Fisheries of the Northeastern United States; Modification to the Gulf of Maine/Georges Bank Herring Midwater Trawl Gear Letter of Authorization, 56562-56568 [E9-26213]

Download as PDF 56562 Federal Register / Vol. 74, No. 210 / Monday, November 2, 2009 / Rules and Regulations HHS/CDC has determined that provisions to amend 42 CFR Part 34 will not have tribal implications. F. Executive Order 12630: Governmental Actions and Interference With Constitutionally Protected Property Rights Under Executive Order 12630, if the contemplated rule would require a Federal taking of private property, then a takings analysis is required. Since the rule does not require a Federal taking of private property, the provisions in the Executive Order are not applicable. G. Executive Order 13132: Federalism Under Executive Order 13132, if the rule would limit or preempt State authorities, then a Federalism analysis is required. The agency must consult with State and local officials to determine whether the rule would have a substantial direct effect on State or local Governments, as well as whether it would either preempt State law or impose a substantial direct cost of compliance on them. HHS/CDC has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. K. Executive Order 12988: Civil Justice Reform HHS/CDC has reviewed this rule under Executive Order 12988, on Civil Justice Reform and determines that this rule meets the standard in the Executive Order. L. Plain Language in Government Writing Under 63 FR 31883 (June 10, 1998), Executive Departments and Agencies are required to use plain language in all proposed and final rules. HHS/CDC did not receive any comments seeking clarity on language used in the NPRM. HHS/CDC has attempted to use plain language in promulgating this Final Rule. List of Subjects in 42 CFR Part 34 Aliens, Health care, Scope of examination, Passports and visas, Public health. ■ For the reasons stated in the preamble, the Centers for Disease Control and Prevention, within the U.S. Department of Health and Human Services, is amending 42 CFR part 34 as follows: PART 34—MEDICAL EXAMINATION OF ALIENS 1. The authority citation for Part 34 continues to read as follows: ■ H. Executive Order 13211: Energy Effects Authority: 42 U.S.C. 252; 8 U.S.C. 1182 and 1222. Executive Order 13211 requires HHS/ CDC to produce a statement of energy effects if the rule is significant or economically significant and likely to have a significant adverse effect on the supply, distribution, or use of energy. HHS/CDC has determined that this rule does not have that effect and that a statement of energy is not required. § 34.2 I. National Technology Transfer and Advancement Act § 34.3 dcolon on DSK2BSOYB1PROD with RULES J. Assessment of Federal Regulations and Policies on Families Title 5 U.S.C.A. 601 (note) requires agencies to assess the impact of a regulatory action to determine whether such an action would affect family wellbeing. HHS/CDC has assessed the impact of this regulation and has determined that it would not negatively affect family well-being. 14:13 Oct 30, 2009 Jkt 220001 Scope of examinations. * This act, 15 U.S.C. 272, requires the adoption of technical standards developed or adopted by voluntary consensus standards bodies in rules promulgated by HHS. No voluntary consensus standards are applicable and feasible with regard to this rule. VerDate Nov<24>2008 [Amended] 2. Amend § 34.2 by removing paragraph (b)(6) and redesignating paragraphs (b)(7) through (10) as paragraphs (6) through (9) respectively. ■ 3. Amend § 34.3 by revising paragraphs (b)(1)(i), (e)(1) introductory text, (e)(2)(iv), (e)(5), and (e)(6) to read as follows: ■ * * * * (b) * * * (1) * * * (i) A general physical examination and medical history, evaluation for tuberculosis, and serologic testing for syphilis. * * * * * (e) * * * (1) As provided in paragraph (e)(2) of this section, a chest x-ray examination and serologic testing for syphilis shall be required as part of the examination of the following: * * * * * (2) * * * (iv) Exceptions. Serologic testing for syphilis shall not be required if the alien is under the age of 15, unless there is PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 reason to suspect infection with syphilis. An alien, regardless of age, in the United States, who applies for adjustment of status to lawful permanent resident shall not be required to have a chest x-ray examination unless their tuberculin skin test, or an equivalent test for showing an immune response to Mycobacterium tuberculosis antigens, is positive. HHS/ CDC may authorize exceptions to the requirement for a tuberculin skin test, an equivalent test for showing an immune response to M. tuberculosis antigens, or chest x-ray examination for good cause, upon application approved by the Director. * * * * * (5) How and where performed. All chest x-ray images used in medical examinations performed under the regulations to this part shall be large enough to encompass the entire chest (approximately 14 x 17 inches; 35.6 x 32.2 cm). (6) Chest x-ray, laboratory, and treatment reports. The chest radiograph reading and serologic test results for syphilis shall be included in the medical notification. When the medical examiner’s conclusions are based on a study of more than one chest x-ray image, the medical notification shall include at least a summary statement of findings of the earlier images, followed by a complete reading of the last image, and dates and details of any laboratory tests and treatment for tuberculosis. * * * * * Dated: October 22, 2009. Kathleen Sebelius, Secretary, Department of Health and Human Services. [FR Doc. E9–26337 Filed 10–30–09; 8:45 am] BILLING CODE 4163–18–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 0907281181–91369–02] RIN 0648–AX93 Fisheries of the Northeastern United States; Modification to the Gulf of Maine/Georges Bank Herring Midwater Trawl Gear Letter of Authorization AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. E:\FR\FM\02NOR1.SGM 02NOR1 dcolon on DSK2BSOYB1PROD with RULES Federal Register / Vol. 74, No. 210 / Monday, November 2, 2009 / Rules and Regulations SUMMARY: NMFS implements modifications to the requirements for midwater trawl vessels issued an All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit that fish in Northeast (NE) multispecies Closed Area I (CA I). When fishing in CA I, eligible midwater trawl vessels will be required to carry a NMFS-approved observer aboard the vessel and to bring the entire catch aboard, unless specific conditions are met, so that it is available to the observer for sampling. These changes to the Gulf of Maine/Georges Bank (GOM/ GB) Herring Midwater Trawl Gear Letter of Authorization (LOA) are effective indefinitely, but may be superseded by monitoring measures currently under development as part of Amendment 5 to the Atlantic Herring Fishery Management Plan (FMP). DATES: Effective November 2, 2009, with the following exception: §§ 648.14(r)(2)(vii) and 648.80(d)(7)(iii)(B), which contain information collection requirements that have not been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). Upon OMB approval of these requirements, the effective date will be announced in the Federal Register. ADDRESSES: Written comments regarding the burden-hour estimates or other aspects of the collection-ofinformation requirements contained in this final rule may be submitted to the Regional Administrator, NMFS Northeast Region, 55 Great Republic Drive, Gloucester, MA 01930 and by email to DavidlRostker@omb.eop.gov, or fax to (202) 395–7285. FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy Analyst, (978) 281–9341, fax (978) 281–9135. SUPPLEMENTARY INFORMATION: The New England Fishery Management Council (Council) voted at its April 8, 2009, Council meeting to request that the NMFS Northeast Regional Administrator modify the GOM/GB Herring Midwater Trawl Gear LOA to require midwater trawl vessels fishing in CA I to have 100–percent observer coverage; be prohibited from slipping codends; and be required to pump all fish aboard the vessel, to allow sampling by the observer. A proposed rule was published on September 4, 2009 (74 FR 45798), and that proposed rule includes detailed information on the background of this action. Comments on the proposed rule were initially accepted through September 21, 2009. A notice published on September 24, 2009 (74 FR 48707), reopened the comment period through VerDate Nov<24>2008 14:13 Oct 30, 2009 Jkt 220001 September 27, 2009. Comments received are summarized and responded to below. Based on public comment received, NMFS is modifying the proposed measures to clarify, as well as to make measures more consistent with, the Council’s April 8, 2009, motion. The Council motion used the term ‘‘slipped codend’’ to refer to the practice of opening the codend of the net and releasing the catch before all of the fish are brought on board the vessel. The proposed rule used this term, with that meaning. It has come to NMFS’s attention that the term ‘‘slipped’’ in this context may suggest to some that the release is made with the intent of hiding the catch from the observer. Therefore, to reflect the fact that catch may be released for a wide range of reasons, and to make the rule clearer, the term ‘‘released’’ has been substituted for the term ‘‘slipped’’ throughout this final rule. After careful consideration of public comment, many of the proposed rule measures have been modified in this final rule to more closely reflect the Council’s request and to reduce negative economic impact on the commercial herring industry, while still achieving the intended goal of collecting better information on bycatch in the midwater trawl fishery. This final rule modifies the proposed measures to: • Allow flexibility to fish outside of CA I (rather than end a trip), should a vessel release a codend due to safety or mechanical reasons. • Limit the prohibition on codend releases to tows made in CA I. • Include an exemption that allows the release of small amounts of fish that may remain in the net after pumping is complete. • Remove the minimum 50–percent spiny dogfish threshold provision from the dogfish dumping exception. • Require vessels that release a codend due to catches of spiny dogfish to leave CA I, consistent with the requirement to leave CA I if a codend is released due to safety or mechanical reasons. • Broaden the mechanical failure exception to include all significant mechanical failures that prohibit pumping the catch. Modifications to the proposed rule measures to allow vessels to continue fishing outside of CA I if they release their codend due to safety or mechanical reasons, and that restrict the prohibition on releasing non-exempt codends to only tows that fish inside CA I, have been made to more closely align this action with the Council’s request. Many of the measures being modified PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 56563 were initially proposed in such a way as to ensure consistency of measures throughout a given fishing trip, and to assist in their enforceability. However, because tracking of potential violations is possible due to the vessel monitoring systems required onboard these vessels, NMFS concurs with many of the commenters that additional flexibility can be allowed. An explicit allowance for the release of fish that remain in the net after completion of pumping operations is made in the final rule to acknowledge that this is an unavoidable situation. Existing regulations require a vessel to assist the observer to view the codend prior to the release, allowing these fish to be documented. NMFS also acknowledges that differences in pumping capacity between vessels would likely make a firm minimum spiny dogfish threshold (as a proportion of the catch) problematic. The NMFS NE Fishery Observer Program (NEFOP), additionally, has expressed concern that this proposed minimum percentage could place the observer in an enforcement role. Based on these concerns, the final rule removes the minimum spiny dogfish threshold from the exception. To provide consistency across the exemptions for releasing catch, and to provide a disincentive to potential abuse, vessels that release a tow in CA I because of spiny dogfish will be required to exit CA I, but can continue to fish outside of CA I on the same trip. Finally, the final rule’s regulatory text pertaining to the mechanical failure exception is broadened to include all significant mechanical failures that prevent pumping the catch, to expand the exception to reasons other than failure of the pump itself. Approved Measures This final rule requires vessels using midwater trawl gear in the directed herring fishery to indicate their intention to fish in CA I when scheduling an observer through the NEFOP. This notification allows NMFS to ensure an observer is deployed on all vessels that intend to fish in CA I with midwater trawl gear for all or any part of their trip. To ensure 100–percent observer coverage, midwater trawl vessels are not permitted to fish in CA I without an observer. Midwater trawl vessels in the directed herring fishery that have been assigned a NMFS-approved at-sea observer and that are fishing in CA I are prohibited, unless specific conditions are met (see below), from releasing fish from the codend of the net, transferring fish to another vessel that is not carrying a NMFS-approved observer, or otherwise E:\FR\FM\02NOR1.SGM 02NOR1 56564 Federal Register / Vol. 74, No. 210 / Monday, November 2, 2009 / Rules and Regulations dcolon on DSK2BSOYB1PROD with RULES discarding fish at sea, unless the fish have first been brought aboard the vessel and made available for sampling and inspection by the observer. NMFS recognizes that there are certain conditions under which fish must be released from the codend without being sampled. Therefore, fish that have not been pumped aboard the vessel may be released if the vessel operator finds that: Pumping the catch could compromise the safety of the vessel; mechanical failure precludes bringing some or all of a catch aboard the vessel; or spiny dogfish have clogged the pump and consequently prevent pumping of the rest of the catch. If a net is released for any of these three reasons, the vessel operator must complete and sign a CA I Midwater Trawl Released Codend Affidavit detailing where, when, and why the net was released as well as a good-faith estimate of both the total weight of fish caught on that tow and the weight of fish released (if the tow had been partially pumped). The completed affidavit form must be submitted to NMFS within 48 hr of the completion of the trip. Following the release of a net for one of the three exemptions specified above, the vessel is required to exit CA I. The vessel may continue to fish, but may not fish in CA I for the remainder of the trip. Comments and Responses A total of 535 comments were received on the proposed rule, from 10 representatives of commercial fishing groups, 1 community organization, 1 recreational fishing group, 2 coalitions of herring interest groups, 1 environmental organization (Conservation Law Foundation (CLF)), 1 state-elected official (MA State Representative Sarah K. Peake), 1 state resource management agency (the State of Maine Department of Marine Resources), 516 individuals, and the U.S. Small Business Administration (SBA) Office of Advocacy. A significant majority of comments (523 out of 535) supported the proposed measures, and many expressed concern that any change could compromise the bycatch information collected. Most of the supporting comments urged quick implementation of these measures to ensure regulations are in place before midwater trawl vessels fish in CA I (generally the month of October). One comment from a U.S. Congressman (Representative William Delahunt, MA) supporting the action as proposed was received after the close of the comment period. Seven commenters expressed concerns outside the scope of this action, including the bycatch of river VerDate Nov<24>2008 14:13 Oct 30, 2009 Jkt 220001 herring and general opposition to trawling of any kind. Observer Coverage and the Scope of the Action Comment 1: One representative of the commercial herring industry (Kelly Drye and Warren LLP) stated that, by requiring an observer for an entire midwater trawl trip, i.e., both inside and outside the boundaries of CA I, and requiring vessels to terminate a trip early if fish are released, the proposed measures exceed the Council’s requested action, as well as NMFS’ authority as specified in the regulations, and represent a significant regulatory action that would preempt the regulatory authority of the Council in its drafting of Amendment 5 to the FMP. Response: The regulations implementing Framework Adjustment 18 (FW 18) to the NE Multispecies FMP (63 FR 7727, February 17, 1998), at § 648.81(a)(2)(iii), give the Regional Administrator conditional authority to ‘‘place restrictions and conditions in the letter of authorization for any or all individual fishing operations or, after consulting with the Council, suspend or prohibit any or all midwater trawl activities in the closed areas.’’ The presentation of recent observer data at the April 8, 2009, Council meeting, and the Council’s subsequent request for increased observer measures, constitute a consultation with the Council. Therefore, the authority to suspend access to CA I to midwater trawl vessels that are not carrying an observer, as specified in the proposed rule and implemented through this final rule, is consistent with the cited authority. Moreover, the Council indicated a general belief that additional information on bycatch in CA I would be beneficial for future revisions to the Atlantic Herring FMP. There is additional, independent authority specified in section 402(a) of the Magnuson-Stevens Act to promulgate regulations to improve the information collection program in the Atlantic herring fishery. This action does not preempt the Council’s efforts in developing Amendment 5 to the FMP, but rather contributes to them. NMFS’ proposal to apply a discard prohibition to the entire midwater trawl trip was intended to collect the most information possible about bycatch in this fishery, and to provide a clear set of rules that would apply consistently throughout the trip. However, based on public comment, and to more closely reflect the Council’s requested action, this final rule is modified such that tows made entirely outside of CA I would not be subject to the more restrictive CA I PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 regulations implemented through this action. This action also eliminates the proposed restriction that vessels must end their trip if they release a net when fishing in CA I, i.e., vessels may fish out the remainder of their trip outside of CA I. Further details about these two modifications to the proposed rule measures can be found in the responses to Comments 4 and 10. Comment 2: Three representatives of the commercial herring industry (Kelly Drye and Warren LLP, Lunds’ Fisheries, Inc., and Northern Pelagic Group LLC (NORPEL)) stated that the proposed measures should be implemented through modifications to the current LOA and not codified in the regulations, a violation of which could entail significant civil liability. Response: All requirements of the LOA, both before and after this final rule, are codified in the regulations. NMFS codifies these requirements to ensure their enforceability. Additionally, as explained in the response to Comment 1, the measures are codified pursuant to NMFS’ authority in section 402(a) of the Magnuson-Stevens Act. Comment 3: Seven representatives of the herring industry (Kelly Drye and Warren LLP, Lund’s Fisheries, NORPEL, Western Sea Fishing, Cape Seafoods, Small Pelagic Group, and Shafmaster Fishing) commented that access to CA I should not be denied to a midwater trawl vessel if an observer is not available. Sixty-three commenters specifically supported the prohibition on fishing in CA I without an observer, as specified in the proposed rule. Response: The NEFOP has committed sufficient funding to provide observers for all CA I herring midwater trawl trips for the 2009 and 2010 fishing years. NMFS intends to continue to provide observer coverage for this program in subsequent years; however, under the Federal budgetary process, such funding cannot be assured at this time. NMFS expects that monitoring provisions currently under development in Amendment 5 to the FMP are likely to supersede these measures. Therefore, it is anticipated, although not guaranteed, that 100–percent observer coverage of herring midwater trawl trips in CA I will be provided without limiting CA I access for any vessels for the foreseeable future. In Amendment 5, the Council could consider other ways to address the potential problems that would arise if observers are not available when requested. Comment 4: Seven representatives of the commercial herring industry commented that the Council’s request to prohibit released codends and to require E:\FR\FM\02NOR1.SGM 02NOR1 dcolon on DSK2BSOYB1PROD with RULES Federal Register / Vol. 74, No. 210 / Monday, November 2, 2009 / Rules and Regulations all fish to be pumped aboard the vessel was specific to vessels fishing inside CA I, and to require these provisions for tows fished entirely outside of CA I would exceed the scope of the Council’s request. In contrast, three commercial fishing organizations (Cape Cod Commercial Fishermen’s Association (CCCHFA), GB Cod Hook Gear Sector, and GB Cod Fixed Gear Sector), one environmental group (CLF), MA State Representative Sarah K. Peake, and eight individuals expressed support for the proposed measure to require vessels to comply with the prohibition on releasing nets and the requirement for all fish to be pumped aboard the vessel for the entire trip, regardless of whether the vessel also fished outside of CA I on that trip. These latter commenters believe that this provision would maximize the amount of bycatch information collected on midwater trawl trips and could insulate the observer from having to determine which tows could be released without an exemption. Response: Since implementation of FW 18 in 1998, herring midwater trawl vessels have been able to operate freely within the management areas of the Atlantic Herring FMP without additional consideration for the boundaries of the NE multispecies closed areas. NMFS acknowledges that the Council’s request for 100–percent observer coverage was specific to midwater trawl vessels fishing in CA I. However, the measures of the proposed rule were designed to allow herring midwater trawl vessels to continue to operate freely throughout the herring management areas by establishing a consistent set of regulations so that vessel operators and observers would not need to be constantly aware of where the vessel was, relative to CA I, in order to know what rules applied. Based on public comment, and to more closely reflect the Council’s requested action, this final rule has been modified such that tows made entirely outside of CA I are subject to the same regulations as any other midwater trawl vessel that did not declare into CA I. NMFS is modifying these provisions also, in part, due to the fact that vessels issued an All Areas and/or an Areas 2 and 3 Limited Access Herring Permit are currently required to use a NMFS-approved Vessel Monitoring System (VMS), and VMS provides NOAA’s Office of Law Enforcement with the ability to better enforce these provisions. Thus, VMS allows for effective enforcement of these measures without any involvement of the observer. Comment 5: One coalition of herring interest groups (Herring Alliance) and VerDate Nov<24>2008 14:13 Oct 30, 2009 Jkt 220001 52 individuals supported applying the proposed measures to midwater trawl vessels fishing in all the NE multispecies closed areas. Response: The Council’s request was specific to CA I. An analysis of the observed bycatch of NE multispecies in the midwater trawl fishery from 2004 through 2008 indicates that CA I was the only closed area where the FW 18 threshold of 1–percent bycatch of regulated species had been reached on the trip level. Furthermore, CA I had more observed bycatch of NE multispecies by number of tows and by pounds of fish than any other closed area. Expanding this action to all of the NE multispecies closed areas could result in greater negative impact on the midwater trawl fishery, while providing limited additional benefits to NFMS in the form of information on bycatch. Therefore, this proposal was not considered. Exemptions from the Prohibition on Released Codends Comment 6: Six representatives of the commercial herring industry, and the SBA Office of Advocacy, commented that some fish inevitably remain in a net at the conclusion of pumping, either because they are too large for the pump grate or because they are floating and cannot be pumped. The commenters argued that, under a strict interpretation of the proposed regulations, release of these fish could constitute a civil violation, with significant fines, through no direct fault of the vessel operator. Response: NMFS acknowledges that a small amount of fish may be unpumpable and remain in a net at the end of pumping operations and should not, therefore, constitute grounds for a violation. Observer protocols include documenting fish that remain in the net before they are released, and existing regulations require vessel operators to assist the observer in this process. Therefore, any loss of bycatch information should be minimal. NMFS has modified this final rule to clarify that the prohibition on releasing fish does not extend to fish that cannot be pumped and that remain in the net at the end of pumping operations. Comment 7: One herring industry representative (Kelly Drye and Warren LLP) commented that the exception for mechanical failure should be expanded, since the fish pump is not the only mechanical system whose failure could prohibit the pumping of some or all of a tow. Response: NMFS acknowledges that the fish pump is not the only gear problem that could prohibit pumping the catch, and has modified this final PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 56565 rule accordingly. A review of observer data between 2005 and 2007 indicates that less than 18 percent of the tows that were partially or fully released were released for generic ‘‘gear problems.’’ Therefore, expanding this exemption to include additional mechanical failures that prohibit pumping the catch would not undermine the intention of this action to maximize the collection of data on bycatch in CA I. Comment 8: Two herring industry representatives requested that short duration tows, or ‘‘test tows,’’ generally lasting less than 1 hr, and used to check the abundance and condition of target species, should also be exempted from the requirements to pump all fish onboard. Response: The proposed rule for this action explained that the intention of this action is to increase the understanding of the potential bycatch of this fishery in CA I and, as such, it is necessary to collect bycatch information on all tows made by midwater trawl vessels in CA I. Therefore, an exemption for test tows would be inconsistent with the intent of this action. Comment 9: Seven representatives of the herring industry commented that the proposed exemption for spiny dogfish (i.e., spiny dogfish constitute at least 50 percent, by weight, of the observed portion of the catch) is unworkable as proposed, and asserted that spiny dogfish cannot be pumped, no matter what percentage of the overall catch they comprise. Response: Observer data clearly show that some spiny dogfish can be successfully pumped from the net. However, NMFS acknowledges that the variation in pumps being used by different vessels and the way that spiny dogfish are arranged at the pump intake could have a dramatic effect on whether a given concentration of spiny dogfish would clog the pump and prevent the pumping of the remainder of the catch. The use of a specific percentage threshold of spiny dogfish could also put undue pressure on the observer. Therefore, the spiny dogfish exemption has been modified to remove the 50– percent threshold and, if spiny dogfish clog the pump intake, the vessel operator is required to take reasonable measures to remove all of the fish that can be pumped from the net prior to releasing the codend. Comment 10: The seven representatives of the herring industry, the State of Maine Department of Marine Resources, and the SBA Office of Advocacy raised concerns that the requirement to end a trip if a net is released for safety or mechanical E:\FR\FM\02NOR1.SGM 02NOR1 dcolon on DSK2BSOYB1PROD with RULES 56566 Federal Register / Vol. 74, No. 210 / Monday, November 2, 2009 / Rules and Regulations reasons could place an undue financial burden on vessels because of the high cost of outfitting a trip. As an alternative consequence for releasing a net, six members of the commercial herring industry suggested that vessels should be required to leave CA I, but allowed to continue fishing. Alternatively, 3 commercial fishing organizations (CCCHFA, GB Cod Hook Gear Sector, and GB Cod Fixed Gear Sector), 2 coalitions of herring interest groups (Herring Alliance, and CHOIR Coalition), 1 community organization (Penobscot East Resource Center), 1 environmental organization (CLF), MA State Representative Sarah K. Peake, U.S. Congressman William Delahunt, and 383 individuals expressed their support for the proposed requirement to end a trip if a net is released for safety or mechanical reasons. Response: The frequency of released nets in the midwater trawl fishery is relatively low. Based on observer data from 2005–2007, only 8.7 percent of tows were fully or partially released, and only 3 percent were released for apparent safety or mechanical reasons. Combined with the relatively few trips into CA I, and the low number of tows made on each trip (three tows per trip, on average), it is expected that roughly one trip per year might be subject to this provision. However, NMFS acknowledges that the proposed requirement to end the trip after releasing a net might have negative economic ramifications for that vessel, without significantly contributing to the understanding of bycatch in this fishery, which is the purpose of this action. Therefore, NMFS has adopted in this final rule the herring industry’s suggested alternative that allows vessels to continue fishing outside of CA I on the same trip. Midwater trawl herring vessels fish in CA I when they have a reasonable expectation of finding a high concentration of herring there. NMFS believes that the loss of access to this productive fishing ground for the remainder of the trip is a sufficient disincentive for vessels to prevent abuse of these exemptions. Comment 11: One coalition of herring interest groups (Herring Alliance), 1 community organization (Penobscot East Resource Center), and 339 individuals requested that the consequence of releasing fish unobserved should be consistent across all three exemptions (vessel safety, mechanical failure, and spiny dogfish) including any requirement to end the trip and return to port. Response: Unlike the exemptions for releasing fish unobserved for vessel safety and mechanical failure, the VerDate Nov<24>2008 14:13 Oct 30, 2009 Jkt 220001 exemption for spiny dogfish, as proposed, contained a relatively high threshold of 50–percent dogfish as a disincentive to vessels that might use this exemption to avoid observer sampling of the catch. As described under the response to Comment 9, the 50–percent trigger was determined to be unworkable and has been removed from this final rule. The loss of access to the CA I fishing ground is a reasonable disincentive for abuse of all three exemptions and provides a consistent response to a released net. Therefore, this final rule incorporates the requirement to leave CA I for the remainder of the trip as a result of releasing the catch before it can be sampled by the observer, regardless of which exemption prompted the release. As detailed in the response to Comment 10, vessels would be able to continue to fish outside of CA I for the remainder of the trip. Certification under the Regulatory Flexibility Act Comment 12: The SBA Office of Advocacy and one representative of the commercial herring industry (Kelly Drye and Warren LLP) questioned NMFS’ determination that the action would not impact a substantial number of small entities. The commenters stated that the information provided in the proposed rule in support of the certification was vague and insufficient. Response: NMFS acknowledges that additional information in the proposed rule would have made this determination clearer to the public. All 46 vessels issued an All Areas and/or an Areas 2 and 3 Limited Access Herring Permit in fishing year 2009 are considered ‘‘small entities’’ and are already subject to a requirement to call the observer program prior to each trip. This action adds a question to that callin requirement prompting a vessel operator to indicate whether or not the vessel intends to fish in CA I on that trip. The increased observer coverage and catch releasing requirements apply only to vessels that indicate they intend to fish in CA I. Over the last 4 yrs, on average, there have been fewer than 15 midwater trawl trips annually that fished in CA I. The number of potentially impacted vessels is further reduced because some vessels take multiple trips into CA I. Therefore, this action applies to fewer than 30 percent of the vessels issued an All Areas and/ or an Areas 2 and 3 Limited Access Herring Permit. From 2004 through 2008, of a total of 2,875 midwater trawl trips, only 59 reported fishing in CA I. Therefore, this action is expected to impact approximately 2 percent of all PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 midwater trawl trips, and thus would not impact a substantial number of small entities. Comment 13: The SBA Office of Advocacy and one representative of the commercial herring industry (Kelly Drye and Warren LLP) raised a concern that small businesses could experience a significant adverse economic impact due to this action because lack of an observer would prohibit access to CA I, resulting in potentially lower catch rates outside of CA I. Response: NMFS has allocated sufficient funds and observer sea days to provide an observer for all trips into CA I during the 2009 and 2010 fishing years, and will consider requesting that such funding be continued. It is expected that catch monitoring provisions currently being developed by the Council as part of Amendment 5 to the FMP will likely supersede the provisions in this action in the relatively near future. Even if Amendment 5’s progress is delayed, NMFS intends to maintain sufficient observer funding to cover all herring midwater trawl trips into CA I. However, the availability of future funding cannot be guaranteed. If, in the future, funding is insufficient to support 100 percent observer coverage for vessels fishing in CA I, then NMFS has the ability to reassess this requirement at that time. Additionally, NMFS notes that the density of herring and the resulting catch rate inside CA I fluctuate seasonally as schools of fish migrate across Georges Bank. Although some herring midwater trawl vessels fish seasonally in CA I, the majority of vessels in the directed herring fishery currently do not fish in this area and seemingly do not suffer significant adverse economic impact as a result of that choice. Given the transient nature of herring, NMFS cannot state with any certainty how the catch rate of herring inside versus outside CA I will differ in any given year. Therefore, NMFS cannot make a prediction of how a vessel with an All Areas and/or an Area 2 and 3 Limited Access Herring Permit may be economically impacted by fishing outside of CA I should there be insufficient observer sea days in the future. Changes from the Proposed Rule NMFS has made several changes to the proposed rule as a result of public comment and to make measures more consistent with the Council’s April 8, 2009, motion. These changes are listed below in the order that they appear in the regulations. E:\FR\FM\02NOR1.SGM 02NOR1 Federal Register / Vol. 74, No. 210 / Monday, November 2, 2009 / Rules and Regulations In § 648.14, paragraph (r)(2)(vii) has been revised to reflect that the prohibition on releasing fish from the codend is limited to tows that occur inside CA I. In § 648.80, paragraph (d)(7)(ii) has been revised to reflect that the prohibition on releasing fish from the codend is limited to tows that occur inside CA I. In § 648.80, paragraph (d)(7)(ii)(B) has been revised to remove specific reference to the fish pump. In § 648.80, paragraph (d)(7)(ii)(C) has been revised to remove the 50–percent spiny dogfish threshold and to add vessel operator requirements. In § 648.80, paragraph (d)(7)(ii)(D) has been added to clarify that fish that cannot be pumped from the net and, thus, remain in the net at the end of pumping operations, may be released. In § 648.80, paragraph (d)(7)(iii)(A) has been revised to reflect that vessels that release a net for safety or mechanical concerns, or due to spiny dogfish in the catch, must exit CA I, but may continue fishing outside of CA I for the remainder of the trip. In § 648.80, paragraph (d)(7)(iii)(B) has been revised to provide additional details of the CA I Midwater Trawl Released Codend Affidavit which will become effective at a later date, pending OMB approval. dcolon on DSK2BSOYB1PROD with RULES Classification Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Atlantic Herring and NE Multispecies FMPs, other provisions of the Magnuson-Stevens Act, and other applicable laws. There is good cause under 5 U.S.C. § 553(d)(3) to waive the 30-day delay in effective date because of the annual seasonal nature of fishing in CA I. The industry has expected this rule, since the Council made its initial request on April 8, 2009. This final rule was delayed due to reopening the comment period for 6 days at the request of the public. Because commercial herring midwater trawl vessels pursue herring in CA I predominantly during the fall, as herring migrate across Georges Bank, a 30-day delay in effective date would increase observer coverage too late to observe the annual pulse of effort in CA I. This would delay the collection of bycatch information for up to a year. The Council has expressed an interested in using data collected under this program in the current development of Amendment 5 to the FMP. VerDate Nov<24>2008 14:13 Oct 30, 2009 Jkt 220001 This final rule has been determined to be not significant for purposes of Executive Order 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the SBA during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. Two comments were received on the factual basis for the certification and are addressed under the Comments and Responses section of this preamble. As a result, a regulatory flexibility analysis was not required and none was prepared. This final rule contains two collection-of-information requirements subject to the Paperwork Reduction Act (PRA). The modification to the observer program notification to include a vessel’s intention to fish in CA I has been added to the information collection for the Herring Vessel Observer Program Notification, which has been approved by OMB under control number 0648–0202. The new collection-of-information requirement pertaining to the CA I Midwater Trawl Released Codend Affidavit has not yet been approved, but OMB approval is expected in the near future. NMFS will publish notification in the Federal Register when this requirement is cleared by OMB and is, therefore, effective. Public reporting burden for the CA I Midwater Trawl Released Codend Affidavit is estimated to average 5 min per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS at the ADDRESSES above, and email to DavidlRostker@omb.eop.gov, or fax to (202) 395–7285. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Reporting and recordkeeping requirements. PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 56567 Dated: October 27, 2009. James W. Balsiger, Acting Assistant Administrator For Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: ■ PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: ■ Authority: 16 U.S.C. 1801 et seq. 2. In § 648.14, add paragraphs (r)(2)(v), (r)(2)(vi), and (r)(2)(vii) to read as follows: ■ § 648.14 Prohibitions. * * * * * (r) * * * (2) * * * (v) Fish with midwater trawl gear in Closed Area I, as specified at § 648.81(a), without a NMFS approved observer onboard, if the vessel holds an All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit. (vi) Release fish from the codend of the net, transfer fish to another vessel that is not carrying a NMFS-approved observer, or otherwise discard fish at sea before bringing the fish aboard and making it available to the observer for sampling, unless subject to one of the exemptions as defined at § 648.80(d)(7)(ii), if fishing any part of a tow inside Closed Area I, as defined at § 648.81(a). (vii) Fail to complete, sign, and submit an affidavit if fish are released pursuant to the exemptions detailed at § 648.80(d)(7)(ii). * * * * * ■ 3. In § 648.80, revise paragraph (d)(5) and add paragraph (d)(7) to read as follows: § 648.80 NE Multispecies regulated mesh areas and restrictions on gear and methods of fishing. * * * * * (d) * * * (5) To fish for herring under this exemption, vessels issued an All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit must provide notice of the following information to NMFS at least 72 hr prior to beginning any trip into these areas for the purposes of observer deployment: Vessel name; contact name for coordination of observer deployment; telephone number for contact; the date, time, and port of departure; and whether the vessel intends to engage in fishing in Closed E:\FR\FM\02NOR1.SGM 02NOR1 56568 Federal Register / Vol. 74, No. 210 / Monday, November 2, 2009 / Rules and Regulations dcolon on DSK2BSOYB1PROD with RULES Area I, as defined in § 648.81(a), at any point in the trip; and * * * * * (7) Fishing in Closed Area I. (i) No vessel issued an All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit may fish in, or possess or land fish from, Closed Area I with pelagic midwater trawl gear unless it has declared its intent to fish in Closed Area I as required by paragraph (d)(5) of this section, and is carrying a NMFSapproved observer. (ii) No vessel issued an All Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access Herring Permit when fishing any part of a midwater trawl tow in Closed Area I may release fish from the codend of the net, transfer fish to another vessel that is not carrying a NMFS-approved observer (e.g., an Atlantic herring at-sea processing vessel or an Atlantic herring carrier vessel), or otherwise discard fish VerDate Nov<24>2008 18:56 Oct 30, 2009 Jkt 220001 at sea, unless the fish has first been brought aboard the vessel and made available for sampling and inspection by the observer, except in the following circumstances: (A) The vessel operator has determined, and the preponderance of available evidence indicates that, there is a compelling safety reason; or (B) A mechanical failure precludes bringing the fish aboard the vessel for inspection; or, (C) After pumping of fish onto the vessel has begun, the vessel operator determines that pumping becomes impossible as a result of spiny dogfish clogging the pump intake. The vessel operator shall take reasonable measures (such as strapping and splitting the net) to remove all fish which can be pumped from the net prior to release; or (D) When there are small amounts of fish that cannot be pumped and remain in the net at the completion of pumping operations. PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 (iii) If fish are released prior to being brought aboard the vessel due to any of the exceptions in paragraphs (d)(7)(ii)(A) through (C) of this section, the vessel operator must: (A) Exit Closed Area I. Once the vessel has exited CA I, it may continue to fish, but may not fish inside Closed Area I for the remainder of that trip. (B) Complete and sign a Closed Area I Midwater Trawl Released Codend Affidavit detailing the vessel name and permit number; the VTR serial number; where, when, and for what reason the catch was released; the total weight of fish caught on that tow; and the weight of fish released (if less than the full tow). A completed affidavit must be submitted to NMFS within 48 hr of the end of the trip. * * * * * [FR Doc. E9–26213 Filed 10–28–09; 11:15 am] BILLING CODE 3510–22–S E:\FR\FM\02NOR1.SGM 02NOR1

Agencies

[Federal Register Volume 74, Number 210 (Monday, November 2, 2009)]
[Rules and Regulations]
[Pages 56562-56568]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26213]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0907281181-91369-02]
RIN 0648-AX93


Fisheries of the Northeastern United States; Modification to the 
Gulf of Maine/Georges Bank Herring Midwater Trawl Gear Letter of 
Authorization

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

[[Page 56563]]

SUMMARY: NMFS implements modifications to the requirements for midwater 
trawl vessels issued an All Areas Limited Access Herring Permit and/or 
an Areas 2 and 3 Limited Access Herring Permit that fish in Northeast 
(NE) multispecies Closed Area I (CA I). When fishing in CA I, eligible 
midwater trawl vessels will be required to carry a NMFS-approved 
observer aboard the vessel and to bring the entire catch aboard, unless 
specific conditions are met, so that it is available to the observer 
for sampling. These changes to the Gulf of Maine/Georges Bank (GOM/GB) 
Herring Midwater Trawl Gear Letter of Authorization (LOA) are effective 
indefinitely, but may be superseded by monitoring measures currently 
under development as part of Amendment 5 to the Atlantic Herring 
Fishery Management Plan (FMP).

DATES: Effective November 2, 2009, with the following exception: 
Sec. Sec.  648.14(r)(2)(vii) and 648.80(d)(7)(iii)(B), which contain 
information collection requirements that have not been approved by the 
Office of Management and Budget (OMB) under the Paperwork Reduction Act 
(PRA). Upon OMB approval of these requirements, the effective date will 
be announced in the Federal Register.

ADDRESSES: Written comments regarding the burden-hour estimates or 
other aspects of the collection-of-information requirements contained 
in this final rule may be submitted to the Regional Administrator, NMFS 
Northeast Region, 55 Great Republic Drive, Gloucester, MA 01930 and by 
e-mail to David_Rostker@omb.eop.gov, or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy Analyst, 
(978) 281-9341, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: The New England Fishery Management Council 
(Council) voted at its April 8, 2009, Council meeting to request that 
the NMFS Northeast Regional Administrator modify the GOM/GB Herring 
Midwater Trawl Gear LOA to require midwater trawl vessels fishing in CA 
I to have 100-percent observer coverage; be prohibited from slipping 
codends; and be required to pump all fish aboard the vessel, to allow 
sampling by the observer.
    A proposed rule was published on September 4, 2009 (74 FR 45798), 
and that proposed rule includes detailed information on the background 
of this action. Comments on the proposed rule were initially accepted 
through September 21, 2009. A notice published on September 24, 2009 
(74 FR 48707), reopened the comment period through September 27, 2009. 
Comments received are summarized and responded to below.
    Based on public comment received, NMFS is modifying the proposed 
measures to clarify, as well as to make measures more consistent with, 
the Council's April 8, 2009, motion. The Council motion used the term 
``slipped codend'' to refer to the practice of opening the codend of 
the net and releasing the catch before all of the fish are brought on 
board the vessel. The proposed rule used this term, with that meaning. 
It has come to NMFS's attention that the term ``slipped'' in this 
context may suggest to some that the release is made with the intent of 
hiding the catch from the observer. Therefore, to reflect the fact that 
catch may be released for a wide range of reasons, and to make the rule 
clearer, the term ``released'' has been substituted for the term 
``slipped'' throughout this final rule.
    After careful consideration of public comment, many of the proposed 
rule measures have been modified in this final rule to more closely 
reflect the Council's request and to reduce negative economic impact on 
the commercial herring industry, while still achieving the intended 
goal of collecting better information on bycatch in the midwater trawl 
fishery. This final rule modifies the proposed measures to:
     Allow flexibility to fish outside of CA I (rather than end 
a trip), should a vessel release a codend due to safety or mechanical 
reasons.
     Limit the prohibition on codend releases to tows made in 
CA I.
     Include an exemption that allows the release of small 
amounts of fish that may remain in the net after pumping is complete.
     Remove the minimum 50-percent spiny dogfish threshold 
provision from the dogfish dumping exception.
     Require vessels that release a codend due to catches of 
spiny dogfish to leave CA I, consistent with the requirement to leave 
CA I if a codend is released due to safety or mechanical reasons.
     Broaden the mechanical failure exception to include all 
significant mechanical failures that prohibit pumping the catch.
    Modifications to the proposed rule measures to allow vessels to 
continue fishing outside of CA I if they release their codend due to 
safety or mechanical reasons, and that restrict the prohibition on 
releasing non-exempt codends to only tows that fish inside CA I, have 
been made to more closely align this action with the Council's request. 
Many of the measures being modified were initially proposed in such a 
way as to ensure consistency of measures throughout a given fishing 
trip, and to assist in their enforceability. However, because tracking 
of potential violations is possible due to the vessel monitoring 
systems required onboard these vessels, NMFS concurs with many of the 
commenters that additional flexibility can be allowed. An explicit 
allowance for the release of fish that remain in the net after 
completion of pumping operations is made in the final rule to 
acknowledge that this is an unavoidable situation. Existing regulations 
require a vessel to assist the observer to view the codend prior to the 
release, allowing these fish to be documented. NMFS also acknowledges 
that differences in pumping capacity between vessels would likely make 
a firm minimum spiny dogfish threshold (as a proportion of the catch) 
problematic. The NMFS NE Fishery Observer Program (NEFOP), 
additionally, has expressed concern that this proposed minimum 
percentage could place the observer in an enforcement role. Based on 
these concerns, the final rule removes the minimum spiny dogfish 
threshold from the exception. To provide consistency across the 
exemptions for releasing catch, and to provide a disincentive to 
potential abuse, vessels that release a tow in CA I because of spiny 
dogfish will be required to exit CA I, but can continue to fish outside 
of CA I on the same trip. Finally, the final rule's regulatory text 
pertaining to the mechanical failure exception is broadened to include 
all significant mechanical failures that prevent pumping the catch, to 
expand the exception to reasons other than failure of the pump itself.

Approved Measures

    This final rule requires vessels using midwater trawl gear in the 
directed herring fishery to indicate their intention to fish in CA I 
when scheduling an observer through the NEFOP. This notification allows 
NMFS to ensure an observer is deployed on all vessels that intend to 
fish in CA I with midwater trawl gear for all or any part of their 
trip. To ensure 100-percent observer coverage, midwater trawl vessels 
are not permitted to fish in CA I without an observer.
    Midwater trawl vessels in the directed herring fishery that have 
been assigned a NMFS-approved at-sea observer and that are fishing in 
CA I are prohibited, unless specific conditions are met (see below), 
from releasing fish from the codend of the net, transferring fish to 
another vessel that is not carrying a NMFS-approved observer, or 
otherwise

[[Page 56564]]

discarding fish at sea, unless the fish have first been brought aboard 
the vessel and made available for sampling and inspection by the 
observer.
    NMFS recognizes that there are certain conditions under which fish 
must be released from the codend without being sampled. Therefore, fish 
that have not been pumped aboard the vessel may be released if the 
vessel operator finds that: Pumping the catch could compromise the 
safety of the vessel; mechanical failure precludes bringing some or all 
of a catch aboard the vessel; or spiny dogfish have clogged the pump 
and consequently prevent pumping of the rest of the catch. If a net is 
released for any of these three reasons, the vessel operator must 
complete and sign a CA I Midwater Trawl Released Codend Affidavit 
detailing where, when, and why the net was released as well as a good-
faith estimate of both the total weight of fish caught on that tow and 
the weight of fish released (if the tow had been partially pumped). The 
completed affidavit form must be submitted to NMFS within 48 hr of the 
completion of the trip.
    Following the release of a net for one of the three exemptions 
specified above, the vessel is required to exit CA I. The vessel may 
continue to fish, but may not fish in CA I for the remainder of the 
trip.

Comments and Responses

    A total of 535 comments were received on the proposed rule, from 10 
representatives of commercial fishing groups, 1 community organization, 
1 recreational fishing group, 2 coalitions of herring interest groups, 
1 environmental organization (Conservation Law Foundation (CLF)), 1 
state-elected official (MA State Representative Sarah K. Peake), 1 
state resource management agency (the State of Maine Department of 
Marine Resources), 516 individuals, and the U.S. Small Business 
Administration (SBA) Office of Advocacy. A significant majority of 
comments (523 out of 535) supported the proposed measures, and many 
expressed concern that any change could compromise the bycatch 
information collected. Most of the supporting comments urged quick 
implementation of these measures to ensure regulations are in place 
before midwater trawl vessels fish in CA I (generally the month of 
October). One comment from a U.S. Congressman (Representative William 
Delahunt, MA) supporting the action as proposed was received after the 
close of the comment period. Seven commenters expressed concerns 
outside the scope of this action, including the bycatch of river 
herring and general opposition to trawling of any kind.

Observer Coverage and the Scope of the Action

    Comment 1: One representative of the commercial herring industry 
(Kelly Drye and Warren LLP) stated that, by requiring an observer for 
an entire midwater trawl trip, i.e., both inside and outside the 
boundaries of CA I, and requiring vessels to terminate a trip early if 
fish are released, the proposed measures exceed the Council's requested 
action, as well as NMFS' authority as specified in the regulations, and 
represent a significant regulatory action that would preempt the 
regulatory authority of the Council in its drafting of Amendment 5 to 
the FMP.
    Response: The regulations implementing Framework Adjustment 18 (FW 
18) to the NE Multispecies FMP (63 FR 7727, February 17, 1998), at 
Sec.  648.81(a)(2)(iii), give the Regional Administrator conditional 
authority to ``place restrictions and conditions in the letter of 
authorization for any or all individual fishing operations or, after 
consulting with the Council, suspend or prohibit any or all midwater 
trawl activities in the closed areas.'' The presentation of recent 
observer data at the April 8, 2009, Council meeting, and the Council's 
subsequent request for increased observer measures, constitute a 
consultation with the Council. Therefore, the authority to suspend 
access to CA I to midwater trawl vessels that are not carrying an 
observer, as specified in the proposed rule and implemented through 
this final rule, is consistent with the cited authority. Moreover, the 
Council indicated a general belief that additional information on 
bycatch in CA I would be beneficial for future revisions to the 
Atlantic Herring FMP. There is additional, independent authority 
specified in section 402(a) of the Magnuson-Stevens Act to promulgate 
regulations to improve the information collection program in the 
Atlantic herring fishery. This action does not preempt the Council's 
efforts in developing Amendment 5 to the FMP, but rather contributes to 
them. NMFS' proposal to apply a discard prohibition to the entire 
midwater trawl trip was intended to collect the most information 
possible about bycatch in this fishery, and to provide a clear set of 
rules that would apply consistently throughout the trip. However, based 
on public comment, and to more closely reflect the Council's requested 
action, this final rule is modified such that tows made entirely 
outside of CA I would not be subject to the more restrictive CA I 
regulations implemented through this action. This action also 
eliminates the proposed restriction that vessels must end their trip if 
they release a net when fishing in CA I, i.e., vessels may fish out the 
remainder of their trip outside of CA I. Further details about these 
two modifications to the proposed rule measures can be found in the 
responses to Comments 4 and 10.
    Comment 2: Three representatives of the commercial herring industry 
(Kelly Drye and Warren LLP, Lunds' Fisheries, Inc., and Northern 
Pelagic Group LLC (NORPEL)) stated that the proposed measures should be 
implemented through modifications to the current LOA and not codified 
in the regulations, a violation of which could entail significant civil 
liability.
    Response: All requirements of the LOA, both before and after this 
final rule, are codified in the regulations. NMFS codifies these 
requirements to ensure their enforceability. Additionally, as explained 
in the response to Comment 1, the measures are codified pursuant to 
NMFS' authority in section 402(a) of the Magnuson-Stevens Act.
    Comment 3: Seven representatives of the herring industry (Kelly 
Drye and Warren LLP, Lund's Fisheries, NORPEL, Western Sea Fishing, 
Cape Seafoods, Small Pelagic Group, and Shafmaster Fishing) commented 
that access to CA I should not be denied to a midwater trawl vessel if 
an observer is not available. Sixty-three commenters specifically 
supported the prohibition on fishing in CA I without an observer, as 
specified in the proposed rule.
    Response: The NEFOP has committed sufficient funding to provide 
observers for all CA I herring midwater trawl trips for the 2009 and 
2010 fishing years. NMFS intends to continue to provide observer 
coverage for this program in subsequent years; however, under the 
Federal budgetary process, such funding cannot be assured at this time. 
NMFS expects that monitoring provisions currently under development in 
Amendment 5 to the FMP are likely to supersede these measures. 
Therefore, it is anticipated, although not guaranteed, that 100-percent 
observer coverage of herring midwater trawl trips in CA I will be 
provided without limiting CA I access for any vessels for the 
foreseeable future. In Amendment 5, the Council could consider other 
ways to address the potential problems that would arise if observers 
are not available when requested.
    Comment 4: Seven representatives of the commercial herring industry 
commented that the Council's request to prohibit released codends and 
to require

[[Page 56565]]

all fish to be pumped aboard the vessel was specific to vessels fishing 
inside CA I, and to require these provisions for tows fished entirely 
outside of CA I would exceed the scope of the Council's request.
    In contrast, three commercial fishing organizations (Cape Cod 
Commercial Fishermen's Association (CCCHFA), GB Cod Hook Gear Sector, 
and GB Cod Fixed Gear Sector), one environmental group (CLF), MA State 
Representative Sarah K. Peake, and eight individuals expressed support 
for the proposed measure to require vessels to comply with the 
prohibition on releasing nets and the requirement for all fish to be 
pumped aboard the vessel for the entire trip, regardless of whether the 
vessel also fished outside of CA I on that trip. These latter 
commenters believe that this provision would maximize the amount of 
bycatch information collected on midwater trawl trips and could 
insulate the observer from having to determine which tows could be 
released without an exemption.
    Response: Since implementation of FW 18 in 1998, herring midwater 
trawl vessels have been able to operate freely within the management 
areas of the Atlantic Herring FMP without additional consideration for 
the boundaries of the NE multispecies closed areas. NMFS acknowledges 
that the Council's request for 100-percent observer coverage was 
specific to midwater trawl vessels fishing in CA I. However, the 
measures of the proposed rule were designed to allow herring midwater 
trawl vessels to continue to operate freely throughout the herring 
management areas by establishing a consistent set of regulations so 
that vessel operators and observers would not need to be constantly 
aware of where the vessel was, relative to CA I, in order to know what 
rules applied. Based on public comment, and to more closely reflect the 
Council's requested action, this final rule has been modified such that 
tows made entirely outside of CA I are subject to the same regulations 
as any other midwater trawl vessel that did not declare into CA I. NMFS 
is modifying these provisions also, in part, due to the fact that 
vessels issued an All Areas and/or an Areas 2 and 3 Limited Access 
Herring Permit are currently required to use a NMFS-approved Vessel 
Monitoring System (VMS), and VMS provides NOAA's Office of Law 
Enforcement with the ability to better enforce these provisions. Thus, 
VMS allows for effective enforcement of these measures without any 
involvement of the observer.
    Comment 5: One coalition of herring interest groups (Herring 
Alliance) and 52 individuals supported applying the proposed measures 
to midwater trawl vessels fishing in all the NE multispecies closed 
areas.
    Response: The Council's request was specific to CA I. An analysis 
of the observed bycatch of NE multispecies in the midwater trawl 
fishery from 2004 through 2008 indicates that CA I was the only closed 
area where the FW 18 threshold of 1-percent bycatch of regulated 
species had been reached on the trip level. Furthermore, CA I had more 
observed bycatch of NE multispecies by number of tows and by pounds of 
fish than any other closed area. Expanding this action to all of the NE 
multispecies closed areas could result in greater negative impact on 
the midwater trawl fishery, while providing limited additional benefits 
to NFMS in the form of information on bycatch. Therefore, this proposal 
was not considered.

Exemptions from the Prohibition on Released Codends

    Comment 6: Six representatives of the commercial herring industry, 
and the SBA Office of Advocacy, commented that some fish inevitably 
remain in a net at the conclusion of pumping, either because they are 
too large for the pump grate or because they are floating and cannot be 
pumped. The commenters argued that, under a strict interpretation of 
the proposed regulations, release of these fish could constitute a 
civil violation, with significant fines, through no direct fault of the 
vessel operator.
    Response: NMFS acknowledges that a small amount of fish may be 
unpumpable and remain in a net at the end of pumping operations and 
should not, therefore, constitute grounds for a violation. Observer 
protocols include documenting fish that remain in the net before they 
are released, and existing regulations require vessel operators to 
assist the observer in this process. Therefore, any loss of bycatch 
information should be minimal. NMFS has modified this final rule to 
clarify that the prohibition on releasing fish does not extend to fish 
that cannot be pumped and that remain in the net at the end of pumping 
operations.
    Comment 7: One herring industry representative (Kelly Drye and 
Warren LLP) commented that the exception for mechanical failure should 
be expanded, since the fish pump is not the only mechanical system 
whose failure could prohibit the pumping of some or all of a tow.
    Response: NMFS acknowledges that the fish pump is not the only gear 
problem that could prohibit pumping the catch, and has modified this 
final rule accordingly. A review of observer data between 2005 and 2007 
indicates that less than 18 percent of the tows that were partially or 
fully released were released for generic ``gear problems.'' Therefore, 
expanding this exemption to include additional mechanical failures that 
prohibit pumping the catch would not undermine the intention of this 
action to maximize the collection of data on bycatch in CA I.
    Comment 8: Two herring industry representatives requested that 
short duration tows, or ``test tows,'' generally lasting less than 1 
hr, and used to check the abundance and condition of target species, 
should also be exempted from the requirements to pump all fish onboard.
    Response: The proposed rule for this action explained that the 
intention of this action is to increase the understanding of the 
potential bycatch of this fishery in CA I and, as such, it is necessary 
to collect bycatch information on all tows made by midwater trawl 
vessels in CA I. Therefore, an exemption for test tows would be 
inconsistent with the intent of this action.
    Comment 9: Seven representatives of the herring industry commented 
that the proposed exemption for spiny dogfish (i.e., spiny dogfish 
constitute at least 50 percent, by weight, of the observed portion of 
the catch) is unworkable as proposed, and asserted that spiny dogfish 
cannot be pumped, no matter what percentage of the overall catch they 
comprise.
    Response: Observer data clearly show that some spiny dogfish can be 
successfully pumped from the net. However, NMFS acknowledges that the 
variation in pumps being used by different vessels and the way that 
spiny dogfish are arranged at the pump intake could have a dramatic 
effect on whether a given concentration of spiny dogfish would clog the 
pump and prevent the pumping of the remainder of the catch. The use of 
a specific percentage threshold of spiny dogfish could also put undue 
pressure on the observer. Therefore, the spiny dogfish exemption has 
been modified to remove the 50-percent threshold and, if spiny dogfish 
clog the pump intake, the vessel operator is required to take 
reasonable measures to remove all of the fish that can be pumped from 
the net prior to releasing the codend.
    Comment 10: The seven representatives of the herring industry, the 
State of Maine Department of Marine Resources, and the SBA Office of 
Advocacy raised concerns that the requirement to end a trip if a net is 
released for safety or mechanical

[[Page 56566]]

reasons could place an undue financial burden on vessels because of the 
high cost of outfitting a trip. As an alternative consequence for 
releasing a net, six members of the commercial herring industry 
suggested that vessels should be required to leave CA I, but allowed to 
continue fishing.
    Alternatively, 3 commercial fishing organizations (CCCHFA, GB Cod 
Hook Gear Sector, and GB Cod Fixed Gear Sector), 2 coalitions of 
herring interest groups (Herring Alliance, and CHOIR Coalition), 1 
community organization (Penobscot East Resource Center), 1 
environmental organization (CLF), MA State Representative Sarah K. 
Peake, U.S. Congressman William Delahunt, and 383 individuals expressed 
their support for the proposed requirement to end a trip if a net is 
released for safety or mechanical reasons.
    Response: The frequency of released nets in the midwater trawl 
fishery is relatively low. Based on observer data from 2005-2007, only 
8.7 percent of tows were fully or partially released, and only 3 
percent were released for apparent safety or mechanical reasons. 
Combined with the relatively few trips into CA I, and the low number of 
tows made on each trip (three tows per trip, on average), it is 
expected that roughly one trip per year might be subject to this 
provision. However, NMFS acknowledges that the proposed requirement to 
end the trip after releasing a net might have negative economic 
ramifications for that vessel, without significantly contributing to 
the understanding of bycatch in this fishery, which is the purpose of 
this action. Therefore, NMFS has adopted in this final rule the herring 
industry's suggested alternative that allows vessels to continue 
fishing outside of CA I on the same trip. Midwater trawl herring 
vessels fish in CA I when they have a reasonable expectation of finding 
a high concentration of herring there. NMFS believes that the loss of 
access to this productive fishing ground for the remainder of the trip 
is a sufficient disincentive for vessels to prevent abuse of these 
exemptions.
    Comment 11: One coalition of herring interest groups (Herring 
Alliance), 1 community organization (Penobscot East Resource Center), 
and 339 individuals requested that the consequence of releasing fish 
unobserved should be consistent across all three exemptions (vessel 
safety, mechanical failure, and spiny dogfish) including any 
requirement to end the trip and return to port.
    Response: Unlike the exemptions for releasing fish unobserved for 
vessel safety and mechanical failure, the exemption for spiny dogfish, 
as proposed, contained a relatively high threshold of 50-percent 
dogfish as a disincentive to vessels that might use this exemption to 
avoid observer sampling of the catch. As described under the response 
to Comment 9, the 50-percent trigger was determined to be unworkable 
and has been removed from this final rule. The loss of access to the CA 
I fishing ground is a reasonable disincentive for abuse of all three 
exemptions and provides a consistent response to a released net. 
Therefore, this final rule incorporates the requirement to leave CA I 
for the remainder of the trip as a result of releasing the catch before 
it can be sampled by the observer, regardless of which exemption 
prompted the release. As detailed in the response to Comment 10, 
vessels would be able to continue to fish outside of CA I for the 
remainder of the trip.

Certification under the Regulatory Flexibility Act

    Comment 12: The SBA Office of Advocacy and one representative of 
the commercial herring industry (Kelly Drye and Warren LLP) questioned 
NMFS' determination that the action would not impact a substantial 
number of small entities. The commenters stated that the information 
provided in the proposed rule in support of the certification was vague 
and insufficient.
    Response: NMFS acknowledges that additional information in the 
proposed rule would have made this determination clearer to the public. 
All 46 vessels issued an All Areas and/or an Areas 2 and 3 Limited 
Access Herring Permit in fishing year 2009 are considered ``small 
entities'' and are already subject to a requirement to call the 
observer program prior to each trip. This action adds a question to 
that call-in requirement prompting a vessel operator to indicate 
whether or not the vessel intends to fish in CA I on that trip. The 
increased observer coverage and catch releasing requirements apply only 
to vessels that indicate they intend to fish in CA I. Over the last 4 
yrs, on average, there have been fewer than 15 midwater trawl trips 
annually that fished in CA I. The number of potentially impacted 
vessels is further reduced because some vessels take multiple trips 
into CA I. Therefore, this action applies to fewer than 30 percent of 
the vessels issued an All Areas and/or an Areas 2 and 3 Limited Access 
Herring Permit. From 2004 through 2008, of a total of 2,875 midwater 
trawl trips, only 59 reported fishing in CA I. Therefore, this action 
is expected to impact approximately 2 percent of all midwater trawl 
trips, and thus would not impact a substantial number of small 
entities.
    Comment 13: The SBA Office of Advocacy and one representative of 
the commercial herring industry (Kelly Drye and Warren LLP) raised a 
concern that small businesses could experience a significant adverse 
economic impact due to this action because lack of an observer would 
prohibit access to CA I, resulting in potentially lower catch rates 
outside of CA I.
    Response: NMFS has allocated sufficient funds and observer sea days 
to provide an observer for all trips into CA I during the 2009 and 2010 
fishing years, and will consider requesting that such funding be 
continued. It is expected that catch monitoring provisions currently 
being developed by the Council as part of Amendment 5 to the FMP will 
likely supersede the provisions in this action in the relatively near 
future. Even if Amendment 5's progress is delayed, NMFS intends to 
maintain sufficient observer funding to cover all herring midwater 
trawl trips into CA I. However, the availability of future funding 
cannot be guaranteed. If, in the future, funding is insufficient to 
support 100 percent observer coverage for vessels fishing in CA I, then 
NMFS has the ability to reassess this requirement at that time.
    Additionally, NMFS notes that the density of herring and the 
resulting catch rate inside CA I fluctuate seasonally as schools of 
fish migrate across Georges Bank. Although some herring midwater trawl 
vessels fish seasonally in CA I, the majority of vessels in the 
directed herring fishery currently do not fish in this area and 
seemingly do not suffer significant adverse economic impact as a result 
of that choice. Given the transient nature of herring, NMFS cannot 
state with any certainty how the catch rate of herring inside versus 
outside CA I will differ in any given year. Therefore, NMFS cannot make 
a prediction of how a vessel with an All Areas and/or an Area 2 and 3 
Limited Access Herring Permit may be economically impacted by fishing 
outside of CA I should there be insufficient observer sea days in the 
future.

Changes from the Proposed Rule

    NMFS has made several changes to the proposed rule as a result of 
public comment and to make measures more consistent with the Council's 
April 8, 2009, motion. These changes are listed below in the order that 
they appear in the regulations.

[[Page 56567]]

    In Sec.  648.14, paragraph (r)(2)(vii) has been revised to reflect 
that the prohibition on releasing fish from the codend is limited to 
tows that occur inside CA I.
    In Sec.  648.80, paragraph (d)(7)(ii) has been revised to reflect 
that the prohibition on releasing fish from the codend is limited to 
tows that occur inside CA I.
    In Sec.  648.80, paragraph (d)(7)(ii)(B) has been revised to remove 
specific reference to the fish pump.
    In Sec.  648.80, paragraph (d)(7)(ii)(C) has been revised to remove 
the 50-percent spiny dogfish threshold and to add vessel operator 
requirements.
    In Sec.  648.80, paragraph (d)(7)(ii)(D) has been added to clarify 
that fish that cannot be pumped from the net and, thus, remain in the 
net at the end of pumping operations, may be released.
    In Sec.  648.80, paragraph (d)(7)(iii)(A) has been revised to 
reflect that vessels that release a net for safety or mechanical 
concerns, or due to spiny dogfish in the catch, must exit CA I, but may 
continue fishing outside of CA I for the remainder of the trip.
    In Sec.  648.80, paragraph (d)(7)(iii)(B) has been revised to 
provide additional details of the CA I Midwater Trawl Released Codend 
Affidavit which will become effective at a later date, pending OMB 
approval.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this final rule is 
consistent with the Atlantic Herring and NE Multispecies FMPs, other 
provisions of the Magnuson-Stevens Act, and other applicable laws.
    There is good cause under 5 U.S.C. Sec.  553(d)(3) to waive the 30-
day delay in effective date because of the annual seasonal nature of 
fishing in CA I. The industry has expected this rule, since the Council 
made its initial request on April 8, 2009. This final rule was delayed 
due to reopening the comment period for 6 days at the request of the 
public. Because commercial herring midwater trawl vessels pursue 
herring in CA I predominantly during the fall, as herring migrate 
across Georges Bank, a 30-day delay in effective date would increase 
observer coverage too late to observe the annual pulse of effort in CA 
I. This would delay the collection of bycatch information for up to a 
year. The Council has expressed an interested in using data collected 
under this program in the current development of Amendment 5 to the 
FMP.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the SBA during the 
proposed rule stage that this action would not have a significant 
economic impact on a substantial number of small entities. Two comments 
were received on the factual basis for the certification and are 
addressed under the Comments and Responses section of this preamble. As 
a result, a regulatory flexibility analysis was not required and none 
was prepared.
    This final rule contains two collection-of-information requirements 
subject to the Paperwork Reduction Act (PRA). The modification to the 
observer program notification to include a vessel's intention to fish 
in CA I has been added to the information collection for the Herring 
Vessel Observer Program Notification, which has been approved by OMB 
under control number 0648-0202. The new collection-of-information 
requirement pertaining to the CA I Midwater Trawl Released Codend 
Affidavit has not yet been approved, but OMB approval is expected in 
the near future. NMFS will publish notification in the Federal Register 
when this requirement is cleared by OMB and is, therefore, effective. 
Public reporting burden for the CA I Midwater Trawl Released Codend 
Affidavit is estimated to average 5 min per response, including the 
time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information.
    Send comments regarding these burden estimates or any other aspect 
of this data collection, including suggestions for reducing the burden, 
to NMFS at the ADDRESSES above, and e-mail to David_Rostker@omb.eop.gov, or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: October 27, 2009.
James W. Balsiger,
Acting Assistant Administrator For Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.

0
2. In Sec.  648.14, add paragraphs (r)(2)(v), (r)(2)(vi), and 
(r)(2)(vii) to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (r) * * *
    (2) * * *
    (v) Fish with midwater trawl gear in Closed Area I, as specified at 
Sec.  648.81(a), without a NMFS approved observer onboard, if the 
vessel holds an All Areas Limited Access Herring Permit and/or an Areas 
2 and 3 Limited Access Herring Permit.
    (vi) Release fish from the codend of the net, transfer fish to 
another vessel that is not carrying a NMFS-approved observer, or 
otherwise discard fish at sea before bringing the fish aboard and 
making it available to the observer for sampling, unless subject to one 
of the exemptions as defined at Sec.  648.80(d)(7)(ii), if fishing any 
part of a tow inside Closed Area I, as defined at Sec.  648.81(a).
    (vii) Fail to complete, sign, and submit an affidavit if fish are 
released pursuant to the exemptions detailed at Sec.  648.80(d)(7)(ii).
* * * * *

0
3. In Sec.  648.80, revise paragraph (d)(5) and add paragraph (d)(7) to 
read as follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

* * * * *
    (d) * * *
    (5) To fish for herring under this exemption, vessels issued an All 
Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited 
Access Herring Permit must provide notice of the following information 
to NMFS at least 72 hr prior to beginning any trip into these areas for 
the purposes of observer deployment: Vessel name; contact name for 
coordination of observer deployment; telephone number for contact; the 
date, time, and port of departure; and whether the vessel intends to 
engage in fishing in Closed

[[Page 56568]]

Area I, as defined in Sec.  648.81(a), at any point in the trip; and
* * * * *
    (7) Fishing in Closed Area I. (i) No vessel issued an All Areas 
Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access 
Herring Permit may fish in, or possess or land fish from, Closed Area I 
with pelagic midwater trawl gear unless it has declared its intent to 
fish in Closed Area I as required by paragraph (d)(5) of this section, 
and is carrying a NMFS-approved observer.
    (ii) No vessel issued an All Areas Limited Access Herring Permit 
and/or an Areas 2 and 3 Limited Access Herring Permit when fishing any 
part of a midwater trawl tow in Closed Area I may release fish from the 
codend of the net, transfer fish to another vessel that is not carrying 
a NMFS-approved observer (e.g., an Atlantic herring at-sea processing 
vessel or an Atlantic herring carrier vessel), or otherwise discard 
fish at sea, unless the fish has first been brought aboard the vessel 
and made available for sampling and inspection by the observer, except 
in the following circumstances:
    (A) The vessel operator has determined, and the preponderance of 
available evidence indicates that, there is a compelling safety reason; 
or
    (B) A mechanical failure precludes bringing the fish aboard the 
vessel for inspection; or,
    (C) After pumping of fish onto the vessel has begun, the vessel 
operator determines that pumping becomes impossible as a result of 
spiny dogfish clogging the pump intake. The vessel operator shall take 
reasonable measures (such as strapping and splitting the net) to remove 
all fish which can be pumped from the net prior to release; or
    (D) When there are small amounts of fish that cannot be pumped and 
remain in the net at the completion of pumping operations.
    (iii) If fish are released prior to being brought aboard the vessel 
due to any of the exceptions in paragraphs (d)(7)(ii)(A) through (C) of 
this section, the vessel operator must:
    (A) Exit Closed Area I. Once the vessel has exited CA I, it may 
continue to fish, but may not fish inside Closed Area I for the 
remainder of that trip.
    (B) Complete and sign a Closed Area I Midwater Trawl Released 
Codend Affidavit detailing the vessel name and permit number; the VTR 
serial number; where, when, and for what reason the catch was released; 
the total weight of fish caught on that tow; and the weight of fish 
released (if less than the full tow). A completed affidavit must be 
submitted to NMFS within 48 hr of the end of the trip.
* * * * *
[FR Doc. E9-26213 Filed 10-28-09; 11:15 am]
BILLING CODE 3510-22-S