Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Final Rule to Implement Addenda to 17 Fishing Year (FY) 2010 Sector Operations Plans and Contracts, 80720-80729 [2010-32340]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 246 (Thursday, December 23, 2010)]
[Rules and Regulations]
[Pages 80720-80729]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32340]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100818375-0600-02]
RIN 0648-XX84


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; Final Rule to Implement 
Addenda to 17 Fishing Year (FY) 2010 Sector Operations Plans and 
Contracts

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 addenda to add exemptions from 
certain Federal fishing regulations to some or all Northeast (NE) 
multispecies sector operations plans that were previously approved by 
the final sector rule published April 9, 2010. That rule approved FY 
2010 sector operations plans and contracts for, and made allocations of 
Annual Catch Entitlements (ACE) to, 17 sectors in the NE multispecies 
fishery. In addition, this action approves an exemption functionally 
equivalent to the Gulf of Maine (GOM) Haddock Sink Gillnet Pilot 
Program for FY 2010 sectors (proposed in Amendment 16 to the NE 
Multispecies Fishery Management Plan (FMP) for both common pool and 
sector vessels, but disapproved by NMFS), since this program would be 
more controlled for sectors and unlikely to compromise efforts to 
eliminate overfishing and rebuild overfished stocks. The exemptions are 
intended to provide additional flexibility and improve profitability 
for sector vessels.

DATES: Effective December 23, 2010, through April 30, 2011.

ADDRESSES: Copies of addenda to the FY 2010 sector operations plans and 
contracts, and the supplemental environmental assessment (EA), are 
available from the NMFS NE 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. A Final Regulatory Flexibility Analysis (FRFA) was 
prepared for this final rule and is comprised of the EA, the preamble, 
and the Classification sections of the final rule.

[[Page 80721]]


FOR FURTHER INFORMATION CONTACT: Melissa Vasquez, Fishery Policy 
Analyst, phone (978) 281-9166, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: A proposed rule (75 FR 53939) to implement 
addenda to the 17 approved FY 2010 NE multispecies sector operations 
plans was published in the Federal Register on September 2, 2010, 
soliciting public comment through September 17, 2010. A second rule (75 
FR 59204; September 27, 2010) reopened and extended the comment period 
to October 1, 2010, to provide additional opportunity for public 
comment on the proposed addenda. After review of all public comments, 
NMFS has partially approved the 17 sector operations plan addenda, with 
the exception of one exemption requested by several sectors, 
determining that the addenda are consistent with the goals of the FMP 
as described in Amendment 16, and other applicable laws, and are in 
compliance with the regulations that govern NE multispecies sector 
allocation management as specified in 50 CFR 648.87.

Background

    A final rule, published April 9, 2010 (75 FR 18113), approved FY 
2010 sector operations plans and contracts for, and made allocations of 
ACE to, 17 NE multispecies sectors. The Amendment 16 regulations 
governing the sector operations plans and contracts allow for a sector 
to request exemptions from Federal fishing regulations through the 
sector operations plan and contract submitted to NMFS for approval on 
an annual or bi-annual basis (Sec.  648.87(b)(2)(xv)). Pursuant to 
Sec.  648.87(c)(2), the Regional Administrator may exempt vessels 
participating in a sector from certain Federal fishing regulations, in 
addition to the Amendment 16 universal exemptions already approved for 
all sectors. Regulations prohibit sectors from requesting exemptions 
that involve: NE multispecies year-round closure areas, permitting 
restrictions (e.g., vessel upgrades, etc.); gear restrictions designed 
to minimize habitat impacts (e.g., roller gear restrictions, etc.); and 
reporting requirements (not including days-at-sea (DAS) reporting 
requirements or Special Access Program (SAP)-specific reporting 
requirements). For FY 2010, the final rule implementing sectors 
approved several new exemptions from NE multispecies regulations for 
those sectors that requested the exemptions through their FY 2010 
sector operations plans. Specifically, certain sectors received 
exemptions from the following measures: (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 Georges Bank (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.
    The sectors also requested several exemptions in the FY 2010 
operations plans that NMFS subsequently disapproved, because they are 
prohibited from being requested or because similar exemption requests 
were being addressed in the Amendment 16 proposed rule. Among these was 
a request by the Sustainable Harvest Sector to participate in the GOM 
Haddock Sink Gillnet Pilot Program, a program proposed in Amendment 16 
that would have allowed the seasonal use of 6-inch (15.24-cm) mesh 
gillnets in the GOM Regulated Mesh Area (RMA) (as opposed to the 
current 6.5-inch (16.51-cm) mesh requirement) for the purposes of 
targeting GOM haddock.
    Upon initial review of the FY 2010 sector operations plans and 
contracts, NMFS requested that sectors remove exemption requests that 
repeated measures already proposed under Amendment 16, including the 
GOM Haddock Sink Gillnet Pilot Program, to avoid duplication in the 
rulemaking process. The Pilot Program was subsequently disapproved for 
all groundfish vessels by NMFS in Amendment 16 because of concern that 
it could increase catch of overfished stocks, such as GOM cod, and 
therefore undermine the rebuilding programs for these stocks.
    In comments on the proposed FY 2010 sector operations plan rule, 
the Sustainable Harvest Sector, the New England Fishery Management 
Council (Council), and 14 others asked what actions NMFS was 
considering for exemption requests such as the pilot program that were 
removed from sector operations plans to reduce duplication with 
Amendment 16, but which were subsequently disapproved in Amendment 16. 
NMFS responded in a March 23, 2010, letter to the Council that it would 
work with sector managers regarding reconsideration of the pilot 
program for sectors in a separate rulemaking given that, for a sector, 
this program would be more controlled and unlikely to compromise 
efforts to eliminate overfishing and rebuild overfished stocks. At that 
time, NMFS noted it would also consider granting approved sector 
exemption requests to all FY 2010 sectors, if appropriate, through 
additional rulemaking. As a result, in April 2010, NMFS solicited 
requests from the approved FY 2010 sectors to determine if they would 
be interested in an exemption that would be functionally equivalent to 
the GOM Haddock Sink Gillnet Pilot Program (i.e., the ``GOM sink 
gillnet mesh exemption''), as well as any additional exemptions 
approved in the final sector rule which their sector had not previously 
requested. In response, all 17 sectors submitted requests for addenda 
to their operations plans and contracts to incorporate additional 
exemptions. Therefore, 17 addenda to the approved FY 2010 sector 
operations plans and contracts, and the additional exemptions requested 
therein, were proposed in the proposed rule published September 2, 
2010.
    Among the exemptions under consideration in the proposed rule was a 
partial exemption from the requirement to retain and land all legal-
sized fish of the 14 stocks allocated to sectors. Regulations at 
Sec. Sec.  648.14(k)(14)(viii) and 648.87 (b)(1)(v)(A) specifically 
prohibit sector vessels from discarding legal-sized regulated species 
allocated to sectors. This requirement applies to all fish or pieces of 
fish above the minimum size, including fish that may be considered 
unmarketable, such as depredated fish. Sector members and managers 
raised concerns with this requirement, specifically the retention of 
unmarketable fish, stating that the need to separate the unmarketable 
fish from the food-grade product within limited deck and storage space 
was creating operational difficulties and potential safety hazards at 
sea. Although this problem was raised to the Council during the 
development of Amendment 16, no exceptions to this requirement were 
considered or recommended by the Council.
    To address this concern, the proposed rule to implement sector 
operations plan addenda proposed a partial exemption in each sector 
operations plan from the prohibition on discarding of legal-sized 
unmarketable fish of allocated stocks, provided that the legal-sized 
unmarketable fish are accounted for in the sector's discard rate, as 
determined through observer coverage, similar to how other allowable 
discards are accounted for. For the purposes of this exemption, 
unmarketable fish is defined as any legal-sized fish the vessel

[[Page 80722]]

owner/captain elects not to retain because of condition or 
marketability problems.
    Since proposing this measure in the proposed rule, new concerns 
have come to light regarding implementation of this measure mid-year, 
rather than at the start of the fishing year, given that it would 
require the adjustment of sector discard rates mid-season. NMFS had 
intended to revise the sector-specific discard rates for sectors that 
opt for the discarding exemption, to adjust for the change in 
possession restrictions and the handling of legal-sized unmarketable 
fish. However, it was determined that adjusting sector discard rates 
mid-season would disrupt the cumulative year-long dataset used to 
monitor sector ACEs. In addition, implementing this exemption mid-
season would disrupt some sector's discard rates more than others, 
potentially raising equity issues. Therefore, because granting this 
exemption without accounting for revised discard rates would not 
adequately track catch of multispecies stocks, this exemption has been 
removed as an option in this final rule. NMFS will instead consider 
this exemption for FY 2011 sector operations plans, which would be 
effective at the start of the new fishing year (May 1, 2011) and, thus, 
would be less disruptive to sector discard rates.

Approved Sector Exemption Requests

    After thorough review and consideration of public comments on the 
exemption requests, NMFS authorizes exemptions from the following 
regulations for all individual sectors that requested them: (1) Minimum 
mesh size for sink gillnets in the GOM (GOM sink gillnet mesh 
exemption); (2) 120-day block out of the fishery required for Day 
gillnet vessels; (3) 20-day spawning block out of the fishery required 
for all vessels; (4) limitation on the number of gillnets imposed on 
Day gillnet vessels; (5) prohibition on a vessel hauling another 
vessel's gillnet gear; (6) limitation on the number of gillnets that 
may be hauled on GB when fishing under a groundfish/monkfish DAS; (7) 
limits on the number of hooks that may be fished; and (8) DAS Leasing 
Program length and horsepower restrictions. A summary of exemptions 
authorized for individual sectors is available in Table 1, and further 
details of each exemption are discussed below.
    The supplemental EA prepared for this action analyzed the impacts 
of expanding these exemptions to all FY 2010 sectors, not just those 
sectors that requested them. Therefore, although the addenda 
implemented through this final rule add only those exemptions currently 
requested by each sector, NMFS authorizes these exemptions for all FY 
2010 sectors such that a sector may submit a request for an addendum to 
their FY 2010 sector operations plan to add any of these approved 
exemptions at a later date, and NMFS may review and could approve the 
request without additional rulemaking. Approved addenda would be made 
available on the Northeast Regional Office Web site, or by mail upon 
request [see ADDRESSES].
BILLING CODE 3510-22-P

[[Page 80723]]

[GRAPHIC] [TIFF OMITTED] TR23DE10.003

BILLING CODE 3510-22-C

1. GOM Sink Gillnet Mesh Exemption

    Regulations require a minimum mesh size of 6.5-inch (16.51-cm) for 
gillnets in the GOM RMA (Sec.  648.80(a)(3)(iv)). Minimum mesh size 
requirements have been used, along with other management measures, to 
reduce overall mortality on groundfish stocks, as well as to reduce 
discarding and improve survival of sub-legal groundfish. This exemption 
allows FY 2010 sector vessels to use 6-inch (15.24-cm) mesh stand-up 
gillnets in the GOM RMA from January 1, 2011 to April 30, 2011, to fish 
for haddock. Sector vessels utilizing this exemption are prohibited 
from using tie-down gillnets in the GOM RMA during this period. Sector 
vessels may transit the GOM RMA with tie-down gillnets, provided they 
are properly stowed and not available for immediate use in accordance 
with one of the methods specified at Sec.  648.23(b). In the proposed 
rule, NMFS proposed that Day gillnet vessels would not be able to fish 
with, possess, haul, or deploy more than 30 nets per trip during this 
period. However, Day gillnet vessels participating in sectors granted 
the exemption from Day gillnet net limits are exempt from the general 
net limit in the GOM RMA, and would be able to fish up to 150 nets in 
the GOM RMA at other times of year. Therefore, to maximize the 
flexibility for sector vessels fishing under this exemption, NMFS is 
allowing Day gillnet vessels participating in a sector granted both the 
GOM sink gillnet mesh exemption and the general net limit exemption to 
fish up to 150 stand-up nets in the GOM RMA during this period (up to 
150 nets total in all RMAs). Day gillnet vessels participating in a 
sector that has not also been approved for the general net limit 
exemption will be restricted to the limit of 50 stand-up sink gillnets 
during this period, consistent with existing net limits in the GOM RMA 
specified at Sec.  648.80(a)(3)(iv)(B)(2). The Letter of Authorization 
(LOA) issued to the sector vessels that qualify for this exemption will 
specify the net restrictions to help ensure the provision is 
enforceable. There is no limit on the number of nets that participating 
Trip gillnet vessels are able to fish with, possess, haul, or deploy, 
during this period, because Trip gillnet vessels are required to remove 
all gillnet gear from the water before returning to port at the end of 
a fishing trip.
    Recent selectivity studies have indicated that 6.5-inch (16.51-cm) 
sink gillnets may not be effective at retaining haddock at the current 
legal minimum fish size. This exemption would provide sector vessels 
the opportunity to utilize a smaller mesh size gillnet to potentially 
catch more haddock in the GOM, and, thereby, increase efficiency and 
revenue in the fishery. NMFS believes that impacts to allocated target 
stocks resulting from this exemption would be negligible, because 
fishing mortality by sector vessels is restricted by an ACE for

[[Page 80724]]

allocated stocks, which caps overall mortality. It is possible that a 
higher net limit for Day gillnet vessels participating in this program 
could result in an increase in the number of gillnets in the water at 
one time and, therefore, potentially increase interactions with 
protected species. However, potential negative impacts to protected 
species from this exemption are expected to be low because additional 
nets may result in greater efficiency that could decrease the overall 
number of soak hours throughout the year as a sector's ACE is caught 
faster, thus potentially reducing interactions with protected species. 
In addition, sector vessels utilizing this exemption are still required 
to comply with all requirements of the Harbor Porpoise Take Reduction 
Plan (75 FR 12698; March 17, 2010) and Atlantic Large Whale Take 
Reduction Plan (73 FR 58942; October 8, 2008). The GOM sink gillnet 
mesh exemption is approved for Northeast Fishery Sectors II and III, V-
VIII, and X-XII, the Sustainable Harvest Sector, the Port Clyde 
Community Groundfish Sector, the GB Cod Fixed Gear Sector and the Tri-
State Sector.

2. 120-Day Block Requirement Out of the Fishery for Day Gillnet Vessels

    The 120-day block requirement out of the fishery for Day gillnet 
vessels was implemented to help ensure that management measures for Day 
gillnet vessels were comparable to effort controls placed on other 
fishing gear types, given that gillnets continue to fish as long as 
they are in the water. Regulations at Sec.  648.82(j)(1)(ii) require 
that each NE multispecies gillnet vessel declared into the Day gillnet 
category declare out and be out of the non-exempt gillnet fishery for 
120 days each fishing year. 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 exemption was previously approved 
for the GB Cod Fixed Gear Sector, Sustainable Harvest Sector, Port 
Clyde Community Groundfish Sector, Tri-State Sector, and Northeast 
Fishery Sectors III and XI, based upon the rationale that 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 resulting from 
sector operations. Approval of this exemption for additional sectors 
would increase the operational flexibility of sector vessels and is 
expected to increase profit margins of sector fishermen. For additional 
information on this exemption, please refer to the description of this 
exemption in the proposed and final rules approving FY 2010 sector 
operations plans (74 FR 68015 and 75 FR 18113, respectively). This 
exemption is approved for seven additional sectors: Northeast Fishery 
Sectors II, V-VIII, X, and XII.

3. 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 is most 
prevalent in the GOM. This regulation was developed to reduce fishing 
effort on spawning groundfish stocks and an exemption from this 
requirement was previously approved for FY 2010 sectors based upon the 
rationale that the sector's ACE will restrict fishing mortality, making 
the requirement no longer necessary as an effort control. Exemption 
from this requirement is being approved for additional sectors, because 
it would provide vessel owners with greater flexibility to plan 
operations according to fishing and market conditions. For additional 
information on this exemption, please refer to the description of this 
exemption in the FY 2010 sector operations plan rules. This exemption 
was previously approved for the Sustainable Harvest Sector, the Tri-
State Sector, and the Northeast Coastal Communities Sector. This final 
rule approves this exemption for an additional 13 sectors: Northeast 
Fishery Sectors II, III, and V-XIII; the GB Cod Fixed Gear Sector; and 
the Port Clyde Community Groundfish Sector.

4. Limitation on the Number of Gillnets for Day Gillnet Vessels

    Current 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 (Sec.  
648.80(a)(3)(iv)(B)(2)); 50 gillnets in the GB RMA (Sec.  
648.80(a)(4)(iv)(B)(1); and 75 gillnets in the Southern New England 
(SNE) and Mid-Atlantic (MA) RMAs (Sec. Sec.  648.80(b)(2)(iv)(B)(1) and 
648.80(c)(2)(v)(B)(1), respectively). This exemption, as previously 
approved for the Sustainable Harvest Sector in the final sector rule 
for FY 2010, allows sector vessels to fish up to 150 nets (any 
combination of flatfish or roundfish nets) in each of the RMAs (up to 
150 total), and would provide greater operational flexibility to sector 
vessels in deploying gillnet gear. This exemption was originally 
approved, and is being approved for additional sectors, based upon the 
rationale that it is designed to control fishing effort and is no 
longer necessary for sector vessels, since each sector is restricted by 
an ACE for each stock, which caps overall fishing mortality. For 
additional information on this exemption, please refer to the 
description of this exemption in the FY 2010 sector operations plan 
rules. This final rule approves this exemption for 12 additional 
sectors: Northeast Fishery Sectors II, III, V-VIII, and X-XII; the GB 
Cod Fixed Gear Sector; the Port Clyde Community Groundfish Sector; and 
the Tri-State Sector.

5. Prohibition on a Vessel Hauling Another Vessel's Gillnet Gear

    Northeast Fishery Sectors III and XI received an exemption for FY 
2010 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(a)) in order to share fixed gear among sector vessels. This 
exemption was originally approved for FY 2010 sectors and is being 
expanded to allow sector vessels to reduce costs by pooling gillnet 
gear, and because it was determined that the regulations pertaining to 
hauling and setting responsibilities are no longer necessary when 
sectors are confined to an ACE for each stock. Consistent with the 
exemption as originally approved, the sectors that requested this 
exemption proposed that all vessels utilizing community fixed gear be 
jointly liable for any violations associated with that gear. For 
additional information on this exemption, please refer to the 
description of this exemption in the FY 2010 sector operations plan 
rules. Note that the description of this exemption in the FY 2010 
sector operations plan rules and the proposed rule to implement FY 2010 
sector operations plan addenda incorrectly referred to the entirety of 
Sec.  648.84. This exemption was intended to exempt sector vessels only 
partially from Sec.  648.84(a), to allow a sector vessel to haul 
gillnet gear marked by another vessel participating in this exemption. 
The regulation citation has been corrected in this final rule and will 
be reflected in the LOA issued to each sector vessel. This exemption is 
approved for an 11 additional sectors: Northeast Fishery Sectors II, V-
VIII, X, and XII; the GB Cod Fixed Gear Sector; the Sustainable Harvest 
Sector; the Port Clyde Community Groundfish Sector; and the Tri-State 
Sector.

[[Page 80725]]

6. Limitation on the Number of Gillnets That May Be Hauled on GB When 
Fishing Under a Groundfish/Monkfish DAS

    The GB Cod Fixed Gear Sector received an exemption for FY 2010 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) prohibit Day gillnet vessels fishing on a groundfish 
DAS from possessing, deploying, fishing, or hauling more than 50 nets 
on GB, and were implemented as a groundfish mortality control under 
Amendment 13. This exemption was previously approved, and is being 
expanded to additional sectors, because it would allow nets deployed 
under existing net limits of the Monkfish FMP to be hauled more 
efficiently by vessels dually permitted under both FMPs. For additional 
information on this exemption, please refer to the description of this 
exemption in the FY 2010 sector operations plan rules. This exemption 
is approved for an additional 12 sectors for FY 2010: Northeast Fishery 
Sectors II, III, V-VIII, and X-XII; the Sustainable Harvest Sector; the 
Port Clyde Community Groundfish Sector; and the Tri-State Sector.

7. Limitation on the Number of Hooks That May Be Fished

    The GB Cod Fixed Gear Sector was granted an exemption for FY 2010 
from the number of hooks that a vessel may fish on a given fishing 
trip. Current regulations at 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 
Southern New England (SNE) RMA, or 4,500 rigged hooks in the MA RMA. 
This exemption was approved in the final rule approving sector 
operations plans for FY 2010 and is being approved here for additional 
sectors because it would allow sector vessels to more efficiently 
harvest ACE and is no longer a necessary control on effort by sector 
vessels. For additional information on this exemption, please refer to 
the description of this exemption in the FY 2010 sector operations plan 
rules. This action exempts 13 additional sectors from this requirement: 
Northeast Fishery Sectors II, III, V-VIII, and X-XII; the Sustainable 
Harvest Sector; the Port Clyde Community Groundfish Sector; the Tri-
State Sector; and the Northeast Coastal Communities Sector.

8. Length and Horsepower Restrictions on DAS Leasing

    While sector vessels are exempt from the requirement to use NE 
multispecies DAS to harvest groundfish, sector vessels have been 
allocated and still need to use NE multispecies DAS for specific 
circumstances. For example, the Monkfish FMP includes a requirement 
that limited access monkfish Category C and D vessels harvesting more 
than the incidental monkfish catch must fish under both a monkfish and 
a NE multispecies DAS. Therefore, sector vessels may still use, and 
lease, NE multispecies DAS.
    The Sustainable Harvest Sector and Tri-State Sector received a FY 
2010 exemption from the DAS Leasing Program length and horsepower 
baseline restrictions on DAS leases between vessels within their 
individual sectors as well as with vessels in other sectors with this 
exemption. Restricting sectors to their ACEs eliminates the need to use 
vessel characteristics to control fishing effort. Further, exemption 
from this restriction allows sector vessels greater flexibility in the 
utilization of ACE and DAS. Approving this exemption for additional 
sectors could increase the profitability of sector participants by 
expanding the pool of eligible lessors and lessees for any given 
vessel. Providing greater flexibility in the distribution of DAS could 
result in increased effort on non-allocated target stocks, such as 
monkfish and skates. However, sectors predicted little consolidation 
and redirection of effort in their FY 2010 operations plans. In 
addition, any potential redirection in effort would be restricted by 
the sector's ACE for each stock, as well as effort controls in other 
fisheries (e.g., trip limits and DAS). For additional information on 
this exemption, please refer to the description of this exemption in 
the FY 2010 sector operations plan rules. This final rule approves this 
exemption for 14 additional sectors: Northeast Fishery Sectors II-XIII; 
the GB Cod Fixed Gear Sector; and the Port Clyde Community Groundfish 
Sector.

Supplemental Environmental Assessment

    In accordance with the National Environmental Policy Act, a 
supplemental EA was prepared analyzing these 17 operations plan 
addenda. The supplemental EA is tiered from the Environmental Impact 
Statement (EIS) for Amendment 16 and the 17 sector EAs prepared for the 
17 sector operations plans and contracts previously approved for FY 
2010. The supplemental EA for this action examines the biological, 
economic, and social impacts associated with the new GOM sink gillnet 
mesh exemption and expanding the other exemptions previously approved 
for some FY 2010 sectors. It also provides a cumulative effects 
analysis (CEA) that addresses the combined impact of the direct and 
indirect effects of all proposed exemptions if approved for all the FY 
2010 sectors. For the purpose of this analysis, the supplemental EA 
assumes that all 17 sectors requested and were granted all additional 
exemptions, because any individual sector approved for a given 
exemption could fish all the allocation through ACE trading. The 
summary finding of the supplemental EA concludes that, operating under 
the proposed exemptions, the sectors would produce similar effects that 
have non-significant impacts. An analysis of aggregate sector impacts 
was also conducted. A copy of the supplemental EA prepared for the 17 
sector operations plan addenda that this rule implements is available 
from the Regional Office and online (see ADDRESSES).

Comments

    Comments were submitted by one individual, one fishing industry 
organization, and one environmental organization. One comment, received 
from an individual, was not applicable to this action, and therefore is 
not addressed in this rule.
    Comment 1: The Associated Fisheries of Maine supported the approval 
of the addenda to FY 2010 sector operations plans and all exemption 
requests therein.
    Response 1: NMFS has approved the 17 addenda and associated 
exemption requests, with the exception of the discarding exemption. The 
discarding exemption was removed as an option from this final rule due 
to concerns that implementing this exemption mid-season would disrupt 
sector discard rates. The discarding exemption will instead be 
considered for FY 2011 sectors in the proposed rule that proposes FY 
2011 sector operations plans and associated exemption requests.
    Comment 2: Oceana opposed the discarding exemption, asserting that 
the prohibition on discarding is clearly articulated in Amendment 16 
and is a provision of the NE Multispecies FMP that cannot be changed 
without a full amendment to the FMP.
    Response 2: Although NMFS is not approving this exemption request 
for FY 2010, NMFS disagrees with Oceana's assertions about this 
exemption. Amendment 16 does not explicitly

[[Page 80726]]

address the handling of unmarketable fish by sector vessels at sea, as 
was determined when NMFS staff raised this issue with the Council's 
Groundfish Oversight Committee at their June 16, 2010, meeting. At that 
time, the Committee requested that NMFS consider methods to rectify 
this issue in the near-term. Thus, NMFS proposed a partial exemption 
from the prohibition on discarding legal-size fish, pursuant to the 
regulations at Sec.  648.87(c)(2), which specify that sectors may 
request and be approved for exemptions from any NE multispecies 
regulation (with specific exceptions). This exemption was proposed in 
the proposed rule to implement addenda to FY 2010 sector operations 
plans, but removed as an option in the final rule for the reasons 
stated above. This exemption will instead be considered for FY 2011 
sectors in the proposed rule to implement FY 2011 sector operations 
plans. Neither of these actions proposes to modify the no-discard 
provision, but rather proposes sector operations plan exemptions under 
the authority provided to the RA through Amendment 16.
    Comment 3: Oceana commented that the RA may not approve the 
discarding exemption for sectors, because the prohibition on discarding 
of legal-sized fish of allocated stocks is part of the sector reporting 
requirements, one of the four provisions from which the RA does not 
have authority to grant sectors an exemption. Oceana stated that 
approval of the discarding exemption would compromise the sector 
monitoring program, thus undermining the FMP goals, and National 
Standards 2 and 9 of the Magnuson-Stevens Act.
    Response 3: Although NMFS is not approving this exemption request, 
NMFS disagrees that the prohibition on discarding is a sector reporting 
requirement. While the purpose of the no-discard provision is to 
facilitate the accurate monitoring of sector ACEs and is described 
among sector monitoring requirements in Amendment 16 and the NE 
multispecies regulations, this provision is not a reporting or 
monitoring requirement in itself. This provision is a possession 
restriction, prescribing the handling of legal-sized fish of allocated 
stocks, and not the reporting or monitoring of these fish. It is NMFS' 
intent that the partial exemption from this possession restriction, if 
approved at a later date, would allow the discarding of unmarketable 
fish of allocated stocks rather than require the retention and landing 
of these fish. The discarding exemption would not exempt sector vessels 
from any reporting requirements, and all discards would still be 
reported consistent with NE multispecies and sector reporting 
requirements.
    NMFS disagrees that the discarding exemption, if later approved, 
would compromise the sector monitoring program. Actual discards by 
sector vessels observed by NMFS observers and at-sea monitors on sector 
trips are applied to the sector's ACEs in live weights, and 
incorporated into sector-specific discard rates that are used to 
account for discards by sector vessels on unobserved trips. If 
implemented in FY 2011, the discarding exemption would not modify this 
monitoring process in any way. Discards of unmarketable fish under this 
exemption would be applied to sector ACEs through observer data and 
sector-specific discard rates, in the same way that allowable discards 
are accounted for currently. Furthermore, NMFS has delayed 
consideration of this exemption for sectors to FY 2011 to ensure that 
the exemption does not disrupt the year-long cumulative dataset used to 
monitor sector ACEs. If the discarding exemption is approved for FY 
2011 sectors, through the final rule implementing FY 2011 sector 
operations plans and contracts, it would be implemented with the start 
of the fishing year on May 1, 2011, so that unmarketable fish would be 
consistently handled and applied to sector ACEs throughout the 2011 FY. 
Thus, if later approved, the discarding exemption would not compromise 
the sector ACE monitoring program implemented by Amendment 16, nor 
undermine the objectives of the FMP or the National Standards.
    Comment 4: Oceana commented that the proposed rule did not contain 
sufficient analysis of the discarding exemption, including an analysis 
of its projected effect on sector discard rates, and that further 
analysis should be completed before any action is taken to revise this 
requirement.
    Response 4: The analysis of the discarding exemption in the 
supplemental EA and preamble of the proposed rule was based on the most 
reliable information available on unmarketable fish at the time of the 
analysis, which consisted of observer data from sector trips during the 
first 3 months of FY 2010. Analysis of the discarding exemption has 
been updated in the final supplemental EA using observer data from 
sector trips during the first half of FY 2010, up to November 3, 2010, 
which confirmed that the occurrence of legal-sized unmarketable fish 
limited, and does not appear to be a significant portion of sector 
catch. The analysis of this exemption in the FY 2011 sector operations 
plan proposed rule, which will consider the discarding exemption for FY 
2011 sectors, will also be updated with available FY 2010 observer 
data.
    As explained previously, NMFS has delayed consideration of this 
exemption for sectors to FY 2011 to ensure that sector discard rates 
and the year-long dataset used to monitor sector ACEs is not disrupted. 
If this exemption is approved for FY 2011 sectors, unmarketable fish 
will be applied to sector ACEs through observer data and sector-
specific discard rates, as described above, beginning with the start of 
FY 2011, May 1, 2011.

Classification

    Pursuant to Sec.  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 FMP, other provisions of the Magnuson-Stevens 
Act, and other applicable law.
    Pursuant to 5 U.S.C. 553(d)(1), the Assistant Administrator for 
Fisheries has determined that this rule is not subject to the 30-day 
delayed effectiveness provision of the Administrative Procedure Act 
(APA) because it relieves a restriction by granting FY 2010 sector 
members exemptions from the following regulations of the NE 
Multispecies FMP:
    1. Minimum mesh size for sink gillnets in GOM (GOM sink gillnet 
mesh exemption);
    2. Day gillnet 120-day block requirement out of the fishery;
    3. Prohibition on a vessel hauling another vessel's gillnet gear;
    4. Limitation on the number of gillnets that may be hauled on GB 
when fishing under a groundfish/monkfish DAS;
    5. Limitation on the number of gillnets imposed on Day gillnet 
vessels;
    6. 20-day spawning block requirement out of the fishery required 
for all vessels;
    7. Limits on the number of hooks that may be fished; and
    8. Length and horsepower restrictions on DAS leasing.
    These regulations from which sector vessels are exempt remain in 
place for vessels in the common pool. Pursuant to the regulations at 
Sec. Sec.  648.87(b)(2)(xv) and 648.87(c)(2), a sector may request and 
be exempt from regulations of the NE Multispecies FMP, with few 
exceptions, through its annual or bi-annual operations plan. On May 1, 
2010, operations plans were

[[Page 80727]]

implemented for 17 sectors for the 2010 fishing year, including 
exemptions from certain NE multispecies regulations. The final rule 
implementing FY 2010 sector operations plans only approved exemptions 
for those sectors that had originally requested them through their FY 
2010 sector operations plans. The sectors that had not requested 
certain exemptions in their operations plans were required to continue 
to comply with the regulations otherwise exempted for other sectors, 
which include effort controls such as required time out of the fishery 
and gear restrictions.
    This action expands the previously approved exemptions for FY 2010 
to all sectors that wish to add them, in addition to approving a new 
exemption for sectors (i.e., the GOM Sink Gillnet Mesh exemption), via 
an amendment to their current operations plan. 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, and increases the 
flexibility and economic efficiency of vessel operations through the 
approval of exemptions for vessels participating in NE multispecies 
sectors for FY 2010. In general, this rule implements exemptions from 
several effort control measures that are no longer necessary and, thus, 
are redundant for sectors because sectors are restricted to an ACE for 
each groundfish stock, which limits overall fishing mortality. The 
exemptions allow sector members more operational flexibility, but there 
is no requirement to use them on any given fishing trip. Therefore, a 
delayed effectiveness is not required to provide time for sector 
members to prepare to use their requested exemptions.
    NE multispecies sector operations, including exemptions from 
certain NE multispecies regulations, are approved annually. Thus, the 
exemptions approved in this rule are only effective for FY 2010 
(through April 30, 2011). To date, only 5 months remain in FY 2010. In 
order to achieve the most economic benefits, this action must be 
effective as soon as possible to maximize the amount of time sector 
vessels have to utilize these exemptions. The GOM sink gillnet mesh 
exemption, which is intended to enhance the ability of sector vessels 
to target a rebuilt stock, has a season associated with it (January 1, 
2011, through April 30, 2011). Delayed implementation of these measures 
would shorten the participation period for this exemption and reduce 
the economic benefits sector vessels may derive from this and other 
exemptions in FY 2010.
    Delaying implementation would result in short-term adverse economic 
impacts to NE multispecies vessels and associated fishing communities 
since vessels that are participating in a sector in FY 2010 (762 
permits, 52 percent of the groundfish fleet) would not be able to take 
immediate advantage of the flexibility in vessel operations this rule 
provides. Sector vessels would continue to operate under redundant 
effort controls for an additional month, and revenues would be expected 
to be lower. For example, sector vessels would not be able to 
participate in the GOM sink gillnet mesh exemption that this rule 
allows until the last three months of FY 2010, reducing opportunity for 
gillnet vessels to target haddock and benefit from potentially 
increased haddock revenues. Delaying implementation of these exemptions 
could incentivize sector vessels to delay fishing trips until the 
period of greater flexibility, potentially creating safety issues 
because sector vessels would have less flexibility to time fishing 
trips to optimal weather conditions. Furthermore, delaying 
implementation would limit flexibility for sector vessels to time 
fishing trips to market conditions, and revenues would be expected to 
be lower.
    This final rule is exempt from review under Executive Order (E.O) 
12866.
    A Final Regulatory Flexibility Analysis (FRFA) has been prepared 
for this rule as required by Sec.  603 of the Regulatory Flexibility 
Act (RFA). The FRFA is comprised of the economic impacts identified in 
the Initial Regulatory Flexibility Analysis (IRFA), the preamble of the 
proposed rule and this rule, the supplemental EA prepared for this 
action, and the discussions, including responses to public comments, 
included in this rule. This FRFA describes the economic impact that the 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained in the preamble to this final rule and in sections 
1.0, 2.0, and 3.0 of the supplemental EA prepared for this action and, 
thus, are not repeated here.
    No issues were raised by public comments in response to the IRFA or 
with respect to the economic impacts of this action. Accordingly, no 
changes were made from the proposed rule as the result of any such 
comments.

Description and Estimate of the Number of Small Entities To Which the 
Final Rule Would Apply

    This action would affect regulated entities engaged in commercial 
fishing for groundfish that are enrolled in any one of the 17 sectors 
that are operating in FY 2010. Anyone with a valid limited access 
Federal permit under the NE Multispecies FMP is eligible to join a 
sector. 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.

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Final Rule

    This final rule contains no collection-of-information requirement 
subject to the Paperwork Reduction Act.

Description of Steps the Agency Has Taken To Minimize the Economic 
Impact on Small Entities Consistent With the Stated Objectives of 
Applicable Statutes

    The EIS for Amendment 16 compares economic impacts of sector 
measures with non-sector measures, and analyzes costs and benefits of 
the universal exemptions. The proposed rule proposing approval of the 
FY 2010 sector operations plans and contracts discussed the economic 
impacts of the additional exemptions requested by sectors. This final 
rule and the accompanying supplemental EA discuss the economic impacts 
of approving the GOM sink gillnet mesh exemption, as well as expanding 
the exemptions approved for FY 2010 sectors. The exemptions implemented 
by this final rule would provide additional economic flexibility to 
vessels already participating in NE multispecies sectors during FY 
2010. All exemptions requested by the sectors are intended to provide 
positive social and economic benefits to sector members and ports.
    The GOM sink gillnet mesh exemption is being requested by Northeast 
Fishery Sectors II and III, V-VIII, and X-XII, the GB Cod Fixed Gear 
Sector, the Sustainable Harvest Sector, the Port Clyde Community 
Groundfish Sector, and the Tri-State Sector, which represent 616 
permits. The exemption

[[Page 80728]]

will allow the use of 6-inch (15.24-cm) mesh gillnets in the GOM RMA 
from January 1, 2011-April 30, 2011. This exemption would provide 
participating sector vessels an opportunity to retain more GOM haddock, 
a healthy stock, and share in the benefits from the stock recovery. To 
utilize this exemption, it would be necessary for participating sector 
vessels to purchase 6-inch (15.24-cm) mesh gillnets. However, it would 
allow a greater catch of haddock, which may increase revenues for 
gillnet fishermen and the ports where they land their fish, 
particularly if participating vessels are able to change fishing 
behavior to selectively target this stock and minimize catch of other 
allocated target stocks.
    Exemption from the Day gillnet 120-day block requirement out of the 
fishery is being approved for the Northeast Fishery Sectors II, V-VIII, 
X and XII. 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 120-day 
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. Furthermore, 
this exemption could provide additional flexibility to sector vessels 
to maximize the utility of other sector-specific and universal 
exemptions, such as the exemption from the GB Seasonal Closure in May 
and portions of the GOM Rolling Closure Areas. Several of the FY 2010 
sectors, representing 390 permits, are already utilizing this 
exemption. This final rule extends this flexibility and potential 
economic benefits to an additional 226 permits.
    Northeast Fishery Sectors II and III, and V-XIII, the GB Cod Fixed 
Gear Sector, and the Port Clyde Community Groundfish Sector, are 
granted an exemption from the required 20-day spawning block out of the 
fishery. 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. Removing this 
requirement may not have a significant impact, but could still provide 
vessel owners with greater opportunity to make more efficient use of 
their vessel. This exemption was previously approved for three sectors 
representing 153 permits. Approval of this exemption for these 
additional sectors extends the exemption to an additional 563 permits.
    Northeast Fishery Sectors II and III, V-VIII, and X-XII, the GB Cod 
Fixed Gear Sector, the Port Clyde Community Groundfish Sector, and the 
Tri-State Sector, are granted an exemption from the limit on the number 
of nets (not to exceed 150 in all RMAs) that may be deployed by Day 
gillnet vessels. This exemption would provide greater flexibility to 
deploy fishing gear by participating sector members according to 
operational and market needs. In addition, approval of this exemption 
could also maximize the utility of the GOM Sink Gillnet exemption for 
those sectors approved for both because it would allow them to deploy 
more nets under the GOM Sink Gillnet exemption. A total of 116 permits 
participating in FY 2010 sectors are already exempt from this 
requirement. This action extends this flexibility and potential 
economic benefits to an additional 500 permits.
    The Northeast Fishery Sectors II, V-VIII, X and XII, the GB Cod 
Fixed Gear Sector, the Sustainable Harvest Sector, the Port Clyde 
Community Groundfish Sector, and the Tri-State Sector are being granted 
an exemption from the prohibition on a vessel hauling gear that was set 
by another vessel. The community fixed gear exemption allows sector 
vessels in the Day gillnet category to effectively pool gillnet gear 
that may be hauled or set by sector members. This provision could 
reduce the total amount of gear that would have to be purchased and 
maintained by participating sector members resulting in some uncertain 
level of cost savings, along with a possible reduction in total gear 
fished. This exemption has already been approved for 120 permits in FY 
2010 sectors and is being approved for additional sectors through this 
action, representing an additional 496 permits.
    Northeast Fishery Sectors II and III, V-VIII, and X-XII, the 
Sustainable Harvest Sector, the Port Clyde Community Groundfish Sector, 
and the Tri-State Sector are granted an exemption from the limitation 
on the number of gillnets that may be hauled on GB when fishing under a 
groundfish/monkfish DAS. Approving this exemption would increase 
operational flexibility for an additional 522 permits, providing an 
opportunity for a substantial portion of the fleet to improve vessel 
profitability.
    The Northeast Fishery Sectors II and III, V-VIII, and X-XII, the 
Sustainable Harvest Sector, the Port Clyde Community Groundfish Sector, 
the Tri-State Sector, and the Northeast Coastal Communities Sector, 
representing an additional 540 permits, are granted an exemption from 
the number of hooks that may be fished. These exemptions would provide 
vessel owners in these additional sectors with the flexibility to adapt 
the number of hooks fished to existing fishing and market conditions 
and, thereby, improve vessel profitability. The exemption from the 
number of hooks that may be fished has been granted to the GB Cod Hook 
Sector each year since 2004 and was granted to the GB Cod Fixed Gear 
Sector for FY 2010. Approval of this exemption for these additional 
sectors extends the potential economic benefits to more vessels in 
other sectors.
    Northeast Fishery Sectors II-XIII, the GB Cod Fixed Gear Sector, 
and the Port Clyde Community Groundfish Sector, are granted an 
exemption 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 it may lease to. The opposite is true for larger vessels. 
Exemption from these restrictions allows greater flexibility to lease 
DAS between vessels of different sizes and could expand the market of 
potential lessees for some vessels. The efficiency gains of this 
exemption as approved for the Tri-State Sector and the Sustainable 
Harvest Sector were limited because the exemption would only apply to 
leases between Tri-State Sector and Sustainable Harvest Sector members, 
representing 135 permits. This action extends this exemption to an 
additional 609 permits, which could not only potentially increase 
efficiency for the additional sectors for which this exemption is 
approved, but also for members of the Tri-State and Sustainable Harvest 
Sectors by expanding the pool of potential lessees with this exemption. 
Since DAS are not required while fishing for groundfish, the economic 
importance of this exemption would be associated with the need to use 
NE multispecies DAS when fishing in other fisheries, for example, 
monkfish.

[[Page 80729]]

Economic Impacts of the Alternative to the Proposed Action

    Under the No Action alternative, one or more of the sectors' 
requests for operations plan addenda would be disapproved, which would 
result in sector vessels operating under the operations plans and 
exemptions as approved for the start of the 2010 FY in the sector 
operations plan final rule published April 9, 2010. Under this 
scenario, sector vessels may experience the efficiency gains and 
economic benefits of sector participation and the exemptions for which 
they have already been approved, as described in the IRFA for the 
proposed rule proposing approval of FY 2010 sector operations and 
exemptions. However, sector vessels would not be provided the 
opportunity to benefit from the increase in the operational flexibility 
that may be gained from all the exemptions available to FY 2010 sectors 
and revenues would be expected to be lower than under the proposed 
action. Relative 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.
    Allowing sectors to propose either entirely new exemptions or 
variations of previously approved exemptions was considered. However, 
this alternative was considered unreasonable because these exemptions 
are discrete measures which, by their nature, do not lend themselves to 
alternate configurations, and allowing sectors to propose entirely new 
exemptions or changing already approved exemptions could result in 
implementation delays that would reduce the utility of this action for 
sectors in this fishing year (FY 2010). In addition, this action is 
intended to be a continuing part of a longer action implementing 
Amendment 16, Framework Adjustment 44 to the NE Multispecies FMP, and 
the final rule approving FY 2010 sector operations plans, in which 
other alternative measures have already been considered. The FY 2010 
sectors will have an opportunity to propose any new or revised 
exemptions in their operations plans for FY 2011.
    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 
a small entity compliance guide (the guide) was prepared. Copies of 
this final rule are available from the Regional Administrator. The 
guide and this final rule will be available upon request.

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

    Dated: December 20, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2010-32340 Filed 12-22-10; 8:45 am]
BILLING CODE 3510-22-P