[Federal Register Volume 75, Number 172 (Tuesday, September 7, 2010)]
[Proposed Rules]
[Pages 54292-54294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22347]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.: 100813358-0392-01]
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: Proposed rule; request for comments.

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SUMMARY: NMFS seeks public comment on a provision of the regulations 
implemented by a November 2, 2009, final rule, as well as comments on 
proposed alternatives to replace this provision. The provision allows a 
midwater trawl vessel 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 
and, thus, remain in the net at the end of pumping operations, without 
those fish being sampled by a NMFS at-sea observer. Based on comments 
that it receives, NMFS may keep the current provision unchanged, modify 
the provision, or remove the provision entirely. This action is part of 
a Court-approved joint motion to stay.

DATES: Written comments must be received no later than 5 p.m. local 
time on October 7, 2010.

ADDRESSES: You may submit comments, identified by 0648-BA16, by any one 
of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal e-rulemaking portal: http://www.regulations.gov.
    <bullet> 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 01930-2276. Mark the 
outside of the envelope: ``Herring Midwater Trawl Discard Provision; 
RIN 0648-BA16.''
    <bullet> Fax: (978) 281-9135.

[[Page 54293]]

    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 protected information.
    NMFS will accept anonymous comments (enter ``N/A'' in the required 
fields, if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF formats only.

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 limited 
access Atlantic herring All Areas and/or Areas 2 and 3 category 
permitted vessels 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 aboard the vessel and made available for 
sampling and inspection by the observer. The regulations provide 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. 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.
    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) detailing 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.
    Although not specifically mentioned in the proposed rule, the final 
rule added a narrow, additional exemption, based on public comment, 
which allowed for small amounts of fish that cannot be pumped from the 
net (sometimes called operational discards) to be released unobserved 
from the net in the water. NMFS considered this additional 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.
    Following publication of the final rule, a suit was filed by three 
fishermen challenging the exemption that allows release of small 
amounts of fish that remain after pumping (Taylor et al. v. Locke, 09-
CV-02289-HHK), on grounds 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 fault in publishing the final rule, NMFS and 
the plaintiffs have agreed to stay the litigation while NMFS 
repromulgates the challenged provision, solicits public comment, and 
based on those comments, decides whether to retain, delete or amend the 
provision. As part of the agreement to stay the litigation, NMFS is 
publishing this proposed rule, and seeks public comment on the measure 
at Sec.  648.80(d)(7)(ii)(D) that authorizes the release of fish before 
being sampled by the observer ``when there are small amounts of fish 
that cannot be pumped and remain in the net at the completion of 
pumping operations.'' In addition, NMFS intends to publish a new final 
rule if there is a change to this provision, or, in the alternative, to 
issue a Federal Register notice if the agency decides to retain the 
existing regulations.
    Therefore, NMFS is seeking comments on the current provision and on 
the following proposed alternatives:
    1. Removing the provision at Sec.  648.80(d)(7)(ii)(D). This would 
mean that a vessel would be required to bring the net on board the 
vessel for observation after the completion of pumping operations. The 
only exception from this requirement would be if one of the other 
exemptions (safety, mechanical failure, or clogging by spiny dogfish) 
is applicable. This alternative would result in additional time and 
effort by the vessel when compared to the current regulation, but would 
ensure that the observer is able to document the amount and type of 
fish that are released after pumping operations are completed.
    2. Specifying a maximum amount of fish, for example up to 200 lb 
(90.7 kg), that may be in the net without bringing the net on board, 
provided the vessel lifts the net out of the water for observation. 
Under this alternative, if the observer estimates that there is more 
than 200 lb (90.7 kg) of fish in the net, the vessel must bring the net 
on board for further observation. This alternative provides more 
flexibility to the vessel than alternative 1, but also may put the 
observer in the difficult position of requesting the captain of the 
vessel to bring the net on board the vessel based on a visual 
estimation of the amount of fish in the net.
    3. Requiring that the net either be raised out of the water or 
brought on board, at the discretion of the vessel captain, before 
release of fish left in the net. This alternative may be a preferable 
compromise between alternatives 1 and 2, to allow some flexibility to 
the vessel in deciding how to allow an observer to determine what other 
fish may be in a net after pumping. However, this flexibility comes at 
the cost of less than ideal observation conditions if the vessel only 
lifts the net from the water.
    The public is invited to submit comments specifically on the 
measure at Sec.  648.80(d)(7)(ii)(D), and the proposed alternatives 
discussed above, as well as any other alternatives to ensure adequate 
observation of all fish caught by mid-water trawl vessels fishing in CA 
I. To be most useful, comments should be as detailed as possible and 
include specific documentation in support of the comments. Current 
regulations as

[[Page 54294]]

published in the November 2, 2009, final rule remain in place during 
this rulemaking process.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined preliminarily that this 
proposed rule is consistent with the Atlantic Herring and NE 
Multispecies FMPs, other provisions of the Magnuson-Stevens Act, and 
other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Regional Administrator has preliminarily determined that this 
proposed rule would constitute a minor addition, correction, or change 
to a management plan and would therefore be categorically excluded from 
the requirement to prepare an Environmental Impact Statement or 
equivalent document under the National Environmental Policy Act (NEPA). 
However, NMFS expects that measures in a final rule may differ from 
those proposed, based on public comment received on this proposed rule 
and other relevant factors. A final determination of the appropriate 
level of environmental review under NEPA will be made during the 
development of a final rule.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
None of the three proposed alternatives significantly affect the 
practices of any fishing operation. A total of 45 vessels currently 
have either an All Areas or an Areas 2 and 3 Atlantic herring limited 
access permit. Not all of these vessels fish in Closed Area I, and part 
of the intent of the increased observer coverage in CA I was to 
determine how many midwater trawl trips there are into this closed 
area. The requirement for 100-percent observer coverage became 
effective on November 2, 2009, so there is not yet a full year's worth 
of data available. Estimates based on VTR data suggest an average of 15 
trips using midwater trawl gear into CA I, annually. Vessels that do 
fish in CA I may make multiple trips into CA I in a single year, so 
this action would impact fewer than 15 small entities. The average 
midwater trawl trip makes less than three tows. Alternative 1 would 
have the greatest potential impact on vessel operations. The time to 
bring a near-empty codend aboard the vessel under this alternative is 
estimated to range between 30 minutes and 60 minutes. The total impact 
to an average fishing trip would be at most 3 hours of additional time 
under alternative 1, or less time under alternative 2 or 3; plus 
associated cost of fuel. Therefore, any potential delay from the three 
alternatives in fishing operations to allow an at-sea observer to 
document catch remaining in the net at the end of pumping operations is 
expected to have a minimal impact. As a result, an initial regulatory 
flexibility analysis is not required and none has been prepared.

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

    Dated: September 2, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2010-22347 Filed 9-2-10; 4:15 pm]
BILLING CODE 3510-22-P