[Federal Register Volume 74, Number 129 (Wednesday, July 8, 2009)]
[Rules and Regulations]
[Pages 32466-32469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16050]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 080521698-91087-03]
RIN 0648-AW87


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Secretarial Final Interim Action

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

ACTION: Temporary final rule; interim measures.

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SUMMARY: This action modifies interim management measures implemented 
for the Northeast (NE) multispecies fishery through a previous interim 
final rule, and corrects several errors. Specifically, this rule 
removes the current trip limit for Georges Bank (GB) winter flounder 
and increases the white hake trip limit, reinstates regulatory 
provisions of the NE Multispecies Day-at-Sea (DAS) Leasing Program and 
the Closed Area I Hook Gear Haddock Special Access Program (SAP) that 
were inadvertently removed, and corrects several Total Allowable Catch 
(TAC) specifications, and latitude/longitude coordinates.

DATES: Effective July 2, 2009, through October 28, 2009.

FOR FURTHER INFORMATION CONTACT: Tom Warren, Fishery Policy Analyst, 
(978) 281-9347, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Correction of Errors and Clarification

    A temporary rule, which modified the NE Multispecies fishery 
management plan (FMP) by temporarily suspending the differential DAS 
counting provisions and extending the deadline for NE Multispecies DAS 
Leasing Program applications for the 2008 fishing year, published in 
the Federal Register on March 11, 2009 (74 FR 10513), with public 
comment accepted through April 10, 2009. This temporary rule was in 
response to a January 26, 2009, Federal Court Order in the case of 
Commonwealth of Massachusetts and State of New Hampshire v. Carlos M. 
Gutierrez (Civil Action No.: 06-12110-EFH) (Court Order), which 
suspended the regulations regarding differential DAS counting in the 
Gulf of Maine (GOM) and Southern New England (SNE) Differential DAS 
Areas through April 10, 2009.

[[Page 32467]]

    A complete discussion of the temporary suspension of specific 
regulations and extension of the DAS lease application deadline appears 
in the preamble to the temporary rule and is not repeated here.
    Because of an error in the amendatory instructions in the temporary 
rule, when the changes expired on April 10, 2009, the introductory 
paragraph of Sec.  648.82(k)(3) was removed from the CFR, rather than 
reverting to the language in effect prior to the temporary rule. The 
regulatory text at Sec.  648.82(k)(3) provides details about the DAS 
Leasing Program application process, including: Application signature 
requirements, expected application processing time, procedure for 
notifying applicants when an application is incomplete, the deadline 
for submission of an application, and clarification that vessel owners 
may submit multiple leases during a fishing year but individual DAS may 
only be leased once. This action reinstates the introductory paragraph 
at Sec.  648.82(k)(3) as it read prior to the March 11, 2009, temporary 
rule.
    A proposed rule for Secretarial interim action was published in the 
Federal Register on January 16, 2009 (74 FR 2959), that proposed 
management measures for the NE multispecies complex for FY 2009, while 
the New England Fishery Management Council (Council) completes 
Amendment 16 to the FMP. The proposed rule included a variety of 
management measures to reduce fishing mortality. A final interim rule 
implementing management measures for the NE multispecies fishery for FY 
2009 was published on April 13, 2009 (69 FR 17063), and became 
effective May 1, 2009. The final interim rule solicited public comment 
through June 12, 2009. Included in the suite of management measures 
were modifications to the Closed Area I Hook Gear Haddock Special 
Access Program (SAP). As published, the final interim rule 
inadvertently repeated the regulatory text on Vessel Monitoring System 
declaration requirements for this SAP at Sec.  648.85(b)(11)(iv)(D) in 
Sec.  648.85(b)(11)(vi)(D). This rule reinstates the correct language 
for Sec.  648.85(b)(11)(vi)(D) regarding the daily catch reporting 
requirements for non-sector vessels.
    The final interim rule for FY 2009 also incorrectly stated the 
latitude/longitude coordinates for two of the stock areas defined for 
the Regular B DAS Program (Cape Cod (CC)/GOM yellowtail flounder stock 
area, and the SNE/Mid Atlantic (MA) yellowtail flounder stock area). 
This rule corrects the pertinent coordinates.
    The final interim rule for FY 2009 also incorrectly specified the 
GB cod incidental catch TAC and allocations of this TAC to the Special 
Management Programs. As explained in detail in the final interim rule, 
the GB cod TAC (5,501 mt) was developed based upon the Groundfish 
Assessment Review Meeting in 2008 (GARM III) information and the 
estimated fishing mortality rate resulting from measures implemented by 
the action. Because the GB cod TAC includes Canadian catch, the amount 
of anticipated Canadian catch must be subtracted from the total TAC to 
derive the net U.S. TAC. The net GB cod TAC available for the U.S. 
fishery is derived by subtracting the Canadian TAC from the total TAC 
(5,501 mt - 1,173 mt = 4,328 mt). In the final interim rule, the GB cod 
incidental catch TAC (and related allocations of this TAC) were 
incorrectly calculated based upon the total GB cod TAC (5,501 mt) 
instead of the U.S. portion of the TAC (4,328 mt). Therefore, this 
action specifies the GB cod TAC and associated TACs as follows, based 
upon 4,328 mt, resulting in slightly lower TACs than specified in the 
April 13, 2009, final interim rule.

         Table 1--Specification of GB Cod Incidental Catch TACs
------------------------------------------------------------------------
                                                   Previous     Revised
              TAC                  Calculation      TAC mt      TAC mt
------------------------------------------------------------------------
GB Cod Incidental Catch TAC      2% of GB Cod    110.0        86.6
                                  TAC
------------------------------------------------------------------------
Regular B DAS Program GB Cod     70% of GB Cod   77.0         60.6
 Incidental Catch TAC             Incidental
                                  Catch TAC
------------------------------------------------------------------------
Closed Area I Hook Gear Haddock  14% of GB Cod   17.6         13.9
 Special Access Program           Incidental
                                  Catch TAC
------------------------------------------------------------------------
Eastern U.S./Canada Haddock      16% of GB Cod   15.4         12.1
 Special Access Program           Incidental
                                  Catch TAC
------------------------------------------------------------------------

    Lastly, the interim rule implemented a prohibition on the use of 
low profile, tie-down gillnets in the Regular B DAS Program, but the 
regulations may not be sufficiently clear regarding the trip limits 
associated with the use of stand-up gillnets, which are allowed to be 
used in the program. Framework Adjustment (FW) 42 to the FMP 
implemented gear performance incentives for the Regular B DAS Program 
(71 FR 62156; October 23, 2006) that applied to the haddock separator 
trawl, as well as other gears that may be authorized for Special 
Management Programs in the future. The FW 42 regulations neither 
prohibited nor explicitly allowed the use of gillnets in the Regular B 
DAS Program. Therefore, it was not sufficiently clear in the 
regulations whether the gear performance incentives applied to gillnet 
gear. Because the interim final rule for FY 2009 prohibited low profile 
gillnet gear, but did not clarify whether the gear performance 
incentives apply to stand-up gillnets, this rule modifies existing 
regulatory text to make it clear that vessels fishing in the Regular B 
DAS Program with stand-up gillnets are subject to the same possession 
limit restriction as trawl vessels fishing in the Regular B DAS 
Program. These possession limits are as follows: 500 lb (226.8 kg) of 
flounders (all species, combined), 500 lb (226.8 kg) of monkfish (whole 
weight), 500 lb (226.8 kg) of skates (whole weight), and zero lb of 
lobsters, ocean pout, SNE/MA winter flounder, and windowpane flounder 
(north). This is consistent with the use of regulatory incentives in 
the Regular B DAS Program and gear performance standards to promote 
fishing behavior and methods of gear use that minimize catch of stocks 
of concern.

Modification of Trip Limits

    The proposed interim rule for FY 2009 noted above included a 
variety of management measures to reduce fishing mortality, including 
new trip limits. The proposed rule included less restrictive limits 
than the status quo for GB winter flounder and white hake (i.e., no 
trip limit and 2,000 lb (909.1 kg)/DAS up to 10,000 lb (4,545.5 kg)/
trip, respectively). In contrast to the proposed rule, the April 13, 
2009, final interim rule for FY 2009 retained the more restrictive, 
status quo trip limits for GB winter flounder and white hake (i.e., 
5,000 lb (2,272.7 kg)/trip; and 1,000 lb (454.5 kg)/DAS up to 10,000 lb 
(4,545.5 kg) /trip, respectively).
    On April 9, 2009, the Council passed a motion that the Council 
request that NMFS further consider the trip limits for GB winter 
flounder and white hake as they relate to the allowable fishing 
mortality rates (of the final interim rule), and adjust the such limits 
accordingly. Pursuant to the motion, on April 13,

[[Page 32468]]

2009, the Council sent a letter to NMFS making that request.
    In response to the Council's letter of April 13, 2009, NMFS 
initiated an analysis of the pertinent trip limits and discovered that 
an error had been made in the analysis of the final rule measures 
(NMFS. Environmental Assessment-Secretarial Interim Action to Implement 
Measures to Reduce Overfishing in the Northeast Multispecies Fishery 
Complex. April 6, 2009). Although the preferred alternative included 
the more restrictive trip limits for these two stocks, the trip limit 
analysis completed in the Environmental Assessment (EA) for this 
alternative had mistakenly not been updated from the proposed rule, and 
therefore represented the analysis of the more liberal trip limit for 
white hake and removal of the GB winter flounder trip limit. The 
impacts of the more restrictive measures are represented by the impacts 
of the No Action Alternative.
    The underlying analytical basis for the interim action and an 
explanation of the specific objectives for each stock were explained in 
the final interim rule, and are not repeated here. Based on estimated 
fishing mortality rates in calendar year 2008, fishing mortality can be 
increased on GB winter flounder and white hake and still achieve the 
respective goals of Fmsy and Frebuild. The analysis of the Preferred 
Alternative in the EA indicates that the management measures, including 
the trip limits implemented by this action, would result in a 13-
percent reduction in fishing mortality for GB winter flounder and a 17-
percent reduction in fishing mortality for white hake. The impacts of 
the less restrictive trip limits are consistent with the goals of the 
interim action. Therefore, in consideration of the Council's request 
and the impacts, this rule removes the trip limit for GB winter 
flounder, and implements a white hake trip limit of 2,000 lb (909.1 
kg)/DAS up to 10,000 lb (4,545.5 kg)/trip.

Classification

    NMFS has determined that the management measures implemented by 
this final interim rule are necessary for the conservation and 
management of the NE multispecies fishery, and are consistent with the 
Magnuson-Stevens Act and other applicable laws. This final interim rule 
has been determined to be not significant for the purposes of Executive 
Order (E.O.) 12866.
    This final rule does not contain policies with federalism or 
``takings'' implications as those terms are defined in E.O. 13132 and 
E.O. 12630, respectively.
    An analysis of the impacts of the measures implemented by this rule 
on small entities were included in the Final Regulatory Flexibility 
Analysis of the interim final rule that implemented management measures 
for FY 2009 (74 FR 17030; April 13, 2009).
    Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for 
Fisheries, NOAA (AA) finds it is unnecessary, impracticable, and 
contrary to the public interest to provide for additional prior notice 
and an opportunity for public comment. The substantive measure 
implemented by this action (modification of trip limits) was among 
measures proposed for FY 2009 in the proposed rule for the interim 
action and for which public comment was solicited during a 30-day 
period. The final interim action did not adopt the trip limit changes 
for these two stocks, and established a postpromulgation comment period 
of 60 days. The trip limit changes of this interim final rule are in 
response to a postpromulgation comment. Further public comment is 
unnecessary and impracticable, given the opportunity for public comment 
already provided for FY 2009 management measures, and the fact that 
further public comment would delay implementation and undermine the 
regulatory objective of providing for increased economic opportunity. 
Other changes implemented by this rule are minor, non-substantive 
changes that do not change operating practices in the fishery.
    Pursuant to 5 U.S.C. 553(d)(1), the AA finds it is unnecessary, 
impracticable, and contrary to the public interest to provide for a 30-
day delayed effectiveness, because this rule relieves a restriction. 
Specifically, the current regulations include a trip limit for GB 
winter flounder and a possession/trip limit for white hake. This 
interim final rule relieves restrictions by eliminating the GB winter 
flounder trip limit, and increasing the daily possession limit for 
white hake, and providing increased economic opportunity. A 30-day 
delay in the implementation of this rule would therefore delay the date 
vessels could take advantage of this economic opportunity. Such a delay 
would represent a 1-month reduction in fishing opportunity for these 
stocks and an economic loss, because fishing opportunities during the 
spring/summer portions of the fishing season are not equivalent to 
fishing opportunity later in the fishing season. Other changes 
implemented by this rule are minor, non-substantive changes that do not 
change operating practices in the fishery.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: July 1, 2009.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons stated 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.  648.14  [Amended]

0
2. In Sec.  648.14, paragraph (k)(13)(ii)(H) is suspended.

0
3. In Sec.  648.82, paragraph (k)(3) introductory text is added to read 
as follows:


Sec.  648.82  Effort-control program for NE multispecies limited access 
vessels.

* * * * *
    (k) * * *
    (3) Application to lease NE multispecies DAS. To lease Category A 
DAS, the eligible Lessor and Lessee vessel must submit a completed 
application form obtained from the Regional Administrator. The 
application must be signed by both Lessor and Lessee and be submitted 
to the Regional Office at least 45 days before the date on which the 
applicants desire to have the leased DAS effective. The Regional 
Administrator will notify the applicants of any deficiency in the 
application pursuant to this section. Applications may be submitted at 
any time prior to the start of the fishing year or throughout the 
fishing year in question, up until the close of business on March 1. 
Eligible vessel owners may submit any number of lease applications 
throughout the application period, but any DAS may only be leased once 
during a fishing year.
* * * * *

0
4. In Sec.  648.85, paragraphs (b)(10)(iv)(D), (b)(10)(v)(C) and (D), 
and (b)(11)(vi)(D) are revised to read as follows:


Sec.  648.85  Special management programs.

* * * * *
    (b) * * *
    (10) * * *
    (iv) * * *
    (D) Landing limits. Unless otherwise specified in this paragraph 
(b)(10)(iv)(D), a NE multispecies vessel fishing in the Regular B DAS 
Program described in this paragraph (b)(10), and

[[Page 32469]]

fishing under a Regular B DAS, may not land more than 100 lb (45.5 kg) 
per DAS, or any part of a DAS, up to a maximum of 1,000 lb (454 kg) per 
trip of any of the following species/stocks from the areas specified in 
paragraph (b)(10)(v) of this section: Cod, pollock, white hake, witch 
flounder, GB winter flounder, GB yellowtail flounder, and southern 
windowpane flounder; and may not land more than 25 lb (11.3 kg) per 
DAS, or any part of a DAS, up to a maximum of 250 lb (113 kg) per trip 
of CC/GOM or SNE/MA yellowtail flounder. In addition, trawl vessels 
that are required to fish with a haddock separator trawl or Ruhle 
trawl, as specified under paragraph (b)(10)(iv)(J) of this section, 
gillnet gear, and other gear that may be required in order to reduce 
catches of stocks of concern as described under paragraph 
(b)(10)(iv)(J) of this section, are restricted to the following trip 
limits: 500 lb (227 kg) of all flatfish species (American plaice, witch 
flounder, winter flounder (GOM or GB), windowpane flounder (south), and 
yellowtail flounder), combined; 500 lb (227 kg) of monkfish (whole 
weight); 500 lb (227 kg) of skates (whole weight); and zero possession 
of lobsters, ocean pout, SNE/MA winter flounder, and windowpane 
flounder (north), unless otherwise restricted by Sec.  648.94(b)(3).
* * * * *
    (v) * * *
    (C) CC/GOM yellowtail flounder stock area. The CC/GOM yellowtail 
flounder stock area for the purposes of the Regular B DAS Program is 
the area defined by straight lines connecting the following points in 
the order stated:

                  CC/GOM Yellowtail Flounder Stock Area
------------------------------------------------------------------------
                   Point                          N. Lat.       W. Long.
------------------------------------------------------------------------
CCGOM1                                      43[deg]00'              \1\
CCGOM2                                      43[deg]00'          70[deg]0
                                                                     0'
CCGOM3                                      42[deg]30'          70[deg]0
                                                                     0'
CCGOM4                                      42[deg]30'          69[deg]3
                                                                     0'
CCGOM5                                      41[deg]30'          69[deg]3
                                                                     0'
CCGOM6                                      41[deg]30'          69[deg]0
                                                                     0'
CCGOM7                                      41[deg]00'          69[deg]0
                                                                     0'
CCGOM8                                      41[deg]00'          69[deg]3
                                                                     0'
CCGOM9                                      41[deg]30'          70[deg]0
                                                                     0'
CCGOM10                                     \2\                 70[deg]0
                                                                     0'
CCGOM11                                     42[deg]00'              \3\
CCGOM12                                     42[deg]00'              \4\
CCGOM13                                     \3\                 70[deg]0
                                                                     0'
------------------------------------------------------------------------
\1\ Intersection with the New Hampshire coastline.
\2\ Intersection of the south-facing shoreline of Cape Cod, MA.
\3\ Intersection with the east-facing shoreline of Cape Cod, MA.
\4\ Intersection with the west-facing shoreline of Massachusetts.

    (D) SNE/MA yellowtail flounder stock area. The SNE/MA stock area 
for the purposes of the Regular B DAS Program is the area bounded on 
the north, east, and south by straight lines connecting the following 
points in the order stated:

                  SNE/MA Yellowtail Flounder Stock Area
------------------------------------------------------------------------
                   Point                          N. Lat.       W. Long.
------------------------------------------------------------------------
SNEMA1                                      40[deg]00'          74[deg]
                                                                    00'
SNEMA2                                      40[deg]00'          72[deg]0
                                                                     0'
SNEMA3                                      40[deg]30'          72[deg]0
                                                                     0'
SNEMA4                                      40[deg]30'          69[deg]3
                                                                     0'
SNEMA5                                      41[deg]00'          69[deg]3
                                                                     0'
SNEMA6                                      41[deg]00'          69[deg]0
                                                                     0'
SNEMA7                                      41[deg]30'          69[deg]0
                                                                     0'
SNEMA8                                      41[deg]30'          70[deg]0
                                                                     0'
SNEMA9                                      41[deg]00'          70[deg]0
                                                                     0'
SNEMA10                                     41[deg]00'          70[deg]3
                                                                     0'
SNEMA11                                     41[deg]30'          70[deg]3
                                                                     0'
SNEMA12                                     \1\                 72[deg]0
                                                                     0'
SNEMA13                                     \2\                 72[deg]0
                                                                     0'
SNEMA14                                     \3\                 73[deg]0
                                                                     0'
SNEMA15                                     40[deg]30'          73[deg]0
                                                                     0'
SNEMA16                                     40[deg]30'          74[deg]0
                                                                     0'
SNEMA17                                     40[deg]00'          74[deg]0
                                                                     0'
------------------------------------------------------------------------
\1\ South-facing shoreline of Connecticut.
\2\ North-facing shoreline of Long Island, New York.
\3\ South-facing shoreline of Long Island, New York.

* * * * *
    (11) * * *
    (vi) * * *
    (D) Reporting requirements. The owner or operator of a non-Sector 
vessel declared into the Closed Area I Hook Gear Haddock SAP must 
submit reports via VMS, in accordance with instructions to be provided 
by the Regional Administrator, for each day fished in the Closed Area I 
Hook Gear Haddock SAP Area. The reports must be submitted in 24-hr 
intervals for each day fished, beginning at 0000 hr local time and 
ending at 2400 hr local time. The reports must be submitted by 0900 hr 
local time of the day following fishing. The reports must include at 
least the following information: Total pounds of haddock, cod, 
yellowtail flounder, winter flounder, witch flounder, pollock, and 
white hake kept; total pounds of haddock, cod, yellowtail flounder, 
winter flounder, witch flounder, pollock, and white hake discarded; 
date fish were caught; and VTR serial number, as instructed by the 
Regional Administrator. Daily reporting must continue even if the 
vessel operator is required to exit the SAP as required under paragraph 
(b)(11)(iv)(F) of this section.
* * * * *

0
5. In Sec.  648.86, paragraphs (e) and (j) are suspended, and paragraph 
(o) is added to read as follows:


Sec.  648.86  NE Multispecies possession restrictions.

* * * * *
    (o) White hake. Unless otherwise restricted under this part, a 
vessel issued NE multispecies DAS permit, a limited access Handgear A 
permit, an open access Handgear B permit, or a monkfish limited access 
permit and fishing under the monkfish Category C or D permit provisions 
may only land up to 2,000 lb (907.2 kg) of white hake per DAS, or any 
part of a DAS, up to 10,000 lb (4,536 kg) per trip.

[FR Doc. E9-16050 Filed 7-2-09; 4:15 pm]
BILLING CODE 3510-22-S