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, 17107-17111 [E9-8508]
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Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations
available, except for transiting purposes
as described in this notice. This action
is based on the determination that 95
percent of the Atlantic herring TAC
allocated to Area 2 for 2009 is projected
to be harvested by April 14, 2009.
Regulations governing the Atlantic
herring fishery require publication of
this notification to advise vessel and
dealer permit holders that no TAC is
available for the directed fishery for
Atlantic herring harvested from Area 2.
DATES: Effective 0001 hrs local time,
April 15, 2009, through January 1, 2010.
FOR FURTHER INFORMATION CONTACT: Aja
Peters-Mason, Fishery Management
Specialist, (978) 281–9195.
SUPPLEMENTARY INFORMATION:
Regulations governing the Atlantic
herring fishery are found at 50 CFR part
648. The regulations require annual
specification of optimum yield,
domestic and foreign fishing, domestic
and joint venture processing, and
management area TACs. The 2009 TAC
allocated to Area 2 (72 FR 17807, April
10, 2007) is 30,000 mt. The initial TAC
included a Research Set Aside of 900 mt
that was restored to the fishery when it
was not allocated for research (73 FR
74631, December 9, 2008).
The regulations at § 648.201 require
the Administrator, Northeast Region,
NMFS (Regional Administrator), to
monitor the Atlantic herring fishery in
each of the four management areas
designated in the Fishery Management
Plan (FMP) for the Atlantic herring
fishery and, based upon dealer reports,
state data, and other available
information, to determine when the
harvest of Atlantic herring is projected
to reach 95 percent of the TAC
allocated. When such a determination is
made, NMFS is required to publish
notification in the Federal Register of
this determination. Effective upon a
specific date, NMFS must notify vessel
and dealer permit holders that vessels
are prohibited from fishing for, catching,
possessing, transferring, or landing more
than 2,000 lb (907.2 kg) of herring per
trip or calendar day in or from the
specified management area for the
remainder of the closure period.
Transiting of Area 2 with more than
2,000 lb (907.2 kg) of herring on board
is allowed under the conditions
specified below.
The Regional Administrator has
determined, based upon dealer reports
and other available information, that 95
percent of the total Atlantic herring TAC
allocated to Area 2 for the 2009 fishing
year is projected to be harvested.
Therefore, effective 0001 hrs local time,
April 15, 2009, federally permitted
vessels may not fish for, catch, possess,
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15:32 Apr 13, 2009
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transfer, or land more than 2,000 lb
(907.2 kg) of Atlantic herring in or from
Area 2 per trip or calendar day through
January 1, 2010. Vessels transiting Area
2 with more than 2,000 lb (907.2 kg) of
herring on board may land this amount
provided such herring was not caught in
Area 2 and provided all fishing gear is
stowed and not available for immediate
use as required by § 648.23(b). Effective
April 15, 2009, federally permitted
dealers are also advised that they may
not purchase Atlantic herring from
federally permitted Atlantic herring
vessels that harvest more than 2,000 lb
(907.2 kg) of Atlantic herring from Area
2 through 2400 hrs local time, January
1, 2010.
Classification
This action is required by 50 CFR part
648 and is exempt from review under
Executive Order 12866.
The Assistant Administrator for
Fisheries, NOAA (AA), finds good cause
pursuant to 5 U.S.C. 553(b)(B) to waive
prior notice and the opportunity for
public comment because it would be
contrary to the public interest. This
action closes the Atlantic herring fishery
for Management Area 2 until January 1,
2010, under current regulations. The
regulations at § 648.201(a) require such
action to ensure that Atlantic herring
vessels do not exceed the 2009 TAC.
The Atlantic herring fishery opened for
the 2009 fishing year at 0001 hours on
January 1, 2009. Data indicating the
Atlantic herring fleet will have landed
at least 95 percent of the 2009 TAC have
only recently become available.
If implementation of this closure is
delayed to solicit prior public comment,
the quota for this fishing year will be
exceeded, thereby undermining the
conservation objectives of the FMP. The
AA further finds, pursuant to 5 U.S.C
553(d)(3), good cause to waive the thirty
(30) day delayed effectiveness period for
the reasons stated above.
Authority: 16 U.S.C. 1801 et seq.
Dated: April 8, 2009.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries,
National Marine Fisheries Service.
[FR Doc. E9–8496 Filed 4–9–09; 4:15 pm]
BILLING CODE 3510–22–S
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17107
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 090123054–9591–02 ]
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: Final rule.
SUMMARY: This final rule implements
the Georges Bank (GB) Cod Fixed Gear
Sector (Fixed Gear Sector) Fishing Year
(FY) 2009 Operations Plan and
Agreement, approved by the
Administrator, Northeast (NE) Region,
NMFS (Regional Administrator), and
allocates a hard total allowable catch
(TAC) of GB cod to the Fixed Gear
Sector. Framework Adjustment 42 (FW
42) to the NE Multispecies Fishery
Management Plan (FMP) authorized
allocation of up to 20 percent of the
annual GB cod TAC to the Fixed Gear
Sector. Pursuant to that authorization,
the Fixed Gear Sector submitted an
Operations Plan and Sector Contract,
entitled ‘‘Georges Bank Cod Fixed Gear
Sector Fishing Year 2009–2010
Operations Plan and Agreement’’
(together referred to as the Sector
Agreement), and an Environmental
Assessment (EA), and requested an
allocation of GB cod, consistent with the
FMP. This action results in
authorization of the Sector Operations
Plan for FY 2009 and allocation of 503.8
mt of GB cod to the Fixed Gear Sector.
DATES: Effective May 1, 2009, through
April 30, 2010.
ADDRESSES: Copies of the Sector
Agreement, EA, and the Final
Regulatory Flexibility Analysis (FRFA)
are available from the Northeast
Regional Office: Patricia A. Kurkul,
Regional Administrator, National
Marine Fisheries Service, 55 Great
Republic Drive, Gloucester, MA 01930.
These documents are also accessible via
the Federal eRulemaking Portal: https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Melissa Vasquez, Fishery Management
Specialist, phone (978) 281–9166, fax
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(978) 281–9135, e-mail
Melissa.Vasquez@NOAA.gov.
SUPPLEMENTARY INFORMATION: A
proposed rule soliciting public
comment on the Sector Agreement for
the Fixed Gear Sector was published in
the Federal Register on February 12,
2009, (74 FR 7029) with public
comment accepted through February 27,
2009. The Regional Administrator
approved the FY 2009 Sector Operations
Plan, after review of the public
comments, and based on a
determination that the Operations Plan
and Agreement are consistent with the
goals of the FMP and applicable law and
are in compliance with the regulations
governing the development and
operation of a sector as specified under
§ 648.87. Details pertaining to the
principal regulations applying to the
Fixed Gear Sector, the process of review
and approval of sectors, and facts
regarding the Fixed Gear Sector’s
submission of the FY 2009 Sector
Agreement are contained in the
proposed rule. An EA entitled ‘‘Georges
Bank Cod Fixed Gear Sector: An
Environmental Assessment,’’ which
analyzes the impacts of the proposed
Fixed Gear Sector operations, was also
prepared and is available to the public
(see ADDRESSES).
On January 16, 2009, NMFS
published a proposed interim action (74
FR 2959) that proposed measures
intended to reduce overfishing on
certain groundfish stocks. The proposed
rule soliciting public comment on the
Sector Agreement for the Fixed Gear
Sector referenced three proposed
interim measures that would impact
operations of the Fixed Gear Sector: A
3,506–mt overall U.S. GB cod TAC; an
expanded Gulf of Maine (GOM)
differential Day-at-Sea (DAS) counting
area that overlaps the GB Cod Hook
Sector Area (Hook Sector Area); and
elimination of the current prohibition
on leasing DAS between sector vessels
and non-sector vessels. On April 13,
2009, NMFS published a temporary
final rule that differs from the proposed
interim rule. This final rule approving
the Fixed Gear Sector’s FY 2009 Sector
Operations Plan incorporates the
changes implemented by the temporary
final rule.
The Fixed Gear Sector was authorized
to fish in FYs 2006, 2007, and 2008,
and, based upon the GB cod landings
history of its members, was allocated
<1.0, 10.7, and 14.0 percent,
respectively, of the annual GB cod
TACs.
The 2009 Fixed Gear Sector
Agreement contains the same elements
and exemptions as the 2008 Fixed Gear
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Sector Agreement and Operations Plan.
The Fixed Gear Sector Agreement will
be overseen by a Board of Directors and
a Sector Manager. The Fixed Gear
Sector’s GB cod TAC is based upon the
number of Fixed Gear Sector members
and their qualifying historical landings
of GB cod. The GB cod TAC is a ‘‘hard’’
TAC, meaning that, once the TAC is
caught, Fixed Gear Sector vessels may
not fish under a NE multispecies 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 Sector’s
allocation in the following year will be
reduced by an amount equivalent to the
overharvest.
The FY 2009 Sector Agreement
contains exemptions from the following
restrictions of the FMP: The GB cod trip
limit; the GOM, GB, and Southern New
England (SNE) limits on the number of
hooks fished; and the GB Seasonal
Closure Area when using hook gear.
Justification for the proposed
exemptions and analysis of the potential
impacts of the Operations Plan are
contained in the EA.
A total of 23 Fixed Gear Sector
members signed the FY 2009 Fixed Gear
Sector Contract. The GB cod TAC
calculation is based upon the historical
cod landings of the participating Fixed
Gear Sector vessels, regardless of gear
used. The allocation percentage is
calculated by dividing the sum of total
landings of GB cod landed by Fixed
Gear Sector members in FY 1996
through 2001 by the sum of the total
accumulated landings of GB cod landed
by all NE multispecies vessels for the
same time period. Based upon the
qualifying landings histories of the
Fixed Gear Sector members, the Fixed
Gear Sector’s share of the overall U.S.
portion of the GB cod TAC is 11.64
percent, or 1,110,689 lb (503.8 mt)
(11.64 percent times the fishery-wide
U.S. portion of the GB cod target TAC
of 9,541,607 lb (4,328 mt)). This is a
larger TAC than the 408–mt TAC
contained in the proposed rule for this
action because the temporary final rule
implements a 4,328–mt U.S. share of the
GB cod target TAC rather than the
3,506–mt target TAC previously
proposed.
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
are required to land fish only in
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designated landing ports and are
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 are 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 must
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 is 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, minus a reserve,
is allocated to each month of the fishing
year. GB cod quota that is not landed
during a given month will be rolled over
into the following month. The harvest
rules do 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.
For each fishing trip, participating
vessels are 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. In addition,
participating vessels are required to call
the Sector Manager prior to leaving port.
All legal-sized cod caught must be
retained, landed and counted against
the Fixed Gear Sector’s aggregate
allocation. Participating vessels may not
fish with or have on board gear other
than jigs, non-automated demersal
longline, handgear, or sink gillnets.
Participating Fixed Gear Sector vessels
fishing with hook gear may use an
unlimited number of hooks in the Sector
Area, as defined under § 648.87, and are
exempt from the GB Seasonal Closure
Area during May.
Comments and Responses
Seven comments were received that
addressed this action. Four comments
were from commercial fishing industry
groups, one from an environmental
organization, one from the New England
Fishery Management Council (Council),
and one from an individual. Six of the
commenters supported approval of the
operations plan and no commenters
opposed it.
Comment 1: The Fixed Gear Sector,
GB Cod Hook Sector (Hook Sector), and
Cape Cod Commercial Hook
Fishermen’s Association (CCCHFA)
each commented that the FY 2009 GB
cod TAC reduction proposed in the
Secretarial interim action will likely
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result in an early end to the fishing year
for the Fixed Gear Sector. All three
recommended allowing the existing
sectors to transfer or lease cod quota in
FY 2009 to mitigate the impact of the
proposed TAC reduction, and suggested
that the proposed interim reduction in
DAS and the proposed SNE Closure
Area would minimize additional
mortality on associated stocks of
concern.
Response: This action allocates a
larger GB cod TAC to the Fixed Gear
Sector than was proposed because the
temporary final rule implements a
4,328–mt U.S. share of the GB cod target
TAC rather than the 3,506–mt target
TAC previously proposed. However,
this is still a reduction from FY 2008.
The proposed FY 2009 Operations Plan
and Agreement did not contain
provisions for quota transfers or leases
between existing sectors and, thus, the
Council and public have not had an
opportunity to comment on such
measures. Further, the EA contains no
analysis of quota transfers or leases.
Because the public has not had
opportunity to consider allowing quota
transfers and leases among the existing
sectors, nor review an analysis of this
measure, quota transfers and leases are
not authorized under this action.
Comment 2: The GB cod TAC
proposed for allocation to the Fixed
Gear Sector was based on the 3,506–mt
U.S. fishery-wide GB cod target TAC
published in the proposed interim
action. In a comment on the proposed
rule, the Council asserted that the GB
cod TAC proposed to be allocated to the
Fixed Gear Sector was incorrectly based
on the estimated TAC for the entire GB
cod stock, including the portion of that
TAC that is caught by Canadian vessels
in Canadian waters (1,173 mt for 2009).
The Council stated that the Fixed Gear
Sector’s GB cod TAC should be based
on 2,333 mt (3,506 mt — 1,173 mt).
Response: The 3,506–mt figure was
correct, and was based on the 4,679–mt
estimated TAC for the entire GB cod
stock (4,679 mt - 1,173 mt) that was
proposed for FY 2009. Accordingly, the
Fixed Gear Sector TAC was correct as
proposed. However, this action allocates
a larger GB cod TAC (503.8 mt) to the
Fixed Gear Sector than was proposed
(408 mt) because the temporary final
rule implements a 4,328–mt U.S. share
of the GB cod target TAC rather than the
3,506–mt target TAC previously
proposed.
Comment 3: The Hook Sector, Fixed
Gear Sector, CCCHFA, Environmental
Defense Fund, Midcoast Fishermen’s
Association and Island Institute; and
one individual supported the approval
of the Fixed Gear Sector’s FY 2009
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Operations Plan and Agreement. These
comments each stated that the
operations of the Fixed Gear Sector have
reduced discards of GB cod, increased
accountability, and improved
profitability for members.
Response: NMFS agrees and has
approved the FY 2009 Operations Plan
and Agreement. A Letter of
Authorization will be issued to each
member of the Fixed Gear Sector
exempting them, conditional upon their
compliance with the Sector Contract,
from the 3,600–hook limit in the GB
Regional Management Area (RMA), the
2,000–hook limit in the GOM and SNE
RMAs, the GB Seasonal Closure Area
when using hook gear, and the GB cod
possession restrictions as specified in
§§ 648.80, 648.81, and 648.86,
respectively.
Classification
NMFS has determined that this final
rule is consistent with the FMP, the
Magnuson-Stevens Fishery
Conservation and Management Act, and
other applicable laws.
Pursuant to 5 U.S.C. 553(d)(1), the
Assistant Administrator for Fisheries,
NOAA, (Assistant Administrator) has
determined that this rule is not subject
to the 30-day delayed effectiveness
provision of the Administrative
Procedure Act because it provides the
basis for NMFS to grant, effective with
the start of the fishing year on May 1,
2009, Fixed Gear Sector members
exemptions from the following
regulations implementing the FMP:
1. GB cod trip limits;
2. GB Seasonal Closure Area when
using hook gear; and
3. GOM, GB, and SNE limit on
number of hooks fished.
Because the Fixed Gear Sector will be
fishing under a hard TAC for GB cod,
effort controls (i.e., exemptions 1–3
above) are not necessary to constrain the
impact of the Fixed Gear Sector on the
GB cod stock. Should the Fixed Gear
Sector’s allocated GB cod TAC be
harvested, participating vessels would
no longer be allowed to fish under a NE
multispecies DAS, possess or land GB
cod or other regulated species managed
under the FMP, or use gear capable of
catching groundfish (unless fishing
under recreational or charter/party
regulations). Fixed Gear Sector members
will be required to fish under their
current NE multispecies DAS allocation
to account for any other regulated NE
multispecies that they may catch while
fishing for GB cod and are restricted to
using hook gear or sink gillnets only.
In order for GB cod to be allocated to
the Fixed Gear Sector and the Fixed
Gear Sector authorized to fish in FY
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17109
2009, the Fixed Gear Sector must submit
an Operations Plan and Sector Contract
to the Regional Administrator for
approval. The Fixed Gear Sector
submitted its FY 2009 Operations Plan
on September 30, 2008, followed by
signed Sector Contracts on October 1,
2008, and an EA on November 14, 2008.
On January 16, 2009, NMFS published
a proposed interim action that proposed
measures intended to reduce overfishing
on certain groundfish stocks, based on
a new benchmark stock assessment
completed in August 2008. Three of the
proposed interim measures would have
impacted operations of the Fixed Gear
Sector: A 3,506–mt overall U.S. GB cod
TAC; an expanded Gulf of Maine
Differential DAS counting area that
overlaps the Hook Sector Area; and
elimination of the current prohibition
on leasing DAS between sector vessels
and non-sector vessels. NMFS also
published a proposed rule soliciting
comment on the proposed Operations
Plan of the Fixed Gear Sector on
February 12, 2009, and specifically
solicited comment on the interaction of
the proposed interim action and the
proposed sector operations. The
comment period on the proposed sector
operations plan ended on February 27,
2009. On April 13, 2009, NMFS
published a temporary final rule that
differs from the proposed interim rule.
The Regional Administrator approved
the FY 2009 Sector Operations Plan,
after review of the public comments and
a determination that the Operations
Plan and Agreement are consistent with
the goals of the FMP and applicable law,
and are in compliance with the
regulations governing the development
and operation of a sector as specified
under § 648.87.
Implementation of the Sector
Operations Plan is meant to mitigate
adverse economic impacts that resulted
from Amendment 13 and FW 42 to the
FMP by granting exemptions to the
Fixed Gear Sector. Establishing an
effective date 30 days after the
publication of this final rule would
prevent the Fixed Gear Sector from
commencing sector operations with the
start of the fishing year on May 1, 2009.
Delaying the implementation beyond
May 1, 2009, would result in an
unnecessary economic loss to the
members of the Fixed Gear Sector
because vessels would be prevented
from fishing in a month when 15
percent of the annual GB cod landings
historically occur, and when the price
for GB cod is highest. During the month
of May, landings of cod by hook gear are
at their highest, and the Fixed Gear
Sector is exempt from both hook limits
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and a seasonal closure of a large portion
of its historic fishing area while using
hook gear. Further, vessels participating
in the Fixed Gear Sector in FY 2008 are
currently operating under the
exemptions above. Delaying
implementation beyond May 1, 2009,
would create a gap in the annual
exemptions for this sector, forcing these
vessels to remove gear currently in the
water at a high expense.
This final rule is exempt from the
procedures of Executive Order (E.O.)
12866 because this action contains no
implementing regulations. This final
rule does not contain policies with
federalism or ‘‘takings’’ implications as
those terms are defined in E.O. 13132
and E.O. 12630, respectively. There are
no Federal rules that duplicate, overlap,
or conflict with this final rule.
NMFS, pursuant to section 604 of the
Regulatory Flexibility Act (RFA),
prepared this FRFA in support of the
2009 GB Cod Fixed Gear Sector
Operations Plan and allocation of GB
cod TAC. The FRFA incorporates the
economic impacts identified in the
Initial Regulatory Flexibility Analysis
(IRFA), which was summarized in the
preamble of the proposed rule and the
corresponding analysis in the EA
prepared for this action. A description
of why this action was considered,
along with the objectives of, and the
legal basis for, this rule are contained in
the preamble to this rule, as well as in
sections 1.0, 2.0, and 3.0 of the EA
prepared for this action, which are not
repeated here.
Summary of the Issues Raised by Public
Comments in Response to the IRFA. A
Summary of the Assessment of the
Agency of Such Issues, and a Statement
of Any Changes Made From the
Proposed Rule as a Result of Such
Comments
No public comments pertaining to the
IRFA or the economic effects of this
action were received.
Description of and Estimate of the
Number of Small Entities to Which the
Proposed Rule Would Apply
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
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15:32 Apr 13, 2009
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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
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.
Description of the Projected Reporting,
Recordkeeping, and Other Compliance
Requirements of the Proposed Action
This rule contains no collection-ofinformation requirement subject to the
Paperwork Reduction Act.
Description of Steps the Agency Has
Taken to Minimize the Economic
Impact on Small Entities Consistent
With the Stated Objectives of Applicable
Statutes
This action allocates a GB cod TAC of
503.8 mt to the Fixed Gear Sector. Once
the GB cod TAC is harvested,
participating vessels will 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). Vessel owners 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 will be
exempt from several restrictions of the
FMP described in the preamble to this
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 and communities. 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
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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 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.
In contrast, under the No Action
Alternative, the Fixed Gear Sector
members would have remained in the
common pool and fished under the
regulations implemented in
Amendment 13 and subsequent actions.
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
E:\FR\FM\14APR1.SGM
14APR1
Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations
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 and
Harwichport communities would occur.
A copy of this analysis is available from
NMFS (see ADDRESSES).
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 Fixed
Gear Sector members that also serves as
a small entity compliance guide (the
guide) was prepared. Copies of this final
rule are available from the Regional
Administrator. The guide and this final
rule will be available upon request.
Authority: 16 U.S.C. 1801 et seq.
Dated: April 8, 2009.
John Oliver,
Deputy Assistant Administrator for
Operations, National Marine Fisheries
Service.
[FR Doc. E9–8508 Filed 4–13–09; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 0810141351–9087–02]
RIN 0648–XO63
Fisheries of the Exclusive Economic
Zone Off Alaska; Directed Fishing With
Trawl Gear by American Fisheries Act
Catcher Processors in Bycatch
Limitation Zone 1 of the Bering Sea
and Aleutian Islands Management Area
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
VerDate Nov<24>2008
15:32 Apr 13, 2009
Jkt 217001
SUMMARY: NMFS is prohibiting directed
fishing with trawl gear, other than
pelagic trawl gear for walleye pollock,
by American Fisheries Act (AFA) trawl
catcher processors in Bycatch
Limitation Zone 1 of the Bering Sea and
Aleutian Islands management area
(BSAI). This action is necessary to
prevent exceeding the sideboard limit of
the 2009 bycatch allowance of red king
crab in Zone 1 specified for AFA trawl
catcher processors in the BSAI.
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), April 7, 2009, though 2400
hrs, A.l.t., December 31, 2009.
FOR FURTHER INFORMATION CONTACT:
Steve Whitney, 907–586–7269.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
BSAI exclusive economic zone
according to the Fishery Management
Plan for Groundfish of the Bering Sea
and Aleutian Islands Management Area
(FMP) prepared by the North Pacific
Fishery Management Council under
authority of the Magnuson–Stevens
Fishery Conservation and Management
Act. Regulations governing fishing by
U.S. vessels in accordance with the FMP
appear at subpart H of 50 CFR part 600
and 50 CFR part 679.
The sideboard limit of the 2009
bycatch allowance of red king crab in
Zone 1 specified for the AFA trawl
catcher processors in the BSAI is 1,231
crab as established by the final 2009 and
2010 harvest specifications for
groundfish in the BSAI (74 FR 7359,
February 17, 2009).
In accordance with § 679.64(a)(2) and
(3), the Administrator, Alaska Region,
NMFS (Regional Administrator), has
determined that the sideboard limit of
red king crab in Zone 1 specified for the
AFA catcher processors in the BSAI will
be caught. Therefore, NMFS is
prohibiting directed fishing with trawl
gear in Zone 1, other than pelagic trawl
gear for walleye pollock, by AFA trawl
catcher processors in the BSAI.
Classification
This action responds to the best
available information recently obtained
from the fishery. The Assistant
Administrator for Fisheries, NOAA,
(AA), finds good cause to waive the
requirement to provide prior notice and
opportunity for public comment
pursuant to the authority set forth at 5
U.S.C. 553(b)(B) as such requirement is
impracticable and contrary to the public
interest. This requirement is
impracticable and contrary to the public
interest as it would prevent NMFS from
responding to the most recent fisheries
data in a timely fashion and would
delay the closure of directed fishing
PO 00000
Frm 00037
Fmt 4700
Sfmt 4700
17111
with trawl gear, other than pelagic trawl
gear for walleye pollock, by AFA trawl
catcher processors in the BSAI. NMFS
was unable to publish a notice
providing time for public comment
because the most recent, relevant data
only became available as of April 6,
2009.
The AA also finds good cause to
waive the 30-day delay in the effective
date of this action under 5 U.S.C.
553(d)(3). This finding is based upon
the reasons provided above for waiver of
prior notice and opportunity for public
comment.
This action is required by § 679.21
and is exempt from review under
Executive Order 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: April 8, 2009.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries,
National Marine Fisheries Service.
[FR Doc. E9–8510 Filed 4–13–09; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 0910091344–9056–02]
RIN 0648–XO32
Fisheries of the Exclusive Economic
Zone Off Alaska; Pollock in the West
Yakutat District of the Gulf of Alaska
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; modification of
a closure.
SUMMARY: NMFS is reopening directed
fishing for pollock in the West Yakutat
District of the Gulf of Alaska (GOA).
This action is necessary to fully use the
2009 total allowable catch (TAC) of
pollock specified for the West Yakutat
District of the GOA.
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), April 8, 2009, through 2400
hrs, A.l.t., December 31, 2009.
Comments must be received at the
following address no later than 4:30
p.m., A.l.t., April 28, 2009.
ADDRESSES: Send comments to Sue
Salveson, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region, NMFS, Attn:
Ellen Sebastian. You may submit
comments, identified by RIN 0648–
XO32, by any one of the following
methods:
E:\FR\FM\14APR1.SGM
14APR1
]]>Agencies
[Federal Register Volume 74, Number 70 (Tuesday, April 14, 2009)]
[Rules and Regulations]
[Pages 17107-17111]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-8508]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 090123054-9591-02 ]
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule implements the Georges Bank (GB) Cod Fixed
Gear Sector (Fixed Gear Sector) Fishing Year (FY) 2009 Operations Plan
and Agreement, approved by the Administrator, Northeast (NE) Region,
NMFS (Regional Administrator), and allocates a hard total allowable
catch (TAC) of GB cod to the Fixed Gear Sector. Framework Adjustment 42
(FW 42) to the NE Multispecies Fishery Management Plan (FMP) authorized
allocation of up to 20 percent of the annual GB cod TAC to the Fixed
Gear Sector. Pursuant to that authorization, the Fixed Gear Sector
submitted an Operations Plan and Sector Contract, entitled ``Georges
Bank Cod Fixed Gear Sector Fishing Year 2009-2010 Operations Plan and
Agreement'' (together referred to as the Sector Agreement), and an
Environmental Assessment (EA), and requested an allocation of GB cod,
consistent with the FMP. This action results in authorization of the
Sector Operations Plan for FY 2009 and allocation of 503.8 mt of GB cod
to the Fixed Gear Sector.
DATES: Effective May 1, 2009, through April 30, 2010.
ADDRESSES: Copies of the Sector Agreement, EA, and the Final Regulatory
Flexibility Analysis (FRFA) are available from the Northeast Regional
Office: Patricia A. Kurkul, Regional Administrator, National Marine
Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. These
documents are also accessible via the Federal eRulemaking Portal:
https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Melissa Vasquez, Fishery Management
Specialist, phone (978) 281-9166, fax
[[Page 17108]]
(978) 281-9135, e-mail Melissa.Vasquez@NOAA.gov.
SUPPLEMENTARY INFORMATION: A proposed rule soliciting public comment on
the Sector Agreement for the Fixed Gear Sector was published in the
Federal Register on February 12, 2009, (74 FR 7029) with public comment
accepted through February 27, 2009. The Regional Administrator approved
the FY 2009 Sector Operations Plan, after review of the public
comments, and based on a determination that the Operations Plan and
Agreement are consistent with the goals of the FMP and applicable law
and are in compliance with the regulations governing the development
and operation of a sector as specified under Sec. 648.87. Details
pertaining to the principal regulations applying to the Fixed Gear
Sector, the process of review and approval of sectors, and facts
regarding the Fixed Gear Sector's submission of the FY 2009 Sector
Agreement are contained in the proposed rule. An EA entitled ``Georges
Bank Cod Fixed Gear Sector: An Environmental Assessment,'' which
analyzes the impacts of the proposed Fixed Gear Sector operations, was
also prepared and is available to the public (see ADDRESSES).
On January 16, 2009, NMFS published a proposed interim action (74
FR 2959) that proposed measures intended to reduce overfishing on
certain groundfish stocks. The proposed rule soliciting public comment
on the Sector Agreement for the Fixed Gear Sector referenced three
proposed interim measures that would impact operations of the Fixed
Gear Sector: A 3,506-mt overall U.S. GB cod TAC; an expanded Gulf of
Maine (GOM) differential Day-at-Sea (DAS) counting area that overlaps
the GB Cod Hook Sector Area (Hook Sector Area); and elimination of the
current prohibition on leasing DAS between sector vessels and non-
sector vessels. On April 13, 2009, NMFS published a temporary final
rule that differs from the proposed interim rule. This final rule
approving the Fixed Gear Sector's FY 2009 Sector Operations Plan
incorporates the changes implemented by the temporary final rule.
The Fixed Gear Sector was authorized to fish in FYs 2006, 2007, and
2008, and, based upon the GB cod landings history of its members, was
allocated <1.0, 10.7, and 14.0 percent, respectively, of the annual GB
cod TACs.
The 2009 Fixed Gear Sector Agreement contains the same elements and
exemptions as the 2008 Fixed Gear Sector Agreement and Operations Plan.
The Fixed Gear Sector Agreement will be overseen by a Board of
Directors and a Sector Manager. The Fixed Gear Sector's GB cod TAC is
based upon the number of Fixed Gear Sector members and their qualifying
historical landings of GB cod. The GB cod TAC is a ``hard'' TAC,
meaning that, once the TAC is caught, Fixed Gear Sector vessels may not
fish under a NE multispecies 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
Sector's allocation in the following year will be reduced by an amount
equivalent to the overharvest.
The FY 2009 Sector Agreement contains exemptions from the
following restrictions of the FMP: The GB cod trip limit; the GOM, GB,
and Southern New England (SNE) limits on the number of hooks fished;
and the GB Seasonal Closure Area when using hook gear. Justification
for the proposed exemptions and analysis of the potential impacts of
the Operations Plan are contained in the EA.
A total of 23 Fixed Gear Sector members signed the FY 2009 Fixed
Gear Sector Contract. The GB cod TAC calculation is based upon the
historical cod landings of the participating Fixed Gear Sector vessels,
regardless of gear used. The allocation percentage is calculated by
dividing the sum of total landings of GB cod landed by Fixed Gear
Sector members in FY 1996 through 2001 by the sum of the total
accumulated landings of GB cod landed by all NE multispecies vessels
for the same time period. Based upon the qualifying landings histories
of the Fixed Gear Sector members, the Fixed Gear Sector's share of the
overall U.S. portion of the GB cod TAC is 11.64 percent, or 1,110,689
lb (503.8 mt) (11.64 percent times the fishery-wide U.S. portion of the
GB cod target TAC of 9,541,607 lb (4,328 mt)). This is a larger TAC
than the 408-mt TAC contained in the proposed rule for this action
because the temporary final rule implements a 4,328-mt U.S. share of
the GB cod target TAC rather than the 3,506-mt target TAC previously
proposed.
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 are required to land
fish only in designated landing ports and are 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 are 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 must 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 is 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, minus a reserve, is allocated to each month of the fishing
year. GB cod quota that is not landed during a given month will be
rolled over into the following month. The harvest rules do 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.
For each fishing trip, participating vessels are 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. In addition, participating vessels are required to call the Sector
Manager prior to leaving port. All legal-sized cod caught must be
retained, landed and counted against the Fixed Gear Sector's aggregate
allocation. Participating vessels may not fish with or have on board
gear other than jigs, non-automated demersal longline, handgear, or
sink gillnets. Participating Fixed Gear Sector vessels fishing with
hook gear may use an unlimited number of hooks in the Sector Area, as
defined under Sec. 648.87, and are exempt from the GB Seasonal Closure
Area during May.
Comments and Responses
Seven comments were received that addressed this action. Four
comments were from commercial fishing industry groups, one from an
environmental organization, one from the New England Fishery Management
Council (Council), and one from an individual. Six of the commenters
supported approval of the operations plan and no commenters opposed it.
Comment 1: The Fixed Gear Sector, GB Cod Hook Sector (Hook Sector),
and Cape Cod Commercial Hook Fishermen's Association (CCCHFA) each
commented that the FY 2009 GB cod TAC reduction proposed in the
Secretarial interim action will likely
[[Page 17109]]
result in an early end to the fishing year for the Fixed Gear Sector.
All three recommended allowing the existing sectors to transfer or
lease cod quota in FY 2009 to mitigate the impact of the proposed TAC
reduction, and suggested that the proposed interim reduction in DAS and
the proposed SNE Closure Area would minimize additional mortality on
associated stocks of concern.
Response: This action allocates a larger GB cod TAC to the Fixed
Gear Sector than was proposed because the temporary final rule
implements a 4,328-mt U.S. share of the GB cod target TAC rather than
the 3,506-mt target TAC previously proposed. However, this is still a
reduction from FY 2008. The proposed FY 2009 Operations Plan and
Agreement did not contain provisions for quota transfers or leases
between existing sectors and, thus, the Council and public have not had
an opportunity to comment on such measures. Further, the EA contains no
analysis of quota transfers or leases. Because the public has not had
opportunity to consider allowing quota transfers and leases among the
existing sectors, nor review an analysis of this measure, quota
transfers and leases are not authorized under this action.
Comment 2: The GB cod TAC proposed for allocation to the Fixed Gear
Sector was based on the 3,506-mt U.S. fishery-wide GB cod target TAC
published in the proposed interim action. In a comment on the proposed
rule, the Council asserted that the GB cod TAC proposed to be allocated
to the Fixed Gear Sector was incorrectly based on the estimated TAC for
the entire GB cod stock, including the portion of that TAC that is
caught by Canadian vessels in Canadian waters (1,173 mt for 2009). The
Council stated that the Fixed Gear Sector's GB cod TAC should be based
on 2,333 mt (3,506 mt -- 1,173 mt).
Response: The 3,506-mt figure was correct, and was based on the
4,679-mt estimated TAC for the entire GB cod stock (4,679 mt - 1,173
mt) that was proposed for FY 2009. Accordingly, the Fixed Gear Sector
TAC was correct as proposed. However, this action allocates a larger GB
cod TAC (503.8 mt) to the Fixed Gear Sector than was proposed (408 mt)
because the temporary final rule implements a 4,328-mt U.S. share of
the GB cod target TAC rather than the 3,506-mt target TAC previously
proposed.
Comment 3: The Hook Sector, Fixed Gear Sector, CCCHFA,
Environmental Defense Fund, Midcoast Fishermen's Association and Island
Institute; and one individual supported the approval of the Fixed Gear
Sector's FY 2009 Operations Plan and Agreement. These comments each
stated that the operations of the Fixed Gear Sector have reduced
discards of GB cod, increased accountability, and improved
profitability for members.
Response: NMFS agrees and has approved the FY 2009 Operations Plan
and Agreement. A Letter of Authorization will be issued to each member
of the Fixed Gear Sector exempting them, conditional upon their
compliance with the Sector Contract, from the 3,600-hook limit in the
GB Regional Management Area (RMA), the 2,000-hook limit in the GOM and
SNE RMAs, the GB Seasonal Closure Area when using hook gear, and the GB
cod possession restrictions as specified in Sec. Sec. 648.80, 648.81,
and 648.86, respectively.
Classification
NMFS has determined that this final rule is consistent with the
FMP, the Magnuson-Stevens Fishery Conservation and Management Act, and
other applicable laws.
Pursuant to 5 U.S.C. 553(d)(1), the Assistant Administrator for
Fisheries, NOAA, (Assistant Administrator) has determined that this
rule is not subject to the 30-day delayed effectiveness provision of
the Administrative Procedure Act because it provides the basis for NMFS
to grant, effective with the start of the fishing year on May 1, 2009,
Fixed Gear Sector members exemptions from the following regulations
implementing the FMP:
1. GB cod trip limits;
2. GB Seasonal Closure Area when using hook gear; and
3. GOM, GB, and SNE limit on number of hooks fished.
Because the Fixed Gear Sector will be fishing under a hard TAC for
GB cod, effort controls (i.e., exemptions 1-3 above) are not necessary
to constrain the impact of the Fixed Gear Sector on the GB cod stock.
Should the Fixed Gear Sector's allocated GB cod TAC be harvested,
participating vessels would no longer be allowed to fish under a NE
multispecies DAS, possess or land GB cod or other regulated species
managed under the FMP, or use gear capable of catching groundfish
(unless fishing under recreational or charter/party regulations). Fixed
Gear Sector members will be required to fish under their current NE
multispecies DAS allocation to account for any other regulated NE
multispecies that they may catch while fishing for GB cod and are
restricted to using hook gear or sink gillnets only.
In order for GB cod to be allocated to the Fixed Gear Sector and
the Fixed Gear Sector authorized to fish in FY 2009, the Fixed Gear
Sector must submit an Operations Plan and Sector Contract to the
Regional Administrator for approval. The Fixed Gear Sector submitted
its FY 2009 Operations Plan on September 30, 2008, followed by signed
Sector Contracts on October 1, 2008, and an EA on November 14, 2008. On
January 16, 2009, NMFS published a proposed interim action that
proposed measures intended to reduce overfishing on certain groundfish
stocks, based on a new benchmark stock assessment completed in August
2008. Three of the proposed interim measures would have impacted
operations of the Fixed Gear Sector: A 3,506-mt overall U.S. GB cod
TAC; an expanded Gulf of Maine Differential DAS counting area that
overlaps the Hook Sector Area; and elimination of the current
prohibition on leasing DAS between sector vessels and non-sector
vessels. NMFS also published a proposed rule soliciting comment on the
proposed Operations Plan of the Fixed Gear Sector on February 12, 2009,
and specifically solicited comment on the interaction of the proposed
interim action and the proposed sector operations. The comment period
on the proposed sector operations plan ended on February 27, 2009. On
April 13, 2009, NMFS published a temporary final rule that differs from
the proposed interim rule. The Regional Administrator approved the FY
2009 Sector Operations Plan, after review of the public comments and a
determination that the Operations Plan and Agreement are consistent
with the goals of the FMP and applicable law, and are in compliance
with the regulations governing the development and operation of a
sector as specified under Sec. 648.87.
Implementation of the Sector Operations Plan is meant to mitigate
adverse economic impacts that resulted from Amendment 13 and FW 42 to
the FMP by granting exemptions to the Fixed Gear Sector. Establishing
an effective date 30 days after the publication of this final rule
would prevent the Fixed Gear Sector from commencing sector operations
with the start of the fishing year on May 1, 2009. Delaying the
implementation beyond May 1, 2009, would result in an unnecessary
economic loss to the members of the Fixed Gear Sector because vessels
would be prevented from fishing in a month when 15 percent of the
annual GB cod landings historically occur, and when the price for GB
cod is highest. During the month of May, landings of cod by hook gear
are at their highest, and the Fixed Gear Sector is exempt from both
hook limits
[[Page 17110]]
and a seasonal closure of a large portion of its historic fishing area
while using hook gear. Further, vessels participating in the Fixed Gear
Sector in FY 2008 are currently operating under the exemptions above.
Delaying implementation beyond May 1, 2009, would create a gap in the
annual exemptions for this sector, forcing these vessels to remove gear
currently in the water at a high expense.
This final rule is exempt from the procedures of Executive Order
(E.O.) 12866 because this action contains no implementing regulations.
This final rule does not contain policies with federalism or
``takings'' implications as those terms are defined in E.O. 13132 and
E.O. 12630, respectively. There are no Federal rules that duplicate,
overlap, or conflict with this final rule.
NMFS, pursuant to section 604 of the Regulatory Flexibility Act
(RFA), prepared this FRFA in support of the 2009 GB Cod Fixed Gear
Sector Operations Plan and allocation of GB cod TAC. The FRFA
incorporates the economic impacts identified in the Initial Regulatory
Flexibility Analysis (IRFA), which was summarized in the preamble of
the proposed rule and the corresponding analysis in the EA prepared for
this action. A description of why this action was considered, along
with the objectives of, and the legal basis for, this rule are
contained in the preamble to this rule, as well as in sections 1.0,
2.0, and 3.0 of the EA prepared for this action, which are not repeated
here.
Summary of the Issues Raised by Public Comments in Response to the
IRFA. A Summary of the Assessment of the Agency of Such Issues, and a
Statement of Any Changes Made From the Proposed Rule as a Result of
Such Comments
No public comments pertaining to the IRFA or the economic effects
of this action were received.
Description of and Estimate of the Number of Small Entities to Which
the Proposed Rule Would Apply
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 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.
Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Action
This rule contains no collection-of-information requirement subject
to the Paperwork Reduction Act.
Description of Steps the Agency Has Taken to Minimize the Economic
Impact on Small Entities Consistent With the Stated Objectives of
Applicable Statutes
This action allocates a GB cod TAC of 503.8 mt to the Fixed Gear
Sector. Once the GB cod TAC is harvested, participating vessels will
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). Vessel owners 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 will
be exempt from several restrictions of the FMP described in the
preamble to this 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 and communities.
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.
In contrast, under the No Action Alternative, the Fixed Gear Sector
members would have remained in the common pool and fished under the
regulations implemented in Amendment 13 and subsequent actions. 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
[[Page 17111]]
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 and Harwichport communities would occur. A
copy of this analysis is available from NMFS (see ADDRESSES).
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 Fixed Gear Sector members that
also serves as a small entity compliance guide (the guide) was
prepared. Copies of this final rule are available from the Regional
Administrator. The guide and this final rule will be available upon
request.
Authority: 16 U.S.C. 1801 et seq.
Dated: April 8, 2009.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
[FR Doc. E9-8508 Filed 4-13-09; 8:45 am]
BILLING CODE 3510-22-S
