[Federal Register Volume 75, Number 229 (Tuesday, November 30, 2010)]
[Rules and Regulations]
[Pages 73979-73981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30152]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100813358-0560-02]
RIN 0648-BA16


Fisheries of the Northeastern United States; Discard Provision 
for Herring Midwater Trawl Vessels Fishing in Groundfish Closed Area I

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

ACTION: Final rule.

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SUMMARY: Through this action, NMFS removes a regulatory exemption for 
midwater trawl herring vessels, which was originally implemented by a 
November 2, 2009, final rule. The exemption allowed midwater trawl 
vessels with an All Areas and/or Areas 2 and 3 Atlantic herring limited 
access permit fishing in Northeast (NE) multispecies Closed Area I (CA 
I) to release fish that cannot be pumped from the net at the end of 
pumping operations, without those fish being sampled by a NMFS at-sea 
observer. As a result of this rule, vessels will be required to bring 
the fish on board the vessel and make them available to the at-sea 
observer for sampling. The publication of this action is part of a 
Court-approved joint motion to stay pending litigation.

DATES: Effective January 31, 2011.

FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy Analyst, 
(978) 281-9341, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    On September 4, 2009, NMFS published a proposed rule (74 FR 45798) 
to implement changes to access requirements for midwater trawl vessels 
fishing in CA I, at the request of the New England Fishery Management 
Council (Council), with the intended goal of collecting better 
information on bycatch in the midwater trawl fishery. A final rule was 
published on November 2, 2009 (74 FR 56562), that implemented 
regulations requiring 100-percent observer coverage of trips by vessels 
with limited access Atlantic herring All Areas and/or Areas 2 and 3 
category permits fishing for herring in CA I with midwater trawl gear. 
The rule also prohibited these vessels from releasing fish from the 
codend of the net, transferring fish to another vessel that is not 
carrying an observer, or otherwise discarding fish at sea, unless the 
fish has first been brought on board the vessel and made available for 
sampling and inspection by the observer. The regulations implemented by 
the November 2, 2009, rule (74 FR 56562) provided the following 
exemptions to this prohibition:
    <bullet> The vessel operator has determined there is a compelling 
safety reason; or
    <bullet> A mechanical failure precludes bringing the fish aboard 
the vessel for inspection; or,
    <bullet> After pumping of fish onto the vessel has begun, the 
vessel operator determines that pumping becomes impossible as a result 
of spiny dogfish clogging the pump intake. Under this scenario, the 
vessel operator must take reasonable measures (such as strapping and 
splitting the net) to remove all fish that can be pumped from the net 
prior to release; or
    <bullet> When there are small amounts of fish that cannot be pumped 
and remain in the net at the completion of pumping operations.
    Additionally, under these regulations, if a codend is released in 
accordance with one of the first three exemptions, the vessel operator 
must complete and sign an affidavit to NOAA's Office of Law Enforcement 
(OLE) stating the vessel name and permit number; the vessel trip report 
(VTR) serial number; where, when, and for what reason the catch was 
released; the total weight of fish caught on that tow; and the weight 
of fish released (if less than the full tow). Completed affidavits are 
to be submitted to OLE at the conclusion of the trip. Following a 
released codend under one of the first three exemptions, the vessel may 
not fish in CA I for the remainder of the trip.
    The exception allowing small amounts of fish that cannot be pumped 
from the net (sometimes called operational discards) to be released 
unobserved from the net while still in the water was not specifically 
mentioned in the proposed rule. NMFS considered this exemption to be a 
logical outgrowth of the proposed rule that needed no further public 
comment because it addressed a foreseeable practical problem that a 
small amount of fish may be left in a net after pumping operations were 
completed.
    However, following publication of the final rule three fishermen 
filed a lawsuit challenging the exemption allowing the release of small 
amounts of fish that remain after pumping (Taylor et al. v. Locke, 09-
CV-02289-HHK). Plaintiffs alleged that this additional exemption 
violated the Administrative Procedure Act because it was not a 
``logical outgrowth'' of the proposed rule and should have been 
subjected to public comment, and that it violated conservation 
requirements of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) by allowing fish to be released 
from herring nets unobserved. Plaintiffs also claimed that the terms 
``small amounts of fish'' and ``at the completion of pumping 
operations'' were not adequately defined.
    Without admitting any violation of applicable law in publishing the 
original final rule, NMFS and the plaintiffs agreed to stay the 
litigation while NMFS repromulgated the challenged provision, to 
solicit public comment. On September 7, 2010, NMFS published a proposed 
rule (75 FR 54292), that repromulgated the challenged provision (Sec.  
648.80(d)(7)(ii)(D)) and solicited public comment on whether to retain, 
delete, or amend the additional exemption in question. The proposed 
rule sought comment on: Retaining the exemption as it currently exists 
(status quo); eliminating the exemption (Alternative 1); modifying the 
exemption by specifying a maximum of 200 lb (90.7 kg) of fish that 
could be released (Alternative 2); or modifying the exemption by 
requiring that the codend either be brought on board or lifted out of 
the water, at the captain's discretion, so the observer could better 
estimate the amount and type of fish being released (Alternative 3). 
Public comments were accepted through October 7, 2010. Comments 
received are summarized and responded to below.
    Based on public comment received, NMFS is implementing 
``Alternative 1,'' and is removing the exemption for operational 
discards at Sec.  648.80(d)(7)(ii)(D). Therefore, if fish remain in the 
net at the conclusion of pumping operations, those fish will have to be 
brought on board the vessel and made available for sampling and

[[Page 73980]]

inspection by the observer, unless one of the other three exemptions 
applies. Therefore, fish that have not been pumped on board the vessel 
may be released if the vessel operator finds that: Pumping the catch 
could compromise the safety of the vessel; mechanical failure precludes 
bringing some or all of a catch on board the vessel; or spiny dogfish 
have clogged the pump and consequently prevent pumping of the rest of 
the catch. If a net is released for any of these three reasons, the 
vessel operator must complete and sign a CA I Midwater Trawl Released 
Codend Affidavit stating where, when, and why the net was released, as 
well as a good-faith estimate of both the total weight of fish caught 
on that tow and the weight of fish released (if the tow had been 
partially pumped). The completed affidavit form must be submitted to 
NMFS within 48 hr of the completion of the trip.
    Following the release of a net for one of the three exemptions, the 
vessel is required to exit CA I. The vessel may continue to fish, but 
may not fish in CA I for the remainder of the trip.

Comments and Responses

    A total of 5,924 comments were received during the comment period 
for the proposed rule from: 2 representatives of the commercial herring 
midwater trawl industry; 2 coalitions of herring advocacy groups; 5 
representatives of recreational fishing organizations; 4 commercial 
groundfish organizations; 2 state elected officials (MA State Senator 
Robert A. O'Leary and MA State Representative Sarah K. Peake); 1 U.S. 
Congressman (Representative William Delahunt, MA); 6 environmental 
organizations; 1 community organization; 2 agriculture and fishery 
advocacy groups; the Atlantic States Marine Fisheries Commission 
(ASMFC); and 5,898 individuals. One comment was received after the 
close of the comment period. The vast majority of comments were form 
letters submitted by environmental organizations. The two 
representatives from the commercial herring midwater trawl industry 
supported the status quo. All other comments received supported 
Alternative 1 in the proposed rule. Alternatives 2 or 3 were not 
supported by any commenters and were criticized as being impractical or 
ineffective.
    Comment 1: The two representatives of the commercial midwater trawl 
herring industry supported the status quo measure and raised concerns 
about each of the proposed alternatives. To illustrate their concerns, 
they described current procedures and how these procedures are not 
compatible with the proposed alternatives. The commenters noted that, 
under current operations, a vessel typically brings the full net 
alongside the vessel, where the end of the net is hoisted aboard in 
order to attach the pump. The pump and net are then lowered back into 
the water and splitting lines and straps are used to move catch to the 
pump. When the pump is moving mostly water, with an occasional fish, 
pumping is stopped, and the pump is removed from the net, leaving the 
codend open and releasing any fish that are still in the net. The empty 
net is then brought aboard in order to reset clips and rings before 
being set out for the next tow. The commenters assert that it could be 
dangerous for a vessel to attempt to re-cinch the end of the net after 
pumping is concluded in order to then bring the net aboard with the 
remaining catch.
    Response: NMFS acknowledges that some vessels may need to adjust 
their fishing practices in order to remove the fish pump from the net 
without releasing the remaining fish, so that the fish in the net can 
be brought aboard for the observer to sample. The time between 
publication of this rule and when it becomes effective can be used by 
these vessels to develop alternative methods that allow safe operation 
within these requirements. A vessel may continue to fish outside of CA 
I while new procedures are developed. NMFS believes the safety and 
other exemptions sufficiently address commenters' concerns regarding 
the practical and safety operational difficulties of bringing nets on 
board vessels after pumping operations while creating a disincentive to 
invoke the exemption without justification. For any safety problems in 
bringing the net on board for inspection after pumping operations are 
complete, the vessel operator may take advantage of the exemption 
allowing release of fish for vessel safety. However, the vessel would 
still need to abide by the requirements of this exemption, including 
leaving CA I for the remainder of that trip.
    Comment 2: The two representatives of the commercial midwater trawl 
herring industry asserted that it is impossible for these vessels to 
safely bring full nets and brailers over the side or over the stern of 
the vessel. In contrast, several other commenters cited remarks from a 
member of the commercial herring midwater trawl industry at the July 
15, 2010, meeting of the Council's Atlantic Herring Plan Development 
Team, that a midwater trawl vessel could not bring aboard a full net, 
but could bring aboard up to 1 ton (907.1 kg) of fish in the net. A 
commenter who claimed experience on both midwater trawl and purse seine 
herring vessels also asserted that up to 1 ton (907.1 kg) of fish could 
safely be brought on board a midwater trawl vessel.
    Response: This action does not require full nets and brailers to be 
brought aboard a vessel. The intent of the subject exemption was the 
release of very small amounts of fish, perhaps a few hundred pounds per 
tow, which physically could not be pumped. It was not intended to cover 
the release of larger amounts of fish. Three other exemptions, for 
safety, mechanical failure, or spiny dogfish clogging the pump allow 
release of larger catches that cannot be pumped aboard.
    Comment 3: The representatives of the commercial midwater trawl 
herring industry stated that the proposed alternatives are unnecessary 
because at-sea observers are currently provided nearly every 
opportunity to estimate the volume, and most often the species of fish, 
remaining in the net before it is released. Conversely, on this subject 
several individuals, commercial groundfish organizations, and 
coalitions of herring advocacy groups opposed observer sampling 
protocols that rely on such ``visual access'' to the codend to estimate 
catch that is released. These commenters supported Alternative 1 as the 
only way to accurately account for all catch by the midwater trawl 
vessels operating in CA I.
    Response: When determining the volume of fish before release, the 
at-sea observer must often rely on the estimations provided by the 
vessel operator and crew who are much more familiar with the specific 
gear in use. Species identification of fish remaining in the net is not 
typically possible. Observers may be able to identify large-bodied 
organisms in the net, but are unable to reliably differentiate many 
fish to their species. Even if fish at the surface of the net are 
identifiable, the contents may not be homogeneous and the observer 
cannot determine the full composition of the net. Therefore, released 
catch is typically classified as ``Fish, NK'' (i.e., fish, species not 
known). The Council's request for increased observer coverage in CA I 
was intended in part to provide additional information on the total 
catch of this fishery that could then inform future management actions. 
In order to provide the most complete and valuable information for this 
purpose, it is important to record, as completely and accurately as 
possible, the catch of vessels subject to this increased observer 
coverage. The removal of this exemption may help to address continued 
questions regarding

[[Page 73981]]

stratification of catch within a net or whether the pump housing, which 
is primarily designed to keep the net out of the pump, might also 
exclude some larger bodied species.
    Comment 4: The ASMFC supported Alternative 1, but suggested NMFS 
periodically review this measure to determine if the level of data 
collection continues to be necessary and if the burden to the industry 
is justified.
    Response: This rule may be re-considered and even superseded by a 
future Council action modifying the catch monitoring program for the 
Atlantic herring fishery as a whole. If the Council does not choose to 
review and reevaluate the requirements for access to CA I, the 
regulations would still be subject to the normal periodic review 
process and could be changed to account for new information about the 
burden on the fishery if necessary or appropriate.
    Comment 5: No commenter supported either Alternative 2 or 
Alternative 3. Representatives of the commercial herring midwater trawl 
industry, representatives of commercial groundfish industry, and 
environmental groups all criticized these proposed alternatives as 
being unworkable.
    Response: As explained in the proposed rule, these alternatives 
were intended as examples of possible modification to the existing 
regulation. The limit on how much can be released in Alternative 2 
would be difficult to estimate, and could put the observer in an 
enforcement role. Alternative 3 would require the vessel crew to re-
cinch the net after pumping, which is one of the major hurdles to 
bringing the catch on board. In addition, raising the net out of the 
water does not address the question of catch composition within the net 
and may pose even more logistical problems than bringing the net and 
catch on board. Therefore, NMFS did not consider either of these as 
acceptable alternatives for this final rule.
    Comment 6: Some commenters objected to the Council granting 
midwater trawl vessels access to CA I for various reasons, including 
that midwater trawl access to groundfish closed areas was authorized 
based on less research and analysis than was required for the 
establishment of the NE Multispecies CA I Hook Gear Haddock Special 
Access Program (SAP). These comments included opposition to all 
midwater trawling, requests that the 100 percent observer coverage 
requirements apply to all groundfish closed areas, questions on the use 
and enforcement of the Closed Area I Midwater Trawl Released Codend 
Affidavit, and objections to the Council's requirement that in order to 
access CA I vessels targeting groundfish through the NE Multispecies CA 
I, Hook Gear Haddock Special Access Program had to meet a higher hurdle 
in terms of documenting bycatch than did midwater trawl vessels.
    Response: These comments question the underlying provision of 
allowing midwater trawl vessels access to CA I, and other attendant 
requirements, which is beyond the scope of this rule, and, therefore 
not addressed in this final rule.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this final rule is 
consistent with the Atlantic Herring and NE Multispecies FMPs, other 
provisions of the Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. NMFS received no comments 
questioning or regarding this certification.

    Dated: November 24, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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


Sec.  648.80  [Amended]

0
2. In Sec.  648.80, remove paragraph (d)(7)(ii)(D).

[FR Doc. 2010-30152 Filed 11-29-10; 8:45 am]
BILLING CODE 3510-22-P