Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; 2008 Georges Bank Cod Hook Sector Operations Plan and Agreement and Allocation of Georges Bank Cod Total Allowable Catch

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This final rule implements the Georges Bank (GB) Cod Hook Sector (Hook Sector) Fishing Year (FY) 2008 Operations Plan and Agreement, approved by the Administrator, Northeast Region, NMFS (Regional Administrator), and modifies the eligibility criteria for membership for the Hook Sector and the GB Cod Fixed Gear Sector (Fixed Gear Sector). Amendment 13 to the Northeast (NE) Multispecies Fishery Management Plan (FMP) (Amendment 13) authorized allocation of up to 20 percent of the annual GB cod total allowable catch (TAC) to the Hook Sector. Pursuant to that authorization, the Sector submitted an Operations Plan and Sector Contract entitled, “Georges Bank Cod Hook Sector Fishing Year 2008-2009 Operations Plan and Agreement” (together referred to as the Sector Agreement) and an Environmental Assessment (EA), and requested an allocation of GB cod, consistent with the FMP. This action results in authorization of the Sector Operations Plan during the 2008 fishing year and allocation of 658 mt of GB cod to the Sector. This rule also modifies the eligibility criteria for membership in both the Hook Sector and the Fixed Gear Sector by allowing vessels without GB cod landings history to join a sector.

DATES:

Effective May 1, 2008.

ADDRESSES:

Copies of the Sector Agreement, EA and the Final Regulatory Flexibility Analysis (FRFA) are available from the Northeast Regional Office: Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930. The EA and FRFA are also accessible via the Internet at http://www.noaa.gov/nero/regs/com.html .

FOR FURTHER INFORMATION CONTACT:

Thomas Warren, Fishery Policy Analyst, phone (978) 281-9347, fax (978) 281-9135, e-mail Thomas.Warren@noaa.gov.

SUPPLEMENTARY INFORMATION:

A proposed rule soliciting public comment on the Sector Agreement for the Hook Sector was published in the Federal Register on March 3, 2008 (73 FR 11376), with public comment accepted through March 18, 2008. The Regional Administrator approved the FY 2008 Sector Operations Plan, based on public comment, and based on a determination that the Operations Plan and Agreement are consistent with the goals of the FMP and applicable law and is in compliance with the regulations governing the development and operation of a sector as specified under § 648.87. Details pertaining to the principal regulations applying to the Hook Sector, the process of review and approval of sectors, and facts regarding the Sector's submission of the FY 2008 Sector Agreement are contained in the proposed rule. An EA entitled “Approval of the Georges Bank Cod Hook Sector Operations Plan Fishing Year 2008”, which analyzes the impacts of the proposed Hook Sector operations, was also prepared.

The Hook Sector was authorized to fish in FYs 2004, 2005, 2006, and 2007, and, based upon the GB cod landings history of its members, was allocated 12.60, 11.70, 10.03, and 8.02 percent, respectively, of the annual GB cod TAC.

The 2008 Sector Agreement contains the same elements as the FY 2007 Sector Agreement. The Sector Agreement will be overseen by a board of directors and a Sector Manager. The Sector's GB cod TAC is based upon the number of Sector members and their qualifying historic landings of GB cod. The GB cod TAC is a “hard” TAC, meaning that, once the TAC is caught, Sector vessels may not fish under a NE multispecies Day-at-Sea (DAS), possess or land GB cod or other regulated species managed under the FMP (regulated species), or use gear capable of catching groundfish (unless fishing under charter/party or recreational regulations). Should the hard TAC be exceeded, the Sector's allocation will be reduced by the overharvest in the following year.

The FY 2008 Sector Agreement contains exemptions from the following restrictions of the FMP: The GB and Gulf of Maine (GOM) cod trip limit; the GOM, GB and Southern New England (SNE) limit on the number of hooks fished; the GB Seasonal Closure Area; the DAS Leasing Program vessel size restrictions; differential DAS in the Gulf of Maine Differential DAS Area and in the SNE Differential DAS Area (those portions of the differential areas which overlap the Hook Sector Area); and the Western U.S./Canada Area 72-hr observer program notification. Justification for the proposed exemptions and analysis of the potential impacts of the Operations Plan are contained in the EA.

A total of nineteen Hook Sector members signed the 2008 Hook Sector Contract. The GB cod TAC calculation is based upon the historic cod landings of the participating Hook Sector vessels, regardless of gear used. The allocation percentage is calculated by dividing the sum of total landings of GB cod landed by prospective Hook Sector members in FY 1996 through 2001, by the sum of the total accumulated landings of GB cod landed by all NE multispecies vessels for the same time period. Based upon the 19 qualifying landings histories of the Hook Sector members, the Hook Sector's share of the overall U.S. portion of the GB cod TAC is 658 mt (6.44 percent), or 1,450,566 lb (6.44 percent times the fishery-wide GB cod target TAC of 10,222 mt). Note, the proposed rule contained a calculation error that has been corrected in this final rule. Specifically, the proposed rule GB cod TAC of 614 mt was incorrect because it was based upon an incorrect percentage share of 6.01 percent, however the correct percentage share is 6.44 percent, which results in a correct TAC of 658 mt.

The Sector Agreement contains procedures for the enforcement of the Hook Sector rules and a schedule of penalties, and provides the authority to the Hook Sector Manager to issue stop fishing orders to members of the Hook Sector. Participating vessels will be required to land fish only in designated landing ports and would be required to provide the Sector Manager with a copy of the Vessel Trip Report (VTR) within 48 hr of offloading. Dealers purchasing fish from participating vessels will be required to provide the Hook Sector Manager with a copy of the dealer report on a weekly basis. On a monthly basis, the Hook Sector Manager will transmit to NMFS a copy of the VTRs and the aggregate catch information from these reports. After 90 percent of the Hook Sector's allocation has been harvested, the Hook Sector Manager will be required to provide NMFS with aggregate reports on a weekly basis. A total of 1/12 of the Hook Sector's GB cod TAC, minus a reserve, will be allocated to each month of the fishing year. GB cod quota that is not landed during a given month will be rolled over into the following month. Once the aggregate monthly quota of GB cod is reached, for the remainder of the month, participating vessels may not fish under a NE multispecies DAS, possess or land GB cod or other regulated species, or use gear capable of catching regulated NE multispecies. Once the annual TAC of GB cod is reached, Hook Sector members may not fish under a NE multispecies DAS, possess or land GB cod or other regulated species, or use gear capable of catching regulated NE multispecies for the rest of the fishing year. The harvest rules will not preclude vessels from fishing under the charter/party or recreational regulations, provided the vessel fishes under the applicable charter/party and recreational rules on separate trips. For each fishing trip, participating vessels will be required to fish under the NE multispecies DAS program to account for any incidental groundfish species that they may catch while fishing for GB cod. In addition, participating vessels will be required to call the Hook Sector Manager prior to leaving port. All legal-sized cod caught would be retained and landed and counted against the Hook Sector's aggregate allocation. Participating vessels will not be allowed to fish with or have on board gear other than jigs, non-automated demersal longline, or handgear. NE multispecies DAS used by participating vessels while conducting fishery research under an Exempted Fishing Permit during the FY 2008 would be deducted from that Hook Sector member's individual DAS allocation. Similarly, all GB cod landed by a participating vessel while conducting research would count toward the Hook Sector's allocation of GB cod TAC. Participating vessels will be exempt from the GB Seasonal Closure Area during May.

A Letter of Authorization will be issued to each member of the Hook Sector exempting them, conditional upon their compliance with the Sector Agreement, from the GOM and GB cod possession restrictions, the GB Seasonal Closure Area, the Western U.S./Canada Area 72-hr observer notification requirement, the DAS Leasing Program vessel size restrictions, differential DAS, and the limits on the number of hooks requirements as specified in §§ 648.86(b)(1) and (2); 648.81(g); 648.85(a)(3)(ii)(C); 648.82(k)(4)(ix); 648.82 (e)(2); 648.80(a)(3)(v) and (a)(4)(v); and 648.80(b)(2)(v), respectively. If the effective date of the approval of the Hook Sector is past May 1, 2008, the Hook Sector would be allowed to fish under common pool rules until the Hook Sector is approved, as authorized by § 648.87(b)(1)(xii).

Based on the authority granted to the Secretary of Commerce under Section 305(d) (16 U.S.C. 1855(d)) of the Magnuson-Stevens Act, this final rule also modifies the regulations that define eligibility criteria for membership in the Hook Sector and the Fixed Gear Sector, in order to be consistent with the original Council intent. The eligibility criteria for membership in the Hook Sector and Fixed Gear Sector were implemented by Amendment 13 and Framework Adjustment 42 (69 FR 22906, April 27, 2004; and 71 FR 62156, October 23, 2006, respectively). Of the several eligibility criteria for both these sectors in the implementing regulations, a criterion requiring documented landings of GB cod was not explicitly included as a criterion in the Council documents that proposed formation of the sectors. The implications of this eligibility criterion (requiring landings history of GB cod) were not apparent at the time of implementation, but became apparent during the evaluation of sector Operations Plans for FY 2008. Because the proposed roster for the Fixed Gear Sector for 2008 contains vessels that did not land GB cod during the period 1996 to 2001, the current regulations would prevent such vessels without landings from joining a sector.

During the formation of the Hook Sector and Fixed Gear Sector, it was assumed that only vessels with GB cod landings would be interested in joining the sector, and therefore the landings criterion was not perceived as exclusionary. However, NMFS evaluated the pertinent information regarding the development of this regulation and concluded that this eligibility criterion does not reflect Council intent. Based on this evaluation, NMFS is correcting the current regulations by eliminating the eligibility requirement (for landings) because it precludes vessels without GB cod landings history from joining either sector, and is more restrictive than Council intent.

Comments and Responses

One pertinent comment was received from a representative of the Hook Sector on the proposed rule.

Comment: The commenter expressed strong support for approval of the Hook Sector Operations Plan and the modification to the eligibility criteria for the Hook Sector and the Fixed Gear Sector.

Response: NMFS is approving the Hook Sector for FY 2008 and modifying the eligibility criteria.

Classification

NMFS has determined that this final rule is consistent with the FMP, the Magnuson-Stevens Act, and other applicable laws. This final 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.

The Assistant Administrator for Fisheries finds that the need to implement these measures in a timely manner in order to allow the Hook Sector to fish at the start of the fishing year, constitutes good cause under authority contained in 5 U.S.C. 553(d)(3), to establish an effective date less than 30 days after the date of publication. Because this final rule authorizes the Hook Sector to fish under the Hook Sector's Operations Plan, members of the Hook Sector may not fish under the Hook Sector rules until the final rule is effective. If the effective date is delayed past May 1, 2008, the members would be precluded from fishing under Operations Plan rules, which provide relief from various restrictions of the Fishery Management Plan, and enable more efficient fishing practices. A delay would likely result in economic harm to the sector members by not allowing them to fish during a very productive time of the fishing year.

Under an approved Operations Plan, with an effective date of May 1, 2008, the Hook Sector would be afforded exemptions from a seasonal closure on Georges Bank, the differential Day-at-Sea (DAS) requirement, the restriction on number of hooks, cod possession limits, the observer notification requirement for the Western U.S./Canada Area, and the DAS Leasing Program size restriction. The approval would coincide with the beginning of the Fishing Year, May 1, which is one of the most productive months for the fishery. If the effective date of the approved Operations Plan is delayed, Hook Sector members would be fishing under the more restrictive"common pool” regulations until the approval. The GB seasonal closure and the cod trip limits are two such regulations that would preclude or severely constrain their fishing operations. The GB seasonal closure, which includes the area traditionally fished by the Hook Sector, would prevent the Hook Sector members from fishing on easily accessible fishing grounds. Due to the current high cost of fuel, and the relatively small size of vessels in the Hook Sector, it is not likely that vessels would travel a long distance to fish in open areas, and there would be no revenue earned. Even if vessels chose to travel to open fishing areas, they would be subject to relatively low cod trip limits, and the other restrictions which would result in low economic returns.

The need to establish an effective date less than 30 days after the date of publication results from the objective of allowing vessels to fish in the Hook Sector as of May 1, 2008, the beginning of the fishing year, and the timing of the rulemaking process. The time period under which these regulations were developed was short due to the complexity and length of the process governing the Operations Plans approval. Due to the limited time available to develop this rulemaking, there was insufficient time remaining to allow for the full 30-day delay in effectiveness. Therefore, for the reason above, the AA finds good cause to waive the 30-day delay in effectiveness and to make these regulations effective on May 1, 2008.

Because the Hook Sector will be fishing under a hard TAC for GB cod, effort controls (i.e., the exemptions) are not necessary to constrain the impact of the Sector on the GB cod stock. Should the Sector's allocated GB cod TAC be caught, participating vessels would no longer be allowed to fish under a NE multispecies DAS, possess or land GB cod or other regulated species managed under the FMP, or use gear capable of catching groundfish (unless fishing under recreational or charter/party regulations). Sector members will be required to fish under their current NE multispecies DAS allocation to account for any other regulated NE multispecies that they may catch while fishing for GB cod and are restricted to using hook gear only.

A FRFA was prepared as required by section 603 of the Regulatory Flexibility Act (RFA). A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble to the proposed rule and in the EA prepared for this action, and is not repeated here.

Summary of the Issues Raised by Public Comments in Response to the IRFA. A Summary of the Assessment of the Agency of Such Issues, and a Statement of Any Changes Made From the Proposed Rule as a Result of Such Comments

No public comments pertaining to the IRFA or the economic effects of this action were received. In this final rule, a minor increase was made to the size of the GB cod TAC in order to correct a calculation error in the proposed rule, which will result in the potential for additional revenue for the Hook Sector.

Description of and Estimate of the Number of Small Entities to Which the Proposed Rule Would Apply

The Small Business Administration (SBA) size standard for small commercial fishing entities is $ 4 million in annual gross sales. All permitted and participating vessels in the groundfish fishery, including prospective Hook Sector members, are considered to be small entities because gross sales by any one entity (vessel) do not exceed this threshold, and, therefore there is no disproportionate impact between large and small entities. The number of prospective participants in the Hook Sector is 19 (or less), substantially less than the total number of active vessels in the groundfish fishery. These 19 vessels will be subject to the regulatory exemptions and operational restrictions approved for the Hook Sector for FY 2008.

Description of Steps the Agency Has Taken to Minimize the Economic Impact on Small Enitites Consistent With the Stated Objectives of Applicable Statutes

Approval of the FY 2008 Sector Agreement results in an allocation of 658 mt of GB cod to the Hook Sector, and minimization of economic impacts on the Hook Sector. Once the GB cod TAC is harvested, participating vessels would not be allowed to fish under a NE multispecies DAS, possess or land GB cod, or other regulated species managed under the FMP, or use gear capable of catching groundfish (unless fishing under recreational or party/charter regulations). Hook Sector vessels may only fish with jigs, non-automated demersel longline, or handgear. Under the Sector Agreement, members will be exempt from several restrictions of the FMP described in the preamble to the proposed and final rule and in the EA.

This action will positively impact the members of the Hook Sector's 19 vessels that have voluntarily joined the Hook Sector, who are relatively dependendant upon groundfish revenue compared to other participants in the groundfish fishery. The approval of the Hook Sector and allocation of GB cod TAC will indirectly benefit the communities of Chatham and Harwichport, MA, and to a lesser extent other Cape Cod communities involved in the groundfish fishery. During FY 2006, members of the Hook Sector made 359 fishing trips, landed 179,616 lb (81,472 kg) of cod and 258,544 lb (117,274 kg) of haddock, and generated approximately $ 269,424, and $ 310,253 in revenue from those species, respectively (assuming a dock-side price of $ 1.50 and $1.20 per lb, respectively). Hook Sector members also landed various other species, which contributed additionally to their revenue. In general, the operation of the Hook Sector would continue to mitigate the negative economic impacts that result from the current suite of regulations that apply to the groundfish fishery (most recently Framework Adjustment 42; October 23, 2006; 71 FR 62156). The Hook Sector, by fishing under rules that are designed to meet their needs (as well as the conservation requirements of the FMP), is afforded a larger degree of flexibility and efficiency, which will result in economic gains. For example, Hook Sector members are able to plan their fishing activity and income in advance with more certainty due to the fact that there is a cod TAC, which is apportioned to each month of the year. They are able to maximize their efficiency (revenue per trip) due to the exemption from trip limits and hook numbers. For some vessel owners in the Hook Sector, participation in the Hook Sector enables their businesses to remain economically viable. For the above reasons, approval of the FY 2008 Sector Agreement minimizes the impact on small entities.

In contrast, under the No Action alternative, all Sector members would have remained in the common pool of vessels and fished under all the rules implemented by Amendment 13 and subsequent Framework Adjustments. Under the regulatory scenario of the No Action alternative, relative to the preferred alternative, Sector members would likely have faced increased economic uncertainty, loss of efficiency, and loss of revenue. Because cod usually represents a high proportion of total fishing income for hook gear vessels, revenues for Sector members are sensitive to regulations that impact how and when they can fish for cod, such as trip limits and hook gear restrictions. Sector members would have been unnecessarily impacted by regulations designed to affect the catch of species of which hook gear catches very little (e.g., yellowtail flounder, because hook gear is more selective than other gear types). For example, under the No Action alternative, Sector members would have been affected by the differential DAS counting requirement, one of the objectives of which is to protect yellowtail flounder.

No other alternatives beyond the No Action were considered during the development of this action. The RFA requires each IRFA to include a description of significant alternatives that accomplish the objectives of applicable statues (in this case, sector provisions) and minimize any significant economic impact to small entities. The objectives of sector management, as originally developed and implemented under Amendment 13, are to provide opportunities for like-minded vessel operators to govern themselves so that they can operate in a more effective and efficient manner. The Hook Sector developed the Sector Agreement after consultation with prospective members. Prospective members then signed a binding sector contract to abide by the measures specified in the Sector Agreement. As described above, the approved Sector Agreement minimizes economic impacts to participating vessels by allowing them to operate more efficiently. Accordingly, the approved Sector Agreement reflects the management measures preferred by vessels participating in the GB Cod Hook Sector during FY 2008 and represents all of the significant alternatives that accomplish the objectives of sector provisions and minimize economic impacts to small entities, as required by the RFA. Therefore, in conjunction with the NEPA requirement to consider a reasonable range of alternatives, no other alternatives were considered prior to approval of this action.

Modification of the eligibility criteria for the Hook Sector and the Fixed Gear Sector will allow vessels without a history of landing GB cod the opportunity to participate in a sector and to therefore take advantage of the associated sector efficiencies and financial benefits. Although, the number of vessels that this modification will impact is likely very small, this change in the eligibility requirement minimizes economic impacts on such vessels by allowing the opportunity to fish in the Hook Sector that would not otherwise be possible.

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

This final rule contains no collection-of-information requirement subject to the Paperwork Reduction Act (PRA).

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

For the reasons stated in the preamble, 50 CFR part 648 is proposed to be 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.

2. In § 648.87, paragraphs (d)(1)(ii) and (d)(2)(i) are revised to read as follows: