2014-11901. Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

At the request of the New England Fishery Management Council, this action would add a new method for on-reel trawl gear stowage when fishing vessels are transiting closed areas or fishing in areas with mesh size restrictions. Specifically, this action proposes to allow the use of a highly visible orange mesh material, in addition to the current requirement to use a tarp or similar canvas material. In addition, this action would remove the requirement to detach the towing wires from the doors for all on-reel gear stowage. Finally, to help streamline the gear stowage requirements, this action also proposes to reorganize the current gear stowage regulations. This action would be implemented under authority delegated to the NMFS Regional Administrator, at the request of the Council. This action is intended to improve safety of fishing operations while at sea.

DATES:

Comments must be received on this action by June 30, 2014.

ADDRESSES:

You may submit comments, identified by NOAA-NMFS-2014-0018, by any of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/​#!docketDetail;​D=​NOAA-NMFS-2014-0018, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
• Mail: John K. Bullard, Regional Administrator, NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on Gear Stowage.”

Instructions: All comments received are part of the public record and will generally be posted to 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. Attachments to electronic comments will be accepted via Microsoft Word, Microsoft Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Jason Berthiaume, Fishery Management Specialist, phone: [phone].

SUPPLEMENTARY INFORMATION:

Background

The current trawl gear stowage regulations, at 50 CFR 648.23(b), require that trawl gear being stowed on the net reel be covered with a “canvas or similar opaque material” when transiting closed areas and areas with mesh size restrictions. The industry typically uses a commonly available opaque plastic tarp to meet this requirement, which is intended to help facilitate enforcement. However, industry has raised two safety concerns with this requirement. First, the tarps most frequently used have very few places where a rope or similar material can be attached to assist in pulling the tarp over the net reel. As a result, crew members at sea often have to climb or stand on the net reel or surrounding parts of the vessel to successfully cover the reel. This creates a safety concern for crew members who may slip or fall and injure themselves or others. In addition, because the tarps are non-porous, they catch wind, similar to a sail, adding to the difficulty of covering the net reel and increasing the safety risks.

As a result of these safety concerns, the New England Fishery Management Council's Enforcement Committee has been working with the fishing industry and the United States Coast Guard (USCG) to develop an alternative to the tarp requirement for stowing trawl nets on the reel. Through public workshops and at-sea trials, the industry, USCG, and NOAA's National Marine Fisheries Service (NMFS) developed an orange mesh material as a safer alternative to the current tarp requirement. At its September 2013 meeting, the Council approved a motion requesting that the Regional Administrator implement two new trawl gear stowage methods and modify one provision of the existing methods. This action proposes to add a provision to allow the use of a highly visible orange mesh material, as an alternative to the current requirement to use a tarp or similar canvas material. This action would be implemented under authority delegated to the NMFS Regional Administrator at § 648.23(b)(5), at the request of the Council.

In addition, when considering this revision to the gear stowage regulations, the Committee examined whether the current requirement that the “towing wires are detached from the doors” also presents safety concerns. When trawl gear is being stowed, detaching the wires leaves the doors unsecured and swinging freely, which can result in damage to the vessel. This is particularly problematic for smaller fiberglass vessels. If the wires were allowed to remain attached to the doors, the doors could be held securely in place, preventing them from moving and causing damage to the vessel or injuring crew. The Committee, with concurrence from the USCG and NMFS Office of Law Enforcement, concluded that this measure is no longer needed to conduct enforcement and, as such, recommends this measure be removed from the regulations pertaining to all on-reel gear stowage requirements.

As a result, the new stowage method would not include the requirement to remove the towing wires from the doors for all on-reel trawl gear stowage methods where it currently applies.

NMFS is also taking this opportunity under its authority at section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act to reorganize the current gear stowage regulations. Currently, all Northeast region gear stowage regulations reside under the Atlantic mackerel, squid, and butterfish (MSB) regulations at subpart B of 50 CFR part 648. The gear stowage regulations were originally implemented in Amendment 1 to the Northeast Multispecies Fishery Management Plan as part of the exempted fishing programs. These regulations were subsequently expanded and modified a number of times. In 1996, NMFS undertook a comprehensive reorganization of fishery regulations in response to a Presidential directive. As a result, the gear stowage regulations that had previously been part of the Northeast multispecies regulations were moved to the MSB regulations. While there is not information available as to exactly why this move occurred, it is likely because the MSB fisheries constitute a large majority of the small-mesh fisheries, which were the original reason for implementing the gear stowage regulations.

Consequently, when considering updating or revising the gear stowage regulations for fisheries other than MSB, the rulemaking process is unnecessarily complex and challenging, since these regulations are in the MSB regulations, but in fact are referenced by several other fisheries. To help streamline the regulations and to assist in making future adjustments to these regulations, NMFS is proposing to move the entirety of the gear stowage regulations at § 648.23(b) to the definitions section of subpart A at § 648.2. The way the regulations are currently organized can be interpreted that gear stowage regulations are specific to MSB, when in fact they apply to several fisheries. This change would clarify that these regulations apply to numerous fisheries and not just MSB. The current organization of these regulations also causes confusion with the Council process, since the regulations are within a section of the regulations managed by the Mid-Atlantic Council, but they actually apply to several fisheries, including fisheries managed by the New England Council. This change would make it clear that the gear stowage regulations apply to numerous fisheries, thus affecting fisheries managed by both Councils. Although this is outside of the request of the Council, this restructuring would not directly affect fisheries operations and would better organize the regulations. As such, this change would be beneficial to fisheries, future policy development, and Council proceedings.

Classification

Pursuant to section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries, NOAA, has determined that this proposed rule is consistent with 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 Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is as follows.

The proposed measures would affect Federal permit holders that use trawl gear. In 2013, there were 468 Federal permit holders that reported using trawl gear. All of these permit holders fall within the SBA's definition of a small business because each permit holder has annual receipts that do not exceed $19.0 million. The primary fisheries affected would be the Northeast multispecies, including small-mesh multispecies, herring, squid, mackerel, butterfish, summer flounder, scup, and black sea bass fisheries.

This action would allow for additional methods of stowing trawl gear on the net reel to provide the industry with more flexibility and to help increase safety at sea. This action would not directly impact fisheries operations or the marine environment. This action would provide the opportunity to use a new gear stowage method: a mesh type material that could be used in lieu of the current requirement to use an opaque canvas type material. Based on industry input, testing, and at sea trials, a mesh type material would be easier and safer to work with than the current opaque canvas requirement. As a result, this action could increase safety at sea and vessel efficiency, thus potentially reducing vessel operating costs. Initially, converting from the current opaque canvas material to a mesh-like material could require an investment by the vessel operator; however, the mesh type materials that were tested are readily available with relatively low cost, commonly available for less than $100. In addition, this new storage method would not be required, but would merely provide a new gear stowage option as an alternative to the current method. As such, vessels could continue to use the current opaque canvas method and would not be required to purchase a new material or other equipment. As such, vessels that continued to use the current opaque material would incur no additional expenses. Therefore, because this action only proposes a new gear stowage option, and because no net change in fishing effort, participation in the fishery, or fishery expenses is expected, this action will not have a significant economic effect on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Recordkeeping and reporting requirements

Dated: May 19, 2014.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 648 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, add definition for “not available for immediate use” to read as follows:

§ 648.2

Definitions.

* * * * *

Not available for immediate use means that the gear is not being used for fishing and is stowed in conformance with one of the following methods:

(1) Nets—(i) Below-deck stowage. (A) The net is stored below the main working deck from which it is deployed and retrieved;

(B) The towing wires, including the leg wires, are detached from the net; and

(C) The net is fan-folded (flaked) and bound around its circumference.

(ii) On-deck stowage. (A) The net is fan-folded (flaked) and bound around its circumference;

(B) The net is securely fastened to the deck or rail of the vessel; and

(C) The towing wires, including the leg wires, are detached from the net.

(iii) On-reel stowage. (A) The net is on the net reel;

(B) The towing wires are detached from the net;

(C) The codend of the net is removed from the net and stored below deck; and

(D) The entire surface of the net is covered and securely bound by:

(1) Canvas of other similar opaque material; or

(2) A highly visible orange mesh material that is not capable of catching fish or being utilized as fishing gear. Highly visible orange mesh includes but is not limited to the orange fence material commonly used to enclose construction sites.

(iv) On-reel stowage for vessels transiting the Gulf of Maine Rolling Closure Areas and the Georges Bank Seasonal Closure Area.

(A) If a vessel is transiting the Gulf of Maine Rolling Closure Areas and the Georges Bank Seasonal Closure Area, not available for immediate use also means, the net is on the net reel;

(B) No containment rope, codend tripping device, or other mechanism to close off the codend is attached to the codend;

(C) The entire surface of the net is covered and securely bound by:

(1) Canvas of other similar opaque material; or

(2) A highly visible orange mesh material that is not capable of catching fish or being utilized as fishing gear. Highly visible orange mesh includes but is not limited to the orange fence material commonly used to enclose construction sites.

(2) Scallop dredges. (i) The towing wire is detached from the scallop dredge, the towing wire is completely reeled up onto the winch, the dredge is secured, and the dredge or the winch is covered so that it is rendered unusable for fishing; or

(ii) The towing wire is detached from the dredge and attached to a bright-colored poly ball no less than 24 inches (60.9 cm) in diameter, with the towing wire left in its normal operating position (through the various blocks) and either is wound back to the first block (in the gallows) or is suspended at the end of the lifting block where its retrieval does not present a hazard to the crew and where it is readily visible from above.

(3) Hook gear (other than pelagic). All anchors and buoys are secured and all hook gear, including jigging machines, is covered.

(4) Sink gillnet gear. All nets are covered with canvas or other similar material and lashed or otherwise securely fastened to the deck or rail, and all buoys larger than 6 inches (15.24 cm) in diameter, high flyers, and anchors are disconnected.

(5) Other methods of stowage. Any other method of stowage authorized in writing by the Regional Administrator and subsequently published in the Federal Register.

* * * * *

§§ 648.13, 648.14, 648.17, 648.23, 648.51, 648.58, 648.59, 648.60, 648.61, 648.62, 648.80, 648.81, 648.82, 648.85, 648.86, 648.88, 648.89, 648.90, 648.91, 648.94, 648.95, 648.108, 648.124, 648.125, 648.144, 648.201 and 648.202 [Amended]

3. In the table below, for each section indicated in the left column, remove the reference in the middle column from wherever it appears in the section and add the text indicated in the right column.

Section	Remove	Add
§ 648.13(i)(2)(ix)	in accordance with § 648.23(b)(1);	and not available for immediate use as defined in § 648.2;
§ 648.14(g)(2)(iii)(A)	in accordance with § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.14(i)(1)(vi)(B)	unavailable for immediate use as defined in § 648.23(b),	not available for immediate use as defined in § 648.2,
§ 648.14(i)(2)(v)(C)	unavailable for immediate use as defined in § 648.23(b),	not available for immediate use as defined in § 648.2,
§ 648.14(i)(3)(iv)(C)	unavailable for immediate use as defined in § 648.23(b),	not available for immediate use as defined in § 648.2,
§ 648.14(k)(5)(ii)	in accordance with § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.14(k)(5)(vi)(B)	stowage requirements of § 648.23(b),	definition of not available for immediate use as defined in § 648.2,
§ 648.14(k)(5)(vii)(B)	stowage requirements of § 648.23(b),	definition of not available for immediate use as defined in § 648.2,
§ 648.14(k)(6)(i)(E)	in accordance with § 648.23(b),	and not available for immediate use as defined in § 648.2,
§ 648.14(k)(13)(ii)(G)	in accordance with § 648.23(b)	with gear stowed and not available for immediate use as defined in § 648.2
§ 648.14(r)(1)(vi)(C)	as required by § 648.23(b)	as defined in § 648.2
§ 648.14(r)(1)(vi)(F)	as required by § 648.23(b)	as defined in § 648.2
§ 648.14(r)(1)(vii)(A)	is stowed as specified by § 648.23(b)	is not available for immediate use as defined in § 648.2
§ 648.14(r)(1)(vii)(D)	as required by § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.17(b)(3)	one of the applicable methods specified in § 648.23(b);	the definition of not available for immediate use as defined in § 648.2;
§ 648.23(a)(2)	they are fishing consistent with exceptions specified in paragraph (b) of this section	their gear is stowed and not available for immediate use as defined in § 648.2
§ 648.23(a)(2)(ii)	as specified in paragraph (b) of this section.	and not available for immediate use as defined in § 648.2
§ 648.23(a)(3)	paragraph (b) of this section	§ 648.2
§ 648.51(a)(1)	specified in § 648.23,	defined in § 648.2,
§ 648.51(b)(5)(ii)(C)	in accordance with § 648.23(b) and not available for immediate use	and not available for immediate use as defined in § 648.2
§ 648.58(c)	unavailable for immediate use as defined in § 648.23(b),	stowed and not available for immediate use as defined in § 648.2,
§ 648.59(f)	in accordance with § 648.23(b).	and not available for immediate use as defined in § 648.2.
§ 648.60(a)(4)	in accordance with § 648.23(b).	and not available for immediate use as defined in § 648.2.
§ 648.60(a)(7)	in accordance with § 648.23(b),	and not available for immediate use as defined in § 648.2,
§ 648.61(b)	in accordance with the provisions of § 648.23(b).	and not available for immediate use as defined in § 648.2.
§ 648.62(b)(2)	in accordance with § 648.23(b),	and not available for immediate use as defined in § 648.2,
§ 648.80(a)(3)(vi)	as specified in § 648.23(b).	and not available for immediate use as defined in § 648.2.
§ 648.80(a)(4)(i)	in accordance with § 648.23(b),	as defined in § 648.2,
§ 648.80(a)(4)(ii)	in accordance with § 648.23(b),	as defined in § 648.2,
§ 648.80(a)(4)(iii)	in accordance with § 648.23(b),	as defined in § 648.2
§ 648.80(a)(4)(iv)	in accordance with § 648.23(b),	as defined in § 648.2
§ 648.80(a)(4)(iv)(B)(2) introductory text	Such vessels, in accordance with § 648.23(b), may stow additional nets not to exceed 150, counting the deployed net	Such vessels may stow additional nets in accordance with the definition of not available for immediate use as defined in § 648.2 not to exceed 150 nets, counting the deployed net.
§ 648.80(a)(6)(i)(E)	in accordance with one of the methods specified in § 648.23(b)	and not available for immediate use as defined in § 648.2,
§ 648.80(a)(7)(i)	in accordance with one of the methods specified in § 648.23(b)	as defined in § 648.2.
§ 648.80(a)(7)(ii)	in accordance with one of the methods specified in § 648.23(b)	and not available for immediate use as defined in § 648.2,
§ 648.80(a)(7)(iii)(A)	in accordance with one of the methods specified in § 648.23(b)	and not available for immediate use as defined in § 648.2.
§ 648.80(a)(10)(i)(C)	unavailable for immediate use in accordance with § 648.23(b)	not available for immediate use as defined in § 648.2.
§ 648.80(b)(2)(i)	in accordance with § 648.23(b),	as defined in § 648.2,
§ 648.80(b)(2)(ii)	in accordance with § 648.23(b),	as defined in § 648.2,
§ 648.80(b)(2)(iii)	in accordance with § 648.23(b)	as defined in § 648.2
§ 648.80(b)(2)(iv)	in accordance with § 648.23(b),	as defined in § 648.2,
§ 648.80(b)(2)(iv)(B)(1) introductory text	Such vessels, in accordance with § 648.23(b), may stow additional nets not to exceed 160, counting deployed nets	Such vessels may stow additional nets in accordance with the definition of not available for immediate use as defined in § 648.2 not to exceed 150 nets, counting the deployed net.
§ 648.80(b)(2)(vi)	as specified in § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.80(b)(3)(ii)	in accordance with § 648.23(b)	as defined in § 648.2
§ 648.80(b)(6)	as specified in § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.80(b)(9)(i)(E)	in accordance with one of the methods described under § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.80(c)(2)(i)	in accordance with § 648.23(b)	as defined in § 648.2
§ 648.80(c)(2)(ii)	in accordance with § 648.23(b)	as defined in § 648.2
§ 648.80(c)(2)(iii)	in accordance with § 648.23(b)	as defined in § 648.2
§ 648.80(c)(2)(v)	in accordance with § 648.23(b)	as defined in § 648.2
§ 648.80(c)(2)(v)(B)(1) introductory text	Such vessels, in accordance with § 648.23(b), may stow additional nets not to exceed 160, counting deployed nets	Such vessels may stow additional nets in accordance with the definition of not available for immediate use as defined in § 648.2 not to exceed 150 nets, counting the deployed net.
§ 648.80(c)(3)	in accordance with § 648.23(b)	as defined in § 648.2
§ 648.81(b)(2)(iv)	in accordance with the provisions of § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.81(h)(2)(i)	in accordance with the provisions of § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.81(j)(2)(i)	in accordance with the provisions of § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.81(k)(2)(i)	in accordance with the provisions of § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.81(l)(2)(i)	in accordance with the provisions of § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.81(m)(2)(i)	in accordance with the provisions of § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.81(n)(3)(iii)	pursuant to § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.82(b)(6)(iv)	in accordance with the provisions at § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.82(j)(1)(ii)	in accordance with § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.85(a)(3)(iii)	according to the regulations in § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.85(a)(3)(iv)(E)	in accordance with the regulations in § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.85(a)(3)(vii)	in accordance with the regulations in § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.85(b)(3)(x)(A)	according to the regulations at § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.85(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 pursuant to § 648.23(b	When the vessel is fishing under the Regular B DAS Program other gear may be on board provided it is stowed and not available for immediate use as defined in § 648.2
§ 648.85(b)(8)(v)(E)(1) introductory text	in accordance with § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.86(a)(3)(ii)	vessel complies with the gear stowage provisions specified in § 648.23(b)	vessel's gear is stowed and not available for immediate use as defined in § 648.2
§ 648.86(b)(4)(ii)	in accordance with the provisions of § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.88(a)(2)(iv)	in accordance with the provisions at § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.89(a)	must stow all other fishing gear on board the vessel as specified in § 648.23(b)	all other gear on board must be stowed and not available for immediate use as defined in § 648.2
§ 648.90(a)(5)(i)(D)(2) introductory text	in accordance with § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.90(a)(5)(i)(D)(3) introductory text	in accordance with § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.91(c)(2)(ii)	as specified in § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.94(e)	in accordance with the regulations specified under § 648.23(b)	as defined in § 648.2
§ 648.95(f)	in accordance with the gear stowage provisions specified under § 648.23(b)	as defined in § 648.2
§ 648.108(e)	A net that is stowed in conformance with one of the methods specified in § 648.23(b) and that can be shown not to have been in recent use is considered to be not “available for immediate use.”	Nets must be stowed and not available for immediate use as defined in § 648.2.
§ 648.124(c)	not available for immediate use and are stowed in accordance with the provisions of § 648.23(b)	Stowed and not available for immediate use as defined in § 648.2
§ 648.125(a)(1) introductory text	in accordance with § 648.23(b)(1)	and not available for immediate use as defined in § 648.2
§ 648.125(a)(5) introductory text	in conformance with one of the methods specified in § 648.23(b)	and not available for immediate use as defined in § 648.2
§ 648.144(a)(4) introductory text	A net that is stowed in conformance with one of the methods specified in § 648.23(b) and that can be shown not to have been in recent use, is considered to be not “available for immediate use.”	Nets must be stowed and not available for immediate use as defined in § 648.2.
§ 648.201(a)(2) introductory text	vessel complies with the gear stowage provisions specified in § 648.23(b)	Vessel's gear is stowed and not available for immediate use as defined in § 648.2
§ 648.201(b)	required by § 648.23(b)	defined in § 648.2
§ 648.201(c)	required by § 648.23(b)	defined in § 648.2
§ 648.202(a)	pursuant to § 648.23(b)	and not available for immediate use as defined in § 648.2

§ 648.23

[Amended]

4. In § 648.23, remove and reserve paragraph (b).