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kg)). For example, if the GOM cod trip 

limit specified at § 648.86(b)(1) doubled, 

then the cod trip limit for the Handgear 

B category fishing in the GOM 

Regulated Mesh Area would also double 

to 150 lb (68 kg). 

(2) * * * 

(iv) Declaration. To fish for GB cod 

south of the GOM Regulated Mesh Area, 

as defined at § 648.80(a)(1), a vessel 

owner or operator must obtain, and 

retain on board, a letter of authorization 

from the Regional Administrator 

declaring an intent to fish south of the 

GOM Regulated Mesh Area, and may 

not fish in any other area for a minimum 

of 7 consecutive days from the effective 

date of the letter of authorization. Such 

a vessel may transit the GOM Regulated 

Mesh Area, provided that their gear is 

stowed in accordance with the 

provisions at § 648.23(b). 

* * * * * 

■ 9. In § 648.89, revise paragraph (e)(1) 

to read as follows: 

§ 648.89 Recreational and charter/party 

vessel restrictions. 

* * * * * 

(e) * * * 

(1) GOM Closed Areas. Unless 

otherwise specified in this paragraph 

(e)(1), a vessel fishing under charter/ 

party regulations may not fish in the 

GOM closed areas specified at 

§ 648.81(d)(1) through (f)(1) during the 

time periods specified in those 

paragraphs, unless the vessel has on 

board a valid letter of authorization 

issued by the Regional Administrator 

pursuant to § 648.81(f)(2)(iii) and 

paragraph (e)(3) of this section. The 

conditions and restrictions of the letter 

of authorization must be complied with 

for a minimum of 3 months if the vessel 

fishes or intends to fish in the seasonal 

GOM closure areas; or for the rest of the 

fishing year, beginning with the start of 

the participation period of the letter of 

authorization, if the vessel fishes or 

intends to fish in the year-round GOM 

closure areas. A vessel fishing under 

charter/party regulations may not fish in 

the GOM Cod Spawning Protection Area 

specified at § 648.81(o)(1) during the 

time period specified in that paragraph, 

unless the vessel complies with the 

requirements specified at 

§ 648.81(o)(2)(iii). 

* * * * * 

■ 10. In § 648.90, revise paragraph 

(a)(4)(iii)(E)(2) to read as follows: 

§ 648.90 NE multispecies assessment, 

framework procedures and specifications, 

and flexible area action system. 

(a) * * * 

(4) * * * 

(iii) * * * 

(E) * * * 

(2) Commercial allocation. The ABC/ 

ACL for regulated species or ocean pout 

stocks available to the commercial NE 

multispecies fishery, after consideration 

of the recreational allocation pursuant 

to paragraph (a)(4)(iii)(E)(1) of this 

section, shall be divided between 

sectors operating under an approved 

sector operations plan, as described at 

§ 648.87(c), and vessels operating under 

the provisions of the common pool, as 

defined in this part, based upon the 

cumulative PSCs of vessels/permits 

participating in sectors calculated 

pursuant to § 648.87(b)(1)(i)(E). Unless 

otherwise specified in paragraph (a)(5) 

of this section, regulated species or 

ocean pout catch by common pool and 

sector vessels shall be deducted from 

the sub-ACL/ACE allocated pursuant to 

this paragraph (a)(4)(iii)(E)(2) for the 

purposes of determining whether 

adjustments to common pool measures 

are necessary, pursuant to the common 

pool AMs specified in § 648.82(n), or 

whether sector ACE overages must be 

deducted, pursuant to § 648.87(b)(1)(iii). 

* * * * * 

[FR Doc. 2011–9705 Filed 4–19–11; 4:15 pm] 

BILLING CODE 3510–22–P 

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. 

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 


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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 TriState 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 selfselecting, 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 statemanaged 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. 

BILLING CODE 3510–22–P 


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BILLING CODE 3510–22–C 


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Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 23083 

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 subcomponent, 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 nonsignificant 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°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 §§ 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 

§ 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 § 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 TriState 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 (§ 648.80(a)(3)(iv)); 50 

gillnets in the GB RMA 

(§ 648.80(a)(4)(iv)); and 75 gillnets in the 

SNE and MA RMAs (§§ 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, 


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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 §§ 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 §§ 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 nonallocated 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 

(§ 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 


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use in accordance with one of the 

methods specified at § 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-bytrip 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 

(§ 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 legalsized unmarketable allocated fish will 

be accounted for in the overall sectorspecific discard rates in the same way 

discards of undersized fish are currently 

accounted for, through observer and atsea monitor coverage. The final 

supplemental rule to implement 

amendments to 17 FY 2010 sector 

operations plans and contracts initially 

defined unmarketable fish as ‘‘any legalsized 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 redefined 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 sectorspecific 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 


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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 § 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 underharvested 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 § 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 

§ 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 § 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 


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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°30′ W. long. 

Upon receiving requests for an 

exemption from the DSM requirement 

(§ 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°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°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°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 

§ 648.23(b) while steaming to or from 

areas west of 72°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°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 APermitted Sector Vessels 

The FY 2011 proposed rule included 

two requests for exemption from DSM 

requirements (§ 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 Bpermitted 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 Handgearpermitted 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 § 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 (§ 648.80(b)(2)(iv)). 

Monkfish management measures at 


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§ 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 (§ 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 § 648.23(b), 

and comply with dockside monitoring 

hail requirements specified at 

§ 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 SMPspecific 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 § 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 

(§ 648.85(b)(6)(iv)(J)), Eastern U.S./ 

Canada Haddock SAP (§ 648.85(b)(8)(v), 

and the Eastern U.S./Canada Area 

(§ 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 


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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 

§ 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 § 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 (§ 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 

(§ 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°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) 

(§ 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 

(§ 648.87(b)(1)(v)(B)(1)) when a trip has 

been monitored by either an at-sea 

monitor or fishery observer, stating that 


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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 atsea 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 § 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 NonAllocated 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 (§ 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 (§ 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°30′ W. long. NMFS 

acknowledges that there are additional 

costs for sector vessels under this comanagement 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 


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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 interrelated 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 suballocation 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 


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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 rosterspecific 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 


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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 RMAspecific 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 legalsized 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 legalsized fish at sea. This will ensure that 

the discards observed by NEFOP 

observers or at-sea monitors will 

accurately represent the activities on 


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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 legalsized 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 APermitted 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 handgearpermitted 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≥30′ W. long. 

Comment 20: Two comments were 

received on the request for an 

exemption from DSM requirements for 

vessels fishing west of 72°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 


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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 handgearpermitted common pool vessels from 

DSM; for vessels fishing exclusively 

west of 72°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 


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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 nontarget species. DMF cited its 

participation in the ongoing NMFSfunded 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 decisionmaking 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°30′ W. long, and for monkfish 

trips in the monkfish SFMA. The 

exemption from DSM for trips 

exclusively fishing west of 72°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 areaand 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°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 


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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°30′ W. long.; and 

for monkfish Category C- and Dpermitted 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 NonAllocated 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 nonallocated 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 § 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 tripend 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 


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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 § 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 § 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, 


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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 sectorspecific 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-todate 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, stateoperated 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 statefunded 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 


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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-ofinformation 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 


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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 straightline 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 

Sector 

Number of 

individual 

permits * 

Percent of 

individual 

permits 

Number of 

active 

permits * 

Percent of 

active 

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] 

Stock Percent sector 

catch 

Sector weekly 

catch rate 

(%/week) 

Projected 

FY10 sector 

ACL utilization 

2007–2008 

Average 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 


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TABLE 5—SECTOR CATCHES AND PROJECTED ACL USE RATES FOR FY 2010—Continued 

[May 1, 2010–March 26, 2010] 

Stock Percent sector 

catch 

Sector weekly 

catch rate 

(%/week) 

Projected 

FY10 sector 

ACL utilization 

2007–2008 

Average utilization rate 

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 

1The 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°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. 


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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 legalsize 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 


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23106 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

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°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 


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Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 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 upfront 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. 


srobinson on DSKHWCL6B1PROD with RULES3
23108 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

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 


srobinson on DSKHWCL6B1PROD with RULES3