[Federal Register Volume 76, Number 39 (Monday, February 28, 2011)]
[Proposed Rules]
[Pages 10852-10873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4401]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 110201085-1087-01]
RIN 0648-XY55
Magnuson-Stevens Act Provisions; Fisheries of the Northeastern
United States; Northeast Multispecies Fishery; 2011 Sector Operations
Plans and Contracts, and Allocation of Northeast Multispecies Annual
Catch Entitlements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: As part of the process for the NMFS Northeast Regional
Administrator approval of proposed sector operations established under
Amendment 16 to the Northeast (NE) Multispecies Fishery Management Plan
(FMP), sectors are required to submit operations plans and sector
contracts, and request an allocation of stocks regulated under the FMP
for each fishing year (FY). This action is to provide interested
parties an opportunity to comment on 19 FY 2011 proposed sector
operations plans and contracts. Although NMFS received 22 proposed
sector operations plans and contracts for approval, only 19 of the 22
sector operations plans and contracts are being considered for approval
because 3 sectors, the Massachusetts Permit Bank Sector, the New
Hampshire Permit Bank Sector, and the Rhode Island Permit Bank Sector,
were unable to fulfill the roster requirements, and, therefore, were
excluded from consideration.
DATES: Written comments must be received on or before March 15, 2011.
ADDRESSES: You may submit comments, identified by 0648-XY55, by any one
of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal: http://www.regulations.gov.
Fax: (978) 281-9135, Attn: Allison Murphy.
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. Mark the
outside of the envelope: ``Comments on 2011 Sector Operations Plans and
Contracts.''
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). You may submit attachments to electronic comments in
Microsoft Word, Microsoft Excel, WordPerfect, or Adobe PDF file formats
only.
Copies of the sector operations plans and contracts and the
environmental assessment (EA) are available at http://www.regulations.gov and from the NMFS NE Regional Office at the mailing
address specified above. An Initial Regulatory Flexibility Analysis
(IRFA) was prepared for this proposed rule and is comprised of the EA,
and the preamble and the Classification sections of this proposed rule.
FOR FURTHER INFORMATION CONTACT: Allison Murphy, Sector Policy Analyst,
phone (978) 281-9122, fax (978) 281-9135.
SUPPLEMENTARY INFORMATION: NMFS announces that the Administrator, NE
Region, NMFS (Regional Administrator), has made a preliminary
determination that 19 sector operations plans and contracts, which were
initially submitted to NMFS on or before September 1, 2010, and sector
rosters, submitted on or before September 10, 2010, are: (1) Consistent
with the goals of the FMP, as described in Amendment 16 Final
Environmental Impact Statement (FEIS) and other applicable laws, (2) in
compliance with the measures that govern the development and operation
of a sector as specified in Section 4.2.3 of the Amendment 16 FEIS, and
(3) have met administrative deadlines, including roster deadlines, for
being proposed as a sector operations plan for FY 2011. This proposed
rule summarizes many of the sector requirements as implemented by
Amendment 16 and the requirements proposed for modification in
Framework Adjustment 45 (FW 45), and solicits comments on the
regulatory exemptions requested by sectors as well as the applicable
environmental analyses.
As stated in Amendment 16, the deadline to submit operations plans
and signed contracts was September 1, 2010. However, because NE
multispecies permit holders were notified of their preliminary FY 2011
Potential Sector Contribution (PSC) in mid-August, 2010, NMFS extended
the deadline to submit signed contracts from September 1, 2010, to
September 10, 2010, to allow vessel owners adequate time to make a
decision to join a sector for FY 2011 or to fish in the common pool.
Based upon industry request, this deadline was further extended to
December 1, 2010, to provide additional flexibility.
Background
The final rule implementing Amendment 13 to the NE Multispecies FMP
(69 FR 22906; April 27, 2004) specified a process for forming sectors
within the NE multispecies fishery, implemented restrictions applicable
to all sectors, and authorized allocation of a total allowable catch
(TAC) for specific groundfish species to a sector. As approved in
Amendment 13, sector operations plans and contracts must contain
certain elements, including a contract signed by all sector
participants and an operations plan containing rules that sector
members agree to abide by to avoid exceeding their sector TAC. An EA,
or other appropriate analysis, must be prepared for the sectors that
analyzes
[[Page 10853]]
the individual and cumulative impacts of all proposed sector
operations. Additionally, the public must be provided an opportunity to
comment on the proposed sector operations plans, sector contracts, and
EA. The regulations require that, upon completion of the public comment
period, the Regional Administrator must make a determination regarding
approval of the sectors operations plans and contracts. Amendment 13
implemented the GB Cod Hook Sector in FY 2004, and Framework 42 (71 FR
62156; October 23, 2006) implemented the GB Cod Fixed Gear Sector in FY
2006.
Amendment 16 (74 FR 18262; April 9, 2010) expanded the sector
management measures, revised the 2 existing sectors, and implemented an
additional 17 new sectors for a total of 19 sectors, including the
Northeast Fishery Sectors I through XIII, the Sustainable Harvest
Sector, the Tri-State Sector, the Northeast Coastal Communities Sector,
and the Port Clyde Community Groundfish Sector. Amendment 16 defined a
sector as ``[a] group of persons (three or more persons, none of whom
have an ownership interest in the other two persons in the sector)
holding limited access vessel permits who have voluntarily entered into
a contract and agree to certain fishing restrictions for a specified
period of time, and which has been granted a TAC(s) [sic] in order to
achieve objectives consistent with applicable FMP goals and
objectives.'' A sector's TAC is referred to as an annual catch
entitlement (ACE). Regional Administrator approval is required for a
sector to be authorized to fish and to be allocated an ACE for stocks
of regulated NE multispecies during each FY. Each individual sector's
ACE for a particular stock represents a share of that stock's annual
catch limit (ACL) available to commercial NE multispecies vessels,
based upon the PSC of permits participating in that sector. Sectors are
self-selecting, meaning each sector maintains the ability to choose its
members. Sectors may pool harvesting resources and consolidate
operations to fewer vessels, if they desire.
FW 45, as proposed by the New England Fishery Management Council
(Council) and available for public review through the Federal Register,
would revise the rules for the 19 previously approved sectors and
include 5 new sectors (for a total of 24 sectors), including the Maine
Permit Bank Sector, the Massachusetts Permit Bank Sector, the New
Hampshire Permit Bank Sector, the Rhode Island Permit Bank Sector, and
Sustainable Harvest Sector 3. Approval of the operation of these new
sectors is conditional on approval of measures proposed in FW 45.
Similarly, approval of some of the exemptions requested by the sectors
that submitted operations plans for FY 2011 is also contingent on FW
45. Therefore, final action regarding the approval of the operation of
these sectors and the exemptions requested will not be made unless and
until a final decision on FW 45 has been made. FW 45 is expected to be
implemented on May 1, 2011. Concurrent with the implementation of FW
45, NMFS and the States of Maine, Massachusetts, New Hampshire, and
Rhode Island have entered into separate Memoranda of Agreement (MOA)
for the administration of State-managed permit banks. Terms and
conditions for permit banks include: The permit bank may only transfer
out ACE, it may not transfer in ACE; the permit bank may only transfer
ACE to sectors for use by vessels that are 45 ft (13.72 m) in length or
smaller, based out of ports with a population of 30,000 residents or
less. The States of Massachusetts, New Hampshire, and Rhode Island were
unable to fulfill roster requirements in time to be considered in this
rulemaking process for FY 2011. The Maine Permit Bank Sector is
proposed to consist of two privately held permits, as well as any
additional permits purchased by the permit bank. The State issued a
request for proposal, soliciting permit holders who are interested in
selling permits to the State permit bank, and submitted this
information to NMFS as additional prospective permits. The Maine Permit
Bank Sector must finalize the purchase of permits from this list and
notify NMFS by February 1, 2011.
Representatives from 22 of the 24 current and proposed sectors
submitted operations plans and sector contracts, and requested an
allocation of stocks regulated under the FMP for FY 2011. Neither the
GB Cod Hook Sector, nor Northeast Fishery Sector I chose to submit an
operations plan and sector contract for FY 2011. The Massachusetts
Permit Bank Sector, the New Hampshire Permit Bank Sector, and the Rhode
Island Permit Bank Sector submitted operations plans for FY 2011, but
were unable to demonstrate membership requirements, and thus will not
be considered for approval in this rule, reducing the number of
potential FY 2011 sectors to 19. Two of the proposed FY 2011 sectors,
Northeast Fishery Sector IV and Sustainable Harvest Sector 3, would
operate as private lease-only sectors. The Sustainable Harvest Sector 3
has not explicitly prohibited fishing activity, and may transfer
permits onto active vessels.
Sector ACEs
As of December 1, 2010, 834 of the 1,475 eligible NE multispecies
permits, which would account for approximately 98.8 percent of the
historical commercial NE multispecies landings during the qualifying
period selected by the Council in Amendment 16, have preliminarily
enrolled in a sector for FY 2011. Table 1 includes a summary of permits
enrolled in a sector as of December 1, 2010. Permits enrolled in a
sector, and the vessels associated with those permits, have until April
30, 2011, to withdraw from a sector and fish in the common pool for FY
2011. NMFS will publish final sector sub-ACL and common pool sub-ACL
totals, based upon final rosters as soon as possible after the start of
FY 2011.
Table 2 details the cumulative PSC (a percentage) each sector would
receive based on their rosters as of December 1, 2010. Tables 3a and 3b
detail the ACEs (in thousands of pounds and metric tons) each sector
would be allocated based on their December 1, 2010, sector rosters for
FY 2011. While the common pool does not receive a specific allocation
of ACE, it has been included in each of these tables for comparison.
Note that individual sector members are not assigned a PSC for
Eastern GB cod or Eastern GB haddock; rather each sector is allocated a
portion of the GB cod and GB haddock ACE to harvest exclusively in the
Eastern U.S./Canada Area. The amount of cod and haddock that a sector
may harvest in the Eastern U.S./Canada Area is calculated by
multiplying the percentage of the GB cod and GB haddock ACLs by the
overall Eastern U.S./Canada Area GB cod and GB haddock TACs,
respectively.
In accordance with Amendment 16, at the start of FY 2011, NMFS will
withhold 20 percent of a sector's FY 2011 ACE for each stock for a
period of up to 61 days, to allow time to process any FY 2010 ACE
transfers submitted by May 14, 2011, and to determine whether the FY
2011 ACE allocated to any sector needs to be reduced, or any overage
penalties need to be applied to accommodate an FY 2010 ACE overage by
that sector. At the request of the Council, NMFS is considering
relaxing the May 14 requirement to submit ACE transfers. The Council
and sector managers will be notified of any change in this deadline in
writing and the decision will be announced on the NERO Web site (http://www.nero.noaa.gov/).
BILLING CODE 3510-22-P
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BILLING CODE 3510-22-C
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Sector Operations Plans and Contracts
All sectors must, on an annual basis, submit an operations plan and
sector contract to NMFS by a specified deadline to be authorized to
fish and receive an allocation of groundfish for the following FY. Of
the 24 current and FW 45 proposed sectors, 19 sectors met the September
1, 2010, operations plan deadline and the final December 1, 2010, NMFS
roster deadline for FY 2011, including the Maine Permit Bank Sector.
Each sector operations plan contains the rules under which each sector
would fish. The sector contract provides the legal contract that binds
members to a sector and its operations plan. Most sectors submitted one
document to NMFS that encompasses both the operations plan and
contract.
While each sector conducts fishing activities according to its
approved operations plan, Section 4.2.3 of the Amendment 16 FEIS
contains numerous provisions that apply to all sector operations plans
and sector members. Under this amendment, all permit holders with a
limited access NE multispecies permit that was valid as of May 1, 2008,
are eligible to participate in a sector, including holders of permits
currently held in confirmation of permit history (CPH). While
membership in each sector is voluntary, each member (and his/her
permits enrolled in the sector) must remain with the sector for the
entire FY, and cannot fish in the NE multispecies days-at-sea (DAS)
program outside of the sector (i.e., in the common pool) during the FY.
Participating vessels would be required to comply with all pertinent
Federal fishing regulations, unless specifically exempted by a letter
of authorization (LOA) issued by the Regional Administrator, as part of
the approval of a sector's operations plan, as described further below.
Sector operations plans may be amended in-season if a change is
necessary and agreed to by NMFS, provided the change is consistent with
the sector administration provisions. These changes would be included
in updated LOAs issued to sector members and through amendments to the
approved operations plan.
Sectors would be allocated all large-mesh groundfish stocks for
which members have landings history, with the exception of Atlantic
halibut, windowpane flounder, Atlantic wolffish, and SNE/MA winter
flounder. Sector vessels would be required to retain all legal-sized
allocated groundfish, unless an exemption is granted allowing sector
vessels to discard legal-sized unmarketable fish at sea. Catch
(including discards) of all allocated groundfish stocks by a sector's
vessels would count against the sector's ACE, unless the catch is an
element of a separate ACL sub-component, such as groundfish caught when
fishing in an exempted fishery, or yellowtail flounder caught when
fishing in the Atlantic sea scallop fishery. Sector vessels fishing for
monkfish, skate, lobster (with non-trap gear), and spiny dogfish when
on a sector trip (e.g., not fishing under provisions of a NE
multispecies exempted fishery) would have their groundfish catch
(including discards) on those trips debited against the sector's ACE.
Discard ratios applied to sectors would be determined by NMFS based on
observed trips.
The final rule issued for Amendment 16 implemented a program
whereby ACE may be transferred between sectors, although ACE transfers
to or from common pool vessels is prohibited. Each sector would be
required to ensure that its ACE is not exceeded during the FY.
Additionally, Amendment 16 required sectors to develop independent
third-party dockside monitoring programs (DSM) to verify landings at
the time they are weighed by the dealer, and to certify that the
landing weights are accurate as reported by the dealer. During FY 2010,
50 percent of trips from each sector are required to be randomly
selected for DSM. Dockside monitoring coverage was specified to be
reduced to 20 percent in FY 2011; however, FW 45, as proposed, would
change the required coverage level for DSM to the level NMFS is able to
fund, up to 100 percent coverage through FY 2012, prioritizing coverage
for trips that have not received at-sea or electronic monitoring. In
addition, the Council voted to remove DSM requirements (a reporting
requirement) from the list of prohibited exemptions for sectors.
Sectors would be required to monitor their landings and available ACE
and submit weekly catch reports to NMFS. In addition, the sector
manager would be required to provide NMFS with aggregate sector reports
on a daily basis when a threshold (specified in the operations plan) is
reached. Once a sector's ACE for a particular stock is caught, a sector
would be required to cease all fishing operations in that stock area
until it could acquire additional ACE for that stock. Each sector would
be required to submit an annual report to NMFS and the Council within
60 days of the end of the FY detailing the sector's catch (landings and
discards by the sector), enforcement actions, and pertinent information
necessary to evaluate the biological, economic, and social impacts from
the sector, as directed by NMFS.
Each sector contract provides procedures to enforce the sector
operations plan, explains sector monitoring and reporting requirements,
presents a schedule of penalties, and provides authority to sector
managers to issue stop fishing orders to sector members that violate
provisions of the contract. Sector members could be held jointly and
severally liable for ACE overages, discarding of legal-sized fish, and/
or misreporting of catch (landings or discards). As required by
Amendment 16, each sector contract submitted for FY 2011 states that
the sector will withhold an initial reserve from the sector's sub-
allocation to each individual member to prevent the sector from
exceeding its ACE. Each sector contract also details the method for
initial ACE allocation to sector members; for FY 2011, each sector has
proposed that each sector member could harvest an amount of fish equal
to the amount each individual member's permit contributed to the
sector's ACE.
Amendment 16 contains several ``universal'' exemptions that are
applicable to all sectors. These universal exemptions include
exemptions from: Trip limits on allocated stocks; the GB Seasonal
Closure Area; NE multispecies DAS restrictions; the requirement to use
a 6.5-inch (16.51-cm) mesh codend when fishing with selective gear on
GB; and portions of the GOM Rolling Closure Areas. Sectors may request
additional exemptions from NE multispecies regulations through their
sector operations plan. Amendment 16 prohibits sectors from requesting
exemptions from year-round closed areas, permitting restrictions, gear
restrictions designed to minimize habitat impacts, and reporting
requirements (not including DAS reporting requirements). FW 45 proposes
to exclude DSM from the reporting requirements from which sectors may
not be exempted.
Proposed FY 2011 Exemptions
A total of 31 exemptions from the NE multispecies regulations have
been requested by sectors through their FY 2011 operations plans. These
requests fall into several categories: Exemptions previously approved
for FY 2010 (numbers 1-7); additional exemptions that were under
consideration for FY 2010 at the time of the request for FY 2011
(numbers 8-9); exemptions disapproved in FY 2010 (number 10); novel
exemptions for FY 2011 (numbers 11-19), dockside monitoring exemptions
(numbers 20-30) and State permit bank exemptions (number 31). A
[[Page 10859]]
full discussion of the 31 exemptions is below. The requirements that
were exempted in FY 2010 and have again been requested for FY 2011 are:
(1) 120-day block out of the fishery required for Day gillnet vessels;
(2) prohibition on a vessel hauling another vessel's gillnet gear; (3)
limitation on the number of gillnets that may be hauled on GB when
fishing under a groundfish/monkfish DAS; (4) limitation on the number
of gillnets imposed on Day gillnet vessels; (5) 20-day spawning block
out of the fishery required for all vessels; (6) limits on the number
of hooks that may be fished; and (7) DAS Leasing Program length and
horsepower restrictions. Additional regulations that were under
consideration for exemption for FY 2010 at the time of the request, and
have again been requested for FY 2011 are: (8) the GOM Sink Gillnet
Mesh Exemption; and (9) prohibition on the possession or use of squid
or mackerel in the Closed Area I (CAI) Hook Gear Haddock (HGH) Special
Access Program (SAP). For FY 2011, sectors requested an exemption from
the follow regulation that was previously disapproved for FY 2010 is
again being proposed for FY 2011: (10) access to GOM Rolling Closure
Areas in May and June. For FY 2011, sectors have proposed novel
exemptions from the following regulations: (11) prohibition on
discarding; (12) extension of the GOM Sink Gillnet Mesh Exemption
through the month of May; (13) daily catch reporting by Sector Managers
for vessels participating in the CAI HGH SAP; (14) prohibition on pair
trawling; (15) minimum hook size requirements for demersal longline
gear; (16) minimum mesh size requirement; (17) Rhule and Haddock
Separator requirements to utilize the 98.4 in x 15.7 in (250 cm x 40
cm) Eliminator TrawlTM in areas where these gear types are
approved; (18) trawl gear restrictions in the U.S./Canada Area; and
(19) the requirement to power a VMS while at the dock. Due to the
Council's vote to exclude DSM from the list of prohibited exemptions in
FW 45, sectors have requested exemptions from DSM requirements ranging
from a complete exemption to area-, fishery-, and volume-based
exemptions. Specifically, sectors requested novel exemptions from the
following DSM requirements for FY 2011: (20) All DSM and roving
monitoring requirements; (21) DSM requirements for directed monkfish,
skate, and dogfish trips; (22) DSM requirements for jig vessels; (23)
DSM requirements for hook vessels when the sector has caught less than
10,000 lb (4535.9 kg) of groundfish per year; (24) DSM requirements in
May when fishing in several mid-Atlantic NMFS Statistical Areas; (25)
DSM requirements for vessels fishing west of 72[deg]30' W. long.; (26)
DSM, roving monitoring, and hail requirements for hook-only or handgear
vessels; (27) DSM, roving monitoring, and hail requirements for vessels
using demersal longline, jig and handgear while targeting spiny dogfish
in Massachusetts State waters of NMFS Statistical Area 521; (28) DSM
requirements when at-sea monitoring has previously observed the trip;
(29) the requirement to delay offloading due to the late arrival of the
assigned monitor; and (30) the prohibition on offloading of non-
allocated stocks prior to the arrival of the monitor. These exemptions
were considered too late to be included in the EA for this action; they
will be fully analyzed and included in the final EA. Finally, the State
permit bank sector has requested an exemption from: (31) the
requirement to provide a sector roster to NMFS by the specified
deadline.
NMFS is soliciting public comment on the proposed sector operations
plans and all 31 of the exemptions specified above. NMFS is
particularly interested in receiving comments on the exemptions from
the GOM Rolling Closure Areas, prohibition on pair trawling, minimum
trawl mesh size requirements on targeted redfish trips, and dockside
monitoring exemptions, because of particular concerns regarding the
potential impacts of these exemptions.
1. 120-Day Block Out of the Fishery Requirement for Day Gillnet Vessels
The 120-day block out of the fishery requirement for day gillnet
vessels was implemented in 1997 under Framework 20 (62 FR 15381; April
1, 1997) to help ensure that management measures for Day gillnet
vessels were comparable to effort controls placed on other fishing gear
types, 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 and take 120 days out of the non-exempt gillnet fishery. Each
period of time taken must be a minimum of 7 consecutive days, and at
least 21 of the 120 days must be taken between June 1 and September 30.
An exemption from this requirement was previously approved for FY 2010
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. For additional information
pertaining to this exemption and other exemptions previously approved
in FY 2010, please refer to the proposed and final sector rules for FY
2010 (74 FR 68015, December 22, 2010 and 75 FR 18113, April 9, 2010,
respectively). This exemption would increase the operational
flexibility of sector vessels and would be expected to increase profit
margins of sector fishermen. The exemption from the Day gillnet 120-day
block requirement is requested by the GB Cod Fixed Gear Sector; the
Northeast Coastal Communities Sector; Northeast Fishery Sectors III, V-
VIII, and X-XIII; the Port Clyde Community Groundfish Sector;
Sustainable Harvest Sectors 1 and 3; and the Tri-State Sector.
2. Prohibition on a Vessel Hauling Another Vessel's Gillnet Gear
Regulations at Sec. Sec. 648.14(k)(6)(ii)(A) and 648.84(a) specify
the manner in which gillnet gear must be tagged, requiring that
information pertinent to the vessel owner or vessel be permanently
affixed to the gear. No provisions exist in the regulations allowing
for multiple vessels to haul the same gear. An exemption from this
regulation, which was previously approved in FY 2010 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, would allow a sector to share fixed gear among
sector vessels, thereby reducing costs. Consistent with the exemption
as originally approved, the sectors requesting this exemption have
proposed that all vessels utilizing community fixed gear be jointly
liable for any violations associated with that gear. Additionally, each
member intending to haul the same gear will be required to tag the gear
with the appropriate gillnet tags, consistent with Sec. 648.84(a). The
exemption from the prohibition on hauling another vessel's gear is
being requested by the GB Cod Fixed Gear Sector; the Northeast Coastal
Communities Sector; Northeast Fishery Sectors III, VI-VIII, and X-XII;
the Port Clyde Community Groundfish Sector; Sustainable Harvest Sectors
1 and 3; and the Tri-State Sector.
3. Limitation on the Number of Gillnets That May be Hauled on GB When
Fishing Under a Groundfish/Monkfish DAS
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 were implemented as a groundfish
mortality control under
[[Page 10860]]
Amendment 13. An exemption from the limit on the number of gillnets
that may be hauled on GB when fishing under a groundfish/monkfish DAS
was previously granted in FY 2010 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. The exemption
from the limitation on the number of gillnets that may be hauled on GB
when fishing under a groundfish/monkfish DAS is being requested by the
GB Cod Fixed Gear Sector; Northeast Fishery Sectors III, VI-VIII, and
X-XIII; Sustainable Harvest Sectors 1 and 3; and the Tri-State Sector.
4. Limitation on the Number of Gillnets for Day Gillnet Vessels
Current gear restrictions in the groundfish regulated mesh areas
(RMA) 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)); 50 gillnets in the GB RMA (Sec.
648.80(a)(4)(iv)); and 75 gillnets in the Mid-Atlantic (MA) RMA (Sec.
648.80(b)(2)(iv)). This exemption was previously requested and approved
in FY 2010, and would allow sector vessels to fish up to 150 nets (any
combination of flatfish or roundfish nets) in any RMA, and provides
greater operational flexibility to sector vessels in deploying gillnet
gear. This exemption was previously approved for FY 2010 because 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. The exemption from the
limit on the number of gillnets for Day gillnet vessels is being
requested by the GB Cod Fixed Gear Sector; Northeast Fishery Sectors
III, V-VIII, and X-XIII; the Port Clyde Community Groundfish Sector;
Sustainable Harvest Sectors 1 and 3; and the Tri-State Sector.
5. 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 was approved for
FY 2010 sectors based upon the rationale that the sector's ACE will
restrict fishing mortality, making this measure no longer necessary as
an effort control. An exemption from this requirement would provide
vessel owners with greater flexibility to plan operations according to
fishing and market conditions. The exemption from the Day gillnet 20-
day block requirement is being requested by the GB Cod Fixed Gear
Sector; the Northeast Coastal Communities Sector; Northeast Fishery
Sectors II-III and V-XIII; the Port Clyde Community Groundfish Sector;
Sustainable Harvest Sectors 1 and 3; and the Tri-State Sector.
6. Limitation on the Number of Hooks That May be Fished
Current regulations for the GOM RMA, GB RMA, and SNE and MAA RMAs
at Sec. Sec. 648.80(a)(3)(iv)(B)(2), 648.80(a)(4)(iv)(B)(2),
648.80(b)(2)(iv)(B)(1), and 648.80(c)(2)(v)(B)(1), respectively,
prohibit vessels from fishing or possessing more than 2,000 rigged
hooks in the GOM RMA, more than 3,600 rigged hooks in the GB RMA, more
than 2,000 rigged hooks in the SNE RMA, or 4,500 rigged hooks in the MA
RMA. This measure, which was initially implemented in 2002 through an
interim action (67 FR 50292; August 1, 2002) and made permanent through
Amendment 13, was designed to control fishing effort. An exemption from
the number of hooks that a vessel may fish was approved for FY 2010
because it would allow sector vessels to more efficiently harvest ACE
and is no longer a necessary control on effort by sector vessels. This
exemption was granted to the GB Cod Hook Sector from 2004-2009, and was
granted to the GB Cod Fixed Gear Sector; the Northeast Coastal
Communities Sector; Northeast Fishery Sectors III, V-VIII, and X-XII;
the Sustainable Harvest Sector; and the Tri-State Sector for either all
or a portion of FY 2010. The exemption from the limitation on the
number of hooks that may be fished is being requested by the GB Cod
Fixed Gear Sector; the Northeast Coastal Communities Sector; Northeast
Fishery Sectors III, VI-VIII, and X-XII; the Port Clyde Community
Groundfish Sector; Sustainable Harvest Sectors 1 and 3; and the Tri-
State Sector.
7. 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 possession limit must fish under both a
monkfish and a groundfish DAS. Therefore, sector vessels may still use,
and lease, NE multispecies DAS.
An 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 was approved in FY 2010. Restricting sectors to their ACEs
eliminates the need to use vessel characteristics to control groundfish
fishing effort. Further, exemption from this restriction allows sector
vessels greater flexibility in the utilization of ACE and DAS.
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 by effort controls in other fisheries
(e.g., monkfish trip limits and DAS). The exemption from the length and
horsepower restrictions on DAS leasing is being requested by the GB Cod
Fixed Gear Sector; the Maine Permit Bank Sector; all 12 Northeast
Fishery Sectors; the Port Clyde Community Groundfish Sector;
Sustainable Harvest Sectors 1 and 3; and the Tri-State Sector.
8. The GOM Sink Gillnet Mesh Exemption
The regulations require a minimum mesh size of 6.5-in (16.51-cm)
for gillnets in the GOM RMA (Sec. 648.80(a)(3)(iv)). Minimum mesh size
requirements have been used to reduce overall mortality on groundfish
stocks, as well as to reduce discarding of, and improve survival of,
sub-legal groundfish. An exemption from this regulation, which would
allow vessels to potentially catch more haddock seasonally in the GOM,
was considered in a supplemental proposed and final rule to FY 2010
sector operations (75 FR 53939; September 2, 2010; and 75 FR 80720;
December 23, 2010) and is functionally equivalent to a pilot program
that was proposed by the Council in Amendment 16. This exemption would
allow sector vessels to use 6-inch (15.24-cm) mesh stand-up gillnets in
the GOM RMA from January 1, 2012, to April 30, 2012, when fishing for
haddock. The designation of this season is consistent with the original
pilot program proposal and is the time period when haddock are most
available in the GOM. Sector vessels utilizing this exemption would be
prohibited from using tie-down gillnets during this period. Sector
vessels may transit the
[[Page 10861]]
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).
The GOM Sink Gillnet Mesh Program, as proposed by the Council,
stipulated that Day gillnet vessels would not be able to fish with,
possess, haul, or deploy more than 30 nets per trip. Consistent with
the original scope of the pilot program, for FY 2010 NMFS proposed in
supplemental rulemaking that Day gillnet vessels utilizing this
exemption also be limited to 30 nets per trip during this period, but
requested public comment on a net limit of between 30 and 150 stand-up
nets, analyzing up to 150 nets. Because Day gillnet vessels granted the
sector exemption from Day gillnet net limits, as explained under
exemption request 4, would not be subject to the general net limit in
the GOM RMA, and thus able to fish up to 150 nets in the GOM RMA, they
would be limited to 30 nets when fishing under this exemption program.
Therefore, NMFS again requests public comment on the feasibility of
allowing up to 150 nets when fishing under this exemption. The LOA
issued to sector vessels that qualify for this exemption would specify
the net restrictions to help ensure the provision is enforceable. There
would be no limit on the number of nets that participating Trip gillnet
vessels would be 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. An exemption from this requirement 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, given that fishing mortality by sector vessels is
restricted by an ACE for allocated stocks, capping 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 any 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 would still be required to comply with all requirements of
the Harbor Porpoise Take Reduction Plan and Atlantic Large Whale Take
Reduction Plan. The GOM Sink Gillnet Mesh Exemption is being requested
by the GB Cod Fixed Gear Sector; Northeast Fishery Sectors III, VI-
VIII, and X-XII; the Port Clyde Community Groundfish Sector;
Sustainable Harvest Sectors 1 and 3; and the Tri-State Sector.
9. Prohibition on the Possession or Use of Squid or Mackerel in the CAI
Hook Gear Haddock SAP
The restriction on the possession or use of squid or mackerel as
bait in the CAI Hook Gear Haddock SAP was originally approved by the
Council in Framework 41, and analyzed in the FEIS for Framework 41, but
inadvertently not included in the regulations implementing Framework
41. To correct this oversight, this provision was implemented as part
of the Amendment 16 final rule. This restriction was intended to
control the catch rates of cod, as squid and mackerel have been
demonstrated to result in higher catch rates of cod. NMFS received
comments on Amendment 16 that the bait restrictions should not apply to
sector vessels. In the final rule implementing Amendment 16, NMFS
stated that * * * because the Council did not provide for a specific
exemption from such bait restriction in Amendment 16, NMFS cannot
provide a sector an exemption from the bait requirements for this SAP
in the final rule.'' However, because the bait restriction in Framework
41 was included under Section 4.2.2.2 ``Requirements for Vessels not in
the Hook Sector,'' NMFS, after further discussion with Council staff,
understands that Framework 41 intended that this bait restriction apply
only to vessels fishing outside of a sector (i.e., the common pool).
Based on this, NMFS intends to revise the current regulations for this
requirement in an upcoming correction rule and, until the correction is
effective, exempt any interested sector from this provision for the
remainder of FY 2010 through an amendment to that sector's approved
operations plan.
The GB Cod Fixed Gear Sector requested an exemption from this bait
restriction, asserting the provision is an input control used to
control fishing effort within the SAP under the DAS system and is
unnecessary because catch by the sector will be limited by the ACE for
each stock that caps overall fishing effort.
10. Access to GOM Rolling Closure Areas in May and June
The GOM Rolling Closure Areas were initially implemented in 1998
under Framework 25 to the FMP to reduce fishing effort in ``areas with
high GOM cod landings.'' However, Framework 26 referred to the rolling
closure areas as ``inshore `cod spawning' closures.'' The stated
purpose and need under Framework 26 (Section 3.0) states that the
Council wanted to ``take additional action to protect cod during the
1999 spawning season * * * and immediate action is necessary to reduce
catches and protect the spawning stock.'' As a result, Framework 26
expanded the time period of these ``cod spawning'' closures, which
included several 30-minute blocks. The final rule implementing
Framework 26 (64 FR 2601; January 15, 1999) specified that the Council
undertook action to expand these closures because of the ``opportunity
to delay fishing mortality on mature cod during the spring spawning
period, a time when stocks aggregate and are particularly vulnerable to
fishing pressure.'' Amendment 16 implemented universal sector
exemptions from specific portions of the current GOM Rolling Closure
Areas, and specifically did not exempt these portions of these areas
due to the understanding that they protect spawning aggregations of
cod. The Council tasked the Groundfish Plan Development Team (PDT) with
reviewing and analyzing the existing GOM Rolling Closure Areas to
determine which areas should remain closed, but stipulated that sectors
may request specific exemptions from the GOM Rolling Closure Areas in
their sector operations plans. On November 18, 2009, the Council voted
to endorse a previous FY 2010 exemption request from block 138 in May.
Several sectors requested exemptions from GOM Rolling Closure Areas
for FY 2010; however, these exemptions were ultimately rejected in the
final rule implementing FY 2010 sector operations plans because the
requesting sectors failed to consider that, despite ACE limits, direct
targeting of spawning aggregations can adversely impact the
reproductive potential of a stock, as opposed to post-spawning
mortality. Additionally, justification that demonstrates that spawning
fish could be avoided was not provided by the individual sectors. The
final rule also cited that the existing GOM Rolling Closure Areas
provide some protection to harbor porpoise and other marine
[[Page 10862]]
mammals. Six of the Northeast Fishery Sectors and the Sustainable
Harvest Sector requested additional exemptions from these rolling
closures in FY 2010.
The sectors requesting this exemption for FY 2011 assert that the
GOM Rolling Closure Areas were originally intended as mortality
closures, and are now unnecessary because fishing mortality for sectors
is capped by the ACE allocated for each groundfish stock. Sustainable
Harvest Sectors 1 and 3 are requesting access to 30-minute blocks 138
and 139 in May, and 30-minute block 139 in June. They argue that they
should not be subject to additional mortality controls because sector
vessels are limited to a hard TAC. Additionally, these sectors note
that Table 177 in the Environmental Impact Statement for Amendment 16
indicates that May is not a particularly important time for groundfish
spawning, with the exception of plaice and haddock. The Port Clyde
Community Groundfish Sector is requesting access to 30-minute blocks
138 and 139 in May, and 30-minute blocks 139, 145, and 146 in June. The
Port Clyde Community Groundfish Sector stipulated a strategy to
minimize the impacts to spawning fish while promoting benefits to
sector members. Under this strategy, the sector would restrict the
harvesting of any species in these areas and times by capping the
percentage of the sector's available ACE that could be harvested from
these areas, and would institute a closure of these areas if, based on
NMFS Northeast Fisheries Observer Program (NEFOP) data, a significant
amount of spawning fish are harvested. Additionally, the sector
proposes to implement a program to notify the sector manager and other
vessels if spawning aggregations and/or marine mammals are detected in
these areas. Finally, the Port Clyde Community Groundfish Sector
contends that vessels fishing in the requested exemption areas would
provide additional data, which could serve as a pilot study for future
use of these areas and times by all sectors.
11. Prohibition on Discarding
Current regulations prohibit sector vessels from discarding legal-
sized fish of any of the 14 stocks allocated to sectors while at sea
(Sec. 648.87(b)(1)(v)(A)). Amendment 16 contained this provision to
ensure that the sector's ACE is accurately monitored. Sectors requested
a partial exemption from this prohibition, because of concerns that
retaining and landing large amounts of unmarketable fish, including
fish carcasses, creates operational difficulties and potentially unsafe
working conditions for sector vessels at sea. The Regional
Administrator considered a partial exemption from the requirement to
retain all legal-sized fish in a supplemental proposed rule to FY 2010
sector operations. However, due to problematic mid-season
implementation issues, further consideration of this exemption was
delayed until FY 2011 in the supplemental final rule to FY 2010 sector
operations. Under this proposed exemption, all legal-sized unmarketable
allocated fish would be accounted for in the overall sector-specific
discard rates in the same way discards of undersized fish at sea are
currently accounted for, through observer and at-sea monitoring
coverage. If approved, unmarketable fish discarded by a sector's
vessels on observed trips would be deducted from that sector's ACE and
incorporated into that sector's discard rates to account for discarding
under this exemption on unobserved trips. Vessels in a sector opting
for this exemption would be required to discard all legal-sized
unmarketable fish at sea (i.e., not just on select trips). Legal-sized
unmarketable fish would be prohibited from being landed to prevent the
potential to skew observed discards. NMFS is specifically seeking
comment on the implementation of this requirement.
NMFS received several comments regarding this exemption in response
to the proposed supplemental rule for FY 2010 sector operations, which
initially proposed this exemption. This included comment from Oceana,
who raised concern that this exemption would expand loopholes in the
self-reporting component of the sector monitoring program, and
encourage high-grading, thereby weakening the sector monitoring program
and undermining the FMP goals, as well as National Standards 2 and 9 of
the Magnuson-Stevens Fishery Conservation and Management Act. However,
the accounting of discards does not rely on self-reported data. Rather,
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. In
addition, this exemption is not expected to lead to high-grading of
catch, given that there is a financial incentive for sector vessels to
minimize discards of allocated stocks. Since discards of allocated
stocks are applied to the sector's ACE through observer data and
sector-specific discard rates, there is an incentive for sector vessels
that opt for this exemption to land catch rather than discard it, to
maximize the value of the sector's ACEs. Thus, this discarding
exemption is intended to provide NMFS with additional data for the
monitoring of sector ACEs. Currently, a sector vessel could illegally
discard legal-sized unmarketable fish at sea for operational or safety
reasons. If such discarding is occurring only on unobserved sector
trips, these discards may be unaccounted for in the sector-specific
discard rates. This exemption would allow sectors to legally discard
these fish at sea and, therefore, would provide NMFS with a means of
capturing some of this information. Therefore, allowing the discarding
of unmarketable fish and incorporating observed unmarketable discards
into the sector-specific discard rates under this exemption would
account for any illegal discarding that may currently be occurring on
unobserved trips and, thereby, improve the information being used to
extrapolate discards across all sector trips.
Finally, NMFS received a comment that the proposed rule did not
contain sufficient analysis of the exemption and that further analysis
should be completed prior to implementation. This exemption was
analyzed in the FY 2010 proposed supplemental rule and EA, and is
further discussed here. The analysis of this exemption was based upon
information available at the time of the analysis, which consisted of
observer data from sector trips through November 3, 2010. Dealer
reports and vessel trip reports (VTRs) were not designed to
specifically monitor the landing and handling of unmarketable fish, so
there is little information available from these sources about the
amount of unmarketable fish that sector vessels have landed to date.
During the development of this exemption, NMFS identified the need for,
and implemented, a specific code that could be used by vessels to
report the landing of unmarketable fish on their VTRs. A permit holder
letter sent on October 20, 2010, introduced this VTR code to vessel
operators and included instructions for both vessel operators and
dealers for the reporting of unmarketable fish. If approved, legal-
sized unmarketable fish could be discarded at sea, and recorded as such
on the VTR. Sectors that do not receive this exemption would continue
to use the new VTR code. NMFS observers and at-sea monitors record the
amount of each species kept by sector vessels because they are
prohibited from discarding such fish by the regulations. Fish recorded
under this category likely
[[Page 10863]]
consist of unmarketable legal-sized fish of allocated stocks that could
not otherwise be discarded by the vessel operator and, therefore,
represent the best estimate of the amount of unmarketable fish that
sector vessels encounter on a given trip and may be expected to discard
under this exemption. Observer data from sector trips during the first
half of FY 2010 show that retained legal-sized unmarketable groundfish
have been observed on 7.3 percent of observed sector trips. Observers
reported a total of 14,423 lb (6,542 kg) of unmarketable groundfish
that have been retained by sector vessels on 161 trips. Gillnet vessels
encountered the most unmarketable groundfish per trip, with an average
of 92 lb (42 kg), and a maximum of 402 lb (182 kg). Hook vessels
retained an average of 64 lb (29 kg) of unmarketable groundfish per
trip (maximum of 150 lb (68 kg)), and trawl vessels retained an average
of only 23 lb (10 kg) of unmarketable groundfish per trip (maximum of
14 lb (6 kg)). In addition, unmarketable fish have a much greater
occurrence on gillnet trips than trips using hook or trawl gear, during
the time from May 1 through November 3, 2010, with observers reporting
legal-sized unmarketable fish on 151 gillnet trips, but only 7 hook
trips and 3 trawl trips. The occurrence of legal-sized unmarketable
fish that had to be retained is limited, and does not appear to be a
significant portion of sector catch. To date, these observed fish, and
other unmarketable fish landed, are deducted from the sector's ACE. For
sectors opting for the discarding exemption, any unmarketable fish that
would have been required to be landed without the exemption and now are
discarded by sector vessels will be recorded by observers as discards
and applied to sector ACEs through discard data and sector-specific
discard rates on unobserved trips.
The discarding exemption, in combination with the enhanced
reporting of legal-sized unmarketable fish, would improve the
monitoring of this unmarketable portion of sector catch, particularly
on unobserved sector trips. The discard exemption is being requested by
the GB Cod Fixed Gear Sector; Northeast Fishery Sectors II-III, V-VI
and X-XII; Sustainable Harvest Sectors 1 and 3; and the Tri-State
Sector.
12. Extension of the GOM Sink Gillnet Mesh Exemption Through May
For a full description of the GOM Sink Gillnet Mesh Exemption,
please see exemption 8 of this section. Northeast Fishery Sectors III,
VI-VIII, and X have requested that the GOM Sink Gillnet Mesh Exemption,
proposed above, be extended an additional month, from the end of April
until the end of May.
This exemption would provide sector vessels the opportunity to
potentially catch more GOM haddock, a fully rebuilt stock, during the
months that haddock are most prevalent, and would also provide sector
participants the opportunity to more fully harvest their allocation of
GOM haddock, therefore increasing efficiency and revenues for vessel
participating in this program. The sectors assert that impacts to non-
target species would be minimal, because fishing effort by sectors
vessels is restricted by ACE for allocated stocks, which caps overall
mortality.
13. Daily Catch Reporting by Sector Managers for Vessels Participating
in the CA I Hook Gear Haddock SAP
The regulations at Sec. 648.85(b)(7)(v)(C) require that sector
vessels that declared into the CA I Hook Gear Haddock SAP submit daily
catch reports to the sector manager, and that the sector manager report
catch information to NMFS, on a daily basis. This reporting requirement
was originally implemented through Framework 40A, to facilitate real-
time monitoring of quotas by both the sector manager and NMFS.
Amendment 16 granted authority to the Regional Administrator to
determine if weekly sector reports were sufficient for the monitoring
of most SAPs. Through the final rule implementing Amendment 16, the
Regional Administrator alleviated reporting requirements for sector
vessels participating in other Special Management Programs (SMPs),
though these reporting requirements were retained for the CA I Hook
Gear Haddock SAP, given that NMFS must continue to monitor an overall
haddock TAC that applies to sector and common pool vessels fishing in
this SAP.
The GB Cod Fixed Gear Sector requests that NMFS exempt the sector
manager from submitting these reports to NMFS, opting instead to
mandate that participating vessels submit a VMS catch report directly
to NMFS containing all required information, analogous to the
requirements for common pool vessels. The sector contends that this
scenario would provide NMFS with data in a more timely fashion.
NMFS is currently evaluating the possibility of using the sector
manager's weekly report, rather than daily reports, to monitor the TAC.
Sector weekly reports have provided information in a timely enough
manner to adequately monitor other SAPs. However, the weekly reports,
in their current form would not provide sufficient information.
Furthermore, NMFS is concerned that this provision may reduce the
sector manager's capability to accurately monitor the sector's ACE in a
timely manner. NMFS is soliciting comment on both the utility of the
current reporting method, and the alternate reporting options
highlighted above.
14. Prohibition on Pair Trawling
The regulations at Sec. 648.14(k)(5)(vi) prohibit pair trawling in
the NE multispecies fishery. This prohibition was originally
implemented through an emergency interim rule (58 FR 32062; June 8,
1993), extended through a second emergency interim rule (59 FR 26;
January 3, 1994), and made permanent in Amendment 5 (59 FR 9872; March
1, 1994). The first emergency interim rule prohibited pair trawling,
based on record low abundance of spawning stock biomass and high
fishing mortality of cod, conditions of the haddock stock and benefits
to reducing discards of haddock, the high efficiency of this gear type,
and an increase in the number of vessels electing to use this gear. The
second emergency interim rule extending the prohibition noted that pair
trawls are ``highly efficient gear, and its unlimited use during a
period of severely declining haddock and cod stocks is
counterproductive to the goal of reducing effort in an overfished
fishery.'' Amendment 5 also noted that pair trawling vessels ``had
significantly higher revenue-per-day-absent and landings-per-day-absent
than otter trawl vessels fishing singly,'' further demonstrating the
efficiency of this gear type. While initially intended to protect cod
and haddock stocks, which at the time were at all-time low levels of
abundance, the rule noted that ``the stock condition and landings will
continue to decline until such time that meaningful measures are
implemented that will eliminate the overfished condition of the stocks
and reduce the exploitation rate to levels that will allow significant
rebuilding to take place.''
Northeast Fishery Sectors VI-X and XIII are requesting an exemption
from the pair trawling restriction for FY 2011, while restricting
vessels to using either the Ruhle Trawl or the Eliminator Trawl. The
sectors comment that a prohibition of this highly efficient gear type
was intended to reduce fishing mortality. Given this, the sectors
assert that, since sectors are managed under an ACE, they should be
exempt from effort controls. These sectors anticipate that
[[Page 10864]]
the exemption will enable participating vessels to harvest the sector's
ACE more efficiently and economically.
However, NMFS has concerns with granting this exemption because,
due to the efficiency of pair trawling, sectors may not have sufficient
ACE for all stocks caught by this gear, and may be unable to
selectively target desired stocks. Additionally, this gear
configuration has not been studied, and it could be that an increase in
herding could diminish the established selectivity of the Ruhle Trawl.
NMFS is especially interested in receiving public comment on this
exemption request.
15. Minimum Hook Size Requirements for Demersal Longline Gear
The regulations at Sec. Sec. 648.80(a)(3)(v), 648.80(a)(4)(v),
648.80(b)(2)(v), and 648.80(c)(2)(iv) specify that ``all longline gear
hooks must be circle hooks, of a minimum size of 12/0.'' This
restriction was implemented through Amendment 13 to reduce the catch of
small fish and improve their survivability in the hook fishery. In
addition, the Amendment 13 FEIS further reasoned that ``limits on the
number of hooks are intended to reduce overall effort in the hook
fishery.''
The Northeast Coastal Communities Sector requested an exemption
from this regulation, which would allow sector members the ability to
target flatfish, species of fish which generally have smaller mouths
than other groundfish. The sector asserts that bycatch could be avoided
by selectively placing this gear, and that this exemption would allow
its members to more effectively harvest the sector's ACE and increase
profit margins of sector fishermen. However, NMFS has concerns with
allowing a smaller hook size, given that this could increase the catch
of sublegal fish.
16. Minimum Mesh Size Requirements on Targeted Redfish Trips
The regulations at Sec. 648.80 specify the minimum mesh size that
may be used in fishing nets on vessels fishing in the GOM, GB, SNE, and
MA RMAs. The regulations implementing the minimum mesh size were
initially adopted through interim rules in 2001 and 2002 (67 FR 21140,
29 April 2002; 67 FR 50292, August 1, 2002) and made permanent through
Amendment 13. This provision was intended to provide protection to
spawning fish and increase the size of targeted fish. Framework 42
further modified the mesh regulations in the SNE/MA RMAs to reduce
discards of yellowtail flounder.
Northeast Fishery Sectors II, V-X and XIII are requesting an
exemption from the current minimum mesh size codend on targeted redfish
trips for FY 2011; replacing this requirement with a 5-inch (12.7-cm)
minimum mesh size codend on directed redfish trips. The sectors also
propose that members be required to notify the manager at least 48 hrs
in advance of such a trip, and be required to have 100 percent observer
or at-sea monitor coverage while utilizing this gear. Also, to
accurately monitor the ACE, Sector members would be required to submit
catch reports to the sector manager on a daily basis while at sea. The
requesting sectors argue that this exemption could increase the
operational flexibility of sector vessels and could increase profit
margins of sector fishermen.
The sectors referenced several studies in support of this
exemption. A study entitled ``The Status of the Fishery Resources of
the Northeast U.S.,'' by Mayo, R., L. Col and M. Traver 2006 describes
the gear historically used in the redfish fishery. It notes that the
minimum mesh size restrictions, along with ``low biomass and truncated
size and age structure of the redfish stock have effectively eliminated
the prosecution of a fishery since the mid 1980s.''
Anecdotal information for FY 2010 provided by some industry
members, as well as information in a study entitled ``ME Boats go for
Redfish the New-Fashioned Way,'' by Peter K. Prybot, in the September
2010 issue of Commercial Fisheries News, suggests that some sector
members have been successful at targeting redfish utilizing gear with
6.5-inch (16.51-cm) mesh. NMFS is currently funding a study through the
Northeast Cooperative Research Partners Program to investigate
strategies and methods to sustainably harvest the redfish resource in
the GOM through a network approach, including fishing enterprises, gear
manufacturers, researchers, and social and economic experts and
managers, which will include the investigation of success of various
mesh sizes within the fishery. Given that the use of this smaller mesh
could negatively impact spawning fish and populations of flounders,
which the current minimum mesh sizes were intended to protect, NMFS has
reservations about approving this exemption, until such time that
results from this study can first be considered.
17. Rhule and Haddock Separator Requirements to Utilize the 98.4 in x
15.7 in (250 cm x 40 cm) Eliminator Trawl TM
Through several separate rulemakings (73 FR 29098, May 20, 2008; 73
FR 40186, July 14, 2008; 73 FR 52214, August 9, 2008; and 73 FR 53158,
August 15, 2008), NMFS has authorized the use of the Ruhle Trawl
(f.k.a., Eliminator Trawl and Haddock Rope Trawl) for use in the B DAS
Program, Eastern U.S./Canada Haddock SAP, and the Eastern U.S./Canada
Area Program. NMFS approval of this gear was based upon a
recommendation from the Council, following a review of a study that
demonstrated that this experimental net was successful at targeting
haddock and significantly reducing the catch of other groundfish
species. NMFS, however, noted in the final rule approving this gear for
use in the B DAS Program and the Eastern U.S./Canada Haddock SAP that
the ``results of the experiment cannot be used to extrapolate to
smaller scale haddock rope trawl gear that could be readily used by
smaller horsepower vessels'' but that ``research is currently underway
testing a smaller, modified version of the haddock rope trawl, and at-
sea observations indicate that this smaller net may also be effective
at reducing bycatch.''
Although the results of the smaller-scale trawl study have yet to
be reviewed by the Council, several of the Northeast Fishery Sectors
(II, V-X, and XIII) have requested an exemption to utilize the 8.4 in x
15.7 in (250 cm x 40 cm) Eliminator TrawlTM in areas and
programs where the Ruhle trawl has been approved. In addition, these
sectors wish to have this gear type included in the Ruhle trawl discard
strata. Therefore observed discards from this smaller net would apply
to the current Ruhle trawl strata, and the discard rate for the Ruhle
trawl strata would apply to all unobserved trips utilizing this gear.
The sectors assert that approving this gear type will provide sector
members greater flexibility, as many vessels are too small to utilize
the larger version of the net. In addition, the sectors argue that,
based upon the final results of ``Exploring Bycatch Reduction in the
Haddock Fishery through the use of the Eliminator Trawl with Fishing
Vessels in the 250 to 550 HP Range,'' by Laura Scrobe, David Beutel and
Jonathan Knight, this smaller net may reduce the catch of major stocks
of concern, while allowing vessels to selectively target haddock. As
with the previous mesh size exemption request discussed under exemption
16, NMFS has concerns with granting this exemption prior to reviewing
the results of the report studying this smaller net.
18. Gear Requirements in the U.S./Canada Management Area
Current regulations require that a NE multispecies vessel fishing
with trawl gear in the Eastern U.S./Canada Area
[[Page 10865]]
must fish with a Ruhle trawl, a haddock separator trawl, or a flounder
trawl net. The final rule implementing Amendment 13 clarified that the
restriction to use a haddock separator trawl or a flounder trawl net
was designed to ``ensure that the U.S./Canada TACs are not exceeded.
Because both the flounder net and haddock separator trawl are designed
to affect cod selectivity, and because the cod TAC is specific to the
Eastern U.S./Canada Area only, application of this gear requirement to
the Western U.S./Canada Area is not necessary to achieve the stated
goal.''
The requirement to utilize a Ruhle trawl in the Eastern U.S./Canada
Area was implemented through several inseason actions, and made
permanent in Amendment 16. This gear configuration was originally
authorized for its demonstrated ability to allow the targeting of
haddock, an under-harvested stock, while reducing bycatch of cod and
yellowtail flounder stocks, which were identified as overfished. The
addition of the Ruhle Trawl to gear previously approved (haddock
separator trawl and flounder trawl net) provided added flexibility to
trawl vessels.
The Sustainable Harvest Sectors 1 and 3, and the Tri-State Sector
have requested an exemption from the trawl gear requirements in the
Eastern U.S./Canada Area, to allow either a standard otter trawl or
modified versions of currently approved trawl gear (Ruhle trawl, a
haddock separator trawl, or a flounder trawl net) to access the area.
The sectors both assert that this measure was initially designed as a
method to control fishing effort and therefore is no longer necessary
because a sector is now constrained by the allocated ACE for each
stock, which caps overall fishing mortality.
19. Requirement to Power a VMS While at the Dock
The regulations at Sec. 648.10(b)(4) require that a vessel issued
certain categories of NE multispecies permits, or eligible and
participating in a sector, to have an operational VMS unit onboard.
Additionally, Sec. 648.10(c)(1)(i) requires that the VMS units onboard
a NE multispecies vessel transmit accurate positional information
(i.e., polling) at least every hour, 24 hr per day, throughout the
year. Amendment 5 first included the requirement for vessels to use
VMS. While the requirement to use VMS was delayed until a later action
(Framework 42 ultimately implemented a VMS requirement for NE
multispecies DAS vessels), NMFS supported polling due to its ability to
insure adequacy of monitoring requirements and address enforcement
concerns, and because it could be beneficial in the event of an at-sea
emergency.
Under certain circumstances, the regulations at Sec. 648.10(c)(2)
allow NMFS to issue a LOA allowing vessels to sign out of the VMS
program for a minimum of 30 consecutive days. The ability to power-down
a VMS unit was justified in Amendment 13 to reduce vessel costs when
reduced DAS allocation limited fishing opportunities to a small portion
of the year.
The Tri-State Sector requested an exemption from the requirement to
power a VMS while at the dock, noting that the VMS was used to track
DAS and proximity to closed areas, and would require that the VMS unit
be operational when the vessel is away from the dock. The Tri-State
Sector further noted that other reporting requirements (trip start and
trip end hails, VMS declarations, etc.) received by the sector manager
and NMFS could be used to monitor vessels granted this exemption.
20. All DSM and Roving Monitoring Requirements
Amendment 13 adopted the concept that sectors are responsible for
monitoring sector catch, but provided few details for that requirement.
Amendment 16 formalized this requirement, by specifying that sector
operations plans must include how a sector will monitor its catch to
assure that sector catch does not exceed the sector allocation;
including developing and implementing an independent third-party DSM
program for monitoring landings from sector trips and utilization of
ACE. The DSM program was implemented to ensure that catch is accurately
documented and that all sectors are being held to the same standards,
for the purpose of bolstering compliance monitoring efforts.
The GB Cod Fixed Gear Sector and Northeast Fishery Sectors II-III
and V-XIII have requested an exemption from all DSM requirements. The
GB Fixed Gear sector contends that this program has added little value
to the sectors' infrastructure or sector members' businesses.
Additionally, the sector argues that ambiguities with the DSM program,
such as the failure to require confirmation that all landings have been
offloaded, the fact that NMFS does not utilize or cross-reference this
data, and the ability of fishermen to alter behavior when notified of a
monitoring event, prevent the program from meeting its stated
objectives. The GB Cod Fixed Gear Sector also asserts that NMFS has yet
to request any dockside or roving monitoring reports to validate or
verify a landing event, and therefore the requirement is not being
utilized as an enforcement tool. The Northeast Fishery Sectors contend
that the implementation of the DSM program has not met the stated
objectives of the DSM program in an economically efficient manner. They
contend that DSM was meant as a means for sector managers to verify
catch, and that the Northeast Fishery Sector managers do not utilize
DSM reports, but rather opt to utilize dealer weigh-out slips for this
purpose. NMFS acknowledges that the DSM program could be strengthened,
and intends to modify DSM standards for the start of FY 2011, to help
ensure better compliance monitoring, the primary objective of the
program.
At its November 18, 2010, meeting, the Council voted to include in
FW 45 a provision that would remove DSM from the list of reporting
requirements, thereby removing this requirement from the list of
prohibited sector exemptions. Many of the DSM requirements that were
requested for exemption in the operations plans submitted as of
September 1, 2010, were, at the time, prohibited under Amendment 16
and, therefore, not analyzed in the sector EA, given that there was
insufficient time to do so. This request, and other DSM exemption
requests, will be analyzed in the final EA.
21. DSM Requirements for Directed Monkfish, Skate, and Dogfish Trips
As explained above in exemption 20, Amendment 13 adopted the
concept that sectors are responsible for monitoring sector catch, and
Amendment 16 formalized these requirements. Unless a vessel is fishing
in an exempted fishery, directed monkfish, skate and dogfish trips are
considered a sector trip because a groundfish trip declaration is
required (NE multispecies DAS or sector trip), since gear utilized on
such trips is capable of catching groundfish and groundfish retention
is permitted.
The Northeast Coastal Communities Sector; and Northeast Fishery
Sectors II-III, V-X, and XIII have requested an exemption from DSM
while on directed fishing trips on monkfish, skate, and/or dogfish.
Specifically, the Northeast Coastal Communities Sector has requested an
exemption from DSM on dogfish trips when vessels are utilizing hook
gear. The sector contends that data collected from observed FY 2010
dogfish trips demonstrate that little groundfish incidental catch
occurs, making the cost of DSM per pound of groundfish too low to
support it. The Northeast Fishery Sectors have requested an exemption
on all directed
[[Page 10866]]
monkfish, skate, and dogfish trips, contending that the implementation
of DSM in FY 2010 has not met the objectives stated in Amendment 16 in
an economically efficient manner. These sectors state that providing an
exemption on these trips could provide economic relief from the costs
of monitoring trips that land little groundfish.
NMFS believes that this request poses operational concerns. Vessels
fishing on directed monkfish, skate, and dogfish trips, unless in an
exempted fishery, are declared as a sector trip, and/or require the
declaration of a DAS. Such trips are not prohibited from targeting or
landing groundfish and, therefore, may land substantial amounts of
groundfish. Since these trips are made through groundfish declarations,
it is currently impossible to distinguish these trips from directed
groundfish trips. Sector discard rates, a crucial component of ACE
monitoring, are calculated based on total catch, not solely groundfish
catch. A reduction in monitoring would decrease oversight of, and
confidence in, this crucial calculation. Additionally, the sectors
requesting this exemption did not address the benefit that this program
provides to compliance monitoring.
22. DSM Requirements for Jig Vessels
Jigging, with respect to the NE multispecies fishery, is defined at
Sec. 648.2 as fishing with handgear, handline, or rod and reel gear
using a jig, which is a weighted object attached to the bottom of the
line used to sink the line and/or imitate a baitfish, which is moved
with an up and down motion. Jigging gear is not exempted gear and,
therefore, sector trips utilizing this gear are required to participate
in the DSM program.
The Northeast Coastal Communities Sector requested an exemption
from DSM requirements for vessels using jig gear, noting that vessels
utilizing this gear type are able to target cod with little incidental
catch of other allocated groundfish species. The sector points out that
the cost of monitoring these trips is disproportionately high, due to
the comparatively small amount of catch that this gear type yields.
The Council, through FW 45, proposes to remove DSM requirements in
FY 2011 for common pool vessels with Handgear A and B permitted
vessels, as well as for Small Vessel permitted vessels, because small
quantities of groundfish landed by these permit categories would make
monitoring such trips uneconomical. Vessels that have a valid Handgear
or Small Vessel permit and that fish with jig gear would be exempt from
DSM, if the provision in FW 45 is approved by NMFS.
23. DSM Requirements for Hook Vessels When the Sector Has Caught Less
Than 10,000 lb (4,535.9 kg) of Groundfish per Year
The regulations at Sec. 648.87(b)(1)(v)(B)(3) specify that any DSM
service provider must provide coverage that is distributed in a random
manner among all trips, such that the coverage is representative of
fishing activities by all vessels within each sector and by all sector
vessels operations throughout the fishing year.
The Northeast Coastal Communities Sector has requested an exemption
from DSM requirements for hook vessels when the sector has caught less
than 10,000 lb (4535.9 kg) of groundfish per year, noting that, in FY
2010, trips by sector vessels have, thus far, yielded little
groundfish, and due to the remote location of its ports, DSM has been
cost prohibitive. The sector proposes a 10,000-lb (4,535.9 kg)
threshold for the year, above which DSM would be required, and stated
that catch could be verified through a comparison of dealer data,
vessel trip reports, and VMS catch reports. The manager proposes to
notify NMFS when 8,000 lb (3,628.7 kg) of groundfish have been caught,
and would submit to DSM program requirements at that time.
NMFS is concerned that this threshold is somewhat arbitrary and is
interested in public comment on this. Additionally, a 10,000-lb
(4,535.9-kg) cap is a significant amount of landings, and exempting a
sector from DSM requirements could raise compliance monitoring concerns
(as noted above).
24. DSM Requirements in May When Fishing in Certain Mid-Atlantic (MA)
Areas
Upon receiving exemption requests to the DSM requirement for
vessels fishing in SNE and MA waters, the Regional Administrator, in a
September 1, 2010, letter to the Council, requested that the Council
consider establishing a geographic boundary outside of which DSM would
not be required. At its November 18, 2010, meeting, the Council
considered this request and supported removal of DSM from the list of
prohibited exemptions to allow sectors to request geographic- and gear-
based exemptions from DSM.
Northeast Fishery Sectors VI-VIII and X-XIII have requested an
exemption from DSM in May and June on non-groundfish directed trips
that occur in the following NMFS statistical areas: 615, 616, 621, 622,
623, 625, 626, 627, 631, 632, 633, 635, 637, and 638. The sectors point
out that historical data indicate that little groundfish incidental
catch has been observed in these areas, and monitoring of such trips is
therefore not a beneficial use of financial resources.
25. DSM Requirements for Vessels Fishing West of 72[deg]30' W. long.
Please see exemption 24 for background on this request. Sustainable
Harvest Sectors 1 and 3, and the Tri-State Sector have requested an
exemption from the DSM requirements for vessels fishing west of
72[deg]30' W. long., noting that historical data indicate that little
groundfish incidental catch has been observed in this area, and
monitoring of such trips is therefore not a beneficial use of financial
resources.
26. DSM, Roving Monitoring, and Hail Requirements for Hook-Only or
Handgear Vessels
Neither hook gear nor handgear, as defined in Sec. 648.2, are
exempted gear, and therefore sector trips utilizing these gear types
are required to have DSM.
The GB Cod Fixed Gear Sector requested an exemption from DSM,
roving monitoring, and hail requirements for hook-only or handgear
vessels, noting that vessels utilizing this gear type are among the
smallest operators and have historically landed small amounts of
groundfish. The sector contends that the proceeds from these trips may
be less than the cost of deploying a dockside or roving monitor, making
the cost of monitoring of these vessels disproportionately high
relative to the rest of the groundfish fleet. The sector also requests
that, if this exemption is granted, these vessels should also be exempt
from hail requirements. Although FW 45 proposes to remove DSM
requirements from the list of regulations that sectors may not be
exempt from, hail requirements would remain reporting requirements, and
therefore may not be exempted. While hails are widely viewed as
necessary for the deployment of dockside monitors, NMFS receives this
information and also uses it to coordinate the deployment of
enforcement resources in monitoring offloads.
As explained above in exemption 22, the Council, through FW 45,
proposes to remove DSM requirements in FY 2011 for common pool vessels
with Handgear A and B permitted vessels, as well as for Small Vessel
permitted vessels.
[[Page 10867]]
27. DSM, Roving Monitoring, and Hail Requirements for Vessels Using
Demersal Longline Gear, Jig Gear, and Handgear While Targeting Spiny
Dogfish in Massachusetts State Waters
Unless a vessel is fishing in an exempted fishery, directed
monkfish, skate, and dogfish trips are considered sector trips, because
a groundfish trip declaration is required (NE multispecies DAS or
sector trip), since gear utilized on such trips is capable of catching
groundfish and groundfish retention is permitted.
The GB Cod Fixed Gear Sector has requested an exemption from DSM,
roving monitoring, and hail requirements for vessels using demersal
longline gear, jig gear, and handlines while targeting spiny dogfish in
Massachusetts State waters of NMFS Statistical Area 521, asserting that
its FY 2010 sector data indicate little groundfish incidental catch in
this area. The sector contends that deploying monitors on such trips
provides little value to a program designed to monitor landings of
regulated groundfish.
NMFS believes that this request may pose operational concerns.
Vessels fishing on a directed dogfish trip, outside of an exempted
fishery, must declare a sector trip through VMS or IVR prior to
starting their trip. It is currently impossible to distinguish such a
trip from a directed groundfish trip. Sector discard rates, a crucial
component of ACE monitoring, are calculated based on total catch, not
solely groundfish catch. A reduction in monitoring would decrease
oversight of and confidence in this crucial calculation. The sector did
not address the benefit that this program provides to compliance
monitoring.
28. DSM Requirements When a Trip Has Been Monitored by Either an At-Sea
Monitor or Fishery Observer
The regulations at Sec. 648.87(b)(1)(v)(B)(3) specify that any DSM
service provider must provide coverage that is distributed in a random
manner among all trips, thereby accurately observing sector fishing
activity.
The Northeast Coastal Communities Sector has requested an exemption
from DSM requirements when a trip has been monitored by either an at-
sea monitor or fishery observer, noting that requiring both at-sea
monitoring and DSM is redundant, as the goal of both programs is catch
verification. The sector claims that requiring DSM on trips that also
receive monitoring at-sea is overly burdensome for sector members. At
its November 18, 2010, meeting, the Council asked NMFS to prioritize
DSM for trips that did not receive an at-sea monitor.
29. The Requirement To Delay Offloading Due to the Late Arrival of the
Assigned Monitor
The regulations at Sec. 648.87(b)(5)(i)(C) specify that a vessel
may not offload any fish from a trip that was selected to be observed
by a dockside/roving monitor until the dockside/roving monitor assigned
to that trip is present. The regulations implementing Amendment 16
require each sector to develop, implement, and fund a DSM program,
including the selection and hiring of approved monitoring provider(s).
Because each sector contracts directly with monitoring provider(s), the
sector has the ability, and responsibility, to resolve the late arrival
of an assigned monitor directly with its contracted provider(s).
The GB Cod Fixed Gear Sector has requested a partial exemption from
the above regulation, allowing vessels to begin offloading catch if a
dockside or roving monitor is late. The sector argues that it is the
responsibility of the monitor to ensure timely arrival at monitoring
events, and that delays have negative social and economic impacts for
the sector member being observed, for the dealer, and for other members
that must also wait to offload.
This request, however, poses several operational concerns. First,
confirming the late arrival of a monitor may be difficult, as it would
require verification of the information in the vessel's trip end hail
to the dockside monitor. Second, granting this exemption may promote
misreporting of the offloading locations in an attempt to delay the
arrival of a monitor and avoid monitoring coverage. Additionally, the
sector did not address the benefit that this program provides to
compliance monitoring.
30. Prohibition on Offloading of Non-Allocated Species Prior to the
Arrival of the Monitor
The regulations at Sec. 648.87(b)(5)(i)(C) specify that a vessel
may not offload any fish from a trip that was selected to be observed
by a dockside/roving monitor until the dockside/roving monitor assigned
to that trip is present.
Sustainable Harvest Sectors 1 and 3 have requested an exemption
from the prohibition on offloading of non-allocated species prior to
the arrival of the monitor, to allow for the offload of non-allocated
species prior to the arrival of a monitor. The sectors contend that, on
occasion, dealers request vessels to offload non-allocated stocks, such
as lobster, prior to the offload of groundfish; this exemption would
give additional flexibility to sector members and dealers for the
processing of catch. The sectors propose to require their vessels to
file VMS catch reports and/or a trip end hail reports prior to crossing
the demarcation line to account for total catch. Additionally, the
sector proposes to require captains to sign an affidavit stating that
no allocated stock was offloaded during these instances. The DSM
standards require catch of all stocks to be monitored because sector
discard ratios are calculated based on total catch, not groundfish
catch only. NMFS is concerned, therefore, that granting this exemption
could decrease oversight of, and confidence in, this crucial
calculation.
31. Requirement To Provide a Sector Roster to NMFS by the Specified
Deadline
The regulations implementing Amendment 16, at Sec. 648.87(b)(2),
expanded the requirements for sector operations plan submissions and
specified a due date of September 1 to ensure that the operations plans
and associated analysis are reviewed in time to implement such
operations by the start of the next FY. The deadline for submitting
sector documents is an administrative one, set to ensure sufficient
time to comply with all applicable laws. For FY 2011, NMFS extended the
deadline for sector rosters to December 1, 2010, in response to
industry requests.
The Maine Permit Bank Sector has requested an exemption from the
December 1 deadline to allow for additional time to acquire permits.
Because membership is a prerequisite to sector formation, the Maine
Permit Bank Sector has been notified that it must demonstrate its
compliance with minimum membership requirements (``Rule of 3''), but
that a list of permits that the State expects to purchase by February
1, 2011 (``bid sheets'') would be accepted in the interim. The bid
sheet, thus represents a list of permits offered for sale to the Maine
Permit Bank Sector by their owners. Similar to vessels on a traditional
sector roster, these permits are not bound to the sector for FY 2011 at
this time. Since NMFS is accepting bid sheets, it is possible that any
permits associated with the permit bank sector could also be on the
roster for another sector. Sectors currently account for approximately
99 percent of available ACE, and sectors are free to transfer ACE among
each other during the FY. Consequently, the EA has analyzed the impacts
of each sector's operations as if 100 percent of ACE
[[Page 10868]]
would be harvested by that sector. For permits moving from another
sector to the permit bank, the current analysis already accounts for
the harvest of this ACE within active sectors. Since current sector
rosters account for the vast majority of historic landings, little
additional ACE is anticipated to move from the common pool to sectors,
based on this exemption. Since the development of permit bank
requirements has been a collaborative process, the need for this
exemption was not developed until it was clear that Maine would not
have finalized the purchase of permits by the December 1 roster
deadline. Due to this delay, this exemption is not considered in the
draft EA. The final purchase of permits acquired by the Maine Permit
Bank Sector must be officially documented to NMFS prior to the
publication of the final rule. Setting the deadline for submitting
sector documents is an administrative matter. Therefore, this exemption
request is being highlighted, but not proposed because NMFS has
accommodated the permit bank's needs.
Requested Exemptions Not Being Considered in This Action Because They
Are Prohibited or Were Previously Rejected
Exemptions requested by several sectors, ranging from at-sea
monitoring provisions, discard rate calculation methods, Eastern U.S./
Canada Area requirements, VTR requirements, and NMFS's Office of Law
Enforcement (OLE) confidentiality requirements, are either specifically
prohibited, or fall outside the NE multispecies regulations. In a
letter dated September 1, 2010, NMFS notified the Council that NMFS
interprets the reporting requirement exemption prohibition broadly to
apply to all monitoring requirements, including at-sea monitoring, DSM,
ACE monitoring, and the counting of discards against sector ACE. In
this letter, NMFS also requested that the Council define which
regulations sectors may not be exempted from. On November 18, 2010, the
Council addressed this letter by voting to remove DSM from the list of
regulations that sectors may not be exempted from, but did not take
such action for at-sea monitoring, ACE monitoring, VTR regulations, or
counting of discards against ACE. Northeast Fishery Sectors II, V-X,
and XIII; Sustainable Harvest Sectors 1 and 3; and the Tri-State Sector
requested an exemption from a delayed opening of the Eastern U.S./
Canada Area for trawl gear. However, this is a temporary rule that the
Regional Administrator has the authority to implement, as specified at
Sec. 648.85(a)(3)(iv)(D), to prevent either over-harvesting or to
facilitate achieving the Eastern U.S./Canada Area TACs. Additionally,
the GB Cod Fixed Gear Sector requested an exemption from OLE
confidentiality requirements to receive information about enforcement
actions or concerns from OLE within 24 hr; however, this is not
controlled by regulations implementing the NE Multispecies FMP.
Accordingly, these exemption requests are not proposed in this rule.
As previously stated, Amendment 16 prohibits sectors from
requesting exemptions from year-round closed areas, permitting
restrictions, gear restrictions designed to minimize habitat impacts,
and reporting requirements (excluding DAS reporting requirements).
In addition, sectors requested several exemptions for FY 2011 that
were previously disapproved for FY 2010, but failed to provide new
information or justification for these exemptions. These include VMS
requirements and minimum fish size requirements. The Northeast Fishery
Sectors requested a VMS exemption that would allow a central sector
server to relay member vessel catch reports and logbook data to NMFS.
NMFS previously disapproved this exemption request because of serious
concern that interrupting chain of custody of catch information would
leave the catch information open to tampering. The Northeast Fishery
Sectors provided no new information, justification, rationale, or
mitigation to address this concern. Accordingly, this exemption is not
proposed in this rule. In addition, the GB Cod Fixed Gear Sector and
several of the Northeast Fishery Sectors requested an exemption from
the minimum fish size requirements for allocated stocks. This exemption
was previously disapproved because it would present significant
enforcement issues by allowing two different legal minimum fish sizes
in the marketplace and could potentially increase the targeting of
juvenile fish. The requesting sectors have provided no new information,
justification, rationale, or mitigation to address these concerns.
Sector EA
In order to comply with NEPA, one EA was prepared encompassing all
22 operations plans. The sector EA is tiered from the Environmental
Impact Statement (EIS) prepared for Amendment 16. The EA examines the
biological, economic, and social impacts unique to each sector's
proposed operations, including requested exemptions, and provides a
cumulative effects analysis (CEA) that addresses the combined impact of
the direct and indirect effects of approving all proposed sector
operations plans. The summary findings of the EA conclude that each
sector would produce similar effects that have non-significant impacts.
Visit http://www.regulations.gov to view the EA prepared for the 19
sectors that this rule proposes to approve.
Special Management Program (SMP) Reporting Requirements
Amendment 16 provided the Regional Administrator with the authority
to remove SMP-specific reporting requirements if it is determined that
the reporting requirements are unnecessary. Consistent with the
provisions adopted under Amendment 16, NMFS retained the authority to
reinstate such reporting requirements if it is later determined that
the weekly sector catch reports are insufficient to adequately monitor
catch by sector vessels in SMPs. For FY 2010, the Regional
Administrator determined that daily SMP-specific VMS catch reports for
vessels participating in sectors are unnecessary, because sectors were
allocated ACE for most NE multispecies regulated species and ocean pout
stocks and, therefore, would not be subject to any SMP-specific TACs or
other restrictions on catch; would be responsible for ensuring that
sector allocations are not exceeded; and would provide sufficient
information to monitor all sector catch through the submission of
weekly sector catch reports. For these same reasons, the Regional
Administrator has determined, unless otherwise noted above, that SMP-
specific reporting requirements are not necessary to monitor sector
catch for FY 2011. This exemption from the SMP reporting requirements
for sector vessels would not apply to vessels participating in the
Closed Area (CA) I Hook Gear Haddock SAP, as this SAP includes an
overall haddock TAC that is applicable to both sector and common pool
vessels fishing in this SAP. Therefore, the existing requirement for
sector managers to provide daily catch reports by participating sector
vessels would be maintained for the CAI Hook Gear Haddock SAP only.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act), the NMFS
Assistant Administrator has determined that this proposed rule is
consistent with the NE Multispecies FMP, other provisions of the
Magnuson-Stevens Act, and other applicable law, subject to
[[Page 10869]]
further consideration after public comment.
This action is exempt from review under Executive Order (E.O.)
12866.
An IRFA has been prepared, as required by section 603 of the
Regulatory Flexibility Act (RFA). The IRFA describes the economic
impact that this proposed rule, if adopted, would have on small
entities. The IRFA consists of this section and the SUMMARY section of
the preamble of this proposed rule, and the EA prepared for this
action. A description of the action, why it is being considered, and
the legal basis for this action are contained in the preamble to this
proposed rule and in Sections 1.0, 2.0, and 3.0 of the EA prepared for
this action. A summary of the analysis follows. A copy of this analysis
is available from NMFS (see ADDRESSES).
Economic Impacts on Regulated Small Entities Enrolled in a Sector
This proposed action would affect regulated entities engaged in
commercial fishing for groundfish that have elected to join any one of
the 19 proposed sectors that have submitted operations plans for FY
2010. Any limited access Federal permit issued under the NE
Multispecies FMP is eligible to join a sector (Table 4). The Small
Business Administration (SBA) size standard for commercial fishing
(NAICS code 114111) is $4 million in sales. Available data indicate
that, based on 2005-2007 average conditions, median gross annual sales
by commercial fishing vessels were just over $200,000, and no single
fishing entity earned more than $2 million annually. Although we
acknowledge there are likely to be entities that, based on rules of
affiliation, would qualify as large business entities, due to lack of
reliable ownership affiliation data, we cannot apply the business size
standard at this time. Data are currently being compiled on vessel
ownership that should permit a more refined assessment and
determination of the number of large and small entities in the
groundfish fishery for future actions. For this action, since available
data are not adequate to identify affiliated vessels, each operating
unit is considered a small entity for purposes of the RFA, and,
therefore, there is no differential impact between small and large
entities. As of December 1, 2010, a total of 834 of 1,475 eligible
permits elected to join a sector. Table 4 summarizes the number and
percent of individual permits currently enrolled in a sector for FY
2011, as well as those predicted to be active. Since individuals may
withdraw from a sector at any time prior to the beginning of FY 2011,
the number of permits participating in sectors on May 1, 2011, and the
resulting sector ACE allocations, are likely to change.
Over the past decade, there has been a significant amount of
consolidation in this fishery in response to management measures to end
overfishing of, and to rebuild, groundfish stocks. The recent
implementation of ACLs and AMs, and the expanded use of sectors under
Amendment 16 have affected fishing patterns in ways that cannot yet be
quantified and analyzed. Sector measures were intended to provide a
mechanism for vessels to pool harvesting resources and consolidate
operations in fewer vessels, if desired, and to provide a mechanism for
capacity reduction through consolidation. Reasons why fewer vessels
have fished thus far this year, in comparison to FY 2009, may be
related to owners with multiple vessels fishing fewer vessels, or
vessel owners or sectors using quota differently and waiting to fish
later in the fishing year to maximize revenue in response to some of
the efficiencies gained through the implementation of sector measures
in 2010. It is also likely that some vessels that have not landed
groundfish have received revenue from leasing their groundfish
allocation or have been fishing in other fisheries. Thus, fewer vessels
are actively fishing for and landing regulated species and ocean pout
stocks, with 10 percent of the fishing vessels earning more than half
of the revenues from such stocks since 2005, leading to a seemingly
continuing trend of consolidation in the fishery. However, as alluded
to above, this trend began before the implementation and expansion of
the sector program, and based on limited data available to date, the
trend is not significantly out of proportion to fishing years prior to
the implementation of Amendment 16. Further, most proposed FY 2011
sectors are anticipating no further consolidation than previously
occurred through FY 2010. Five sectors have reported that they
anticipate a smaller percentage of permits to harvest groundfish for FY
2011 as compared to FY 2010. Based upon concerns over consolidation
raised by the public during the development of Amendment 16, the
Council is currently working on a white paper regarding fleet diversity
and accumulation limits, and has agreed to develop an amendment to the
FMP to address concerns identified.
Joining a sector is voluntary. This means that the decision whether
or not to join a sector may be based upon which option--joining a
sector or fishing under effort controls in the common pool--offers the
greater economic advantage. Since sectors would be granted certain
universal exemptions, and may request and be granted additional
exemptions from regulatory measures that will apply to common pool
vessels, sector vessels would be afforded greater flexibility. Sector
members would no longer have groundfish catch limited by DAS
allocations and would, instead, be limited by their available ACE. In
this manner, the economic incentive changes from maximizing the value
of throughput of all species on a DAS to maximizing the value of the
sector ACE. This change places a premium on timing of landings to
market conditions, as well as changes in the selectivity and
composition of species landed on fishing trips.
Unlike common pool vessels, sectors bear the administrative costs
associated with preparing an EA, as well as the costs associated with
sector management, DSM, and at-sea monitoring. However, FW 45 proposes
to change the required coverage level for DSM to the level NMFS is able
to fund, up to 100 percent coverage through FY 2012, prioritizing
coverage for trips that have not received at-sea or electronic
monitoring. The magnitude of the administrative costs for sector
formation and operation is estimated to range from $60,000 to $150,000
per sector, and the potential cost for dockside and at-sea monitoring
ranges from $13,500 to $17,800 per vessel. These estimates serve to
illustrate the fact that the potential administrative costs associated
with joining a sector may be expected to influence a vessel owner's
decision. The majority of these administrative costs was subsidized by
NMFS in FY 2010 and will continue to be subsidized in FY 2011. Whether
these subsidies, which include providing financial support for
preparation of sector EAs, DSM, and at-sea monitoring, will continue
beyond FY 2011 is not known. Nevertheless, these subsidies may make
joining a sector a more attractive economic alternative for FY 2011.
The capability to form a sector in the groundfish fishery was first
implemented in 2004 through Amendment 13. Prior to FY 2010, there were
only two sectors operating and only one sector had been operating
continuously from 2004 to 2010. Available data (Table 5) suggest that
the economic performance of the two sectors that had been operating
prior to FY 2010 was positive. Whether improved profitability
experienced by these two sectors will translate into improved
performance for all 17 sectors that were implemented during FY2010
[[Page 10870]]
is not known since the fishing year is incomplete. Nevertheless, the
analysis conducted for Amendment 16 posited that the combination of
relief from specific regulations and the incentives to change fishing
practices would result in improved ACL utilization compared to TAC use
rates while the majority of the groundfish fleet was still operating
under DAS controls. Using a straight-line projection approach suggests
that for most stocks the use rates for aggregate sector ACLs will be
higher than the average observed TAC use rates compared to FY 2007 and
FY 2008. This assumes that the average weekly catch rates by sector
vessels will remain constant for the remainder of the fishing year.
Further, given substantial differences in ACE across sectors and among
members within sectors, economic performance may be expected to vary
considerably.
Table 4--Summary of the Number and Percent of Individual Permits and Likely Active Permits Currently Enrolled in
a Sector for FY 2011
----------------------------------------------------------------------------------------------------------------
Number of Percent of Number of Percent of
Sector individual individual active active
permits * permits permits * permits **
----------------------------------------------------------------------------------------------------------------
Northeast Fishery Sector II................................. 85 5.63 42 50.60
Northeast Fishery Sector III................................ 95 6.44 49 51.58
Northeast Fishery Sector IV................................. 43 2.78 0 0
Northeast Fishery Sector V.................................. 34 2.24 27 81.82
Northeast Fishery Sector VI................................. 19 1.29 5 26.32
Northeast Fishery Sector VII................................ 20 1.49 15 68.18
Northeast Fishery Sector VIII............................... 20 1.36 16 80.00
Northeast Fishery Sector IX................................. 60 3.73 22 40.00
Northeast Fishery Sector X.................................. 51 3.32 26 53.06
Northeast Fishery Sector XI................................. 47 3.19 21 44.68
Northeast Fishery Sector XII................................ 11 0.75 6 54.55
Northeast Fishery Sector XIII............................... 35 2.37 29 82.86
Fixed Gear Sector........................................... 100 6.71 42 42.42
Sustainable Harvest Sector 1................................ 106 7.05 37 35.58
Sustainable Harvest Sector 3................................ 18 1.15 0 0
Port Clyde Sector........................................... 40 2.85 24 57.14
Tri-State Sector............................................ 19 1.29 9 47.37
Northeast Coastal Community Sector.......................... 30 2.03 27 90.00
Maine Permit Bank Sector.................................... [dagger]3 0.20 0 0
All Sectors................................................. 834 55.66 397 48.36
----------------------------------------------------------------------------------------------------------------
* Number of permits in each sector is from sector operation plans and EAs submitted as of September 10, 2010.
** In 2010, 453 sector vessels were reported to be active vessels.
[dagger] The Maine Permit Bank Sector has submitted a list of prospective permits for purchase and provided
verification that it currently consists of two privately held permits, although it must hold a minimum of
three permits to be considered for approval. The roster will be finalized prior to publication of the final
rule.
Table 5--Year to Date Sector Catches and Projected ACL Use Rates for FY 2010
----------------------------------------------------------------------------------------------------------------
Projected 2007-2008
Percent FY10 sector average
Stock Sector catch Sector weekly ACL utilization
as of October catch rate utilization rate
9 (percent) (percent) (percent)
----------------------------------------------------------------------------------------------------------------
GB Cod.......................................... 29 0.01215 63.2 44
GOM Cod......................................... 42 0.01766 91.9 69
GB Haddock...................................... 8 0.00323 16.8 17
GOM Haddock..................................... 13 0.01766 91.9 51
GB Yellowtail Flounder.......................... 46 0.01934 100.6 117
SNE/MA Yellowtail Flounder...................... 5 0.00205 10.7 174
CC/GOM Yellowtail Flounder...................... 16 0.00680 35.4 55
Plaice.......................................... 23 0.00973 50.6 28
Witch Flounder.................................. 34 0.01398 72.7 24
GB Winter Flounder.............................. 49 0.02037 105.9 48
GOM Winter Flounder............................. 28 0.01147 59.7 NA
Redfish......................................... 14 0.00567 29.5 46
White Hake...................................... 27 0.01118 58.2 114
Pollock\1\...................................... 11 0.00467 24.3 82
----------------------------------------------------------------------------------------------------------------
\1\ The 2010 projection of the Pollock sector use rate is significantly lower than that of the 2008-2009
average. This is because the revised Pollock reference points raised the ACL substantially above the TAC-
levels set for either 2007 or 2008.
The proposed action would provide relief from having to comply with
specified regulations. These regulatory exemptions include a set of
universal exemptions in Amendment 16, as well as the possibility for
individual sectors to request additional exemptions. During FY 2010, a
number of exemptions were requested by individual sectors. To provide
maximum regulatory relief, as well as to reduce the cost of
administering, monitoring, and enforcing a unique set of exemptions for
each sector, these sector-requested exemptions were
[[Page 10871]]
extended to additional sectors for the remainder of FY 2010 through
supplemental rulemaking. The exemptions in this rule were analyzed so
that they mimicked the universal exemptions; that is, any approvable
exemption requested by one sector was approved for all sectors whether
it had been requested or not. However, unlike the universal exemptions,
any of the sector exemptions approved during FY 2010 must be requested
again for FY 2011. The list of these exemptions is included in Section
3.3 and 3.4 of the EA.
Economic Impacts of Exemptions Requested in the Proposed Action
Exemption from the Day gillnet 120-day block out of the fishery
requirement is being requested by the GB Cod Fixed Gear Sector; the
Northeast Coastal Communities Sector; Northeast Fishery Sectors III, V-
VIII, and X-XIII; the Port Clyde Community Groundfish Sector;
Sustainable Harvest Sectors 1 and 3; and the Tri-State Sector. Existing
regulations require that vessels using gillnet gear remove all gear
from the water for 120 days per year. Since the time out from fishing
is up to the vessel owner to decide (with some restrictions), many
affected vessel owners have purchased more than one vessel such that
one may be used while the other is taking its 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 would
allow sector members to realize the cost savings associated with
retiring the redundant vessel. Furthermore, this exemption would
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.
The GB Cod Fixed Gear Sector; Northeast Fishery Sectors III, VI-
VIII, and X-XII; the Port Clyde Community Groundfish Sector;
Sustainable Harvest Sectors 1 and 3; and the Tri-State Sector are
requesting exemption from the prohibition on a vessel hauling gear that
was set by another vessel. The community fixed-gear exemption would
allow sector vessels in the Day gillnet category to effectively pool
gillnet gear that may be hauled or set by sector members. This
provision would 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.
The GB Cod Fixed Gear Sector; Northeast Fishery Sectors III, VI-
VIII, and X-XIII; Sustainable Harvest Sectors 1 and 3; and the Tri-
State Sector have requested to be exempt 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 and provide an opportunity for a substantial
portion of the fleet to improve vessel profitability.
The GB Cod Fixed Gear Sector; Northeast Fishery Sectors III, V-
VIII, and X-XIII; the Port Clyde Community Groundfish Sector;
Sustainable Harvest Sectors 1 and 3; and the Tri-State Sector are
requesting an exemption from the limit on the number of nets (not to
exceed 150) 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.
The GB Cod Fixed Gear Sector; the Northeast Coastal Communities
Sector; Northeast Fishery Sectors II-III and V-XIII; the Port Clyde
Community Groundfish Sector; Sustainable Harvest Sectors 1 and 3; and
the Tri-State Sector are requesting exemption from the 20-day spawning
block out of the fishery requirement. 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 (within a 3-month window) 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 would still provide vessel owners with greater
opportunity to make more efficient use of their vessel.
The GB Cod Fixed Gear Sector; the Northeast Coastal Communities
Sector; Northeast Fishery Sectors III, VI-VIII, and X-XII; the Port
Clyde Community Groundfish Sector; Sustainable Harvest Sectors 1 and 3;
and the Tri-State Sector are requesting exemption from the number of
hooks that may be fished. These exemptions would provide vessel owners
in these sectors with the flexibility to adapt the number of hooks
fished to existing fishing and market conditions. This exemption would
also provide an opportunity to improve vessel profitability. The
exemption from the number of hooks that may be fished has been granted
to the GB Cod Hook Sector every year since FY 2004, and was granted to
the GB Cod Fixed Gear Sector for FY 2010. Approving this exemption for
these additional sectors would extend the potential economic benefits
to more vessels in other sectors.
GB Cod Fixed Gear Sector, the Maine Permit Bank Sector, all
Northeast Fishery Sectors, the Port Clyde Community Groundfish Sector,
Sustainable Harvest Sectors 1 and 3, and the Tri-State Sector request
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 small vessels may lease to. The opposite is true for larger
vessels. Exemption from these restrictions would allow greater
flexibility to lease DAS between vessels of different sizes and may be
expected to expand the market of potential lessees for some vessels.
The efficiency gains of this exemption, if approved, for a requesting
sector would be limited because the exemption would only apply to
leases within and between sectors requesting this exemption. Since DAS
would not be required while fishing for groundfish, the economic
importance of this exemption would be associated with the need to use
groundfish DAS when fishing in other fisheries, for example, monkfish.
The GOM Sink Gillnet Mesh Exemption is being requested by the GB
Cod Fixed Gear Sector; Northeast Fishery Sectors III, VI-VIII, and X-
XII; the Port Clyde Community Groundfish Sector; Sustainable Harvest
Sectors 1 and 3; and the Tri-State Sector. The exemption would allow
the use of 6-inch (15.24-cm) mesh gillnets in the GOM RMA from January
1, 2012 through April 30, 2012. This exemption would provide
participating sector vessels an opportunity to potentially 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.
[[Page 10872]]
The GB Cod Fixed Gear Sector has requested an exemption from the
prohibition on the use of squid or mackerel as bait, or possessing
squid or mackerel on board vessels, when participating in the CA I Hook
Gear Haddock SAP. Providing relief from the bait restrictions would
provide participating sector vessels with greater operational
flexibility to choose the bait that best meets fishing circumstances.
Participating vessels would also be able to use the bait of their
choice, depending on expected catch, as well as the cost of bait.
Sustainable Harvest Sectors 1 and 3 and the Port Clyde Community
Groundfish Sector have requested access to specific blocks within the
GOM Rolling Closure Areas, specifically blocks 138 and 139 during May
and/or access to blocks 139, 145, and 146 during June. These closure
areas were selected primarily to reduce fishing mortality on GOM cod at
a time of year where catch rates had been observed to be high. Given
higher catch per unit effort, sector vessels would be able harvest
available ACE at a lower cost, since less fishing time would be
required to harvest the same amount of available ACE. Whether this
would result in higher profitability is uncertain, since prices during
May and June tend to be lower due to larger supplies and somewhat lower
quality. During FY 2010 average cod prices have been above their
historic average. The price effect of increased supplies of cod
entering the market early in the FY is uncertain, but could offset some
of the cost savings associated with being able to obtain higher catch
rates.
The GB Cod Fixed Gear Sector; Northeast Fishery Sectors II-III, V-
VI, and X-XIII; Sustainable Harvest Sectors 1 and 3; and the Tri-State
Sector are requesting exemption from the regulations that currently
prohibit sector vessels from discarding any legal-size regulated
species allocated to sectors. Sector vessels have had to retain legal-
size unmarketable fish, which requires them to store this fish on the
vessel while at sea, in some cases in large quantities in totes on
deck, creating potential unsafe work conditions. In addition, sector
vessels have had to determine a method of disposal for any unmarketable
fish landed. Anecdotal information indicates that some fish dealers
dispose of unmarketable fish for sector vessels as a courtesy; however,
the scope of this occurrence and any operational costs incurred by the
dealer or vessels is unknown. A partial exemption from this regulation
that would allow sector vessels to discard unmarketable fish would
provide sector vessels more operational flexibility and improve safety
conditions at sea. It would also relieve the burden, if any, on sector
vessels and their dealers to find a way to dispose of the unmarketable
fish once landed.
Northeast Fishery Sectors III, VI-VIII, and X have requested an
exemption from the minimum sink gillnet mesh size in May, thereby
extending the proposed GOM Sink Gillnet Mesh Exemption. Assuming
approval of the proposed GOM Sink Gillnet Mesh Exemption, this
ancillary exemption would provide participating sector vessels an
opportunity to achieve higher profitability. Preliminary estimates
indicate that about half of the available GOM haddock ACE will not be
taken during FY 2010. This does not necessarily mean, however, that a
larger share of the GOM haddock ACE will not be taken, as the FY has
another five months.
The GB Cod Fixed Gear Sector has also requested an exemption from
the requirement that the sector manager submit daily catch reports for
the CA I Hook Gear Haddock SAP, proposing instead that members submit
daily catch reports directly to NMFS. Eliminating the daily catch
reporting by sector managers would provide some administrative relief
to the sector. Reporting burden of individual participating vessels
would remain unchanged, as they would merely change the recipient of
their current daily report. This exemption may result in some cost
savings to the operation of any given sector and therefore reduce the
transactions costs to all sector members, not only to the individual
vessels or sector members that participate in the SAP.
Northeast Fishery Sectors VI-X and XIII have requested an exemption
from the prohibition on pair trawling. Pair trawling was originally
prohibited because of its higher catch rates and impacts to then
declining cod and haddock stocks. Providing an exemption allowing for
pair trawling would provide participating sector vessels with greater
operational flexibility. However, the high catch rates that resulted
from this fishing practice while under DAS management may not be as
advantageous under sector management unless the practice can be used to
selectively target stocks for which a sector has a comparatively large
ACE. That is, characterizing use of pair trawling as highly efficient
may be accurate from a technical standpoint, but may not necessarily be
economically efficient unless catch rates of stocks with limiting ACE
can be reduced or eliminated.
The Northeast Coastal Communities Sector has requested an exemption
from the minimum hook size. This exemption may be expected to improve
operational flexibility for participating sector vessels. Whether the
ability to use alternative hook sizes will translate into improved
profitability is uncertain, particularly if the larger hook does select
for larger fish, which do tend to fetch a premium price. Nevertheless,
the exemption would improve flexibility and may allow delivery of a
broader range of fish sizes to final markets.
Northeast Fishery Sectors II, V-X, and XIII have requested an
exemption from the trawl minimum mesh size when targeting redfish, a
healthy stock. The 6.5-inch (16.51-cm) mesh size has been argued to be
too large to catch Acadian redfish in quantities that would permit
development of a targeted fishery. The proposed exemption would offer
participating sector vessels greater operational flexibility. These
sectors propose that the fishery using this exemption would be
monitored using 100 percent observer coverage, and would require daily
catch reporting to the sector manager. Whether the potential improved
catch rates would offset these added costs is uncertain. As long as the
at-sea monitoring or observer costs are being subsidized, the only
added cost may be the requirement for daily reporting by the sector
manager. The extent to which observer costs will continue to be
subsidized is unknown, but may need to be taken into account when
assessing the potential profitability that developing a targeted
redfish fishery may provide.
Northeast Fishery Sectors II, V-X, and XIII have requested an
exemption from gear restrictions in the U.S./Canada Management Area,
allowing for the use of the 250 x 40-cm Eliminator Trawl TM.
This exemption would allow the use of a configuration of an eliminator
trawl that differs from what is currently approved for specific areas,
including the U.S./Canada Management Area. Allowing this exemption
would offer greater operational flexibility, but would still be limited
to the areas and conditions under which the current eliminator or Ruhle
trawl has already been approved. While this net may be used in open
areas, the use of this net is prohibited in the Special Management
Program, including the SAPs, and Gear Restricted Areas. This exemption
is being requested because the specification for approved gear types
for these areas is too large to be utilized by some of the
participating sector vessels. The extent to which this exemption may
improve economic profitability is uncertain, but may be limited to
vessels
[[Page 10873]]
that have already purchased the gear, may be able to re-rig existing
gear at low cost, and may access the areas where the Ruhle trawl is
already approved.
Sustainable Harvest Sectors 1 and 3, and the Tri-State Sector have
requested an exemption from the trawl gear requirements in the U.S./
Canada Management Area. This exemption would allow the use of any
groundfish trawl gear, provided the gear conforms to regulatory
requirements for using trawl gear to fish for groundfish in the GB RMA.
This exemption would result in greater operational flexibility to
participating sector vessels, as these vessels would be able to better
harvest allocation of ACE. Whether this would result in increased
profitability depends on the ability to achieve cost efficiencies by
reducing the amount and type of gear necessary to prosecute the
groundfish fishery in the U.S./Canada Management Area and elsewhere,
and/or the ability to reduce operating costs if the same amount of ACE
can be taken with less fishing time.
The Tri-State Sector has requested an exemption from the
requirement to power a VMS while at the dock. Maintaining a VMS signal
while at the dock, or tied to a mooring, requires constant power be
delivered to the vessel or constant use of onboard generators at all
times. These requirements do increase the cost of operating a fishing
vessel, whether the vessel is fishing or not. This exemption would
provide the opportunity to reduce the overhead costs of maintaining a
fishing operation and would result in some improved profitability.
The GB Cod Fixed Gear Sector; the Northeast Coastal Communities
Sector; Northeast Fishery Sectors II-III and V-XIII; Sustainable
Harvest Sectors 1 and 3; and the Tri-State Sector are requesting
complete or partial exemptions from DSM requirements. The cost of DSM
for FY 2010 has been subsidized by the NMFS. Based on preliminary data,
the overall average cost associated with DSM averaged about $0.02 per
landed pound of fish. This estimate is based on an agreed formula
between the NMFS and sector managers to calculate reimbursement for DSM
services, which includes a per-pound rate of $0.015, $33 per trip
monitored, and $27 per trip requiring a roving monitor. The estimated
cost per pound landed for monitored trips was based on invoices
received by sectors from May-August 2010. However, not all sectors had
sent in invoices as of the date the average cost reported herein were
estimated, so the actual costs may differ by sector and may be
substantially different once the FY has been completed. Using methods
similar to that used to estimate expected revenues for the FY 2011 and
FY 2012 ACLs (i.e., based on a linear projection of average ACL use
rates and average discard rates), the estimated cost for DSM for FY
2010 would be $616,000, or 0.8 percent of estimated FY 2010 revenues.
Through Amendment 16, DSM was scheduled to be reduced to 20 percent
during FY 2011, and the estimated monitoring cost would be $281,000, or
0.4 percent of the estimated FY 2011 groundfish revenues. The actual
overall average DSM cost per pound landed will be zero for any lease-
only sectors, and may be higher for sectors with below average landings
per trip, since the trip cost gets spread out over fewer pounds.
Similarly, the average cost per pound may be lower for sectors with
higher than average landings per trip. Granting all or a portion of
these exemptions would alleviate all upfront costs associated with this
program, as well as the unreimbursed costs for monitoring of other
stocks, and therefore provide the opportunity to reduce the overhead
costs of operating a fishing vessel, which may result in some improved
profitability.
Economic Impacts of the Alternative to the Proposed Action
The objective of sector management, as originally developed and
implemented under Amendment 13, and expanded under Amendment 16, is to
provide opportunities for like-minded vessel operators to govern
themselves so that they can operate in a more effective and efficient
manner. Sectors developed the proposed operations plans and prospective
members signed binding sector contracts to abide by the measures
specified in the proposed operations plan. NMFS is unable to develop
additional alternatives because this would require NMFS to develop
sector operations plans, which is counter to the intent of sectors, as
outlined in Amendment 16. Accordingly, the proposed operations plans
reflect the management measures preferred by participating vessels.
Therefore, no other alternatives in addition to the No Action and the
proposed action were considered. Under the No Action alternative, none
of the FY 2011 sector operations plans would be approved, and no sector
would be approved to operate in FY 2011. Therefore, no sector would
receive a LOA to fish or an allocation to fish. Under this scenario,
vessels would remain in the common pool and fish under the common pool
regulations. Because of effort control changes made by both Amendment
16 and Framework 44, it is likely that vessels enrolled in a sector for
FY 2011 and forced to fish in the common pool would experience revenue
losses in comparison to the proposed action. It is more likely under
the No Action alternative that the ports and fishing communities where
sectors plan to land their fish would be negatively impacted.
Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule
This proposed rule contains no collection-of-information
requirement subject to the Paperwork Reduction Act.
Regulations under the Magnuson-Stevens Act require publication of
this notification to provide interested parties the opportunity to
comment on proposed sector operations plans and TAC allocations.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 22, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2011-4401 Filed 2-25-11; 8:45 am]
BILLING CODE 3510-22-P