Fisheries of the Northeastern United States; Discard Provision for Herring Midwater Trawl Vessels Fishing in Groundfish Closed Area I, 73979-73981 [2010-30152]
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Federal Register / Vol. 75, No. 229 / Tuesday, November 30, 2010 / Rules and Regulations
and 315, specifically asking the
applicants to certify that the proposed
assignment or transfer complies with
the unjust enrichment provisions of the
Commission’s competitive bidding
rules. The instructions for FCC Form
316 have been revised to assist
applicants with completing the new
questions.
Federal Communications Commission.
Gloria Miles,
Federal Register Liaison.
[FR Doc. 2010–29671 Filed 11–29–10; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 100813358–0560–02]
RIN 0648–BA16
Fisheries of the Northeastern United
States; Discard Provision for Herring
Midwater Trawl Vessels Fishing in
Groundfish Closed Area I
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
Through this action, NMFS
removes a regulatory exemption for
midwater trawl herring vessels, which
was originally implemented by a
November 2, 2009, final rule. The
exemption allowed midwater trawl
vessels with an All Areas and/or Areas
2 and 3 Atlantic herring limited access
permit fishing in Northeast (NE)
multispecies Closed Area I (CA I) to
release fish that cannot be pumped from
the net at the end of pumping
operations, without those fish being
sampled by a NMFS at-sea observer. As
a result of this rule, vessels will be
required to bring the fish on board the
vessel and make them available to the
at-sea observer for sampling. The
publication of this action is part of a
Court-approved joint motion to stay
pending litigation.
DATES: Effective January 31, 2011.
FOR FURTHER INFORMATION CONTACT:
Douglas Potts, Fishery Policy Analyst,
(978) 281–9341, fax (978) 281–9135.
SUPPLEMENTARY INFORMATION:
jdjones on DSK8KYBLC1PROD with RULES
SUMMARY:
Background
On September 4, 2009, NMFS
published a proposed rule (74 FR
45798) to implement changes to access
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Jkt 223001
requirements for midwater trawl vessels
fishing in CA I, at the request of the New
England Fishery Management Council
(Council), with the intended goal of
collecting better information on bycatch
in the midwater trawl fishery. A final
rule was published on November 2,
2009 (74 FR 56562), that implemented
regulations requiring 100-percent
observer coverage of trips by vessels
with limited access Atlantic herring All
Areas and/or Areas 2 and 3 category
permits fishing for herring in CA I with
midwater trawl gear. The rule also
prohibited these vessels from releasing
fish from the codend of the net,
transferring fish to another vessel that is
not carrying an observer, or otherwise
discarding fish at sea, unless the fish
has first been brought on board the
vessel and made available for sampling
and inspection by the observer. The
regulations implemented by the
November 2, 2009, rule (74 FR 56562)
provided the following exemptions to
this prohibition:
• The vessel operator has determined
there is a compelling safety reason; or
• A mechanical failure precludes
bringing the fish aboard the vessel for
inspection; or,
• After pumping of fish onto the
vessel has begun, the vessel operator
determines that pumping becomes
impossible as a result of spiny dogfish
clogging the pump intake. Under this
scenario, the vessel operator must take
reasonable measures (such as strapping
and splitting the net) to remove all fish
that can be pumped from the net prior
to release; or
• When there are small amounts of
fish that cannot be pumped and remain
in the net at the completion of pumping
operations.
Additionally, under these regulations,
if a codend is released in accordance
with one of the first three exemptions,
the vessel operator must complete and
sign an affidavit to NOAA’s Office of
Law Enforcement (OLE) stating the
vessel name and permit number; the
vessel trip report (VTR) serial number;
where, when, and for what reason the
catch was released; the total weight of
fish caught on that tow; and the weight
of fish released (if less than the full
tow). Completed affidavits are to be
submitted to OLE at the conclusion of
the trip. Following a released codend
under one of the first three exemptions,
the vessel may not fish in CA I for the
remainder of the trip.
The exception allowing small
amounts of fish that cannot be pumped
from the net (sometimes called
operational discards) to be released
unobserved from the net while still in
the water was not specifically
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73979
mentioned in the proposed rule. NMFS
considered this exemption to be a
logical outgrowth of the proposed rule
that needed no further public comment
because it addressed a foreseeable
practical problem that a small amount of
fish may be left in a net after pumping
operations were completed.
However, following publication of the
final rule three fishermen filed a lawsuit
challenging the exemption allowing the
release of small amounts of fish that
remain after pumping (Taylor et al. v.
Locke, 09–CV–02289–HHK). Plaintiffs
alleged that this additional exemption
violated the Administrative Procedure
Act because it was not a ‘‘logical
outgrowth’’ of the proposed rule and
should have been subjected to public
comment, and that it violated
conservation requirements of the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act) by allowing
fish to be released from herring nets
unobserved. Plaintiffs also claimed that
the terms ‘‘small amounts of fish’’ and
‘‘at the completion of pumping
operations’’ were not adequately
defined.
Without admitting any violation of
applicable law in publishing the
original final rule, NMFS and the
plaintiffs agreed to stay the litigation
while NMFS repromulgated the
challenged provision, to solicit public
comment. On September 7, 2010, NMFS
published a proposed rule (75 FR
54292), that repromulgated the
challenged provision
(§ 648.80(d)(7)(ii)(D)) and solicited
public comment on whether to retain,
delete, or amend the additional
exemption in question. The proposed
rule sought comment on: Retaining the
exemption as it currently exists (status
quo); eliminating the exemption
(Alternative 1); modifying the
exemption by specifying a maximum of
200 lb (90.7 kg) of fish that could be
released (Alternative 2); or modifying
the exemption by requiring that the
codend either be brought on board or
lifted out of the water, at the captain’s
discretion, so the observer could better
estimate the amount and type of fish
being released (Alternative 3). Public
comments were accepted through
October 7, 2010. Comments received are
summarized and responded to below.
Based on public comment received,
NMFS is implementing ‘‘Alternative 1,’’
and is removing the exemption for
operational discards at
§ 648.80(d)(7)(ii)(D). Therefore, if fish
remain in the net at the conclusion of
pumping operations, those fish will
have to be brought on board the vessel
and made available for sampling and
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Federal Register / Vol. 75, No. 229 / Tuesday, November 30, 2010 / Rules and Regulations
jdjones on DSK8KYBLC1PROD with RULES
inspection by the observer, unless one
of the other three exemptions applies.
Therefore, fish that have not been
pumped on board the vessel may be
released if the vessel operator finds that:
Pumping the catch could compromise
the safety of the vessel; mechanical
failure precludes bringing some or all of
a catch on board the vessel; or spiny
dogfish have clogged the pump and
consequently prevent pumping of the
rest of the catch. If a net is released for
any of these three reasons, the vessel
operator must complete and sign a CA
I Midwater Trawl Released Codend
Affidavit stating where, when, and why
the net was released, as well as a goodfaith estimate of both the total weight of
fish caught on that tow and the weight
of fish released (if the tow had been
partially pumped). The completed
affidavit form must be submitted to
NMFS within 48 hr of the completion of
the trip.
Following the release of a net for one
of the three exemptions, the vessel is
required to exit CA I. The vessel may
continue to fish, but may not fish in CA
I for the remainder of the trip.
Comments and Responses
A total of 5,924 comments were
received during the comment period for
the proposed rule from: 2
representatives of the commercial
herring midwater trawl industry; 2
coalitions of herring advocacy groups; 5
representatives of recreational fishing
organizations; 4 commercial groundfish
organizations; 2 state elected officials
(MA State Senator Robert A. O’Leary
and MA State Representative Sarah K.
Peake); 1 U.S. Congressman
(Representative William Delahunt, MA);
6 environmental organizations; 1
community organization; 2 agriculture
and fishery advocacy groups; the
Atlantic States Marine Fisheries
Commission (ASMFC); and 5,898
individuals. One comment was received
after the close of the comment period.
The vast majority of comments were
form letters submitted by environmental
organizations. The two representatives
from the commercial herring midwater
trawl industry supported the status quo.
All other comments received supported
Alternative 1 in the proposed rule.
Alternatives 2 or 3 were not supported
by any commenters and were criticized
as being impractical or ineffective.
Comment 1: The two representatives
of the commercial midwater trawl
herring industry supported the status
quo measure and raised concerns about
each of the proposed alternatives. To
illustrate their concerns, they described
current procedures and how these
procedures are not compatible with the
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15:07 Nov 29, 2010
Jkt 223001
proposed alternatives. The commenters
noted that, under current operations, a
vessel typically brings the full net
alongside the vessel, where the end of
the net is hoisted aboard in order to
attach the pump. The pump and net are
then lowered back into the water and
splitting lines and straps are used to
move catch to the pump. When the
pump is moving mostly water, with an
occasional fish, pumping is stopped,
and the pump is removed from the net,
leaving the codend open and releasing
any fish that are still in the net. The
empty net is then brought aboard in
order to reset clips and rings before
being set out for the next tow. The
commenters assert that it could be
dangerous for a vessel to attempt to recinch the end of the net after pumping
is concluded in order to then bring the
net aboard with the remaining catch.
Response: NMFS acknowledges that
some vessels may need to adjust their
fishing practices in order to remove the
fish pump from the net without
releasing the remaining fish, so that the
fish in the net can be brought aboard for
the observer to sample. The time
between publication of this rule and
when it becomes effective can be used
by these vessels to develop alternative
methods that allow safe operation
within these requirements. A vessel may
continue to fish outside of CA I while
new procedures are developed. NMFS
believes the safety and other exemptions
sufficiently address commenters’
concerns regarding the practical and
safety operational difficulties of
bringing nets on board vessels after
pumping operations while creating a
disincentive to invoke the exemption
without justification. For any safety
problems in bringing the net on board
for inspection after pumping operations
are complete, the vessel operator may
take advantage of the exemption
allowing release of fish for vessel safety.
However, the vessel would still need to
abide by the requirements of this
exemption, including leaving CA I for
the remainder of that trip.
Comment 2: The two representatives
of the commercial midwater trawl
herring industry asserted that it is
impossible for these vessels to safely
bring full nets and brailers over the side
or over the stern of the vessel. In
contrast, several other commenters cited
remarks from a member of the
commercial herring midwater trawl
industry at the July 15, 2010, meeting of
the Council’s Atlantic Herring Plan
Development Team, that a midwater
trawl vessel could not bring aboard a
full net, but could bring aboard up to 1
ton (907.1 kg) of fish in the net. A
commenter who claimed experience on
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both midwater trawl and purse seine
herring vessels also asserted that up to
1 ton (907.1 kg) of fish could safely be
brought on board a midwater trawl
vessel.
Response: This action does not
require full nets and brailers to be
brought aboard a vessel. The intent of
the subject exemption was the release of
very small amounts of fish, perhaps a
few hundred pounds per tow, which
physically could not be pumped. It was
not intended to cover the release of
larger amounts of fish. Three other
exemptions, for safety, mechanical
failure, or spiny dogfish clogging the
pump allow release of larger catches
that cannot be pumped aboard.
Comment 3: The representatives of
the commercial midwater trawl herring
industry stated that the proposed
alternatives are unnecessary because atsea observers are currently provided
nearly every opportunity to estimate the
volume, and most often the species of
fish, remaining in the net before it is
released. Conversely, on this subject
several individuals, commercial
groundfish organizations, and coalitions
of herring advocacy groups opposed
observer sampling protocols that rely on
such ‘‘visual access’’ to the codend to
estimate catch that is released. These
commenters supported Alternative 1 as
the only way to accurately account for
all catch by the midwater trawl vessels
operating in CA I.
Response: When determining the
volume of fish before release, the at-sea
observer must often rely on the
estimations provided by the vessel
operator and crew who are much more
familiar with the specific gear in use.
Species identification of fish remaining
in the net is not typically possible.
Observers may be able to identify largebodied organisms in the net, but are
unable to reliably differentiate many
fish to their species. Even if fish at the
surface of the net are identifiable, the
contents may not be homogeneous and
the observer cannot determine the full
composition of the net. Therefore,
released catch is typically classified as
‘‘Fish, NK’’ (i.e., fish, species not
known). The Council’s request for
increased observer coverage in CA I was
intended in part to provide additional
information on the total catch of this
fishery that could then inform future
management actions. In order to provide
the most complete and valuable
information for this purpose, it is
important to record, as completely and
accurately as possible, the catch of
vessels subject to this increased
observer coverage. The removal of this
exemption may help to address
continued questions regarding
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Federal Register / Vol. 75, No. 229 / Tuesday, November 30, 2010 / Rules and Regulations
stratification of catch within a net or
whether the pump housing, which is
primarily designed to keep the net out
of the pump, might also exclude some
larger bodied species.
Comment 4: The ASMFC supported
Alternative 1, but suggested NMFS
periodically review this measure to
determine if the level of data collection
continues to be necessary and if the
burden to the industry is justified.
Response: This rule may be reconsidered and even superseded by a
future Council action modifying the
catch monitoring program for the
Atlantic herring fishery as a whole. If
the Council does not choose to review
and reevaluate the requirements for
access to CA I, the regulations would
still be subject to the normal periodic
review process and could be changed to
account for new information about the
burden on the fishery if necessary or
appropriate.
Comment 5: No commenter supported
either Alternative 2 or Alternative 3.
Representatives of the commercial
herring midwater trawl industry,
representatives of commercial
groundfish industry, and environmental
groups all criticized these proposed
alternatives as being unworkable.
Response: As explained in the
proposed rule, these alternatives were
intended as examples of possible
modification to the existing regulation.
The limit on how much can be released
in Alternative 2 would be difficult to
estimate, and could put the observer in
an enforcement role. Alternative 3
would require the vessel crew to recinch the net after pumping, which is
one of the major hurdles to bringing the
catch on board. In addition, raising the
net out of the water does not address the
question of catch composition within
the net and may pose even more
logistical problems than bringing the net
and catch on board. Therefore, NMFS
did not consider either of these as
acceptable alternatives for this final
rule.
Comment 6: Some commenters
objected to the Council granting
midwater trawl vessels access to CA I
for various reasons, including that
midwater trawl access to groundfish
closed areas was authorized based on
less research and analysis than was
required for the establishment of the NE
Multispecies CA I Hook Gear Haddock
Special Access Program (SAP). These
comments included opposition to all
midwater trawling, requests that the 100
percent observer coverage requirements
apply to all groundfish closed areas,
questions on the use and enforcement of
the Closed Area I Midwater Trawl
Released Codend Affidavit, and
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objections to the Council’s requirement
that in order to access CA I vessels
targeting groundfish through the NE
Multispecies CA I, Hook Gear Haddock
Special Access Program had to meet a
higher hurdle in terms of documenting
bycatch than did midwater trawl
vessels.
Response: These comments question
the underlying provision of allowing
midwater trawl vessels access to CA I,
and other attendant requirements,
which is beyond the scope of this rule,
and, therefore not addressed in this final
rule.
Classification
Pursuant to section 304(b)(1)(A) of the
Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined
that this final rule is consistent with the
Atlantic Herring and NE Multispecies
FMPs, other provisions of the
Magnuson-Stevens Act, and other
applicable law.
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
The Chief Counsel for Regulation of
the Department of Commerce certified
to the Chief Counsel for Advocacy of the
Small Business Administration during
the proposed rule stage that this action
would not have a significant economic
impact on a substantial number of small
entities. The factual basis for the
certification was published in the
proposed rule and is not repeated here.
NMFS received no comments
questioning or regarding this
certification.
Dated: November 24, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR part 648 is amended
as follows:
■
PART 648—FISHERIES OF THE
NORTHEASTERN UNITED STATES
1. The authority citation for part 648
continues to read as follows:
■
Authority: 16 U.S.C. 1801 et seq.
§ 648.80
[Amended]
2. In § 648.80, remove paragraph
(d)(7)(ii)(D).
■
[FR Doc. 2010–30152 Filed 11–29–10; 8:45 am]
BILLING CODE 3510–22–P
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73981
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 0910131362–0087–02]
RIN 0648–XA066
Fisheries of the Exclusive Economic
Zone Off Alaska; Big Skate in the
Central Regulatory Area of the Gulf of
Alaska
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:
NMFS is prohibiting retention
of big skate in the Central Regulatory
Area of the Gulf of Alaska (GOA). This
action is necessary because the 2010
total allowable catch (TAC) of big skate
in the Central Regulatory Area of the
GOA has been reached.
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), November 24, 2010,
through 2400 hrs, A.l.t., December 31,
2010.
FOR FURTHER INFORMATION CONTACT: Josh
Keaton, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
GOA exclusive economic zone
according to the Fishery Management
Plan for Groundfish of the Gulf of
Alaska (FMP) prepared by the North
Pacific Fishery Management Council
under authority of the MagnusonStevens Fishery Conservation and
Management Act. Regulations governing
fishing by U.S. vessels in accordance
with the FMP appear at subpart H of 50
CFR part 600 and 50 CFR part 679.
The 2010 TAC of big skate in the
Central Regulatory Area of the GOA is
2,049 metric tons (mt) as established by
the final 2010 and 2011 harvest
specifications for groundfish of the GOA
(75 FR 11749, March 12, 2010).
In accordance with § 679.20(d)(2), the
Administrator, Alaska Region, NMFS
(Regional Administrator), has
determined that the 2010 TAC of big
skate in the Central Regulatory Area of
the GOA has been reached. Therefore,
NMFS is requiring that big skate caught
in the Central Regulatory Area of the
GOA be treated as prohibited species in
accordance with § 679.21(b).
SUMMARY:
Classification
This action responds to the best
available information recently obtained
from the fishery. The Assistant
Administrator for Fisheries, NOAA
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]]>Agencies
[Federal Register Volume 75, Number 229 (Tuesday, November 30, 2010)]
[Rules and Regulations]
[Pages 73979-73981]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30152]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 100813358-0560-02]
RIN 0648-BA16
Fisheries of the Northeastern United States; Discard Provision
for Herring Midwater Trawl Vessels Fishing in Groundfish Closed Area I
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Through this action, NMFS removes a regulatory exemption for
midwater trawl herring vessels, which was originally implemented by a
November 2, 2009, final rule. The exemption allowed midwater trawl
vessels with an All Areas and/or Areas 2 and 3 Atlantic herring limited
access permit fishing in Northeast (NE) multispecies Closed Area I (CA
I) to release fish that cannot be pumped from the net at the end of
pumping operations, without those fish being sampled by a NMFS at-sea
observer. As a result of this rule, vessels will be required to bring
the fish on board the vessel and make them available to the at-sea
observer for sampling. The publication of this action is part of a
Court-approved joint motion to stay pending litigation.
DATES: Effective January 31, 2011.
FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy Analyst,
(978) 281-9341, fax (978) 281-9135.
SUPPLEMENTARY INFORMATION:
Background
On September 4, 2009, NMFS published a proposed rule (74 FR 45798)
to implement changes to access requirements for midwater trawl vessels
fishing in CA I, at the request of the New England Fishery Management
Council (Council), with the intended goal of collecting better
information on bycatch in the midwater trawl fishery. A final rule was
published on November 2, 2009 (74 FR 56562), that implemented
regulations requiring 100-percent observer coverage of trips by vessels
with limited access Atlantic herring All Areas and/or Areas 2 and 3
category permits fishing for herring in CA I with midwater trawl gear.
The rule also prohibited these vessels from releasing fish from the
codend of the net, transferring fish to another vessel that is not
carrying an observer, or otherwise discarding fish at sea, unless the
fish has first been brought on board the vessel and made available for
sampling and inspection by the observer. The regulations implemented by
the November 2, 2009, rule (74 FR 56562) provided the following
exemptions to this prohibition:
The vessel operator has determined there is a compelling
safety reason; or
A mechanical failure precludes bringing the fish aboard
the vessel for inspection; or,
After pumping of fish onto the vessel has begun, the
vessel operator determines that pumping becomes impossible as a result
of spiny dogfish clogging the pump intake. Under this scenario, the
vessel operator must take reasonable measures (such as strapping and
splitting the net) to remove all fish that can be pumped from the net
prior to release; or
When there are small amounts of fish that cannot be pumped
and remain in the net at the completion of pumping operations.
Additionally, under these regulations, if a codend is released in
accordance with one of the first three exemptions, the vessel operator
must complete and sign an affidavit to NOAA's Office of Law Enforcement
(OLE) stating the vessel name and permit number; the vessel trip report
(VTR) serial number; where, when, and for what reason the catch was
released; the total weight of fish caught on that tow; and the weight
of fish released (if less than the full tow). Completed affidavits are
to be submitted to OLE at the conclusion of the trip. Following a
released codend under one of the first three exemptions, the vessel may
not fish in CA I for the remainder of the trip.
The exception allowing small amounts of fish that cannot be pumped
from the net (sometimes called operational discards) to be released
unobserved from the net while still in the water was not specifically
mentioned in the proposed rule. NMFS considered this exemption to be a
logical outgrowth of the proposed rule that needed no further public
comment because it addressed a foreseeable practical problem that a
small amount of fish may be left in a net after pumping operations were
completed.
However, following publication of the final rule three fishermen
filed a lawsuit challenging the exemption allowing the release of small
amounts of fish that remain after pumping (Taylor et al. v. Locke, 09-
CV-02289-HHK). Plaintiffs alleged that this additional exemption
violated the Administrative Procedure Act because it was not a
``logical outgrowth'' of the proposed rule and should have been
subjected to public comment, and that it violated conservation
requirements of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) by allowing fish to be released
from herring nets unobserved. Plaintiffs also claimed that the terms
``small amounts of fish'' and ``at the completion of pumping
operations'' were not adequately defined.
Without admitting any violation of applicable law in publishing the
original final rule, NMFS and the plaintiffs agreed to stay the
litigation while NMFS repromulgated the challenged provision, to
solicit public comment. On September 7, 2010, NMFS published a proposed
rule (75 FR 54292), that repromulgated the challenged provision (Sec.
648.80(d)(7)(ii)(D)) and solicited public comment on whether to retain,
delete, or amend the additional exemption in question. The proposed
rule sought comment on: Retaining the exemption as it currently exists
(status quo); eliminating the exemption (Alternative 1); modifying the
exemption by specifying a maximum of 200 lb (90.7 kg) of fish that
could be released (Alternative 2); or modifying the exemption by
requiring that the codend either be brought on board or lifted out of
the water, at the captain's discretion, so the observer could better
estimate the amount and type of fish being released (Alternative 3).
Public comments were accepted through October 7, 2010. Comments
received are summarized and responded to below.
Based on public comment received, NMFS is implementing
``Alternative 1,'' and is removing the exemption for operational
discards at Sec. 648.80(d)(7)(ii)(D). Therefore, if fish remain in the
net at the conclusion of pumping operations, those fish will have to be
brought on board the vessel and made available for sampling and
[[Page 73980]]
inspection by the observer, unless one of the other three exemptions
applies. Therefore, fish that have not been pumped on board the vessel
may be released if the vessel operator finds that: Pumping the catch
could compromise the safety of the vessel; mechanical failure precludes
bringing some or all of a catch on board the vessel; or spiny dogfish
have clogged the pump and consequently prevent pumping of the rest of
the catch. If a net is released for any of these three reasons, the
vessel operator must complete and sign a CA I Midwater Trawl Released
Codend Affidavit stating where, when, and why the net was released, as
well as a good-faith estimate of both the total weight of fish caught
on that tow and the weight of fish released (if the tow had been
partially pumped). The completed affidavit form must be submitted to
NMFS within 48 hr of the completion of the trip.
Following the release of a net for one of the three exemptions, the
vessel is required to exit CA I. The vessel may continue to fish, but
may not fish in CA I for the remainder of the trip.
Comments and Responses
A total of 5,924 comments were received during the comment period
for the proposed rule from: 2 representatives of the commercial herring
midwater trawl industry; 2 coalitions of herring advocacy groups; 5
representatives of recreational fishing organizations; 4 commercial
groundfish organizations; 2 state elected officials (MA State Senator
Robert A. O'Leary and MA State Representative Sarah K. Peake); 1 U.S.
Congressman (Representative William Delahunt, MA); 6 environmental
organizations; 1 community organization; 2 agriculture and fishery
advocacy groups; the Atlantic States Marine Fisheries Commission
(ASMFC); and 5,898 individuals. One comment was received after the
close of the comment period. The vast majority of comments were form
letters submitted by environmental organizations. The two
representatives from the commercial herring midwater trawl industry
supported the status quo. All other comments received supported
Alternative 1 in the proposed rule. Alternatives 2 or 3 were not
supported by any commenters and were criticized as being impractical or
ineffective.
Comment 1: The two representatives of the commercial midwater trawl
herring industry supported the status quo measure and raised concerns
about each of the proposed alternatives. To illustrate their concerns,
they described current procedures and how these procedures are not
compatible with the proposed alternatives. The commenters noted that,
under current operations, a vessel typically brings the full net
alongside the vessel, where the end of the net is hoisted aboard in
order to attach the pump. The pump and net are then lowered back into
the water and splitting lines and straps are used to move catch to the
pump. When the pump is moving mostly water, with an occasional fish,
pumping is stopped, and the pump is removed from the net, leaving the
codend open and releasing any fish that are still in the net. The empty
net is then brought aboard in order to reset clips and rings before
being set out for the next tow. The commenters assert that it could be
dangerous for a vessel to attempt to re-cinch the end of the net after
pumping is concluded in order to then bring the net aboard with the
remaining catch.
Response: NMFS acknowledges that some vessels may need to adjust
their fishing practices in order to remove the fish pump from the net
without releasing the remaining fish, so that the fish in the net can
be brought aboard for the observer to sample. The time between
publication of this rule and when it becomes effective can be used by
these vessels to develop alternative methods that allow safe operation
within these requirements. A vessel may continue to fish outside of CA
I while new procedures are developed. NMFS believes the safety and
other exemptions sufficiently address commenters' concerns regarding
the practical and safety operational difficulties of bringing nets on
board vessels after pumping operations while creating a disincentive to
invoke the exemption without justification. For any safety problems in
bringing the net on board for inspection after pumping operations are
complete, the vessel operator may take advantage of the exemption
allowing release of fish for vessel safety. However, the vessel would
still need to abide by the requirements of this exemption, including
leaving CA I for the remainder of that trip.
Comment 2: The two representatives of the commercial midwater trawl
herring industry asserted that it is impossible for these vessels to
safely bring full nets and brailers over the side or over the stern of
the vessel. In contrast, several other commenters cited remarks from a
member of the commercial herring midwater trawl industry at the July
15, 2010, meeting of the Council's Atlantic Herring Plan Development
Team, that a midwater trawl vessel could not bring aboard a full net,
but could bring aboard up to 1 ton (907.1 kg) of fish in the net. A
commenter who claimed experience on both midwater trawl and purse seine
herring vessels also asserted that up to 1 ton (907.1 kg) of fish could
safely be brought on board a midwater trawl vessel.
Response: This action does not require full nets and brailers to be
brought aboard a vessel. The intent of the subject exemption was the
release of very small amounts of fish, perhaps a few hundred pounds per
tow, which physically could not be pumped. It was not intended to cover
the release of larger amounts of fish. Three other exemptions, for
safety, mechanical failure, or spiny dogfish clogging the pump allow
release of larger catches that cannot be pumped aboard.
Comment 3: The representatives of the commercial midwater trawl
herring industry stated that the proposed alternatives are unnecessary
because at-sea observers are currently provided nearly every
opportunity to estimate the volume, and most often the species of fish,
remaining in the net before it is released. Conversely, on this subject
several individuals, commercial groundfish organizations, and
coalitions of herring advocacy groups opposed observer sampling
protocols that rely on such ``visual access'' to the codend to estimate
catch that is released. These commenters supported Alternative 1 as the
only way to accurately account for all catch by the midwater trawl
vessels operating in CA I.
Response: When determining the volume of fish before release, the
at-sea observer must often rely on the estimations provided by the
vessel operator and crew who are much more familiar with the specific
gear in use. Species identification of fish remaining in the net is not
typically possible. Observers may be able to identify large-bodied
organisms in the net, but are unable to reliably differentiate many
fish to their species. Even if fish at the surface of the net are
identifiable, the contents may not be homogeneous and the observer
cannot determine the full composition of the net. Therefore, released
catch is typically classified as ``Fish, NK'' (i.e., fish, species not
known). The Council's request for increased observer coverage in CA I
was intended in part to provide additional information on the total
catch of this fishery that could then inform future management actions.
In order to provide the most complete and valuable information for this
purpose, it is important to record, as completely and accurately as
possible, the catch of vessels subject to this increased observer
coverage. The removal of this exemption may help to address continued
questions regarding
[[Page 73981]]
stratification of catch within a net or whether the pump housing, which
is primarily designed to keep the net out of the pump, might also
exclude some larger bodied species.
Comment 4: The ASMFC supported Alternative 1, but suggested NMFS
periodically review this measure to determine if the level of data
collection continues to be necessary and if the burden to the industry
is justified.
Response: This rule may be re-considered and even superseded by a
future Council action modifying the catch monitoring program for the
Atlantic herring fishery as a whole. If the Council does not choose to
review and reevaluate the requirements for access to CA I, the
regulations would still be subject to the normal periodic review
process and could be changed to account for new information about the
burden on the fishery if necessary or appropriate.
Comment 5: No commenter supported either Alternative 2 or
Alternative 3. Representatives of the commercial herring midwater trawl
industry, representatives of commercial groundfish industry, and
environmental groups all criticized these proposed alternatives as
being unworkable.
Response: As explained in the proposed rule, these alternatives
were intended as examples of possible modification to the existing
regulation. The limit on how much can be released in Alternative 2
would be difficult to estimate, and could put the observer in an
enforcement role. Alternative 3 would require the vessel crew to re-
cinch the net after pumping, which is one of the major hurdles to
bringing the catch on board. In addition, raising the net out of the
water does not address the question of catch composition within the net
and may pose even more logistical problems than bringing the net and
catch on board. Therefore, NMFS did not consider either of these as
acceptable alternatives for this final rule.
Comment 6: Some commenters objected to the Council granting
midwater trawl vessels access to CA I for various reasons, including
that midwater trawl access to groundfish closed areas was authorized
based on less research and analysis than was required for the
establishment of the NE Multispecies CA I Hook Gear Haddock Special
Access Program (SAP). These comments included opposition to all
midwater trawling, requests that the 100 percent observer coverage
requirements apply to all groundfish closed areas, questions on the use
and enforcement of the Closed Area I Midwater Trawl Released Codend
Affidavit, and objections to the Council's requirement that in order to
access CA I vessels targeting groundfish through the NE Multispecies CA
I, Hook Gear Haddock Special Access Program had to meet a higher hurdle
in terms of documenting bycatch than did midwater trawl vessels.
Response: These comments question the underlying provision of
allowing midwater trawl vessels access to CA I, and other attendant
requirements, which is beyond the scope of this rule, and, therefore
not addressed in this final rule.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this final rule is
consistent with the Atlantic Herring and NE Multispecies FMPs, other
provisions of the Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. NMFS received no comments
questioning or regarding this certification.
Dated: November 24, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 648 is amended as
follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
Sec. 648.80 [Amended]
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2. In Sec. 648.80, remove paragraph (d)(7)(ii)(D).
[FR Doc. 2010-30152 Filed 11-29-10; 8:45 am]
BILLING CODE 3510-22-P
