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[Federal Register Volume 75, Number 170 (Thursday, September 2, 2010)]
[Proposed Rules]
[Pages 53939-53946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21996]

[[Page 53939]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100818375-0379-02]
RIN 0648-XX84

Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; Proposed Rule To 
Implement Addenda to 17 Fishing Year (FY) 2010 Sector Operations Plans 
and Contracts

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This action proposes to add certain exemptions from Federal 
fishing regulations to some or all Northeast (NE) multispecies sector 
operations plans that were previously approved by the final sector rule 
published April 9, 2010. That rule approved FY 2010 sector operations 
plans and contracts and allocations of Annual Catch Entitlements (ACE) 
for 17 sectors in the NE multispecies fishery. In addition to several 
universal exemptions approved in the final rule for Amendment 16 the NE 
Multispecies Fisheries Management Plan (FMP), the final sector rule 
also approved several additional exemptions from NE multispecies 
regulations for those sectors that requested them through their 
respective sector operations plans. The sectors requested several 
exemptions in the FY 2010 operations plans that NMFS subsequently 
disapproved for various reasons, including that they were not allowed 
as exemptions under Amendment 16, or that they were being addressed in 
the Amendment 16 proposed rule. Among these was a request to 
participate in the Gulf of Maine (GOM) Haddock Sink Gillnet Pilot 
Program, a program proposed in Amendment 16 that would have allowed the 
seasonal use of 6-inch (15.24-cm) mesh gillnets in the GOM Regulated 
Mesh Area (RMA) to target haddock. The GOM Sink Gillnet Pilot Program 
was subsequently disapproved by NMFS in Amendment 16. NMFS has 
undertaken this action to consider an exemption functionally equivalent 
to the GOM Haddock Sink Gillnet Pilot Program for all FY 2010 sectors. 
NMFS is also considering granting an exemption that would allow the 
discarding of unmarketable fish at sea.

DATES: Written comments must be received on or before September 17, 
2010.

ADDRESSES: You may submit comments, identified by 0648-XX84, 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: Melissa Vasquez.
     Mail: Paper, disk, or CD-ROM comments should be sent to 
Patricia A. Kurkul, Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the 
outside of the envelope: ``Comments on 2010 Sector Exemption Rule.''
    Instructions: All comments received are part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. No comments will be posted for public viewing until after the 
comment period has closed. All Personal Identifying Information (for 
example, name, address, etc.) voluntarily submitted by the commenter 
may be publicly accessible. Do not submit Confidential Business 
Information or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter N/A in the required fields, if you 
wish to remain anonymous). You may submit attachments to electronic 
comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file 
formats only.
    Copies of requests for addenda to the FY 2010 sector operations 
plans and contracts, and the supplemental environmental assessment 
(EA), are available from the NMFS NE Regional Office at the mailing 
address specified above. An Initial Regulatory Flexibility Analysis 
(IRFA) was prepared for this proposed rule and is comprised of the EA, 
the preamble, and the Classification sections of the proposed rule.

FOR FURTHER INFORMATION CONTACT: Melissa Vasquez, Fishery Policy 
Analyst, phone (978) 281-9166, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: This action proposes to implement addenda to 
FY 2010 NE multispecies sector operations plans and contracts that 
would add certain exemptions from Federal fishing regulations for FY 
2010 sectors. The Administrator, NE Region, NMFS (Regional 
Administrator), has made a preliminary determination that the addenda 
to the 17 approved FY 2010 sector operations plans and contracts are 
consistent with the goals of the FMP as described in Amendment 16, and 
other applicable laws, and are in compliance with the regulations that 
govern NE multispecies sector allocation management as specified in 50 
CFR 648.87.

Background

    A final rule published April 9, 2010 (75 FR 18113), approved FY 
2010 sector operations plans and contracts and allocations of ACE for 
17 NE multispecies sectors. The Amendment 16 regulations governing the 
development of sector operations plans and contracts allow for a sector 
to request exemptions from Federal fishing regulations through the 
sector operations plan and contract submitted to NMFS for approval on 
an annual or bi-annual basis (Sec.  648.87(b)(2)(xv)). Pursuant to 
Sec.  648.87(c)(2), the Regional Administrator may exempt vessels 
participating in a sector from certain Federal fishing regulations, in 
addition to the Amendment 16 universal exemptions already approved for 
all sectors. Regulations prohibit sectors from requesting exemptions 
that involve NE multispecies year-round closure areas, permitting 
restrictions (e.g., vessel upgrades, etc.), gear restrictions designed 
to minimize habitat impacts (e.g., roller gear restrictions, etc.), and 
reporting requirements (not including days-at-sea (DAS) reporting 
requirements or Special Access Program (SAP)-specific reporting 
requirements). For FY 2010, the final rule implementing FY 2010 sectors 
approved several new exemptions from NE multispecies regulations for 
those sectors that requested them through their sector operations 
plans. Specifically, certain sectors received exemptions from the 
following measures: (1) 120-day blockout of the fishery required for 
Day gillnet vessels; (2) 20-day spawning blockout of the fishery 
required for all vessels; (3) limitation on the number of gillnets 
imposed on Day gillnet vessels; (4) prohibition on a vessel hauling 
another vessel's gillnet gear; (5) limitation on the number of gillnets 
that may be hauled on Georges Bank (GB) when fishing under a 
groundfish/monkfish DAS; (6) limits on the number of hooks that may be 
fished; and (7) DAS Leasing Program length and horsepower restrictions.
    The sectors also requested several exemptions in the FY 2010 
operations plans that NMFS subsequently disapproved, because they are 
prohibited from being requested or because similar exemption requests

[[Page 53940]]

were being addressed in the Amendment 16 proposed rule. Among these was 
a request by the Sustainable Harvest Sector to participate in the GOM 
Haddock Sink Gillnet Pilot Program, a program proposed in Amendment 16 
that would have allowed the seasonal use of 6-inch (15.24-cm) mesh 
gillnets in the GOM RMA (as opposed to the current 6.5-inch (16.51-cm) 
mesh requirement) for the purposes of targeting GOM haddock.
    Upon initial review of the FY 2010 sector operations plans and 
contracts, NMFS requested that sectors remove exemption requests that 
repeated measures already proposed under Amendment 16, including the 
GOM Haddock Sink Gillnet Pilot Program. The Pilot Program was 
subsequently disapproved by NMFS in Amendment 16 because of concern 
that it could increase catch of overfished stocks, such as cod, and 
therefore undermine the rebuilding programs for these stocks.
    In comments on the proposed FY 2010 sector rule, the Sustainable 
Harvest Sector, the New England Fishery Management Council (Council), 
and 14 other commenters asked what actions NMFS was considering for 
exemption requests such as the pilot program that were removed from 
sector operations plans to reduce duplication with Amendment 16, but 
which were subsequently disapproved. NMFS responded in a March 23, 
2010, letter to the Council that it would work with sector managers 
regarding reconsideration of the pilot program for sectors in a 
separate rulemaking. At that time, NMFS noted it would also consider 
granting approved sector exemption requests to all FY 2010 sectors, if 
appropriate, through additional rulemaking. As a result, in April 2010, 
NMFS solicited requests from the approved FY 2010 sectors to determine 
if they would be interested in an exemption that would be functionally 
equivalent to the GOM Haddock Sink Gillnet Pilot Program, as well as 
any additional exemptions approved in the final sector rule which their 
sector had not previously requested. In response, all 17 sectors 
submitted requests for addenda to their operations plans and contracts 
to incorporate additional exemptions. Therefore, 17 addenda to the 
approved FY 2010 sector operations plans and contracts, and the 
additional exemptions requested therein, are being proposed for 
implementation in this proposed rule.
    Among the exemptions being proposed is a partial exemption from the 
requirement to retain and land all legal-sized fish of the 14 stocks 
allocated to sectors. Recently, NMFS has received correspondence from 
members of industry and sector managers expressing concerns with the 
prohibition on discarding legal-sized fish of allocated stocks by 
sector vessels, specifically legal-sized unmarketable fish. Regulations 
at Sec.  648.87 (b)(1)(v)(A) specifically prohibit sector vessels from 
discarding legal-sized regulated species allocated to sectors. This 
requirement applies to all fish or pieces of fish above the minimum 
size, including fish that may be considered unmarketable, as well as 
carcasses. Sector members and managers have stated that the need to 
separate the unmarketable fish from the food-grade product within 
limited deck and storage space has created operational difficulties and 
potential safety hazards at sea. Although this problem was raised to 
the Council during the development of Amendment 16, no exceptions to 
this requirement were considered or recommended.
    To address this concern, this action proposes a partial exemption 
in each sector operations plan from the prohibition on discarding of 
legal-sized unmarketable fish of allocated stocks, provided that the 
legal-sized unmarketable fish are accounted for in the discard rate, as 
determined through observer coverage, similar to how other allowable 
discards are accounted for. For the purposes of this exemption, 
unmarketable fish is defined as any legal-sized fish the vessel owner/
captain elects not to retain, because of condition or marketability 
problems.

Proposed Exemptions

    The final rule approving FY 2010 sector operations plans and 
contracts granted additional exemptions only to the sectors that 
originally requested those exemptions. NMFS is proposing expanding 
these previously approved sector-specific exemptions to those 
additional sectors that have requested them through addenda to their FY 
2010 sector operations plans and contracts. Of the 17 sectors that 
requested additional exemptions, 13 sectors requested all of the 
approved FY 2010 sector exemptions which they had not previously 
requested, 2 sectors requested 3 additional exemptions, 1 sector 
requested 2 additional exemptions, and 1 sector requested only one 
additional exemption (Table 1). One sector also requested 4 new 
exemptions that had not been previously approved for FY 2010 sectors. 
Those new exemptions are not being proposed in this action, because it 
was determined that adding these exemptions to the list of alternatives 
could result in implementation delays that would reduce the efficacy of 
this action for FY 2010 sectors. However, sectors will be able to 
propose these and other new exemptions in their operations plans for FY 
2011.

[[Page 53941]]

[GRAPHIC] [TIFF OMITTED] TP02SE10.007

    The following are the previously approved exemptions expanded to 
additional sectors, as well as new exemptions proposed in this rule:

1. GOM Haddock Sink Gillnet Exemption (Newly Proposed for Sectors)

    This exemption is functionally equivalent to a pilot program that 
was proposed by the Council in Amendment 16 to allow vessels to 
potentially catch more haddock seasonally in the GOM. The regulations 
currently require a minimum mesh size of 6.5-in (16.51-cm) for gillnets 
in the GOM RMA (Sec.  648.80(a)(3)(iv)). Minimum mesh size requirements 
have been used, along with other management measures, to reduce overall 
mortality on groundfish stocks, as well as to reduce discarding and 
improve survival of sub-legal groundfish. This exemption would allow FY 
2010 sector vessels to use 6-inch (15.24-cm) mesh stand-up gillnets in 
the GOM RMA from January 1, 2011 to April 30, 2011, when fishing for 
haddock. The designation of this season is consistent with the original 
pilot program proposal and is the time period when haddock are most 
available in the GOM. Sector vessels utilizing this exemption would be 
prohibited from using tie-down gillnets during this period. The GOM 
Haddock Sink Gillnet Program, as proposed by the Council, included the 
provision that Day gillnet vessels would not be able to fish with, 
possess, haul, or deploy more than 30 nets per trip. Consistent with 
the original scope of the pilot program, NMFS is proposing that Day 
gillnet vessels utilizing this exemption also be limited to 30 nets per 
trip during this period. However, to maximize the flexibility for 
sector vessels fishing under this exemption, as well as the general 
utility of this exemption, NMFS is requesting public comment on a net 
limit between 30 and 150 stand-up nets for Day gillnet vessels 
utilizing the GOM Sink Gillnet Exemption. NMFS has analyzed the impacts 
of Day gillnet vessels using up to 150 nets, the most expansive number, 
in the supplemental EA prepared for this action. Day gillnet vessels 
participating in sectors granted the exemption from Day gillnet net 
limits, are exempt from the general net limit in the GOM RMA, and would 
be able to fish up to 150 nets in the GOM RMA when not participating in 
this program. The Letter of Authorization (LOA) issued to the sector 
vessels that qualify for this exemption will specify the net 
restrictions to help ensure the provision is enforceable. There would 
be no limit on the number of nets that participating Trip gillnet 
vessels would be able to fish with, possess, haul, or deploy, during 
this period, because Trip gillnet vessels are required to remove all 
gillnet gear from the water before returning to port at the end of a 
fishing trip.

[[Page 53942]]

    This exemption would provide sector vessels the opportunity to 
potentially catch more haddock in the GOM, a fully rebuilt stock. 
Recent gillnet selectivity studies, explained in the Amendment 16 Final 
Environmental Impact Statement (FEIS), indicate that 6.5-inch (16.51 
cm) sink gillnets retain few haddock and that 6-inch (15.24 cm) mesh 
gillnets might improve the ability for gillnets to better target 
haddock. However, the Amendment 16 FEIS also noted that gillnets are 
effective at catching cod and pollock and that, if the catch rates of 
these species were to be maintained or increased under the pilot 
program, mortality on these stocks could increase. NMFS disapproved the 
GOM Haddock Sink Gillnet Pilot Program in the final rule implementing 
Amendment 16 because of its potential to increase catch and fishing 
mortality of GOM cod and pollock, two stocks that, at the time, both 
required reductions in mortality under established rebuilding programs, 
without substantially increasing the catch of haddock. Recently, new 
scientific information has indicated that pollock is not overfished, 
overfishing is not occurring, and the stock is rebuilt. NMFS believes 
that impacts to allocated target stocks, like GOM cod, resulting from 
this exemption would be expected to be negligible, because fishing 
mortality by sector vessels is restricted by an ACE for allocated 
stocks, which caps overall mortality. This exemption may increase 
revenues for sectors fishing with gillnet gear, by allowing a greater 
catch of haddock to be retained, thus increasing efficiency and revenue 
in the fishery.
    A comment by the Conservation Law Foundation on the Amendment 16 
proposed rule expressed concern that the original GOM Haddock Sink 
Gillnet Pilot Program could impact Atlantic wolffish, which migrate 
through the proposed program area. The 2008 report of the Northeast 
Data Poor Stocks Working Group Meeting noted only a weak indication of 
seasonal migration by wolffish in the GOM as they move from shallow to 
deep water in autumn and then deep to shallow water in spring. It may 
be that smaller mesh gillnets would increase or decrease catch of 
wolffish during January through April; however, there is little 
information at this time that would support either conclusion. 
Furthermore, bycatch of wolffish and other non-allocated stocks when 
fishing under this exemption would be tied to effort on allocated 
stocks, which would be limited overall by the sector's ACE. NMFS will 
monitor the level of bycatch of groundfish to determine whether it is a 
problem under this exemption.
    It is possible that a higher net limit for Day gillnet vessels 
participating in this program could result in an increase in the number 
of gillnets in the water at one time and therefore potentially increase 
interactions with protected species. However, if additional nets result 
in greater efficiency, then it is also possible that an increase in 
nets could decrease the overall number of soak hours throughout the 
year, thus potentially reducing interactions with protected species. 
Sector vessels utilizing this exemption would still be required to 
comply with all requirements of the Harbor Porpoise Take Reduction Plan 
and Atlantic Large Whale Take Reduction Plan. The GOM Haddock Sink 
Gillnet exemption has been requested by Northeast Fishery Sectors II 
and III, V-VIII, and X-XII, the Sustainable Harvest Sector, the Port 
Clyde Community Groundfish Sector, the GB Cod Fixed Gear Sector and the 
Tri-State Sector.

2. Discarding Exemption

    The regulations prohibit sector vessels from discarding any of the 
14 legal-sized regulated species allocated to sectors (Sec.  
648.87(b)(1)(v)(A)). Amendment 16 implemented this provision to ensure 
that the sector's ACE is accurately monitored. Members of industry have 
requested a partial exemption from this requirement with respect to 
unmarketable fish, because of concerns that retaining and landing large 
amounts of unmarketable fish and carcasses is creating operational 
difficulties and unsafe working conditions for sector vessels at sea. 
Available data from the Northeast Fishery Observer Program (NEFOP) for 
sector trips monitored during the first three months of FY 2010 
indicate that sector vessels may land as much as 1,000 lb (453.59 kg) 
of damaged fish and carcasses on a given trip. To comply with this 
requirement, sector vessels have had to store this unmarketable fish on 
the vessel, in some cases in totes on deck, creating unsafe work 
conditions. Anecdotal information suggests that fish dealers typically 
dispose of unmarketable fish for sector vessels as a courtesy. However, 
there is currently little data available to indicate the scope of this 
occurrence among dealers, and any other methods of disposal used by 
sector vessels.
    The Regional Administrator is proposing a partial exemption from 
the requirement to retain all legal-sized fish for FY 2010 sectors that 
would allow sector vessels to discard these fish under the condition 
that legal-sized unmarketable allocated fish are accounted for in the 
overall sector-specific discard rates in the same way discards of 
undersized fish are currently accounted for, through observer or at-sea 
monitoring coverage. This exemption would enhance operational 
flexibility and safer working conditions to sector vessels. In 
addition, this exemption would 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 would be at the discretion of the vessel operator. There 
would be 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 would still count against the 
sector's ACE without any financial benefit. Thus, it is unlikely that 
this exemption would lead to more discards, but would provide that 
flexibility to sector vessels. This exemption would be expected to 
result in negligible impacts to allocated species and non-allocated 
species and bycatch, because discarded fish are already deceased. 
Impacts to protected resources and the physical environment would also 
be 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 the 
unmarketable fish, thereby resulting in a low positive impact on sector 
participants and ports. This exemption is proposed for 16 sectors: 
Sustainable Harvest Sector, the Tri-State Sector, the GB Cod Fixed Gear 
Sector, the Port Clyde Community Groundfish Sector, the Northeast 
Coastal Communities Sector, and Northeast Fishery Sectors II and III, 
and V-XIII.

3. 120-Day Block Requirement Out of the Fishery for Day Gillnet Vessels

    The 120-day block requirement out of the fishery for Day gillnet 
vessels was implemented in 1997 under Framework 20 (62 FR 15381, April 
1, 1997) to help ensure that management measures for Day gillnet 
vessels were comparable to effort controls placed on other fishing gear 
types, given that gillnets continue to fish as long as they are in the 
water. Regulations at Sec.  648.82(j)(1)(ii) require that each NE 
multispecies gillnet vessel declared into the Day gillnet category 
declare and take 120 days out of the non-exempt gillnet fishery. Each 
period of time taken must be a minimum of 7 consecutive days, and at 
least 21 of the 120 days must be taken between June 1

[[Page 53943]]

and September 30. An exemption to this requirement was previously 
approved for the following six sectors in the final rule approving FY 
2010 sector operations plans and contracts: Northeast Fishery Sectors 
(NEFS) III and XI, the GB Bank Cod Fixed Gear Sector, the Sustainable 
Harvest Sector, the Tri-State Sector, and the Port Clyde Community 
Groundfish Sector. This action proposes that eight additional sectors 
would be exempted from this Day gillnet requirement through an 
operations plan addendum: Northeast Fishery Sectors II, V-VIII, X and 
XII, and the Tri-State Sector. This exemption was previously approved 
for the FY 2010 sectors that originally requested this 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. Under this proposed rule, this exemption for all 
sectors would increase the operational flexibility of sector vessels 
and would be expected to increase profit margins of sector fishermen. 
For additional information on this exemption, please refer to the 
proposed and final sector rule (74 FR 68015 and 75 FR 18113), 
respectively.

4. 20-Day Spawning Block

    Regulations at Sec.  648.82(g) require vessels to declare out and 
be out of the NE multispecies DAS program for a 20-day period each 
calendar year between March 1 and May 31, when spawning is most 
prevalent in the GOM. This regulation was developed to reduce fishing 
effort on spawning groundfish stocks and was previously 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. Exemption from this requirement would provide vessel 
owners with greater flexibility to plan operations according to fishing 
and market conditions. For additional information on this exemption, 
please refer to the proposed and final sector rule (74 FR 68015 and 75 
FR 18113), respectively. This exemption was previously approved for the 
Sustainable Harvest Sector, the Tri-State Sector, and the Northeast 
Coastal Communities Sector. An additional 13 sectors would receive this 
exemption through this action: Northeast Fishery Sectors II and III, 
and V-XIII, the GB Cod Fixed Gear Sector, and the Port Clyde Community 
Groundfish Sector.

5. Limitation on the Number of Gillnets for Day Gillnet Vessels

    Current gear restrictions in the groundfish RMAs restrict Day 
gillnet vessels from fishing more than: 100 gillnets (of which no more 
than 50 can be groundfish gillnets) in the GOM RMA (Sec.  
648.80(a)(3)(iv)); 50 gillnets in the GB RMA (Sec.  648.80(a)(4)(iv)); 
and 75 gillnets in the Mid-Atlantic (MA) RMA (Sec.  648.80(b)(2)(iv)). 
This exemption, as previously approved for the Sustainable Harvest 
Sector in the final sector rule for FY 2010, allows sector vessels to 
fish up to 150 nets (any combination of flatfish or groundfish nets) in 
each of the RMAs, and would provide greater operational flexibility to 
sector vessels in deploying gillnet gear. This exemption was previously 
approved because it is designed to control fishing effort and is no 
longer necessary for sector vessels, since each sector is restricted by 
an ACE for each stock, which caps overall fishing mortality. For 
additional information on this exemption, please refer to the proposed 
and final sector rule (74 FR 68015 and 75 FR 18113), respectively. 
Since publication of the final sector rule for FY 2010, this exemption 
has been requested by 12 additional sectors: The Port Clyde Community 
Groundfish Sector, the Tri-State Sector, the GB Cod Fixed Gear Sector, 
the Northeast Fishery Sectors II and III, V-VIII, and X-XII.

6. Prohibition on a Vessel Hauling Another Vessel's Gillnet Gear

    Northeast Fishery Sectors III and XI received an exemption for FY 
2010 from current regulations that prohibit one vessel from hauling 
another vessel's gillnet gear (Sec. Sec.  648.14(k)(6)(ii)(A) and 
648.84) in order to share fixed gear among sector vessels. This 
exemption was originally approved to allow sector vessels to reduce 
costs by pooling gillnet gear, and 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. 
Consistent with the exemption as originally approved, the sectors 
requesting this exemption have proposed that all vessels utilizing 
community fixed gear be jointly liable for any violations associated 
with that gear. For additional information on this exemption, please 
refer to the proposed and final sector rule (74 FR 68015 and 75 FR 
18113), respectively. This exemption is proposed for an 11 additional 
sectors: The Northeast Fishery Sectors II, V-VIII, X and XII, the 
Sustainable Harvest Sector, the Port Clyde Community Groundfish Sector, 
the GB Cod Fixed Gear Sector and the Tri-State Sector.

7. Limitation on the Number of Gillnets That May Be Hauled on GB When 
Fishing Under a Groundfish/Monkfish DAS

    The GB Cod Fixed Gear Sector received an exemption for FY 2010 from 
the limit on the number of gillnets that may be hauled on GB when 
fishing under a groundfish/monkfish DAS. Current regulations at Sec.  
648.80(a)(4)(iv) prohibit Day gillnet vessels fishing on a groundfish 
DAS from possessing, deploying, fishing, or hauling more than 50 nets 
on GB. This exemption was previously approved, because it would allow 
nets deployed under existing net limits of the Monkfish FMP to be 
hauled more efficiently by vessels dually permitted under both FMPs. 
For additional information on this exemption, please refer to the 
proposed and final sector rule (74 FR 68015 and 75 FR 18113), 
respectively. This exemption is proposed for an additional 12 sectors 
for FY 2010: Northeast Fishery Sectors II and III, V-VIII, and X-XII, 
the Sustainable Harvest Sector, the Port Clyde Community Groundfish 
Sector, and the Tri-State Sector.

8. Limitation on the Number of Hooks That May Be Fished

    The GB Cod Fixed Gear Sector was granted an exemption for FY 2010 
from the number of hooks that a vessel may fish on a given fishing 
trip. Current regulations (Sec.  648.80) 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 
Southern New England (SNE) RMA, or 4,500 rigged hooks in the MA RMA. 
This exemption was approved in the final sector rule 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. For 
additional information on this exemption, please refer to the proposed 
and final sector rule (74 FR 68015 and 75 FR 18113), respectively. This 
exemption has been granted to the GB Cod Hook Sector every year since 
2004. This action proposes that an additional 13 sectors would be 
exempted from this requirement: the Northeast Fishery Sectors II and 
III, V-VIII, and X-XII, the Sustainable Harvest Sector, the Port Clyde 
Community Groundfish Sector, the Tri-State Sector, and the Northeast 
Coastal Communities Sector.

[[Page 53944]]

9. 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 catch must fish under both a monkfish and 
a groundfish DAS. Therefore, sector vessels may still use, and lease, 
NE multispecies DAS.
    The Sustainable Harvest Sector and Tri-State Sector received an 
exemption from the DAS Leasing Program length and horsepower baseline 
restrictions on DAS leases between vessels within their individual 
sectors as well with vessels in other sectors with this exemption. 
Restricting sectors to their ACEs eliminates the need to use vessel 
characteristics to control fishing effort. Further, exemption from this 
restriction allows sector vessels greater flexibility in the 
utilization of ACE and DAS. Approving this exemption for additional 
sectors could increase the profitability of sector participants by 
expanding the pool of eligible lessors and lessees for any given 
vessel. Providing greater flexibility in the distribution of DAS could 
result in increased effort on non-allocated target stocks, such as 
monkfish and skates. However, sectors predicted little consolidation 
and redirection of effort in their FY 2010 operations plans. In 
addition, any potential redirection in effort would be restricted by 
the sector's ACE for each stock, as well as effort controls in other 
fisheries (e.g., trip limits and DAS). For additional information on 
this exemption, please refer to the proposed and final sector rule (74 
FR 68015 and 75 FR 18113), respectively. This proposed action would 
exempt the Northeast Fishery Sectors II-XIII, the GB Cod Fixed Gear 
Sector, and the Port Clyde Community Groundfish Sector from the 
requirements.

Supplemental Environmental Assessment

    In accordance with the National Environmental Policy Act, one 
supplemental EA was prepared for the 17 operations plan addenda. The 
supplemental EA is tiered from the Environmental Impact Statement (EIS) 
for Amendment 16 and the 17 sector EAs prepared for the 17 sector 
operations plans and contracts approved for FY 2010. The supplemental 
EA for this action examines the biological, economic, and social 
impacts associated with the GOM Haddock Sink Gillnet Exemption. It also 
provides a cumulative effects analysis (CEA) that addresses the 
combined impact of the direct and indirect effects of all proposed 
exemptions if approved for all the FY 2010 sectors. For the purpose of 
this analysis, the supplemental EA assumes that all 17 sectors have 
requested and are proposed to be approved for all additional 
exemptions, because an individual sector approved for a given exemption 
could have access to unlimited allocation through ACE trading. The 
summary finding of the supplemental EA concludes that, operating under 
the proposed exemptions, the sectors would produce similar effects that 
have non-significant impacts. An analysis of aggregate sector impacts 
was also conducted. Visit http://www.regulations.gov to view the 
supplemental EA prepared for the 17 sector operations plan addenda that 
this rule would implement.

Classification

    Pursuant to Sec.  304(b)(1)(A) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), the Assistant 
Administrator for Fisheries, NOAA, has determined that this proposed 
rule is consistent with the NE Multispecies FMP, other provisions of 
the Magnuson-Stevens Act, and other applicable law, subject to further 
consideration after public comment.
    This proposed rule is exempt from review under Executive Order 
(E.O) 12866.
    An initial regulatory flexibility analysis (IRFA), consisting of 
this section, the preamble of this proposed rule, and the supplemental 
EA prepared for this action, was prepared as required by Sec.  603 of 
the Regulatory Flexibility Act (RFA). This IRFA describes the economic 
impact that the proposed rule, if adopted, would have on small 
entities. A description of the action, why it is being considered, and 
the legal basis for this action are contained in the preamble to this 
proposed rule and in Sections 1.0, 2.0, and 3.0 of the supplemental EA 
prepared for this action. A summary of the analysis follows.

Economic Impacts of the Proposed Action on Regulated Small Entities 
Enrolled in a Sector

    This proposed action would affect regulated entities engaged in 
commercial fishing for groundfish that are enrolled in any one of the 
17 sectors that are operating in FY 2010. Anyone with a valid limited 
access Federal permit under the NE Multispecies FMP is eligible to join 
a sector. 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. 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 April 30, 2010, a total of 762 of the 
1,477 eligible permits are enrolled in sectors for FY 2010.
    The EIS for Amendment 16 compares economic impacts of sector 
measures with non-sector measures, and analyzes costs and benefits of 
the universal exemptions. The proposed rule proposing approval of the 
FY 2010 sector operations plans and contracts (74 FR 68015, December 
22, 2009) discussed the economic impacts of the additional exemptions 
requested by sectors. This proposed rule and the accompanying 
supplemental EA discuss the economic impacts of approving the GOM Sink 
Gillnet Exemption and the partial exemption from the prohibition on 
discarding, as well as expanding the additional exemptions approved for 
FY 2010 sectors. The exemptions considered in this proposed rule would 
provide additional economic flexibility to vessels already 
participating in NE multispecies sectors during FY 2010. All exemptions 
requested by the sectors are intended to provide positive social and 
economic effects to sector members and ports.
    The GOM Haddock Sink Gillnet Exemption is being requested by 
Northeast Fishery Sectors II and III, V-VIII, and X-XII, the 
Sustainable Harvest Sector, the Port Clyde Community Groundfish Sector, 
the GB Cod Fixed Gear Sector, and the Tri-State Sector, which represent 
616 permits. The exemption would allow the use of 6-inch (15.24 cm) 
mesh gillnets in the GOM RMA from January 1, 2011-April 30, 2011. This 
exemption would provide participating sector vessels an opportunity to 
potentially retain more GOM haddock, a healthy stock, and share in the 
benefits from the stock recovery. To utilize this exemption, it would 
be necessary for participating sector vessels to purchase 6-inch (15.24 
cm) mesh gillnets. However, it would allow a greater catch of haddock, 
which may increase revenues for gillnet fishermen and the ports where 
they land their fish, particularly if participating

[[Page 53945]]

vessels are able to change fishing behavior to selectively target this 
stock and minimize catch of other allocated target stocks.
    The Sustainable Harvest Sector, the Tri-State Sector, the GB Cod 
Fixed Gear Sector, the Port Clyde Community Groundfish Sector, the 
Northeast Coastal Communities Sector, and Northeast Fishery Sectors II 
and III, and V-XIII, representing 716 permits, are requesting exemption 
from the regulations that currently prohibit sector vessels from 
discarding any legal-sized regulated species allocated to sectors. 
Sector vessels have had to retain legal-sized unmarketable fish, which 
requires them to store this fish on the vessel while at sea, in some 
cases in large quantities in totes on deck, creating unsafe work 
conditions. In addition, sector vessels have had to determine a method 
of disposal of any unmarketable fish landed. Anecdotal information 
indicates that some fish dealers dispose of unmarketable fish for 
sector vessels as a courtesy; however, the scope of this occurrence and 
any operational costs incurred by the dealer or vessels is unknown. A 
partial exemption from this regulation that would allow sector vessels 
to discard unmarketable fish would provide sector vessels more 
operational flexibility and improve safety conditions at sea. It would 
also relieve the burden, if any, on sector vessels and their dealers to 
find a way to dispose of the unmarketable fish once landed.
    Exemption from the Day gillnet 120-day block requirement out of the 
fishery is being requested by the Northeast Fishery Sectors II, V-VIII, 
X and XII, and the Tri-State Sector. Existing regulations require that 
vessels using gillnet gear remove all gear from the water for 120 days 
per year. Since the time out from fishing is up to the vessel owner to 
decide (with some restrictions), many affected vessel owners have 
purchased more than one vessel such that one may be used while the 
other is taking its 120-day block out of the groundfish fishery, to 
provide for sustained fishing income. Acquiring a second vessel adds 
the expense of outfitting another vessel with gear and maintaining that 
vessel. The exemption from the 120-day block would allow sector members 
to realize the cost savings associated with retiring the redundant 
vessel. Furthermore, this exemption would provide additional 
flexibility to sector vessels to maximize the utility of other sector-
specific and universal exemptions, such as the exemption from the GB 
Seasonal Closure in May and portions of the GOM Rolling Closure Areas. 
Several of the FY 2010 sectors, representing 390 permits, are already 
utilizing this exemption and approving the requests by additional 
sectors for this exemption would extend this flexibility and potential 
economic benefits to an additional 245 permits.
    The Northeast Fishery Sectors II, V-VIII, X and XII, the 
Sustainable Harvest Sector, the Port Clyde Community Groundfish Sector, 
the GB Cod Fixed Gear Sector and the Tri-State Sector are requesting 
exemption from the prohibition on a vessel hauling gear that was set by 
another vessel. The community fixed gear exemption would allow sector 
vessels in the Day gillnet category to effectively pool gillnet gear 
that may be hauled or set by sector members. This provision would 
reduce the total amount of gear that would have to be purchased and 
maintained by participating sector members resulting in some uncertain 
level of cost savings, along with a possible reduction in total gear 
fished. This exemption has already been approved for 120 permits in FY 
2010 sectors and approving these additional requests would extend the 
exemption to an additional 496 permits.
    The Northeast Fishery Sectors II and III, V-VIII, and X-XII, the 
Sustainable Harvest Sector, the Port Clyde Community Groundfish Sector, 
the Tri-State Sector, and the Northeast Coastal Communities Sector, 
representing an additional 540 permits, are requesting exemption from 
the number of hooks that may be fished. These exemptions would provide 
vessel owners in these additional sectors with the flexibility to adapt 
the number of hooks fished to existing fishing and market conditions. 
This exemption would also provide an opportunity to improve vessel 
profitability. The exemption from the number of hooks that may be 
fished has been granted to the GB Cod Hook Sector every year since 2004 
and was granted to the GB Cod Fixed Gear Sector for FY 2010. Approving 
this exemption for these additional sectors would extend the potential 
economic benefits to more vessels in other sectors.
    Northeast Fishery Sectors II and III, V-VIII, and X-XII, the 
Sustainable Harvest Sector, the Port Clyde Community Groundfish Sector, 
and the Tri-State Sector have requested to be exempt from the 
limitation on the number of gillnets that may be hauled on GB when 
fishing under a groundfish/monkfish DAS. Approving this exemption would 
increase operational flexibility for an additional 522 permits, 
providing an opportunity for a substantial portion of the fleet to 
improve vessel profitability.
    Northeast Fishery Sectors II and III, and V-XIII, the GB Cod Fixed 
Gear Sector, and the Port Clyde Community Groundfish Sector, are 
requesting exemption from the required 20-day spawning block out of the 
fishery. Exemption from the 20-day spawning block would improve 
flexibility to match trip planning decisions to existing fishing and 
market conditions. Although vessel owners currently have the 
flexibility to schedule their 20-day block according to business needs 
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. This exemption was previously approved for 3 sectors 
representing 153 permits. Approving these exemption requests would 
extend the exemption to an additional 563 permits.
    The Port Clyde Community Groundfish Sector, the Tri-State Sector, 
the GB Cod Fixed Gear Sector, the Northeast Fishery Sectors II and III, 
V-VIII, and X-XII, are requesting an exemption from the limit on the 
number of nets (not to exceed 150) that may be deployed by Day gillnet 
vessels. This exemption would provide greater flexibility to deploy 
fishing gear by participating sector members according to operational 
and market needs. A total of 116 permits participating in FY 2010 
sectors are already exempt from this requirement. The proposed action 
would extend this flexibility and potential economic benefits to an 
additional 500 permits.
    The Port Clyde Community Groundfish Sector, the GB Cod Fixed Gear 
Sector, and Northeast Fishery Sectors II-XIII, request exemption from 
regulations that currently limit leasing of DAS to vessels within 
specified length and horsepower restrictions. Current restrictions 
create a system in which a small vessel may lease DAS from virtually 
any other vessel, but is limited in the number of vessels that small 
vessels may lease to. The opposite is true for larger vessels. 
Exemption from these restrictions would allow greater flexibility to 
lease DAS between vessels of different sizes and may be expected to 
expand the market of potential lessees for some vessels. The efficiency 
gains of this exemption as approved for the Tri-State Sector and the 
Sustainable Harvest Sector were limited because the exemption would 
only apply to leases between Tri-State

[[Page 53946]]

Sector and Sustainable Harvest Sector members, representing 135 
permits. This proposed action would extend this exemption to an 
additional 609 permits, which would not only potentially increase 
efficiency for the additional sectors for which this exemption is 
approved, but also for members of the Tri-State and Sustainable Harvest 
Sectors by expanding the pool of potential lessees with this exemption. 
Since DAS would not be required while fishing for groundfish, the 
economic importance of this exemption would be associated with the need 
to use groundfish DAS when fishing in other fisheries, for example, 
monkfish.

Economic Impacts of the Alternative to the Proposed Action

    Under the No Action alternative, one or more of the sectors' 
requests for operations plan addenda would be disapproved, which would 
result in sector vessels operating under the operations plans and 
exemptions as approved for the start of the 2010 FY in the final rule 
published April 9, 2010 (75 FR 18113). Under this scenario, sector 
vessels may experience the efficiency gains and economic benefits of 
sector participation and the exemptions for which they have already 
been approved, as described in the IRFA for the proposed rule proposing 
approval of FY 2010 sector operations and exemptions. However, sector 
vessels would not be provided the opportunity to benefit from the 
increase in the operational flexibility that may be gained from all the 
exemptions available to FY 2010 sectors and revenues would be expected 
to be lower than under the proposed action. Relative 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.
    Allowing sectors to propose either entirely new exemptions or 
variations of previously approved exemptions was considered. However, 
this alternative was considered unreasonable because these exemptions 
are discrete measures which, by their nature, do not lend themselves to 
alternate configurations, and allowing sectors to propose entirely new 
exemptions or changing already approved exemptions to the list of 
alternatives could result in implementation delays that would reduce 
the utility of this action for sectors in this fishing year (FY 2010). 
In addition, this action is intended to be a continuing part of a 
longer action implementing Amendment 16, Framework Adjustment 44 to the 
NE Multispecies FMP, and the final rule approving FY 2010 sector 
operations plans, in which other alternative measures have already been 
considered. The FY 2010 sectors will have an opportunity to propose any 
new or revised exemptions in their operations plans for FY 2011.

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Proposed Rule

    This proposed rule contains no collection-of-information 
requirement subject to the

Paperwork Reduction Act

    Regulations under the Magnuson-Stevens Fishery Conservation and 
Management Act require publication of this notification to provide 
interested parties the opportunity to comment on proposed sector 
operations plan addenda.

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

    Dated: August 27, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2010-21996 Filed 9-1-10; 8:45 am]
BILLING CODE 3510-22-P
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