[Federal Register Volume 76, Number 79 (Monday, April 25, 2011)]
[Rules and Regulations]
[Pages 23076-23108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9711]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 110201085-1212-02]
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: Interim final rule; request for comments.
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SUMMARY: This interim final rule partially approves and implements 19
sector operations plans and contracts for fishing year (FY) 2011. NMFS
received sector operations plans and contracts from the following 22
sectors: The Georges Bank (GB) Cod Fixed Gear Sector; the Maine Permit
Bank Sector; the Massachusetts Permit Bank Sector; the New Hampshire
Permit Bank Sector; the Northeast Coastal Communities Sector; Northeast
Fishery Sectors II through XIII; the Port Clyde Community Groundfish
Sector; the Rhode Island Permit Bank Sector; Sustainable Harvest
Sectors 1 and 3; and the Tri-State Sector. This interim final rule
partially approves the operations plans and contracts, and allocates an
annual catch entitlement (ACE) of certain NE multispecies stocks to the
following 19 sectors: The GB Cod Fixed Gear Sector; the Maine Permit
Bank Sector; the Northeast Coastal Communities Sector; Northeast
Fishery Sectors II through XIII; the Port Clyde Community Groundfish
Sector; Sustainable Harvest Sectors 1 and 3; and the Tri-State Sector.
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 not approved to operate
in FY 2011. Certain exemptions proposed in the operations plans have
not been approved, as explained in detail below. Additionally, NMFS is
modifying, for the purposes of this rule, the definition for
``unmarketable'' fish (see Exemption 11) and will accept further
comment on this definition. NMFS is also accepting further comment on
final sector membership. NMFS will publish a subsequent final rule, if
necessary, making any further changes to this definition or in light of
additional comments on changes to membership of sectors since the
publication of this rule.
DATES: Effective May 1, 2011, through April 30, 2012. Written comments
must be received on or before May 10, 2011.
ADDRESSES: You may submit comments on the new definition of
``unmarketable'' fish and changes to sector membership, 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.
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
[[Page 23077]]
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 each sector's final operations plan, contract, the
environmental assessment (EA), and the Final Regulatory Flexibility
Analysis (FRFA) are available from the NMFS Northeast Regional Office:
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries
Service, 55 Great Republic Drive, Gloucester, MA 01930. These documents
are also accessible via the Federal eRulemaking Portal: http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Allison Murphy, Sector Policy Analyst,
phone (978) 281-9122, fax (978) 281-9135.
SUPPLEMENTARY INFORMATION: A proposed rule soliciting public comment on
19 sector operations plans and contracts was published in the Federal
Register on February 28, 2011 (76 FR 10852), with public comments
accepted through March 15, 2011. After review of the public comments,
NMFS has partially approved 19 sector operations plans and contracts
after determining the operations plans to be consistent with the goals
of the NE Multispecies Fishery Management Plan (FMP), as described in
Amendment 16 to the NE Multispecies FMP and other applicable laws, and
in compliance with the proposed measures that govern the development
and operation of a sector as specified in Section 4.2.3 of Amendment
16. Certain exemptions proposed in the operations plans have not been
approved, as explained in detail below.
Background
The final rule for Amendment 13 to the FMP (69 FR 22906, April 27,
2004) implemented the GB Cod Hook Sector in 2004, and the Framework
Adjustment 42 final rule (71 FR 62156, October 23, 2006) implemented
the GB Cod Fixed Gear Sector in 2006. The final rule implementing
Amendment 16 (75 FR 18262; April 9, 2010) revised and expanded the
rules for sectors and authorized an additional 17 new sectors,
including the Northeast Coastal Communities Sector, Northeast Fishery
Sectors I through XIII, the Port Clyde Community Groundfish Sector, the
Sustainable Harvest Sector, and the Tri-State Sector, in accordance
with the revised Amendment 16 rules. Framework Adjustment 45 (FW 45),
which is being implemented concurrently with this action, further
revises the rules for these existing sectors and authorizes five new
sectors (for a total of 24 sectors). The 5 sectors newly authorized by
FW 45 are 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.
In accordance with Amendment 16, the proposed rule for this action
discussed authorization of 22 sector operations plans and contracts for
FY 2011. As discussed in the proposed rule, NMFS received sector
operations plans and contracts from the following 22 sectors: The GB
Cod Fixed Gear Sector; the Maine Permit Bank Sector; the Massachusetts
Permit Bank Sector; the New Hampshire Permit Bank Sector; the Northeast
Coastal Communities Sector; Northeast Fishery Sectors II through XIII;
the Port Clyde Community Groundfish Sector; the Rhode Island Permit
Bank Sector; Sustainable Harvest Sectors 1 and 3; and the Tri-State
Sector. This rule partially approves the operations plans and
contracts, and allocates an ACE of certain NE multispecies stocks to
the following 19 sectors: The GB Cod Fixed Gear Sector; the Maine
Permit Bank Sector; the Northeast Coastal Communities Sector; Northeast
Fishery Sectors II through XIII; the Port Clyde Community Groundfish
Sector; Sustainable Harvest Sectors 1 and 3; and the Tri-State Sector.
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, their operations were not
approved for FY 2011. Since FW 45 revises some rules for all existing
sectors and authorizes an additional five sectors, NMFS suggests that
interested readers review the final rule for FW 45 to fully understand
the measures being implemented in this final rule.
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 NE multispecies 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 total
allowable catch (TAC) is referred to as an ACE. Regional Administrator
approval is required for these sectors 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 potential sector contribution
(PSC) of permits participating in that sector for that FY. Therefore,
sectors will be allocated all regulated multispecies stocks for which
members have landings history, with the exception of Atlantic halibut,
windowpane flounder, Atlantic wolffish, and Southern New England/Mid-
Atlantic (SNE/MA) winter flounder. Sectors will also not be allocated
ocean pout. 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.
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 in accordance with grants awarded to these states.
Terms and conditions for permit banks include: The permit banks may
only transfer out ACE, it may not transfer in ACE; the permit banks 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.
For state permits banks to transfer ACE to approved sectors under
the current regulations, each state permit bank developed and submitted
an operations plan. Although the states of Massachusetts, New
Hampshire, and Rhode Island met deadline requirements when submitting
their operations plans and contracts, they were unable to fulfill
roster requirements in time for their sectors to be considered in this
rulemaking process for FY 2011. The Maine Permit Bank Sector, the only
permit bank sector that met all of the requirements, consists of two
privately held permits, as well as an additional five permits that are
owned by the State of Maine. The permits owned by the State of Maine
must abide by the terms of the MOA.
Sector ACEs
As of February 1, 2011, 836 of the 1,475 eligible NE multispecies
permits, which accounts for 98.8 percent of the historical commercial
NE multispecies landings during the Amendment 16 qualifying period,
have indicated their intent to participate in a sector for FY 2011 (see
Table 1). Following input
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during the public comment period for FW 45, and based on industry
request, NMFS has allowed for a limited opportunity for additional
changes to sector rosters for FY 2011 to accommodate permit holders who
took ownership of their limited access NE multispecies permit(s) after
the December 1, 2010, roster deadline. Reopening the rosters provides
additional flexibility to new permit holders without disrupting the
organization of sectors; however, each sector may decide whether or not
a member may leave the sector and whether or not to accept new members.
This window to reopen FY 2011 sector rosters began on March 23, 2011,
and will end on April 30, 2011. An announcement of this limited
opportunity to reopen sector rosters was sent out to all sector
managers on March 16, 2011, and to all NE multispecies permit holders
on March 23, 2011. All 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, if they so
choose. NMFS will publish final sector ACEs, based upon final rosters
for FY 2011 and common pool sub-ACL totals, as soon as possible after
the start of FY 2011 on May 1, 2011. This final rule responds to public
comments on the proposed rule and implements the approved regulatory
exemptions that were requested by the individual sectors.
Table 2 details the maximum cumulative PSC (a percentage) each
sector will receive based on their rosters as of February 1, 2011.
Tables 3a and 3b detail the maximum ACEs (in thousands of pounds and
metric tons, respectively) each sector will be allocated based on their
February 1, 2011, 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 cumulative PSC of the GB cod and GB haddock allocated
to a sector by the Eastern U.S./Canada Area by the GB cod and GB
haddock TACs, respectively.
Each sector is required to ensure that its ACE is not exceeded
during the FY. Sectors are required to monitor their landings, track
their available ACE, and submit weekly catch reports to NMFS. In
addition, the sector manager is 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 is required to cease all fishing operations in that
stock area until it acquires additional ACE for that stock. Each sector
must also submit an annual report to NMFS and the New England Fishery
Management Council (Council) within 60 days of the end of the FY
detailing all of the sector's catch (landings and discards of all
stocks by the sector), enforcement actions, and pertinent information
necessary to evaluate the biological, economic, and social impacts from
the sector, as directed by NMFS.
In accordance with Amendment 16, at the start of FY 2011, NMFS will
withhold 20 percent of each 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 after May 1, 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 relaxing the May 14
deadline to submit ACE transfers for FY 2010. NMFS will allow sectors
to transfer FY 2010 ACE for 14 days after the date that NMFS provides
final FY 2010 catch data to sectors. NMFS will notify the Council and
sectors of this date in writing.
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Sector Operations Plans and Contracts
All sectors must 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 (19 current
and 5 newly authorized under FW 45) sectors, a total of 19 sectors met
the operations plan deadline and the roster deadline for FY 2011,
including the Maine Permit Bank Sector. Two of the 24 sectors, the GB
Cod Hook Sector and Northeast Fishery Sector I, again elected not to
submit operations plans for FY 2011, and three 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 not approved for operations
in FY 2011. Two of the FY 2011 sectors, Northeast Fishery Sector IV and
Sustainable Harvest Sector 3, will operate as private lease-only
sectors. The Sustainable Harvest Sector 3 has not explicitly prohibited
fishing activity, and may transfer permits onto active vessels. Each
sector operations plan contains the rules under which each approved
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, Amendment 16 contains numerous provisions
that apply to all sector operations plans and sector members. 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 are required to comply with
all Federal fishing regulations, unless specifically exempted by a
letter of authorization (LOA) issued by the Regional Administrator, as
part of the approved 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.
Sector vessels are required to retain all legal-sized allocated
groundfish, unless an exemption is granted allowing sector vessels to
discard legal-sized unmarketable fish at sea (see Exemption 10 below).
Catch (including discards) of all allocated groundfish stocks by a
sector's vessels counts against the sector's ACE, unless the catch is
an element of a separate ACL sub-component, such as groundfish bycatch
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) shall have their groundfish catch
(including discards) on those trips debited against the sector's ACE.
Discard ratios applied to sectors will be determined by NMFS, based on
observed trips.
All vessels that fish in an approved sector, with the exception
noted below, must receive a LOA for FY 2011 to fish under regulations
that apply to the sector in which they are enrolled and to be exempted
from the regulations that otherwise would be applicable if the vessels
were not fishing as a sector vessel. Permits and vessels enrolled in
Northeast Fishery Sector IV, which is a lease-only sector, will not
receive an LOA to fish, as no vessels in that sector are authorized to
actively fish.
Amendment 16 required sectors to develop independent third-party
dockside monitoring programs (DSM) for monitoring landings and
utilization of ACE, and to verify landings at the time they are weighed
by the dealer to certify that the landing weights are accurate as
reported by the dealer. FW 45, which is being implemented concurrently
with this action, changes 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, FW 45 removes DSM requirements (a
reporting requirement) from the list of prohibited exemptions for
sectors.
Each sector operations plan and 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 may be
held jointly and severally liable for ACE overages, discarding of
legal-sized fish, and/or misreporting of catch (landings or discards).
Each sector operations plan and contract submitted for FY 2011
withholds an initial reserve from the sector's sub-allocation to each
individual member to prevent the sector from exceeding its ACE. Each
sector operations plan and contract also details the method for initial
ACE allocation to sector members; for FY 2011, each sector will allow
each member to harvest an amount of fish equal to the amount that
member's permit(s) contributed to the sector's ACE.
In order to comply with the National Environmental Policy Act
(NEPA) in an efficient manner, a single EA was prepared analyzing all
19 operations plans. The sector EA is tiered from the Environmental
Impact Statement (EIS) prepared for Amendment 16. The summary findings
of the EA conclude that each sector will likely produce similar effects
that result in non-significant impacts. An analysis of aggregate sector
impacts was also conducted and Finding of No Significant Impact for the
sector EA were issued by the Regional Administrator on April 13, 2011.
Amendment 16 created several universal exemptions that are
applicable to all sectors, including 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. 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 removes
DSM from the reporting requirements from which sectors may not be
exempted. Sectors may request additional exemptions from NE
multispecies regulations through their sector operations plan.
Additional background information on requested exemptions for FY 2011
can be found in the proposed rule for this action.
Approved FY 2011 Sector Exemption Requests
In addition to the universal exemptions in Amendment 16, sectors
requested 31 additional exemptions from the NE multispecies regulations
in their FY 2011 sector operations plans. After thorough review and
consideration of public comments on
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the exemption requests, NMFS authorizes 17 exemptions from the
following regulations for the individual sectors that requested them,
the first 9 of which were previously approved in FY 2010: (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; (7) DAS Leasing Program length and
horsepower restrictions; (8) prohibition on the possession or use of
squid or mackerel in the Closed Area I (CA I) Hook Gear Haddock Special
Access Program (SAP); (9) sink gillnet mesh size restrictions in the
GOM from January through April; (10) extension of sink gillnet mesh
size restrictions in the GOM through the month of May; (11) prohibition
on discarding; (12) daily catch reporting by Sector Managers for
vessels participating in the CA I Hook Gear Haddock SAP; (13) trawl
gear restrictions in the U.S./Canada Management Area; (14) the
requirement to power a VMS while at the dock; (15) DSM requirements for
vessels fishing west of 72[deg]30' W. long.; (16) DSM requirements for
Handgear A-permitted Sector Vessels; and (17) DSM Requirements for
monkfish trips in the monkfish Southern Fishery Management Area (SFMA).
Details of these exemptions are discussed below.
This interim final rule approves FY 2011 exemption requests only
for sectors that requested those exemptions through their sector
operations plans and contracts. The accompanying EA has analyzed all
exemption requests as if all sectors had requested the exemptions.
Therefore, sectors not granted an approved exemption may request any of
the approved exemptions at any time during the FY, except the
discarding exemption, and could add these exemptions to their
operations plans and contracts through amendments. NMFS will accept
additional public comment on this approach.
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 50 CFR 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
FY. 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. This
exemption is again approved in FY 2011 based on the same rationale.
Approval of this exemption increases the operational flexibility of
sector vessels and is expected to increase profit margins of sector
fishermen. 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 sectors (74 FR 68015,
December 22, 2009; and 75 FR 18113, April 9, 2010, respectively). The
exemption from the Day gillnet 120-day block requirement has been
approved for 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
vessels, thereby reducing costs. This exemption is again approved in FY
2011 based on the same rationale. Consistent with the exemption as
originally approved, the sectors requesting this exemption have agreed
that all vessels utilizing community fixed gear will 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 against hauling another vessel's gear
has been approved for 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.
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 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 under the Monkfish
FMP to be hauled more efficiently by vessels dually permitted under
both FMPs. This exemption is again approved in FY 2011 based on the
same rationale. The exemption from the limitation on the number of
gillnets that may be hauled on GB when fishing under a groundfish/
monkfish DAS has been approved for the GB Cod Fixed Gear Sector;
Northeast Fishery Sectors III, V-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 SNE and MA RMAs (Sec. Sec.
648.80(b)(2)(v) and 648.80(c)(2)(iv), respectively). This exemption was
previously approved in FY 2010, and allows sector Day gillnet vessels
to fish up to a maximum of 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, since each sector is
restricted by an ACE for each stock,
[[Page 23085]]
which caps overall fishing mortality. This exemption is again approved
in FY 2011 based on the same rationale. The exemption from the limit on
the number of gillnets for Day gillnet vessels has been approved for
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. Sec. 648.82(b)(6) and 648.82(g) require
vessels to refrain from fishing in 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 20-day period must be
declared in advance. 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. This exemption is again approved in FY 2011 based on
the same rationale. An exemption from this requirement provides vessel
owners greater flexibility to plan operations according to fishing and
market conditions. The exemption from the 20-day block requirement has
been approved for 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, SNE RMA, and MA RMA 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 more than 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 limitation on 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 is again approved in FY 2011
based on the same rationale. The exemption from the limitation on the
number of hooks that may be fished has been approved for 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 among vessels within individual
sectors, as well as between vessels in different sectors, 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 little redirection of effort
to non-allocated species 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). This exemption is again
approved in FY 2011 based on the same rationale. The exemption from the
length and horsepower restrictions on DAS leasing has been approved for
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. Prohibition on the Possession or Use of Squid or Mackerel in the CA
I Hook Gear Haddock SAP
The restriction on the possession or use of squid or mackerel as
bait in the CA I 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 in 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 has determined that Framework 41 specified that
this bait restriction applied 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 FY 2011. Until the correction rule
becomes effective, this exemption from this bait restriction has been
approved for the GB Cod Fixed Gear Sector.
9. Sink Gillnet Mesh Size Restrictions in the GOM From January Through
April
The regulations require a minimum mesh size of 6.5 inches (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 requirements
allows 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
pilot program originally proposed in Amendment 16 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 on trips in the GOM, however, sector vessels may transit the
GOM RMA with tie-down gillnets, provided they are properly stowed and
not available for immediate
[[Page 23086]]
use in accordance with one of the methods specified at Sec. 648.23(b).
Day gillnet vessels granted the sector exemption from Day gillnet net
limits, as explained under Exemption 4, are not subject to the general
net limit in the GOM RMA, and thus are able to fish up to 150 nets in
the GOM RMA. To maximize the flexibility for vessels fishing under both
exemptions, NMFS is allowing Day gillnet vessels granted both the Sink
Gillnet Mesh Size Restrictions in the GOM exemption and the general net
limit exemption to fish up to 150 stand-up sink gillnets in the GOM RMA
during this period (up to 150 nets total in all RMAs). Day gillnets
vessels participating in a sector that have not also been approved for
the general net limit exemption are restricted to the limit of 50
stand-up sink gillnets during this period. To improve enforceability
and increase flexibility, vessels using this exemption must declare
their intent on a trip-by-trip basis through a VMS form. There is no
limit on the number of nets that participating Trip gillnet vessels are
able to fish with, possess, haul, or deploy, during this period,
because Trip gillnet vessels are required to remove all gillnet gear
from the water before returning to port at the end of a fishing trip.
For additional information pertaining to this exemption, please
refer to the proposed and final supplemental rules for FY 2010 sector
operations plans and contracts (75 FR 53939, September 2, 2010 and 75
FR 80720, December 23, 2010, respectively). The exemption from sink
gillnet mesh size restrictions in the GOM from January through April
has being approved for 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.
10. Extension of the Sink Gillnet Mesh Size Restrictions in the GOM
Through May
For a full description of the Sink Gillnet Mesh Size Restrictions
in the GOM, please see Exemption 9 of this section. As stated above
under Exemption 9, the implementation of the sink gillnet mesh size
restriction in the GOM during the January through April season is
consistent with the pilot program originally proposed in Amendment 16
and is the time period when haddock are most available in the GOM.
Since fishing effort by sector vessels is restricted by ACE for
allocated stocks, overall mortality is capped. Extending this exemption
through May will provide sector vessels the opportunity to potentially
catch more GOM haddock, a fully rebuilt stock, and will also provide
sector participants the opportunity to more fully harvest their
allocation of GOM haddock, thereby increasing efficiency and revenues
for vessel participating in this program. All provisions specified
under Exemption 8 also apply to this exemption. The extension of the
exemption of the sink gillnet mesh size restriction in the GOM through
May has been being approved for the GB Cod Fixed Gear Sector, and
Northeast Fishery Sectors III, VI-VIII, and X.
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)): GB cod, GOM cod, GB haddock, GOM haddock,
GB yellowtail flounder, SNE/MA yellowtail flounder, CC/GOM yellowtail
flounder, plaice, witch flounder, GB winter flounder, GOM winter
flounder, redfish, white hake, and pollock. 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. NMFS
has approved a partial exemption from the requirement to retain all
legal-sized fish for FY 2011 sectors, which will allow sector vessels
to discard these fish. However, all legal-sized unmarketable allocated
fish will be accounted for in the overall sector-specific discard rates
in the same way discards of undersized fish are currently accounted
for, through observer and at-sea monitor coverage. The final
supplemental rule to implement amendments to 17 FY 2010 sector
operations plans and contracts initially defined unmarketable fish as
``any legal-sized fish the vessel owner/captain elects not to retain
because of condition or marketability problems.'' The intent of this
exemption is to permit the discarding of fish that cannot be sold
because of physical damage, not because of market price or
availability; the regulations implementing Amendment 16 were developed
to reduce the potential for any high-grading of catch. Therefore, NMFS
is revising its definition of ``unmarketable'' fish. For the purpose of
this regulatory exemption, ``unmarketable'' fish is re-defined as ``any
legal-sized fish the vessel owner/captain elects not to retain because
of poor quality as a result of damage prior to, or from, harvest.''
NMFS is requesting additional comments on this revised definition of
``unmarketable'' fish and, depending on comments provided by the
public, may further revise the definition in a future action. NMFS will
publish a subsequent final rule, if necessary, with any changes to this
definition. The definition of unmarketable fish will be included in the
sector's LOA.
All vessels in a sector opting for this exemption will be required
to discard legal-sized unmarketable fish at sea on all trips (i.e., not
just on select trips). Legal-sized unmarketable fish, as defined by the
vessel operator, will be prohibited from being landed to prevent the
potential to skew observed discards. NMFS intends to modify the sector-
specific discard rates for each sector utilizing this exemption because
this exemption represents a change to the treatment of unmarketable
fish (from landings to discards). Once the discarding exemption takes
effect and the discard rates have been modified, unmarketable fish
discarded by the sector's vessels on observed trips will be deducted
from the sector's ACE and incorporated into the sector's discard rates
to account for discarding under this exemption on unobserved trips.
This exemption will enhance operational flexibility, foster safer
working conditions for sector vessels, and relieve the burden on sector
vessels and their dealers from having to dispose of the unmarketable
fish upon landing. The determination of what fish should be discarded
under this exemption is at the discretion of the vessel operator, but
must be based on physical damage to the fish. There is an incentive for
vessel operators to retain and market as much of their catch of
allocated stocks as possible to maximize the value of the sector's ACE,
because discarded fish will still count against the sector's ACE and be
incorporated into the sector's discard rates, without any financial
benefit. Thus, it is unlikely that this exemption will lead to
additional mortality, but will provide flexibility to sector vessels.
This exemption is expected to result in negligible impacts to allocated
species, non-allocated species, and bycatch, because discarded
unmarketable fish are already dead. Impacts to protected resources and
the physical environment are also expected to be negligible because
overall effort by sectors is limited by an ACE. Implementation of this
exemption for all sectors may increase safety at sea, and may increase
the expected profit margins of fishermen by eliminating any costs
associated with disposal of unmarketable fish, thereby resulting in
[[Page 23087]]
a positive impact on sector participants. The discarding exemption, in
combination with the required reporting of legal-sized unmarketable
fish discarded, will improve the monitoring of this portion of sector
catch, particularly on unobserved sector trips. NMFS cannot add this
exemption to a sector's operations plan in season, because adjusting
sector-specific discard rates mid-season would disrupt the cumulative
year-long dataset used to monitor the sector's ACE. The discard
exemption has been approved for the GB Cod Fixed Gear Sector; and
Northeast Fishery Sectors XI-XIII.
12. 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 declare 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 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), but reporting requirements were
retained for the CA I Hook Gear Haddock SAP, because NMFS must continue
to monitor an overall haddock TAC that applies to sector and common
pool vessels fishing in this SAP. This rule exempts sector managers
from the daily reporting requirement for the CA I Hook Gear Haddock
SAP.
NMFS evaluated the possibility of using the sector manager's weekly
report, rather than daily reports, to monitor the TAC. Sector weekly
reports are received in a timely enough manner to adequately monitor
other SAPs. However, the weekly reports, in their current form, would
not provide sufficient information, and would require NMFS and all
sectors to update their reporting systems to accommodate any change to
the weekly report to gather sufficient information. Requiring all
sectors to modify their individual systems would produce unnecessary
burden on sectors whose vessels do not participate in this SMP.
However, participating vessels could submit a daily VMS catch report
directly to NMFS containing all required information, analogous to the
requirements for common pool vessels to satisfy this reporting
requirement. Therefore, as proposed, an exemption from the daily catch
reporting requirements for sector managers for member vessels
participating in the CA I Hook Gear Haddock SAP with the requirement
that sector vessels submit daily VMS catch reports directly to NMFS has
been approved for the GB Cod Fixed Gear Sector and the Northeast
Coastal Communities Sector.
13. Trawl 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 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.
An exemption from these specific gear requirements will enhance
operational flexibility for sector vessels while not impacting overall
fishing mortality given that sectors are constrained by the allocated
ACE for each stock. An exemption from the gear requirements in the
U.S./Canada Management Area has been approved for Northeast Fishery
Sectors II and V, the Sustainable Harvest Sectors 1 and 3, and the Tri-
State Sector. Any trawl gear not currently approved for the U.S./Canada
Management Area, but utilized under this exemption, will be included in
the standard otter trawl discard rate strata. For sectors approved to
utilize this exemption, NMFS will apply the final sector-specific FY
2010 standard otter trawl rate derived for stocks in the Western GB
stock area as the initial discard rate for FY 2011, prior to
transitioning into an inseason discard rate based upon observed trips
in those strata.
14. 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 participating in a
sector, must have an operational VMS unit onboard. Additionally, the
regulations at Sec. 648.10(c)(1)(i) require 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
(59 FR 9872; March 1, 1994). While the requirement to use VMS was
delayed until a later action (FW 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. An exemption from the
requirement to power a VMS at the dock request is administrative in
nature, and is expected to have negligible impacts to allocated
species, non-allocated species, protected resources, and the physical
environment. Additionally, this exemption provides operational
flexibility for sector vessels and may help to lower the costs
associated with the operation of a VMS unit. Because sector managers
are ultimately responsible for ensuring that their sector members
adhere correctly to the operations plans requirements, the enforcement
concerns related to powering down at the dock are mitigated. For these
reasons, an exemption from the requirement to power a VMS while at the
dock has been approved for the GB Cod Fixed Gear Sector; the Northeast
Coastal Communities Sector; Northeast Fishery Sectors IV, VI, and X;
the Port Clyde Community Groundfish Sector, and the Tri-State Sector.
Vessels will be granted this exemption provided the vessel is at the
dock and not underway. The Regional Administrator reserves the right to
revoke this exemption, should it be determined that the exemption is
being misused or abused. Vessels granted this exemption and electing to
[[Page 23088]]
power down must submit the appropriate VMS declaration, as specified on
the sector's LOA. Since sectors may only request exemptions from NE
multispecies regulations, this exemption only applies to NE
multispecies requirements; vessels must continue to comply with the
requirements of other FMPs for which the vessel is permitted. For
instance, a vessel in a sector granted this exemption that has a
surfclam/ocean quahog permit would still need to have an active VMS 24
hr a day, 7 days a week.
15. DSM Requirements for Vessels Fishing West of 72[deg]30' W. long.
Upon receiving requests for an exemption from the DSM requirement
(Sec. 648.87(b)(1)(v)(B)(1)) for vessels fishing in SNE and MA waters
during FY 2010, 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
voted to remove DSM from the list of prohibited exemptions.
Several Northeast Fishery Sectors and the Sustainable Harvest
Sector proposed exemptions from areas in the SNE and MA RMAs; the
Northeast Fishery Sectors requested an exemption from DSM requirements
when fishing in certain statistical areas (615, 616, 621, 622, 623,
625, 626, 627, 631, 632, 633, 635, 637, and 638) and the Sustainable
Harvest Sector requested an exemption from DSM requirements for vessels
fishing west of 72[deg]30' W. long. All noted that historical data
indicate that little groundfish incidental catch has been observed in
these areas, and monitoring of such trips is burdensome and not a
beneficial use of financial resources. Using VMS declarations and
Vessel Trip Report (VTR) data, NMFS has verified that little groundfish
has been landed from these areas. For example, VTR data from FY 2009
indicates that of 1,220 groundfish trips fishing west of 72[deg]30' W.
long., 74 trips (approximately 6 percent) landed a total of 11,345 lb
(5,146.01 kg) of groundfish. Similarly, VTR data available from FY 2010
(May 1, 2010 through February 3, 2011) indicates that 8 out of 390
trips (2 percent) fishing west of this line landed approximately 1,500
lb (680.39 kg) of groundfish.
NMFS believes that one exemption area based on a longitudinal line
will better facilitate enforcement and, therefore, has approved the
request for a southern boundary drawn along the 72[deg]30' W. long.
line, where vessels that fish exclusively west of this line on a
fishing trip would be exempted from DSM requirements for that trip.
Vessels fishing under this exemption must stow all gear capable of
catching groundfish consistent with the regulations at Sec. 648.23(b)
while steaming to or from areas west of 72[deg]30' W. long. Sectors
electing to utilize this exemption must coordinate with their
contracted DSM providers to establish a method to exclude these trips
from DSM.
Trip start and trip end hails are used by NMFS to coordinate the
deployment of enforcement resources in monitoring offloads. Therefore,
NMFS will continue to require vessels utilizing this exemption to
comply with all hail requirements. An exemption from DSM requirements
for vessels fishing west of 72[deg]30' W. long. has been approved for
the GB Cod Fixed Gear Sector, Northeast Fishery Sectors III, V-VI, X-
XII, Sustainable Harvest Sectors 1 and 3, and the Tri-State Sector; as
well as Northeast Fishery Sectors VII,VIII, and XIII, which requested
an exemption from DSM requirements when fishing in certain statistical
areas.
16. DSM Requirements for Handgear A-Permitted Sector Vessels
The FY 2011 proposed rule included two requests for exemption from
DSM requirements (Sec. 648.87(b)(1)(v)(B)(1)) for vessels using hook
gear (Exemption 22: DSM Requirements for Jig Vessels and Exemption 26:
DSM, Roving Monitoring, and Hail Requirements for Hook-only or Handgear
Vessels), noting that vessels utilizing this gear type are among the
smallest operators, have historically landed small amounts of
groundfish, and are able to target certain species with little
incidental catch of other allocated groundfish species. The sectors
pointed out that the cost of monitoring these trips is
disproportionately high, due to the comparatively small amount of catch
that this gear type yields, and that the proceeds from these trips may
be less than the cost of deploying monitors.
FW 45 removes DSM requirements in FY 2011 for Handgear A- and B-
permitted vessels, as well as for Small Vessel-permitted vessels
(Category HA, HB and C, respectively) in the common pool, because the
small quantities of groundfish landed by these permit categories would
make monitoring such trips uneconomical. Consistent with flexibility
provided for Handgear-permitted vessels in FW 45, NMFS has partially
approved the two exemption requests highlighted above, allowing limited
access Handgear A-permitted sector vessels to be exempt from DSM
requirements. As explained in the proposed rule, hail requirements
(including trip start and trip end hails) remain reporting
requirements, and sectors may not be exempted from such provisions.
Additionally, hails are used by NMFS to coordinate the deployment of
enforcement resources in monitoring offloads. An exemption from DSM
requirements for Handgear A-permitted sector vessels has been approved
for the GB Cod Fixed Gear Sector, the Northeast Coastal Communities
Sector, and Northeast Fishery Sectors VI and X.
17. DSM Requirements for Monkfish Trips in the Monkfish SFMA
Amendment 13 specified that sectors are responsible for monitoring
sector catch, and Amendment 16 expanded this requirement. Unless a
vessel is fishing in a NE multispecies exempted fishery specified in
Sec. 648.80, directed monkfish, skate and dogfish trips are considered
a sector trip. Several sectors requested exemptions from DSM while on
directed fishing trips for monkfish, skate, and/or dogfish, contending
that: Data collected from observed FY 2010 trips demonstrate that
little groundfish incidental catch occurs in these fisheries, making
the cost of DSM per pound of groundfish too low to support it; and that
the implementation of DSM in FY 2010 has not met the objectives stated
in Amendment 16 in an economically efficient manner.
NMFS cited several operational concerns about exempting these trips
from DSM in the proposed rule for this action. Vessels fishing on a
directed monkfish, dogfish, or skate trip, outside of an exempted
fishery, must declare a NE multispecies DAS or sector trip through VMS
or IVR prior to starting their trip because the gear utilized on such
trips has the ability to catch groundfish, and because groundfish
retention is permitted. It is currently impossible to distinguish most
directed fishing trips for monkfish, skate and/or dogfish from directed
fishing trips for groundfish because neither the skate nor the spiny
dogfish FMPs currently require VMS. It is not possible for a groundfish
action to implement VMS requirements for fisheries managed under other
FMPs.
Trawl vessels fishing on a NE multispecies DAS or on a sector trip
in the Southern New England RMA must use a minimum 6-inch (15.2-cm)
diamond mesh or 6.5-inch (16.5-cm) square mesh through the body and
6.5-inch (16.5-cm) square or diamond mesh applied to the codend of a
trawl net (648.80(b)(2)(i)). Day and Trip gillnet vessels must fish
with a minimum mesh size of 6.5 inches (16.5 cm) throughout the entire
net (Sec. 648.80(b)(2)(iv)). Monkfish management measures at
[[Page 23089]]
Sec. 648.91(c)(1)(i) require vessels fishing under the monkfish DAS
program with trawl gear in the SFMA to utilize a minimum 10-inch (25.4-
cm) square or 12-inch (30.5-cm) diamond mesh throughout the codend and
for at least 45 continuous meshes forward of the terminus of the net.
The monkfish regulations also require vessels fishing under the
monkfish DAS program with gillnet gear to fish with a minimum diamond
mesh size of 10 inches (25.4 cm) or larger (Sec. 648.91(c)(1)(iii)).
Vessels that are issued both monkfish limited access and NE
multispecies limited access permits must comply with the more
restrictive set of management measures. Therefore, a vessel that is
fishing under concurrent monkfish DAS and NE multispecies DAS on a
sector trip must abide by the more restrictive monkfish gear
requirements.
Since publication of the proposed rule for this action, NMFS was
able to identify a subset of groundfish trips under concurrent
monkfish/NE multispecies DAS. Data from VTRs from April 2010 through
March 2011 for this subset of trips show sector trips declared into the
SFMA monkfish fishery using 10-inch (25.4-cm) or larger mesh, as
required in the Monkfish FMP, landed only a small amount (1,248 lb, or
566.1 kg) of groundfish on 18 trips out of the 847 trips declared in
the monkfish SFMA through March, 31, 2011. Based on this information,
NMFS has approved an exemption from dockside monitoring for sector
trips declared into the SFMA when fishing on a concurrent monkfish/NE
multispecies DAS trip provided that the vessel fishes the entirety of
its trip in the SFMA. Sector vessels utilizing this exemption must have
non-conforming gear stowed as specified in Sec. 648.23(b), and comply
with dockside monitoring hail requirements specified at Sec.
648.87(b)(5)(i)(A). Sector vessels utilizing this exemption must
determine with their dockside monitoring provider how to notify their
provider that a given sector trip is utilizing this exemption.
Therefore, NMFS has partially approved an exemption from DSM
requirements for directed monkfish trips for gillnet and trawl vessels
on concurrent NE multispecies and monkfish DAS trips when declared into
the monkfish SFMA and fishing with 10-inch (25.4-cm) or greater mesh
size nets for the Northeast Coastal Communities Sector; Northeast
Fishery Sectors III, V-X, and XIII; and the Tri-State Sector.
Special Management Program (SMP) Reporting Requirements
Amendment 16 provided the Regional Administrator with the authority
to remove SMP-specific reporting requirements for sectors 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 were unnecessary, because
sectors were allocated ACE for most NE multispecies regulated species,
and ocean pout, 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 will not apply to vessels participating
in the 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
is maintained for the CA I Hook Gear Haddock SAP only.
Disapproved Exemption Requests
After completing an initial review of the 19 sector operations
plans and contracts submitted as of September 1, 2010, NMFS discussed
all sector exemption requests in the proposed rule for this action, and
highlighted exemption requests of concern when soliciting public
comment. Public comment that was received pertaining to these
exemptions did not provide new data or sufficient additional rationale
to mitigate concerns raised by NMFS in the proposed rule. Due to the
fact that no new information was received by the public that would
provide sufficient rationale to grant such exemption requests,
exemption requests from the following regulations have not been
approved by NMFS for FY 2011: Access to GOM Rolling Closure Areas in
May and June; prohibition on pair trawling; minimum hook size
requirements for demersal longline gear; minimum trawl mesh size
requirement; Ruhle and haddock separator trawl requirements to utilize
the 98.4-inch x 15.7-inch (250-cm x 40-cm) Eliminator Trawl in areas
where these gear types have previously been approved; all DSM and
roving monitoring requirements; DSM requirements for hook vessels when
the sector has caught less than 10,000 lb (4,535.9 kg) of groundfish
per year; DSM requirements when fishing in several mid-Atlantic NMFS
Statistical Areas; DSM, roving monitoring, and hail requirements for
vessels using demersal longline, jig and handgear while targeting spiny
dogfish in Massachusetts state waters in NMFS Statistical Area 521; DSM
requirements when at-sea monitoring has previously observed the trip;
the requirement to delay offloading due to the late arrival of the
assigned monitor; the prohibition of offloading non-allocated stocks
prior to the arrival of the monitor; and the requirement to provide a
sector roster to NMFS by the specified deadline. These requests and
NMFS's decisions on them are discussed below.
18. Access to GOM Rolling Closure Areas in May and June
Exemptions from GOM Rolling Closure Areas, specifically blocks 138
and 139 during May and/or access to blocks 139, 145, and 146 during
June, for FY 2011 are disapproved for the same reasons that these
exemptions were ultimately disapproved in the final rule implementing
the FY 2010 sector operations plans. This request is disapproved
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. In addition, this request has been disapproved because that
the existing GOM Rolling Closure Areas provide some protection to
harbor porpoise and other marine mammals.
The sectors requesting this exemption for FY 2011 asserted that the
GOM Rolling Closure Areas were originally intended as mortality
closures and are therefore now unnecessary because fishing mortality
for sectors is capped by the ACE allocated for each groundfish stock.
They also argued that vessels fishing in the requested closed areas
would provide information, which could serve as a pilot study for
future use of these areas and times by all sectors.
One sector noted that Table 177 in the EIS for Amendment 16
indicates that May is not a particularly important time for groundfish
spawning, with the exception of plaice and haddock. While
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previous actions addressed the protection of spawning cod, NMFS
believes that the protection of spawning stocks of all species is
relevant, and necessary to the rebuilding and maintaining of rebuilt
stocks.
FW 45 includes a closure of the Whaleback region of the GOM in June
to protect spawning cod. In addition, a scientific paper (Stock
Identification of Atlantic Cod in U.S. Waters Using Microsatellite and
Single Nucleotide Polymorphism DNA Analyses by Wirgin et al., 2007)
indicates that there is some cod spawning in the GOM in June, which
supports this decision.
One sector proposed a strategy to minimize the impacts to spawning
fish, whereby the harvesting of any species in these areas and times
would be restricted 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 were
harvested. Additionally, that sector proposed to implement a program to
notify the sector manager and other vessels if spawning aggregations
and/or marine mammals were detected in these areas. NEFOP does not
currently collect data on spawning activities; therefore, this is not a
viable option to limit the impacts on spawning aggregations of fish.
Ancillary benefits from the GOM Rolling Closure Areas afford
protection to harbor porpoise and other marine mammals. Further,
increased harbor porpoise interactions could trigger Coastal GOM
Consequence Closure Areas, as specified in the Harbor Porpoise Take
Reduction Plan, resulting in the closure of the GOM to all gillnet
gear, including gear deployed by both sector and common pool vessels.
Given these concerns, it is not prudent to allow further exemptions
from the GOM Rolling Closure Areas at this time.
19. Prohibition on Pair Trawling
The prohibition to prohibit pair trawling in the NE multispecies
fishery was originally implemented through an emergency rule in 1993
(58 FR 32062; June 8, 1993), and made permanent in Amendment 5 (59 FR
9872; March 1, 1994). This prohibition was originally implemented to
protect cod and haddock because of the high efficiency of this gear and
the need to drastically reduce fishing effort on these stocks. Several
Northeast Fishery Sectors requested an exemption from the pair trawling
restriction for FY 2011 to allow pairs of vessels to utilize either the
Ruhle Trawl or the Eliminator Trawl, asserting that sectors are managed
under an ACE and should be exempt from effort controls. These sectors
asserted that the exemption would enable participating vessels to
harvest the sector's ACE more efficiently and economically.
NMFS raised concerns in the proposed rule for this action that the
impacts and effects of these gear configurations have not been studied.
NMFS believes that pair trawling using the Ruhle Trawl or Eliminator
Trawl could diminish the established selectivity of these gears through
increased herding of fish, and could result in increased catch of
prohibited stocks, for which sectors have no ACE and little incentive
to reduce catch. In addition, NMFS has observed an increase in
interactions between bottom trawl fisheries on GB and Atlantic white-
sided dolphins, a protected species, and is concerned that granting
this exemption could increase these interactions. For these reasons and
concerns, NMFS has disapproved the exemption from the prohibition on
pair trawling.
20. Minimum Hook Size Requirements for Demersal Longline Gear
The minimum longline gear size of 12/0 was first implemented
through Amendment 13 to reduce the catch of small fish and improve
their survivability, as well as to reduce overall effort in the hook
fishery. The Northeast Coastal Communities Sector requested an
exemption from this regulation in FY 2011 to target flatfish, stating
this exemption would allow its members to more effectively harvest the
sector's ACE and increase profit margins for sector fishermen.
Due to concern that this exemption would increase catch of sublegal
fish and result in recruitment overfishing, and that potential changes
to size selectivity of the fishery would be inconsistent with those
used to determine current Allowable Biological Catch levels, NMFS has
disapproved the exemption from the minimum hook size requirements for
demersal longline gear.
21. Minimum Mesh Size Requirements on Targeted Redfish Trips
The current minimum mesh size requirements at Sec. 648.80 were
implemented to provide protection to spawning fish and increase the
size of targeted fish. Several Northeast Fishery Sectors requested an
exemption from the current minimum mesh size codend for targeted
redfish trips in FY 2011; replacing this requirement with a 5-inch
(12.7-cm) minimum mesh size codend when fishing on directed redfish
trips, stating that this reduced codend mesh size could increase
operational flexibility and profit margins of sector fishermen.
As stated in the proposed rule for this action, 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, which will include determining the
success of various mesh sizes within the fishery. Recognizing that
there is an established mechanism through the Council for the review
and incorporation of scientific research, NMFS believes that the
exemption request from minimum mesh size requirements on targeted
redfish trips is premature, and has, therefore, not approved this
request.
22. Ruhle and Haddock Separator Requirements To Utilize the 98.4-inch x
15.7-inch (250-cm x 40-cm) Eliminator Trawl
NMFS has previously authorized the use of the Ruhle Trawl (f.k.a.,
Eliminator Trawl and Haddock Rope Trawl) as one of the gears required
to be used in the B DAS Program (Sec. 648.85(b)(6)(iv)(J)), Eastern
U.S./Canada Haddock SAP (Sec. 648.85(b)(8)(v), and the Eastern U.S./
Canada Area (Sec. 648.85(a)(1)(iii)). NMFS approval of this gear was
based upon a recommendation from the Council, following review of a
study that demonstrated that this experimental net was successful at
targeting haddock and significantly reducing the catch of other
groundfish species. Several of the Northeast Fishery Sectors requested
an FY 2011 exemption to utilize a smaller version of the approved Ruhle
trawl, i.e., the 98.4-inch x 15.7-inch (250-cm x 40-cm) Eliminator
Trawl, in areas and programs where the Ruhle trawl has been approved as
an acceptable gear, asserting that this gear will provide sector
members with greater flexibility, as many vessels are too small to
utilize the currently approved version of the net. The sectors cited
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, 2006, which indicated that this smaller net may reduce the
catch of major stocks of concern, while allowing vessels to selectively
target haddock.
The results of the smaller-scale trawl study were reviewed at the
March 16, 2011, Research Steering Committee (RSC) meeting. At that
meeting, the RSC determined that the statistical analysis presented was
not appropriate to
[[Page 23091]]
measure the performance of the gear against the control and requested
additional statistical analysis of the results before continuing their
review of the study.
There is an established mechanism for the incorporation of
additional gear types for special management programs through review by
the RSC and approval by the Council, and approval of this exemption
request would be inconsistent with this process. Based on this, the
exemption request from Ruhle and Haddock Separator requirements to
utilize the 98.4-inch x 15.7-inch (250-cm x 40-cm) Eliminator Trawl has
been disapproved. Currently, there is no prohibition against vessels
using this smaller-scale trawl net outside of SAPs and the Eastern
U.S./Canada Area.
23. All DSM and Roving Monitoring Requirements
The DSM program was implemented under Amendment 16 to ensure that
catch is accurately monitored to bolster compliance monitoring. For FY
2011, several sectors requested an exemption from all DSM requirements
at Sec. 648.87(b)(1)(v)(B)(1), arguing that there is little value to
the program, and that it is not meeting its objectives as an
enforcement tool.
At its November 18, 2010, meeting, the Council voted to alter
several of the DSM provisions originally implemented by Amendment 16,
including setting a goal of 100-percent DSM and prioritizing DSM for
trips that did not receive an at-sea monitor, and removing DSM from the
list of reporting requirements, thereby removing this requirement from
the list of prohibited sector exemptions. These provisions were
included in FW 45, and approved by NMFS. The Council's modifications to
DSM, as highlighted in their comment on the proposed rule for this
action (Comment 28), do not support exemptions from DSM for all trips.
Therefore, NMFS has disapproved the request for an exemption from all
DSM and roving monitoring requirements.
NMFS acknowledges that the DSM program could be strengthened and is
modifying DSM requirements through FW 45 for the start of FY 2011 to
include provisions such as inspection of fish holds, to help ensure
better compliance monitoring, the primary objective of the program.
24. DSM Requirements for Hook Vessels When the Sector Has Caught Less
Than 10,000 lb (4,535.9 kg) of Groundfish per Year
VTR data collected through February 2011, document that hook
vessels, i.e., handgear and longline vessels, have landed approximately
2.3 percent of the total groundfish catch thus far for FY 2010 (May 1,
2010-March 21, 2010); of this amount, longline gear landed 2.13 percent
of the total groundfish catch. Although handgear vessels represent a
small portion of this amount, FW 45, as approved by NMFS, exempts
handgear permitted vessels from DSM. Unless otherwise exempted by the
Council, the current regulations at Sec. 648.87(b)(1)(v) require catch
of all stocks on sector trips to be monitored, to help ensure the
accuracy of the total catch being documented by dealers, which is used
to calculate sector discards. The sector requested that this exemption
start once a certain threshold of fish is caught.
Implementation of a DSM program mid-year would not meet the
requirements that trip selection be random and representative. Further,
the threshold of 10,000 lb (4,535.9 kg) is arbitrary, and could be
construed as unfair to vessels fishing other gear types with minimal
pounds caught for the year. Therefore, NMFS has disapproved the request
for an exemption from DSM requirements for hook vessels when the sector
has caught less than 10,000 lb (4,535.9 kg) of groundfish per year.
25. DSM Requirements When Fishing in Certain Mid-Atlantic (MA) Areas
Several Northeast Fishery Sectors requested an exemption from DSM
requirements at (Sec. 648.87(b)(1)(v)(B)(1)) 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 (Sec. 648.87(b)(1)(v)(B)(1)). The sectors pointed 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. NMFS's VTR data indicate
that 1,222 trips were taken within these areas during FY 2009, and 374
trips were taken, thus far, in these areas in FY 2010 (May 1, 2010-
February 3, 2011). These data showed that none of the trips from FY
2009 or 2010 landed any groundfish. Many of the sectors' reasons for
submitting this exemption request are addressed through the approval of
Exemption 15, a similar exemption request from DSM requirements for
vessels fishing west of 72[deg]30' W. long., which represents roughly
the same area as described in this exemption. Because Exemption 15 was
comparable, and would more easily facilitate enforcement efforts by
setting a longitudinal line rather than a statistical area boundary,
NMFS approved Exemption 15. Exemption 25 has been disapproved for FY
2011.
26. 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 spiny
dogfish trips are considered sector trips. The GB Cod Fixed Gear Sector
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
(NMFS Statistical Area 521) (Sec. 648.87(b)(1)(v)(B)(1)), stating that
its FY 2010 sector data indicate little groundfish incidental catch in
this area and that deploying monitors on such trips would provide
little value to a program designed to monitor landings of regulated
groundfish.
Vessels fishing on a directed dogfish trip, outside of an exempted
fishery, must declare a sector trip through the NE multispecies VMS or
IVR declarations prior to starting their trip because the gear utilized
on such trips have the ability to catch groundfish, and because
groundfish retention is permitted. It is currently impossible to
distinguish such a trip from a directed groundfish trip because the
declaration is a requirement of the NE Multispecies FMP and because the
Spiny Dogfish FMP does not currently require VMS. Granting this
exemption would therefore pose operational issues that would be
difficult to resolve. Regulations require catch of all stocks on sector
trips be monitored, to help ensure the accuracy of the total catch
being documented by dealers, which is used to calculate sector discard
ratios. Additionally, as previously stated, sectors are prohibited from
being exempted from hail requirements, which are considered to be
reporting requirement. For these reasons, NMFS has disapproved an
exemption from DSM, roving monitoring, and hail requirements for
vessels using demersal longline Gear, jig gear, and handgear while
targeting spiny dogfish in Massachusetts state waters.
27. DSM Requirements When a Trip Has Been Monitored by Either an At-Sea
Monitor or Fishery Observer
The Northeast Coastal Communities Sector requested an exemption
from DSM requirements (Sec. 648.87(b)(1)(v)(B)(1)) when a trip has
been monitored by either an at-sea monitor or fishery observer, stating
that
[[Page 23092]]
requiring both at-sea monitoring and DSM is redundant, as the goal of
both programs is catch verification.
At its November 18, 2010, meeting, the Council asked NMFS to
prioritize DSM for trips that did not receive an at-sea monitor (if
100-percent DSM was not possible), and included this provision in FW
45. The final rule implementing FW 45, which is being implemented
concurrently with this action, implements prioritization of dockside/
roving monitor coverage for trips that do not have an observer, at-sea
monitor, or approved electronic monitoring equipment. Because NMFS is
addressing this exemption through alternate rulemaking, it is not being
approved through this rule.
28. The Requirement To Delay Offloading Due to the Late Arrival of an
Assigned Dockside 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).
The GB Cod Fixed Gear Sector requested a partial exemption from the
above regulation, allowing vessels to begin offloading catch if a
dockside or roving monitor is late, arguing that it is the
responsibility of the monitor to ensure timely arrival at monitoring
events.
In the proposed rule for this action, NMFS highlighted several
operational concerns with this exemption request. Because each sector
contracts directly with a 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). For these reasons,
this exemption has been disapproved for FY 2011.
29. Prohibition of Offloading Non-Allocated Species Prior to the
Arrival of the Monitor
When selected to be observed by a dockside/roving monitor, a vessel
may not offload any fish from a trip until the dockside/roving monitor
assigned to that trip is present (Sec. 648.87)(b)(5)(i)(C)).
Sustainable Harvest Sectors 1 and 3 requested an exemption from the
prohibition of offloading non-allocated species prior to the arrival of
the monitor. The sectors contend that, on occasion, dealers request
vessels to offload non-allocated stocks, such as lobster, prior to the
offload of groundfish and that this exemption would give additional
flexibility to sector members and dealers for the processing of catch.
The Amendment 16 DSM standards require catch of all stocks to be
monitored, to help ensure the accuracy of the total catch being
documented by dealers. Additionally, NMFS remains concerned that
granting an exemption for components of a vessel's catch could create a
loophole in the existing regulations. Therefore, for compliance
purposes, NMFS has disapproved this exemption request, and retains the
Amendment 16 requirement to observe the offload of the entire catch
from sector trips.
30. Requirement To Provide a Sector Roster to NMFS by the Specified
Deadline
The regulations implementing Amendment 16 require that sector
operations plan submissions must be submitted to NMFS by September 1 of
each year (unless the operations plan is for multiple years), to ensure
that the operations plans and associated analyses are reviewed in time
to implement such operations by the start of the next FY (Sec.
648.87(b)(2)). Several administrative roster deadline extensions were
provided by NMFS for FY 2011. Setting the deadline for submitting
sector rosters is an administrative matter. Therefore, this exemption
request was highlighted in the proposed rule, but not proposed because
NMFS was able to administratively accommodate these submission deadline
extensions. Therefore, this exemption has not been approved for FY
2011.
Requested Exemptions Not 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. For a more
detailed discussion, see the proposed rule for this action.
Comments
Nine letters, each containing several comments, were submitted from
several entities: An attorney on behalf of an undisclosed number of
individuals, three sectors, one sector support organization, one
industry organization, one non-governmental organization, the New
England Fishery Management Council (Council), and the Massachusetts
Division of Marine Fisheries (DMF). Only comments that were applicable
to the proposed measures, including the analyses used to support these
measures, are responded to below.
General Sector Issues
Comment 1: Three comments were received supporting NMFS's proposal
to relax the 14-day deadline for the submission of ACE transfer
requests after the end of the FY.
Response: NMFS acknowledges that the current regulatory text
requiring ACE transfers to be completed within 14 days of the end of
the FY is insufficient; therefore, an extension will be granted for FY
2010, allowing sector managers additional time to submit ACE transfers.
Comment 2: Two comments were received pertaining to the costs
associated with the implementation of sector management. The Northeast
Coastal Communities Sector asserted that monitoring costs are
excessive, especially for small vessels and vessels operating out of
remote ports. An individual noted that the cost of sectors is high in
comparison to the gross value of landings.
Response: For FY 2010, NMFS provided funding to sectors for hiring
a manager, the writing of an operations plan, reimbursement of DSM
costs, and for the costs of a contractor to prepare the sector EAs.
NMFS anticipates that funding will be available to provide similar
reimbursement in FY 2011. Additionally, NMFS is granting exemptions
from DSM requirements to certain gear and permitted vessels, as well as
for vessels fishing exclusively west of 72[deg]30' W. long. NMFS
acknowledges that there are additional costs for sector vessels under
this co-management system. The costs associated with sector management
and the responsibility of sector managers monitoring their own
allocation are exchanged for the ability to fish with exemptions from
certain NE multispecies regulations. As outlined above, joining a
sector is voluntary. Given that 57% of permits have joined a sector in
FY 2011, it appears that sectors remain a better choice for many NE
multispecies limited access permit holders over the alternative of
fishing in the common pool fishery. As we move forward, NMFS will
continue to work with the sectors to evaluate and reduce costs
associated with sector management, where it can.
Comment 3: The Northeast Sector Service Network, Inc. (NESSN),
representing Northeast Fishery Sectors II through XIII noted, and the
Northeast
[[Page 23093]]
Seafood Coalition (NSC) concurred, that sectors, in general, are
constrained by their allocated ACE, as adjusted by transfers, and
assert previous effort control management measures should no longer be
applicable.
Response: NMFS acknowledges that many effort control measures are
not applicable when vessels are constrained by ACE. The regulations
implementing Amendment 16 relieved sectors of some of these effort
control measures through universal exemptions, e.g., DAS requirements.
In addition, sectors have the opportunity to request exemptions from
additional specific NE multispecies management measures through their
operations plan, subject to NMFS's approval. For FY 2010, and again for
FY 2011 through this rule, sectors are exempt from the following
requirements: 120-day block out of the fishery required for Day gillnet
vessels; 20-day spawning block out of the fishery required for all
vessels; limitation on the number of gillnets imposed on Day gillnet
vessels; prohibition on a vessel hauling another vessel's gillnet gear;
limitation on the number of gillnets that may be hauled on GB when
fishing under a groundfish/monkfish DAS; limits on the number of hooks
that may be fished; DAS Leasing Program length and horsepower
restrictions; GOM Sink Gillnet Mesh Exemption; and bait restrictions in
the CA I Hook Gear Haddock SAP. However, some effort control measures
remain necessary, because an overall mortality limit, such as an ACE,
does not by itself prevent some other negative impacts, such as
disruption of spawning aggregations or overharvest of juveniles.
Accordingly, NMFS has disapproved several exemption requests,
including: Access to GOM Rolling Closure Areas, minimum hook size
requirements, and trawl size and trawl mesh size requirements.
Comment 4: An attorney, commenting on behalf of an unspecified
number of individuals, raised concern that the operations plans do not
contain specific strategies for the management of inter-related
groundfish stocks.
Response: Current regulations require sector operations plans to
include specific management rules that the sector participants agree to
abide by in order to avoid exceeding the allocated ACE for each stock,
including a plan of operations or cessation of operations in an area
once the ACE(s) of one or more stocks in that area are harvested. Each
sector operations plan includes a set of harvest rules and specifies
actions to be taken as thresholds of ACE are achieved. Each sector is
allocated ACE for NE multispecies stocks and determines how the sector
members will sub-allocate the ACE among themselves. Details of this
distribution are prescribed in the operations plan. It is the
responsibility of each sector to successfully manage these inter-
related stocks. Sector management provides industry the opportunity to
determine how best to harvest allocated fish, and provides flexibility
for industry to balance allocations of inter-related stocks. Further,
current regulations specify that vessels in a sector may only fish in
particular stock areas if the sector has been allocated or acquires
sufficient ACE for all stocks caught in that stock area. NMFS believes
these provisions of the regulations adequately address the management
of inter-related stocks in the NE multispecies fishery.
Comment 5: DMF commented that the process established to annually
review and approve sector operations plans and the associated exemption
requests lacks Council input and involvement. DMF questioned at what
point approval of exemptions would be incorporated into the FMP,
especially considering the costs to both NMFS and individual sectors to
request and analyze each exemption annually.
Response: Regulations implementing Amendment 16 require sectors to
submit to NMFS a list of existing regulations that the sector is
requesting exemption from, as part of the operations plan. In order for
a sector to be implemented, approved to fish, and allocated ACEs, it
must first submit a preliminary operations plan to the Council 1 year
prior to the year in which it wants to fish and request implementation
in a FW or FMP amendment. Thus, the Council determines whether and when
to implement additional sectors. If the Council decides to authorize a
new sector, it begins the development of an appropriate action to do
so. In anticipation of approval of such action by the Council and NMFS,
the sector submits its operations plan and contract to NMFS by the
required deadlines. NMFS then reviews the final operations plan and
solicits comment through a proposed rule. The Council can, and has,
commented on sector operations plans and proposed exemptions at that
time. Therefore, the Council has input and involvement both at the
initial stage of considering a new sector and annually when operations
plans are proposed. Amendment 16 is silent on how NMFS-approved
exemptions could be incorporated into the suite of Council-issued
universal exemptions granted to sector vessels. It is up to the Council
to evaluate the feasibility and desirability of incorporating approved
exemptions into the FMP.
Allocation Issues
Comment 6: The Council commented on the proposed rule language that
stated: ``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.'' The Council wanted to clarify that
Amendment 16 does not require the withholding of ACE from individual
sector members, but rather that a portion of the sector's overall ACE
must be withheld.
Response: NMFS agrees that the regulations implementing Amendment
16 require NMFS to withhold a percentage of each sectors ACE at the
start of a FY to account for any ACE overages. However, each sector,
through its operations plan, has allocated an amount of fish to each
vessel equal to what the vessel contributed to the sector's ACE.
Because the sector has the flexibility to fish its quota however it
wishes to, their method of allocation is strictly voluntary.
Comment 7: An attorney estimated that one sector will be allocated
approximately 32 percent of the combined NE multispecies ACLs in FY
2011, and raised the concern that one party is controlling an excessive
share of the NE multispecies fishery.
Response: Several comments were received as part of the Amendment
16 rulemaking process regarding capping the amount of ACE that can be
allocated to an individual sector, stated that the absence of an
allocation cap could compromise small vessel operations due to
consolidation. NMFS recognizes that the fact that one sector may have a
significant percentage of the total ACE for one fishing season may
raise potential concerns for incidental allocative or market effects,
and that such possibilities should be closely monitored. However,
analysis by the PDT during the development of Amendment 16 suggested it
is unlikely that any one sector could accumulate a large enough share
of a stock to exercise market power over the rest of the fishery.
Because sector ACEs are temporary in nature and depend upon the
collective PSCs of participating vessels, no one sector would be
allocated a permanent share of any resource. This further limits the
ability of a sector to influence market conditions for a particular
stock over the long term. Amendment 16 allowed sectors to transfer ACE
for use during FY in which it is allocated. This will
[[Page 23094]]
minimize the influence of the initial sector allocation, including any
cap on initial allocations, on market control, as a sector could
acquire an unlimited amount of ACE from another sector through ACE
transfers. Based on those comments, NMFS in a January 21, 2010, letter
to the Council, recommended that the Council consider addressing
potential problems of the incidental allocative effects of the sector
program as well as individual permit holders acquiring excessive
control of fishing privileges through an allocation cap. In response to
these concerns, the Council has begun development of Amendment 18, and
NMFS has published an Advanced Notice of Public Rulemaking (76 FR
19305, April 7, 2011) that puts into place a control date that the
Council may use in setting future allocation measures. Given that
concerns about consolidation are part of the overall sector program
adopted and addressed in Amendment 16, such concerns are beyond the
scope of this rule.
Sector Operations Plans and Contracts
Comment 8: The Council noted that the Maine Permit Bank Sector, and
its prospective permits, was provided a February 1, 2011, deadline to
submit a finalized sector roster. The Council agreed that it was
reasonable for NMFS to extend the roster submission deadline to
December 1, 2010, but suggested that the final roster submission date
of February 1, 2011, provided to permit holders wanting to sell permits
to the Maine Permit Bank Sector could complicate the analyses and was
not consistent across all sectors.
Response: NMFS accepted a preliminary list of permits from the
Maine Permit Bank Sector on December 1, 2010, which included permits
that the State of Maine anticipated purchasing, with the stipulation
that these permits were the only permits that could be included in the
final roster. Because of the unique nature of the Maine Permit Bank
Sector, NMFS allowed these permit holders additional time, through
February 1, 2011, to finalize agreements with the State of Maine. This
was handled administratively to provide additional flexibility to
individual permit holders who were considering selling their permits to
the State of Maine. Without this flexibility, permit holders selling to
the State of Maine would have been required to drop out of the sector
that they previously signed into by the December 1, 2010, deadline. Had
the sale not occurred, the permit holder would have had to drop out of
the Maine Permit Bank for FY 2011. Since approximately 99 percent of
the historical landings are associated with those vessels that had
elected to sign up to participate in sectors in FY 2011, the impacts
associated with the harvest of the ACE allocated to the Maine Permit
Bank Sector is sufficiently analyzed in the final EA.
Comment 9: DMF commented that the ability of the public to comment
on the proposed action was hindered by incomplete access to data,
including the redaction of roster information and inconsistencies
between the information presented in the rule, the EA, and the
operations plans.
Response: NMFS acknowledges minor inconsistencies between the data
presented in these documents. During FY 2011, sector rosters were
reopened following the initial September 10, 2010, deadline, allowing
additional permit holders to enroll in sectors up to December 1, 2010.
Permit holders negotiating permit sales with the Maine Permit Bank
Sector were allowed through February 1, 2011, to either sell permits to
the Maine Permit Bank Sector, or to enroll permits in that sector. Due
to evolving roster deadlines, and the time required to draft these
documents, slightly different information was used. NMFS has elected
not to publish rosters or roster-specific information contained
elsewhere in the operations plans because final sector membership is
subject to change, as permit holders have until April 30, 2011, to
withdraw from a sector. NMFS published the rosters associated with the
final approved operations plans in this final rule. Any further changes
to rosters made through April 30, 2011, will be acknowledged through
amendments to the operations plan. NMFS will accept comment on final
sector membership. Amendments are posted to: http://www.nero.noaa.gov/sfd/sfdmultisector.html.
Proposed Exemptions
Comment 10: DMF stated that the list of proposed exemptions is
extensive and difficult to properly evaluate.
Response: NMFS acknowledges the extensiveness of the proposed
exemptions and the difficulty in evaluating them. This is an
unavoidable problem, however, given the nature of the sector management
program and the number of sectors involved. NMFS also attempts to
summarize, as concisely as possible, all exemption requests and
justifications in the proposed rule for this action, excluding
exemptions that were specifically prohibited. Further, all proposed
exemptions were analyzed in the EA, and the final determination on the
approval of the exemption requests and supporting reasons are
summarized in this final rule.
Several FY 2010 Exemptions Requested Again in FY 2011
Comment 11: Four individuals commented on the exemption from the
120-day block requirement for gillnet vessels, the exemption from the
prohibition on a vessel hauling another vessel's gillnet gear, the
exemption from the limitation on the number of gillnets that may be
hauled on GB when fishing under a groundfish/monkfish DAS, the
exemption from the limitation on the number of hooks that may be
fished, and the limitation on the number of gillnets imposed on Day
gillnet vessels. NESSN and the NSC supported the reauthorization of
these exemption requests. The Northeast Coastal Communities Sector
raised concern that the scarcity of available space to set this extra
gear could potentially lead to safety hazards on the water as gear
density and fishing pressure increases. The Northeast Coastal
Communities Sector also asserted that granting this exemption could
increase the potential for sector ACE overages as gillnets can be left
in the water for long periods of time, increasing catch and mortality
on some stocks. DMF offered the same comments on these exemptions that
they submitted in FY 2010 for the same exemption request, i.e.,
supporting requests for exemption from the 120-day block requirement
for gillnet vessels, the exemption from the prohibition on a vessel
hauling another vessel's gillnet gear, the exemption from the
limitation on the number of gillnets that may be hauled on GB when
fishing under a groundfish/monkfish DAS, the exemption from the
limitation on the number of hooks that may be fished; and opposing the
requests for exemption from the limitation on the number of gillnets
imposed on Day gillnet vessels.
Response: NMFS approved these gillnet and hook gear exemption
requests for FY 2010 because these measures were designed to control
fishing effort and are no longer necessary for sectors because sectors'
overall fishing mortality is limited by an ACE. While RMA-specific
limits on the number of nets have been exempted, NMFS has retained the
overall 150-net cap on the amount of gear that may be deployed, as
specified in the regulations, because an increase in catch per unit
effort could result in the rapid acquisition of the sectors' ACEs, at
which point the sectors would remove their fishing gear. The EA
indicates that this measure could result in longer soak
[[Page 23095]]
times or gear left untended to hold fishing ground, which could
increase inter-vessel conflicts. However, NMFS has not received any
reports of such incidents occurring during FY 2010. NMFS maintains that
sectors are responsible for managing the harvest of ACE by its members,
and sector members remain jointly and severally liable for any
misreporting of catch.
NMFS has again approved these exemptions for FY 2011, based on the
same rationale. Comments and responses on the FY 2010 exemption request
can be found in the FY 2010 sector final rule.
20-Day Spawning Block
Comment 12: Two industry groups and DMF commented on the exemption
from the 20-day spawning block requirement. NESSN and NSC supported
this exemption request. DMF offered the same comments on these
exemptions that they submitted in FY 2010 for the same exemption
request, i.e., supporting the exemption from the 20-day spawning block,
but raised an additional concern about the potential impacts to
spawning aggregations of GOM cod.
Response: The regulations specify that the 20-day spawning block
may be taken anywhere in a span of 92 days (March 1 to May 31) and,
therefore, it is expected that some amount fishing effort would be
present during this entire time period. While NMFS supports the
protection of spawning stocks, prohibiting vessels from fishing 20 days
within a 3-month spawning period will likely provide minimal benefit to
the stocks, and thus NMFS has approved this exemption for FY 2011.
DAS Leasing Program Length and Horsepower Restrictions
Comment 13: Two industry support groups, one sector, and DMF
commented on the exemption from the DAS leasing program length and
horsepower restrictions. NESSN and the NSC supported this exemption
request. The Northeast Coastal Communities Sector raised concern that
the unrestricted free market has led to the price of DAS leases rising
above a level which small-scale fishermen can afford. DMF offered the
same comments on these exemptions that they submitted in FY 2010 for
the same exemption request, i.e., questioned whether DAS that otherwise
would have been used by sector vessels for groundfish fishing could not
be leased to sector vessels targeting monkfish, but raised concern that
granting this exemption could undermine the original intent of this
regulation, which was implemented to preserve the character of the
fleet. DMF also commented that similar baseline restrictions should be
implemented for ACE transfers. Finally, DMF claimed that unrestricted
leasing could increase mortality on monkfish and skates through
redirection of effort.
Response: NMFS approved this exemption for FY 2010 because it will
help ease the transition into sector management for limited access NE
multispecies permitted vessels also issued a limited access monkfish
permit by allowing vessels to retain more monkfish on a sector trip,
resulting in increased vessel profits and reduced regulatory discards.
NMFS maintains its support for this exemption in FY 2011 for providing
this additional flexibility to sectors. This exemption is not expected
to change the character of the fleet, because vessel replacements will
continue to be limited by length overall, tonnage, and horsepower
limits. Regulations implementing Amendment 16 allow a sector to
transfer ACE to another sector in a given FY. ACE transfers take place
at the sector level, not the vessel level. Although the Council did not
choose to implement restrictions on ACE transfers in Amendment 16, the
Council has begun development of Amendment 18 to address ACE
accumulation limits and could consider restrictions on ACE transfers at
that time. Through the FY 2011 operations plans, sectors summarized
anticipated redirection of effort to other species based on information
available to them from FY 2010. Most sectors stated that current
fishing behaviors and patterns were not anticipated to change as a
result of operating under sector management.
Sink Gillnet Mesh Size Restriction in the GOM
Comment 14: Three comments were received on the exemption from the
sink gillnet mesh size restriction in the GOM from January through
April and the extension through May. NESSN and the NSC supported the
reauthorization of this exemption request. The Northeast Coastal
Communities Sector raised concern that scarcity of available space to
set this extra gear could potentially lead to safety hazards on the
water as gear density and fishing pressure increases. The sector also
asserted that granting this exemption could increase the potential for
sector ACE overages as gillnets can be left in the water for long
periods of time, increasing catch and mortality on some stocks.
Response: NMFS approved this exemption request for FY 2010, stating
that the impacts to target allocated would be minimal because fishing
mortality by sector vessels is restricted by an ACE for allocated
stocks, which caps overall mortality. While RMA-specific limits on the
number of nets have been exempted, NMFS has retained the overall 150-
net cap on the amount of gear that may be deployed as specified in the
regulations because an increase in catch per unit effort could result
in the rapid acquisition of the ACE by sectors, at which point they
would remove their fishing gear. The EA indicates that this measure
could result in longer soak times or gear left untended to hold fishing
ground, which could increase inter-vessel conflicts. However, NMFS has
not received any reports of such incidents occurring during FY 2010.
NMFS maintains that sectors are responsible for managing the harvest of
ACE by their members, and sector members remain jointly and severally
liable for any misreporting of catch. NMFS has approved this exemption
for FY 2011, based on the same rationale.
Discarding Exemption
Comment 15: Four comments were received on the exemption from the
regulations prohibiting discarding of unmarketable fish. NESSN and the
NSC supported the reauthorization of this exemption request. The
Sustainable Harvest Sector commented that it wished to withdraw its
request for the discarding exemption. The Sustainable Harvest Sector
was concerned about the effect this exemption would have on discard
rates and stated that it has been able to operate effectively under the
existing requirement to retain all legal-sized fish for landing. The
Sustainable Harvest Sector does not object to the exemption being
granted to other sectors that have requested it. The Council commented
that, if this exemption is granted, it should be done in a way that
allows for the most accurate discard estimates. The Council also
commented that the proposed rule does not define the term
``unmarketable'' with regard to the discarding of legal-sized
unmarketable fish. Further, the Council asserted that ``unmarketable''
should refer specifically to ``fish that are damaged and not to fish
that are deemed `unmarketable' for reasons such as little demand, low
price, etc.''
Response: NMFS agrees that this exemption must be implemented in a
way to most accurately capture discard estimates. Under this exemption,
sector vessels are required to discard all legal-sized fish at sea.
This will ensure that the discards observed by NEFOP observers or at-
sea monitors will accurately represent the activities on
[[Page 23096]]
unobserved trips. The final rule implementing amendments to FY 2010
sector operations plans initially defined unmarketable fish as ``any
legal-sized fish the vessel owner/captain elects not to retain because
of condition or marketability problems.'' The intent of this exemption
is to permit the discarding of fish that are depredated or otherwise
damaged. NMFS agrees with the Council that this definition should be
clarified and therefore, has revised the definition of ``unmarketable''
fish to be any legal-sized fish the vessel owner/captain elects not to
retain because of poor quality as a result of damage prior to, or from,
harvest. For example, fish may be damaged from sandfleas, seals,
cetaceans, or fishing gear. The definition of unmarketable fish will be
included in the sector's LOA. This exemption does not authorize
captains to discard legal-sized allocated fish based on marketability
or availability of market if the fish are not damaged. NMFS is
requesting additional comments on this definition of ``unmarketable''
fish under this interim final rule and, depending on comments provided
by the public, may further revise the definition in a future action.
This exemption is not authorized for members of the Sustainable Harvest
Sector, based on that sector's request.
Daily Catch Reporting by Sector Managers for Vessels Participating in
the CA I Hook Gear Haddock SAP
Comment 16: The GB Cod Fixed Gear Sector, which requested an
exemption from daily catch reporting by sector managers for vessels
participating in the CA I Hook Gear Haddock SAP, raised a concern
regarding the alternative reporting method highlighted in the proposed
rule, stating that modifications to the sector manager weekly report
are expensive to implement. The sector requested that, should this
exemption be approved, modifications should be made to VMS software
allowing for the reports to be submitted to NMFS without the extra cost
of software changes to the sector. The sector asserted that sector
monitoring would not be impacted, as the sector maintains the
requirement to receive trip catch data within 24 hr of landings. DMF
supported this exemption, as it only changes the mechanism for the
submission of the reports.
Response: NMFS agrees with the GB Cod Fixed Gear Sector that
modifications to existing databases and systems could be costly to
sectors. Additionally, if NMFS required the submission of CA I Hook
Gear Haddock SAP information through the sector manager weekly report,
and only a subset of sectors elected this exemption, an unnecessary
burden would be placed on sectors not granted this exemption. Due to
these concerns, NMFS did not pursue modifications to the sector manager
weekly report to collect this information. NMFS has approved this
exemption, but will require that vessels submit this information on a
daily basis to NMFS via VMS, which are the same reporting requirements
as common pool vessels participating in the SAP. NMFS believes that
sectors will be able to monitor landings appropriately and take any
necessary action through the requirement for vessels to submit catch
data within 24 hr of landing.
Gear Requirements in the U.S./Canada Management Area
Comment 17: DMF supported the request for an exemption from gear
requirements when fishing in the U.S./Canada Management Area,
commenting that they do not believe the current flatfish net
restriction in this area has been effective.
Response: NMFS implemented restrictions on trawl gear that could be
utilized in the U.S./Canada Management Area to ensure that TACs are not
exceeded. These net restrictions were implemented under DAS management
and were designed to control fishing effort on certain stocks. The
exemption from these gear requirements has been approved for sectors in
FY 2011, given that they are no longer necessary because sectors are
restricted to an ACE for each groundfish stock, which limits overall
fishing mortality.
Requirement to Power a VMS While at the Dock
Comment 18: The Council commented on the exemption from the
requirement to power a VMS while at the dock, stating that this
requirement may be considered a reporting requirement, from which
sectors are prohibited from exemption. However, the Council believes
that this request does not conflict with the intent of management
measures.
Response: Current NE VMS regulations allow vessels to sign out of
the VMS program for a minimum of 30 consecutive days, through the
request and issuance of an LOA. NMFS believes that the request of
sectors to power down VMS units while at the dock is an extension of
the current regulatory exemption, and would grant sector vessels
additional flexibility by reducing costs. Further, because sector
managers are responsible for ensuring that vessels comply fully with
the regulations, issues of potential enforcement concerns due to this
exemption are mitigated. NMFS has approved this exemption for FY 2011,
but will revoke the exemption if it undermines enforcement.
DSM Requirements for Handgear A-Permitted Sector Vessels
Comment 19: Two comments were received on the requests for an
exemption from DSM requirements for jig vessels and for DSM
requirements, roving monitoring, and hail requirements for hook-only or
handgear vessels. The Northeast Coastal Communities Sector commented in
support of gear-specific exemption requests, citing the similarity of
the DSM exemption in FW 45 for handgear-permitted common pool vessels.
The Council commented that an exemption request similar to the
exemption for common pool handgear vessels in FW 45 seemed sensible.
Response: NMFS has approved a request for an exemption from DSM for
Handgear A-permitted sector vessels, similar to the exemption in FW 45
for handgear-permitted common pool vessels, acknowledging that these
vessels land only small amounts of groundfish. Without this exemption,
these vessels would likely pay disproportionately higher DSM costs per
monitoring event.
DSM Requirements for Vessels Fishing West of 72[deg]30' W. long.
Comment 20: Two comments were received on the request for an
exemption from DSM requirements for vessels fishing west of 72[deg]30'
W. long. NSC expressed support for this exemption in comments on FW 45.
The Council commented that it supported requests specifying geographic
boundaries or requests for particular gear types that catch small
amounts of groundfish bycatch.
Response: In a September 1, 2010, letter, NMFS requested that the
Council consider establishing a geographic boundary to prescribe where
the dockside monitoring requirements apply, citing that having each
sector develops a dockside monitoring program with different geographic
boundaries would be problematic. The Council addressed this issue by
removing DSM from the list of prohibited exemptions, thereby allowing
sectors to request such exemptions. Amendment 16 specifies that sectors
must develop and implement a dockside monitoring system that is
``satisfactory to NMFS for monitoring landings and utilization of
ACE.'' NMFS has approved this exemption, given that few groundfish were
caught from the area. This
[[Page 23097]]
exemption will more efficiently utilize the financial resources
dedicated to the DSM program.
DSM Requirements for Directed Monkfish, Skate, and Dogfish Trips
Comment 21: Five comments were received on the requested exemption
from DSM requirements for directed monkfish, skate, and dogfish trips.
The Council stated that its support for exemption requests specifying
geographic boundaries and particular gear types that catch small
amounts of groundfish bycatch should not be inferred to mean that it
supports general exemptions from DSM for trips targeting other species
such as monkfish or skates. The Northeast Coastal Communities Sector
and NSC supported this exemption request. The GB Cod Fixed Gear Sector
disagreed with the proposed rule statement that it is impossible to
distinguish directed dogfish trips from groundfish trips. NESSN
opposed, and NSC concurred with, NMFS's assertion that granting this
exemption would decrease oversight and confidence in discard rates,
because NMFS does not use the data generated from DSM to establish
discard rates.
Response: NMFS agrees that some relief from DSM requirements can be
offered through exemptions, and has therefore approved three requests
for exemption from DSM requirements for FY 2011, for: Handgear A-
permitted vessels, consistent with a measure included in FW 45
exempting handgear-permitted common pool vessels from DSM; for vessels
fishing exclusively west of 72[deg]30' W. long; and for monkfish
Category C- and D-permitted vessels fishing on a monkfish trip in the
monkfish SFMA when such vessels are required to fish with nets
containing 10-inch (25.4-cm) mesh codends or gillnets. The exemption
from DSM for these particular monkfish trips specifically addresses
identifiable trips with low groundfish catch, since information in NMFS
databases show that catch of NE multispecies on such trips is minimal
(11,345 lb (5,145.01 kg) in FY 2009 and approximately 1,500 lb (680.39
kg) thusfar in FY 2010). This approach is consistent with the Council's
comment about allowing sectors to request exemptions from DSM
requirements. While the Council may not have intended to allow for
exemptions for directed monkfish trips, NMFS believes that the data
show that groundfish catch on this subset of monkfish trips is low, and
warrants an exemption.
NMFS will be able to identify such trips through the required VMS
declaration, which specifies the area fished. Granting additional
exemptions specific to directed skate and dogfish trips is currently
not possible because these trips cannot be clearly identified. Such
trips utilize gear capable of catching groundfish, and groundfish
retention is permitted, which therefore requires vessels to declare
into the NE multispecies fishery.
Exemption Requests That Were Not Approved
Access to GOM Rolling Closure Areas in May and June
Comment 22: Three comments were received supporting the granting of
additional access to GOM rolling closure areas in May and June. The
Council commented that, contrary to the justification provided by the
Port Clyde Community Groundfish Sector, NEFOP does not collect
information pertaining to the amount of spawning fish, and therefore
observer data would not be adequate to measure the impacts of granting
this exemption. The Northeast Coastal Communities Sector asserted that,
if evidence supports the presence of spawning activity in these areas
during May and June, the areas should remain closed. DMF raised
concerns about the potential impacts to spawning aggregations of GOM
cod, stating that these areas were originally intended to protect
spawning aggregations of fish, and requested specific information on
sectors' strategies for avoiding these aggregations.
Response: NMFS agrees that the GOM Rolling Closure Areas were
initially established to protect spawning fish, specifically GOM cod.
Table 177 in Amendment 16 indicates that cod spawn during the months of
January through May. Although this table does not indicate cod spawning
in June, the scientific paper written by Wirgin et al, 2007 (referenced
above in Exemption 18) indicates that there are some cod spawning in
the GOM in June. Other groundfish of importance also spawn during this
timeframe. While previous actions specifically addressed the protection
of spawning cod, NMFS believes that the protection of spawning stocks
of all species managed under the NE Multispecies FMP is relevant, and
necessary to the rebuilding and maintaining of rebuilt stocks. NMFS
agrees with the Council that NEFOP data cannot be relied upon by a
sector utilizing this exemption to measure the impacts on spawning fish
because NEFOP observers to not collect information pertaining to the
amount of spawning fish. Based on this information, NMFS has
disapproved all GOM Rolling Closure Area exemption requests for FY
2011.
Prohibition on Pair Trawling
Comment 23: Four comments were received on the exemption from the
prohibition on pair-trawling. The Northeast Coastal Communities Sector
raised concern with this exemption request, stating that pair-trawling
was prohibited to protect rebuilding stocks and that many of the NE
multispecies stocks are still undergoing rebuilding. The Council also
raised concerns, suggesting that this configuration should first be
subject to an experimental fishery to verify performance. The Council
also provided comment on potential implementation concerns. Finally,
NESSN and NSC supported the exemption request by reiterating the
justifications provided by the sectors originally requesting the
exemption, e.g., that, because sectors are managed under an ACE they
should be exempt from effort control measures.
Response: NMFS is concerned that when fishing with a pair-trawl,
selectivity may be decreased, which could result in increased catch of
prohibited stocks for which sectors have no ACE. Without an ACE for
these stocks, sectors would have little incentive to alter fishing
behaviors. Further, the overall impacts of the Ruhle trawl when fished
in a pair trawl configuration are unknown. For these reasons and others
discussed in Exemption 19 above, NMFS has disapproved this exemption
request.
Minimum Hook Size Requirements for Demersal Longline Gear
Comment 24: Two comments were received on the exemption from
minimum hook size requirements for demersal longline gear. DMF
commented that the sector would unlikely to be successful at targeting
flatfish with this exemption and the exemption would likely have
increased catch of sub-legal-sized fish. The Council provided comment
on the implementation of discard rates, should this exemption be
approved.
Response: NMFS agrees that granting this exemption could impact
sub-legal fish, which could result in recruitment overfishing, despite
sectors' overall impact on mortality being constrained by ACE. For this
reason, NMFS disapproved this exemption request.
Minimum Mesh Size Requirements on Targeted Redfish Trips
Comment 25: Four comments were received on the exemption request
from minimum mesh size requirements on targeted redfish trips. NESSN
and NSC
[[Page 23098]]
supported the exemption request by reiterating the justifications
originally submitted by the sectors requesting this exemption. The
Council supported granting sectors flexibility to target healthy
stocks, but commented that the Council's established scientific
research study process should consider the proposed gear, which may
lead to better understanding of the impacts on non-target species. DMF
cited its participation in the ongoing NMFS-funded redfish study to
investigate strategies and methods to sustainably harvest the redfish
resource, and believe that, upon completion of the study, additional
data will be available to more accurately evaluate the impacts of this
exemption.
Response: NMFS agrees that the established Council process for
review and incorporation of scientific research is the appropriate
mechanism to determine if this exemption request has merit. Therefore,
approval of this exemption request is premature at this time and, it
was not approved.
Ruhle and Haddock Separator Requirements To Utilize the 98.4 in x 15.7
in (250 cm x 40 cm) Eliminator Trawl
Comment 26: NMFS received four comments on the exemption request
from Ruhle and Haddock Separator trawl requirements when fishing in
certain fishery management programs and requested the use of a smaller
trawl size, the 98.4-inch x 15.7-inch (250-cm x 40-cm) Eliminator
Trawl. The Council expressed concern that the process for incorporating
modifications to this trawl gear should be evaluated using the
Council's established research process. However, the Council noted it
may support approval if the net design is similar to previously
approved gear. DMF expressed general concern about the enforceability
of trawl gear requirements and cautioned against assuming that the
impacts of this gear would be the same as larger-scale nets of similar
design. DMF concluded by recommending that approval of this exemption
should be conditional, based on results of RSC review. NESSN
reiterated, and NSC concurred, with the justification originally
submitted by the sectors requesting this exemption.
Response: NMFS agrees that the Council's established mechanism for
the review and incorporation of scientific research is appropriate for
such changes to this gear. The RSC, which met on March 16, 2011, to
discuss this issue, rejected the initial analysis of this gear and
requested additional analysis for further review. NMFS awaits the
recommendation of the RSC and Council on the future approval of this
gear type for vessels fishing in the NE multispecies fishery before
approving this exemption.
All DSM and Roving Monitoring Requirements
Comment 27: Four comments were received on the requested exemption
from all DSM and roving monitoring requirements. NESSN and NSC
supported the exemption requests. The Northeast Coastal Communities
Sector supported an exemption from all DSM requirements, reiterating
their concern about the costs of DSM for vessels landing small amounts
of fish and operating out of remote ports, stating that these vessels
are disproportionately impacted by the costs of DSM. The Council
summarized the decision-making process behind allowing sectors to
request exemptions from DSM requirements and stated its intent was to
allow, or support, requests specifying geographic boundaries or for
particular gear types which catch small amount of groundfish bycatch,
similar to the Handgear A exemption in FW 45 for common pool vessels.
Response: NMFS agrees that some relief from DSM requirements can be
offered through exemptions, and has therefore approved three DSM
exemptions for FY 2011, for: Handgear A-permitted vessels, consistent
with a measure included in FW 45 exempting Handgear A-permitted common
pool vessels from DSM, for vessels fishing west of 72[deg]30' W. long,
and for monkfish trips in the monkfish SFMA. The exemption from DSM for
trips exclusively fishing west of 72[deg]30' W. long., and for certain
monkfish trips (see above), specifically address identifiable trips
with low groundfish catch. This approach is consistent with the
Council's comment about allowing sectors to request exemptions from DSM
requirements. Thus, although NMFS has disapproved an exemption to all
DSM requirements, some exemptions to area- and gear-specific DSM
requirements have been approved, DSM Requirements for Hook Vessels when
the Sector has Caught less than 10,000 lb (4,535.9 kg) of Groundfish
per Year.
Comment 28: Two comments were received pertaining to the request
for an exemption from DSM requirements for hook vessels when the sector
has caught less than 10,000 lb (4,535.9 kg) of groundfish per year. The
Council supported exemption requests specific to geographic boundaries
or for particular gear types that catch small amounts of groundfish
bycatch. The Northeast Coastal Communities Sector strongly urged
consideration of this request, believing the economic burden outweighs
compliance concerns, and offered to work with NMFS to establish a
suitable threshold.
Response: NMFS agrees with the Council that an exemption from DSM
requirements for certain vessels that catch small amounts of groundfish
is appropriate. Therefore, NMFS approved an exemption from DSM
requirements for Handgear A-permitted sector vessels, consistent with a
measure included in FW 45 exempting handgear permitted common pool
vessels from DSM. NMFS believes that this permit-based gear exemption
will help to address the Northeast Coastal Communities Sector's
concerns for some of its members, and minimizes enforceability concerns
by having multiple gear exemptions. NMFS, however, does not support
exempting all hook vessels from DSM when catching less than a specific
amount of groundfish, and has therefore disapproved this exemption. To
do so would be inequitable to other gear types, as well as
administratively very difficult to do. NMFS will continue to reimburse
DSM costs for FY 2011 through a grant to GMRI.
DSM Requirements in May When Fishing in Certain MA Areas
Comment 29: Three comments were received on the requested exemption
from DSM requirements for vessels when fishing in certain MA areas. The
Council supported DSM exemption requests specifying specific geographic
boundaries. NESSN and NSC supported this request stating that historic
data show that little groundfish is caught in these areas.
Response: NMFS agrees that a geographic boundary for DSM should be
established and has approved an exemption from DSM requirements for
vessels fishing west of 72[deg]30' W. long. For a full response, please
see Response to Comment 21. NMFS believes that establishing different
boundaries within New England waters where DSM was exempt would be
difficult from both an administrative and enforcement perspective, and
therefore has not approved this exemption.
DSM, Roving Monitoring, and Hail Requirements for Vessels Using
Demersal Longline Gear, Jig Gear, and Handgear While Targeting Spiny
Dogfish in Massachusetts State Waters
Comment 30: Three comments were received on the exemption from DSM,
roving monitoring, and hail requirements for vessels using demersal
longline gear, jig gear, and handgear while targeting spiny dogfish in
Massachusetts state waters. The
[[Page 23099]]
Northeast Coastal Communities Sector strongly supported consideration
of this request. The Council did not support the exemption request. The
GB Cod Fixed Gear Sector commented on NMFS's inability to distinguish
directed dogfish trips from groundfish trips.
Response: NMFS agrees with the Council that an exemption from DSM
requirements for vessels fishing in certain areas that catch small
amounts of groundfish is appropriate, and approved exemptions from DSM
requirements for vessels fishing exclusively west of 72[deg]30' W.
long.; and for monkfish Category C- and D-permitted vessels fishing on
a monkfish trip in the monkfish SFMA when such vessels are required to
fish with nets containing 10-inch (25.4-cm) mesh codends or gillnets.
Granting an additional exemption specific to directed dogfish trips is
currently not possible because these trips cannot be clearly
identified. Such trips utilize gear capable of catching groundfish, and
groundfish retention is permitted, which therefore requires vessels to
declare into the NE multispecies fishery. Due to these concerns, NMFS
has disapproved this exemption request.
DSM Requirements When a Trip Has Been Monitored by Either an At-Sea
Monitor or Fishery Observer
Comment 31: Two comments were received regarding the requested
exemption from DSM requirements when a trip has been monitored by
either an at-sea monitor or fishery observer. The Council commented on
this exemption related to the Council's November 18, 2011, motion
recommending that NMFS prioritize trips for DSM that have not received
an at-sea monitor (including NEFOP observers). The Northeast Coastal
Communities Sector strongly supported consideration of this exemption,
commenting on the need to balance monitoring with costs.
Response: The final rule implementing FW 45 rectifies the DSM
standards to prioritize trips that do not receive at-sea monitoring
(including NEFOP observers) for DSM selection. Therefore, the request
for an exemption is not approved under this action since it is being
implemented under FW 45. For FY 2011, NMFS anticipates funding DSM
coverage for all trips that do not receive at-sea monitoring (including
NEFOP observers). The Requirement to Delay Offloading Due to the Late
Arrival of an Assigned Dockside Monitor
Comment 32: The Council commented on the request for an exemption
from the requirement to delay offloading due to the late arrival of an
assigned dockside monitor, stating that it might be sensible to set a
window establishing the timely arrival of a monitor. The Council
suggested that after that window of time expires, a vessel be allowed
to proceed with the offload of catch, assuming all hail requirements
were fulfilled.
Response: The regulations implementing Amendment 16 prohibit a
vessel from offloading any fish from a trip that was selected for DSM
prior to the arrival of the monitor. NMFS believes that it is the
responsibility of the sector to resolve the late arrival of a monitor
with the sector's dockside monitoring provider(s) that the sector has
contracted with to fulfill the DSM standards. Provisions to address
monitor tardiness could be captured in individual contracts, therefore,
NMFS has disapproved this request.
Prohibition on Offloading of Non-Allocated Species Prior to the Arrival
of the Monitor
Comment 33: The Northeast Coastal Communities Sector commented on
its opposition to granting an exemption from the prohibition on
offloading non-allocated species prior to the arrival of a monitor,
asserting that allowing partial offloading prior to the arrival of a
monitor handicaps the monitoring process and decreases transparency.
Response: NMFS agrees and is concerned that granting exemptions to
many components of DSM would create serious loopholes in the existing
regulations. Allowing a portion of an offload to be unmonitored would
undermine the value of the monitored portion. Therefore, for compliance
purposes, NMFS has disapproved this exemption request.
Exemptions Not Considered in This Rulemaking
Delayed Opening of the Eastern U.S./Canada Area
Comment 34: The Sustainable Harvest Sector commented that NMFS did
not adequately address in the proposed rule the request for its
exemption from a delay in the opening of the Eastern U.S./Canada Area
to trawl gear. The sector believes that being granted an exemption
allowing vessels to fish in this area during the summer months is
important for smaller vessels for safety reasons and would facilitate
harvesting a higher percentage of the sector's ACE for stocks in that
area.
Response: NMFS is not able to consider the request for an exemption
from the delay in the opening of the Eastern U.S./Canada Area to trawl
gear because a delay in opening the Eastern U.S./Canada Area to trawl
gear is not a specific regulation to be exempted from, but rather an in
season action to modify or close access to the U.S./Canada Management
Area at any time during the FY, or prior to the start of the FY,
pursuant to Sec. 648.85(a)(3)(iv)(D), which governs the Regional
Administrator's ability to implement such actions. NMFS directs the
public to the final rule for FW 45, which announces that NMFS is
postponing the opening of the Eastern U.S./Canada Area for common pool
(non-sector) vessels fishing with trawl gear in FY 2011 from May 1,
2011, to August 1, 2011.
Hail Requirements
Comment 35: The Council commented that DSM trip-start and trip-end
hail requirements could be considered a reporting requirement instead
of a part of the DSM program and, therefore, cannot be exempted,
because the regulations prohibit sectors from requesting exemptions
from reporting requirements.
Response: At its November 18, 2010, meeting, the Council voted to
remove DSM requirements from the list of reporting requirements,
thereby allowing sectors to request exemptions from these requirements.
The Council was silent as to whether hails, a component of DSM, should
also be removed from the list of reporting requirements. Since the
inception of the DSM program, NMFS has interpreted hail requirements to
be reporting requirements and believes hails to be integral to
successful compliance monitoring of vessels participating in NE
multispecies sectors. Hails are used by DSM providers to effectively
deploy resources, and by NMFS to assist in the coordination of
enforcement efforts. Therefore, this exemption request has been
disapproved and the partial exemptions from DSM provisions granted in
FY 2011 have retained hail requirements for vessels utilizing the
exemptions.
Other Comments
Comment 36: One attorney, submitting comments on behalf of an
unspecified number of individuals, raised concerns with the
implementation of catch shares in the NE multispecies fishery through
Amendment 16. The individual submitted Amendment 16 litigation
materials as an attachment to the formal comments.
Response: Concerns regarding implementation of Amendment 16 sector
provisions should more appropriately be raised to the Council. Any
issues or concerns raised in the
[[Page 23100]]
ongoing litigation regarding Amendment 16 is being decided by the court
in the litigation, and, therefore, it is not appropriate to respond to
them here; nor are such issues and concerns directly related to this
action.
Sector EA
Comment 37: The CBD commented that the EAs prepared in support of
both FW 45 and the FY 2011 sector operations plans do not adequately
evaluate the impacts on a number of species proposed for listing under
the Endangered Species Act (ESA), particularly Atlantic sturgeon and
loggerhead sea turtles. The CBD noted that three distinct population
segments (DPS) of Atlantic sturgeon were proposed to be listed under
the ESA by NMFS's Northeast Regional Office on October 6, 2010 (75 FR
61872), while the Northwest Atlantic loggerhead sea turtle was proposed
to be listed as endangered under the ESA on March 16, 2010 (75 FR
12598). They contended that the FW 45 and FY 2011 sector operations
plans EAs rely upon previous assessments of impacts to protected
species specified in the Amendment 16 EIS that was completed on October
16, 2009. Therefore, they claimed that the analysis for these actions
is not appropriate, given the proposed listings of Atlantic sturgeon
and loggerhead sea turtles occurred after this analysis was completed,
and requested that the analysis be updated. Further, they questioned
how the draft FY 2011 sector operations plans EA could conclude that
the action would not result in jeopardy to listed species prior to
completion of the ESA Section 7 informal consultation. The CBD also
noted that the FY 2011 sector operations plans EA recommended
conservation actions be considered to limit the potential for adverse
effects to candidate species, such as Atlantic bluefin tuna and cusk,
but described no such measures under consideration.
Response: NMFS agrees that the analysis originally included in the
FY 2011 sector operations plans EA did not adequately describe the
impacts to DPS of Atlantic sturgeon and loggerhead sea turtles. In
response to this comment, NMFS has updated the analysis supporting this
action in the FY 2011 sector operations plans EA to include analysis of
measures on the DPS for these species, and has concluded that there
will be no significant impact on Atlantic sturgeon or loggerhead sea
turtles for the expected duration of this regulation. NMFS is also
addressing this concern in connection with the approval and
implementation of FW 45. The revised analysis concluded that the
measures implemented under this final rule are not likely to jeopardize
the continued existence of Atlantic sturgeon between now and the time
when a final listing determination will be made, and that a conference
for the proposed loggerhead sea turtle DPS is not required based on
determinations and the incidental take statement in the 2010 Biological
Opinion for the Multispecies FMP. For Atlantic sturgeon, NMFS
Sustainable Fisheries Division engaged in an informal conference with
NMFS Protected Resources Division per the ESA regulations and no
additional measures were recommended by NMFS Protected Resources. While
it is possible that there may be interactions between Atlantic sturgeon
and gear used in the NE multispecies fishery, the number of
interactions that will occur between now and the time a final listing
determination will be made is not likely to cause an appreciable
reduction in survival and recovery. A final listing determination for
the Atlantic sturgeon DPS is expected by October 6, 2011. With the
publication of a final listing rule, the Section 7 consultation for the
NE multispecies fishery would need to be reinitiated, consistent with
the requirement to reinitiate formal consultation where discretionary
Federal agency involvement or control of the action has been retained
and a new species is listed that may be affected by the action. During
the reinitiation, the effects of the NE multispecies fishery on the
five DPS for Atlantic sturgeon would be fully examined.
Furthermore, the draft EA included a determination with respect to
the ESA, because the regulations at Sec. 402.12(a) governing the
preparation and submission of a Biological Assessment (BA) specify that
a BA shall include a determination as to whether any listed and
proposed species and designated and proposed critical habitat are
likely to be adversely affected by the proposed action, for review and
concurrence by NMFS. Thus, the draft EA included draft analysis and
findings for review by NMFS, and for use in the ESA Section 7 informal
consultation on the proposed FY 2011 sector operations plans.
The FY 2011 sector operations plans EA has also been modified to
clarify that NMFS has initiated review of recent stock assessments,
bycatch information, and other information for candidate and proposed
species, including Atlantic bluefin tuna and cusk, which must be
completed to accurately characterize recent interactions between
fisheries and the candidate/proposed species in the context of stock
sizes. Any conservation measures deemed appropriate for these species
will follow the information reviews.
Comment 38: One comment was received stating that the term
``sector'' has several uses in the draft EA (e.g., ``sector'' as a
segment of the fishery vs. ``sector'' as an entity), and requested that
NMFS develop different terms to distinguish between these different
meanings.
Response: NMFS acknowledges that the term ``sector'' has multiple
uses in the draft EA. However, ``sector'' as an entity was the term
adopted by the Council for groups of NE multispecies permit holders in
Amendment 13 and is defined in the regulations at Sec. 648.2.
Therefore, this term will continue to be used by NMFS for NE
multispecies unless a future Council action renames these entities.
Comment 39: The DMF supported NMFS's decision to consolidate
analyses of the 19 FY 2011 sector operations plans into one EA, noting
this greatly simplified review.
Response: NMFS agrees that consolidating the analysis of the 19
operations plans, based on their general uniformity, rendered the EA
more user friendly, and will continue to try to identify approaches to
further simplify the review process for future fishing years.
Comment 40: DMF commented that no analysis of FY 2010 sector
operations plans' performance was included in the draft EA,
specifically commenting on a lack of analysis regarding whether the
impacts of approved exemptions were as predicted and whether there was
any consolidation and or redirection of effort that occurred. They
further commented that the information that was provided was general in
nature and mainly used to predict interactions for FY 2011. DMF noted
that, given the timing of submission of annual reports and sector
operations plans, it appeared that the analyses of proposed sector
operations plans would always use 2-yr old datasets.
Response: As noted by DMF and in section 1.2.2 of the draft EA, a
complete dataset from the first year of expanded sector operations in
FY 2010 was not yet available to use in the analysis of proposed FY
2011 sector operations plans. NMFS acknowledges that the concurrent
operation of approved sectors in a given FY, and development of
proposed sectors operations plan for the following FY, creates a lag in
the data and analysis of actual sector fishing activities and
associated impacts. However, NMFS uses the most complete information
available in the analysis of sector operations plans each FY,
[[Page 23101]]
including predictions provided by the sectors about the expected
fishing activities of their members in the upcoming FY. As noted in
section 1.2.2 of the Final EA, in future FYs, beginning with FY 2012,
NMFS will have sector annual reports and complete datasets from prior
FYs, under sector management, excluding the FY underway during
operations plan review. This will include certain sector-specific
exemptions to use in the analysis of newly proposed sector operations
plans for those specific sectors.
Comment 41: DMF commented that the data in the draft EA and in
Table 4 of the proposed rule were inconsistent, though they cited the
same roster date of September 10, 2010, and stated that the proposed
rule and all associated documents should be based on the same roster
information.
Response: NMFS acknowledges DMF's concerns, but disagrees that all
associated documents need to be based on the same roster information.
Table 4 of the proposed rule summarized the roster information that was
submitted by FY 2011 sectors on September 10, 2010, and that was used
in preparation of the IRFA. The roster information contained in the
draft EA was also based on rosters submitted by September 10, 2010, but
which had been updated as a result of NMFS's iterative review of sector
operations plans and contracts. While the commenter might prefer that
all associated analyses be based on the same roster information,
September roster submissions are only preliminary estimates provided by
sectors and are used by NMFS to establish a basis and scope for the
analysis of proposed sector operations plans, including a relative
maximum number of participants, ports, and ACE. However, the September
roster information is not final, as permit holders may withdraw and
join the common pool up through April 30 of the following calendar
year, and NMFS may provide additional opportunities for permit holders
to join a sector prior to the start of the FY, as it did this year by
extending the roster deadline to December 1, 2010, which may lead to a
modification of sector membership. Based on industry request, NMFS
again reopened the rosters for certain permit holders who acquired
permits after the December 1, 2010, roster deadline. As noted in
section 1.0 of the Final EA, such changes are minimal and do not
substantively affect the analyses. The proposed rule contained the most
up-to-date information regarding sector membership and proposed ACEs
available at the time of publication, based on updates by sector
managers or additions/changes as a result of extensions to the roster
deadline. Because of this roster flexibility, NMFS requested that the
Council revise the Amendment 16 roster deadline to December 1 and the
Council incorporated that change into FW 45. In future rulemakings,
NMFS will endeavor to note any consistencies in roster information
within the appropriate documents.
Comment 42: DMF commented that the Maine Permit Bank should be
referred to as a federally funded, state-operated permit bank in
section 3.2.2 of the draft EA.
Response: NMFS agrees that section 3.2.2 of the draft EA
incorrectly referred to the Maine Permit Bank as a state-funded permit
bank. NMFS has since revised this and other sections to reflect this
correction.
Comment 43: A comment from DMF noted that the Port Clyde Community
Groundfish Sector proposed a strategy in its FY 2011 operations plan
(whereby the sector would cap the percentage of ACE that could be
harvested from the rolling closure areas and institute a closure of the
area if NEFOP data indicated a significant amount of spawning fish were
being harvested) to minimize its impact on spawning fish as part of its
rationale for a request for exemption from portions of the GOM Rolling
Closure Areas in May and June, which was described in the proposed rule
but not discussed in the draft EA.
Response: The Port Clyde Community Groundfish Sector did propose
such a strategy; however, this strategy was not analyzed in the EA
because not all sectors requesting exemptions from GOM rolling closure
areas put forward this strategy. For the purposes of the analysis,
sector exemptions that were similar were aggregated and the broadest or
``worst-case'' scenario was analyzed. NMFS reviewed the strategy
proposed by the Port Clyde Community Groundfish Sector and determined
it is not conservation equivalent to the Rolling Closure Areas, because
the impacts discussed in the EA could result from the exemption,
regardless of whether this mitigation strategy was adopted by all
sectors.
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 final rule is
consistent with the NE Multispecies FMP, other provisions of the
Magnuson-Stevens Act, and other applicable law, subject to further
consideration after public comment.
This action is exempt from review under Executive Order (E.O.)
12866.
The Assistant Administration for Fisheries (AA), NOAA, finds good
cause under 5 U.S.C. 553(d)(3) to establish an effective date less than
30 days after the date of publication for the measures implemented by
this final rule. Aspects of this rule are conditional upon approval and
publication of the final rule for FW 45. These rules must be in effect
at the beginning of FY 2011, which begins on May 1, 2011, to fully
realize the environmental and economic benefits. However, the time
available for this rulemaking and for the final rule for FW 45 was
constrained by multiple factors, including the development of FW 45,
data availability, and the scheduling of U.S. and international
management bodies. Due to these constraints, the rulemaking could not
be completed further in advance of May 1, 2011, and in order to have
this action effective at the beginning of FY 2011, it is necessary to
waive the 30-day delay period for this rule.
In addition, the AA finds that this rule relieves several
restrictions under 5 U.S.C. 553(d)(1), because this rule helps the NE
multispecies fishery mitigate the adverse economic impacts resulting
from continued efforts to end overfishing and rebuild overfished
stocks, and increases the economic efficiency of vessel operations
through the authorization of 19 sector operations plans for FY 2011. As
explained in detail above, 17 exemptions have been approved for FY
2011, which provide increased flexibility to sectors by exempting them
from effort control restrictions that would be onerous for fishing
vessels whose fishing activity is constrained by a hard quota.
Failure to waive the 30-day delay in effectiveness could result in
short-term adverse economic impacts to NE multispecies vessels and
associated fishing communities, as well as to the fish stocks subject
to this rule. Without this rule, vessels that have signed up to join a
sector in FY 2011 (836 vessels, 57 percent of eligible groundfish
vessels) would not be able to take advantage of the flexibility in
vessel operations this rule implements. For example, sector vessels
would receive exemptions from trip limits, DAS, and seasonal closure
areas that this rule allows. Moreover, because vessels committed to a
sector may not fish in both the common pool and a sector in the same
FY, vessels currently signed into a sector would be forced to cease
fishing operations entirely during the delay in effectiveness, or
forego sector membership for the entire FY, thereby losing the
mitigating economic
[[Page 23102]]
efficiencies of the restrictions relieved for sector vessels. This
would also reduce the economic efficiency of the majority of the fleet
until such measures become effective, and cause unnecessary adverse
economic impacts to affected vessels. For the reasons above, the
requirement to delay implementation of this rule for a period of 30
days is hereby waived.
A Final Regulatory Flexibility Analysis (FRFA) was prepared for
this rule, as required by section 604 of the Regulatory Flexibility Act
(RFA). The FRFA consists of and incorporates the Initial Regulatory
Flexibility Analysis (IRFA), which was summarized in the preamble of
the proposed rule, the relevant portions of the proposed rule
describing sector operations plans and requested exemptions, the
corresponding analysis in the EA prepared for this action, the
discussions, including responses to public comments included in this
rule, and this summary of the FRFA.
Description and Estimate of the Number of Small Entities to Which the
Final Rule Would Apply
This action will 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 2011. 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, NMFS 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. However,
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 February 1, 2011, 836 of
1,475 eligible permits had 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. Additionally, NMFS is allowing for a limited reopening of the
roster, through April 30, 2011, for new permit holders who acquired
their permits through an ownership change that occurred after December
1, 2010.
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, has 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. The reasons why fewer vessels
have fished thus far in FY 2010, 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 FY 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 the groundfish allocated
to them by their sector 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 FYs 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 begun development of an amendment to
the FMP to address concerns identified (i.e., Amendment 18).
Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Action
This rule contains no collection-of-information requirement subject
to the Paperwork Reduction Act.
Description of Steps the Agency Has Taken To Minimize the Economic
Impact on Small Entities Consistent With the Stated Objectives of
Applicable Statutes
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 changes
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
[[Page 23103]]
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 FY 2004 to FY 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 FY 2010 is
not known since the FY is incomplete. Amendment 16 revised and expanded
sector management and was analyzed in an environmental impact
statement. 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 FY. Further, given substantial differences in ACE
across sectors and among members within sectors, economic performance
may be expected to vary considerably.
Small entity impacts may differ depending on sector-specific
operations plans. The number of permits that have enrolled in each
sector, as well as the operating characteristics of the sector, may
have an economic affect on sector members (Table 1). The number of
permits enrolled in a sector ranges from 7 to 105. The allocation to
any given sector is based on the combined sum of the PSC for each stock
associated with all permits enrolled in that sector. All sector
operations plans convert the total ACE into an individual share
proportional to the PSC that each member brings to the sector. This
share is then allocated to the member to be fished by that member or
traded to another sector member.
Sector operations plans include a number of harvesting rules
designed to track catches, as required, but also contain provisions
that require advance notification of when the sector or sector member
may be approaching a harvest share limit or the sector's ACE for a
given stock. This system may provide the information needed to allow
sector members to more fully utilize their harvest share.
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 5.76 42 49.41
Northeast Fishery Sector III.................... 95 6.44 47 49.47
Northeast Fishery Sector IV..................... 43 2.92 0 0.00
Northeast Fishery Sector V...................... 34 2.31 27 79.41
Northeast Fishery Sector VI..................... 19 1.29 5 26.32
Northeast Fishery Sector VII.................... 20 1.36 13 65.00
Northeast Fishery Sector VIII................... 20 1.36 16 80.00
Northeast Fishery Sector IX..................... 60 4.07 25 41.67
Northeast Fishery Sector X...................... 51 3.46 21 41.18
Northeast Fishery Sector XI..................... 46 3.12 21 45.65
Northeast Fishery Sector XII.................... 11 0.75 6 54.55
Northeast Fishery Sector XIII................... 35 2.37 29 82.86
Fixed Gear Sector............................... 100 6.78 40 40.00
Sustainable Harvest Sector 1.................... 105 7.12 38 36.19
Sustainable Harvest Sector 3.................... 18 1.22 0 0.00
Port Clyde Sector............................... 39 2.64 24 61.54
Tri-State Sector................................ 19 1.29 6 31.58
Northeast Coastal Community Sector.............. 30 2.03 10 33.33
Maine Permit Bank Sector........................ 7 0.47 0 0.00
---------------------------------------------------------------
All Sectors................................. 837 56.75 370 44.21
----------------------------------------------------------------------------------------------------------------
* Number of permits in each sector is from sector operation plans and EAs submitted as of February 1, 2011.
These numbers may increase due to changes in permit ownership or decrease due to a permit holder dropping out
of a sector prior to the beginning of FY 2011.
** In 2010, 453 sector vessels were reported to be active vessels.
Table 5--Sector Catches and Projected ACL Use Rates for FY 2010
[May 1, 2010-March 26, 2010]
----------------------------------------------------------------------------------------------------------------
2007-2008
Percent sector Sector weekly Projected FY10 Average
Stock catch catch rate (%/ sector ACL utilization
week) utilization rate
----------------------------------------------------------------------------------------------------------------
GB Cod........................................ 69.3 1.4 75.1 44
GOM Cod....................................... 81.0 1.7 87.7 69
GB Haddock.................................... 16.1 0.3 17.4 17
GOM Haddock................................... 41.8 0.9 45.3 51
GB Yellowtail Flounder........................ 63.6 1.3 68.9 117
[[Page 23104]]
SNE/MA Yellowtail Flounder.................... 50.3 1.0 54.5 174
CC/GOM Yellowtail Flounder.................... 75.9 1.6 82.2 55
Plaice........................................ 52.0 1.1 56.4 28
Witch Flounder................................ 77.7 1.6 84.2 24
GB Winter Flounder............................ 70.0 1.5 75.8 48
GOM Winter Flounder........................... 57.4 1.2 62.2 NA
Redfish....................................... 27.8 0.6 30.1 46
White Hake.................................... 75.6 1.6 81.9 114
Pollock \1\................................... 29.9 0.6 32.4 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.
This action will 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 additional
exemptions requested by individual sectors. 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 extended to additional sectors
for the remainder of FY 2010 through supplemental rulemaking. The
exemptions in this rule were analyzed as though they were 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. All exemptions requested by
the sectors were intended to provide positive social and economic
effects to sector members and ports.
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
preferred alternative were considered. Under the No Action alternative,
none of the FY 2011 sector operations plans would be approved, none
would be approved to operate, none would receive an authorization to
fish, and no exemptions would be granted 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.
Below is the analysis for the preferred alternative, which is being
implemented in this final rule. An exemption for the following
requirements has been granted to the requesting sectors because each
sector's ACE reduces the need for effort controls, and there are
perceived economic benefits from such exemptions: (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; (8) prohibition on the possession or use of squid or
mackerel in the CA I Hook Gear Haddock SAP; (9) sink gillnet mesh size
restrictions on the GOM from January through April; (10) extension of
the sink gillnet mesh size restrictions on the GOM through the month of
May; (11) prohibition on discarding; (12) daily catch reporting by
Sector Managers for vessels participating in the CA I Hook Gear Haddock
SAP; (13) trawl gear restrictions in the U.S./Canada Management Area;
and (14) the requirement to power a VMS while at the dock; (16) DSM
requirements for Handgear A permitted sector vessels; (16) DSM
requirements for vessels fishing west of 72[deg]30' W. long.; and (17)
DSM Requirements for monkfish trips when fishing in the monkfish SFMA.
Exemption from the Day gillnet 120-day block out of the fishery
requirement was 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
allows sector members to realize the cost savings associated with
retiring the redundant vessel. Furthermore, this exemption provides
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.
[[Page 23105]]
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 requested
exemption from the prohibition on a vessel hauling gear that was set by
another vessel. The community fixed-gear exemption allows sector
vessels in the Day gillnet category to effectively pool gillnet gear
that may be hauled or set by sector members. This provision reduces 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, V-
VIII, and X-XIII; Sustainable Harvest Sectors 1 and 3; and the Tri-
State Sector was 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 increases 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 requested
an exemption from the limit on the number of nets (not to exceed 150)
that may be deployed by Day gillnet vessels. This exemption provides
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 requested an exemption from the 20-day spawning
block out of the fishery requirement. Exemption from the 20-day
spawning block improves 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 requested exemption from the number of hooks
that may be fished. These exemptions provide vessel owners in these
sectors with the flexibility to adapt the number of hooks fished to
existing fishing and market conditions. This exemption also provides 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 extends the potential economic benefits to more vessels in
other sectors.
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 requested
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 allows 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 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
are associated with the need to use groundfish DAS when fishing in
other fisheries, for example, monkfish.
The GB Cod Fixed Gear Sector 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 provides
participating sector vessels with greater operational flexibility to
choose the bait that best meets fishing circumstances. Participating
vessels are also able to use the bait of their choice, depending on
expected catch, as well as the cost of bait.
The exemption from sink gillnet mesh size restriction in the GOM
from January through April was 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 allows the use of 6-inch
(15.24-cm) mesh gillnets in the GOM RMA from January 1, 2012, through
April 30, 2012. This exemption provides 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.
The GB Cod Fixed Gear Sector, and Northeast Fishery Sectors III,
VI-VIII, and X requested an exemption from the sink gillnet mesh size
restriction in the GOM in May, thereby extending the sink gillnet mesh
size exemption in the GOM. This ancillary exemption to the sink gillnet
mesh size restriction in the GOM provides 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 5 months.
The GB Cod Fixed Gear Sector; and Northeast Fishery Sectors XI-XIII
requested an 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, which
creates 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
would allow sector vessels to
[[Page 23106]]
discard unmarketable fish, and would provide sector vessels more
operational flexibility and improves safety conditions at sea. It also
relieves the burden, if any, on sector vessels and their dealers to
find a way to dispose of the unmarketable fish once landed.
The GB Cod Fixed Gear Sector and the Northeast Coastal Communities
Sector 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 provides
some administrative relief to the sector. Reporting burden of
individual participating vessels remains 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 II and V, the Sustainable Harvest Sectors
1 and 3, and the Tri-State Sector requested an exemption from the trawl
gear requirements in the U.S./Canada Management Area. This exemption
allows 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 results 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 GB Cod Fixed Gear Sector; the Northeast Coastal Communities
Sector; Northeast Fishery Sectors IV, VI, and X; the Port Clyde
Community Groundfish Sector, and the Tri-State Sector 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 increase the cost
of operating a fishing vessel, whether the vessel is fishing or not.
This exemption provides 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 III and V-XIII; Sustainable Harvest
Sectors 1 and 3; and the Tri-State Sector requested partial exemptions
from DSM requirements. NMFS has approved exemptions to DSM requirements
for Handgear A permitted sector vessels, for vessels fishing west of
72[deg]30' W. long., and an exemption from DSM requirements for gillnet
and trawl vessels on concurrent multispecies and monkfish DAS when
using 10-inch (24.4-cm) or greater mesh fishing in the monkfish SFMA.
The cost of DSM for FY 2010 has been subsidized by NMFS. Based on
preliminary data, the overall average cost associated with DSM averaged
about $0.02 per landed pound of groundfish, but ranged from
approximately $0.01 to $0.06 per pound of groundfish landed. The
estimated cost per pound landed for monitored trips was based on
invoices received by sectors from May-February 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. Sectors are
reimbursed based upon an agreed-upon formula between the Gulf of Maine
Research Institute 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. 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 total 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,
however, FW 45 alters the coverage level. NMFS anticipated that 62
percent of trips will receive coverage in FY 2011. 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 these exemptions will alleviate all
up-front 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.
NMFS received several comments on those exemption requests that
NMFS identified as requests of concern in the proposed rule; however,
these comments did not provide any new or additional data to support
approval of these exemptions. For FY 2011, NMFS did not approve
requests for exemption from the following requirements: (18) Access to
GOM Rolling Closure Areas in May and June; (19) prohibition on pair
trawling; (20) minimum hook size requirements for demersal longline
gear; (21) minimum mesh size requirement on targeted redfish trips;
(22) Ruhle and Haddock Separator requirements to utilize the 98.4-inch
x 15.7-inch (250-cm x 40-cm) Eliminator Trawl in areas where these gear
types are approved; (23) all DSM and roving monitoring requirements;
(24) DSM requirements for hook vessels when the sector has caught less
than 10,000 lb (4,535.9 kg) of groundfish per year; (5) DSM
requirements in May when fishing in several Mid-Atlantic NMFS
Statistical Areas; (26) 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; (27) DSM requirements when at-sea monitoring has previously
observed the trip; (28) the requirement to delay offloading due to the
late arrival of the assigned monitor; (29) the prohibition on
offloading of non-allocated stocks prior to the arrival of the monitor;
and (30) the requirement to provide a sector roster to NMFS by the
specified deadline.
The GB Cod Fixed Gear Sector, the Northeast Coastal Communities
Sector, Northeast Fishery Sectors II and III, the Port Clyde Community
Groundfish Sector, and Sustainable Harvest Sectors 1 and 3 requested
access to specific blocks within the GOM Rolling Closure Areas
(Exemption 18), 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. However,
they also serve to protect spawning fish, as well as protected species
and therefore this exemption request was not approved for FY 2011.
Given higher catch per unit effort, sector vessels would have been able
to harvest available ACE at a lower
[[Page 23107]]
cost, since less fishing time would be required to harvest the same
amount of available ACE. Whether this would have resulted in higher
profitability is uncertain, since prices during May and June tend to be
lower due to larger supplies and somewhat lower fish 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 have offset some of the cost savings
associated with being able to obtain higher catch rates.
Northeast Fishery Sectors V-X and XIII requested an exemption from
the prohibition on pair trawling (Exemption 19). 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 have provided participating sector vessels with
greater operational flexibility. However, the high catch rates that
resulted from this fishing practice while under DAS management may not
have been as advantageous under sector management unless the practice
could be used to selectively target stocks for which a sector has a
comparatively large ACE. That is, characterizing the 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.
This exemption was disapproved in FY 2011 due to possible diminished
selectivity of the gear and potential interactions between protected
species.
The GB Cod Fixed Gear Sector and the Northeast Coastal Communities
Sector requested an exemption from the minimum hook size (Exemption
20). This exemption may have improved operational flexibility for
participating sector vessels, but it was uncertain whether the ability
to use alternative hook sizes would translate into improved
profitability, particularly if the larger hook does select for larger
fish, which do tend to fetch a premium price. Nevertheless, the
exemption would have improved flexibility and may have allowed delivery
of a broader range of fish sizes to final markets.
The GB Cod Fixed Gear Sector and Northeast Fishery Sectors II, V-X,
and XIII 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 have permitted development of a targeted fishery. The
proposed exemption would have offered participating sector vessels
greater operational flexibility. These sectors proposed that the
fishery using this exemption would have been monitored using 100-
percent observer coverage, and would have required 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 have been the requirement for daily reporting by the sector
manager. The extent to which observer costs would continue to be
subsidized is unknown, but may have been needed 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 requested an exemption
from gear restrictions in the U.S./Canada Management Area, and would
have allowed for the use of the 98.4-inch x 15.7-inch (250-cm x 40-cm)
Eliminator Trawl. This exemption would have allowed 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 have offered 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 was
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 have improved economic
profitability is uncertain, but would have been limited to vessels that
have already purchased the gear, would have been able to re-rig
existing gear at low cost, and would have accessed the areas where the
Ruhle trawl is already approved.
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 requested complete or
additional partial exemptions from DSM requirements. As stated above,
the cost of DSM for FY 2010 has been subsidized by NMFS. Based on
preliminary data, the overall average cost associated with DSM averaged
about $0.02 per landed pound of groundfish, but ranged from
approximately $0.01 to $0.06 per pound of groundfish landed. The
estimated cost per pound landed for monitored trips was based on
invoices received by sectors from May-February 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. Sectors are
reimbursed based upon an agreed formula between the Gulf of Maine
Research Institute 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. 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, however, FW
45 alters the coverage level. The actual overall average DSM cost per
pound landed will be zero for any lease-only sectors, and may have been
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 have
alleviated additional up-front costs associated with this program, as
well as the unreimbursed costs for monitoring of other stocks, and
therefore would have provided additional opportunity to reduce the
overhead costs of operating a fishing vessel, which may have resulted
in some additional improved profitability.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1966 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a letter to sector members that also serves as
small entity compliance guide (the guide) was prepared. Copies of this
final rule are available from the Regional Administrator. The guide and
this final rule will be available upon request.
Authority: 16 U.S.C. 1801 et seq.
[[Page 23108]]
Dated: April 18, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
[FR Doc. 2011-9711 Filed 4-19-11; 4:15 pm]
BILLING CODE 3510-22-P