Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Exempted Fishery for the Spiny Dogfish Fishery in the Waters East and West of Cape Cod, MA, 26518-26523 [2013-10803]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 88 (Tuesday, May 7, 2013)]
[Rules and Regulations]
[Pages 26518-26523]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10803]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120905422-3394-01]
RIN 0648-BC50


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Exempted Fishery for the Spiny Dogfish Fishery in 
the Waters East and West of Cape Cod, MA

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

ACTION: Interim final rule.

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SUMMARY: This interim final rule modifies the regulations implementing 
the Northeast (NE) Multispecies Fishery Management Plan (FMP) to allow 
vessels fishing with a NE Federal spiny dogfish permit to fish in an 
area east of Cape Cod, MA (Eastern Exemption Area) with gillnet and 
longline gear, from June through December and with handgear from June 
through August, and to fish in Cape Cod Bay (Western Exemption Area) 
with longline gear and handgear from June through August. This action 
allows vessels to harvest spiny dogfish in a manner that is consistent 
with the bycatch reduction objectives of the NE Multispecies FMP.

DATES: Effective June 1, 2013. Comments on the Western Exemption Area 
must be received no later than 5 p.m., eastern daylight time, on June 
6, 2013.

ADDRESSES: An environmental assessment (EA) was prepared for this 
action and other considered alternatives and provides an analysis of 
the impacts of the approved measures and alternatives. Copies of this 
action, including the EA and the Initial Regulatory Flexibility 
Analysis (IRFA), are available on request from John K. Bullard, 
Regional Administrator, Northeast Regional Office, 55 Great Republic 
Drive, Gloucester, MA 01930. These documents are also available online 
at https://www.nero.noaa.gov.
    You may submit comments, identified by NOAA-NMFS-2012-0195, by any 
one of the following methods:
     Written comments (paper, disk, or CD-ROM) should be sent 
to Thomas A. Nies, Executive Director, New England Fishery Management 
Council, 50 Water Street, Mill 2, Newburyport, MA 01950. Mark the 
outside of the envelope, ``Comments on Spiny Dogfish Exempted 
Fishery.''
     Comments also may be sent via facsimile (fax) to (978) 
465-3116.
     Submit all electronic public comments via the Federal e-
Rulemaking Portal. Go to www.regulationss.gov/#!docketDetail;D=NOAA-
NMFS-2012-0195, click the ``Comment Now!'' icon, complete the required 
fields, and enter or attach your comments.
    Instructions: Comments will be posted for public viewing as they 
are received. All comments received are a part of the public record and 
will generally be posted to https://www.regulations.gov without change. 
All Personal Identifying Information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit Confidential Business Information or otherwise sensitive or 
protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.

FOR FURTHER INFORMATION CONTACT: Travis Ford, Fishery Policy Analyst, 
978-281-9233; fax 978-281-9135; email: travis.ford@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

    Current regulations, implemented under Framework Adjustment 9 (60 
FR 19364, April 18, 1995) and expanded under Amendment 7 to the FMP (61 
FR 27710, May 31, 1996), contain a NE multispecies fishing mortality 
and bycatch reduction measure that is applied to the Gulf of Maine 
(GOM), Georges Bank (GB), and Southern New England Exemption Areas 
found in Sec.  648.80. A vessel may not fish in these areas unless it 
is fishing under a NE multispecies or a scallop days-at-sea (DAS) 
allocation; is fishing with exempted gear; is fishing under the Small 
Vessel, Handgear (A or B) or Party/Charter permit restrictions; or is 
fishing in an exempted fishery. The procedure for adding, modifying, or 
deleting fisheries from the list of exempted fisheries is found in 
Sec.  648.80. A fishery may be exempted by the Regional Administrator 
(RA) if, after consultation with the New England Fishery Management 
Council (Council), the RA determines, based on sufficient available 
data or information, that the bycatch of regulated species (the subset 
of NE multispecies that requires vessels to use regulated mesh) is, or 
can be reduced to, less than 5 percent by weight of the total catch, 
and that such

[[Page 26519]]

exemption will not jeopardize the fishing mortality objectives of the 
FMP. We apply the 5-percent NE multispecies threshold at the trip 
level. Therefore, the percentages calculated were based on the percent 
of multispecies a vessel caught on a given trip.
    Representatives from the NE multispecies sector fleet submitted two 
exempted fishery requests to the NMFS Northeast Regional Office in 
December of 2011, requesting that we consider an exempted fishery for 
gillnet, longline, and handgear vessels targeting spiny dogfish in 
portions of the GOM and GB. Sector vessels targeting spiny dogfish in 
the requested area are currently required to fish on a declared NE 
multispecies trip and are charged a discard rate that is determined by 
the Northeast Fisheries Observer Program (NEFOP) and at-sea monitoring 
(ASM) discard data. The discard rate is based on the sector, area 
fished, and gear type, and is referred to as a discard stratum. Because 
discard strata are not defined based on target species, vessels 
targeting spiny dogfish (and catching very little groundfish) are being 
charged the discard rate that is used for all other declared groundfish 
trips in the discard stratum that applies to the sector, area fished, 
and gear type. This leads to calculations of higher discard rates of 
groundfish than observed on trips targeting spiny dogfish. We are 
required to deduct these calculated discards from the sector's Annual 
Catch Entitlement (ACE). Forfeiting the value of these often uncaught 
calculated discards, which otherwise could have been landed for sale, 
has created an economic burden for sector fishermen. It has 
particularly affected the sector's ``choke stocks,'' i.e., fish for 
which the sector has a small amount of ACE, either because of a low 
catch history for that stock or a small annual catch limit (ACL) for 
the stock.
    The original requests from industry proposed a year-round exempted 
fishery in statistical areas 514, 515, and 521 for vessels using 
gillnet, longline, and handgear. Due to too few observed trips in large 
portions of these areas and elevated groundfish bycatch recorded for 
the trips we do have information for, this action modifies the 
requested exempted fishery by exempting vessels using certain gear from 
the NE multispecies regulations in two smaller areas in the waters east 
and west of Cape Cod, MA, for limited times during the year, depending 
on the gear type used. One area is east of Cape Cod, which will be 
referred to as the Eastern Cape Cod Spiny Dogfish Exemption Area. The 
other area is south of 42[deg]11.5' N. lat. and west of 70[deg] W. 
long. which will be will be referred to as the Western Cape Cod Spiny 
Dogfish Exemption Area.
    In the Eastern Exemption Area (east of Cape Cod), this action 
exempts vessels using gillnet and longline gear from June through 
December, and vessels using handgear from June through August. The 
Eastern Exemption Area and the months of the exemption were developed 
based on information showing that, of a total of 642 observed trips in 
fishing years (FY) 2010 and 2011, the average percentage of groundfish 
caught was 0.09 percent for this modified alternative. Of these 
observed trips, none caught more than 5 percent regulated groundfish. 
We assessed another option for the Eastern Exemption Area that would 
have exempted gillnet, longline, and handgear in the area year-round. 
The data support the first option analyzed (referred to in the EA as 
Alternative 1, Option 1) but revealed that bycatch of regulated species 
(primarily cod and pollock) was elevated in the second option, with 
insufficient observer data in the area for January through May to make 
conclusions about bycatch.
    Based on data available at the time of the proposed rule, the 
Eastern Exemption Area (Alternative 1) was included as the preferred 
alternative. During the public comment period, we received a comment 
requesting that we expand the exemption area by including the portion 
of Cape Cod Bay south of 42[deg] N. lat. This area was part of the 
original request by industry, but it was our initial determination that 
there were not enough data to exempt this area from the requirements of 
the NE multispecies regulations. In response to this comment, we made 
an additional data request to the Massachusetts Department of Marine 
Fisheries (MA DMF). MA DMF was able to provide data for some 
supplementary trips in the area from a historical dataset (1995-2002). 
The MA DMF data included sufficient information for us to expand the 
proposed exemption area to include the portion of Cape Cod Bay west of 
70[deg] W. long. and south of 42[deg]11.5' N. lat. (Western Exemption 
Area), as originally requested by industry. The data included a total 
of 11 trips that spanned the area from June through August for longline 
gear and handgear. None of these 11 trips exceeded the 5-percent 
regulated multispecies threshold. Based on this information, we created 
the Western Exemption Area as an additional alternative (Alternative 2) 
within Cape Cod Bay to target spiny dogfish with longline gear and 
handgear from June through August. Although this area was part of the 
original request by industry, it was not part of the proposed rule for 
this action. Therefore, we are accepting comment on this portion of the 
rule to give the public a chance to comment on the Western Exemption 
Area (see ``DATES'').
    Although this action will exempt vessels targeting spiny dogfish 
from the NE multispecies regulations, this action is not expected to 
jeopardize mortality objectives of spiny dogfish or groundfish stocks. 
The existing spiny dogfish fishery is limited by an annual quota and a 
4,000-lb (1,814-kg) trip limit. Furthermore, using more accurate 
groundfish discard rates for spiny dogfish targeted trips will ease 
some of the burden on vessels participating in the NE multispecies 
fishery by providing an opportunity to actually land fish that were 
formerly calculated discards.
    The Council was consulted regarding the proposed rule at its 
September 25, 2012, Council meeting. Some members of the Council were 
in favor of expanding the exemption over a larger area and for a longer 
time period, and our addition of the Western Exemption Area supports 
this expansion. The Council as a whole raised no objections to this 
exemption.

Approved Measures

Eastern and Western Cape Cod Spiny Dogfish Exemption Areas

    The RA has determined that an exempted spiny dogfish fishery in two 
specifically defined portion of the waters east and west of Cape Cod, 
MA, meets the exemption requirements in Sec.  648.80(a)(8)(i). Analysis 
of available data indicate that bycatch of regulated species by vessels 
using gillnet and longline gear from June through December, and 
handgear from June through August in the Eastern Exemption Area, and 
vessels using longline gear and handgear from June through August in 
the Western Exemption Area, is less than 5 percent, by weight, of the 
total catch. The RA has also determined that the exemption will not 
jeopardize the fishing mortality objectives of the FMP because vessels 
will still be limited by the spiny dogfish annual quota and trip limit.
    The industry request that we expand the exemption area into Cape 
Cod Bay asked for gillnet gear to be exempted in addition to longline 
gear and handgear. However, including gillnets in the exemption during 
July and August is unnecessary and would be duplicative because there 
is an existing exemption for vessels using large-mesh gillnets in a 
portion of Statistical Area 514 (including Cape Cod Bay) for the months 
of July and August. For the

[[Page 26520]]

month of June we are concerned that interactions with large whales 
could increase by exempting gillnet gear in Cape Cod Bay. Therefore, 
the RA has determined that gillnet gear should not be included in the 
Western Exemption Area.
    The Eastern Cape Cod Spiny Dogfish Exemption Area is defined by 
straight lines connecting the following points in the order stated 
(copies of a chart depicting the area are available from the RA upon 
request):

------------------------------------------------------------------------
            Point                  N. latitude          W. longitude
------------------------------------------------------------------------
Point--1....................  42[deg]00'            70[deg]00'
Point--2....................  42[deg]00'            69[deg]47.5'
Point--3....................  41[deg]40'            69[deg]47.5'
Point--4....................  41[deg]29.5'          69[deg]35.5'
Point--5....................  41[deg]29.5'          69[deg]23'
Point--6....................  41[deg]26'            69[deg]20'
Point--7....................  41[deg]20'            69[deg]20'
Point--8....................  41[deg]20'            (\1\)
Point--9....................  (\2\)                 70[deg]00'
Point--10...................  (\3\)                 70[deg]00'
Point--11...................  (\4\)                 70[deg]00'
Point--1....................  42[deg]00'            70[deg]00'
------------------------------------------------------------------------
\1\ The eastern coastline of Nantucket, MA, at 41[deg]20' N. lat.
\2\ The northern coastline of Nantucket, MA, at 70[deg]00' W. long.
\3\ The southern coastline of Cape Cod, MA, at 70[deg]00' W. long., then
  along the eastern coastline of Cape Cod, MA, to Point--11.
\4\ The northern coastline of Cape Cod, MA, at 70[deg]00' W. long.

    The Western Cape Cod Spiny Dogfish Exemption Area is bounded on the 
north by 42[deg]11.5' N. lat., bounded on the east by 70[deg]00' W. 
long., and bounded on the south and west by the coast of Massachusetts.

Comments and Responses

    Comment 1: The Cape Cod Commercial Hook Fishermen's Association 
(CCCHFA) commented that we should adopt the year-round option for the 
Eastern Exemption Area, as included in the original request by the 
industry, because of the additional fishing opportunity it would 
provide to fishermen and because it would eliminate confusion.
    Response 1: Available information does not support keeping the 
exempted fishery in the Eastern Exemption Area open year-round for 
gillnet, longline, and handgear, as proposed in Alternative 1, Option 
2. As shown in the EA, there were several handgear trips in the months 
of September through December that exceeded the 5-percent threshold 
requirement for an exempted fishery. In addition, for many of the 
requested months there were no observed trips in the area for any of 
the gear types. Due to insufficient catch composition data for these 
months, and the increased number of trips exceeding 5 percent 
groundfish, Alternative 1, Option 2 was rejected and Alternative 1, 
Option 1 is the preferred option.
    We are confident that the industry can use this exemption 
successfully. We have many existing exempted fisheries that 
successfully operate for certain months of the year. We will provide a 
permit holder letter to all spiny dogfish and NE multispecies permit 
holders regarding this exemption and a clear description will be 
included in our large-mesh exemption information sheet to minimize 
confusion.
    Comment 2: CCCHFA asked that we modify the proposed exemption area 
to include the portion of Statistical Area 514 located beneath the 
42[deg] N. lat. line, i.e., Cape Cod Bay, as included in the original 
request by the industry.
    Response 2: The area sought by the CCCHFA was initially not 
included in the proposed rule due to a lack of sufficient information. 
As stated in the preamble of this rule, in response to public comment 
on the proposed rule, we made an additional data request to MA DMF. 
Based on the data that MA DMF provided, we created a Western Exemption 
Area (Alternative 2 in the EA) to target spiny dogfish in this portion 
of Cape Cod Bay as sought in this comment. The Western Exemption Area 
is included in this interim final rule for longline gear and handgear 
from June through August.
    The Western Exemption Area in this interim final rule does not 
include gillnets, however. This exemption is unnecessary for July and 
August because a current exempted fishery for vessels using gillnets 
already exists in this area from July through August. Although 
information showed that gillnet gear caught less than 5 percent 
regulated species, we are concerned about potential increased 
interactions with large whales in June. Therefore, gillnet gear was not 
included in the Western Exemption Area in this rule.
    Comment 3: X Northeast Fishery Sector, Inc (NEFS X) commented that 
we did not consider NEFS X's request for an exempted fishery for 
gillnets, specifically an exemption for large-mesh gillnets in 
statistical areas 521, 514, and 515 from May 1 to December 15 of each 
year.
    Response 3: We disagree. In our analysis for this exemption we 
compiled NEFOP and ASM observer data of declared groundfish trips using 
gillnet, longline, and handgear in Statistical Areas 521, 514, and 515, 
as stated in the EA. Each of these gears was looked at separately in 
each Statistical Area. The 5-percent regulated multispecies bycatch 
threshold was exceeded in all months in all of the Statistical Areas 
where the exemption was requested, and therefore, could not be 
approved. The exempted fishery areas approved by this rule were 
selected based on sufficient information showing that the fishing 
activity met the bycatch requirements of an exempted fishery, and the 
exemption would not jeopardize fishing mortality objectives.
    Comment 4: NEFS X also commented that their fishermen have 
demonstrated that the bycatch of regulated species is, or can be, 
reduced to less than 5 percent by weight of the total catch, and that 
such an exemption will not jeopardize the fishing mortality objectives 
of the FMP.
    Response 4: The 5-percent NE multispecies threshold applies to the 
trip level, i.e, the percentage of multispecies caught on a given trip. 
As shown in the EA for this action, although many trips in the 
requested area caught below the 5-percent threshold, many trips also 
exceeded it. In addition, the data we use to make our determination 
differ from those analyzed by NEFS X. NEFS X analyzed the landing 
weights of all of their

[[Page 26521]]

sector's trips from FY 2010 and 2011 that were targeting dogfish using 
large-mesh gillnets, and took the overall average percentage of 
groundfish caught on these trips. In addition, NEFS X's data showed 
that the overall percentage of regulated species of these landings 
exceeded the 5-percent regulated species threshold (6.3 percent in FY 
2010 and 5.1 percent in FY 2011). We analyzed all NEFOP and ASM trips 
from FY 2010 and 2011 for the Statistical Areas, gears, and months 
requested (target species was not taken into consideration). We 
analyzed each gear type and month individually and we found multiple 
trips that exceeded the 5-percent threshold in each area in each month 
requested. In order to avoid trips that exceeded the 5-percent 
threshold requirement, we revised the areas to meet the threshold 
requirements.
    Comment 5: NEFS X commented that its members demonstrated in 
September of 2012 that a directed dogfish fishery could exist in the 
near-shore waters in Statistical Area 514 for gillnet gear.
    Response 5: There is an existing gillnet exemption for spiny 
dogfish in a portion of Statistical Area 514 from July through August 
that provides the same opportunity to fish during those 2 months as 
sought in the Western Exemption Area with large-mesh gillnet gear. 
While, we did look at gillnet data in Statistical Area 514 year round 
initially, there were no areas or time periods with data where trips 
did not exceed the 5-percent multispecies threshold. In addition, we 
have concerns about increased interactions with large whales with 
gillnet gear in Cape Cod Bay in June. Therefore, gillnet gear was not 
included in the Western Exemption Area.

Changes From the Proposed Rule

    As stated above, based on public comment, we created an additional 
alternative (Alternative 2) to create the Western Exemption Area to 
target spiny dogfish in Cape Cod Bay for longline gear and handgear 
from June through August. Although this area was part of the original 
request by industry, it was not part of the original proposed rule for 
this action. Therefore, we are accepting comment on this rule to give 
the public a chance to voice their support or concerns with the Western 
Exemption Area. The regulations were revised from the proposed rule to 
reflect the addition of the Western Exemption Area by adding Sec.  
648.50 (a)(19)(ii).

Classification

    NMFS has determined that this interim final rule is consistent with 
the FMP and the Magnuson-Stevens Fishery Conservation and Management 
Act and other applicable laws.
    This final rule has been determined to not be significant for 
purposes of Executive Order 12866.
    Section 553 of the Administrative Procedure Act establishes 
procedural requirements applicable to informal rulemaking by Federal 
agencies. The purpose of these requirements is to ensure public access 
to the Federal rulemaking process and to give the public adequate 
notice and opportunity for comment. There is good cause under 5 U.S.C. 
553(d)(3) and 553(b)(3)(B) to waive the 30-day delay in the rule's 
effective date and prior notice and the opportunity for public comment 
on the Western Exemption Area, respectively, because such delays could 
prevent sector members from realizing the full potential savings in 
discards, which would be contrary to the public interest. Currently, 
sector members have an elevated calculated groundfish discard rate 
applied to trips targeting spiny dogfish fished under a declared NE 
multispecies trip. In FY 2010 and 2011, the value of the elevated 
discards applied to spiny dogfish trips was $48,458.80 in the Eastern 
Exemption Area. There is an additional cost of lost revenues from spiny 
dogfish because these elevated discard rates discourage vessels from 
taking trips that target spiny dogfish. Because of the lack of current 
data in the Western Exemption Area, a cost of elevated discard rates to 
sectors in this area is expected, but the amount is unknown. Delaying 
the effective date of this rule could delay or prevent the full amount 
of cost savings.
    Further, prior notice and comment is contrary to the public 
interest because the Western Exemption Area is open only seasonally 
from June 1 through August 31. NMFS solicited new data in response to a 
comment received during the comment period, which required additional 
analysis to determine whether the Western Exemption Area met the 
requirements for an exempted fishery. The time required for this 
analysis was not due to actions by the NMFS, and because vessels in the 
Western Exemption Area are only exempt from June through August of each 
year, the time required for prior notice and comment would prevent 
vessels from gaining full access to this area in 2013, thereby 
undermining the rule's utility. Providing vessels access to the Western 
Exemption Area on June 1 will allow vessels to realize the full 
economic benefits of the exemption, which are discussed below in the 
economic impacts section. The immediate benefits of the interim 
measures, implemented by this rule, the mitigation of substantial 
negative economic impacts to fishery participants, associated 
businesses, and coastal communities that depend on spiny dogfish 
revenues, outweigh the opportunity of advance notice and public 
comment. Therefore, delaying the implementation of the Western 
Exemption Area to allow for prior notice and public comment would be 
contrary to the public interest.
    In addition to the cost savings benefit in applying more accurate 
discard rates to groundfish and spiny dogfish trips, a waiver of the 
30-day delay in effectiveness is justified under 5 U.S.C. 553(d)(1) 
because this rule grants an exemption by eliminating the requirement 
that vessels declare a NE multispecies trip while targeting spiny 
dogfish in the waters east and west of Cape Cod, MA. This creates more 
flexibility for the spiny dogfish fleet by relieving them from the 
restriction of the NE multispecies regulations, decreases the incentive 
to catch NE multispecies on a trip targeting spiny dogfish, and allows 
sector members to land their sector's ACE as opposed to losing it as 
discards.
    Pursuant to 5 U.S.C. 603, a Final Regulatory Flexibility Analysis 
(FRFA) has been prepared, which describes the economic impacts that 
this rule will have on small entities. The FRFA incorporates the 
economic impacts and analysis summarized in the Initial Regulatory 
Flexibility Analysis (IRFA) for the proposed rule for this action, and 
the corresponding economic analyses prepared for this action in the EA 
and the Regulatory Impact Review (RIR). The contents of these documents 
are not repeated in detail here. Copies of the IRFA, the RIR, and the 
EA are available upon request (see ADDRESSES). A description of the 
reasons for this action, the objectives of the action, and the legal 
basis for this interim final rule are found in the preamble to the 
proposed and final rules.
    There are no Federal rules that duplicate, overlap, or conflict 
with this rule. This action does not include any new reporting, 
recordkeeping, or other compliance requirements. NMFS did not receive 
any public comments that addressed the IRFA. This rule creates a new 
spiny dogfish exemption area for gillnet, longline, and handgear 
vessels targeting spiny dogfish in the waters east and west of Cape 
Cod, MA. The alternatives in this action were compared to different 
options for the exemption, including no action. The alternative options 
to the selected exemption include exempting a larger area for a longer 
period of time, year-round, and No Action options, which

[[Page 26522]]

would continue to require vessels targeting spiny dogfish in these 
areas to be on a declared NE multispecies trip.

Description and Estimate of the Number of Small Entities to Which This 
Interim Final Rule Will Apply

    This action will impact vessels that hold Federal open access 
commercial spiny dogfish permits, and participate in the spiny dogfish 
fishery. According to the Mid-Atlantic Fishery Management Council's 
analysis, 2,743 vessels were issued spiny dogfish permits in 2011. 
However, only 326 vessels landed any amount of spiny dogfish. While the 
fishery extends from Maine to North Carolina, most active vessels were 
from Massachusetts (31.6 percent), New Jersey (14.7 percent), New 
Hampshire (11.4 percent), Rhode Island (9.8 percent), New York (8.0 
percent), North Carolina (6.7 percent), and Virginia (5.8 percent). All 
of the potentially affected businesses are considered small entities 
under the standards described in NOAA Fisheries guidelines because they 
have gross receipts that do not exceed $4 million annually.

Economic Impacts of This Action

    Compared to the No Action alternative, the Preferred Alternatives 
(Alternative 1 Option 1, and Alternative 2 Option1) are expected to 
benefit the local fishing communities that have historically depended 
on the spiny dogfish fishery off Cape Cod, MA. This exemption was 
requested by members of the NE multispecies fishing industry, 
specifically sector members. The cost of fishing for spiny dogfish has 
become increasingly high primarily due to the deduction of calculated 
discards from each vessel's sector ACE when fishing on a sector trip. 
Because these discards are deducted from each vessel's sector ACE, they 
represent a lost opportunity for fishing because they can no longer be 
landed for sale. Thus, this action will allow vessels to fish under 
this exemption outside of the groundfish regulations, and therefore 
prevent discards from being deducted from a sector's ACE at a higher 
rate than is actually occurring. The EA for this action estimates that 
the exemption could save vessels fishing in the Eastern Exemption Area 
approximately $24,000 a year in uncaught calculated discards alone. The 
addition of the Western Exemption Area would add to this savings.
    With the elimination of these low groundfish discard trips from the 
sector's discard stratum, the overall discard rate for the sector will 
likely increase because the spiny dogfish targeted trips that were 
observed were keeping the discard rate for trips targeting groundfish 
artificially low. Any increase in the discard rate will not represent a 
significant cost to the sector vessels that are not participating in 
the exemption. In addition, the calculated discard rates for both 
groundfish vessels and spiny dogfish vessels will be more accurate as a 
result of the exemption; more accurate discards are not expected to 
have an economic effect on the fishing community as a whole. Further, 
participation in this exemption is voluntary. A vessel may still choose 
to target spiny dogfish during the exemption period while on a declared 
groundfish trip should it be to their benefit.

Economic Impacts of Alternatives to the Proposed Action

    The impacts of Alternative 1 Option 2, which extends the Eastern 
Exemption Area for the entire year, would be expected to be similar to 
the impacts of the Preferred Alternative, but the expanded time would 
allow more vessels a greater opportunity to participate in the exempted 
fishery. The EA for this action estimates that Alternative 1 Option 2 
would save the industry an additional $877.93 in uncaught discards 
compared to Alternative 1 Option 1. However, the data indicate that 
Option 2 would likely result in a higher percentage of groundfish catch 
because several handgear trips caught greater than 5 percent regulated 
multispecies from September through December. In addition, the RA could 
not make a determination as to whether regulated groundfish bycatch was 
< 5 percent during January through May, because there are insufficient 
observer data available from the area during this time for all of the 
gear types. Providing an exemption for trips that caught over 5 percent 
regulated groundfish, or in areas where no data are available, would be 
contrary to the purpose and requirements of the Magnuson-Stevens 
Fishery Conservation and Management Act and the NE multispecies 
regulations. Therefore, this alternative was not selected.
    The No Action Options would have a negative economic impact on 
spiny dogfish vessels relative to the preferred options. Under the No 
Action Options, sector fishermen targeting spiny dogfish would continue 
fishing on declared groundfish trips only to be charged a higher than 
observed groundfish discard rate for their trip targeting spiny 
dogfish. The spiny dogfish fishery is a valuable resource. The 
groundfish discards that are attributed to these trips come directly 
out of the vessel's sector's ACE, which takes away the opportunity to 
catch these groundfish in the future. Thus, sectors requested an 
exemption because of the economic burden that the cost of NE regulated 
multispecies discards applied to these trips had on sector fishermen 
targeting other stocks (i.e., spiny dogfish). As described above, it is 
estimated that this action could save vessels fishing in the Eastern 
Exemption Area approximately $24,000 a year in discards alone, compared 
to the No Action Options.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule 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. As part of this rulemaking process, a small entity 
compliance guide was prepared. The guide will be sent to all holders of 
permits issued for the spiny dogfish and NE multispecies fisheries. In 
addition, copies of this final rule and guide (i.e., permit holder 
letter) are available from the Regional Administrator (see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 2, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons stated in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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


0
2. In Sec.  648.14, paragraph (k)(5)(i) is revised to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (k) * * *
    (5) * * *
    (i) Violate any of the provisions of Sec.  648.80, including 
paragraphs (a)(5), the Small-mesh Northern Shrimp Fishery Exemption 
Area; (a)(6), the

[[Page 26523]]

Cultivator Shoal Whiting Fishery Exemption Area; (a)(9), Small-mesh 
Area 1/Small-mesh Area 2; (a)(10), the Nantucket Shoals Dogfish Fishery 
Exemption Area; (a)(11), the GOM Scallop Dredge Exemption Area; 
(a)(12), the Nantucket Shoals Mussel and Sea Urchin Dredge Exemption 
Area; (a)(13), the GOM/GB Monkfish Gillnet Exemption Area; (a)(14), the 
GOM/GB Dogfish Gillnet Exemption Area; (a)(15), the Raised Footrope 
Trawl Exempted Whiting Fishery; (a)(16), the GOM Grate Raised Footrope 
Trawl Exempted Whiting Fishery; (a)(18), the Great South Channel 
Scallop Dredge Exemption Area; (a)(19), the Eastern and Western Cape 
Cod Spiny Dogfish Exemption Areas; (b)(3), exemptions (small mesh); 
(b)(5), the SNE Monkfish and Skate Trawl Exemption Area; (b)(6), the 
SNE Monkfish and Skate Gillnet Exemption Area; (b)(8), the SNE Mussel 
and Sea Urchin Dredge Exemption Area; (b)(9), the SNE Little Tunny 
Gillnet Exemption Area; (b)(11), the SNE Scallop Dredge Exemption Area; 
or (b)(12), the SNE Skate Bait Trawl Exemption Area. Each violation of 
any provision in Sec.  648.80 constitutes a separate violation.
* * * * *

0
3. In Sec.  648.80, paragraph (a)(3)(vi) is revised, and paragraph 
(a)(19) is added to read as follows:


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

* * * * *
    (a) * * *
    (3) * * *
    (vi) Other restrictions and exemptions. A vessel is prohibited from 
fishing in the GOM or GB Exemption Area as defined in paragraph (a)(17) 
of this section, except if fishing with exempted gear (as defined under 
this part) or under the exemptions specified in paragraphs (a)(5) 
through (7), (a)(9) through (a)(16) and (a)(18) through (a)(19), (d), 
(e), (h), and (i) of this section; or if fishing under a NE 
multispecies DAS; or if fishing on a sector trip; or if fishing under 
the Small Vessel or Handgear A permit specified in Sec.  648.82(b)(5) 
and (6), respectively; or if fishing under a Handgear B permit 
specified in Sec.  648.88(a); or if fishing under the scallop state 
waters exemptions specified in Sec.  648.54 and paragraph (a)(11) of 
this section; or if fishing under a scallop DAS in accordance with 
paragraph (h) of this section; or if fishing pursuant to a NE 
multispecies open access Charter/Party or Handgear permit specified in 
Sec.  648.88; or if fishing as a charter/party or private recreational 
vessel in compliance with Sec.  648.89. Any gear used by a vessel in 
this area must be authorized under one of these exemptions. Any gear on 
a vessel that is not authorized under one of these exemptions must be 
stowed as specified in Sec.  648.23(b).
* * * * *
    (19) Cape Cod Spiny Dogfish Exemption Areas. Vessels issued a NE 
multispecies limited access permit that have declared out of the DAS 
program as specified in Sec.  648.10, or that have used up their DAS 
allocations, may fish in the Eastern or Western Cape Cod Spiny Dogfish 
Exemption Area as defined under paragraph (a)(19)(i) through 
(a)(19)(ii) of this section, when not under a NE multispecies or 
scallop DAS, provided the vessel complies with the requirements for the 
Eastern or Western area, specified in paragraph (a)(19)(i) and 
(a)(19)(ii) of this section, respectively.
    (i) Eastern area definition. The Eastern Cape Cod Spiny Dogfish 
Exemption Area is defined by the straight lines connecting the 
following points in the order stated (copies of a chart depicting the 
area are available from the Regional Administrator upon request): 
Eastern Cape Cod Spiny Dogfish Exemption Area [June 1 through December 
31, unless otherwise specified in paragraph (a)(19)(i)(A) of this 
section]

------------------------------------------------------------------------
              Point                    N. latitude        W. longitude
------------------------------------------------------------------------
CCD 1............................  42/00'              70/00'
CCD 2............................  42/00'              69/47.5'
CCD 3............................  41/40'              69/47.5'
CCD 4............................  41/29.5'            69/35.5'
CCD 5............................  41/29.5'            69/23'
CCD 6............................  41/26'              69/20'
CCD 7............................  41/20'              69/20'
CCD 8............................  41/20'              (\1\)
CCD 9............................  (\2\)               70/00'
CCD 10...........................  (\3\)               70/00'
CCD 11...........................  (\4\)               70/00'
CCD 1............................  42/00'              70/00'
------------------------------------------------------------------------
\1\ The eastern coastline of Nantucket, MA at 41[deg]20' N. lat.
\2\ The northern coastline of Nantucket, MA at 70[deg]00' W. long.
\3\ The southern coastline of Cape Cod, MA at 70[deg]00' W. long., then
  along the eastern coastline of Cape Cod, MA to Point--11
\4\ The northern coastline of Cape Cod, MA, at 70[deg]00' W. long.

    (A) Requirements. (1) A vessel fishing in the Eastern Cape Cod 
Spiny Dogfish Exemption Area specified in this paragraph (a)(19) may 
not fish for, possess on board, or land any NE regulated species in 
accordance with the requirements of paragraph (a)(19) of this section.
    (2) Vessels may use gillnet gear, as specified in Sec.  
648.80(a)(4)(iv), or longline gear as specified in Sec.  
648.80(a)(4)(v), from June 1 through December 31.
    (3) Vessels may use handgear from June 1 through August 31.
    (B) [Reserved]
    (ii) Western area definition. The Western Cape Cod Spiny Dogfish 
Exemption Area is bounded on the north by 42[deg]11.5' N. lat., bounded 
on the east by 70[deg]00 W. long., and bounded on the south and west by 
the coast of Massachusetts (copies of a chart depicting the area are 
available from the Regional Administrator upon request).
    (A) Requirements. (1) A vessel fishing in the Western Cape Cod 
Spiny Dogfish Exemption Area specified in this paragraph (a)(19) may 
not fish for, possess on board, or land any NE regulated species in 
accordance with the requirements of paragraph (a)(19) of this section.
    (2) Vessels may use longline gear as specified in Sec.  
648.80(a)(4)(v), and handgear from June 1 through August 31.
    (B) [Reserved]
* * * * *
[FR Doc. 2013-10803 Filed 5-6-13; 8:45 am]
BILLING CODE 3510-22-P