Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; 2010 Sector Operations Plans and Contracts, and Allocation of Northeast Multispecies Annual Catch Entitlements, 18113-18132 [2010-7236]
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Federal Register / Vol. 75, No. 68 / Friday, April 9, 2010 / Rules and Regulations
port-to-port by the vessel that harvested
such Dissostichus species, except for
Dissostichus species harvested during
fishing trips that began prior to
September 24, 2007.
*
*
*
*
*
■ 7. In § 300.116 the heading is revised
to read as follows:
§ 300.116 Requirements for a vessel
monitoring system for U.S. vessels.
*
*
*
*
*
8. In § 300.117 paragraph (bb)(9) is
revised and paragraphs (gg) and (hh) are
added to read as follows:
■
§ 300.117
Prohibitions.
*
*
*
*
*
(bb)* * *
(9) Fail to use real-time C-VMS portto-port on board U.S. vessels harvesting
AMLR in the Convention Area.
*
*
*
*
*
(gg) Harvest any AMLR in Convention
waters without a harvesting permit
required by this subpart.
(hh) Ship, transport, offer for sale,
sell, purchase, import, export, re-export
or have custody, control, or possession
of, any frozen Dissostichus species
without verifiable documentation of the
use of real-time C-VMS port-to-port by
the vessel that harvested such
Dissostichus species unless the
Dissostichus species was harvested
during a fishing trip that began prior to
September 24, 2007.
[FR Doc. 2010–8134 Filed 4–8–10; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 0912081429–0114–02]
RIN 0648–XS55
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Magnuson-Stevens Act Provisions;
Fisheries of the Northeastern United
States; Northeast Multispecies
Fishery; 2010 Sector Operations Plans
and Contracts, and Allocation of
Northeast Multispecies Annual Catch
Entitlements
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
SUMMARY: This final rule implements 17
sector operations plans and contracts for
fishing year (FY) 2010. In order to be
considered for approval on a parallel
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17:01 Apr 08, 2010
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track with Amendment 16 to the
Northeast (NE) Multispecies Fishery
Management Plan (FMP),
representatives from 17 sectors
submitted operations plans and sector
contracts, and requested an allocation of
stocks regulated under the FMP for FY
2010. NMFS received sector operations
plans and contracts from the Northeast
Fishery Sectors (NFS) II through XIII,
the Sustainable Harvest Sector (SHS),
the Tri-State Sector (TSS), the Northeast
Coastal Communities Sector (NCCS), the
Georges Bank Cod Fixed Gear Sector
(FGS), and the Port Clyde Community
Groundfish Sector (PCCGS).
Following approval of the
Amendment 16 sector measures and
provisions, the Administrator, NE
Region, NMFS (Regional Administrator)
has partially approved the operations
plans and contracts, and allocated an
annual catch entitlement (ACE) of
certain NE multispecies stocks to the
NFS II–XIII, the FGS, the SHS, the TSS,
the PCCGS, and the NCCS.
DATES: Effective May 1, 2010 through
April 30, 2011.
ADDRESSES: Copies of each sector’s final
operations plan, contract, and
environmental assessment (EA), and the
Final Regulatory Flexibility Analysis
(FRFA) are available from the NMFS
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:
William Whitmore, Sector Policy
Analyst, phone (978) 281–9182, fax
(978) 281–9135.
SUPPLEMENTARY INFORMATION: A
proposed rule soliciting public
comment on 17 sector operations plans
and contracts was published in the
Federal Register on December 22, 2009
(74 FR 68015), with public comments
accepted through January 21, 2010.
After review of the public comments,
NMFS has partially approved the 17
sector operations plans and contracts,
determining the operations plans to be
consistent with the goals of the FMP, as
described in Amendment 16 and other
applicable laws, and in compliance with
the proposed measures that govern the
development and operation of a sector
as specified in Section 4.2.3 of
Amendment 16.
Background
While the Amendment 13 final rule
(69 FR 22906, April 27, 2004)
implemented the Georges Bank (GB)
Cod Hook Sector in 2004, and the
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18113
Framework Adjustment (FW) 42 final
rule (71 FR 62156, October 23, 2006)
implemented the FGS in 2006,
Amendment 16 revises and expands the
rules for these two existing sectors and
authorizes an additional 17 new sectors,
including the NFS I through XIII, the
SHS, the TSS, the NCCS, and the
PCCGS. Managers of two (2) of the 19
sectors authorized under Amendment
16 did not submit an operations plan for
FY 2010.
Three separate actions associated with
Amendment 16 are applicable to NE
multispecies permit holders for FY
2010: A proposed rule that contains
implementing regulations for the
partially approved Amendment 16 (74
FR 69382, December 31, 2009) includes
rebuilding programs for NE multispecies
stocks newly classified as being
overfished and subject to overfishing;
revisions to existing management
measures necessary to end overfishing,
rebuild overfished stocks, and mitigate
adverse economic impacts of increased
effort controls; and significant revisions
to existing sector management
measures. In accordance with
Amendment 16, a proposed rule specific
to sectors published on December 22,
2009, (74 FR 68015) and discussed
authorization of 17 sector operations
plans and contracts for FY 2010. This
final rule implements the approved
operations plans. Also in accordance
with Amendment 16, a third proposed
rule for FW 44 published on February
1, 2010 (75 FR 5016), which proposed
specifications of catch levels for FY
2010–2012, in accordance with the
process specified in Amendment 16,
and detailed additional management
measures to augment Amendment 16.
Thus, the final rules for Amendment
16, sector operations, and FW 44 are
closely related, and each rule relies on
the other two. It is necessary to employ
all three rules to implement
Amendment 16 as intended by the New
England Fishery Management Council
(Council). While Amendment 16
implements management measures and
processes for the FMP, FW 44 specifies
catch levels according to the policies
and procedures in Amendment 16, and
this sector operations rule authorizes
the operation of sectors. For example,
Amendment 16 must be implemented
for the 17 new sectors to be authorized.
FW 44 specifies overfishing levels,
acceptable biological catches, annual
catch limits (ACLs) and allocates catch
among components of the fishery,
including the division of the catch
between sector and common pool
vessels according to the Amendment 16
ACL specification process. Final rules
for the three actions, if all are approved,
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Federal Register / Vol. 75, No. 68 / Friday, April 9, 2010 / Rules and Regulations
are intended to be published nearly
simultaneously in order to become
effective concurrently on May 1, 2010.
Therefore, NMFS suggests that
interested readers review all three rules
in order to fully understand the
measures being implemented pursuant
to Amendment 16 and its related
rulemakings.
Permit owners that have indicated
their intent to participate in one of the
17 approved sectors account for 812 of
the 1,477 eligible NE multispecies
permit holders, representing
approximately 98 percent of the
historical commercial NE multispecies
catch from the qualifying period. Table
1 (below) includes permit owners who
joined a sector as of January 22, 2010.
These permit owners have until April
30, 2010, to withdraw from a sector and
fish in the common pool for FY 2010.
This final rule responds to public
comments on the proposed rule and
implements the approved additional
regulation exemptions that were
requested by the individual sectors.
Amendment 16 defines a sector as ‘‘[a]
group of persons (three or more persons,
none of whom have an ownership
interest in the other two persons in the
sector) holding limited access vessel
permits who have voluntarily entered
into a contract and agree to certain
fishing restrictions for a specified period
of time, and which has been granted a
TAC(s) [sic] in order to achieve
objectives consistent with applicable
FMP goals and objectives.’’ A sector’s
total allowable catch (TAC) is referred to
as an ACE. Regional Administrator
approval is required in order for the
sectors to be authorized to fish and to
be allocated an ACE for most stocks of
regulated NE multispecies during each
FY. Each individual sector’s ACE for a
particular stock represents a share of
that stock’s ACL available to
commercial NE multispecies vessels,
based upon the potential sector
contributions (PSC) of permits
participating in that sector for that FY.
Sectors are self-selecting, meaning each
sector maintains the ability to choose its
members. Sectors may pool harvesting
resources and consolidate operations to
fewer vessels, if they desire. Table 2
shows the ACE percentages each sector
will receive according to the permits
enrolled as of January 22, 2010, while
Tables 3a and 3b provide the
corresponding ACE amounts each sector
will be allocated.
Amendment 16 will allow sectors to
trade ACE for use during that FY.
Although some of the assigned ACEs to
one sector are as high as 50 percent, and
technically, a sector could acquire an
unlimited amount of ACE from another
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17:01 Apr 08, 2010
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sector by transferring ACE, analysis by
the Groundfish Plan Development Team
(PDT) during the development of
Amendment 16 suggested that it is
unlikely that any one sector could
accumulate a sufficient share of a stock
to exercise market power over the rest
of the fishery. Moreover, because sector
ACEs are temporary in nature and
depend upon the collective PSCs of
participating vessels, no one sector will
be allocated a permanent share of any
resource. This further limits the ability
of a sector to influence market
conditions for a particular stock over the
long term. Allowing sectors to trade
ACE will minimize the influence of the
initial sector allocation, including any
cap on initial allocations.
If a sector intends to fish in a given
FY, it must submit an operations plan,
sector contract, and EA to NMFS by
September 1 of the year prior to the FY
in question. On September 1, 2009, 17
sectors submitted to NMFS operations
plans and contracts (as single
documents) for FY 2010. The operations
plans contain the rules under which
each sector will fish and the legal
contract that binds members to a sector
and its operations plan. Sectors will be
allocated all regulated multispecies
stocks for which members have landings
history, with the exception of Atlantic
halibut, windowpane flounder, Atlantic
wolffish, and Southern New England/
Mid-Atlantic (SNE/MA) winter
flounder. In addition, sectors will not be
allocated ocean pout. Sector vessels
must retain all legal-sized allocated
groundfish while fishing on a sector
trip. Catch of all allocated groundfish
stocks by any of a sector’s vessels will
count against the sector’s ACE, unless
the catch is an element of a separate
ACL sub-component, such as groundfish
catch in an exempted fishery, or catch
of yellowtail flounder in the Atlantic sea
scallop fishery. Sector vessels fishing for
monkfish, skate, American lobster (with
non-trap gear) and spiny dogfish will
have their groundfish catch (including
discards) on those trips debited against
the sector’s ACE, unless the vessel is
fishing for such species under the
provisions of a NE multispecies
exempted fishery. Discard rates applied
to sectors will be determined by NMFS
as developed from at-sea monitoring
observations.
As provided in Amendment 16, ACE
can be transferred between sectors,
although ACE transfers to or from
common pool vessels are prohibited.
Both the SHS and the TSS operations
plans describe how landings history
from permits within the sector will be
attributed to sector members. Under
Amendment 16, however, catch history
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is frozen; therefore, the statements in
the contracts for the SHS and TSS have
no legal standing unless a subsequent
Council action adopts them. Each sector
must ensure that its ACE is not
exceeded during the FY. Sectors are
required to monitor their landings, track
their available ACE, and submit weekly
catch reports to NMFS. Once a sector’s
ACE for a particular stock is caught, a
sector is required to cease all fishing
operations in that stock area until it
acquires additional ACE for that stock.
Each sector must also submit an annual
report to NMFS and the Council within
60 days of the end of the FY detailing
all of the sector’s catch (landings and
discards of all stocks by the sector),
enforcement actions, and pertinent
information necessary to evaluate the
biological, economic, and social impacts
from the sector.
All sector operations plans and
contracts detail procedures to enforce
the sector operations plan, explain
sector monitoring and reporting
requirements, present a schedule of
penalties, and provide authority to
sector managers to issue stop fishing
orders to sector members. Amendment
16 specifies that sector members may be
held jointly and severally liable for ACE
overages, discarding of legal-sized fish,
and/or misreporting of catch (landings
or discards). Each sector contract
approved for FY 2010 states that the
sector will withhold an initial reserve
from each member’s individual
allocation to prevent the sector from
exceeding its ACE. Each sector contract
also details the method for initial ACE
allocation to sector members; for FY
2010, each sector will allow its members
to harvest an amount of fish equal to the
PSC that each individual member’s
permit contributed to the sector’s ACE.
Amendment 16 contains several
‘‘universal’’ exemptions that are
applicable to all sectors. These universal
exemptions include exemptions from
trip limits on allocated stocks, the GB
Seasonal Closed Area, NE multispecies
days-at-sea (DAS) restrictions, the
requirement to use a 6.5-inch (16.51-cm)
mesh codend when fishing with
selective gear on GB, and portions of the
Gulf of Maine (GOM) Rolling Closure
Areas. Sectors may request additional
exemptions from applicable regulations
in their sector operations plan.
However, Amendment 16 states that
sector vessels may not request
exemptions from certain NE
multispecies management measures,
including year-round closed areas,
permitting restrictions, gear restrictions
designed to minimize habitat impacts,
and reporting requirements (not
including DAS reporting requirements).
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Federal Register / Vol. 75, No. 68 / Friday, April 9, 2010 / Rules and Regulations
All vessels that fish in an approved
sector, with the exception noted below,
will receive a letter of authorization
(LOA) for FY 2010 to fish under
regulations that apply to the sector in
which they are enrolled for the FY.
Permits and vessels that committed to
NFS IV, which is a lease-only sector,
will not receive an LOA to fish, as no
vessels in that sector are authorized to
actively fish.
In order to comply with the National
Environmental Policy Act (NEPA), an
EA was prepared for each operations
plan. All sector EAs are tiered from the
Environmental Impact Statement (EIS)
for Amendment 16. The summary
18115
findings of each EA conclude that each
sector will likely produce similar effects
that result in non-significant impacts.
An analysis of aggregate sector impacts
was also conducted and Findings of No
Significant Impact for all sector EAs
were issued by the Regional
Administrator on February, 26, 2010.
TABLE 1—SUMMARY OF THE NUMBER OF PERMITS, ACTIVE VESSELS, AND ACTIVE PERMITS FOR THE FY 2010 SECTORS
Number of
individual
permits*
Sector name
FGS ..........................................................................................................
NCCS .......................................................................................................
NFS II .......................................................................................................
NFS III ......................................................................................................
NFS IV .....................................................................................................
NFS V ......................................................................................................
NFS VI .....................................................................................................
NFS VII ....................................................................................................
NFS VIII ...................................................................................................
NFS IX .....................................................................................................
NFS X ......................................................................................................
NFS XI .....................................................................................................
NFS XII ....................................................................................................
NFS XIII ...................................................................................................
PCGGS ....................................................................................................
SHS ..........................................................................................................
TSS ..........................................................................................................
All Sectors ................................................................................................
Common Pool ..........................................................................................
95
19
81
81
48
41
18
27
22
51
44
48
8
35
43
129
22
812
665
Percentage
(%) of
individual
permits
6.43
1.29
5.48
5.48
3.25
2.78
1.22
1.83
1.49
3.45
2.98
3.25
0.54
2.37
2.91
8.73
1.49
54.98
45.02
Number of
active
vessels**
50
19
43
50
0
37
8
21
16
22
34
38
4
29
28
44
10
453
286
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*The data are based on signed sector contracts as of January 22, 2010.
** The data are based on each sector’s final EA as of February 18, 2010.
*** In 2007, 601 limited access multispecies vessels and 138 open-access vessels landed groundfish.
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09APR1
Percentage
(%) of
active vessels within
the fleet***
Percentage
(%) of
permits that
are active
within the
sector
6.77
2.57
5.82
6.77
0.00
5.01
1.08
2.84
2.17
2.98
4.60
5.14
0.54
3.92
3.79
5.95
1.35
61.30
38.70
52.63
100.00
53.09
61.73
0.00
90.24
44.44
77.78
72.73
43.14
77.27
79.17
50.00
82.86
65.12
34.11
45.45
55.79
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17:01 Apr 08, 2010
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PO 00000
28.03
0.16
5.48
1.19
4.71
2.95
1.87
6.01
7.36
12.49
0.97
0.40
0.04
7.54
0.21
16.71
0.86
96.98
3.02
FGS ..................................................................................
NCCS ...............................................................................
NFS II ...............................................................................
NFS III ..............................................................................
NFS IV ..............................................................................
NFS V ...............................................................................
NFS VI ..............................................................................
NFS VII .............................................................................
NFS VIII ............................................................................
NFS IX ..............................................................................
NFS X ...............................................................................
NFS XI ..............................................................................
NFS XII .............................................................................
NFS XIII ............................................................................
PCGGS .............................................................................
SHS ..................................................................................
TSS ...................................................................................
All Sectors ........................................................................
Common Pool ...................................................................
1.90
0.47
19.19
16.43
8.66
0.23
1.90
0.61
0.47
1.67
5.04
13.69
1.30
0.76
4.76
17.93
1.10
96.09
3.91
6.41
0.12
11.63
0.17
5.42
5.40
2.67
5.25
6.61
10.32
0.26
0.04
0.00
14.09
0.05
29.60
1.46
99.51
0.49
GB
haddock**
1.29
0.23
17.87
11.65
6.72
0.68
3.46
0.73
0.20
4.77
2.70
3.23
0.28
0.61
2.32
40.93
0.74
98.42
1.58
GOM
haddock
0.01
0.84
1.70
0.05
2.16
9.62
1.34
16.14
15.93
18.95
0.02
0.00
0.00
15.48
0.00
8.34
7.24
97.82
2.18
GB
yellowtail
flounder
0.18
0.53
1.68
0.40
2.68
26.67
4.85
4.15
5.96
7.14
0.47
0.01
0.00
11.45
0.70
11.50
1.22
79.60
20.40
SNE/MA
yellowtail
flounder
1.83
0.46
19.31
9.01
7.20
1.69
2.08
4.86
7.29
9.63
11.48
2.22
0.51
3.36
0.98
10.91
3.20
96.01
3.99
CC/GOM
yellowtail
flounder
0.55
0.14
8.37
4.41
9.24
2.24
3.58
4.02
2.44
7.55
1.73
1.87
0.38
3.43
6.42
39.74
1.41
97.52
2.48
Plaice
0.80
0.21
13.24
3.03
9.28
2.62
4.19
4.06
3.13
7.63
2.89
1.86
0.28
4.55
4.45
34.19
1.39
97.80
2.20
Witch
flounder
0.03
0.07
1.69
0.03
0.71
2.60
0.84
17.02
20.63
33.65
0.01
0.00
0.00
10.83
0.01
8.50
1.94
98.56
1.44
GB Winter flounder
2.24
0.45
19.85
10.91
7.63
0.71
3.33
3.22
3.36
2.58
16.22
2.13
0.35
1.69
2.15
7.20
3.54
87.57
12.43
GOM
Winter
flounder
2.89
0.44
16.54
1.47
6.46
0.42
5.48
0.56
0.44
5.79
0.57
1.88
0.07
4.54
2.56
48.99
0.01
99.10
0.90
Redfish
5.92
0.87
6.17
5.12
7.97
0.39
3.77
0.78
0.51
4.10
0.93
4.85
0.04
1.81
4.62
50.28
0.14
98.27
1.74
White
hake
7.81
0.44
12.34
7.70
5.65
0.43
3.30
0.78
0.64
3.82
1.45
9.28
0.06
2.23
4.30
37.99
0.06
98.29
1.72
Pollock
Frm 00070
Fmt 4700
Sfmt 4700
95
1
19
4
16
10
6
20
25
42
3
1
0
25
1
56
3
328
10
GB
cod
east
E:\FR\FM\09APR1.SGM
09APR1
Total ** .......................................................
3092
867
5
169
37
146
91
58
186
228
386
30
12
1
233
6
517
27
2999
93
GB
cod
west
4567
87
22
876
750
395
11
87
28
21
76
230
625
59
35
217
819
50
4389 †
178
GOM
cod
11988
768
14
1394
21
650
648
321
630
792
1237
31
4
1
1689
6
3549
175
11928 †
60
GB
haddock
east
28452
1822
34
3309
49
1543
1537
761
1495
1881
2936
74
11
1
4009
14
8422
416
28310 †
142
GB
haddock
west
825
11
2
147
96
55
6
29
6
2
39
22
27
2
5
19
338
6
812
13
GOM
haddock
964
0
8
16
0
21
93
13
156
154
183
0
0
0
149
0
80
70
943
21
GB
yellowtail
flounder
310
1
2
5
1
8
83
15
13
18
22
1
0
0
36
2
36
4
247
63
SNE/MA
yellowtail
flounder
779
14
4
150
70
56
13
16
38
57
75
89
17
4
26
8
85
25
748
31
CC/GOM
yellowtail
flounder
2848
16
4
238
126
263
64
102
115
69
215
49
53
11
98
183
1132
40
2777
71
Plaice
852
7
2
113
26
79
22
36
35
27
65
25
16
2
39
38
291
12
833
19
Witch
flounder
1852
0
1
31
1
13
48
16
315
382
623
0
0
0
201
0
157
36
1826 †
26
GB winter
flounder
158
4
1
31
17
12
1
5
5
5
4
26
3
1
3
3
11
6
138
20
GOM
winter
flounder
6848
198
30
1132
100
442
29
375
38
30
396
39
129
5
311
175
3354
1
6786 †
62
Redfish
2566
151
22
158
131
204
10
96
20
13
105
24
124
1
46
118
1285
4
2522 †
44
White
hake
2748
215
12
339
211
155
12
91
21
18
105
40
255
2
61
118
1044
2
2701
47
Pollock
* The data in this table are based on signed sector contracts as of January 22, 2010. Numbers are rounded to the nearest metric ton, but allocations are made in pounds. In some cases, this table shows a sector allocated 0 metric tons, but that sector is allocated a small amount of that stock in pounds.
** These totals are based off of the groundfish sub-ACLs provided in FW 44.
† These totals are based off the groundfish sub-ACLs provided in FW 44 and do not equal the totals of all sector ACEs when summed due to rounding differences.
338
FGS ..................................................................
NCCS ................................................................
NFS II ...............................................................
NFS III ..............................................................
NFS IV ..............................................................
NFS V ...............................................................
NFS VI ..............................................................
NFS VII .............................................................
NFS VIII ............................................................
NFS IX ..............................................................
NFS X ...............................................................
NFS XI ..............................................................
NFS XII .............................................................
NFS XIII ............................................................
PCGGS .............................................................
SHS ..................................................................
TSS ...................................................................
All Sectors ** .....................................................
Common Pool ** ...............................................
Sector name
TABLE 3A—ACE (IN METRIC TONS) EACH SECTOR WILL RECEIVE BY STOCK FOR FY 2010 *
* The data in this table are based on signed sector contracts as of January 22, 2010.
** Eastern U.S./Canada cod and haddock percentages equal the PSC % of GB cod and GB haddock, respectively.
† Percentages have been rounded to the nearest hundredth of a percent in this table, but PSC data are calculated to seven decimal places. Therefore, in some cases, this table shows a sector allocated 0% of an
ACE, when in fact that sector is allocated a small amount of that stock.
GB
cod**
GOM
cod
TABLE 2—PERCENTAGE (%) OF ACE EACH SECTOR WILL RECEIVE BY STOCK FOR FY 2010 *†
Sector name
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Frm 00071
746
209
1
41
9
35
22
14
45
55
93
7
3
0
56
2
124
6
723
23
GB cod
east
6817
1911
11
374
81
321
201
128
410
502
851
66
27
3
514
14
1139
59
6611
206
GB cod
west
10068
191
48
1932
1654
871
23
191
61
47
168
507
1378
131
77
479
1805
110
9676 †
392
GOM
cod
26429
1693
32
3073
46
1433
1428
707
1389
1747
2727
68
10
1
3724
13
7823
387
26297 †
132
GB
haddock
east
62726
4018
76
7294
109
3401
3388
1678
3296
4146
6472
162
23
3
8838
30
18567
918
62413 †
313
GB
haddock
west
1819
24
4
325
212
122
12
63
13
4
87
49
59
5
11
42
744
14
1790
29
GOM
haddock
2125
0
18
36
1
46
204
28
343
339
403
0
0
0
329
0
177
154
2079
46
GB
yellowtail
flounder
683
1
4
11
3
18
182
33
28
41
49
3
0
0
78
5
79
8
544
139
SNE/MA
yellowtail
flounder
1718
31
8
332
155
124
29
36
83
125
165
197
38
9
58
17
187
55
1649
69
CC/GOM
yellowtail
flounder
6279
35
9
526
277
580
140
225
253
153
474
108
117
24
215
403
2495
89
6123
156
Plaice
1878
15
4
249
57
174
49
79
76
59
143
54
35
5
85
84
642
26
1837
41
Witch
flounder
4083
1
3
69
1
29
106
34
695
842
1374
0
0
0
442
0
347
79
4026 †
57
GB
winter
flounder
TABLE 3B—ACE (IN 1,000 LBS.) EACH SECTOR WILL RECEIVE BY STOCK FOR FY 2010 *
348
8
2
69
38
27
2
12
11
12
9
56
7
1
6
8
25
12
305
43
GOM
winter
flounder
15098
437
67
2496
221
975
63
827
85
66
873
86
283
11
685
386
7394
2
14961 †
137
Redfish
5658
334
49
348
289
449
22
212
44
29
231
52
273
2
102
260
2833
8
5560 †
98
White
hake
6059
473
27
747
466
343
26
200
47
39
232
88
562
4
135
260
2302
4
5955
104
Pollock
* The data in this table are based on signed sector contracts as of January 22, 2010. Numbers are rounded to the nearest thousand lb. Sectors that appear to be allocated 0 are in fact allocated less than 1,000 lb of
that stock.
** These totals are based off of the groundfish sub-ACLs provided in FW 44.
† These totals are based off the groundfish sub-ACLs provided in FW 44 and do not equal the totals of all sector ACEs when summed due to rounding differences.
Total ** .......................................................
FGS ..................................................................
NCCS ................................................................
NFS II ...............................................................
NFS III ..............................................................
NFS IV ..............................................................
NFS V ...............................................................
NFS VI ..............................................................
NFS VII .............................................................
NFS VIII ............................................................
NFS IX ..............................................................
NFS X ...............................................................
NFS XI ..............................................................
NFS XII .............................................................
NFS XIII ............................................................
PCGGS .............................................................
SHS ..................................................................
TSS ...................................................................
All Sectors ** .....................................................
Common Pool ** ...............................................
Sector name
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Approved Sector Exemption Requests
In addition to the universal
exemptions in Amendment 16, sectors
requested several additional exemptions
from the NE multispecies regulations in
their sector operations plans. After
thorough review and consideration of
public comments on the exemption
requests, NMFS authorizes exemptions
from the following regulations for the
individual sectors that requested them:
(1) 120-day block out of the fishery
required for Day gillnet vessels; (2) 20day spawning block out of the fishery
required for all vessels; (3) limitation on
the number of gillnets imposed on Day
gillnet vessels; (4) prohibition on a
vessel hauling another vessel’s gillnet
gear; (5) limitation on the number of
gillnets that may be hauled on GB when
fishing under a groundfish/monkfish
DAS; (6) limits on the number of hooks
that may be fished; and (7) DAS Leasing
Program length and horsepower
restrictions. Details of these exemptions
are discussed below.
srobinson on DSKHWCL6B1PROD with RULES
1. 120-Day Block Requirement Out of
the Fishery for Day Gillnet Vessels
This measure was implemented in
1997 under FW 20 (62 FR 15381, April
1, 1997) to help ensure that management
measures for Day gillnet vessels were
comparable to effort controls placed on
other fishing gear types (the proposed
rule for this action erroneously stated
that this action had been implemented
in 1996 under Amendment 7).
Regulations at § 648.82(j)(1)(ii) require
that each NE multispecies gillnet vessel
declared into the Day gillnet category
declare and take 120 days out of the
non-exempt gillnet fishery. Each period
of time taken must be a minimum of 7
consecutive days, and at least 21 of the
120 days must be taken between June 1
and September 30. This measure was
designed to control fishing effort and,
therefore, is no longer necessary for
sectors because sectors are restricted to
an ACE for each groundfish stock,
which limits overall fishing mortality.
Because sector vessels are prohibited
from discarding all legal-sized allocated
fish when on a sector trip, and are
restricted by their ACE, vessels will
likely fish more selectively, which in
turn, can increase each vessel’s catch
per unit of effort (CPUE) and reduce the
number of days that fixed gear is in the
water. Similarly, protected species (such
as harbor porpoise and humpback
whales) may benefit from less fishing
effort and fewer gear days. Therefore,
exemptions from the Day gillnet vessel
120-day block requirement are granted
for FY 2010 to the following sectors that
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requested this exemption: NFS III, NFS
XI, FGS, SHS, TSS, and PCCGS.
2. 20-Day Spawning Block
Regulations at § 648.82(g) require
vessels to declare out and be out of the
NE multispecies DAS program for a 20day period each calendar year between
March 1 and May 31, when spawning of
cod is most prevalent in the GOM.
While this measure was designed to
reduce fishing effort on spawning fish
stocks, sector vessels will utilize an ACE
to restrict their fishing mortality.
Undersized fish caught by sector vessels
cannot be kept and, additionally, the
catch will count against the sector’s
ACE. This creates a strong incentive for
sectors to avoid catching undersized
fish. In addition, there are minimal
temporal and spatial restrictions
associated with this regulation, and
allowing fishermen to select any 20-day
period out of the fishery does not
necessarily prevent them from
harvesting spawning fish. Based on this
information, an exemption from the 20day spawning block out of the fishery is
granted for FY 2010 to the following
sectors that requested this exemption:
The NCCS, the SHS, and the TSS.
3. Limitation on the Number of Gillnets
for Day Gillnet Vessels
One sector, the SHS, requested that
their vessels be allowed to fish up to
150 gillnets (any combination of flatfish
or roundfish nets) in each of the
groundfish regulated mesh areas
(RMAs). Current gear restrictions in the
RMAs restrict Day gillnet vessels from
fishing more than: 100 gillnets (of which
no more than 50 can be roundfish
gillnets) in the GOM RMA
(§ 648.80(a)(3)(iv)(B)(2)); 50 gillnets in
the GB RMA (§ 648.80(a)(4)(iv)(B)(2));
and 75 gillnets in the SNE and MA
RMAs (§ 648.80(b)(2)(iv)(B)(1), and
§ 648.80(c)(2)(v)(B)(1), respectively).
Regulations require nets to be marked
with either one or two tags per gillnet
depending on the type of net and RMA
fished, for the purpose of enforcing
gillnet limits. These restrictions were
implemented in 1996 under
Amendment 7 and revised in
Amendment 13 to prevent an
uncontrolled increase in the number of
nets being fished, thus undermining the
applicable DAS effort controls. Because
this measure was designed to control
fishing effort, NMFS believes that a net
restriction is no longer necessary, since
the sector is confined to an ACE for each
stock, which caps overall fishing effort.
Although this exemption could allow
fishing effort from gillnet vessels in the
SHS to increase if the SHS receives
additional ACE through a transfer from
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another sector, sectors that trade ACE to
SHS would have a reduction in effort
and gear use; any additional effort
resulting from this exemption would
likely be offset between trading sectors.
In addition ACLs cap the entire fleet’s
total catch. Therefore, SHS vessels are
granted this exemption and are
authorized to use up to 150 roundfish or
flatfish nets in each area (up to 150 nets
total). SHS vessels are also exempt from
the current tagging requirements and,
instead, will be required to mark their
gear with one tag per net. The LOA
issued to the sector vessels that qualify
for this exemption will specify the
tagging provisions to ensure it is an
enforceable provision.
4. Prohibition on a Vessel Hauling
Another Vessel’s Gillnet Gear
Both NFS III and XI requested an
exemption from current regulations that
prohibit one vessel from hauling
another vessel’s gillnet gear
(§§ 648.14(k)(6)(ii)(A) and 648.84).
These sectors argued that the
regulations pertaining to gear-marking
controls, setting, and hauling
responsibilities are no longer necessary,
because the sector would be confined to
an ACE for each stock, and that
‘‘community’’ fixed gear would allow
fishermen greater flexibility. In
addition, the sectors argued that shared
fixed-gear fishing effort could
potentially reduce the amount of gillnet
gear in the water and minimize the use
of gear to ‘‘hold’’ additional bottom
ground. Pursuant to a request by NMFS,
both sectors that requested this
exemption have specified in their
operations plans that all vessels
participating in community fixed gear
will be held jointly liable for any
violations associated with that gear.
Given this, NMFS endorses the efforts
by these two sectors to reduce the
amount of gillnet gear in the water and
approves this exemption request. The
LOA issued to the sector vessels that
qualify for this exemption will specify
the tagging provisions to ensure it is an
enforceable provision.
5. Limitation on the Number of Gillnets
That May Be Hauled on GB When
Fishing Under a Groundfish/Monkfish
DAS
The FGS requested an exemption
from the limit on the number of gillnets
that may be hauled on GB when fishing
under a groundfish/monkfish DAS.
Current regulations at
§ 648.80(a)(4)(iv)(B), which prohibit Day
gillnet vessels fishing on a groundfish
DAS from possessing, deploying,
fishing, or hauling more than 50 nets on
GB, were implemented as a groundfish
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mortality control under Amendment 13.
The FGS proposed that this exemption
would increase efficiency of its gillnet
vessels by allowing them to haul
additional nets per trip—nets which are
already permitted in the water under the
Monkfish FMP. NMFS agrees with the
FGS that this exemption will allow
fishermen additional opportunities to
tend gear, and can reduce gear soak
time. NMFS supports the attempt by the
FGS to increase its CPUE and authorizes
this exemption request. This exemption
does not permit the use of additional
nets; it only allows nets deployed under
existing net limits in the NE
Multispecies and Monkfish FMPs, to be
hauled more efficiently by vessels
dually permitted under both FMPs.
flexibility. NMFS concurs and approves
this exemption request. As this
exemption was only requested by the
SHS and TSS, only these two sectors
will be exempt from the DAS Leasing
Program length and horsepower
restrictions, and thus leasing under this
exemption can only occur within and
between the SHS and the TSS.
srobinson on DSKHWCL6B1PROD with RULES
6. Limitation on the Number of Hooks
That May Be Fished
The FGS requested an exemption
from the number of hooks that a vessel
may fish on a given fishing trip,
claiming that this measure, which was
initially implemented through an
interim action (67 FR 50292, August 1,
2002) and made permanent through
Amendment 13, was designed to control
fishing effort and, therefore, is no longer
necessary because the sector is confined
to an ACE for each stock, which restricts
fishing mortality. Current regulations
(§ 648.80) prohibit vessels from fishing
or possessing more than 2,000 rigged
hooks in the GOM RMA, more than
3,600 rigged hooks in the GB RMA,
more than 2,000 rigged hooks in the
SNE RMA, or more than 4,500 rigged
hooks in the MA RMA. This exemption
has been granted to the GB Cod Hook
Sector every year since 2004. The
potential for gear interactions between
protected resources and longline/hook
gear is much lower than the interaction
potential from bottom trawl or gillnet
gear. In addition, the use of longline/
hook gear minimizes fishing impacts on
benthic habitat. Based on this analysis,
NMFS grants this exemption to the FGS
for FY 2010.
Disapproved Exemption Requests
After completing an initial review of
the 17 sector operations plans and
contracts submitted September 1, 2009,
NMFS provided each sector with
comments, including an assessment of
which exemption requests NMFS would
likely disapprove because of serious
concerns with negative environmental
impacts that could result from granting
the requested exemption. Some of the
sectors chose to remove these
exemption requests from their
operations plans, while other sectors
did not. After reconsidering, NMFS
included all of these exemption requests
of serious concern in the proposed rule
and solicited public comment on these
requests. Public comment that was
received pertaining to these exemptions
did not provide any new data or
sufficient additional rationale to
convince NMFS to change its previous
stance on these requests. Therefore,
requests for exemption from the GOM
Rolling Closure Areas beyond the
universal exemption in Amendment 16,
the 72-hour observer notification
requirement for NMFS-funded at-sea
monitoring coverage, the Atlantic
halibut one-fish trip limit during the
Maine seasonal halibut fishery, the
vessel monitoring system (VMS)
reporting requirements, the use of
electronic vessel trip reports (eVTRs) in
replace of paper vessel trip reports
(VTRs), the minimum 6-inch (16.51-cm)
spacing requirement for de-hookers, and
the minimum fish size requirements, are
not approved by NMFS for any sectors
for FY 2010. These requests and NMFS
decision on them are discussed below.
7. Length and Horsepower Restrictions
of the DAS Leasing Program
While Amendment 16 exempts sector
vessels from the requirement to use NE
multispecies DAS to harvest groundfish,
some sector vessels will still need to use
NE multispecies DAS under specific
circumstances; for example, when
fishing for monkfish. Both the SHS and
TSS requested an exemption from the
DAS Leasing Program length and
horsepower restrictions, arguing that
sector ACEs eliminate the need to use
vessel characteristics to control fishing
effort and that removal of this restriction
would allow sector vessels more
1. GOM Rolling Closure Areas
NFSs II, III, VI, X, XI, XII, and the SHS
requested additional exemptions from
the GOM Rolling Closure Areas beyond
those granted as universal exemptions
under Amendment 16. Specifically,
sectors requested exemptions from the
30-minute blocks 124, 125, 132, and 133
in April; and block 138 in May. The
Council exempted sectors from certain
GOM Rolling Closure Areas in
Amendment 16, with the exception of
areas that the Council believed should
remain closed to protect spawning
aggregations. The Council tasked the
PDT with periodically reviewing and
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18119
analyzing the existing GOM Rolling
Closure Areas to determine which areas
should remain closed, but stipulated
that sectors may request specific
exemptions from the GOM Rolling
Closure Areas in their sector operations
plans. Subsequently, at its November
2009 meeting, the Council voted to
endorse the SHS’s request for an
exemption to the rolling closure for
block 138 in May.
The sectors requesting this exemption
argued that, because they are restricted
to an ACE for each groundfish stock that
caps overall fishing mortality,
exemptions to the Rolling Closure Areas
should be granted because they are
mortality closures. The Rolling Closure
Areas were initially implemented in
1998 under FW 25 to the FMP to reduce
fishing effort in the ‘‘areas of highest cod
landings.’’ However, FW 26 referred to
the Rolling Closure Areas implemented
under FW 25 as ‘‘inshore ‘cod spawning’
closures.’’ The stated purpose and need
under FW 26 (section 3.0) states that the
Council wanted to ‘‘take additional
action to protect cod during the 1999
spawning season * * * and immediate
action is necessary to reduce catches
and protect the spawning stock.’’ As a
result, FW 26 expanded the time period
of these ‘‘cod spawning’’ closures, which
include several of the 30-minute blocks
that sectors have now requested
exemption from. The final rule
implementing FW 26 (64 FR 2601,
January 15, 1999) specified that the
Council undertook the action because of
the ‘‘opportunity to delay fishing
mortality on mature cod during the
spring spawning period, a time when
stocks aggregate and are particularly
vulnerable to fishing pressure.’’
These exemption requests fail to
consider that, despite ACE limits, direct
targeting of spawning aggregations can
adversely impact the reproductive
potential of a stock as opposed to postspawning mortality. Northeast Fisheries
Science Center’s (NEFSC) spring survey
data for 2006–2008 indicate that very
high concentrations of cod (highest
quartile of tows by weight) continue to
be present in the April GOM Rolling
Closure Area, especially west of 69°30′
W. long., while moderate concentrations
of cod are found in block 138.
Justification that demonstrates that
spawning fish could be avoided was not
provided by the individual sectors (see
comments and response). In addition to
protecting spawning fish, the GOM
Rolling Closure Areas afford some
protection to harbor porpoise and other
marine mammals. As a result of these
concerns, this exemption request has
not been approved.
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2. 72-Hour Observer Notification
Requirement
Vessels are currently required to call
into the Northeast Fisheries Observer
Program (NEFOP) 72-hour prior to
leaving for a trip into a special
management program (§ 648.85). Under
Amendment 16, this requirement is
expanded to require all groundfish trips
to be called into NEFOP in order for
NMFS to accurately assign coverage to
all vessels; however, NMFS is reducing
the observer notification requirement
from 72-hour to 48-hour in the final rule
implementing Amendment 16. Eight of
the 12 NFSs and the FGS requested an
exemption from this requirement,
claiming that sector vessels should be
permitted to hire an at-sea monitor
through a private contract arrangement
with a NMFS-approved observer
company if that company can respond
in less time. This request is problematic
for several reasons. First, data gathered
by NMFS observers is more
comprehensive and detailed than data
gathered by at-sea monitors, even
though those monitors would be
acquired through a NMFS-approved
observer company. NEFOP observer
data is necessary to generate accurate
discard estimations for sector vessels.
Second, the NEFOP selection protocol
for sectors is a robust and consistent
sampling scheme which requires all
trips to be included in the sampling
pool from which trips are selected for
observer coverage. Allowing a sector to
self-select certain trips for separate
sampling undermines the ability for a
truly representative sample to be
selected. This exemption request would
reduce observer data available to
NEFOP and potentially introduce bias
into the NEFOP monitoring sampling
system. Moreover, because of the
additional logistical demands imposed
on the NEFOP resulting from the
increased NMFS-funded at-sea
monitoring program for all groundfish
vessels, it is necessary that NMFS
require a minimum 48-hour notification
for all trips. Therefore, this exemption
request has not been approved.
3. Halibut One-Fish Trip Limit
The NCCS requested an exemption
from the one-fish per trip Atlantic
halibut possession limit in order to
allow member vessels to participate in
the State of Maine’s halibut fishery,
which has a 50-fish seasonal limit.
While the sector argued that the
exemption may actually reduce
mortality on halibut stocks because the
State seasonal limit will be extremely
low in FY 2010, possibly only 25 or 30
fish per permitted vessel, the FMP
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17:01 Apr 08, 2010
Jkt 220001
includes a rebuilding program for
Atlantic halibut that permits a one-fish
per trip possession limit to prevent a
targeted fishery while minimizing
discards. Federally permitted vessels
fishing in the State fishery are currently
required to abide by the most restrictive
regulations, which in this case is one
halibut per trip. Allowing an exemption
from the one-fish halibut trip limit
specifically to allow sector vessels to
participate in a targeted halibut fishery
would be inconsistent with the
rebuilding program of the FMP.
Therefore, this exemption request has
not been approved.
4. VMS Requirements
All 12 of the NFSs requested a VMS
exemption that would allow a central
sector server to relay member vessel
catch reports and logbook data to
NMFS. The sectors anticipate that, in
order to facilitate electronic data
transmission from its vessels to a sectoroperated data collection and
distribution Web portal, an
administrative exemption would be
necessary to allow the server to relay
catch reports and logbook data on behalf
of sector member vessels. Under this
exemption, catch data would go from
the vessel to a central server maintained
by the sector, and the sector’s server
would then relay the data to NMFS.
NMFS’ Office of Law Enforcement has
raised serious concerns about this
exemption request, given that the chain
of custody of catch information would
be interrupted and, therefore, open to
tampering. Until such time that NMFS
can ensure that the flow of information
under such an exemption is tamperproof, this type of reporting exemption
is not approvable.
Sector vessels may send their data
electronically to the sector to facilitate
monitoring, but must transmit required
reports directly to NMFS.
5. eVTRs
All of the NFSs, as well as the SHS
and TSS, requested to use eVTRs in
place of paper VTRs for transmitting
catch data to NMFS. A pilot study is
currently underway that would use
eVTRs as well as paper VTRs to
determine the viability of eVTRs as a
replacement to the paper version. Until
the pilot study determines that eVTRs
can fulfill all NMFS requirements, this
exemption request cannot be granted.
6. Fairlead Roller Spacing on Dehookers
The FGS requested an exemption
from the prohibition on the use of dehookers (crucifiers) with less than 6inch (15.24-cm) spacing between the
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fairlead rollers. De-hookers with a
spacing of less than 6 inches (15.24 cm)
were originally prohibited in a 2002
Secretarial interim rule, and then
implemented year-round in 2004 under
Amendment 13, to discourage dehooking strategies that may reduce
survival rates of discarded fish. The
sector argued that a prohibition on dehookers requires a modification to
longline gear haulers that is inefficient
and unnecessary. NMFS believes that
reducing the fairlead roller spacing on
de-hookers will increase the mortality
rates of discarded fish and, therefore, is
not consistent with National Standard 9.
Based on these concerns, this exemption
request has not been approved.
7. Minimum Fish Size Requirements
The FGS and the TSS requested an
exemption from the minimum
groundfish fish size requirements. The
FGS claimed that allowing full retention
of all catch would eliminate discards
and increase profitability without
additional mortality. Further, the sector
contended that it should be permitted to
land fish less than the current minimum
fish size because 100-percent discard
mortality is presently assumed by
NMFS, and because the sector’s ACE
would be debited for all discards. The
TSS, which requested an exemption
from the Federal minimum fish size
requirements for American plaice and
witch flounder, stated that many of
these fish caught by their member
vessels are less than 1-inch (2.54 cm)
smaller than the current minimum fish
size requirements and are already dead
when discarded, thus making the
requirement of discarding sub-legal fish
wasteful.
Granting an exemption from
minimum fish sizes would present
NMFS with significant enforcement
issues by allowing two different fish
sizes in the marketplace. Also, NMFS is
concerned that this exemption could
potentially increase the targeting of
juvenile fish. As a result of these
concerns, these exemption requests
from the minimum fish size
requirements have not been approved.
Comments
Thirty-seven comments were
submitted on behalf of 12 individuals,
the SHS, FGS, NCCS, all 12 NFSs, four
fishing industry organizations, two
professional organizations, two
environmental organizations, the
Council, and the Massachusetts Division
of Marine Fisheries (DMF). Only
comments that were applicable to the
proposed measures, including the
analyses used to support these
measures, are responded to in this rule.
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Many comments from individuals, the
SHS, NSC, NFS, NCCS, the Associated
Fisheries of Maine (AFM), the United
National Fishermen’s Association
(UNFA), and the Association of
Professional Observers (APO),
questioned various measures in
Amendment 16 that apply to sectors.
While NMFS understands why these
comments were submitted under the
proposed rule for sector operations
plans, contracts, and allocations, the
18121
comments are more applicable to
regulations implementing Amendment
16; therefore, comments on the
following sector management topics
were addressed in the Amendment 16
final rule rather than this rule (Table 4).
TABLE 4—COMMENTS SUBMITTED ON THIS RULE THAT ARE ADDRESSED IN THE AMENDMENT 16 FINAL RULE
Comment
number(s) in
amendment 16
final rule
Comment topic/issue
Allocation of NE multispecies to sectors ............................................................................................................................................
eVTRs .................................................................................................................................................................................................
Sector management measures (generally) ........................................................................................................................................
Transfer of management authority from NMFS to sector managers .................................................................................................
Sector operation costs ........................................................................................................................................................................
Sector managers computing daily discard rates ................................................................................................................................
Sector annual report requirements .....................................................................................................................................................
‘‘Freezing’’ of catch history .................................................................................................................................................................
Levels of observer coverage ..............................................................................................................................................................
Differing roles of at-sea monitors and fishery observers, eligibility standards ..................................................................................
ACE overages ....................................................................................................................................................................................
Trading of ACE between sectors .......................................................................................................................................................
Permit banks .......................................................................................................................................................................................
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Sectors and Sector Operations Plans
Comment 1: One individual
questioned how sector ACEs would
prevent discards. The UNFA inquired
whether, if a sector had little allocation
of a relatively abundant species, such as
redfish, it could reduce that sector’s
ability to catch other species.
Response 1: A sector is limited to the
ACEs it is allocated, as well as any ACE
it may acquire through an ACE transfer;
and each sector vessel must retain all
legal-sized groundfish caught when
fishing as a sector vessel. In addition, a
discard rate, calculated by NMFS, will
be applied to all sector landings and,
therefore, sector ACEs. If a sector
catches its entire ACE for any stock, it
cannot fish in that stock area for the
remainder of the FY, unless additional
ACE is acquired. For example, if a sector
harvests its ACE for GOM cod, it must
cease all fishing in the GOM cod stock
area, except if using exempted gear or in
an exempted fishery. Alternatively, if a
sector reaches its ACE for a stock that
is found in all stock areas, such as
redfish, the sector cannot fish in any
area unless and until it acquires
additional redfish ACE. These stock
areas are detailed in the Amendment 16
final rule. Sectors may acquire
additional ACE via an ACE transfer from
another sector to resume fishing.
Furthermore, sector members can be
held jointly and severally liable for
illegal discarding or misreporting catch.
Comment 2: The SHS, the NSC, and
all 12 NFS disagreed with the
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requirement that sector managers must
increase the frequency for submitting
sector reports from weekly to daily once
80 percent of any sector ACE is reached,
or when 20 percent or more of the
sector’s ACE of any stock is harvested
for 2 consecutive weeks. The sectors
claimed this requirement will
unnecessarily increase the
administrative burden on sector
managers.
Response 2: NMFS is requiring
increased reporting when specific
thresholds are reached for several
reasons. Close monitoring will help
prevent a sector from exceeding its ACE,
especially after a sector reaches an ACE
reporting threshold. Due to the small
amount of ACE that some sectors may
have for particular stocks, it is possible
for a sector to quickly, and
unintentionally, reach and exceed an
ACE. While it is the sector manager’s
responsibility to ensure that his or her
sector does not exceed its ACE for any
stock, it is ultimately NMFS’
responsibility to monitor sector catches
and prevent overfishing from occurring.
Therefore, increased reporting by
sectors that meet or exceed these
threshold requirements is necessary. An
alternative threshold for increasing
reporting frequency may be
implemented during FY 2010 if agreed
to by a sector and NMFS.
Comment 3: The SHS suggested
rephrasing a statement in the proposed
rule which states that ‘‘[s]ector vessels
would be required to retain all legalsized allocated groundfish,’’ to ‘‘[s]ector
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25
44, 45, 47, 48,
49
45
46
53
55
60
61
63, 64, 65, 66,
67
75
80
87
vessels fishing with gear capable of
catching ground fish would be required
to retain all legal-sized allocated
groundfish.’’
Response 3: The Amendment 16
regulations define a sector trip, with
respect to the NE multispecies fishery,
as any trip taken by a sector vessel
subject to the restrictions and
conditions of an approved sector
operations plan, in which the vessel
declared its intent to fish in the NE
multispecies fishery. There is evidence
that suggests that some gears considered
not capable of catching groundfish (i.e.,
exempted gear) can, in fact, catch
groundfish. While this rule does not
contain any regulations, revising
Amendment 16 regulations from an
inaccurate list of gear-types that are
considered incapable of catching
groundfish may result in an inaccurate
account of groundfish catch. Therefore,
all sector trips are required to retain all
legal-sized groundfish.
Comment 4: Oceana, referencing
section 4.2.3.5.3 of the Amendment 16
Final Environmental Impact Statement
(FEIS), which says ‘‘Sector operations
plans will specify how a sector will
monitor its catch to assure that sector
catch does not exceed the sector
allocation,’’ questioned why the majority
of sector operations plans then make
reference to following NMFS’
instructions in calculating discards. For
example, the SHS’s operation plan
states that, ‘‘[m]embers of the Sector
agree that discards will be calculated as
directed by NMFS, based on 30-percent
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at-sea-monitoring conducted by the
NMFS.’’
Response 4: Section 4.2.3.5.3 of
Amendment 16 clarifies that ‘‘[a]ssumed
discard rates will be applied to sectors
unless an at-sea monitoring system
(such as a sector’s independent
monitoring program, a Federal
monitoring program, or other program
that NMFS determines is adequate)
provides accurate information for use of
actual discard rates.’’ No sector has
elected to develop its own at-sea
monitoring program; therefore, all
sectors will utilize the monitoring
program implemented by NMFS.
However, two sectors have stated that
they may pay monitoring providers for
increased at-sea monitoring coverage
levels above those required and
implemented by NMFS and NEFOP.
While all sectors will begin FY 2010
with an assumed discard rate calculated
by NMFS, NMFS has developed a
monitoring program that will enable it
to provide each sector with sectorspecific, gear specific, discard rates that
will provide more accuracy than an
assumed discard rate. Accordingly,
NMFS required that each sector
operations plan state that the sector will
utilize discard rates ‘‘as directed by
NMFS.’’ Amendment 16 does not
require sectors to independently
develop their own at-sea catch
monitoring system that accounts for
discards until FY 2012. This
implementation is phased-in so that
sectors have time to develop these
systems, locate qualified vendors, and
have their programs approved by NMFS.
Comment 5: The UNFA questioned
how permit holders were expected to
make an informed decision on sectors
when Amendment 16 measures were
not fully approved.
Response 5: Although Amendment 16
measures were not approved until
January 21, 2010, NMFS believes ample
information and time were provided for
eligible NE multispecies permit holders
to enroll in a sector for FY 2010. In
anticipation that Amendment 16 would
be approved, NMFS mailed all limited
access NE multispecies permit holders
letters dated February 17, 2009, and
March 25, 2009, which explained the
Council’s recommended process for
determining a permit’s PSC for FY 2010,
and notified fishermen of the release of
landings data. A letter dated May 1,
2009, was sent to permit holders
detailing each permit’s PSC for the five
different PSC options being considered
by the Council for Amendment 16,
including the two different allocation
baselines the Council was considering.
Permit holders also received a letter
dated May 14, 2009, that notified them
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of the timeline for implementation of
sectors for FY 2010, explained more
about PSCs, and provided them with
additional vessel and permit data to
help them make an informed decision
about whether or not to join a sector for
FY 2010.
Amendment 16, which includes new
sector regulations and authorization for
up to 19 sectors, was approved by the
Council on June 25, 2009. Following the
Council’s approval of FW 44 on
November 18, 2009, in which it
established NE multispecies ACLs for
FY 2010–2012, a second round of
permit holder letters, which provided
each limited access NE multispecies
permit holder with information about
their groundfish PSCs, was mailed on
December 23, 2009. A proposed rule
summarizing sector operations plans,
contracts, and allocations was published
in the Federal Register on December 22,
2009, and the proposed rule for
Amendment 16 was published on
December 31, 2009. NE multispecies
permit holders who could have enrolled
in a sector had until January 22, 2010,
to commit to a particular sector, and
have until April 30, 2010, to opt out of
a sector, unless the contract for the
sector to which they committed states
otherwise. Therefore, NMFS believes
that sector participants had ample
information and time to make an
informed decision on sectors even
though the final rule for Amendment 16
had not been published in the Federal
Register.
Comment 6: The Council expressed
concern with the process NMFS used
while reviewing exemption requests
within sector operations plans and the
accompanying EAs. The Council
asserted that the review process by
NMFS ‘‘unilaterally expanded the list of
measures from which an exemption
cannot be granted’’ and was inconsistent
with the FMP. The Council reiterated
that Amendment 16 allows sectors to
request additional exemptions to
supplement the universal exemptions
approved in Amendment 16.
Response 6: As the proposed rule
explained, after an initial review of the
sector operations plans and EAs, ‘‘NMFS
provided each sector with comments,
including an assessment of which
exemption requests NMFS would likely
disapprove because of serious concerns
with negative environmental impacts
that could result from granting the
exemption.’’ NMFS initially contacted
the sector managers regarding these
‘‘exemptions of serious concern’’ to
clarify its apprehension with those
particular exemption requests. This
initial dialogue provided sector
managers an opportunity to either
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remove the exemption request(s) from
their operations plans and EAs, thus
reducing their administrative burden, or
provide early notice and additional time
to gather additional supporting evidence
for why the exemption request should
be approved by NMFS. Some sectors
removed these exemption requests from
their operations plans and others did
not.
While this early notification was an
attempt by NMFS to maintain
transparency in its review process,
NMFS later recognized that requesting
sector managers to alter their operations
plans and EAs prior to public review
was not necessarily most beneficial to
the public. Therefore, NMFS decided to
include all legally permissible
exemption requests in the proposed
rule, except those measures that were
also under consideration in Amendment
16 (i.e., the GOM Sink Gillnet Pilot
Program). NMFS explained that, if
public comment on these exemptions of
serious concern provided additional
support that convinced NMFS to change
its earlier stance on these exemption
requests, the sector operations plans and
EAs would be revised accordingly.
Thus, sectors were provided an
opportunity to request additional
regulatory exemptions beyond the
universal exemptions specified in
Amendment 16 and NMFS’ decision on
these requests are documented in the
preamble.
Comment 7: The Council commented
that some exemption requests contained
no analysis supporting approval or
disapproval of the sector exemptions.
The Council expressed concern that the
public could not provide informed
comment on an exemption request that
lacks analysis.
Response 7: As explained in the
proposed rule, after completing an
initial review of 17 sector operations
plans and contracts submitted on
September 1, 2009, NMFS provided
each sector with comments, including
an assessment of which exemption
requests NMFS would likely disapprove
because of serious concerns with
negative environmental impacts that
could result from granting the
exemption. At the request of NMFS,
some of the sectors removed these
exemption requests from their
operations plans, while other sectors
did not. After reconsideration, NMFS
included all of the exemption requests
of serious concern in the proposed rule,
and solicited public comment on these
requests. While most of the exemption
requests that were removed by the
sectors lacked any supporting analysis
in the EAs, sectors were given until
January 27, 2010, to further justify their
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exemption requests prior to publication
of the final rule.
This deadline was necessary because
NMFS needed time to review the final
EAs to meet a May 1, 2010
implementation deadline. However, no
new analyses were provided during this
time or during the public comment
period on the proposed rule.
NMFS is aware that the public did not
have an opportunity to provide
comment for those exemption requests
that lacked an accompanying analysis.
Had additional analyses been provided
by the sector, or if new information had
been brought forward from the public in
support of such exemption requests
during the public comment period,
NMFS would have conducted
additional analyses and sought further
public comment on these exemption
requests, consistent with the
Administrative Procedure Act (APA).
Comment 8: Prior to publishing the
proposed rule, NMFS requested that
sectors remove exemption requests that
repeated measures already proposed
under Amendment 16. One of the
requests removed by several sectors
pertained to the GOM Sink Gillnet Pilot
Program. The GOM Sink Gillnet Pilot
Program was subsequently disapproved
in Amendment 16. The SHS, the AFM,
the NSC, all 12 NFSs, and the Council
asked what actions NMFS is considering
for exemption requests that were
removed from sector operations plans
due to consideration in Amendment 16,
but which were then disapproved.
These sectors argued that, although the
measure was disapproved in
Amendment 16, sectors should still be
able to request an exemption from the
regulation.
Response 8: NMFS initially requested
that sectors remove exemptions from
regulations that were being considered
in Amendment 16, to reduce effort
duplication. NMFS will work with
sector managers regarding
reconsideration of this particular
exemption request and may approve or
disapprove these requests in a future
rulemaking. NMFS may solicit
additional public comment on granting
approved sectors exemption requests to
all sectors if additional rulemaking is
initiated.
Comment 9: The APO, the UNFA, and
one individual, commented that two of
the 19 sectors authorized under
Amendment 16 neglected to provide the
necessary operations plans and EAs,
which prevented the public from
reviewing these sectors’ environmental
impacts.
Response 9: While 19 sectors were
authorized under Amendment 16, only
17 sectors submitted operations plans to
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NMFS for FY 2010. The two sectors that
did not submit an operations plan or EA
to NMFS, the GB Cod Hook Sector and
the NFS I, are, therefore, not approved
in this final rule.
Comment 10: The Council
commented that the operations plan
submitted by NFS IV, which proposes to
operate as a lease-only sector for FY
2010, is inconsistent with the NFS IV
proposal as reviewed and approved for
Amendment 16. In addition, the DMF
commented that a lease-only sector does
not meet the Council’s intent for sectors.
Response 10: NMFS contends that all
sector proposals submitted to and
reviewed by the Council for inclusion in
Amendment 16 constituted an initial
submission that was offered by the
sector as a best estimate of what its
membership would resemble. Section
4.3.6 of Amendment 16 says, ‘‘[w]hen
submitted, most applications were
based on the existing sector regulations
that were adopted by Amendment 13.
Since several Council policies may
revise those regulations, some of the
applications may be modified.’’ It was
understood by the Council that exact
membership numbers and details for
each sector were subject to change, and
that these changes would be made
available for public review and
comment within the proposed rule for
sector operations plans, contracts, and
allocations was published. Following
the extension of the January 22, 2010,
enrollment deadline, many sectors have
transformed dramatically from what
each sector presented to the Council for
consideration in Amendment 16. For
instance, in Amendment 16, the SHS
predicted its membership to be
comprised of ‘‘more than 70’’ permit
holders; as of January 22, 2010, there
were 129 permits associated with the
SHS. Section 4.2.3.2 of Amendment 16
details requirements for a sector, such as
providing a list of all vessels that would
be part of the sector, including an
indication for each vessel of whether it
would continue to fish, and a detailed
plan for consolidation of ACE, if any is
desired, as well as an explanation of the
quantity and duration of any
redistribution of ACE or DAS within the
sector. NFS IV has met these and all
other requirements in section 4.2.3.2.
Moreover, Amendment 16 does not
require a sector to actively engage in
fishing operations. In fact, section
4.2.3.7 of Amendment 16 states that ‘‘all
or a portion of a sector’s ACE of any
stock can be transferred to another
sector.’’ There are currently no
regulations that prevent a sector from
forming and transferring its entire ACE
to another sector.
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Lastly, NMFS endorses the
transparent approach taken by the NFS
IV. For instance, if the NFS IV was not
permitted to operate as a lease-only
sector, it is likely that the permits
within this sector would have simply
been scattered among all 12 NFS,
making it more difficult to determine
the environmental impacts of these
permits and to follow the resulting
consolidation and potential redirection
of effort associated with the permits.
Comment 11: One individual and the
UNFA commented that the proposed
rule did not address recreational sectors.
Response 11: Under Amendment 16,
only limited access NE multispecies
permit holders can join a sector. It
should be noted, though, that no one
from the recreational industry requested
that a recreational sector be included as
an option in Amendment 16; therefore,
the Council did not approve any
recreational sectors in Amendment 16.
Comment 12: The UNFA commented
that the proposed sector rule is in
violation of the Paperwork Reduction
Act (PRA) because the sector reporting
requirements duplicate existing
requirements.
Response 12: This rule does not
implement reporting requirements. The
sector reporting requirements are
established in Amendment 16 and were
addressed in the Amendment 16
proposed and final rules consistent with
the PRA.
Sector EAs
Comment 13: Oceana commented that
fundamental information about the
sectors, including sector participants,
expected fishing activity, and sector
administration by NMFS is vague or
non-existent.
Response 13: Each sector EA contains
a description of the sector, including
numbers of permit holders, active
vessels, gear types, geographic areas in
which sector members will fish, and a
description of the primary ports for the
sector’s landings. While the EAs were
being prepared, NMFS surveyed each
sector manager or representative
regarding their sector’s expected fishing
patterns and potential redirection of
effort; in all cases the sector managers/
representatives responded that current
fishing behavior and patterns would not
change as a result of operating under
sector management in FY 2010. Since
sector allocation will be managed
closely through mandatory reporting
and monitoring requirements, the
operations plan for each sector includes
a detailed monitoring plan developed in
concert with NMFS to which members
must adhere.
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Comment 14: For FY 2010, 17 sector
operations plans, each accompanied by
an EA, were included in the proposed
rule. Oceana commented that, due to the
significant changes that will occur
under Amendment 16 and the wide
range of sector operations plans, all
sector environmental impacts must be
incorporated into one single NEPA
document that explains, analyzes, and
considers alternatives for the
management of the groundfish fishery
overall.
Response 14: NMFS is not required to
prepare one NEPA document for all the
sector management alternatives
considered for the groundfish fishery.
As mentioned in the introductory
section of the EAs for each of the 17
sectors, the analysis in each EA tiers off
the information and analysis contained
in the Amendment 16 FEIS. The
Amendment 16 FEIS analyzes measures
that achieve the necessary mortality
targets, provide opportunities to target
healthy stocks, mitigate the economic
impacts of the measures, and improve
administration of the fishery. In the
FEIS, 17 new sectors are authorized and
new criteria are set for these sectors, as
well as the existing 2 sectors, regarding
development of their operations plans.
The impacts associated with the specific
actions, including regulatory
exemptions, of each sector are captured
in the individual sector EAs, while the
impacts associated with Amendment 16
(the action authorizing the formation of
sectors and their general rules and
regulations) are more broadly analyzed
in the Amendment 16 FEIS. As stated in
the Council on Environmental Quality’s
(CEQ) Regulations for Implementing the
Procedural Provisions of NEPA (40 CFR
1502.20), ‘‘tiering’’ is encouraged to
eliminate repetitive discussions of the
same issues and focuses on the actual
issues ripe for decision at each level of
environmental review. The cumulative
impacts of all sectors operating under
their allocations or ACE have been
considered, and this assessment is
found in every sector EA.
Comment 15: Oceana commented
that, without a firm binding statement of
a sector’s enrollment, quota allocation,
and its intended plan of operations for
FY 2010, the public is left to review an
incomplete EA that could change
significantly between the end of the
current comment period and the
beginning of FY 2010. Additionally,
Oceana stated that NMFS must require
meaningful information as the basis of
these important documents and provide
for resubmission of NEPA
documentation if changes are made to
sectors, as currently proposed.
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Response 15: The September 1, 2009,
rosters represented approximately 95
percent of the groundfish ACLs, which
was discussed and analyzed in the
cumulative effects assessment of each
individual sector EA. Because harvest of
95 percent of the ACLs by sectors was
already analyzed in the EAs, any
additional individual that decides to
join a sector after the September 1, 2009,
date would not substantially alter the
impacts from what had been analyzed in
the draft EAs, unless, as discussed in
Section 1 of each EA, additional
members triggered specific criteria that
may necessitate a supplemental EA (i.e.,
different fishing behaviors, gears,
geographic areas). Furthermore, each of
the EAs considered unlimited trading of
ACE between sectors, as permitted in
Amendment 16, which could increase
or decrease an individual sector’s ACE.
Therefore, impacts associated with any
increases or decreases in sector ACEs
due to the addition of permits after
September 1, 2009, are within the range
analyzed in the EAs. As of January 22,
2010, 812 of 1,477 NE multispecies
permits, which account for more than
98 percent of groundfish historically
landed, had enrolled in a sector.
Comment 16: Oceana commented
that, although the sectors have provided
preliminary non-binding information
about vessels that will operate in each
sector, information about gear usage is
crude and that accurate and precise
information about each sector’s fishing
plans must be included in each of the
sector EA documents before they can be
approved.
Response 16: The EAs that were
available to the public at the time of the
proposed rule were prepared based on
the rosters and gear types represented
by the member vessels as of September
1, 2009. The EAs have since been
revised to analyze the sector rosters and
gear types as of January 22, 2010.
Although NMFS provided an additional
opportunity for sectors to re-open their
rosters to allow for new members to
enroll or transfer from one sector to
another, dramatic change in the
composition of each sector’s fleet did
not occur. As of January 22, 2010, 13 of
the 17 sectors will predominantly fish
with trawl gear; two will predominantly
fish with fixed gear; and one is
comprised equally of gillnetters and
trawlers. Further, the overall character
of the fleet that currently operates under
common pool management measures
will not change due to the
implementation of the FY 2010 sectors.
As explained in response 10, sectors
stated in their operations plans that
fishing behavior and patterns for sector
member vessels would not change as a
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result of operating under sector
management. Because sector members
have until April 30, 2010, the day prior
to the start of FY 2010, to withdraw
from their sector and fish in the
common pool, the potential make-up of
the sectors (i.e., gear usage ratio, number
of members) remains subject to change.
Comment 17: Oceana commented that
the use of particular gears (for example,
bottom trawls) and the effects of fishing
on EFH by sector vessels are tersely
discussed in many of the EA documents
that support each sector. Oceana further
asserted that, despite boilerplate
findings in these EAs that demonstrate
significant impacts of bottom-tending
mobile gears on EFH, there is no
discussion or exploration of alternatives
to these gears. Finally, Oceana claimed
that failing to complete a robust analysis
of gear usage and fully explore
alternatives, including requiring other
gears to be used to prosecute the fishery,
violates NEPA.
Response 17: The purpose and need
of these EAs, as required by
Amendment 16, was to assess impacts
of each sector’s operations plan.
Significant impacts to EFH by fishing
gears for sector vessels were discussed
in the Amendment 16 FEIS and are not
repeated in these EAs. Use of bottomtending mobile gear by fishermen would
have the same impact to habitat,
whether vessels were operating under
the Amendment 16 common pool rules
or under the harvest rules specified in
the sector operations plan, because the
overall mortality limits constraining
effort are the same for the management
options.
Comment 18: Oceana commented that
section 4.1.4 of the sector EAs, which
consists of documents prepared by
Entrix, Inc. [‘‘Gear Types and Interaction
with Habitat’’] seem to be virtually
identical, and the discussion of a
specific sector’s effects on EFH is
inadequate.
Response 18: According to CEQ
regulations (40 CFR 1502.15), the
Affected Environment section of an EA
must describe the environment of the
area(s) to be affected by the alternatives
under consideration, and the
description should be no longer than is
necessary to understand the effects of
the alternatives. In compliance with
CEQ regulations, the Affected
Environment section in the sector EAs
(section 4) is a description of the valued
ecosystem components (VECs); physical
environment (including EFH); the
allocated target species; the nonallocated target and bycatch species;
protected resources; and the human
communities, including the social and
economic environment. Section 5 of
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each sector EA, ‘‘Impacts of the
Proposed Action and Alternatives’’
discusses sector-specific impacts on
EFH and other VECs ecosystem
components. Since the composition of
gear used by the fleet is not changing as
a result of the formation of sectors,
overall impacts to habitat and EFH are
expected to be no different than under
current management measures.
Exemption Requests
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120-Day Block Requirement Out of the
Fishery for Day Gillnet Vessels
Comment 19: The AFM, NSC, FGS,
SHS, each NFS, Council, DMF,
Environmental Defense Fund (EDF),
Cape Cod Commercial Hook
Fishermen’s Association (CCCHFA), and
four individuals commented in support
of the exemption request from the 120day block requirement out of the fishery
for Day gillnet vessels. They stated that
this regulation is an effort control that
is no longer necessary in a fishery
managed under an ACE, and that FY
2010 allocations make this effort control
unnecessary. The AFM, SHS, and one
individual pointed out that this
exemption would reduce the
administrative burden on sectors.
Addressing NMFS’ concern about
possible untended and/or ghost gear
that could result from granting this
exemption request, the Council and
three individuals commented that
efforts by fishermen to prevent gear loss
and maintain product quality would
prevent gear from being tended less
often.
Response 19: NMFS agrees with these
comments and has approved this
exemption request for FY 2010.
Comment 20: The Council
commented that the 120-day block
requirement out of the fishery for Day
gillnet vessels was not approved in
Amendment 7, as stated in the sector
proposed rule, but rather was adopted
in FW 20 (62 FR 15382; April 1, 1997)
to make the effort control program more
effective for Day gillnet vessels.
Response 20: NMFS agrees and has
acknowledged this error in the preamble
to this final rule.
Comment 21: The Council disagrees
that exemption from the 120-day block
requirement out of the fishery for Day
gillnet vessels could lead to an increase
in gear days, and the DMF commented
that the concerns expressed by NMFS in
the proposed rule are inconsistent with
the ‘‘philosophy that sectors will fish in
a way to characterize themselves as
stewards of the resource.’’
Response 21: In the proposed rule,
NMFS stated, ‘‘if some vessels are not
selective and/or if they catch less fish,
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CPUE could decrease and more fixed
gear could be deployed.’’ Although it is
unclear what affect sector vessels may
have on CPUE, NMFS agrees with the
commenters that CPUE will most likely
increase, and has approved the
exemption requests from the 120-day
block requirement out of the fishery for
Day gillnet vessels.
Prohibition on a Vessel Hauling
Another Vessel’s Gillnet Gear
Comment 22: The NSC, and the 12
NFS it supports, commented that NFS
III and XI requested an exemption from
the prohibition on a vessel hauling
another vessel’s gillnet gear to offset
NMFS’ concerns regarding potential
increases in CPUE from exempting the
120-day block requirement out of the
fishery for Day gillnet vessels. DMF,
EDF, and the FGS commented in
support of these sectors’ request for the
purpose of increasing harvest flexibility
through the use of community fixed
gear.
Response 22: NMFS endorses the
efforts by the NFSs III and XI to improve
CPUE and reduce gear days and has
approved their request for an exemption
from the prohibition on a vessel hauling
another vessel’s gillnet gear.
20-Day Spawning Block Requirement
Out of the Fishery
Comment 23: The AFM, SHS, and six
individuals supporting those sectors’
exemption requests from the 20-day
spawning block requirement out of the
fishery, said that this regulation is an
effort control no longer necessary in a
fishery managed under an ACE, that
reduced allocations for FY 2010 make
this effort control unnecessary, and that
this exemption would reduce the
administrative burden on sectors. The
AFM, SHS, EDF, the Council, and five
individuals commented that the 20-day
spawning block does not cover all peak
spawning times, that the benefits of this
regulation are unclear, and that this
measure is therefore ineffective. The
Council further commented that the 20day spawning block was developed
without any analysis on spawning
stocks, and DMF supported the
exemption request provided that each
sector included a detailed strategy for
avoiding pre-spawning and spawning
stocks. One individual suggested
fishermen are less likely to target
spawning stocks since market prices are
lower for spawning fish. The NCCS
opposed this exemption request,
claiming this measure set a precedent
for the protection of spawning fish.
Response 23: NMFS agrees with these
comments and has approved this
exemption request from the 20-day
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18125
spawning block for FY 2010. While
NMFS supports the protection of
spawning stocks, prohibiting vessels
from fishing 20 days within a 3-month
spawning period will likely provide
minimal benefit to the stocks.
Limitation on the Number of Gillnets
Imposed on Day Gillnet Vessels
Comment 24: The AFM, SHS, EDF,
and four individuals supported easing
the limitation on the number of gillnets
for Day gillnet vessels to 150 nets in
each of the RMAs. These commenters
stated that this regulation is an effort
control no longer necessary in a fishery
managed under an ACE, and that
reduced allocations for FY 2010 make
this effort control unnecessary. The FGS
supported this exemption because it
would provide increased flexibility for
fishermen while minimizing
environmental impacts.
Response 24: NMFS agrees with these
comments and has approved the SHS’s
request for exemption from the
limitation on the number of gillnets for
Day gillnet vessels in the SHS sector
(not to exceed 150 gillnets).
Comment 25: Comments by the AFM
and four individuals argued that NMFS’
Protected Resources Division
extrapolates takes of marine mammals
based on the amount of fish caught in
gillnets, not by the number of gillnets in
the water.
Response 25: Estimating the number
of takes of marine mammals is not
equivalent to predicting potential fixed
gear interactions with protected
resources. The proposed rule explained
that protected resources could be
‘‘negatively impacted by an increase in
gear days and more fishing effort,’’ as
well as ‘‘spatial and temporal changes in
fixed gear location and how these
changes interact with protected
species.’’ NMFS believes that, while an
increase in the number of gillnets could
increase gear interactions with protected
species, simply changing where and
when the gear is used could also have
a negative (or positive) impact on
protected resources. Nonetheless,
granting this exemption will likely
increase CPUE and reduce gear
interaction with protected resources,
and therefore, it has been approved.
Comment 26: Comments by the AFM
and four individuals contended that
NMFS incorrectly stated that nets in the
water will increase in the GB and SNE
RMAs, as gillnet vessels can already fish
150 monkfish nets in those areas.
Response 26: Gillnet restrictions for
vessels with Category C, D, F, G, and H
monkfish permits that also possess a
limited access NE multispecies permit
(§ 648.92(b)(8)(i)(B)), do in fact allow
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vessels fishing under a monkfish DAS to
fish with, haul, or possess, any
combination of monkfish, roundfish,
and flatfish nets, up to 150 total gillnets.
However, current groundfish gear
restrictions in the groundfish RMAs
restrict Day gillnet vessels from fishing
more than: 100 gillnets (of which no
more than 50 can be roundfish gillnets)
in the GOM RMA (§ 648.80(a)(3)(iv)); 50
gillnets in the GB RMA
(§ 648.80(a)(4)(iv)); and 75 gillnets in the
SNE and MA RMAs (§§ 648.80(b)(2)(iv)
and 648.80(c)(2)(v), respectively). Thus,
not all NE multispecies vessels (vessels
without a Category C, D, F, G, or H
monkfish permit) are able to fish 150
nets in those areas.
Comment 27: The AFM commented
that gillnet vessel owners should be
allowed to change their annual
designation as Day or Trip gillnet vessel
for FY 2010 once NMFS has decided on
the fate of this exemption request.
Response 27: Consistent with current
policy, gillnet vessels may change their
designation as either a Day or Trip
gillnet vessel within 45 days of permit
issuance, provided the vessel has not
yet fished in the FY. This final rule,
therefore, provides opportunity for
sector vessels to change their gillnet
designation prior to the start of FY 2010.
Comment 28: The DMF opposed
granting an exemption from regulations
limiting the number of gillnets for Day
gillnet vessels due to a lack of
‘‘meaningful’’ at-sea sampling coverage
for sectors until FY 2012. DMF
expressed concern that gillnets generate
a large amount of bycatch, which could
result in unrecorded discards as SHS
vessels attempt to prevent ACEs from
being exceeded.
Response 28: When the Council
adopted Amendment 16, the Council
neither selected the option to require
100-percent observer coverage, nor
required sectors or the common pool to
be subject to an at-sea monitoring
program in FY 2010. However, NMFS
agrees with the basic concept advocated
by DMF that higher levels of observer
coverage are more effective at collecting
the data necessary to monitor
groundfish landings and discards under
Amendment 16. NMFS has funding to
provide approximately 38-percent at-sea
monitoring coverage for sector vessels,
in addition to fully funding 50-percent
dockside monitoring coverage for FY
2010. This is a significant increase in
current at-sea monitoring levels, and
dockside monitoring is entirely new.
Such coverage levels should provide
sufficient information to more than meet
the minimum requirements of the
Standard Bycatch Reporting
Methodology (SBRM), while providing
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additional coverage to monitor sector
operations under Amendment 16.
Distribution of such funds was intended
to accomplish the dual goal of
monitoring both at-sea catch and
dockside landings to ensure that
discards are accurately estimated and
landings data are validated.
Comment 29: One individual stated
that permitting the SHS to fish up to 150
gillnets in any of the Rolling Closure
Areas was an inequitable advantage for
the sector over common pool vessels,
and that it would have a detrimental
effect on other fisheries.
Response 29: All limited access NE
multispecies permit holders have been
provided the opportunity to enroll in a
sector. Sector vessels have been granted
exemptions from several regulations
that common pool vessels are still
required to follow because each sector
voluntarily accepted increased
responsibilities in exchange for an ACE
to limit its catch. NMFS believes that
requiring sectors to retain all legal-sized
groundfish and to deduct all nonexempted catch (both landings and
discards) from its ACE will increase the
accountability of sector vessels and will
reduce the impact from groundfish
vessels on other fisheries.
Limitation on the Number of Gillnets
That May Be Hauled on GB When
Fishing Under a Groundfish/Monkfish
DAS
Comment 30: The DMF, EDF,
CCCHFA, and FGS, commented in
support of exempting FGS vessels from
the limit on the number of gillnets that
may be hauled on GB when fishing
under a groundfish/monkfish DAS.
Response 30: NMFS believes this
exemption will enhance fishing vessel
flexibility and improve CPUE while
reducing the environmental impact of
fishing and, therefore, has approved this
exemption request.
Limitation on the Number of Hooks
That May Be Fished
Comment 31: The CCCHFA and FGS
both supported the FGS’ exemption
request from the limit on the number of
hooks that may be fished. DMF also
endorsed this request, provided the
sector offers rationale for why the
exemption is necessary, includes details
on what their maximum hook limit
would be, and provides a strategy for
avoiding pre-spawning and spawning
stocks.
Response 31: NMFS encourages the
use of fishing gear that results in
minimal environmental impact and
believes that the FGS provided adequate
rationale for their hook gear exemption
request in their operations plan and EA.
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NMFS does not believe it is necessary
for the FGS to detail how many hooks
will be used, but encourages the FGS to
develop a strategy for avoiding
spawning stocks.
Length and Horsepower Restrictions on
DAS Leasing
Comment 32: EDF, AFM, and five
individuals commented in support of
exemption requests made by the SHS
and TSS from the length and
horsepower restrictions on DAS leasing.
EDF and one individual stated that there
was no need for such an effort control
while the sectors are restricted to an
ACE. Three other individuals and AFM
claimed that monkfish bycatch would
be better accounted for as a result of this
exemption. An additional individual
commented that DAS and quotas would
remain intertwined until a
comprehensive plan is completed, and
this exemption will ease the transition.
Response 32: NMFS agrees that
restricting a sector to its ACE reduces
the need for DAS leasing restrictions
and concurs that granting this
exemption will ease the transition for
limited access monkfish and NE
multispecies limited access permitted
vessels into sectors and catch share
management. Additional horsepower
could allow a vessel to catch more fish
in less time with less of an impact on
the environment. Because vessel
replacements will continue to be
restricted by length overall and
horsepower limits, this exemption is not
expected to change the character of the
fleet. Although an exemption from HP
restrictions could allow a vessel to catch
fish more quickly, NMFS disagrees that
this exemption would result in
improved accounting of bycatch. This
exemption would enable SHS and TSS
permitted vessels to better match their
groundfish DAS with monkfish DAS
and fish groundfish DAS and monkfish
DAS simultaneously. This would allow
for sector vessels to retain more
monkfish and groundfish, increase
vessel profits, and reduce regulatory
discards.
Comment 33: Three individuals
commented in opposition to the
exemption from DAS and horsepower
leasing restrictions. Two of these
individuals were concerned about a redirection of effort toward the monkfish
and skate fisheries, and the third
individual commented that, because
DAS is the primary mortality control for
monkfish, these regulations should
remain.
Response 33: NMFS surveyed the
sectors’ expected fishing patterns and
potential redirection of effort for FY
2010, and, in all cases, the sectors
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responded that current fishing behavior
and patterns would not change as a
result of operating under sector
management. Further, monkfish
mortality controls in the Monkfish FMP
are not based on groundfish DAS. Sector
vessels are still required to use a
monkfish DAS when targeting
monkfish.
Comment 34: DMF questioned
whether DAS that otherwise would have
been used by sector vessels for
groundfish fishing could now be leased
to sector vessels targeting monkfish.
Response 34: Since sector vessels are
no longer subject to groundfish DAS,
sector vessels that do not plan to harvest
more than the incidental catch limit of
monkfish could lease their groundfish
DAS to another sector vessel that
intends to target monkfish. Sector
vessels fishing on a sector trip for
monkfish, or any other non-groundfish
fishery that is not exempted (e.g.,
skates), are required to use a groundfish
DAS. However, the monkfish FMP
mortality controls are not based on
groundfish DAS, so this provision
would not compromise the ability of the
monkfish FMP to meet its mortality
targets.
srobinson on DSKHWCL6B1PROD with RULES
Exemption Requests That Were Not
Approved
GOM Rolling Closure Areas
Comment 35: NSC, AFM and one
individual asserted that the GOM
Rolling Closure Areas were not designed
to protect spawning fish. NSC argued
that it was therefore inappropriate to
reject such a request based on ancillary
benefits that Rolling Closure Areas may
provide to spawning fish and marine
mammals. AFM, SHS, and one
individual specified that the Rolling
Closure Areas were no longer necessary
for mortality control since sectors would
be limited to their ACEs. Conversely,
EDF commented that ancillary benefits
may be sufficient justification for
denying exemption requests. DMF,
CCCHFA, and NCCS commented that
protection of spawning fish was a part
of the Rolling Closure Areas, while
CCCHFA and FGS specifically
commented that spawning fish require
additional protections.
The SHS argued in their EA that
fishing methods and areas fished would
not result in additional interactions
between gear and protected resources.
The six NFSs that requested exemption
from 30-minute blocks 124, 125, 132,
and 133 in April contended in their
operations plans and contracts that their
members’ knowledge would enable
them to avoid spawning aggregations of
fish and that not granting their request
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could prematurely end commercial
access to haddock in those areas. The
NFSs provided a strategy to minimize
the impacts to spawning fish while
promoting benefits to sector members.
Response 35: NMFS agrees that the
Rolling Closure Areas were
implemented to protect spawning fish.
Although FW 25 to the FMP initially
implemented the closures to protect
groundfish stocks in 1998, FW 26
identified and enhanced these areas,
which were referred to as ‘‘cod
spawning’’ closures. The final rule
implementing FW 26 specified that the
Council undertook the action because of
the ‘‘opportunity to delay fishing
mortality on mature cod during the
spring spawning period, a time when
stocks aggregate and are particularly
vulnerable to fishing pressure.’’ Based
on this information, NMFS is reluctant
at this time to grant further exemptions
to the GOM Rolling Closure Areas
beyond the universal exemptions
approved in Amendment 16, and has,
therefore, not approved the sectors’
additional GOM Rolling Closure Area
exemption requests.
Comment 36: The Council, AFM, SHS
and two individuals commented that
the ‘‘Council endorses requests made by
sectors that they be exempt from the
rolling closure block 138 in May.’’ SHS,
AFM and one individual stated that
block 138 is the only block closed east
of 70° W. long. and is particularly
important to Maine and New Hampshire
vessels that fish close to shore. One
individual commented that exemption
from block 138 would reduce an
administrative burden placed on vessels
and another individual supports this
exemption in order to give vessels
additional flexibility.
Response 36: NMFS acknowledges the
Council’s endorsement of sectors’ right
to request additional exemptions from
Rolling Closure Areas and, therefore,
solicited comment on these requested
exemptions. However, NMFS has
disapproved the request for an
exemption from block 138 for the
reasons set forth in the preamble: These
exemption requests fail to consider that
direct targeting of spawning
aggregations can adversely impact the
reproductive potential of a stock as
opposed to post-spawning mortality;
NEFSC spring survey data for 2006–
2008 indicate that very high
concentrations of cod (highest quartile
of tows by weight) continue to be
present in the April GOM Rolling
Closure Area, especially west of 69°30′
W. long., while moderate concentrations
of cod are found in block 138;
justification that demonstrates that
spawning fish could be avoided was not
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18127
provided by the individual sectors (see
comments and response); and the GOM
Rolling Closure Areas also afford some
protection to harbor porpoise and other
marine mammals. As a result of these
concerns, this exemption request was
not approved.
Comment 37: The NSC commented
that in an attempt to offset potential
effort on spawning stocks that could
result from an exemption from blocks
124, 125, 132, and 133 in April, NFSs
did not request exemption from the 20day spawning block that is required by
all vessels. These NFS sectors also
offered to limit the percentage of their
cod allocations that could be taken
during April to further address any
common pool inequities.
Response 37: NMFS acknowledges
that the NFSs’ operations plans
included strategies to mitigate potential
adverse impacts of additional
exemptions from the Rolling Closure
Areas. However, NMFS has disapproved
the request for an exemption from 30minute blocks 124, 125, 132, and 133 in
April because the rationale provided
was insufficient for the reasons
explained earlier in the preamble and
above under Response 37.
Comment 38: NSC requested that
NMFS not defer approval of additional
Rolling Closure Area exemptions until
analyzed by the Council’s PDT, since
there has been a lack of data since the
areas closed in 1998 under FW 25.
Response 38: NMFS disagrees that
there is a lack of data and has used data
from the NEFSC’s annual spring bottom
trawl surveys in evaluating these
exemptions. Data from 2006 through
2008 demonstrate that many of the
highest catches of Atlantic cod occur in
most of the 30-minute blocks from
which sectors have requested
exemptions. NEFSC reviewed the
exemptions requests and have raised
concerns that granting exemptions from
blocks 124, 125, 132, and 133 in April
would have severe negative impacts on
spawning fish, while granting an
exemption from block 138 in May
would have a moderate negative impact
on spawning fish.
Comment 39: DMF commented that
NMFS should not approve any
additional exemptions from GOM
Rolling Closure Areas until sectors have
operated for at least 1 year.
Response 39: NMFS acknowledges
this comment and points out that
additional exemption requests from the
GOM Rolling Closure Areas have not
been granted for FY 2010.
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72-Hour Observer Notification
Requirement
Comment 40: The NSC and all 12
NFSs support an exemption from the
72-hour observer notification
requirement. EDF argued that, while the
full suite of data collected by NEFOP is
valuable, the primary monitoring goal of
catch shares is tracking catch. EDF
opined that, if a sector can hire an
approved third-party at-sea monitor,
they should be freed from the
constraints of the NEFOP program.
However, EDF also proposed setting a
cap on how many trips could be
exempted from NEFOP, to ensure
NEFOP goals are not undermined. The
FGS commented that the NEFOP notice
requirement of 72 hour
disproportionately impacts day boats,
which cannot accurately forecast trips 3
days in advance and, therefore, are
generally excluded from fisheries
requiring such notice. DMF opposes the
exemption, concurring with NMFS’
rationale in the proposed rule.
Response 40: NMFS disagrees with
EDF’s assertion. A catch-share based
fishery increases the importance of
timely and accurate discard monitoring
as well as landings. NMFS’ intent in
implementing additional at-sea
monitoring (30-percent of trips, in
addition to existing NEFOP coverage for
sector vessels) is to track catch (landings
and discards). In order to properly select
trips for observer coverage and at-sea
monitoring coverage, NEFOP must be
notified of all trips.
NMFS also disagrees with FGS’
assertion that day boats are prevented
from participating because of the
NEFOP notice requirement. Day vessels
are currently allowed to notify NEFOP
of all possible trips for a week at a time
with no penalty for canceling trips. This
allows day vessels to make decisions on
a daily basis without undermining trip
selection by NEFOP. This provision
remains unchanged for sector dayboat
vessels for FY 2010. Further, NMFS has
reduced the requirement from 72- to 48hour for all groundfish vessels in the
final rule implementing Amendment 16
to ease the burden on vessels.
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Halibut One-Fish Trip Limit
Comment 41: NCCS, the only sector to
request exemption from the halibut onefish trip limit, commented that halibut
is showing a recovery in eastern Maine
and that Maine’s State fishery for
Atlantic halibut provides valuable stock
information. The NCCS also stated that
allowing vessels to participate in the
Maine State fishery would keep
mortality of Atlantic halibut consistent
with current fishing practices. EDF
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commented in support of the exemption
request, asserting that Canadian data
shows a more robust Atlantic halibut
population in Canadian waters than
assessments focused on U.S. waters
suggest. Conversely, the Council
disagreed with allowing an exemption
from the one-fish halibut provision,
noting that Amendment 16 requires a
27-percent reduction in Atlantic halibut
mortality and that this exemption
request is inconsistent with the
rebuilding plan in Amendment 16.
Response 41: NMFS agrees with the
Council’s comment that Atlantic halibut
still requires a substantial mortality
reduction. NMFS agrees with the
Council that maintaining current
mortality rules for Atlantic halibut
would be inconsistent with the
rebuilding program, and has therefore
disapproved this exemption request.
Furthermore, NMFS disagrees with
NCCS that this exemption would
maintain current Atlantic halibut
mortality levels because the NCCS
vessels are currently prohibited from
participating in the Maine State fishery.
Comment 42: NCCS argued that
adopting the State fishery’s restrictive
annual limit could result in lower total
halibut landings. The Council
commented that it is unclear how
fishing under State limits would affect
Atlantic halibut mortality.
Response 42: NMFS disagrees with
this comment by the NCCS. All
Federally permitted vessels are
currently prohibited from targeting
Atlantic halibut. Maine, however,
allows a fishery for State-only permitted
vessels to target Atlantic halibut, with
the result that participating vessels
change their operations with the express
goal of increasing their catch of Atlantic
halibut. The one-fish trip limit for
Atlantic halibut in the Federal
rebuilding program prevents a targeted
fishery while reducing discard of
bycatch.
VMS Requirements
Comment 43: NSC and 12 NFSs
argued for the ability to utilize a central
sector server to relay member vessel
catch reports and logbook data to
NMFS, commenting that they began
development of a NFS sector data
system prior to NMFS hosting
workshops on sector monitoring, that
the NFS is dependent on their
integrated systems, and that NMFS
should immediately adopt electronic
signature technology, currently in use
by financial and high-technology
industries, which the NFS sectors are
prepared to deploy. DMF opposed this
exemption, based on NMFS’ rationale
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that these data would not be tamperproof.
Response 43: NMFS acknowledges
that NSC initiated software
development prior to the first workshop
NMFS held in June 2009, but disagrees
that this is sufficient sole rationale for
NMFS to approve the NFSs exemption
request from NMFS’ VMS requirements.
The NSC has not yet responded to
NMFS’ request for an electronic
signature proposal to review. Electronic
signatures are one aspect of the NMFSsponsored eVTR pilot study (discussed
in more detail below) currently
underway as a means to evaluate
exemptions that would facilitate
electronic exchange of data between
sector vessels, sector managers, and
NMFS.
Comment 44: The Council
commented that a VMS exemption
request appears inconsistent with the
Amendment 16 measures prohibiting
sectors from requesting exemptions
from reporting requirements.
Response 44: NMFS disagrees, as this
exemption request is not from the
reporting requirement, but from the
specified method for meeting the
reporting requirement. Still, the
exemption request from VMS reporting
requirements was not approved.
Comment 45: EDF commented that
real-time reporting is critical and this
exemption would facilitate timely
reporting.
Response 45: NMFS agrees that realtime reporting is critical and believes
that this exemption and others like it
could be granted once the pilot study
that is currently under way determines
a method that fulfills all necessary
requirements mandated by NMFS.
eVTRs
Comment 46: DMF asserted that an
exemption from paper VTRs should not
be granted until the viability of eVTRs
as a replacement for paper VTRs is
tested.
Response 46: NMFS agrees and has
initiated a pilot study to test the
feasibility of using eVTRs to fulfill all
paper VTR requirements.
Comment 47: CCCHFA and FGS
referred to previous eVTR pilot studies
in the Northeast and urged NMFS to use
these as a basis to approve this
exemption for FY 2010. EDF asserted
that eVTR tests in other regions appear
to document eVTRs as successful.
Response 47: NMFS acknowledges
that some eVTR testing has previously
occurred in the Northeast region, but
disagrees this is sufficient basis for
approving eVTRs at this time. Previous
studies did not comprehensively study
the use of multiple systems or the use
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of eVTRs to meet all requirements of
paper VTRs. Remaining unresolved
issues with approving eVTRs will be
tested in the pilot study mentioned
above.
Comment 48: FGS asserted that paperbased reporting results in delayed
analysis and promotes ‘‘failing’’
management policies. EDF further
asserted that the paper system has
inherent flaws, including time lags and
the opportunity for human error. NSC,
the 12 NFSs, and CCCHFA urged NMFS
to approve eVTRs as quickly as possible.
Response 48: NMFS disagrees that
paper-based reporting systems promote
failing management policies. However,
NMFS does agree that eVTRs should be
approved as quickly as possible if they
are shown to fulfill all paper VTR
requirements.
Comment 49: NSC and all 12 NFSs
commented that the proposed use of
paper VTRs by sector managers for ACE
monitoring is an unachievable
requirement that will drain the limited
time and resources of fishermen and
sectors. NSC also pointed out that
disapproval of an exemption from paper
VTRs fails to recognize that NMFS must
wait for paper VTRs to accomplish catch
monitoring while the private sector is
expected to accomplish the task in 36
hours.
Response 49: NMFS disagrees that the
use of paper VTRs establishes an
unachievable requirement for sectors.
Sector members are required to provide
copies of their VTRs to the sector
manager within 24 hours of the end of
each trip. Each reporting week ends on
Saturday and sector weekly reports are
due to NMFS by 23:59 of the following
Thursday. Therefore, sector managers
will have a minimum of 96 hours to
incorporate data from paper VTRs in
their weekly report to NMFS. This
information will provide NMFS with
more real-time monitoring information.
Comment 50: NSC and all 12 NFSs
stated that it is inconsistent for NMFS
to deny an exemption to use eVTRs
until tested while implementing a
requirement for trip end hails that will
use the same VMS technology.
Response 50: NMFS is not
implementing a requirement for either
trip start or trip end hails to be sent via
VMS. The Dockside Monitoring
Standards require that the transmission
of all vessel hails be either as an e-mail
via VMS, or some other electronic
method, as determined by the sector.
This standard was specifically set to
allow sectors to choose and develop any
electronic means for transmitting hails.
At the request of multiple sectors,
NMFS has added trip start hail and trip
end hail forms to VMS for use by any
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sector that elects to use them. Further,
to mitigate the risk of any electronic hail
system failure, the Dockside Monitoring
Standards also stipulate that ‘‘if the
vessel does not receive confirmation
within 10 minutes, the captain must
contact the vendor to confirm the trip
start hail via an independent backup
system (e.g., a phone number) that must
be set up by the DSM vendor.’’ The 10minute window applies to trip start
hails to minimize the time a vessel must
delay departing on a trip due to a failure
of the primary hail transmission method
selected by the sector. The 10-minute
window does not apply to trip end hails
in acknowledgement that vessels may
have limited communication
capabilities at sea and that vessels
should not be forced to delay their
return to port due to a failure of the
primary hail transmission method
selected by the sector. However, no
vessel may unload its catch until it is
either met by a dockside monitor or
issued a waiver from dockside
monitoring.
Fairlead Roller Spacing on De-Hookers
Comment 51: DMF submitted a
comment supporting NMFS’ stated
rationale for denying this exemption.
Response 51: NMFS agrees and has
denied this exemption request.
Minimum Fish Size Requirements
Comment 52: DMF opposed an
exemption from the minimum fish size
requirements based on NMFS’ concerns
pertaining to enforceability and the
potential to target juvenile fish. EDF
also commented, stating that this
exemption may result in increased
targeting of juveniles with a negative
impact on spawning. The Council
commented that this exemption could
lead to a change in size selectivity that
could lead to an increase in mortality
for a given weight or age-class of fish
which could invalidate the projections
used to determine ABCs and ACLs.
Response 52: NMFS agrees and has
denied this exemption request.
Comment 53: EDF commented that
granting this exemption may reduce
discards of dead and dying fish.
Response 53: NMFS agrees, but has
denied this exemption based on the
enforcement issues and risks to juvenile
fish stated above.
Classification
Pursuant to section 304(b)(1)(A) of the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act), the Assistant
Administrator for Fisheries, NOAA, has
determined that this final rule is
consistent with the NE Multispecies
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18129
FMP, other provisions of the MagnusonStevens Act, and other applicable law,
subject to further consideration after
public comment.
Because this final rule contains no
implementing regulations, it is exempt
from review under Executive Order
(E.O.) 12866.
Pursuant to the Administrative
Procedure Act (APA), 5 U.S.C. 553(d)(3),
NMFS finds good cause to waive the 30day delay in effectiveness of this rule.
Publication of this rule is conditional
upon approval and publication of the
final rule for Amendment 16. These
rules also must be in effect at the
beginning of FY 2010 on May 1, 2010,
to fully capture their environmental and
economic benefits. However, the time
available for this rulemaking and for
Amendment 16 was constrained by
multiple factors, including the
development of Amendment 16 and
Framework 44, data availability, and the
scheduling of U.S. and international
management bodies, which delayed this
rulemaking. Due to these constraints,
the rulemaking could not be completed
further in advance of May 1, 2010, and
in order to have this action effective at
the beginning of FY 2010, it is necessary
to waive the 30-day delay period for this
rule.
This waiver is necessary and in the
public interest. This rule relieves
several restrictions for the NE
multispecies fishery in order to help
mitigate the adverse economic impacts
resulting from continued efforts to end
overfishing and rebuild overfished
stocks in Amendment 16, and increases
the economic efficiency of vessel
operations through the authorization of
17 new sector operations plans for FY
2010. Failure to waive the 30-day delay
in effectiveness could result in shortterm adverse economic impacts to NE
multispecies vessels and associated
fishing communities, as well as to the
fish stocks subject to this rule. Without
this rule, vessels that have signed up to
join a sector in FY 2010 (812 vessels,
55% of the groundfish fleet) would not
be able to take advantage of the
flexibility in vessel operations this rule
implements. For example, sector vessels
would receive exemptions from trip
limits, DAS, and seasonal closure areas
that this rule allows. Moreover, because
vessels committed to a sector may not
fish in both the common pool and a
sector in the same FY, vessels currently
signed into a sector would be forced to
cease fishing operations entirely during
the delay in effectiveness, or forego
sector membership for the entire FY,
thereby losing the mitigating economic
efficiencies of the restrictions relieved
for sector vessels. This would also
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reduce the economic efficiency of the
majority of the fleet until such measures
become effective, and cause
unnecessary adverse economic impacts
to affected vessels. Moreover, this rule,
along with Amendment 16 and FW 44,
is intended to end overfishing of various
stocks in the Northeast and to assist in
the rebuilding of overfished stocks.
Without these rules, several stocks are
likely to continue to experience
overfishing, and rebuilding of stocks, as
required by the Magnuson-Stevens Act,
would likely be compromised. This
would be contrary to not only the
interest of the fishing communities, but
to the public at large, as overfishing and
overfished stocks decreases the ability
of the public to enjoy that stock for
recreational, aesthetic, or other reasons,
and reduces the availability of seafood.
Therefore, delayed implementation of
these measures beyond May 1, 2010, is
contrary to the public interest, and the
requirement to delay implementation of
this rule for a period of 30 days is
hereby waived.
A Final Regulatory Flexibility
Analysis (FRFA) was prepared for both
this rule and the Amendment 16 final
rule, as required by section 604 of the
Regulatory Flexibility Act (RFA). The
FRFA is comprised of the economic
impacts identified in the Initial
Regulatory Flexibility Analysis (IRFA),
which was summarized in the preamble
of the proposed rule, the corresponding
analyses in the EAs prepared for this
action, and the discussions, including
responses to public comments included
in this rule. A description of the action,
why it is being considered, and the legal
basis for this action are contained in the
preamble to this proposed rule and in
Sections 1.0, 2.0, and 3.0 of the EAs
prepared for this action and, thus, are
not repeated here.
srobinson on DSKHWCL6B1PROD with RULES
Summary of the Issues Raised by Public
Comments in Response to the IRFA
DMF commented that the IRFA did
not include specific information
detailing Federal subsidies for
administrative costs, such as those for
sector formation or potential costs to
sectors for dockside and at-sea
monitoring. DMF suggested that
providing additional information on
Federal funds that have been devoted to
sector implementation could help the
public understand why many fishermen
would prefer to enroll in a sector
opposed to fishing in the common pool.
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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
This FRFA details funds set towards
sector implementation. NMFS spent
$490,000 on an environmental services
contractor to assist in drafting the sector
EAs and to conduct NEPA analysis for
each sector. In past years, this cost has
been borne by each sector. NMFS has
funded the estimated full cost of the
first year of dockside monitoring, via a
$1.2 million grant awarded to the GOM
Research Institute (GMRI). NMFS has
distributed the $490,000 of funds among
the sectors to cover start-up and
management costs. A portion of this
amount was awarded to GMRI, which
administered sub-awards to each of the
sectors. In addition, NMFS awarded a
grant worth $230,000 to the State of
Maine, which is making sub-awards to
Maine-based sectors to cover start-up
and operating costs. Lastly, NMFS, at
considerable cost, is providing a fourfold increase in the level of at-sea
monitoring for sector vessels.
Description of and Estimate of the
Number of Small Entities to Which the
Proposed Rule Would Apply
This action will affect regulated
entities engaged in commercial fishing
for groundfish that have elected to join
one of the 17 sectors that have
submitted operations plans and been
approved for FY 2010. Any limited
access Federal permit under the FMP is
eligible to join a sector (Table 4). The
Small Business Administration (SBA)
size standard for commercial fishing
(NAICS code 114111) is $4 million in
sales. Available data indicate that, based
on 2005–2007 average conditions,
median gross annual sales by
commercial fishing vessels were just
over $200,000, and no single fishing
entity earned more than $2 million
annually. Since available data are not
adequate to identify affiliated vessels,
each operating unit is considered a
small entity for purposes of the RFA,
and, therefore, there is no differential
impact between small and large entities.
As of January 22, 2010, a total of 812 of
1,477 eligible NE multispecies permits
indicated their intent to join a sector.
Table 1 presents a summary of the
number and percent of individual and
active permits enrolled in a sector for
FY 2010 as of January 22, 2010. Since
individuals may withdraw from a sector
at any time prior to the beginning of FY
2010, the number of permits
participating in sectors on May 1, 2010,
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and the resulting sector ACE allocations,
may be reduced.
Description of the Projected Reporting,
Recordkeeping, and Other Compliance
Requirements of the Proposed Action
This rule contains no collection-ofinformation requirement subject to the
PRA.
Description of Steps the Agency Has
Taken To Minimize the Economic
Impact on Small Entities Consistent
With the Stated Objectives of
Applicable Statutes
Joining a sector is voluntary. This
means that a permit holder’s decision of
whether to join a sector will be based on
the option that is expected to offer the
greater economic advantage—i.e.,
joining a sector or fishing under effort
controls in the common pool. Since
sectors are granted certain universal
exemptions, and all sectors may request
and be granted additional exemptions
from regulatory measures that apply to
common pool vessels, sector vessels are
afforded greater flexibility than common
pool vessels. Sector members no longer
have groundfish catch limited by DAS
allocations and are, instead, limited by
their available ACE. In this manner the
economic incentive changes from
maximizing the value of throughput of
all species on a DAS to maximizing the
value of the sector ACE. This change
places a premium on timing of landings
to market conditions, as well as changes
in the selectivity and composition of
species landed on fishing trips.
Unlike common pool vessels, sectors
collectively bear the administrative
costs associated with preparing an EA,
as well as the costs associated with
sector management, dockside
monitoring, and at-sea monitoring. The
magnitude of the administrative costs
for sector formation and operation is
estimated to range from $60,000 to
$150,000 per sector, and the potential
cost for dockside and at-sea monitoring
ranges from $13,500 to $17,800 per
vessel. These estimates illustrate the fact
that the potential administrative costs
associated with joining a sector could
have influenced a permit holder’s
decision on committing to a sector. The
majority of these administrative costs
are subsidized by NMFS for FY 2010.
Whether these subsidies, which include
providing financial support for
preparation of sector EAs, dockside
monitoring, and at-sea monitoring, will
continue beyond FY 2010 is not known.
Nevertheless, these subsidies may make
joining a sector a more attractive
economic alternative for FY 2010.
The substantial changes affecting
vessels that choose to join a sector make
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it difficult to assess the economic
impact on these fishing businesses. The
only sector that has been operating since
a sector allocation was first authorized
in 2004 is the GB Cod Hook Sector. The
average revenue per sector member
increased from $61,000 in FY 2004 to
$112,000 in FY 2008. Comparative
analysis of vessels using similar gear
that did not join a sector suggests that
vessels that joined the GB Cod Hook
Sector were more technically efficient.
Whether this difference in efficiency
was because of the flexibility associated
with regulatory exemptions, or due to a
self-selection effect is unknown.
Nevertheless, available information
suggests that economic performance
among sector vessels may be expected to
improve relative to common pool
vessels that remain under effort
controls.
Small entity impacts may differ
depending on sector-specific operations
plans. The number of permits that have
enrolled in each sector, as well as the
operating characteristics of the sector,
may have an economic affect on sector
members (Table 1). The number of
permits enrolled in a sector ranges from
8 to 129. The allocation to any given
sector is based on the combined sum of
the PSC for each stock associated with
all permits enrolled in that sector. All
sector operations plans convert the total
ACE into an individual share
proportional to the PSC that each
member brings to the sector. This share
is then allocated to the member to be
fished by that member or traded to
another sector member.
Sector operations plans include a
number of harvesting rules designed to
track catches, as required, but also
contain provisions that require advance
notification of when the sector or sector
member may be approaching a harvest
share limit or the sector’s ACE for a
given stock. This system may provide
the information needed to allow sector
members to more fully utilize their
harvest share.
The EIS for Amendment 16 compared
economic impacts of sector measures
with common pool measures, and
analyzed costs and benefits of the
universal exemptions. In addition to the
universal exemptions proposed for
sectors in Amendment 16, several
exemptions requested by various sectors
could provide economic incentives to
enroll in a sector. All exemptions
requested by the sectors were intended
to provide positive social and economic
effects to sector members and ports. The
following exemptions have been granted
to the requesting sectors because each
sector’s ACE reduces the need for effort
controls, and there are perceived
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economic benefits from such
exemptions: The Day gillnet vessel 120day block requirement out of the
fishery; the prohibition on a vessel
hauling gear that was set by another
vessel; the 20-day spawning block out of
the fishery; the limit on the number of
hooks that may be fished; the limitation
on the number of gillnets that may be
hauled on GB when fishing under a
groundfish/monkfish DAS; the limit on
the number of nets (not to exceed 150)
that may be deployed by Day gillnet
vessels; and the length and horsepower
restrictions of the DAS Leasing Program.
Exemption from the Day gillnet vessel
120-day block requirement out of the
fishery was requested by NFSs III and
XI, the FGS, the SHS, the TSS, and the
Port Clyde Sector. Existing regulations
require that vessels using gillnet gear
remove all gear from the water for 120
days per year. Since the time out from
fishing is up to the vessel owner to
decide (with some restrictions), many
affected vessel owners have purchased
more than one vessel such that one may
be used while the other is taking its 120day block out of the groundfish fishery,
to provide for sustained fishing income.
Acquiring a second vessel adds the
expense of outfitting another vessel with
gear and maintaining that vessel. The
exemption from the 120-day block could
allow sector members to realize the cost
savings associated with retiring the
redundant vessel.
NFSs III and XI requested an
exemption from the prohibition on a
vessel hauling gear that was set by
another vessel. The community fixed
gear exemption will allow sector vessels
in the Day gillnet category to effectively
pool gillnet gear that may be hauled or
set by sector members. Along with a
possible reduction in total gear fished,
this provision could reduce the total
amount of gear that has to be purchased
and maintained by participating sector
members, resulting in some uncertain
level of cost savings.
The FGS requested an exemption
from the number of hooks that may be
fished, and an exemption from the
limitation on the number of gillnets that
may be hauled on GB when fishing
under a groundfish/monkfish DAS.
These exemptions could provide vessel
owners with the flexibility to adapt the
number of hooks fished to existing
fishing and market conditions and to
haul monkfish gillnets set under the
monkfish regulations more efficiently.
This exemption could also provide an
opportunity to improve vessel
profitability.
The NCCS, SHS, and TSS requested
an exemption from the required 20-day
spawning block out of the fishery.
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18131
Exemption from the 20-day spawning
block would improve flexibility to
match trip planning decisions to
existing fishing and market conditions.
Although vessel owners currently have
the flexibility to schedule their 20-day
block according to business needs and
may use that opportunity to perform
routine or scheduled maintenance,
vessel owners may prefer to schedule
these activities at other times of the
year, or may have unexpected repairs.
Granting this exemption could provide
vessel owners with greater opportunity
to make more efficient use of their
vessel.
The SHS requested an exemption
from the limit on the number of nets
(not to exceed 150) that may be
deployed by Day gillnet vessels. This
will provide greater flexibility to deploy
fishing gear by participating sector
members according to operational and
market needs.
The SHS and TSS requested
exemptions from regulations that
currently limit leasing of DAS to vessels
within specified length and horsepower
restrictions. Current restrictions create a
system in which a small vessel may
lease DAS from virtually any other
vessel, but is limited in the number of
vessels that small vessels may lease to.
The opposite is true for larger vessels.
Exemption from these restrictions will
allow greater flexibility to lease DAS
between vessels of different sizes.
However, the efficiency gains of doing
so are uncertain and may be limited
because the exemption would only
apply to TSS and SHS members. Since
DAS will not be required to harvest
groundfish, the economic importance of
this exemption will be associated with
the need to use groundfish DAS when
fishing in other fisheries, for example,
monkfish.
Several comments that addressed
requested exemptions about which
NMFS had serious concerns were
received; however, these comments did
not provide any new or additional data
to convince NMFS to approve these
exemptions of serious concern. The
exemption requests that are not
approved for FY 2010 are from the GOM
Rolling Closure Areas beyond the
proposed Amendment 16 universal
exemption areas; the 72-hour observer
notification requirements for NMFSfunded at-sea monitoring; the Atlantic
halibut one-fish trip limit during the
Maine seasonal halibut fishery; the VMS
reporting requirements; the paper VTR
requirement; the prohibition on dehookers; and the minimum fish size
requirements. The economic impacts of
not approving these exemptions are
provided below.
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In addition to the universal rolling
closure exemptions described in section
4.2.3.9 of Amendment 16, six of the
NFSs and the SHS requested additional
exemptions from GOM Rolling Closure
Areas. These include 30-minute blocks
124, 125, 132, and 133 in April, and
block 138 in May. The Council voted to
exempt sectors from the GOM Rolling
Closure Areas, with the exception of
portions that the Council believes
should remain closed to protect cod
spawning aggregations. Exempting
sector vessels from additional rolling
closures beyond the universal
exemptions proposed by the Council in
Amendment 16 could have improved
profitability, since higher catch rates
would mean that the same amount of
groundfish could be caught at a lower
cost. However, as previously explained,
these exemptions were not granted
because of impacts to spawning fish.
Eight of the NFSs and the FGS
requested an exemption from the 72hour observer notification requirements
for NMFS-funded at-sea monitoring.
The economic impacts of providing an
exemption to the 72-hour observer
notification requirement are uncertain,
but this exemption could have provided
vessel owners with additional flexibility
when planning and preparing for fishing
trips. Nonetheless, logistical constraints
on the NEFOP prevent the authorization
of this exemption. In addition, NMFS
has already reduced this requirement
from 72-hour to 48-hour in the final rule
implementing Amendment 16.
The NCCS requested an exemption
that would allow members to fish under
Maine State regulations for halibut
while fishing in State waters. The
exemption could have provided
additional fishing opportunities to
improve sector member profitability.
However, the potential to realize any
improved profitability would have been
limited by Maine State regulations that
restrict the number of halibut that may
be landed during a prescribed season to
50 fish per person. This exemption was
not granted because the halibut stock
remains overfished; thus, allowing an
exemption from the halibut trip limit
specifically to allow sector vessels to
participate in a targeted halibut fishery
would be inconsistent with the
rebuilding program of the FMP.
All of the NFSs requested an
exemption from the requirement that
vessels transmit reports directly to
NMFS via VMS. The economic impacts
of providing an exemption from this
requirement are uncertain. The
exemption would have likely provided
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the sector as a whole with some
flexibility to more efficiently handle the
flow of information between the sector
and NMFS in meeting the reporting
requirements. Nonetheless, allowing
vessels to submit required reports and
declarations to a third party, rather than
to NMFS directly, would have created
insurmountable enforcement problems
with the chain of custody of
information. Denial of this exemption
does not preclude sector member
vessels from also sending reports to
their sector manager or transmitting
hails through the sector server for the
purpose of dockside monitoring
program requirements.
All of the NFSs, as well as the
Sustainable Harvest and TSSs,
requested permission to use eVTRs in
place of paper VTRs to transmit catch
data to NMFS. While this exemption
would have likely reduced the
administrative burden on sectors, this
exemption was not granted, as an eVTR
system that would address all of the
needs of NMFS has not yet been
developed. A pilot study is underway
that would use eVTRs as well as paper
VTRs to determine the viability of
eVTRs as a replacement to the paper
version. This option can be considered
at a later date if NMFS’ assessment of
the pilot study concludes that eVTRs
can fulfill all necessary requirements.
The FGS requested an exemption
from the prohibition on the use of dehookers with less than 6-inch (15.24cm) spacing between the fairlead rollers.
Exemption from this requirement would
have provided affected vessel owners
with greater flexibility to rig their
vessels to maximize operational
efficiency. However, the interim final
rule implemented in 2002, and
Amendment 13 in 2004, prohibited dehookers with spacing less than 6 inches
(15.24 cm) to discourage de-hooking
strategies that may reduce survival of
discarded fish. Additionally, National
Standard 9 requires that NMFS
minimize the mortality of bycatch that
cannot be avoided.
The FGS and the TSS requested
exemption from existing regulations that
provide for minimum fish sizes for
several different species. Any fish
caught that measures below the
minimum size must be discarded. To
the extent that some portion of these
fish would otherwise be marketable,
exemption from minimum fish sizes
would have improved the economic
efficiency of member vessel owners.
Since all discarded fish are assumed
dead and would count against the
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Sfmt 9990
sector’s ACE, opportunities to maximize
retention of any marketable fish would
have increased the total value of the
ACE. However, the magnitude of this
potential benefit is uncertain, since the
marketability of smaller size fish is
unknown. Moreover, an exemption from
the minimum fish size requirement
presents significant enforcement issues
by allowing two different fish sizes in
the marketplace. Granting this
exemption could also increase targeting
of juvenile fish or increase mortality of
a given weight, or year class(es), of fish.
Under the No Action alternative, none
of the FY 2010 sector operations plans
would be approved, and no sector
would be approved to operate in FY
2010. While the sectors could remain
implemented under proposed
Amendment 16, under the No Action
alternative for this rule, no sector would
receive an authorization to fish, an
allocation to fish, or any exemptions
from the regulations. Under this
scenario, vessels would remain in the
common pool and fish under the
common pool regulations in the FMP.
Because of effort control changes
proposed in both Amendment 16 and
FW 44, it is likely that vessels enrolled
in a sector for FY 2010 and forced to
fish in the common pool would
experience revenue losses in
comparison to the proposed action. It is
more likely under the No Action
alternative that the ports and fishing
communities where sectors plan to land
their fish would be negatively impacted.
Section 212 of the Small Business
Regulatory Enforcement Fairness Act of
1966 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 sector members that also serves
as 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: March 26, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries,
National Marine Fisheries Service.
[FR Doc. 2010–7236 Filed 3–31–10; 4:15 pm]
BILLING CODE 3510–22–P
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]]>Agencies
[Federal Register Volume 75, Number 68 (Friday, April 9, 2010)]
[Rules and Regulations]
[Pages 18113-18132]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-7236]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 0912081429-0114-02]
RIN 0648-XS55
Magnuson-Stevens Act Provisions; Fisheries of the Northeastern
United States; Northeast Multispecies Fishery; 2010 Sector Operations
Plans and Contracts, and Allocation of Northeast Multispecies Annual
Catch Entitlements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final rule implements 17 sector operations plans and
contracts for fishing year (FY) 2010. In order to be considered for
approval on a parallel track with Amendment 16 to the Northeast (NE)
Multispecies Fishery Management Plan (FMP), representatives from 17
sectors submitted operations plans and sector contracts, and requested
an allocation of stocks regulated under the FMP for FY 2010. NMFS
received sector operations plans and contracts from the Northeast
Fishery Sectors (NFS) II through XIII, the Sustainable Harvest Sector
(SHS), the Tri-State Sector (TSS), the Northeast Coastal Communities
Sector (NCCS), the Georges Bank Cod Fixed Gear Sector (FGS), and the
Port Clyde Community Groundfish Sector (PCCGS).
Following approval of the Amendment 16 sector measures and
provisions, the Administrator, NE Region, NMFS (Regional Administrator)
has partially approved the operations plans and contracts, and
allocated an annual catch entitlement (ACE) of certain NE multispecies
stocks to the NFS II-XIII, the FGS, the SHS, the TSS, the PCCGS, and
the NCCS.
DATES: Effective May 1, 2010 through April 30, 2011.
ADDRESSES: Copies of each sector's final operations plan, contract, and
environmental assessment (EA), and the Final Regulatory Flexibility
Analysis (FRFA) are available from the NMFS 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: William Whitmore, Sector Policy
Analyst, phone (978) 281-9182, fax (978) 281-9135.
SUPPLEMENTARY INFORMATION: A proposed rule soliciting public comment on
17 sector operations plans and contracts was published in the Federal
Register on December 22, 2009 (74 FR 68015), with public comments
accepted through January 21, 2010. After review of the public comments,
NMFS has partially approved the 17 sector operations plans and
contracts, determining the operations plans to be consistent with the
goals of the FMP, as described in Amendment 16 and other applicable
laws, and in compliance with the proposed measures that govern the
development and operation of a sector as specified in Section 4.2.3 of
Amendment 16.
Background
While the Amendment 13 final rule (69 FR 22906, April 27, 2004)
implemented the Georges Bank (GB) Cod Hook Sector in 2004, and the
Framework Adjustment (FW) 42 final rule (71 FR 62156, October 23, 2006)
implemented the FGS in 2006, Amendment 16 revises and expands the rules
for these two existing sectors and authorizes an additional 17 new
sectors, including the NFS I through XIII, the SHS, the TSS, the NCCS,
and the PCCGS. Managers of two (2) of the 19 sectors authorized under
Amendment 16 did not submit an operations plan for FY 2010.
Three separate actions associated with Amendment 16 are applicable
to NE multispecies permit holders for FY 2010: A proposed rule that
contains implementing regulations for the partially approved Amendment
16 (74 FR 69382, December 31, 2009) includes rebuilding programs for NE
multispecies stocks newly classified as being overfished and subject to
overfishing; revisions to existing management measures necessary to end
overfishing, rebuild overfished stocks, and mitigate adverse economic
impacts of increased effort controls; and significant revisions to
existing sector management measures. In accordance with Amendment 16, a
proposed rule specific to sectors published on December 22, 2009, (74
FR 68015) and discussed authorization of 17 sector operations plans and
contracts for FY 2010. This final rule implements the approved
operations plans. Also in accordance with Amendment 16, a third
proposed rule for FW 44 published on February 1, 2010 (75 FR 5016),
which proposed specifications of catch levels for FY 2010-2012, in
accordance with the process specified in Amendment 16, and detailed
additional management measures to augment Amendment 16.
Thus, the final rules for Amendment 16, sector operations, and FW
44 are closely related, and each rule relies on the other two. It is
necessary to employ all three rules to implement Amendment 16 as
intended by the New England Fishery Management Council (Council). While
Amendment 16 implements management measures and processes for the FMP,
FW 44 specifies catch levels according to the policies and procedures
in Amendment 16, and this sector operations rule authorizes the
operation of sectors. For example, Amendment 16 must be implemented for
the 17 new sectors to be authorized. FW 44 specifies overfishing
levels, acceptable biological catches, annual catch limits (ACLs) and
allocates catch among components of the fishery, including the division
of the catch between sector and common pool vessels according to the
Amendment 16 ACL specification process. Final rules for the three
actions, if all are approved,
[[Page 18114]]
are intended to be published nearly simultaneously in order to become
effective concurrently on May 1, 2010. Therefore, NMFS suggests that
interested readers review all three rules in order to fully understand
the measures being implemented pursuant to Amendment 16 and its related
rulemakings.
Permit owners that have indicated their intent to participate in
one of the 17 approved sectors account for 812 of the 1,477 eligible NE
multispecies permit holders, representing approximately 98 percent of
the historical commercial NE multispecies catch from the qualifying
period. Table 1 (below) includes permit owners who joined a sector as
of January 22, 2010. These permit owners have until April 30, 2010, to
withdraw from a sector and fish in the common pool for FY 2010. This
final rule responds to public comments on the proposed rule and
implements the approved additional regulation exemptions that were
requested by the individual sectors.
Amendment 16 defines a sector as ``[a] group of persons (three or
more persons, none of whom have an ownership interest in the other two
persons in the sector) holding limited access vessel permits who have
voluntarily entered into a contract and agree to certain fishing
restrictions for a specified period of time, and which has been granted
a TAC(s) [sic] in order to achieve objectives consistent with
applicable FMP goals and objectives.'' A sector's total allowable catch
(TAC) is referred to as an ACE. Regional Administrator approval is
required in order for the sectors to be authorized to fish and to be
allocated an ACE for most stocks of regulated NE multispecies during
each FY. Each individual sector's ACE for a particular stock represents
a share of that stock's ACL available to commercial NE multispecies
vessels, based upon the potential sector contributions (PSC) of permits
participating in that sector for that FY. Sectors are self-selecting,
meaning each sector maintains the ability to choose its members.
Sectors may pool harvesting resources and consolidate operations to
fewer vessels, if they desire. Table 2 shows the ACE percentages each
sector will receive according to the permits enrolled as of January 22,
2010, while Tables 3a and 3b provide the corresponding ACE amounts each
sector will be allocated.
Amendment 16 will allow sectors to trade ACE for use during that
FY. Although some of the assigned ACEs to one sector are as high as 50
percent, and technically, a sector could acquire an unlimited amount of
ACE from another sector by transferring ACE, analysis by the Groundfish
Plan Development Team (PDT) during the development of Amendment 16
suggested that it is unlikely that any one sector could accumulate a
sufficient share of a stock to exercise market power over the rest of
the fishery. Moreover, because sector ACEs are temporary in nature and
depend upon the collective PSCs of participating vessels, no one sector
will be allocated a permanent share of any resource. This further
limits the ability of a sector to influence market conditions for a
particular stock over the long term. Allowing sectors to trade ACE will
minimize the influence of the initial sector allocation, including any
cap on initial allocations.
If a sector intends to fish in a given FY, it must submit an
operations plan, sector contract, and EA to NMFS by September 1 of the
year prior to the FY in question. On September 1, 2009, 17 sectors
submitted to NMFS operations plans and contracts (as single documents)
for FY 2010. The operations plans contain the rules under which each
sector will fish and the legal contract that binds members to a sector
and its operations plan. Sectors will be allocated all regulated
multispecies stocks for which members have landings history, with the
exception of Atlantic halibut, windowpane flounder, Atlantic wolffish,
and Southern New England/Mid-Atlantic (SNE/MA) winter flounder. In
addition, sectors will not be allocated ocean pout. Sector vessels must
retain all legal-sized allocated groundfish while fishing on a sector
trip. Catch of all allocated groundfish stocks by any of a sector's
vessels will count against the sector's ACE, unless the catch is an
element of a separate ACL sub-component, such as groundfish catch in an
exempted fishery, or catch of yellowtail flounder in the Atlantic sea
scallop fishery. Sector vessels fishing for monkfish, skate, American
lobster (with non-trap gear) and spiny dogfish will have their
groundfish catch (including discards) on those trips debited against
the sector's ACE, unless the vessel is fishing for such species under
the provisions of a NE multispecies exempted fishery. Discard rates
applied to sectors will be determined by NMFS as developed from at-sea
monitoring observations.
As provided in Amendment 16, ACE can be transferred between
sectors, although ACE transfers to or from common pool vessels are
prohibited. Both the SHS and the TSS operations plans describe how
landings history from permits within the sector will be attributed to
sector members. Under Amendment 16, however, catch history is frozen;
therefore, the statements in the contracts for the SHS and TSS have no
legal standing unless a subsequent Council action adopts them. Each
sector must ensure that its ACE is not exceeded during the FY. Sectors
are required to monitor their landings, track their available ACE, and
submit weekly catch reports to NMFS. Once a sector's ACE for a
particular stock is caught, a sector is required to cease all fishing
operations in that stock area until it acquires additional ACE for that
stock. Each sector must also submit an annual report to NMFS and the
Council within 60 days of the end of the FY detailing all of the
sector's catch (landings and discards of all stocks by the sector),
enforcement actions, and pertinent information necessary to evaluate
the biological, economic, and social impacts from the sector.
All sector operations plans and contracts detail procedures to
enforce the sector operations plan, explain sector monitoring and
reporting requirements, present a schedule of penalties, and provide
authority to sector managers to issue stop fishing orders to sector
members. Amendment 16 specifies that sector members may be held jointly
and severally liable for ACE overages, discarding of legal-sized fish,
and/or misreporting of catch (landings or discards). Each sector
contract approved for FY 2010 states that the sector will withhold an
initial reserve from each member's individual allocation to prevent the
sector from exceeding its ACE. Each sector contract also details the
method for initial ACE allocation to sector members; for FY 2010, each
sector will allow its members to harvest an amount of fish equal to the
PSC that each individual member's permit contributed to the sector's
ACE.
Amendment 16 contains several ``universal'' exemptions that are
applicable to all sectors. These universal exemptions include
exemptions from trip limits on allocated stocks, the GB Seasonal Closed
Area, NE multispecies days-at-sea (DAS) restrictions, the requirement
to use a 6.5-inch (16.51-cm) mesh codend when fishing with selective
gear on GB, and portions of the Gulf of Maine (GOM) Rolling Closure
Areas. Sectors may request additional exemptions from applicable
regulations in their sector operations plan. However, Amendment 16
states that sector vessels may not request exemptions from certain NE
multispecies management measures, including year-round closed areas,
permitting restrictions, gear restrictions designed to minimize habitat
impacts, and reporting requirements (not including DAS reporting
requirements).
[[Page 18115]]
All vessels that fish in an approved sector, with the exception
noted below, will receive a letter of authorization (LOA) for FY 2010
to fish under regulations that apply to the sector in which they are
enrolled for the FY. Permits and vessels that committed to NFS IV,
which is a lease-only sector, will not receive an LOA to fish, as no
vessels in that sector are authorized to actively fish.
In order to comply with the National Environmental Policy Act
(NEPA), an EA was prepared for each operations plan. All sector EAs are
tiered from the Environmental Impact Statement (EIS) for Amendment 16.
The summary findings of each EA conclude that each sector will likely
produce similar effects that result in non-significant impacts. An
analysis of aggregate sector impacts was also conducted and Findings of
No Significant Impact for all sector EAs were issued by the Regional
Administrator on February, 26, 2010.
Table 1--Summary of the Number of Permits, Active Vessels, and Active Permits for the FY 2010 Sectors
----------------------------------------------------------------------------------------------------------------
Percentage
Percentage (%) of
Number of Percentage Number of (%) of permits
Sector name individual (%) of active active that are
permits* individual vessels** vessels active
permits within the within the
fleet*** sector
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FGS............................................ 95 6.43 50 6.77 52.63
NCCS........................................... 19 1.29 19 2.57 100.00
NFS II......................................... 81 5.48 43 5.82 53.09
NFS III........................................ 81 5.48 50 6.77 61.73
NFS IV......................................... 48 3.25 0 0.00 0.00
NFS V.......................................... 41 2.78 37 5.01 90.24
NFS VI......................................... 18 1.22 8 1.08 44.44
NFS VII........................................ 27 1.83 21 2.84 77.78
NFS VIII....................................... 22 1.49 16 2.17 72.73
NFS IX......................................... 51 3.45 22 2.98 43.14
NFS X.......................................... 44 2.98 34 4.60 77.27
NFS XI......................................... 48 3.25 38 5.14 79.17
NFS XII........................................ 8 0.54 4 0.54 50.00
NFS XIII....................................... 35 2.37 29 3.92 82.86
PCGGS.......................................... 43 2.91 28 3.79 65.12
SHS............................................ 129 8.73 44 5.95 34.11
TSS............................................ 22 1.49 10 1.35 45.45
All Sectors.................................... 812 54.98 453 61.30 55.79
Common Pool.................................... 665 45.02 286 38.70
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*The data are based on signed sector contracts as of January 22, 2010.
** The data are based on each sector's final EA as of February 18, 2010.
*** In 2007, 601 limited access multispecies vessels and 138 open-access vessels landed groundfish.
[[Page 18116]]
Table 2--Percentage (%) of ACE Each Sector Will Receive by Stock for FY 2010 *[dagger]
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GB SNE/MA CC/GOM GOM
Sector name GB GOM cod GB GOM yellowtail yellowtail yellowtail Plaice Witch GB Winter Winter Redfish White Pollock
cod** haddock** haddock flounder flounder flounder flounder flounder flounder hake
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FGS........................................... 28.03 1.90 6.41 1.29 0.01 0.18 1.83 0.55 0.80 0.03 2.24 2.89 5.92 7.81
NCCS.......................................... 0.16 0.47 0.12 0.23 0.84 0.53 0.46 0.14 0.21 0.07 0.45 0.44 0.87 0.44
NFS II........................................ 5.48 19.19 11.63 17.87 1.70 1.68 19.31 8.37 13.24 1.69 19.85 16.54 6.17 12.34
NFS III....................................... 1.19 16.43 0.17 11.65 0.05 0.40 9.01 4.41 3.03 0.03 10.91 1.47 5.12 7.70
NFS IV........................................ 4.71 8.66 5.42 6.72 2.16 2.68 7.20 9.24 9.28 0.71 7.63 6.46 7.97 5.65
NFS V......................................... 2.95 0.23 5.40 0.68 9.62 26.67 1.69 2.24 2.62 2.60 0.71 0.42 0.39 0.43
NFS VI........................................ 1.87 1.90 2.67 3.46 1.34 4.85 2.08 3.58 4.19 0.84 3.33 5.48 3.77 3.30
NFS VII....................................... 6.01 0.61 5.25 0.73 16.14 4.15 4.86 4.02 4.06 17.02 3.22 0.56 0.78 0.78
NFS VIII...................................... 7.36 0.47 6.61 0.20 15.93 5.96 7.29 2.44 3.13 20.63 3.36 0.44 0.51 0.64
NFS IX........................................ 12.49 1.67 10.32 4.77 18.95 7.14 9.63 7.55 7.63 33.65 2.58 5.79 4.10 3.82
NFS X......................................... 0.97 5.04 0.26 2.70 0.02 0.47 11.48 1.73 2.89 0.01 16.22 0.57 0.93 1.45
NFS XI........................................ 0.40 13.69 0.04 3.23 0.00 0.01 2.22 1.87 1.86 0.00 2.13 1.88 4.85 9.28
NFS XII....................................... 0.04 1.30 0.00 0.28 0.00 0.00 0.51 0.38 0.28 0.00 0.35 0.07 0.04 0.06
NFS XIII...................................... 7.54 0.76 14.09 0.61 15.48 11.45 3.36 3.43 4.55 10.83 1.69 4.54 1.81 2.23
PCGGS......................................... 0.21 4.76 0.05 2.32 0.00 0.70 0.98 6.42 4.45 0.01 2.15 2.56 4.62 4.30
SHS........................................... 16.71 17.93 29.60 40.93 8.34 11.50 10.91 39.74 34.19 8.50 7.20 48.99 50.28 37.99
TSS........................................... 0.86 1.10 1.46 0.74 7.24 1.22 3.20 1.41 1.39 1.94 3.54 0.01 0.14 0.06
All Sectors................................... 96.98 96.09 99.51 98.42 97.82 79.60 96.01 97.52 97.80 98.56 87.57 99.10 98.27 98.29
Common Pool................................... 3.02 3.91 0.49 1.58 2.18 20.40 3.99 2.48 2.20 1.44 12.43 0.90 1.74 1.72
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* The data in this table are based on signed sector contracts as of January 22, 2010.
** Eastern U.S./Canada cod and haddock percentages equal the PSC % of GB cod and GB haddock, respectively.
[dagger] Percentages have been rounded to the nearest hundredth of a percent in this table, but PSC data are calculated to seven decimal places. Therefore, in some cases, this table shows a
sector allocated 0% of an ACE, when in fact that sector is allocated a small amount of that stock.
Table 3a--ACE (in Metric Tons) Each Sector Will Receive by Stock for FY 2010 *
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GB GB GB GB GB SNE/MA CC/GOM GOM
Sector name cod cod GOM cod haddock haddock GOM yellowtail yellowtail yellowtail Plaice Witch GB winter winter Redfish White Pollock
east west east west haddock flounder flounder flounder flounder flounder flounder hake
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FGS................................. 95 867 87 768 1822 11 0 1 14 16 7 0 4 198 151 215
NCCS................................ 1 5 22 14 34 2 8 2 4 4 2 1 1 30 22 12
NFS II.............................. 19 169 876 1394 3309 147 16 5 150 238 113 31 31 1132 158 339
NFS III............................. 4 37 750 21 49 96 0 1 70 126 26 1 17 100 131 211
NFS IV.............................. 16 146 395 650 1543 55 21 8 56 263 79 13 12 442 204 155
NFS V............................... 10 91 11 648 1537 6 93 83 13 64 22 48 1 29 10 12
NFS VI.............................. 6 58 87 321 761 29 13 15 16 102 36 16 5 375 96 91
NFS VII............................. 20 186 28 630 1495 6 156 13 38 115 35 315 5 38 20 21
NFS VIII............................ 25 228 21 792 1881 2 154 18 57 69 27 382 5 30 13 18
NFS IX.............................. 42 386 76 1237 2936 39 183 22 75 215 65 623 4 396 105 105
NFS X............................... 3 30 230 31 74 22 0 1 89 49 25 0 26 39 24 40
NFS XI.............................. 1 12 625 4 11 27 0 0 17 53 16 0 3 129 124 255
NFS XII............................. 0 1 59 1 1 2 0 0 4 11 2 0 1 5 1 2
NFS XIII............................ 25 233 35 1689 4009 5 149 36 26 98 39 201 3 311 46 61
PCGGS............................... 1 6 217 6 14 19 0 2 8 183 38 0 3 175 118 118
SHS................................. 56 517 819 3549 8422 338 80 36 85 1132 291 157 11 3354 1285 1044
TSS................................. 3 27 50 175 416 6 70 4 25 40 12 36 6 1 4 2
All Sectors **...................... 328 2999 4389 11928 28310 812 943 247 748 2777 833 1826 138 6786 2522 2701
[dagger [dagger [dagger [dagger] [dagger [dagger
] ] ] ] ]
Common Pool **...................... 10 93 178 60 142 13 21 63 31 71 19 26 20 62 44 47
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Total **........................ 338 3092 4567 11988 28452 825 964 310 779 2848 852 1852 158 6848 2566 2748
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* The data in this table are based on signed sector contracts as of January 22, 2010. Numbers are rounded to the nearest metric ton, but allocations are made in pounds. In some cases, this
table shows a sector allocated 0 metric tons, but that sector is allocated a small amount of that stock in pounds.
** These totals are based off of the groundfish sub-ACLs provided in FW 44.
[dagger] These totals are based off the groundfish sub-ACLs provided in FW 44 and do not equal the totals of all sector ACEs when summed due to rounding differences.
[[Page 18117]]
Table 3b--ACE (in 1,000 lbs.) Each Sector Will Receive by Stock for FY 2010 *
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GB GB GB SNE/MA CC/GOM GB GOM
Sector name GB cod GB cod GOM cod haddock haddock GOM yellowtail yellowtail yellowtail Plaice Witch winter winter Redfish White Pollock
east west east west haddock flounder flounder flounder flounder flounder flounder hake
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FGS................................. 209 1911 191 1693 4018 24 0 1 31 35 15 1 8 437 334 473
NCCS................................ 1 11 48 32 76 4 18 4 8 9 4 3 2 67 49 27
NFS II.............................. 41 374 1932 3073 7294 325 36 11 332 526 249 69 69 2496 348 747
NFS III............................. 9 81 1654 46 109 212 1 3 155 277 57 1 38 221 289 466
NFS IV.............................. 35 321 871 1433 3401 122 46 18 124 580 174 29 27 975 449 343
NFS V............................... 22 201 23 1428 3388 12 204 182 29 140 49 106 2 63 22 26
NFS VI.............................. 14 128 191 707 1678 63 28 33 36 225 79 34 12 827 212 200
NFS VII............................. 45 410 61 1389 3296 13 343 28 83 253 76 695 11 85 44 47
NFS VIII............................ 55 502 47 1747 4146 4 339 41 125 153 59 842 12 66 29 39
NFS IX.............................. 93 851 168 2727 6472 87 403 49 165 474 143 1374 9 873 231 232
NFS X............................... 7 66 507 68 162 49 0 3 197 108 54 0 56 86 52 88
NFS XI.............................. 3 27 1378 10 23 59 0 0 38 117 35 0 7 283 273 562
NFS XII............................. 0 3 131 1 3 5 0 0 9 24 5 0 1 11 2 4
NFS XIII............................ 56 514 77 3724 8838 11 329 78 58 215 85 442 6 685 102 135
PCGGS............................... 2 14 479 13 30 42 0 5 17 403 84 0 8 386 260 260
SHS................................. 124 1139 1805 7823 18567 744 177 79 187 2495 642 347 25 7394 2833 2302
TSS................................. 6 59 110 387 918 14 154 8 55 89 26 79 12 2 8 4
All Sectors **...................... 723 6611 9676 26297 62413 1790 2079 544 1649 6123 1837 4026 305 14961 5560 5955
[dagger [dagger [dagger [dagger] [dagger [dagger
] ] ] ] ]
Common Pool **...................... 23 206 392 132 313 29 46 139 69 156 41 57 43 137 98 104
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Total **........................ 746 6817 10068 26429 62726 1819 2125 683 1718 6279 1878 4083 348 15098 5658 6059
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* The data in this table are based on signed sector contracts as of January 22, 2010. Numbers are rounded to the nearest thousand lb. Sectors that appear to be allocated 0 are in fact
allocated less than 1,000 lb of that stock.
** These totals are based off of the groundfish sub-ACLs provided in FW 44.
[dagger] These totals are based off the groundfish sub-ACLs provided in FW 44 and do not equal the totals of all sector ACEs when summed due to rounding differences.
[[Page 18118]]
Approved Sector Exemption Requests
In addition to the universal exemptions in Amendment 16, sectors
requested several additional exemptions from the NE multispecies
regulations in their sector operations plans. After thorough review and
consideration of public comments on the exemption requests, NMFS
authorizes exemptions from the following regulations for the individual
sectors that requested them: (1) 120-day block out of the fishery
required for Day gillnet vessels; (2) 20-day spawning block out of the
fishery required for all vessels; (3) limitation on the number of
gillnets imposed on Day gillnet vessels; (4) prohibition on a vessel
hauling another vessel's gillnet gear; (5) limitation on the number of
gillnets that may be hauled on GB when fishing under a groundfish/
monkfish DAS; (6) limits on the number of hooks that may be fished; and
(7) DAS Leasing Program length and horsepower restrictions. Details of
these exemptions are discussed below.
1. 120-Day Block Requirement Out of the Fishery for Day Gillnet Vessels
This measure was implemented in 1997 under FW 20 (62 FR 15381,
April 1, 1997) to help ensure that management measures for Day gillnet
vessels were comparable to effort controls placed on other fishing gear
types (the proposed rule for this action erroneously stated that this
action had been implemented in 1996 under Amendment 7). Regulations at
Sec. 648.82(j)(1)(ii) require that each NE multispecies gillnet vessel
declared into the Day gillnet category declare and take 120 days out of
the non-exempt gillnet fishery. Each period of time taken must be a
minimum of 7 consecutive days, and at least 21 of the 120 days must be
taken between June 1 and September 30. This measure was designed to
control fishing effort and, therefore, is no longer necessary for
sectors because sectors are restricted to an ACE for each groundfish
stock, which limits overall fishing mortality. Because sector vessels
are prohibited from discarding all legal-sized allocated fish when on a
sector trip, and are restricted by their ACE, vessels will likely fish
more selectively, which in turn, can increase each vessel's catch per
unit of effort (CPUE) and reduce the number of days that fixed gear is
in the water. Similarly, protected species (such as harbor porpoise and
humpback whales) may benefit from less fishing effort and fewer gear
days. Therefore, exemptions from the Day gillnet vessel 120-day block
requirement are granted for FY 2010 to the following sectors that
requested this exemption: NFS III, NFS XI, FGS, SHS, TSS, and PCCGS.
2. 20-Day Spawning Block
Regulations at Sec. 648.82(g) require vessels to declare out and
be out of the NE multispecies DAS program for a 20-day period each
calendar year between March 1 and May 31, when spawning of cod is most
prevalent in the GOM. While this measure was designed to reduce fishing
effort on spawning fish stocks, sector vessels will utilize an ACE to
restrict their fishing mortality. Undersized fish caught by sector
vessels cannot be kept and, additionally, the catch will count against
the sector's ACE. This creates a strong incentive for sectors to avoid
catching undersized fish. In addition, there are minimal temporal and
spatial restrictions associated with this regulation, and allowing
fishermen to select any 20-day period out of the fishery does not
necessarily prevent them from harvesting spawning fish. Based on this
information, an exemption from the 20-day spawning block out of the
fishery is granted for FY 2010 to the following sectors that requested
this exemption: The NCCS, the SHS, and the TSS.
3. Limitation on the Number of Gillnets for Day Gillnet Vessels
One sector, the SHS, requested that their vessels be allowed to
fish up to 150 gillnets (any combination of flatfish or roundfish nets)
in each of the groundfish regulated mesh areas (RMAs). Current gear
restrictions in the RMAs restrict Day gillnet vessels from fishing more
than: 100 gillnets (of which no more than 50 can be roundfish gillnets)
in the GOM RMA (Sec. 648.80(a)(3)(iv)(B)(2)); 50 gillnets in the GB
RMA (Sec. 648.80(a)(4)(iv)(B)(2)); and 75 gillnets in the SNE and MA
RMAs (Sec. 648.80(b)(2)(iv)(B)(1), and Sec. 648.80(c)(2)(v)(B)(1),
respectively). Regulations require nets to be marked with either one or
two tags per gillnet depending on the type of net and RMA fished, for
the purpose of enforcing gillnet limits. These restrictions were
implemented in 1996 under Amendment 7 and revised in Amendment 13 to
prevent an uncontrolled increase in the number of nets being fished,
thus undermining the applicable DAS effort controls. Because this
measure was designed to control fishing effort, NMFS believes that a
net restriction is no longer necessary, since the sector is confined to
an ACE for each stock, which caps overall fishing effort. Although this
exemption could allow fishing effort from gillnet vessels in the SHS to
increase if the SHS receives additional ACE through a transfer from
another sector, sectors that trade ACE to SHS would have a reduction in
effort and gear use; any additional effort resulting from this
exemption would likely be offset between trading sectors. In addition
ACLs cap the entire fleet's total catch. Therefore, SHS vessels are
granted this exemption and are authorized to use up to 150 roundfish or
flatfish nets in each area (up to 150 nets total). SHS vessels are also
exempt from the current tagging requirements and, instead, will be
required to mark their gear with one tag per net. The LOA issued to the
sector vessels that qualify for this exemption will specify the tagging
provisions to ensure it is an enforceable provision.
4. Prohibition on a Vessel Hauling Another Vessel's Gillnet Gear
Both NFS III and XI requested an exemption from current regulations
that prohibit one vessel from hauling another vessel's gillnet gear
(Sec. Sec. 648.14(k)(6)(ii)(A) and 648.84). These sectors argued that
the regulations pertaining to gear-marking controls, setting, and
hauling responsibilities are no longer necessary, because the sector
would be confined to an ACE for each stock, and that ``community''
fixed gear would allow fishermen greater flexibility. In addition, the
sectors argued that shared fixed-gear fishing effort could potentially
reduce the amount of gillnet gear in the water and minimize the use of
gear to ``hold'' additional bottom ground. Pursuant to a request by
NMFS, both sectors that requested this exemption have specified in
their operations plans that all vessels participating in community
fixed gear will be held jointly liable for any violations associated
with that gear. Given this, NMFS endorses the efforts by these two
sectors to reduce the amount of gillnet gear in the water and approves
this exemption request. The LOA issued to the sector vessels that
qualify for this exemption will specify the tagging provisions to
ensure it is an enforceable provision.
5. Limitation on the Number of Gillnets That May Be Hauled on GB When
Fishing Under a Groundfish/Monkfish DAS
The FGS requested an exemption from the limit on the number of
gillnets that may be hauled on GB when fishing under a groundfish/
monkfish DAS. Current regulations at Sec. 648.80(a)(4)(iv)(B), which
prohibit Day gillnet vessels fishing on a groundfish DAS from
possessing, deploying, fishing, or hauling more than 50 nets on GB,
were implemented as a groundfish
[[Page 18119]]
mortality control under Amendment 13. The FGS proposed that this
exemption would increase efficiency of its gillnet vessels by allowing
them to haul additional nets per trip--nets which are already permitted
in the water under the Monkfish FMP. NMFS agrees with the FGS that this
exemption will allow fishermen additional opportunities to tend gear,
and can reduce gear soak time. NMFS supports the attempt by the FGS to
increase its CPUE and authorizes this exemption request. This exemption
does not permit the use of additional nets; it only allows nets
deployed under existing net limits in the NE Multispecies and Monkfish
FMPs, to be hauled more efficiently by vessels dually permitted under
both FMPs.
6. Limitation on the Number of Hooks That May Be Fished
The FGS requested an exemption from the number of hooks that a
vessel may fish on a given fishing trip, claiming that this measure,
which was initially implemented through an interim action (67 FR 50292,
August 1, 2002) and made permanent through Amendment 13, was designed
to control fishing effort and, therefore, is no longer necessary
because the sector is confined to an ACE for each stock, which
restricts fishing mortality. Current regulations (Sec. 648.80)
prohibit vessels from fishing or possessing more than 2,000 rigged
hooks in the GOM RMA, more than 3,600 rigged hooks in the GB RMA, more
than 2,000 rigged hooks in the SNE RMA, or more than 4,500 rigged hooks
in the MA RMA. This exemption has been granted to the GB Cod Hook
Sector every year since 2004. The potential for gear interactions
between protected resources and longline/hook gear is much lower than
the interaction potential from bottom trawl or gillnet gear. In
addition, the use of longline/hook gear minimizes fishing impacts on
benthic habitat. Based on this analysis, NMFS grants this exemption to
the FGS for FY 2010.
7. Length and Horsepower Restrictions of the DAS Leasing Program
While Amendment 16 exempts sector vessels from the requirement to
use NE multispecies DAS to harvest groundfish, some sector vessels will
still need to use NE multispecies DAS under specific circumstances; for
example, when fishing for monkfish. Both the SHS and TSS requested an
exemption from the DAS Leasing Program length and horsepower
restrictions, arguing that sector ACEs eliminate the need to use vessel
characteristics to control fishing effort and that removal of this
restriction would allow sector vessels more flexibility. NMFS concurs
and approves this exemption request. As this exemption was only
requested by the SHS and TSS, only these two sectors will be exempt
from the DAS Leasing Program length and horsepower restrictions, and
thus leasing under this exemption can only occur within and between the
SHS and the TSS.
Disapproved Exemption Requests
After completing an initial review of the 17 sector operations
plans and contracts submitted September 1, 2009, NMFS provided each
sector with comments, including an assessment of which exemption
requests NMFS would likely disapprove because of serious concerns with
negative environmental impacts that could result from granting the
requested exemption. Some of the sectors chose to remove these
exemption requests from their operations plans, while other sectors did
not. After reconsidering, NMFS included all of these exemption requests
of serious concern in the proposed rule and solicited public comment on
these requests. Public comment that was received pertaining to these
exemptions did not provide any new data or sufficient additional
rationale to convince NMFS to change its previous stance on these
requests. Therefore, requests for exemption from the GOM Rolling
Closure Areas beyond the universal exemption in Amendment 16, the 72-
hour observer notification requirement for NMFS-funded at-sea
monitoring coverage, the Atlantic halibut one-fish trip limit during
the Maine seasonal halibut fishery, the vessel monitoring system (VMS)
reporting requirements, the use of electronic vessel trip reports
(eVTRs) in replace of paper vessel trip reports (VTRs), the minimum 6-
inch (16.51-cm) spacing requirement for de-hookers, and the minimum
fish size requirements, are not approved by NMFS for any sectors for FY
2010. These requests and NMFS decision on them are discussed below.
1. GOM Rolling Closure Areas
NFSs II, III, VI, X, XI, XII, and the SHS requested additional
exemptions from the GOM Rolling Closure Areas beyond those granted as
universal exemptions under Amendment 16. Specifically, sectors
requested exemptions from the 30-minute blocks 124, 125, 132, and 133
in April; and block 138 in May. The Council exempted sectors from
certain GOM Rolling Closure Areas in Amendment 16, with the exception
of areas that the Council believed should remain closed to protect
spawning aggregations. The Council tasked the PDT with periodically
reviewing and analyzing the existing GOM Rolling Closure Areas to
determine which areas should remain closed, but stipulated that sectors
may request specific exemptions from the GOM Rolling Closure Areas in
their sector operations plans. Subsequently, at its November 2009
meeting, the Council voted to endorse the SHS's request for an
exemption to the rolling closure for block 138 in May.
The sectors requesting this exemption argued that, because they are
restricted to an ACE for each groundfish stock that caps overall
fishing mortality, exemptions to the Rolling Closure Areas should be
granted because they are mortality closures. The Rolling Closure Areas
were initially implemented in 1998 under FW 25 to the FMP to reduce
fishing effort in the ``areas of highest cod landings.'' However, FW 26
referred to the Rolling Closure Areas implemented under FW 25 as
``inshore `cod spawning' closures.'' The stated purpose and need under
FW 26 (section 3.0) states that the Council wanted to ``take additional
action to protect cod during the 1999 spawning season * * * and
immediate action is necessary to reduce catches and protect the
spawning stock.'' As a result, FW 26 expanded the time period of these
``cod spawning'' closures, which include several of the 30-minute
blocks that sectors have now requested exemption from. The final rule
implementing FW 26 (64 FR 2601, January 15, 1999) specified that the
Council undertook the action because of the ``opportunity to delay
fishing mortality on mature cod during the spring spawning period, a
time when stocks aggregate and are particularly vulnerable to fishing
pressure.''
These exemption requests fail to consider that, despite ACE limits,
direct targeting of spawning aggregations can adversely impact the
reproductive potential of a stock as opposed to post-spawning
mortality. Northeast Fisheries Science Center's (NEFSC) spring survey
data for 2006-2008 indicate that very high concentrations of cod
(highest quartile of tows by weight) continue to be present in the
April GOM Rolling Closure Area, especially west of 69[deg]30[min] W.
long., while moderate concentrations of cod are found in block 138.
Justification that demonstrates that spawning fish could be avoided was
not provided by the individual sectors (see comments and response). In
addition to protecting spawning fish, the GOM Rolling Closure Areas
afford some protection to harbor porpoise and other marine mammals. As
a result of these concerns, this exemption request has not been
approved.
[[Page 18120]]
2. 72-Hour Observer Notification Requirement
Vessels are currently required to call into the Northeast Fisheries
Observer Program (NEFOP) 72-hour prior to leaving for a trip into a
special management program (Sec. 648.85). Under Amendment 16, this
requirement is expanded to require all groundfish trips to be called
into NEFOP in order for NMFS to accurately assign coverage to all
vessels; however, NMFS is reducing the observer notification
requirement from 72-hour to 48-hour in the final rule implementing
Amendment 16. Eight of the 12 NFSs and the FGS requested an exemption
from this requirement, claiming that sector vessels should be permitted
to hire an at-sea monitor through a private contract arrangement with a
NMFS-approved observer company if that company can respond in less
time. This request is problematic for several reasons. First, data
gathered by NMFS observers is more comprehensive and detailed than data
gathered by at-sea monitors, even though those monitors would be
acquired through a NMFS-approved observer company. NEFOP observer data
is necessary to generate accurate discard estimations for sector
vessels. Second, the NEFOP selection protocol for sectors is a robust
and consistent sampling scheme which requires all trips to be included
in the sampling pool from which trips are selected for observer
coverage. Allowing a sector to self-select certain trips for separate
sampling undermines the ability for a truly representative sample to be
selected. This exemption request would reduce observer data available
to NEFOP and potentially introduce bias into the NEFOP monitoring
sampling system. Moreover, because of the additional logistical demands
imposed on the NEFOP resulting from the increased NMFS-funded at-sea
monitoring program for all groundfish vessels, it is necessary that
NMFS require a minimum 48-hour notification for all trips. Therefore,
this exemption request has not been approved.
3. Halibut One-Fish Trip Limit
The NCCS requested an exemption from the one-fish per trip Atlantic
halibut possession limit in order to allow member vessels to
participate in the State of Maine's halibut fishery, which has a 50-
fish seasonal limit. While the sector argued that the exemption may
actually reduce mortality on halibut stocks because the State seasonal
limit will be extremely low in FY 2010, possibly only 25 or 30 fish per
permitted vessel, the FMP includes a rebuilding program for Atlantic
halibut that permits a one-fish per trip possession limit to prevent a
targeted fishery while minimizing discards. Federally permitted vessels
fishing in the State fishery are currently required to abide by the
most restrictive regulations, which in this case is one halibut per
trip. Allowing an exemption from the one-fish halibut trip limit
specifically to allow sector vessels to participate in a targeted
halibut fishery would be inconsistent with the rebuilding program of
the FMP. Therefore, this exemption request has not been approved.
4. VMS Requirements
All 12 of the NFSs requested a VMS exemption that would allow a
central sector server to relay member vessel catch reports and logbook
data to NMFS. The sectors anticipate that, in order to facilitate
electronic data transmission from its vessels to a sector-operated data
collection and distribution Web portal, an administrative exemption
would be necessary to allow the server to relay catch reports and
logbook data on behalf of sector member vessels. Under this exemption,
catch data would go from the vessel to a central server maintained by
the sector, and the sector's server would then relay the data to NMFS.
NMFS' Office of Law Enforcement has raised serious concerns about
this exemption request, given that the chain of custody of catch
information would be interrupted and, therefore, open to tampering.
Until such time that NMFS can ensure that the flow of information under
such an exemption is tamper-proof, this type of reporting exemption is
not approvable.
Sector vessels may send their data electronically to the sector to
facilitate monitoring, but must transmit required reports directly to
NMFS.
5. eVTRs
All of the NFSs, as well as the SHS and TSS, requested to use eVTRs
in place of paper VTRs for transmitting catch data to NMFS. A pilot
study is currently underway that would use eVTRs as well as paper VTRs
to determine the viability of eVTRs as a replacement to the paper
version. Until the pilot study determines that eVTRs can fulfill all
NMFS requirements, this exemption request cannot be granted.
6. Fairlead Roller Spacing on De-hookers
The FGS requested an exemption from the prohibition on the use of
de-hookers (crucifiers) with less than 6-inch (15.24-cm) spacing
between the fairlead rollers. De-hookers with a spacing of less than 6
inches (15.24 cm) were originally prohibited in a 2002 Secretarial
interim rule, and then implemented year-round in 2004 under Amendment
13, to discourage de-hooking strategies that may reduce survival rates
of discarded fish. The sector argued that a prohibition on de-hookers
requires a modification to longline gear haulers that is inefficient
and unnecessary. NMFS believes that reducing the fairlead roller
spacing on de-hookers will increase the mortality rates of discarded
fish and, therefore, is not consistent with National Standard 9. Based
on these concerns, this exemption request has not been approved.
7. Minimum Fish Size Requirements
The FGS and the TSS requested an exemption from the minimum
groundfish fish size requirements. The FGS claimed that allowing full
retention of all catch would eliminate discards and increase
profitability without additional mortality. Further, the sector
contended that it should be permitted to land fish less than the
current minimum fish size because 100-percent discard mortality is
presently assumed by NMFS, and because the sector's ACE would be
debited for all discards. The TSS, which requested an exemption from
the Federal minimum fish size requirements for American plaice and
witch flounder, stated that many of these fish caught by their member
vessels are less than 1-inch (2.54 cm) smaller than the current minimum
fish size requirements and are already dead when discarded, thus making
the requirement of discarding sub-legal fish wasteful.
Granting an exemption from minimum fish sizes would present NMFS
with significant enforcement issues by allowing two different fish
sizes in the marketplace. Also, NMFS is concerned that this exemption
could potentially increase the targeting of juvenile fish. As a result
of these concerns, these exemption requests from the minimum fish size
requirements have not been approved.
Comments
Thirty-seven comments were submitted on behalf of 12 individuals,
the SHS, FGS, NCCS, all 12 NFSs, four fishing industry organizations,
two professional organizations, two environmental organizations, the
Council, and the Massachusetts Division of Marine Fisheries (DMF). Only
comments that were applicable to the proposed measures, including the
analyses used to support these measures, are responded to in this rule.
[[Page 18121]]
Many comments from individuals, the SHS, NSC, NFS, NCCS, the
Associated Fisheries of Maine (AFM), the United National Fishermen's
Association (UNFA), and the Association of Professional Observers
(APO), questioned various measures in Amendment 16 that apply to
sectors. While NMFS understands why these comments were submitted under
the proposed rule for sector operations plans, contracts, and
allocations, the comments are more applicable to regulations
implementing Amendment 16; therefore, comments on the following sector
management topics were addressed in the Amendment 16 final rule rather
than this rule (Table 4).
Table 4--Comments Submitted on This Rule That Are Addressed in the
Amendment 16 Final Rule
------------------------------------------------------------------------
Comment number(s) in
Comment topic/issue amendment 16 final rule
------------------------------------------------------------------------
Allocation of NE multispecies to sectors 2, 45
eVTRs................................... 25
Sector management measures (generally).. 44, 45, 47, 48, 49
Transfer of management authority from 45
NMFS to sector managers.
Sector operation costs.................. 46
Sector managers computing daily discard 53
rates.
Sector annual report requirements....... 55
``Freezing'' of catch history........... 60
Levels of observer coverage............. 61
Differing roles of at-sea monitors and 63, 64, 65, 66, 67
fishery observers, eligibility
standards.
ACE overages............................ 75
Trading of ACE between sectors.......... 80
Permit banks............................ 87
------------------------------------------------------------------------
Sectors and Sector Operations Plans
Comment 1: One individual questioned how sector ACEs would prevent
discards. The UNFA inquired whether, if a sector had little allocation
of a relatively abundant species, such as redfish, it could reduce that
sector's ability to catch other species.
Response 1: A sector is limited to the ACEs it is allocated, as
well as any ACE it may acquire through an ACE transfer; and each sector
vessel must retain all legal-sized groundfish caught when fishing as a
sector vessel. In addition, a discard rate, calculated by NMFS, will be
applied to all sector landings and, therefore, sector ACEs. If a sector
catches its entire ACE for any stock, it cannot fish in that stock area
for the remainder of the FY, unless additional ACE is acquired. For
example, if a sector harvests its ACE for GOM cod, it must cease all
fishing in the GOM cod stock area, except if using exempted gear or in
an exempted fishery. Alternatively, if a sector reaches its ACE for a
stock that is found in all stock areas, such as redfish, the sector
cannot fish in any area unless and until it acquires additional redfish
ACE. These stock areas are detailed in the Amendment 16 final rule.
Sectors may acquire additional ACE via an ACE transfer from another
sector to resume fishing. Furthermore, sector members can be held
jointly and severally liable for illegal discarding or misreporting
catch.
Comment 2: The SHS, the NSC, and all 12 NFS disagreed with the
requirement that sector managers must increase the frequency for
submitting sector reports from weekly to daily once 80 percent of any
sector ACE is reached, or when 20 percent or more of the sector's ACE
of any stock is harvested for 2 consecutive weeks. The sectors claimed
this requirement will unnecessarily increase the administrative burden
on sector managers.
Response 2: NMFS is requiring increased reporting when specific
thresholds are reached for several reasons. Close monitoring will help
prevent a sector from exceeding its ACE, especially after a sector
reaches an ACE reporting threshold. Due to the small amount of ACE that
some sectors may have for particular stocks, it is possible for a
sector to quickly, and unintentionally, reach and exceed an ACE. While
it is the sector manager's responsibility to ensure that his or her
sector does not exceed its ACE for any stock, it is ultimately NMFS'
responsibility to monitor sector catches and prevent overfishing from
occurring. Therefore, increased reporting by sectors that meet or
exceed these threshold requirements is necessary. An alternative
threshold for increasing reporting frequency may be implemented during
FY 2010 if agreed to by a sector and NMFS.
Comment 3: The SHS suggested rephrasing a statement in the proposed
rule which states that ``[s]ector vessels would be required to retain
all legal-sized allocated groundfish,'' to ``[s]ector vessels fishing
with gear capable of catching ground fish would be required to retain
all legal-sized allocated groundfish.''
Response 3: The Amendment 16 regulations define a sector trip, with
respect to the NE multispecies fishery, as any trip taken by a sector
vessel subject to the restrictions and conditions of an approved sector
operations plan, in which the vessel declared its intent to fish in the
NE multispecies fishery. There is evidence that suggests that some
gears considered not capable of catching groundfish (i.e., exempted
gear) can, in fact, catch groundfish. While this rule does not contain
any regulations, revising Amendment 16 regulations from an inaccurate
list of gear-types that are considered incapable of catching groundfish
may result in an inaccurate account of groundfish catch. Therefore, all
sector trips are required to retain all legal-sized groundfish.
Comment 4: Oceana, referencing section 4.2.3.5.3 of the Amendment
16 Final Environmental Impact Statement (FEIS), which says ``Sector
operations plans will specify how a sector will monitor its catch to
assure that sector catch does not exceed the sector allocation,''
questioned why the majority of sector operations plans then make
reference to following NMFS' instructions in calculating discards. For
example, the SHS's operation plan states that, ``[m]embers of the
Sector agree that discards will be calculated as directed by NMFS,
based on 30-percent
[[Page 18122]]
at-sea-monitoring conducted by the NMFS.''
Response 4: Section 4.2.3.5.3 of Amendment 16 clarifies that
``[a]ssumed discard rates will be applied to sectors unless an at-sea
monitoring system (such as a sector's independent monitoring program, a
Federal monitoring program, or other program that NMFS determines is
adequate) provides accurate information for use of actual discard
rates.'' No sector has elected to develop its own at-sea monitoring
program; therefore, all sectors will utilize the monitoring program
implemented by NMFS. However, two sectors have stated that they may pay
monitoring providers for incre
