Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; 2009 Georges Bank Cod Fixed Gear Sector Operations Plan and Agreement, and Allocation of Georges Bank Cod Total Allowable Catch, 7029-7032 [E9-3060]
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Federal Register / Vol. 74, No. 28 / Thursday, February 12, 2009 / Proposed Rules
for implementing the 1997 8-hour ozone
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DEPARTMENT OF COMMERCE
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The EPA has established a docket for
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Implement the 1997 8-Hour Ozone
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Reclassification and Anti-Backsliding
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Dated: February 5, 2009.
Mary E. Henigin,
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[FR Doc. E9–3051 Filed 2–11–09; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
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42 CFR Part 414
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RIN 0938–AP59
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Correction
In proposed rule document E9–2839
beginning on page 6557 in the issue of
Tuesday, February 10, 2009, make the
following correction:
On page 6557, in the third column, in
the DATES heading, ‘‘February 13, 2009’’
should read ‘‘February 12, 2009’’.
[FR Doc. Z9–2839 Filed 2–10–09; 4:15 pm]
BILLING CODE 1505–01–D
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50 CFR Part 648
[Docket No. 090123054–9058–01]
RIN 0648–XM12
Magnuson-Stevens Act Provisions;
Fisheries of the Northeastern United
States; Northeast Multispecies
Fishery; 2009 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: Proposed rule; request for
comments.
SUMMARY: This proposed rule provides
interested parties an opportunity to
comment on the proposed sector
operations plan and supplemental
environmental assessment (EA) prior to
final approval or disapproval of the
sector operations plan and allocation of
a Georges Bank (GB) cod total allowable
catch (TAC) to the GB Cod Fixed Gear
Sector (Fixed Gear Sector) for fishing
year (FY) 2009.
Framework Adjustment (FW) 42 to
the Northeast (NE) Multispecies Fishery
Management Plan (FMP) implemented
the Fixed Gear Sector and authorized
allocation of up to 20 percent of the
annual GB cod TAC to the Fixed Gear
Sector. Pursuant to that authorization, a
representative of the Fixed Gear Sector
has submitted an operations plan and
sector agreement (contract), and
requested an allocation of GB cod to the
Fixed Gear Sector for FY 2009.
DATES: Written comments must be
received on or before February 27, 2009.
ADDRESSES: You may submit comments,
identified by 0648–XM12, by any one of
the following methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal eRulemaking Portal: https://
www.regulations.gov,
• Fax: (978) 281–9135, Attn: Mark
Grant,
• Mail: 55 Great Republic Drive,
Gloucester, MA 01930.
Instructions: All comments received
are part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All Personal Identifying Information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
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Federal Register / Vol. 74, No. 28 / Thursday, February 12, 2009 / Proposed Rules
submit Confidential Business
Information or otherwise sensitive or
protected information.
NMFS will accept anonymous
comments (enter N/A in the required
fields, if you wish to remain
anonymous). You may submit
attachments to electronic comments in
Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
Copies of the Sector Agreement and
the EA are available from the NE
Regional Office at the mailing address
specified above.
FOR FURTHER INFORMATION CONTACT:
Mark Grant, Sector Policy Analyst,
phone (978) 281–9145, fax (978) 281–
9135, e-mail Mark.Grant@NOAA.gov.
SUPPLEMENTARY INFORMATION: NMFS
announces that the Administrator, NE
Region, NMFS (Regional Administrator),
has made a preliminary determination
that the 2009 Fixed Gear Sector
Operations Plan and Agreement, which
contains the sector contract and
operations plan, is consistent with the
goals of the FMP, and other applicable
law and is in compliance with the
regulations governing the development
and operation of a sector, as specified
under 50 CFR 648.87, as they existed
prior to the court order described in this
proposed rule. The final rule
implementing Amendment 13 (69 FR
22906, April 27, 2004) specified a
process for the formation of sectors
within the NE multispecies fishery and
the allocation of TAC for specific
groundfish species (or days-at-sea
(DAS)), implemented restrictions that
apply to all sectors, established the GB
Cod Hook Sector Area (Sector Area),
and specified a formula for the
allocation of GB cod TAC to the sectors.
FW 42 (October 23, 2006; 71 FR
62156) to the NE Multispecies FMP
implemented the Fixed Gear Sector. On
January 26, 2009, the U.S. District Court
of Massachusetts (Court) issued an order
in Commonwealth of Massachusetts by
its Division of Marine Fisheries and
State of New Hampshire by its
Department of Fish and Game, Division
of Marine Fisheries v. Carlos M.
Gutierrez, et al., temporarily suspending
FW 42. On February 2, 2009, NMFS
filed a motion to alter or amend the
Court’s order. NMFS may not be able to
finally approve the Fixed Gear Sector’s
proposed sector operations plan for FY
2009 while FW 42 is suspended.
Accordingly, NMFS publishes this
proposed rule with the condition that a
final rule approving or disapproving the
proposed sector operations may be
contingent upon the removal of the
suspension of FW 42. NMFS is taking
this action at this time so that a final
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16:08 Feb 11, 2009
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approval or disapproval of the proposed
sector operations could me made in
advance of the start of FY 2009 on May
1 should the suspension of FW 42 be
lifted. This action must be taken at this
time to allow sufficient time for
publication of this proposed rule, a
public comment period, and publication
of a final rule no less than 30 days prior
to the rule taking effect, consistent with
the requirements of the Administrative
Procedure Act, as specified at 5 U.S.C.
553.
The principal regulations applying to
the Fixed Gear Sector specify that: (1)
All vessels with a valid limited access
NE multispecies DAS permit are eligible
to participate in the Fixed Gear Sector;
(2) membership in the Fixed Gear Sector
is voluntary, but each member is
required to remain in the Fixed Gear
Sector for the entire fishing year and
cannot fish in the NE multispecies DAS
program outside the sector during the
fishing year, unless certain conditions
are met; (3) vessels fishing in the Fixed
Gear Sector are confined to fishing in
the Sector Area, which is that portion of
the GB cod stock area north of 39° 00′
N. lat. and east of 71° 40′ W. long; and
(4) participating vessels are required to
comply with all pertinent Federal
fishing regulations, unless specifically
exempted by a Letter of Authorization
issued by the Regional Administrator,
and the provisions of an approved
operations plan.
While FW 42 implemented the Fixed
Gear Sector, in order for GB cod to be
allocated to the Fixed Gear Sector and
for the Fixed Gear Sector to be
authorized to fish, the Fixed Gear Sector
must submit an operations plan and
sector contract to the Regional
Administrator annually for approval.
The operations plan and sector contract
must contain certain elements,
including a contract signed by all Fixed
Gear Sector participants and a plan
containing the management rules that
the Fixed Gear Sector participants agree
to abide by in order to avoid exceeding
the allocated TAC. An additional
analysis of the impacts of the Fixed Gear
Sector’s proposed operations may also
be required in order to comply with the
National Environmental Policy Act.
Further, the public must be provided an
opportunity to comment on the
proposed operations plan and sector
contract. The regulations require that,
upon completion of the public comment
period, the Regional Administrator will
make a determination regarding
approval of the operations plan and
sector contract. If approved by the
Regional Administrator, participating
vessels would be authorized to fish
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under the terms of the operations plan
and sector contract.
The Fixed Gear Sector was authorized
to fish in FY 2006, FY 2007, and FY
2008, and, based upon the GB cod
landings history of its members, was
allocated <1.0, 10.7, and 13.99 percent,
respectively, of the annual GB cod TAC.
On September 30, 2008, the Fixed
Gear Sector submitted its FY 2009
operations plan and sector agreement to
NMFS. A draft environmental
assessment (EA) was submitted on
November 14, 2008. The proposed 2009
Fixed Gear Sector Operations Plan and
Agreement contains the same elements
and proposed exemptions as the 2008
Fixed Gear Sector Operations Plan and
Agreement. The Fixed Gear Sector
would be overseen by a Board of
Directors and a Sector Manager. The
Fixed Gear Sector Agreement specifies,
in accordance with Amendment 13, that
the Fixed Gear Sector’s GB cod TAC
would be based upon the number of
Fixed Gear Sector members and their
historic landings of GB cod. The GB cod
TAC is a ‘‘hard’’ TAC, meaning that,
once the TAC is reached, Fixed Gear
Sector vessels could not fish under a
DAS, possess or land GB cod or other
regulated species managed under the
FMP (regulated species), or use gear
capable of catching groundfish (unless
fishing under charter/party or
recreational regulations). Should the
hard TAC be exceeded, the Fixed Gear
Sector’s allocation would be reduced by
the amount of the overharvest in the
following year.
The 2009 operations plan proposes
exemptions from the following
restrictions of the FMP: The GB cod trip
limit; the GB Seasonal Closure Area
(when fishing with hook gear); the
3,600–hook limit for longline gear in the
GB Regulated Mesh Area (RMA); and
the 2,000–hook limit for longline gear in
the Gulf of Maine (GOM) and Southern
New England (SNE) RMAs. Justification
for the proposed exemptions and
analysis of the potential impacts of the
operations plan are contained in the EA.
A Regulatory Impact Review/Initial
Regulatory Flexibility Analysis (IRFA) is
summarized in the Classification section
of this proposed rule.
Twenty-three prospective Fixed Gear
Sector members signed the 2009 Fixed
Gear Sector Contract. The GB cod TAC
calculation is based upon the historic
GB cod landings of the participating
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
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Federal Register / Vol. 74, No. 28 / Thursday, February 12, 2009 / Proposed Rules
for the same time period. Based upon
the 23 prospective members (and their
associated GB cod landings history), the
Fixed Gear Sector’s share of the overall
U.S. portion of the GB cod TAC would
be 11.64 percent, or 899,869 lb (408 mt)
(11.64 percent times the U.S portion of
the fishery-wide GB cod target TAC of
7,729,408 lb (3,506 mt)). If prospective
members of the Fixed Gear Sector are
deemed ineligible to, or decide not to,
participate in the Fixed Gear Sector after
the publication of this proposed rule
and prior to a final decision by the
Regional Administrator, it is possible
that the total number of participants in
the Fixed Gear Sector and the TAC for
the Fixed Gear Sector may be reduced
from the numbers above, but no
additional members may join the Fixed
Gear Sector for FY 2009.
The sector contract contains
procedures for the enforcement of the
operations plan, a schedule of penalties,
and provides the authority to the Fixed
Gear Sector Manager to issue stop
fishing orders to members of the Fixed
Gear Sector. Participating vessels would
be required to call the Sector Manager
prior to leaving port on a fishing trip.
All legal-sized cod caught would be
retained, landed and counted against
the Fixed Gear Sector’s GB cod TAC.
For each fishing trip, participating
vessels would be required to fish under
the NE multispecies DAS program
regulations to account for any incidental
groundfish species that they may catch
while fishing for GB cod. Participating
vessels would be required to land fish
only in designated landing ports and
would be required to provide the Fixed
Gear Sector Manager with a copy of the
vessel trip report (VTR) within 48 hr of
offloading. Dealers purchasing fish from
participating vessels would be required
to provide the Fixed Gear Sector
Manager with a copy of the dealer report
on a weekly basis. On a monthly basis,
the Fixed Gear Sector Manager would
transmit to NMFS aggregate catch data
from dealer slips and aggregate discard
data from the VTRs. After 90 percent of
the Fixed Gear Sector’s allocation has
been harvested, the Fixed Gear Sector
Manager would be required to provide
NMFS with aggregate reports on a
weekly basis. A total of 1/12 of the
Fixed Gear Sector’s GB cod TAC would
be allocated to each month of the fishing
year. GB cod quota that is not landed
during a given month would be rolled
over into the following month. If
landings exceed the monthly quota, the
excess would be deducted from
subsequent monthly quotas to ensure
the Fixed Gear Sector does not exceed
its GB cod TAC. The harvest rules
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would not preclude a vessel from
fishing under the charter/party or
recreational regulations, provided the
vessel fishes under the applicable
charter/party and recreational rules on
separate trips.
Participating vessels would not be
allowed to fish with or have on board
gear other than jigs, non-automated
demersal longline, handgear, or sink
gillnets. Participating Fixed Gear Sector
vessels could use an unlimited number
of hooks in the Sector Area and would
be exempt from the GB Seasonal Closure
Area when using hook gear. All of these
exemptions were approved for FY 2006
and FY 2007.
The EA prepared for the Fixed Gear
Sector’s operations concludes that the
biological impacts of the Fixed Gear
Sector will be positive because the hard
TAC and the use of DAS would provide
two means of restricting both the
landings and effort of the Fixed Gear
Sector. Implementation may have a
positive impact on essential fish habitat
and bycatch if the Fixed Gear Sector’s
quota is caught prior to the end of the
fishing year by reducing the amount of
time that gear would be in the water.
The analysis of economic impacts of the
Fixed Gear Sector concludes that the
members would realize higher economic
returns if the Fixed Gear Sector is
implemented. The EA asserts that
fishing in accordance with the sector
contract rules enables more efficient
harvesting of GB cod than would be
possible if the participating vessels were
fishing in accordance with the common
pool (non-sector) rules. The social
benefits of the Fixed Gear Sector would
accrue to sector members, as well as the
Chatham, MA, and Harwichport, MA,
communities, which are more
dependent upon groundfish revenues as
a percentage of fishery-derived landings
than many other communities. The EA
concludes that the self-governing nature
of the Fixed Gear Sector and the
member’s opportunity to develop rules
governing the way in which they
harvest their GB cod TAC enables
stewardship of the cod resource by the
Fixed Gear Sector. The cumulative
impacts of the Fixed Gear Sector are
expected to be positive due to a positive
biological impact, potential positive
impact on habitat, and a positive social
and economic impact. In contrast, the
cumulative impact of the no action
alternative is estimated to be neutral,
with negative social and economic
impacts.
Should the Regional Administrator
approve the sector contract as proposed,
a Letter of Authorization would be
issued to each member of the Fixed Gear
Sector exempting them, conditional
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7031
upon their compliance with the sector
contract, from the GB cod possession
restrictions, the 3,600–hook limit in the
GB RMA, the 2,000–hook limit in the
GOM and SNE RMAs, and the GB
Seasonal Closure Area (when using
hook gear), as specified in
§§ 658.86(b)(2), 648.80(a)(4)(v),
648.80(a)(3)(v), 648.80(b)(2)(v), and
648.81(g), respectively.
Classification
Pursuant to section 304 (b)(1)(A) of
the Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined
that this proposed rule is consistent
with the Northeast Multispecies FMP,
other provisions of the MagnusonStevens Act, and other applicable law,
subject to further consideration after
public comment.
This action is exempt from review
under Executive Order (E.O.) 12866.
An IRFA was prepared, as required by
section 603 of the Regulatory Flexibility
Act (RFA). The IRFA describes the
economic impact this proposed rule, if
adopted, would have on small entities.
The IRFA consists of this section, the
preamble and the EA prepared for this
action. A description of the action, why
it is being considered, and the legal
basis for this action are contained in the
preamble to this proposed rule and in
sections 1.0, 2.0, and 3.0 of the EA
prepared for this action. A summary of
the analysis follows. A copy of this
analysis is available from NMFS (see
ADDRESSES).
The Small Business Administration
size standard for small commercial
fishing entities is $4 million in average
annual receipts, and the size standard
for small charter/party operators is $6.5
million in average annual receipts. All
permitted and participating vessels in
the groundfish fishery, including
prospective Fixed Gear Sector members,
are considered to be small entities
because gross sales by any one entity
(vessel) do not exceed this threshold,
and, therefore there is no
disproportionate impact between large
and small entities. 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. All permitted and
participating vessels in the groundfish
fishery, including prospective Fixed
Gear Sector members, are considered to
be small entities because gross sales by
any one entity (vessel) do not exceed
this threshold. The number of
prospective participants in the Fixed
Gear Sector is 23, substantially less than
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the total number of active vessels in the
groundfish fishery. Only these 23
vessels would be subject to the
regulatory exemptions and operational
restrictions proposed for the Fixed Gear
Sector for FY 2009.
Economic Impacts of the Proposed
Action
The proposed alternative would
allocate a GB cod TAC of 408 mt to the
Fixed Gear Sector. Once the GB cod
TAC is harvested, participating vessels
would not be allowed to fish under a NE
multispecies DAS, possess or land GB
cod, or other regulated species managed
under the NE multispecies FMP, or use
gear capable of catching groundfish
(unless fishing under recreational or
charter/party regulations). Vessels
intending to fish in the Fixed Gear
Sector during FY 2009 may only fish
with hook gear or sink gillnets. Under
the proposed operations plan, members
would be exempt from several
restrictions of the FMP described in the
preamble to this proposed rule and in
the EA.
The Fixed Gear Sector fishermen and
the Chatham, MA, and Harwichport,
MA, communities are dependent upon
GB cod and other groundfish. The
Amendment 13 restrictions that reduced
the GB cod trip limit had a
disproportionate affect on these
fishermen. According to Amendment
13, Chatham’s overall community
dependence on NE multispecies as a
percentage of total fisheries revenues
from federally permitted vessels
averaged about 71–percent and it was
likely that at least some of the active
groundfish vessels in Chatham and
Harwichport were even more than 71
percent dependent on the NE
multispecies fishery.
Cod, skate wings, and monkfish
comprised the largest proportion of
Fixed Gear Sector landings (40.70
percent, 23.62 percent, and 9.78 percent
respectively, in FY 2007). During FY
2007, members of the Fixed Gear Sector
made 632 trips, landed 721,315 lb
(327,183 kg) of cod, 418,679 lb (189,910
kg) of skate wings, 173,270 lb (78,594
kg) of whole monkfish, and 20,209 lb
(9,167 kg) of monkfish tails, and
generated approximately $ 1,348,859;
$ 230,273; $ 344,807; and $ 62,648 in
revenue from those species, respectively
(assuming dockside prices of $ 1.87, $
0.55, $ 1.99, and $ 3.10 per lb [$ 4.11,
$ 1.21, $ 4.38 and $ 6.82 per kg],
respectively). Fixed Gear Sector
members also landed various other
species, which increased their revenue.
In general, the operation of the Fixed
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16:08 Feb 11, 2009
Jkt 217001
Gear Sector would continue to mitigate
the negative economic impacts that
result from the current suite of
regulations that apply to the groundfish
fishery (most recently FW 42). The
Fixed Gear Sector, by fishing under
rules that are designed to meet their
needs (as well as the conservation
requirements of the FMP), is afforded a
larger degree of flexibility and
efficiency, which result in economic
gains. For example, Fixed Gear Sector
members are able to plan their fishing
activity and income in advance with
more certainty due to the fact that there
is a cod TAC, which is apportioned to
each month of the year. They are able
to maximize their efficiency (revenue
per trip) due to the exemption from trip
limits and limits on the number of
hooks fished. Two hundred seventythree of the Fixed Gear Sector’s 632
trips (43 percent) in FY 2007 landed
more than the daily GB cod trip limit
(1,000 lb/day; 454 kg/day) in place for
the common pool vessels (non-sector
vessels). This resulted in an additional
349,705 lb (158,624 kg) (46 percent of
the Fixed Gear Sector’s FY 2007 cod
landings) being landed, rather than
discarded. For some vessel owners in
the Fixed Gear Sector, participation in
the Fixed Gear Sector enables their
businesses to remain economically
viable.
No other alternatives in addition to
the No Action and the proposed action
were considered. The RFA requires each
IRFA to include a description of
significant alternatives that accomplish
the objectives of applicable statues (in
this case, sector provisions) and
minimize any significant economic
impact to small entities. The objective of
sector management, as originally
developed and implemented under
Amendment 13 to the FMP, is to
provide opportunities for like-minded
vessel operators to govern themselves so
that they can operate in a more effective
and efficient manner. The Fixed Gear
Sector developed the proposed
operations plan after consultation with
prospective members. Prospective
members then signed a binding sector
contract to abide by the measures
specified in the proposed operations
plan. As described above, the proposed
operations plan minimizes economic
impacts to participating vessels by
allowing them to operate more
efficiently. Accordingly, the proposed
operations plan reflects the management
measures preferred by vessels
participating in the Fixed Gear Sector
during FY 2009 and represents all of the
significant alternatives that accomplish
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the objectives of sector provisions and
minimize economic impacts to small
entities, as required by the RFA.
Therefore, in conjunction with the
NEPA requirement to consider a
reasonable range of alternatives, no
other alternatives were considered as
part of this proposed action.
Economic Impacts of Alternative to the
Proposed Action
Under the No Action alternative, the
2009 Fixed Gear Sector operations plan
is disapproved and no modified
operations plan is submitted. While the
Fixed Gear Sector would remain
implemented under the FMP, under the
No Action Alternative, the Fixed Gear
Sector would not be authorized to fish,
would not be allocated a GB cod TAC,
and all vessels would remain in the
common pool and fish under the
regulations implemented in
Amendment 13 and subsequent FW to
the FMP.
Because cod usually represents a high
proportion of total fishing income for
Cape Cod-based fixed gear vessels,
revenues for such vessel owners are
very sensitive to regulations that impact
how and when they can fish for cod,
such as trip limits and restrictions on
the number of hooks fished. Under the
common pool rules implemented by FW
42 (e.g., differential DAS counting) and
Amendment 13 (restrictive daily trip
limits for cod), it is likely that Fixed
Gear Sector vessels would experience
revenue losses in comparison to the
proposed action. It is more likely under
the No Action alternative that
disruption to the Chatham/Harwichport
communities would occur.
Description of the Projected Reporting,
Recordkeeping, and Other Compliance
Requirements of the Proposed Rule
This proposed rule contains no
collection-of-information requirement
subject to the Paperwork Reduction Act.
Regulations under the MagnusonStevens Fishery Conservation and
Management Act require publication of
this notification to provide interested
parties the opportunity to comment on
proposed sector operations plans and
TAC allocations.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 6, 2009.
Samuel D. Rauch,
Deputy Assistant Administrator For
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E9–3060 Filed 2–11–09; 8:45 am]
BILLING CODE 3510–22–S
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[Federal Register Volume 74, Number 28 (Thursday, February 12, 2009)]
[Proposed Rules]
[Pages 7029-7032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-3060]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 090123054-9058-01]
RIN 0648-XM12
Magnuson-Stevens Act Provisions; Fisheries of the Northeastern
United States; Northeast Multispecies Fishery; 2009 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: Proposed rule; request for comments.
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SUMMARY: This proposed rule provides interested parties an opportunity
to comment on the proposed sector operations plan and supplemental
environmental assessment (EA) prior to final approval or disapproval of
the sector operations plan and allocation of a Georges Bank (GB) cod
total allowable catch (TAC) to the GB Cod Fixed Gear Sector (Fixed Gear
Sector) for fishing year (FY) 2009.
Framework Adjustment (FW) 42 to the Northeast (NE) Multispecies
Fishery Management Plan (FMP) implemented the Fixed Gear Sector and
authorized allocation of up to 20 percent of the annual GB cod TAC to
the Fixed Gear Sector. Pursuant to that authorization, a representative
of the Fixed Gear Sector has submitted an operations plan and sector
agreement (contract), and requested an allocation of GB cod to the
Fixed Gear Sector for FY 2009.
DATES: Written comments must be received on or before February 27,
2009.
ADDRESSES: You may submit comments, identified by 0648-XM12, by any one
of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal: https://
www.regulations.gov,
Fax: (978) 281-9135, Attn: Mark Grant,
Mail: 55 Great Republic Drive, Gloucester, MA 01930.
Instructions: All comments received are part of the public record
and will generally be posted to https://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not
[[Page 7030]]
submit Confidential Business Information or otherwise sensitive or
protected information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). You may submit attachments to
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF
file formats only.
Copies of the Sector Agreement and the EA are available from the NE
Regional Office at the mailing address specified above.
FOR FURTHER INFORMATION CONTACT: Mark Grant, Sector Policy Analyst,
phone (978) 281-9145, fax (978) 281-9135, e-mail Mark.Grant@NOAA.gov.
SUPPLEMENTARY INFORMATION: NMFS announces that the Administrator, NE
Region, NMFS (Regional Administrator), has made a preliminary
determination that the 2009 Fixed Gear Sector Operations Plan and
Agreement, which contains the sector contract and operations plan, is
consistent with the goals of the FMP, and other applicable law and is
in compliance with the regulations governing the development and
operation of a sector, as specified under 50 CFR 648.87, as they
existed prior to the court order described in this proposed rule. The
final rule implementing Amendment 13 (69 FR 22906, April 27, 2004)
specified a process for the formation of sectors within the NE
multispecies fishery and the allocation of TAC for specific groundfish
species (or days-at-sea (DAS)), implemented restrictions that apply to
all sectors, established the GB Cod Hook Sector Area (Sector Area), and
specified a formula for the allocation of GB cod TAC to the sectors.
FW 42 (October 23, 2006; 71 FR 62156) to the NE Multispecies FMP
implemented the Fixed Gear Sector. On January 26, 2009, the U.S.
District Court of Massachusetts (Court) issued an order in Commonwealth
of Massachusetts by its Division of Marine Fisheries and State of New
Hampshire by its Department of Fish and Game, Division of Marine
Fisheries v. Carlos M. Gutierrez, et al., temporarily suspending FW 42.
On February 2, 2009, NMFS filed a motion to alter or amend the Court's
order. NMFS may not be able to finally approve the Fixed Gear Sector's
proposed sector operations plan for FY 2009 while FW 42 is suspended.
Accordingly, NMFS publishes this proposed rule with the condition that
a final rule approving or disapproving the proposed sector operations
may be contingent upon the removal of the suspension of FW 42. NMFS is
taking this action at this time so that a final approval or disapproval
of the proposed sector operations could me made in advance of the start
of FY 2009 on May 1 should the suspension of FW 42 be lifted. This
action must be taken at this time to allow sufficient time for
publication of this proposed rule, a public comment period, and
publication of a final rule no less than 30 days prior to the rule
taking effect, consistent with the requirements of the Administrative
Procedure Act, as specified at 5 U.S.C. 553.
The principal regulations applying to the Fixed Gear Sector specify
that: (1) All vessels with a valid limited access NE multispecies DAS
permit are eligible to participate in the Fixed Gear Sector; (2)
membership in the Fixed Gear Sector is voluntary, but each member is
required to remain in the Fixed Gear Sector for the entire fishing year
and cannot fish in the NE multispecies DAS program outside the sector
during the fishing year, unless certain conditions are met; (3) vessels
fishing in the Fixed Gear Sector are confined to fishing in the Sector
Area, which is that portion of the GB cod stock area north of 39[deg]
00' N. lat. and east of 71[deg] 40' W. long; and (4) participating
vessels are required to comply with all pertinent Federal fishing
regulations, unless specifically exempted by a Letter of Authorization
issued by the Regional Administrator, and the provisions of an approved
operations plan.
While FW 42 implemented the Fixed Gear Sector, in order for GB cod
to be allocated to the Fixed Gear Sector and for the Fixed Gear Sector
to be authorized to fish, the Fixed Gear Sector must submit an
operations plan and sector contract to the Regional Administrator
annually for approval. The operations plan and sector contract must
contain certain elements, including a contract signed by all Fixed Gear
Sector participants and a plan containing the management rules that the
Fixed Gear Sector participants agree to abide by in order to avoid
exceeding the allocated TAC. An additional analysis of the impacts of
the Fixed Gear Sector's proposed operations may also be required in
order to comply with the National Environmental Policy Act. Further,
the public must be provided an opportunity to comment on the proposed
operations plan and sector contract. The regulations require that, upon
completion of the public comment period, the Regional Administrator
will make a determination regarding approval of the operations plan and
sector contract. If approved by the Regional Administrator,
participating vessels would be authorized to fish under the terms of
the operations plan and sector contract.
The Fixed Gear Sector was authorized to fish in FY 2006, FY 2007,
and FY 2008, and, based upon the GB cod landings history of its
members, was allocated <1.0, 10.7, and 13.99 percent, respectively, of
the annual GB cod TAC.
On September 30, 2008, the Fixed Gear Sector submitted its FY 2009
operations plan and sector agreement to NMFS. A draft environmental
assessment (EA) was submitted on November 14, 2008. The proposed 2009
Fixed Gear Sector Operations Plan and Agreement contains the same
elements and proposed exemptions as the 2008 Fixed Gear Sector
Operations Plan and Agreement. The Fixed Gear Sector would be overseen
by a Board of Directors and a Sector Manager. The Fixed Gear Sector
Agreement specifies, in accordance with Amendment 13, that the Fixed
Gear Sector's GB cod TAC would be based upon the number of Fixed Gear
Sector members and their historic landings of GB cod. The GB cod TAC is
a ``hard'' TAC, meaning that, once the TAC is reached, Fixed Gear
Sector vessels could not fish under a DAS, possess or land GB cod or
other regulated species managed under the FMP (regulated species), or
use gear capable of catching groundfish (unless fishing under charter/
party or recreational regulations). Should the hard TAC be exceeded,
the Fixed Gear Sector's allocation would be reduced by the amount of
the overharvest in the following year.
The 2009 operations plan proposes exemptions from the following
restrictions of the FMP: The GB cod trip limit; the GB Seasonal Closure
Area (when fishing with hook gear); the 3,600-hook limit for longline
gear in the GB Regulated Mesh Area (RMA); and the 2,000-hook limit for
longline gear in the Gulf of Maine (GOM) and Southern New England (SNE)
RMAs. Justification for the proposed exemptions and analysis of the
potential impacts of the operations plan are contained in the EA. A
Regulatory Impact Review/Initial Regulatory Flexibility Analysis (IRFA)
is summarized in the Classification section of this proposed rule.
Twenty-three prospective Fixed Gear Sector members signed the 2009
Fixed Gear Sector Contract. The GB cod TAC calculation is based upon
the historic GB cod landings of the participating 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
[[Page 7031]]
for the same time period. Based upon the 23 prospective members (and
their associated GB cod landings history), the Fixed Gear Sector's
share of the overall U.S. portion of the GB cod TAC would be 11.64
percent, or 899,869 lb (408 mt) (11.64 percent times the U.S portion of
the fishery-wide GB cod target TAC of 7,729,408 lb (3,506 mt)). If
prospective members of the Fixed Gear Sector are deemed ineligible to,
or decide not to, participate in the Fixed Gear Sector after the
publication of this proposed rule and prior to a final decision by the
Regional Administrator, it is possible that the total number of
participants in the Fixed Gear Sector and the TAC for the Fixed Gear
Sector may be reduced from the numbers above, but no additional members
may join the Fixed Gear Sector for FY 2009.
The sector contract contains procedures for the enforcement of the
operations plan, a schedule of penalties, and provides the authority to
the Fixed Gear Sector Manager to issue stop fishing orders to members
of the Fixed Gear Sector. Participating vessels would be required to
call the Sector Manager prior to leaving port on a fishing trip. All
legal-sized cod caught would be retained, landed and counted against
the Fixed Gear Sector's GB cod TAC. For each fishing trip,
participating vessels would be required to fish under the NE
multispecies DAS program regulations to account for any incidental
groundfish species that they may catch while fishing for GB cod.
Participating vessels would be required to land fish only in designated
landing ports and would be required to provide the Fixed Gear Sector
Manager with a copy of the vessel trip report (VTR) within 48 hr of
offloading. Dealers purchasing fish from participating vessels would be
required to provide the Fixed Gear Sector Manager with a copy of the
dealer report on a weekly basis. On a monthly basis, the Fixed Gear
Sector Manager would transmit to NMFS aggregate catch data from dealer
slips and aggregate discard data from the VTRs. After 90 percent of the
Fixed Gear Sector's allocation has been harvested, the Fixed Gear
Sector Manager would be required to provide NMFS with aggregate reports
on a weekly basis. A total of 1/12 of the Fixed Gear Sector's GB cod
TAC would be allocated to each month of the fishing year. GB cod quota
that is not landed during a given month would be rolled over into the
following month. If landings exceed the monthly quota, the excess would
be deducted from subsequent monthly quotas to ensure the Fixed Gear
Sector does not exceed its GB cod TAC. The harvest rules would not
preclude a vessel from fishing under the charter/party or recreational
regulations, provided the vessel fishes under the applicable charter/
party and recreational rules on separate trips.
Participating vessels would not be allowed to fish with or have on
board gear other than jigs, non-automated demersal longline, handgear,
or sink gillnets. Participating Fixed Gear Sector vessels could use an
unlimited number of hooks in the Sector Area and would be exempt from
the GB Seasonal Closure Area when using hook gear. All of these
exemptions were approved for FY 2006 and FY 2007.
The EA prepared for the Fixed Gear Sector's operations concludes
that the biological impacts of the Fixed Gear Sector will be positive
because the hard TAC and the use of DAS would provide two means of
restricting both the landings and effort of the Fixed Gear Sector.
Implementation may have a positive impact on essential fish habitat and
bycatch if the Fixed Gear Sector's quota is caught prior to the end of
the fishing year by reducing the amount of time that gear would be in
the water. The analysis of economic impacts of the Fixed Gear Sector
concludes that the members would realize higher economic returns if the
Fixed Gear Sector is implemented. The EA asserts that fishing in
accordance with the sector contract rules enables more efficient
harvesting of GB cod than would be possible if the participating
vessels were fishing in accordance with the common pool (non-sector)
rules. The social benefits of the Fixed Gear Sector would accrue to
sector members, as well as the Chatham, MA, and Harwichport, MA,
communities, which are more dependent upon groundfish revenues as a
percentage of fishery-derived landings than many other communities. The
EA concludes that the self-governing nature of the Fixed Gear Sector
and the member's opportunity to develop rules governing the way in
which they harvest their GB cod TAC enables stewardship of the cod
resource by the Fixed Gear Sector. The cumulative impacts of the Fixed
Gear Sector are expected to be positive due to a positive biological
impact, potential positive impact on habitat, and a positive social and
economic impact. In contrast, the cumulative impact of the no action
alternative is estimated to be neutral, with negative social and
economic impacts.
Should the Regional Administrator approve the sector contract as
proposed, a Letter of Authorization would be issued to each member of
the Fixed Gear Sector exempting them, conditional upon their compliance
with the sector contract, from the GB cod possession restrictions, the
3,600-hook limit in the GB RMA, the 2,000-hook limit in the GOM and SNE
RMAs, and the GB Seasonal Closure Area (when using hook gear), as
specified in Sec. Sec. 658.86(b)(2), 648.80(a)(4)(v), 648.80(a)(3)(v),
648.80(b)(2)(v), and 648.81(g), respectively.
Classification
Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed rule is
consistent with the Northeast Multispecies FMP, other provisions of the
Magnuson-Stevens Act, and other applicable law, subject to further
consideration after public comment.
This action is exempt from review under Executive Order (E.O.)
12866.
An IRFA was prepared, as required by section 603 of the Regulatory
Flexibility Act (RFA). The IRFA describes the economic impact this
proposed rule, if adopted, would have on small entities. The IRFA
consists of this section, the preamble and the EA prepared for this
action. A description of the action, why it is being considered, and
the legal basis for this action are contained in the preamble to this
proposed rule and in sections 1.0, 2.0, and 3.0 of the EA prepared for
this action. A summary of the analysis follows. A copy of this analysis
is available from NMFS (see ADDRESSES).
The Small Business Administration size standard for small
commercial fishing entities is $4 million in average annual receipts,
and the size standard for small charter/party operators is $6.5 million
in average annual receipts. All permitted and participating vessels in
the groundfish fishery, including prospective Fixed Gear Sector
members, are considered to be small entities because gross sales by any
one entity (vessel) do not exceed this threshold, and, therefore there
is no disproportionate impact between large and small entities. 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. All permitted and participating
vessels in the groundfish fishery, including prospective Fixed Gear
Sector members, are considered to be small entities because gross sales
by any one entity (vessel) do not exceed this threshold. The number of
prospective participants in the Fixed Gear Sector is 23, substantially
less than
[[Page 7032]]
the total number of active vessels in the groundfish fishery. Only
these 23 vessels would be subject to the regulatory exemptions and
operational restrictions proposed for the Fixed Gear Sector for FY
2009.
Economic Impacts of the Proposed Action
The proposed alternative would allocate a GB cod TAC of 408 mt to
the Fixed Gear Sector. Once the GB cod TAC is harvested, participating
vessels would not be allowed to fish under a NE multispecies DAS,
possess or land GB cod, or other regulated species managed under the NE
multispecies FMP, or use gear capable of catching groundfish (unless
fishing under recreational or charter/party regulations). Vessels
intending to fish in the Fixed Gear Sector during FY 2009 may only fish
with hook gear or sink gillnets. Under the proposed operations plan,
members would be exempt from several restrictions of the FMP described
in the preamble to this proposed rule and in the EA.
The Fixed Gear Sector fishermen and the Chatham, MA, and
Harwichport, MA, communities are dependent upon GB cod and other
groundfish. The Amendment 13 restrictions that reduced the GB cod trip
limit had a disproportionate affect on these fishermen. According to
Amendment 13, Chatham's overall community dependence on NE multispecies
as a percentage of total fisheries revenues from federally permitted
vessels averaged about 71-percent and it was likely that at least some
of the active groundfish vessels in Chatham and Harwichport were even
more than 71 percent dependent on the NE multispecies fishery.
Cod, skate wings, and monkfish comprised the largest proportion of
Fixed Gear Sector landings (40.70 percent, 23.62 percent, and 9.78
percent respectively, in FY 2007). During FY 2007, members of the Fixed
Gear Sector made 632 trips, landed 721,315 lb (327,183 kg) of cod,
418,679 lb (189,910 kg) of skate wings, 173,270 lb (78,594 kg) of whole
monkfish, and 20,209 lb (9,167 kg) of monkfish tails, and generated
approximately $ 1,348,859; $ 230,273; $ 344,807; and $ 62,648 in
revenue from those species, respectively (assuming dockside prices of $
1.87, $ 0.55, $ 1.99, and $ 3.10 per lb [$ 4.11, $ 1.21, $ 4.38 and $
6.82 per kg], respectively). Fixed Gear Sector members also landed
various other species, which increased their revenue. In general, the
operation of the Fixed Gear Sector would continue to mitigate the
negative economic impacts that result from the current suite of
regulations that apply to the groundfish fishery (most recently FW 42).
The Fixed Gear Sector, by fishing under rules that are designed to meet
their needs (as well as the conservation requirements of the FMP), is
afforded a larger degree of flexibility and efficiency, which result in
economic gains. For example, Fixed Gear Sector members are able to plan
their fishing activity and income in advance with more certainty due to
the fact that there is a cod TAC, which is apportioned to each month of
the year. They are able to maximize their efficiency (revenue per trip)
due to the exemption from trip limits and limits on the number of hooks
fished. Two hundred seventy-three of the Fixed Gear Sector's 632 trips
(43 percent) in FY 2007 landed more than the daily GB cod trip limit
(1,000 lb/day; 454 kg/day) in place for the common pool vessels (non-
sector vessels). This resulted in an additional 349,705 lb (158,624 kg)
(46 percent of the Fixed Gear Sector's FY 2007 cod landings) being
landed, rather than discarded. For some vessel owners in the Fixed Gear
Sector, participation in the Fixed Gear Sector enables their businesses
to remain economically viable.
No other alternatives in addition to the No Action and the proposed
action were considered. The RFA requires each IRFA to include a
description of significant alternatives that accomplish the objectives
of applicable statues (in this case, sector provisions) and minimize
any significant economic impact to small entities. The objective of
sector management, as originally developed and implemented under
Amendment 13 to the FMP, is to provide opportunities for like-minded
vessel operators to govern themselves so that they can operate in a
more effective and efficient manner. The Fixed Gear Sector developed
the proposed operations plan after consultation with prospective
members. Prospective members then signed a binding sector contract to
abide by the measures specified in the proposed operations plan. As
described above, the proposed operations plan minimizes economic
impacts to participating vessels by allowing them to operate more
efficiently. Accordingly, the proposed operations plan reflects the
management measures preferred by vessels participating in the Fixed
Gear Sector during FY 2009 and represents all of the significant
alternatives that accomplish the objectives of sector provisions and
minimize economic impacts to small entities, as required by the RFA.
Therefore, in conjunction with the NEPA requirement to consider a
reasonable range of alternatives, no other alternatives were considered
as part of this proposed action.
Economic Impacts of Alternative to the Proposed Action
Under the No Action alternative, the 2009 Fixed Gear Sector
operations plan is disapproved and no modified operations plan is
submitted. While the Fixed Gear Sector would remain implemented under
the FMP, under the No Action Alternative, the Fixed Gear Sector would
not be authorized to fish, would not be allocated a GB cod TAC, and all
vessels would remain in the common pool and fish under the regulations
implemented in Amendment 13 and subsequent FW to the FMP.
Because cod usually represents a high proportion of total fishing
income for Cape Cod-based fixed gear vessels, revenues for such vessel
owners are very sensitive to regulations that impact how and when they
can fish for cod, such as trip limits and restrictions on the number of
hooks fished. Under the common pool rules implemented by FW 42 (e.g.,
differential DAS counting) and Amendment 13 (restrictive daily trip
limits for cod), it is likely that Fixed Gear Sector vessels would
experience revenue losses in comparison to the proposed action. It is
more likely under the No Action alternative that disruption to the
Chatham/Harwichport communities would occur.
Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule
This proposed rule contains no collection-of-information
requirement subject to the Paperwork Reduction Act.
Regulations under the Magnuson-Stevens Fishery Conservation and
Management Act require publication of this notification to provide
interested parties the opportunity to comment on proposed sector
operations plans and TAC allocations.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 6, 2009.
Samuel D. Rauch,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. E9-3060 Filed 2-11-09; 8:45 am]
BILLING CODE 3510-22-S
