E8-11303. Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Allowance of New Gear (Eliminator Trawl) in Specific Special Management Programs

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes approval for using another type of trawl gear known as the “eliminator trawl” in the Regular B Days-at-Sea (DAS) Program and the Eastern U.S./Canada Haddock Special Access Program (SAP). Vessels fishing in the Regular B DAS Program and the Eastern U.S./Canada Haddock SAP must use approved trawl gear in order to reduce the catch of multispecies (groundfish) stocks of concern. The Northeast (NE) Regional Administrator, NMFS, may approve additional gears for use in these programs if research demonstrates that the gear meets specific standards for the reduction of catch of stocks of concern. The intent of this action is to reduce catch of stocks of concern in the NE multispecies fishery.

DATES:

Comments must be received by June 4, 2008.

ADDRESSES:

You may submit comments, identified by 0648-AW53, by any one of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal e-rulemaking portal: http://www.regulations.gov.
• Mail: Paper, disk, or CD-ROM comments should be sent to Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on the eliminator trawl.”
• Fax: [phone].

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 publically accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF formats only.

Copies of the Technical Report “Bycatch Reduction in the Directed Haddock Bottom Trawl Fishery” and a diagram of the eliminator trawl may be obtained from NMFS at the mailing address specified above; telephone [phone]. NMFS prepared an Initial Regulatory Flexiblity Analysis (IRFA), which is contained in the Classification section of this proposed rule.

FOR FURTHER INFORMATION CONTACT:

Thomas Warren, Fishery Policy Analyst, [phone], fax [phone].

SUPPLEMENTARY INFORMATION:

The NE Multispecies Fishery Management Plan (FMP) contains broadly applied input control regulations that are designed to protect stocks that need reductions in fishing mortality. Because such regulations apply in a broad manner, they not only restrict fishing effort on stocks of concern, but also restrict fishing effort on stocks that do not need reductions in fishing mortality. Therefore, SAPs were implemented in the FMP to increase access to stocks that do not need reductions in fishing mortality. A SAP authorizes additional fishing effort in order to allow an increased yield in specific stocks without undermining the achievement of the goals of the FMP. For example, SAPs may allow the use of Category B DAS or allow temporary access to a closed area to increase access to particular stocks. To help ensure that catch of stocks of concern is reduced to acceptable levels, vessels fishing in a SAP are subject to additional fishing restrictions than those that apply to vessels fishing in the NE multispecies fishery at large. Framework Adjustment (FW) 40-A (69 FR 67780; November 19, 2004) implemented the Regular B DAS Program and the Eastern U.S./Canada Haddock special management programs that currently include gear restrictions designed to substantially reduce the catch of stocks of concern.

The Regular B DAS Program, which initially did not contain any gear restrictions, was later modified under FW 42 (71 FR 62156; October 23, 2006) to require trawl vessels to use a haddock separator trawl in order to further reduce the potential for vessels to catch stocks of concern-- notably, cod, yellowtail flounder, and winter flounder. The Eastern U.S./Canada Haddock SAP, from its inception, contained a more restrictive requirement specifying that any vessel fishing in the program must use a haddock separator trawl. FW 42 also authorized the Regional Administrator to approve other gear types for use in the Regular B DAS Program and the Eastern U.S./Canada Haddock SAP to reduce catch of stocks of concern, based upon approved gear standards, but did not contain any standards for evaluating proposed additional gear types. On December 26, 2007, based upon recommendations of the New England Fishery Management Council (Council), NMFS implemented specific gear standards that could be used to evaluate additional gear proposed for use in these programs to reduce catch of stocks of concern and clarified the process by which new gear would be considered (72 FR 72965).

The December 26, 2007 rule specified that, to be approved, new gear must first be compared to an appropriately selected control gear. Based on this comparison, new gear can be approved if it meets one of the following two standards: (1) Use of the gear must result in a statistically significant reduction, compared to the control gear, of at least 50 percent (by weight, on a trip-by-trip basis) in catch of each regulated species stock of concern, or other non-groundfish stocks that are overfished or subject to overfishing identified by the Council; or (2) the use of the gear must result in a catch of each regulated NE multispecies stock of concern, or other non-groundfish stocks that are overfished or subject to overfishing identified by the Council, that is less than 5 percent of the total catch of regulated groundfish (by weight, on a trip-by-trip basis). Neither of these requirements apply to regulated species identified by the Council as not being subject to gear performance standards. Because many species in the fishery are caught together, and the dynamic nature of the status of stocks, the performance standard must have a reasonable amount of flexibility in order to be practical.

One of these standards must be met in a completed experiment, where comparisons of new gear are made to an appropriately selected control gear that has been reviewed according to the standards established by the Council's research policy, before the gear can be considered and approved by the Regional Administrator. In addition, a request for approval of the use of additional gear in the Regular B DAS Program and the Eastern U.S./Canada Haddock SAP must be made by either the Council or the Council's Executive Committee.

Regarding the proposal to approve the gear specified in this action, an experiment was conducted by the University of Rhode Island, Rhode Island Sea Grant Program, in conjunction with members of the fishing industry, from September 2004 through July 2006, to investigate a large-mesh experimental net known as the “eliminator trawl”, designed to capture haddock while reducing the catch of cod and other species. Two fishing vessels with equivalent length, horsepower, and fishing capacity participated in the study, and compared the eliminator trawl with a control net (constructed with currently legal specifications) using side-by-side tows. Four trips, conducted in the months of June, November, December, and April, resulted in 107 comparison tows, 100 of which were analyzed. The final report, “Bycatch Reduction in the Directed Haddock Bottom Trawl Fishery” (URI Fisheries Center Technical Report: 01-06; October 2006) included the following results and conclusions: Haddock was the dominant species caught in the experimental net, and represented 77 percent of the total catch. The overall rounded ratio of haddock to cod in the experimental and control nets was 20:1 and 3:1, respectively. A statistical comparison by tow indicated that there was a significant difference in the catch weights between the control and the experimental nets for cod, yellowtail flounder, winter flounder, witch flounder, American plaice, white hake, monkfish, skates, and other non- groundfish species. The eliminator trawl caught less of these species than the control net, whereas there was no statistical difference in the weight of haddock caught between the two nets.

A February 5, 2007, review by the Northeast Fisheries Science Center, NMFS's NE State, Federal, and Constituent Programs Office noted the successful conclusion of the research project, and the Council's Research Steering Committee reviewed the research on March 29, 2007. Both reviews agreed that the experiment successfully demonstrated that the net design allowed the harvest of haddock, while reducing catches of cod and other stocks of concern. Although the NE Multispecies Plan Development Team did not review the experimental results, a February 8, 2008, memorandum from the Council's Executive Director to the Council indicated that the Council staff had reviewed the experimental data and concluded that the eliminator trawl clearly met the first regulatory standard for approval of new gear requiring a showing of more than a 50- percent reduction compared to the control gear of catch of regulated species stocks of concern. On February 13, 2008, the Council passed a motion that the haddock eliminator trawl be recommended to the Regional Administrator for use in the Eastern U.S./Canada Haddock SAP and the Regular B DAS Program, and on February 19, 2008, the Council sent the Regional Administrator a letter requesting approval of this gear.

Based upon the final report, “Bycatch Reduction in the Directed Haddock Bottom Trawl Fishery,” and the Council's February 19, 2008, letter, NMFS is proposing approval of the eliminator trawl. The pertinent information indicates that the catch of each regulated species stock of concern, as well as other species, declined by more than 50 percent with use of the eliminator trawl, which complies with the first standard for approval of additional gear. The proposed eliminator trawl net specifications are based upon input from the individuals involved in the eliminator trawl research, and NMFS gear experts. Approval of the eliminator trawl would allow trawl vessels fishing in the Regular B DAS Program or the Eastern U.S./Canada Haddock SAP a choice of whether to use the haddock separator trawl or the eliminator trawl. The size of the eliminator trawl specified would be appropriate for fishing vessels with engines of at least 600 horsepower. The results of the experiment cannot be used to extrapolate to smaller scale eliminator trawl gear that could be readily used by smaller horsepower vessels.

The Council identified that the gear performance standards do not apply to haddock, pollock, and redfish. Haddock, pollock, and redfish are target stocks for which no reductions in fishing mortality are required. The researchers could not conduct statistical tests on Atlantic halibut because the species was not present in sufficient numbers (defined by the researchers as present in at least 10 paired tows), and therefore the gear standard could not be applied in a meaningful way to Atlantic halibut. Because Atlantic halibut is caught in very low numbers by the trawl fishery, and is subject to a possession limit of one fish per trip, NMFS has determined that the lack of information on the compliance of Atlantic halibut with gear standards is not sufficient justification for disapproval of the eliminator trawl. Furthermore, it is likely that the selectivity of the eliminator trawl for Atlantic halibut is low, given the similarity in body shape and ecology of the Atlantic halibut to the other flatfishes, which were less numerous in the eliminator trawl. This application of the gear standard is consistent with the intent of the Council (i.e., reasonable flexibility in application of the gear standards) and the goal of providing opportunities and incentives for the fishing industry to utilize gear that results in substantial reductions in bycatch.

NMFS is not proposing that vessels must have their eliminator trawl net inspected and certified by a net manufacturer, as suggested by Council staff in the attachment to the Council's February 19, 2008, letter to NMFS. The stated concern is that slight modifications in the net configuration could alter the effectiveness of the net in reducing catches of species of concern. Inspection by a net manufacturer would not prevent a vessel operator from modifying his/her net after such an inspection occurred, would impose additional costs to the industry, would be difficult to enforce, and would be redundant, because the net manufacturer can verify to the net purchaser what he/she is purchasing at the time of purchase. The fisherman is responsible for the compliance of his/her gear with the regulations, and NMFS and the United States Coast Guard enforce the gear regulations. Furthermore, this requirement was not proposed by the Council (based on the Council's pertinent motion).

Classification

NMFS has determined that the proposed rule is consistent with the FMP and has preliminarily determined that this rule is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

An initial regulatory flexibility analysis (IRFA) has been prepared, as required by section 603 of the Regulatory Flexibility Act (RFA), consisting of this proposed rule, the following analysis, and the Categorical Exclusion prepared for this action. The IRFA below describes the economic impact this proposed rule, if adopted, would have on small entities.

Allowing the use of the eliminator trawl in the Regular B DAS Program and the Eastern U.S./Canada Haddock SAP would provide the fishing industry more flexibility in the use of trawl gear that minimizes catch of stocks of concern by providing them with a choice of whether to use the haddock separator trawl or the eliminator trawl. Vessels fishing under a Regular B DAS in these programs must comply with restrictive landing limits of various species. The choice of two nets would enable a vessel owner to decide which net is the most cost effective means of targeting haddock and complying with the landing restrictions. A description of the objectives and legal basis for the proposed eliminator trawl is contained in the SUMMARY of this proposed rule.

Under the Small Business Administration (SBA) size standards for small fishing entities ($ 4.0 million in annual gross sales), all permitted and participating vessels in the groundfish fishery are considered to be small entities and, therefore, there are no disproportionate impacts between large and small entities. Gross sales by any one entity (vessel) do not exceed this threshold. The maximum number of small entities that could be affected by the proposed approval of the eliminator trawl are approximately 1,200 vessels; i.e., those issued limited access NE multispecies DAS permits that have an allocation of Category A or B DAS. Realistically, however, the number of vessels that choose to fish in either of these programs, and that would therefore be subject to the associated restrictions, including the use of either the haddock separator trawl or the eliminator trawl, would be substantially smaller. For example, in fishing year (FY) 2005, 132 vessels fished in either the Regular B DAS Program or the Eastern U.S./Canada Haddock SAP. In FY 2006, there were only 45 vessels that fished in either program. Although it is possible that, under future circumstances, more vessels may elect to participate in these programs, a large increase in the numbers of participants is unlikely. Furthermore, some participants in the Regular B DAS Program and in the SAP may not have sufficient engine horsepower to use the eliminator trawl, and, therefore, may not be able to use the trawl.

Based on information from a commercial net manufacturer, the cost of purchasing a new eliminator trawl net is approximately $ 13,000. A squid trawl net could be modified into an eliminator trawl for approximately $ 1,000, by replacing the last belly portion of the net and putting in a rockhopper sweep. If 130 vessels fished in either of the special management programs that require the use of a specialized trawl, and the vessel operators decided to purchase the eliminator trawl net, the total cost to the industry would be approximately $1,690,000. It is likely that many vessels that have fished in these programs in the past using a separator trawl may choose not to purchase an eliminator trawl. Vessels choosing to use the eliminator trawl would incur the purchase cost and other adjustment costs. The decision to do so, and to thereby fish in a special management program offering additional revenue opportunities is a voluntary decision based on the individual vessel's assessment of profitability.

Because of the context in which this action is proposed, there are only two alternatives under consideration: The no action alternative and approval of the eliminator trawl. Consideration of another trawl gear (i.e., a third alternative) in addition to the eliminator trawl is not proposed at this time. The process of conducting gear research and reviewing such research is time consuming and costly, and the standards for approval must be met. Although other trawl gear research is either underway or proposed, the eliminator trawl is the only gear that has been vetted through the review process and recommended by the Council. Additional research is being proposed by two of the co-authors of “Bycatch Reduction in the Directed Haddock Bottom Trawl Fishery” that will investigate the use of an eliminator trawl net designed for smaller vessels with 250 to 550 horsepower engines.

Performance standards rather than design standards are utilized for the evaluation of new trawl gear, in order to provide conservation engineers flexibility in design and a meaningful standard for the achievement of the goal of bycatch reduction. The performance standards under § 648.85(b)(6)(iv)(J)(2) were developed for the specific purpose of evaluating additional fishing gear for these special management programs.

The proposed action would not modify any collection of information, reporting, or recordkeeping requirements. The proposed net does not duplicate, overlap, or conflict with any other Federal rules.

Dated: May 14, 2008.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

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 § 648.2, new definitions for “fishing circle,” “stretched mesh,” and “sweep” are added in alphabetical order, to read as follows:

§ 648.2

Definitions.

* * * * *

Fishing circle, with respect to the NE multispecies limited access fishery, means the calculated circumference of a bottom trawl based on the number of meshes and stretched mesh length at the narrow, aft end of the square of the net.

* * * * *

Stretched mesh, with respect to the NE multispecies eliminator trawl, means mesh that is pulled so that slack in the mesh is eliminated and the mesh opening is closed.

* * * * *

Sweep, with respect to the NE multispecies limited access fishery, means the part of a bottom trawl that, during normal use, is in contact with the sea floor along the outer edges of the lower webbing of the net.

* * * * *

3. In § 648.14, paragraphs (a)(132) and (b)(81) are revised to read as follows:

§ 648.14

Prohibitions.

(a) * * *

(132) If fishing with trawl gear under a NE multispecies DAS in the Eastern U.S./Canada defined in § 648.85(a)(1)(ii), fail to fish with a haddock separator trawl or a flounder trawl net, as specified in § 648.85(a)(3)(iii), unless otherwise allowed under the Eastern U.S./Canada Haddock SAP rules in § 648.85(b)(8)(v)(E).

* * * * *

(b) * * *

(81) If fishing in the Regular B DAS Program specified in § 648.85(b)(6), fail to use a haddock separator trawl as described under § 648.85(a)(3)(iii)(A), or other approved gear as described under § 648.85(b)(6)(iv)(J).

* * * * *

4. In § 648.85, paragraphs (b)(6)(iv)(J)(1) and (b)(8)(v)(E) introductory heading and (b)(8)(v)(E)(1) are revised, and paragraph (b)(6)(iv)(J)(3) is added to read as follows:

§ 648.85

Special management programs.

* * * * *

(b) * * *

(6) * * *

(iv) * * *

(J) * * *

(1) Vessels fishing with trawl gear in the Regular B DAS Program must use the haddock separator trawl or eliminator trawl net, as described under paragraphs (a)(3)(iii)(A) and (b)(6)(iv)(J)(3) of this section, respectively, or other type of gear if approved as described under this paragraph (b)(6)(iv)(J). Other gear may be on board the vessel, provided it is stowed when the vessel is fishing under the Regular B DAS Program.

* * * * *

(3) Eliminator Trawl. The eliminator trawl is a four-seam bottom groundfish trawl designed to reduce the bycatch of cod while retaining or increasing the catch of haddock, when compared to traditional groundfish trawls. An eliminator trawl must be constructed in accordance with the following standards:

(i) The net must be constructed with four seams (i.e., a net with a top and bottom panel and two side panels), and include at least the following net sections as depicted in Figure 1 of this part “Nomenclature for 4-seam eliminator trawl” (this figure is also available from the Administrator, Northeast Region): Top jib, bottom jib, jib side panels (x 2), top wing, bottom wing, wing side panels (x 2), square, bunt, square side panels (x 2), first top belly, first bottom belly, first belly side panels (x 2), second top belly, second bottom belly, second belly side panels (x 2), and third bottom belly.

(ii) The first bottom belly, bunt, the top and bottom wings, and the top and bottom jibs, jib side panels, and wing side panels (the first bottom belly and all portions of the net in front of the first bottom belly, with the exception of the square and the square side panels) must be at least two meshes long in the fore and aft direction. For these net sections the stretched length of any single mesh must be at least 7.9 ft (240 cm).

(iii) Mesh size in all other sections must be consistent with mesh size requirements specified under § 648.80 and meet the following minimum specifications: Each mesh in the square, square side panels, and second bottom belly must be 31.5 inches (80 cm); each mesh in the first and second top belly, the first belly side panels, and the third bottom belly must be at least 7.9 inches (20 cm); and 6 inches or larger in sections following the second top belly and third bottom belly sections, all the way to the codend. The mesh size requirements of the top sections apply to the side panel sections.

(iv) The trawl must have a fishing circle of at least 398 ft (121.4 m). This number is calculated by separately counting the number of meshes for each section of the net at the wide, fore end of the first bottom belly, and then calculating a stretched length as follows: For each section of the net (first bottom belly, two belly side panels and first top belly) multiply the number of meshes times the length of each stretched mesh to get the stretched mesh length for that section, and then add the sections together. For example, if the wide, fore end of the bottom belly of the eliminator trawl is 22 meshes (and the mesh is at least 7.9 ft (240 cm)), the stretched mesh length for that section of the net is derived by multiplying 22 times 7.9 ft (240 cm) and equals 173.2 ft (52.8 m). The top and sides (x 2) of the net at this point in the trawl are 343 meshes (221 + 61 + 61, respectively) (each 7.9 inches (20 cm)), which equals 225.1 ft (68.6 m) stretched length. The stretched lengths for the different sections of mesh are added together (173.2 ft + 225.1 ft (52.8 + 68.6 m)) and result in the length of the fishing circle, in this case 398.3 ft (121.4 m).

(v) The trawl must have at least three 1-square meter or larger kite panels on the forward end of the square to help maximize headrope height, for the purpose of capturing rising fish. A kite panel is a flat structure, usually semi-flexible used to modify the shape of trawl and mesh openings by providing lift when a trawl is moving through the water.

(vi) The sweep must consist of rockhoppers, which are graduated from 16-inch (40-cm) diameter in the center down to 12-inch (30-cm) diameter at the wing ends. There must be six or fewer 12 to16-inch (30 to 40-cm) rockhopper discs over any 10-ft (3.0 m) length of the sweep. The 12 to16 inch (30 to 40-cm) discs must be spaced evenly, with one disc placed approximately every 2 ft (60 cm) along the sweep. The 12 to 16-inch (30 to 40-cm) discs must be separated by smaller discs, no larger than 3.5 inches (8.8 cm) in diameter.

* * * * *

(8) * * *

(v) * * *

(E) Gear requirement (1) A NE multispecies vessel fishing in the Eastern U.S./Canada Haddock SAP must use the haddock separator trawl or eliminator trawl net, as described under paragraphs (a)(3)(iii)(A) and (b)(6)(iv)(J)(3) of this section, respectively, or other type of gear, if approved as described under this paragraph (b)(8)(v)(E). No other type of fishing gear may be on the vessel when on a trip in the Eastern U.S./Canada Haddock SAP, with the exception of a flounder net, as described in paragraph (a)(3)(iii) of this section, provided that the flounder net is stowed in accordance with § 648.23(b).

* * * * *

5. In part 648, add Figure 1 as follows: