Federal Register / Vol. 75, No. 229 / Tuesday, November 30, 2010 / Rules and Regulations 73979 

and 315, specifically asking the 

applicants to certify that the proposed 

assignment or transfer complies with 

the unjust enrichment provisions of the 

Commission’s competitive bidding 

rules. The instructions for FCC Form 

316 have been revised to assist 

applicants with completing the new 

questions. 

Federal Communications Commission. 

Gloria Miles, 

Federal Register Liaison. 

[FR Doc. 2010–29671 Filed 11–29–10; 8:45 am] 

BILLING CODE 6712–01–P 

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. 

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: 

• The vessel operator has determined 

there is a compelling safety reason; or 

• A mechanical failure precludes 

bringing the fish aboard the vessel for 

inspection; or, 

• 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 

• 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 

(§ 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 

§ 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 


jdjones on DSK8KYBLC1PROD with RULES
73980 Federal Register / Vol. 75, No. 229 / Tuesday, November 30, 2010 / Rules and Regulations 

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 goodfaith 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 recinch 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 atsea 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 largebodied 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 


jdjones on DSK8KYBLC1PROD with RULES
Federal Register / Vol. 75, No. 229 / Tuesday, November 30, 2010 / Rules and Regulations 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 reconsidered 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 recinch 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. 

■ For the reasons set out in the 

preamble, 50 CFR part 648 is amended 

as follows: 

PART 648—FISHERIES OF THE 

NORTHEASTERN UNITED STATES 

■ 1. The authority citation for part 648 

continues to read as follows: 

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

§ 648.80 [Amended] 

■ 2. In § 648.80, remove paragraph 

(d)(7)(ii)(D). 

[FR Doc. 2010–30152 Filed 11–29–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 0910131362–0087–02] 

RIN 0648–XA066 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Big Skate in the 

Central Regulatory Area of the Gulf of 

Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting retention 

of big skate in the Central Regulatory 

Area of the Gulf of Alaska (GOA). This 

action is necessary because the 2010 

total allowable catch (TAC) of big skate 

in the Central Regulatory Area of the 

GOA has been reached. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), November 24, 2010, 

through 2400 hrs, A.l.t., December 31, 

2010. 

FOR FURTHER INFORMATION CONTACT: Josh 

Keaton, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

The 2010 TAC of big skate in the 

Central Regulatory Area of the GOA is 

2,049 metric tons (mt) as established by 

the final 2010 and 2011 harvest 

specifications for groundfish of the GOA 

(75 FR 11749, March 12, 2010). 

In accordance with § 679.20(d)(2), the 

Administrator, Alaska Region, NMFS 

(Regional Administrator), has 

determined that the 2010 TAC of big 

skate in the Central Regulatory Area of 

the GOA has been reached. Therefore, 

NMFS is requiring that big skate caught 

in the Central Regulatory Area of the 

GOA be treated as prohibited species in 

accordance with § 679.21(b). 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 


jdjones on DSK8KYBLC1PROD with RULES