[Federal Register: September 4, 2009 (Volume 74, Number 171)]
[Proposed Rules]
[Page 45798-45801]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04se09-28]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 0907281181-91191-01]
RIN 0648-AX93
Fisheries of the Northeastern United States; Modification to the
Gulf of Maine/Georges Bank Herring Midwater Trawl Gear Authorization
Letter
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes modifications to the requirements for
[[Page 45799]]
midwater trawl vessels issued All Areas and/or Areas 2 and 3 Atlantic
herring limited access permits fishing in Closed Area I (CA I). In
order to fish in CA I, midwater trawl vessels with these permits would
be required to carry a NMFS-approved observer and to bring the entire
catch aboard the vessel, unless specific conditions are met, so that it
is available to the observer for sampling. These proposed changes to
the Gulf of Maine/Georges Bank (GOM/GB) Herring Midwater Trawl Gear
Letter of Authorization (LOA) would be effective indefinitely, until
changed by a subsequent action.
DATES: Written comments must be received no later than 5 p.m. local
time on September 21, 2009.
ADDRESSES: You may submit comments, identified by 0648-AX93, by any
one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal e-rulemaking portal: http://
www.regulations.gov.
Mail: Paper, disk, or CD-ROM comments should be sent to
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries
Service, 55 Great Republic Drive, Gloucester, MA 01930-2276. Mark the
outside of the envelope: ``Modification to GOM/GB Midwater Trawl LOA.''
Fax: (978) 281-9135.
Instructions: All comments received are part of the public record
and will generally be posted to http://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). Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe PDF formats only.
FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy
Analyst, (978) 281-9341, fax (978) 281-9135.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to the Northeast Regional Office and by
e-mail to David_Rostker@omb.eop.gov, or fax to (202) 395-7285
SUPPLEMENTARY INFORMATION:
Background
The New England Fishery Management Council (Council) voted at its
April 8, 2009, Council meeting to request that the NMFS Northeast
Regional Administrator modify the GOM/GB Herring Midwater Trawl Gear
LOA to require midwater trawl vessels fishing in CA I to have 100-
percent observer coverage; be prohibited from slipping codends (the
practice of opening the codend of the net and releasing the catch
before all of it is brought on board); and be required to pump aboard
the vessel all fish caught, to allow sampling by the observer.
The final rule implementing Framework Adjustment 18 (FW 18) to the
Northeast (NE) Multispecies Fishery Management Plan (FMP) (63 FR 7727,
February 17, 1998) authorized midwater trawl vessels to fish in the
groundfish year-round closed areas with specific conditions regarding
bycatch of regulated multispecies. The FW 18 implementing regulations
(Sec. 648.81(a)(2)(iii)), grant the Regional Administrator the
authority to place restrictions and conditions in the LOA if it is
determined that the bycatch of regulated multispecies in the groundfish
closed areas exceeds, or is likely to exceed, 1 percent of herring and
mackerel harvested, by weight, in the fishery or by any individual
fishing operation. Recent analysis of at-sea observer data, presented
by NMFS at the April 8, 2009, Council meeting, demonstrated that the
bycatch of regulated multispecies in groundfish CA I exceeded 1 percent
of herring caught on at least two individual fishing trips between May
2004 and October 2008. Based on this information, the intent of the
Council's motion is to collect additional information on bycatch by the
midwater trawl directed herring fishery in CA I to determine whether
revisions should be made to the exemption allowing these vessels to
fish in groundfish closed areas.
Therefore, based on the authority granted in the regulation cited
above, in combination with section 402(a) of the Magnuson-Stevens Act,
which allows NMFS to implement information collections or observer
programs if additional information is necessary to monitor a fishery
management plan, NMFS proposes to implement the Council's
recommendation by adding language to the existing LOA to prohibit
midwater trawl vessels with All Areas and/or Areas 2 and 3 limited
access Atlantic herring permits from fishing in CA I without a NMFS-
approved at-sea observer aboard. The LOA would also stipulate that such
vessels, while operating in CA I, would be prohibited, except under
certain circumstances, from releasing fish from the net before all of
the catch has been pumped aboard and made available to the observer for
sampling.
Starting in 2005 with FW 40-B to the NE Multispecies FMP (70 FR
31323, June 1, 2005), vessels in the directed herring fishery (those
permitted to land 500 mt of herring or more) have been required to
notify NMFS at least 72 hr prior to departing on a herring trip into
the GOM/GB Exemption Area, to facilitate observer deployment. In 2006,
FW 43 to the NE Multispecies FMP (71 FR 46871, August 15, 2006)
instituted a bycatch allowance of regulated groundfish for vessels in
the directed herring fishery. Based on the precedent set in these
previous Council actions, the measures proposed by this action would
apply to vessels in the directed herring fishery, specifically those
with All Areas and/or Areas 2 and 3 limited access Atlantic Herring
permits.
Observer Provisions
This proposed rule would require vessels using midwater trawl gear
in the directed herring fishery to indicate their intention to fish in
CA I when scheduling an observer through the Northeast Fishery Observer
Program. This notification is intended to allow NMFS to ensure an
observer is deployed on all vessels that intend to fish in CA I with
midwater trawl gear. To ensure 100-percent observer coverage, midwater
trawl vessels would not be permitted to fish in CA I without an
observer.
Slipped Codend Provisions
NMFS proposes that midwater trawl vessels in the directed herring
fishery, that have indicated an intention to fish in CA I, and that
have been assigned a NMFS-approved at-sea observer, would be
prohibited, unless specific conditions are met, from releasing (i.e.,
slipping) fish from the codend of the net, transferring fish to another
vessel that is not carrying a NMFS-approved observer, or otherwise
discarding fish at sea, unless the fish have first been brought aboard
the vessel and made available for sampling and inspection by the
observer. Even if such a vessel did not fish an entire trip inside of
CA I, it would be required to comply with these requirements for the
entire trip to ensure that maximum amount of information is obtained.
NMFS recognizes that there are certain conditions under which fish
must be released from the codend without being sampled. Therefore, this
provision is not intended to limit the
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discretion of the captain to regulate the stability of the vessel in
adverse sea conditions, and the operator would be permitted to dump
fish if bringing them aboard the vessel could compromise the safety of
the vessel or her crew. In addition, mechanical failure of the pump may
preclude bringing some or all of a catch aboard the vessel. That part
of the catch that could not be pumped aboard because of mechanical
failure could be released. Mechanical or safety problems of sufficient
magnitude to warrant slipping a codend would require termination of the
fishing trip and the vessel's return to port. This requirement is
designed to help ensure that safety or mechanical justifications for
slipping a codend are not used as a false pretext to avoid sampling.
NMFS recognizes that species composition in the catch, specifically
a high concentration of spiny dogfish, can cause the fish pump to clog,
slowing the pump-out process and potentially damaging the rest of the
catch. Therefore, NMFS proposes allowing fish to be released unsampled
if spiny dogfish are determined to comprise more than 50 percent of the
catch, by weight. Pumping operations would have to be started so that
the observer could determine that the quantity of spiny dogfish in the
catch is sufficient to make pumping the remainder of the catch nearly
impossible. A vessel would not be required to end the trip following a
slipped codend due to a high concentration of spiny dogfish.
If a codend is slipped, the vessel operator would be required to
sign an affidavit to NOAA's Office of Law Enforcement (OLE) attesting
to the specific reason for the release, and a good-faith estimate of
both the total weight of fish caught and the weight of fish released.
Completed and signed affidavits would be sent to OLE at the conclusion
of the trip. Slipped codends for which an affidavit has been completed
and signed, citing one of the exemptions mentioned above, would be
presumed to be in accordance with the regulations unless a
preponderance of the evidence demonstrates otherwise.
Representatives of the commercial midwater trawl industry have
asserted that short duration tows, or ``test tows,'' used to check the
abundance of target and bycatch species in an area should not be
required to be pumped aboard. Because the purpose of this proposed
expansion of the information collection program is to increase the
understanding of the bycatch of this fishery in CA I, it is necessary
to collect information on bycatch in all tows made by midwater trawl
vessels in CA I. However, the proposed regulations would not require a
vessel to pump out the catch from a test tow if the net is simply reset
without releasing the catch. In this circumstance, the catch from the
test tow would remain in the codend and would be available to the
observer to sample when the subsequent tow is pumped out. In addition,
fish that a vessel would normally discard because of regulatory,
market, or other factors, could be discarded, but only after being
brought on board and sampled by the observer.
Request for Comments
The public is invited to comment on any of the measures proposed in
this proposed rule. NMFS is especially interested in receiving comments
on proposed measures regarding the requirement for vessels to end a
trip after a codend is slipped due to safety concerns or mechanical
failure. Additionally, comment is specifically sought on whether or not
50 percent is the appropriate level of spiny dogfish bycatch at which
to allow a codend to be released. Comment is also sought regarding how
much of the catch should be pumped to determine the level of dogfish
bycatch, in order to justify slipping the codend and releasing the
remainder of the tow without being sampled by the observer.
Classification
Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator has determined that this proposed rule is
consistent with the Atlantic Herring and NE Multispecies FMPs, other
provisions of the Magnuson-Stevens Act, and other applicable law,
subject to further consideration after public comment.
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
The NMFS Northeast Regional Administrator has determined that this
proposed rule is a minor technical addition, correction, or change to a
management plan and is therefore categorically excluded from the
requirement to prepare an Environmental Impact Statement or equivalent
document under the National Environmental Policy Act.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
This amendment does not significantly affect the practices of any
fishing operation. It increases the rate of at-sea fishery observer
coverage to 100 percent for midwater trawl vessels fishing in CA I.
Sufficient observer sea-days have been allocated to this program to
cover the expected fishing effort by midwater trawlers in CA I in the
next fishing year. If the Northeast Fishery Observer Program is unable
to provide an observer for a vessel that indicates an intention to fish
in CA I, the vessel may still fish, but would be prohibited from
fishing inside CA I on that trip. The rule also stipulates that, during
trips when a vessel has indicated an intention to fish in CA I, the
codend of the net may not be slipped and all fish must be pumped aboard
the vessel, unless specific conditions are met. For example, exceptions
would be made for a vessel if pumping out the net is not possible due
to concerns for vessel safety, mechanical problems, or a high
concentration of spiny dogfish. Currently, very few midwater trawl
trips fish in CA I on an annual basis, and vessels that do not receive
an observer are still able to fish in any other areas open to this
gear. As a result, an initial regulatory flexibility analysis is not
required and none has been prepared.
This proposed rule contains one new collection-of-information
requirement subject to review and approval by OMB under the Paperwork
Reduction Act (PRA). The observer notification of a vessel's intention
to fish in CA I will be added to the information collection for the
Herring Vessel Observer Program Notification, which has been approved
by OMB under control number 0648-0202. The public reporting burden for
the Herring Vessel Observer Program Notification will not change, and
is estimated to average 2 min per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. The new collection-of-information
requirement pertaining to the slipped codend exemption affidavit has
been submitted to OMB for approval. The public reporting burden for
completion of the slipped codend exemption affidavit is estimated to
average 5 min per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Public comment is sought regarding: Whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and
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clarity of the information to be collected; and ways to minimize the
burden of the collection of information, including through the use of
automated collection techniques or other forms of information
technology. Send comments on these or any other aspects of the
collection of information to NMFS at the ADDRESSES above, and e-mail to
David_Rostker@omb.eop.gov, or fax to (202) 395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: August 31, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is
proposed to be amended as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.14, add paragraphs (r)(2)(v), (r)(2)(vi), and
(r)(2)(vii) to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(r) * * *
(2) * * *
(v) Fish with midwater trawl gear in Closed Area I, as specified at
Sec. 648.81(a), without a NMFS approved observer onboard, if the
vessel holds an All Areas Limited Access Herring Permit and/or an Areas
2 and 3 Limited Access Herring Permit.
(vi) Release fish from the codend of the net, transfer fish to
another vessel that is not carrying a NMFS-approved observer, or
otherwise discard fish at sea before bringing the fish aboard and
making it available to the observer for sampling, unless subject to one
of the exemptions as defined at Sec. 648.80(d)(7)(ii), if the vessel
has expressed an intention to fish in Closed Area I, as detailed at
Sec. 648.80(d)(5) and is carrying an observer.
(vii) Fail to complete, sign, and submit an affidavit if fish are
released pursuant to the exemptions detailed at Sec. 648.80(d)(7)(ii).
* * * * *
3. In Sec. 648.80, revise paragraph (d)(5) and add paragraph
(d)(7) to read as follows:
Sec. 648.80 NE Multispecies regulated mesh areas and restrictions on
gear and methods of fishing.
* * * * *
(d) * * *
(5) To fish for herring under this exemption, vessels issued an All
Areas Limited Access Herring Permit and/or an Areas 2 and 3 Limited
Access Herring Permit must provide notice of the following information
to NMFS at least 72 hr prior to beginning any trip into these areas for
the purposes of observer deployment: Vessel name; contact name for
coordination of observer deployment; telephone number for contact; the
date, time, and port of departure; and whether the vessel intends to
engage in fishing in Closed Area I, as defined in Sec. 648.81(a), at
any point in the trip; and
* * * * *
(7) Fishing in Closed Area I. (i) No vessel issued an All Areas
Limited Access Herring Permit and/or an Areas 2 and 3 Limited Access
Herring Permit may fish in, or possess or land fish from, Closed Area I
with pelagic midwater trawl gear unless it has declared its intent to
fish in Closed Area I as required by paragraph (d)(5) of this section,
and is carrying a NMFS-approved observer.
(ii) No vessel issued an All Areas Limited Access Herring Permit
and/or an Areas 2 and 3 Limited Access Herring Permit that has declared
its intent to fish with pelagic midwater trawl gear in Closed Area I,
in accordance with paragraph (d)(5) of this section, and is carrying a
NMFS-approved observer, may release fish from the codend of the net,
transfer fish to another vessel that is not carrying a NMFS-approved
observer (e.g. an Atlantic herring at-sea processing vessel or an
Atlantic herring carrier vessel), or otherwise discard fish at sea,
unless the fish has first been brought aboard the vessel and made
available for sampling and inspection by the observer, except in the
following circumstances:
(A) The vessel operator has determined, and the preponderance of
available evidence indicates that, there is a compelling safety reason;
or
(B) That mechanical failure of the fish pump precludes bringing the
fish aboard the vessel for inspection; or,
(C) After pumping of fish onto the vessel has begun, the vessel
operator determines that spiny dogfish comprise at least 50 percent, by
weight, of the catch, and observer sampling demonstrates that spiny
dogfish comprise at least 50 percent, by weight, of the sampled catch.
(iii) If fish are released prior to being brought aboard the vessel
due to any of exceptions detailed in paragraphs (d)(7)(ii)(A) through
(C) of this section, the vessel operator shall make all reasonable
efforts to assist the observer in identifying the reason for the
release; the total weight of fish caught, and the weight of fish
released, and shall sign an affidavit attesting to this information.
Further, if fish are discarded prior to being inspected by the
observer, for either safety or mechanical reasons, as detailed in
paragraphs (d)(7)(ii)(A) or (B) of this section, the vessel must end
the trip and return to port without making additional tows.
* * * * *
[FR Doc. E9-21404 Filed 9-3-09; 8:45 am]
BILLING CODE 3510-22-S