. 648.80(f)(2)), in order to make it clear that, when possible,
the mesh should be measured over 20 meshes. A single standard of 20
measures is more simple than enumerating different number of meshes to
count depending upon mesh size. NMFS disagrees that the regulation
should specify a 5-percent tolerance provision to address the potential
variability of mesh sizes for the reason stated above. Procedures
utilized by NMFS and the U.S. Coast Guard allow discretion to enforce
fishery regulations in a fair, reasonable, and practical manner.
Comment 7: One commenter noted that there is no justification for
the size specification of 1.0 square m for each of the three kite
panels included in the haddock rope trawl specification, because the
size kite panel utilized in the experiment was more precisely 0.9
square m. The commenter further suggested alternative language to
require that the total kite panel surface area must be 2.7 square m
(i.e., remove the requirement for three kite panels and state a total
surface area requirement instead).
Response: Although the research that tested the haddock rope trawl
utilized three kite panels, and noted a surface area of 1 square m for
each (and the proposed rule reflected this specification), because the
commenter is one of the principal investigators of the research and the
proposed modification is relatively minor, NMFS agrees to the
commenter's suggestion. Implementing a 2.7 square m standard for total
kite panel surface area instead of requiring three kite panels will
allow additional flexibility for vessel owners to utilize one or
multiple kite panels to maximize headrope height, and will more
precisely reflect the kite panel surface area of 2.7 square m utilized
in the research, without compromising the benefits of the gear.
Accordingly, this change was made in this final rule.
Changes From the Proposed Rule
NMFS has made several changes to the proposed rule, including
changes as a result of public comment. These changes are listed below
in the order that they appear in the regulations.
In Sec. 648.2, the definition of ``stretched mesh'' has been
revised to change the name of the trawl from ``eliminator trawl'' to
``haddock rope trawl.''
In Sec. 648.14, paragraph (c)(89) has been added to prohibit
fishing with or possession of a haddock rope trawl that does not comply
with the net specifications (if electing to fish with a haddock rope
trawl).
In Sec. 648.85, paragraph (b)(6)(iv)(J)(1) has been revised to
change the name of the trawl from eliminator trawl to haddock rope
trawl.
In Sec. 648.85, paragraph (b)(6)(iv)(J)(3), the introductory text
has been revised to change the name of the trawl from eliminator trawl
to haddock rope trawl,
[[Page 40189]]
and to cross reference the regulations under Sec. 648.80(f)(2) that
specify how trawl mesh is measured.
In Sec. 648.85, paragraph (b)(6)(iv)(J)(3)(ii) is revised to
further describe that large mesh is measured knot to knot.
In Sec. 648.85, paragraph (b)(6)(iv)(J)(3)(v) is revised to state
that the total surface area of the kite panel(s) must be 2.7 square m,
rather than requiring three 1.0 square m kites.
In Sec. 648.85, paragraph (b)(6)(iv)(J)(3)(vi) is revised to
clarify the meaning of ``graduated'' and state that the large
rockhopper sizes are minimum specifications.
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.
This final rule is published pursuant to 50 CFR part 648 and has
been determined to be not significant for purposes of Executive Order
12866.
NMFS prepared a FRFA, which incorporates the IRFA and this final
rule, and describes the economic impact that this action may have on
small entities. Four comments on the economic impacts of the haddock
rope trawl approval were received.
Allowing the use of the haddock rope trawl in the Regular B DAS
Program and the Eastern U.S./Canada Haddock SAP would provide the
fishing industry more flexibility in the use of trawl gear that
minimizes catch of stocks of concern by providing them with a choice of
whether to use the haddock separator trawl or the haddock rope trawl.
Vessels fishing under a Regular B DAS in these programs must comply
with restrictive landing limits of various species. The choice of two
nets would enable a vessel owner to decide which net is the most cost
effective means of targeting haddock and complying with the landing
restrictions. A description of the objectives and legal basis for the
proposed haddock rope trawl is contained in the SUMMARY of this final
rule.
Under the Small Business Administration (SBA) size standards for
small fishing entities ($ 4.0 million in annual gross sales), all
permitted and participating vessels in the groundfish fishery are
considered to be small entities and, therefore, there are no
disproportionate impacts between large and small entities. Gross sales
by any one entity (vessel) do not exceed this threshold. The maximum
number of small entities that could be affected by the approval of the
haddock rope trawl are approximately 1,200 vessels; i.e., those issued
limited access NE multispecies DAS permits that have an allocation of
Category A or B DAS. Realistically, however, the number of vessels that
choose to fish in either of these programs, and that would be subject
to the associated restrictions, including the use of either the haddock
separator trawl or the haddock rope trawl, would be substantially
smaller. For example, in fishing year (FY) 2005, 132 vessels fished in
either the Regular B DAS Program or the Eastern U.S./Canada Haddock
SAP. In FY 2006, there were only 45 vessels that fished in either
program. Although it is possible that, under future circumstances, more
vessels may elect to participate in these programs, a large increase in
the numbers of participants is unlikely. Furthermore, some participants
in the Regular B DAS Program and in the SAP may not have sufficient
engine horsepower to use the haddock rope trawl, and, therefore, may
not be able to use the trawl.
Based on information from a commercial net manufacturer, the cost
of purchasing a new haddock rope trawl net is approximately $ 13,000. A
squid trawl net could be modified into a haddock rope trawl for
approximately $ 1,000, by replacing the last belly portion of the net
and putting in a rockhopper sweep. If 130 vessels fished in either of
the special management programs that require the use of a specialized
trawl, and the vessel operators decided to purchase the haddock rope
trawl net, the total cost to the industry would be approximately $
1,690,000. It is likely that many vessels that have fished in these
programs in the past using a separator trawl may choose not to purchase
a haddock rope trawl. Vessels choosing to use the haddock rope trawl
would incur the purchase cost and other adjustment costs. The decision
to do so, and to thereby fish in a special management program offering
additional revenue opportunities is a voluntary decision based on the
individual vessel's assessment of profitability. Individual businesses
(vessel owners) can make the decision to incur the costs of using a
haddock rope trawl based upon the costs and benefits to their business.
Because the haddock rope trawl is the only gear that has been
vetted through the review process and recommended by the Council, there
were only two alternatives under consideration, and NMFS was left with
only two options: to approve the haddock rope trawl or continue with
the status quo (the no action alternative). NMFS selected approval of
the haddock rope trawl because it determined that approval of the
haddock rope trawl provides more flexibility to the fishing industry
when compared to the no action alternative, and provides increased
opportunity for vessels to minimize catch of stocks of concern while
generating revenue from special management programs.
Three commenters commented specifically on the economic impacts of
approval of the haddock rope trawl. One commenter commented not
directly on the economic impacts, but on the fact that the haddock rope
trawl, as specified, would not be appropriate for smaller vessels. One
commenter supported approval of the haddock rope trawl gear due to its
potential to facilitate access to the haddock resource, and estimated
increased revenues of $30 million. A second commenter stated that
approval of the net would help with vessels' economic survival. A third
commenter was concerned about the economic impact on trawl gear
manufacturers because he claimed that the name ``eliminator trawl'' is
a registered trademark of a particular trawl manufacturer. The
commenter was worried that the name eliminator trawl would be legally
reserved for the exclusive use of the one manufacturer that had
registered eliminator trawl as its trademark, and therefore other
companies that did not have a right to use the name eliminator trawl
may be precluded from marketing and selling the net, or would have to
avoid the use of the name eliminator trawl. Either of these situations
could negatively impact other sellers of the eliminator trawl. Because
of the potential for confusion in the fishing industry or infringement
on the trademark by sellers, NMFS renamed the trawl specified in the
regulations in order to preclude potential impacts on these businesses
(which includes small entities).
A fourth commenter noted that the haddock rope trawl, as specified,
would not be appropriate for smaller vessels, with the unstated
implication that the net approval would not provide any benefits to
small vessels. This rule does not intentionally preclude the use of the
gear based on vessel size or horsepower, but NMFS realizes that an
unavoidable consequence of this rule may be that smaller vessels or
vessels with less than 600 HP may not be able to use this gear.
However, given the nature of this rule, there is no other alternative.
The process of conducting gear research and reviewing such research is
time-consuming and costly, and the standards for approval must be met.
The research paper that documented the effectiveness of the haddock
rope trawl
[[Page 40190]]
indicated that the results of the experiment could not be used to
extrapolate to smaller scale haddock rope trawl gear that could be
readily used by smaller horsepower vessels. The haddock rope trawl is
the only gear that has been vetted through the review process and
recommended by the Council. Although NMFS supports the objective of
approving a net of similar design as the haddock rope trawl for use by
smaller vessels, such a net is outside the scope of this final rule.
Additional research is being proposed by two of the co-authors of
``Bycatch Reduction in the Directed Haddock Bottom Trawl Fishery'' that
will investigate the use of a haddock rope trawl net designed for
smaller vessels with 250 to 550 HP engines. Performance standards,
rather than design standards, are utilized for the evaluation of new
trawl gear, in order to provide conservation engineers flexibility in
design and a meaningful standard for the achievement of the goal of
bycatch reduction. The performance standards under Sec.
648.85(b)(6)(iv)(J)(2) were developed for the specific purpose of
evaluating additional fishing gear for these special management
programs. The net effect of this gear not being available to smaller
size or horsepower vessels is the same as the status quo.
Any economic impact of this rule will be based upon a vessel
owner's decision to purchase and use the haddock rope trawl, based upon
their assessment of profitability. This action does not modify any
collection of information, reporting, or recordkeeping requirements.
The haddock rope trawl net does not duplicate, overlap, or conflict
with any other Federal rules.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a letter to permit holders that also serves as
a small entity compliance guide (the guide) was prepared. Copies of
this final rule are available from the Northeast Regional Office, and
the guide, i.e., permit holder letter, will be sent to all holders of
limited access DAS permits for the NE multispecies fishery. The guide
and this final rule will be posted on the NMFS NE Regional Office Web
site at https://www.nero.noaa.gov and will also be available upon
request.
Dated: July 8, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons stated in the preamble, 50 CFR part 648 is amended as
follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.2, new definitions for ``fishing circle,'' ``stretched
mesh,'' and ``sweep'' are added in alphabetical order, to read as
follows:
Sec. 648.2 Definitions.
* * * * *
Fishing circle, with respect to the NE multispecies limited access
fishery, means the calculated circumference of a bottom trawl based on
the number of meshes and stretched mesh length at the narrow, aft end
of the square of the net.
* * * * *
Stretched mesh, with respect to the NE multispecies haddock rope
trawl, means mesh that is pulled so that slack in the mesh is
eliminated and the mesh opening is closed.
* * * * *
Sweep, with respect to the NE multispecies limited access fishery,
means the part of a bottom trawl that, during normal use, is in contact
with the sea floor along the outer edges of the lower webbing of the
net.
* * * * *
0
3. In Sec. 648.14, paragraphs (a)(132) and (c)(81) are revised and
paragraph (c)(89) is added to read as follows:
Sec. 648.14 Prohibitions.
(a) * * *
(132) If fishing with trawl gear under a NE multispecies DAS in the
Eastern U.S./Canada Area defined in Sec. 648.85(a)(1)(ii), fail to
fish with a haddock separator trawl or a flounder trawl net, as
specified in Sec. 648.85(a)(3)(iii), unless otherwise allowed under
the Eastern U.S./Canada Haddock SAP rules in Sec. 648.85(b)(8)(v)(E).
* * * * *
(c) * * *
(81) If fishing in the Regular B DAS Program specified in Sec.
648.85(b)(6), fail to use a haddock separator trawl as described under
Sec. 648.85(a)(3)(iii)(A), or other approved gear as described under
Sec. 648.85(b)(6)(iv)(J).
* * * * *
(89) If possessing a haddock rope trawl, either at sea or
elsewhere, as allowed under Sec. 648.85(b)(6)(iv)(J)(1) or
(b)(8)(v)(E)(1), fail to comply with the net specifications under Sec.
648.85(b)(6)(iv)(J)(3).
* * * * *
0
4. In Sec. 648.85, paragraphs (b)(6)(iv)(J)(1) and (b)(8)(v)(E)
introductory heading and (b)(8)(v)(E)(1) are revised, and paragraph
(b)(6)(iv)(J)(3) is added to read as follows:
Sec. 648.85 Special management programs.
* * * * *
(b) * * *
(6) * * *
(iv) * * *
(J) * * *
(1) Vessels fishing with trawl gear in the Regular B DAS Program
must use the haddock separator trawl or haddock rope trawl net, as
described under paragraphs (a)(3)(iii)(A) and (b)(6)(iv)(J)(3) of this
section, respectively, or other type of gear if approved as described
under this paragraph (b)(6)(iv)(J). Other gear may be on board the
vessel, provided it is stowed when the vessel is fishing under the
Regular B DAS Program.
* * * * *
(3) Haddock Rope Trawl. The haddock rope trawl is a four-seam
bottom groundfish trawl designed to reduce the bycatch of cod while
retaining or increasing the catch of haddock, when compared to
traditional groundfish trawls. A haddock rope trawl must be constructed
in accordance with the standards described and referenced in this
paragraph Sec. 648.85(b)(6)(iv)(J)(3). The mesh size of a particular
section of the haddock rope trawl is measured in accordance with Sec.
648.80(f)(2), unless insufficient numbers of mesh exist, in which case
the maximum total number of meshes in the section will be measured
(between 2 and 20 meshes).
(i) The net must be constructed with four seams (i.e., a net with a
top and bottom panel and two side panels), and include at least the
following net sections as depicted in Figure 1 of this part
ANomenclature for 4-seam haddock rope trawl@ (this figure is also
available from the Administrator, Northeast Region): Top jib, bottom
jib, jib side panels (x 2), top wing, bottom wing, wing side panels (x
2), square, bunt, square side panels (x 2), first top belly, first
bottom belly, first belly side panels (x 2), second top belly, second
bottom belly, second belly side panels (x 2), and third bottom belly.
(ii) The first bottom belly, bunt, the top and bottom wings, and
the top and bottom jibs, jib side panels, and wing side panels (the
first bottom belly and all portions of the net in front of the first
[[Page 40191]]
bottom belly, with the exception of the square and the square side
panels) must be at least two meshes long in the fore and aft direction.
For these net sections, the stretched length of any single mesh must be
at least 7.9 ft (240 cm), measured in a straight line from knot to
knot.
(iii) Mesh size in all other sections must be consistent with mesh
size requirements specified under Sec. 648.80 and meet the following
minimum specifications: Each mesh in the square, square side panels,
and second bottom belly must be 31.5 inches (80 cm); each mesh in the
first and second top belly, the first belly side panels, and the third
bottom belly must be at least 7.9 inches (20 cm); and 6 inches (15.24
cm) or larger in sections following the second top belly and third
bottom belly sections, all the way to the codend. The mesh size
requirements of the top sections apply to the side panel sections.
(iv) The trawl must have a fishing circle of at least 398 ft (121.4
m). This number is calculated by separately counting the number of
meshes for each section of the net at the wide, fore end of the first
bottom belly, and then calculating a stretched length as follows: For
each section of the net (first bottom belly, two belly side panels and
first top belly) multiply the number of meshes times the length of each
stretched mesh to get the stretched mesh length for that section, and
then add the sections together. For example, if the wide, fore end of
the bottom belly of the haddock rope trawl is 22 meshes (and the mesh
is at least 7.9 ft (240 cm)), the stretched mesh length for that
section of the net is derived by multiplying 22 times 7.9 ft (240 cm)
and equals 173.2 ft (52.8 m). The top and sides (x 2) of the net at
this point in the trawl are 343 meshes (221 + 61 + 61, respectively)
(each 7.9 inches (20 cm)), which equals 225.1 ft (68.6 m) stretched
length. The stretched lengths for the different sections of mesh are
added together (173.2 ft + 225.1 ft (52.8 + 68.6 m)) and result in the
length of the fishing circle, in this case 398.3 ft (121.4 m).
(v) The trawl must have a single or multiple kite panels with a
total surface area of at least 29.1 sq. ft. (2.7 sq. m) on the forward
end of the square to help maximize headrope height, for the purpose of
capturing rising fish. A kite panel is a flat structure, usually semi-
flexible used to modify the shape of trawl and mesh openings by
providing lift when a trawl is moving through the water.
(vi) The sweep must include rockhoppers of various sizes, which are
arranged along the sweep in size order, graduated from 16-inch (40-cm)
diameter in the sweep center down to 12-inch (30-cm) diameter at the
wing ends. There must be six or fewer 12- to16-inch (30- to 40-cm)
rockhopper discs over any 10-ft (3.0-m) length of the sweep. The 12-
to16- inch (30- to 40-cm) discs (minimum size) must be spaced evenly,
with one disc placed approximately every 2 ft (60 cm) along the sweep.
The 12- to 16-inch (30- to 40-cm) discs must be separated by smaller
discs, no larger than 3.5 inches (8.8 cm) in diameter.
* * * * *
(8) * * *
(v) * * *
(E) Gear requirement--(1) A NE multispecies vessel fishing in the
Eastern U.S./Canada Haddock SAP must use the haddock separator trawl or
haddock rope trawl net, as described under paragraphs (a)(3)(iii)(A)
and (b)(6)(iv)(J)(3) of this section, respectively, or other type of
gear, if approved as described under this paragraph (b)(8)(v)(E). No
other type of fishing gear may be on the vessel when on a trip in the
Eastern U.S./Canada Haddock SAP, with the exception of a flounder net,
as described in paragraph (a)(3)(iii) of this section, provided that
the flounder net is stowed in accordance with Sec. 648.23(b).
* * * * *
0
5. In part 648, add Figure 1 to read as follows:
BILLING CODE 3510-22-S
[[Page 40192]]
[GRAPHIC] [TIFF OMITTED] TR14JY08.022
[FR Doc. E8-15950 Filed 7-11-08; 8:45 am]
BILLING CODE 3510-22-C