[Federal Register Volume 79, Number 76 (Monday, April 21, 2014)]
[Rules and Regulations]
[Pages 22043-22047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-09031]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 648 and 697

[Docket No. 130319263-4284-03]
RIN 0648-BD09


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; Final Rule To Allow 
Northeast Multispecies Sector Vessels Access to Year-Round Closed Areas

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

ACTION: Final rule.

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SUMMARY: This final rule finalizes an interim final rule approving a 
sector exemption request that allows Northeast multispecies 
(groundfish) sector vessels restricted access to portions of the 
Nantucket Lightship Closed Area under standard monitoring coverage 
levels. This action also responds to public comments received on the 
interim measures. This final rule does not modify any measures from the 
interim final rule.

DATES: Effective April 21, 2014, we confirm the effective date of 
December 31, 2013 through April 30, 2014, of the interim final rule 
published on December 16, 2013 (78 FR 76077).

ADDRESSES: A copy of the accompanying environmental assessment is 
available from the NMFS Greater Atlantic Regional Fisheries Office: 
John K. Bullard, Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. These documents 
are also accessible via the Federal eRulemaking Portal: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: William Whitmore, Fishery Policy 
Analyst, phone (978) 281-9182, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    Framework Adjustment 48 to the Northeast Multispecies (groundfish) 
Fishery Management Plan (78 FR 26118; May 3, 2013), included a 
provision allowing sectors to request exemptions from the year-round 
groundfish mortality closures to provide additional fishing 
opportunities. On December 16, 2013 (78 FR 76077), NMFS published an 
interim final rule allowing groundfish sector vessels restricted access 
to the Eastern and Western Exemption Areas within the Nantucket 
Lightship Closed Area. The interim final rule modified monitoring 
requirements for vessels fishing in the Eastern and Western Exemption 
Areas from the proposed rule by reducing the 100-percent industry-
funded at-sea monitoring requirement for these areas to current at-sea 
monitoring coverage levels. The interim final rule also disapproved 
sector vessel access to Closed Areas I and II. This final rule retains 
the measures implemented in the interim final rule and responds to 
comments received on the interim final rule.

Approval of an Exemption Request Allowing Sector Vessels Into Portions 
of Nantucket

Lightship Closed Area

    This final rule allows sector vessels to fish with selective gear 
in the Eastern and Western Exemption Areas within the Nantucket 
Lightship Closed Area for the duration of fishing year 2013, i.e., 
through April 30, 2014 (see Figure A). Justification for this decision 
is explained in the interim final rule (78 FR 76077; December 13, 
2013). Trawl vessels are restricted to using selective trawl gear, 
including the separator trawl, the Ruhle trawl, the mini-Ruhle trawl, 
rope trawl, and any other gear authorized by the New England Fishery 
Management Council (Council) in a management action. Flounder nets are 
prohibited in this area. Hook vessels are permitted and gillnet vessels 
are restricted to fishing 10-inch (25.4-cm) diamond mesh or larger. 
Gillnet vessels are required to use pingers when fishing in the Western 
Exemption Area from December 1-May 31, because this area lies within 
the existing Southern New England Management Area of the Harbor 
Porpoise Take Reduction Plan. It should be noted that the proposed rule 
to approve 2014 Sector Operations Plans and exemption requests (79 FR 
14639; March 17, 2014) proposes to allow standard otter trawls in the 
Western Exemption Area for the 2014 fishing year. The interim final 
rule modified the monitoring requirements for vessels fishing in the 
Eastern and Western Exemption Areas by reducing the at-sea monitoring 
coverage level. There are several reasons why we reduced the coverage 
level to be consistent with standard coverage levels outside of the 
closed areas. The coverage level was relaxed from the proposed 100-
percent industry-funded level because we recognized that there were 
fewer risks with opening the Nantucket Lightship Closed Area given that 
this area was originally closed to protect Southern New England/Mid-
Atlantic yellowtail flounder and this stock is no longer overfished or 
undergoing overfishing. We also required selective gear to be used in 
this area that further reduced the potential for groundfish catch. 
Because we did not open Closed Areas I and II, and because we do not 
anticipate an increase in fishing effort after opening the Eastern and 
Western Exemption Areas, we expect to be able to fund the standard 
level of monitoring coverage in these areas. This provides increased 
flexibility for sector vessels because vessels can fish in a new area 
with no additional monitoring costs in fishing year 2013.
    This final rule maintains the 22-percent monitoring coverage 
requirement for the Eastern and Western Exemption Areas for the 
remainder of fishing year 2013.

[[Page 22044]]

[GRAPHIC] [TIFF OMITTED] TR21AP14.013

Disapproval of Exemption Requests To Fish in Portions of Closed Areas I 
and II

    Although we considered allowing access to fish in portions of 
Closed Areas I and II in the proposed rule, in the interim final rule 
we did not approve sector exemption requests that would allow sector 
vessels to fish in those areas. We disapproved access for the reasons 
summarized below. Comments in response to the interim final rule do not 
provide us with justification to revise our decision.
    Our proposal to allow access to these areas was based on a balance 
of potential economic opportunity and increased efficiency with cost-
effective monitoring and fish stock protections. In our interim final 
rule, we disapproved sector exemption requests to access portions of 
Closed Areas I and II for several reasons. Comments on the proposed 
rule submitted by some industry members and environmental organizations 
indicated that the increase in catch rates from Closed Areas I and II 
would likely not exceed the increased expense of having to pay for an 
at-sea monitor on board. Further, all comments submitted by the fishing 
industry claimed that they were unwilling to pay for the necessary 
monitoring coverage in any of the closure openings. Because of this and 
our concern about the potential impacts from opening these closed areas 
on Georges Bank cod and yellowtail flounder (stocks are both overfished 
and subject to overfishing), it did not seem prudent to open these 
areas.
    Lastly, the action proposed to allow sector groundfish vessels into 
Closed Areas I and II until December 31, 2013. The deadline was imposed 
to protect spawning Georges Bank cod and haddock. Because that time has 
since passed, there is no possibility of opening the areas following 
the interim final rule.

Future Access Into Closed Areas

    In fishing year 2014, we remain unable to fund monitoring costs for 
exemptions requiring a 100-percent at-sea monitor coverage level. We 
explained in the interim final rule that we are interested in gathering 
additional data from Closed Areas I and II through exempted fishing 
permits to determine if this coverage level can be reduced. As a 
result, we are working with the Northeast Fisheries Science Center 
(Center) to develop a short-term exempted fishing permit (EFP) that 
would allow a small number of groundfish trips into Closed Areas I and 
II using the Center's Study Fleet vessels. For more information on the 
Study Fleet, visit http://www.nefsc.noaa.gov/read/popdy/studyfleet/. We 
have also received an industry-led EFP request to access portions of 
Closed Areas I and II, which we are currently evaluating and discussing 
with the applicants. Results from these and any other potential EFPs 
could better inform the industry, public, and NMFS, regarding the 
economic efficacy of accessing Closed Areas I and II, while providing 
needed information concerning bycatch of groundfish stocks of concern. 
This information could then help industry determine if it is 
economically worthwhile to request access to these areas in the future 
(via a sector exemption request). It will also help the Center 
determine whether it may be practicable to allow a limited number of 
observed vessels to fish in Closed Areas I and II. For the reasons 
stated in the interim final rule, we have concerns with providing 
access to these areas with less than 100% coverage; however, we intend 
to evaluate results from any approved EFPs to determine if we could 
justify access at a less than 100-percent at-sea monitor coverage 
level.

Comments and Responses

    Comments on the interim final rule were submitted by the Northeast 
Seafood Coalition, the Georges Bank Cod Fixed Gear Sector, and the 
Massachusetts Division of Marine Fisheries. The Northeast Seafood 
Coalition and the Massachusetts

[[Page 22045]]

Division of Marine Fisheries commented primarily on our justifications 
for disapproving industry access into Closed Areas I and II. They also 
commented on our rationale for requiring 100-percent industry-funded 
at-sea monitoring when accessing those areas. Further, they both argued 
that our decision reveals a lack of trust in fishermen and confidence 
in the sector management system. The Massachusetts Division of Marine 
Fisheries requested clarification on comments we made about the 
catchability of Georges Bank haddock and suggested developing a pilot 
research program that is not scientifically focused. The Georges Bank 
Cod Fixed Gear Sector commented that vessels fishing in the Eastern and 
Western portions of the Nantucket Lightship Closed Area should only be 
subject to the 8-percent observer coverage provided by the Northeast 
Fisheries Observer Program.
    Comment 1: The Northeast Seafood Coalition contends that the 
rationale for denying sector vessels access to Closed Area I and II 
appears to be based on ``subjective fears and speculation with little 
or no real scientific or analytical evidence to support the decision.''
    Response: We analyzed general sector exemption requests from year-
round closed area exemption requests separately in fishing year 2013, 
and developed a specific Environmental Assessment (EA) for this action 
so that we could better analyze the exemptions and potential costs and 
benefits that may result from opening these closed areas. The closed 
area access EA utilized and expanded upon data developed for the 
Framework Adjustment 48 EA. The EA included recent analyses developed 
by the New England Fishery Management Council's Closed Area Technical 
Team to incorporate the best available science. We utilized a variety 
of analyses including, but not limited to; habitat assessments using 
the Swept Area Seabed Impact (SASI) model, catch per unit effort 
comparisons inside and outside of closed areas, species distribution 
maps, species length and frequency comparisons inside and outside of 
closed areas, and standard and selective gear performance inside and 
outside of closed areas.
    Conclusions in the EA revealed relatively weak incentives for 
fishing inside Closed Areas I and II. The cumulative effects analysis 
suggests that opening the closed areas as proposed could likely result 
in low positive impacts to human communities, while resulting in 
impacts ranging between low negative to negligible to the physical and 
biological environments (see Table 44 in the Environmental Assessment). 
Because we relied on these analyses, we disagree that the basis for 
denial was speculative and not based on real scientific or analytical 
evidence.
    We acknowledge that there is some uncertainty in the analyses 
within the EA, but this is why we took more of a precautionary approach 
when considering access to closed areas. For reasons discussed in the 
interim final rule (78 FR 76077, page 76079) we consider it necessary 
that every trip in Closed Area I or II be monitored to ensure that we 
are able to closely monitor catch in a timely fashion and can rescind 
the exemption if it is determined that the catch could be detrimental 
to rebuilding efforts. There was strong opposition to this by many 
members of the fishing industry who commented that they would not 
utilize the exemptions if they had to pay for monitoring coverage. Yet 
there was some support for comprehensive monitoring by several industry 
groups, as well as members of environmental organizations.
    Our proposal to allow access to Closed Areas I and II was based on 
a balance of potential economic opportunity and efficiency with cost-
effective monitoring and fish stock protections. Industry's insistence 
that they would not fish in Closed Areas I and II if they had to pay 
for a monitor reduced any speculation we had about the potential 
benefit of opening the area. It further convinced us that without more 
information about the catch available in these areas, opening Closed 
Areas I and II was not worth the potential environmental risks. 
Comments on the interim final rule submitted by the Massachusetts 
Division of Marine Fisheries support this conclusion.
    As explained above, we are developing an exempted fishing permit 
program to gain additional information on potential environmental 
impacts and the economic viability of fishing in Closed Areas I and II. 
The findings from this research could help provide industry with better 
catch information for potential future trips into Closed Areas I and 
II.
    Comment 2: Both the Northeast Seafood Coalition and Massachusetts 
Division of Marine Fisheries argue that our response and rationale for 
disapproving access to Closed Areas I and II suggests that we lack 
confidence in the output control system (i.e., an annual catch limit) 
that sectors are held to.
    Response: Groundfish are not managed solely through an output 
control/hard quota system. While Amendment 16 to the groundfish plan 
implemented annual catch limits for sectors and accountability measure, 
should those limits be exceeded, the fishery is also managed through 
area closures that protect essential fish habitat and spawning 
aggregations.
    The groundfish mortality closures that this action considered 
granting exemptions from were established to protect stocks, such as 
Georges Bank cod and yellowtail flounder, that are currently overfished 
and subject to overfishing. We do not believe that it is appropriate at 
this time to increase fishing efforts in areas where these stocks 
reside without catch information from monitoring every trip. The 
upcoming Omnibus Habitat Amendment 2 is reconsidering which areas 
should be closed to protect essential fish habitat and juvenile 
groundfish. Until that amendment is implemented, we will continue to 
utilize approved closed areas as necessary to meet the goals and 
objectives of the groundfish plan.
    As explained in the response to Comment 26 in the interim final 
rule, sector vessels are not exceeding their allocations, yet many key 
groundfish stocks are struggling to rebuild. We do not lack confidence 
in the sector system; however, we do believe that additional measures, 
such as closed areas to further protect juvenile and spawning fish, are 
vital to help rebuild overfished groundfish stocks.
    Comment 3: The Northeast Seafood Coalition contends that NMFS has 
shown a ``clear prejudice'' against fishermen's ability to target fish 
and fish lawfully. While commending our concerns about the potential 
for illegal discarding, Massachusetts Division of Marine Fisheries 
questions the need for 100-percent monitoring coverage inside Closed 
Areas I and II when substantially less coverage is required outside.
    Response: Comment 18 of the interim final rule (78 FR 76077, page 
76085) explains why we consider additional coverage necessary for these 
closed areas. We also re-summarized above that it is important to 
closely monitor catch so that we can react appropriately if 
unanticipated, negative impacts on fish stocks occur. We assert that 
trips into areas that have been closed to groundfish fishing for two 
decades should be closely monitored, at least for an initial time 
period. We disagree that requiring greater monitoring shows prejudice 
against fishermen. In fact, many comments submitted by the fishing 
industry, such as the Cape Cod Commercial Fishermen's Alliance, 
Penobscot East Resource Center, and Maine Coast Fishermen's 
Association,

[[Page 22046]]

supported our requirement for 100-percent monitoring coverage.
    Because these areas have not been fished by groundfish fishermen 
for decades, fishermen have little recent experience or knowledge of 
where fish are located and how many fish could be there. A higher 
uncertainty in this area could result in unanticipated catches. It is 
not prejudicial, only appropriately cautious, to consider that the 
mixing of potentially large George Bank haddock catches, with very low 
quotas for Georges Bank cod and yellowtail flounder, could potentially 
result in an increased incentive to illegally discard in these areas.
    Comment 4: The Northeast Seafood Coalition claims that the actions 
by NMFS are opposite of the Council's intent.
    Response: Similar comments on the proposed rule are addressed in 
Comment 19 in the interim final rule (78 FR 76077, page 76086). In 
summary, the Council elected through Framework 48 to allow sectors to 
request access to year-round groundfish closed areas through the sector 
exemption process. NMFS approved this action and agreed during the 
development of Framework 48 that we would consider such exemption 
requests. NMFS, not the Council, develops and reviews sector 
exemptions. The Regional Administrator has the authority to consider, 
approve/disapprove, and modify sector exemption requests to ensure that 
the exemptions are consistent with the Magnuson-Stevens Act National 
Standards and the groundfish plan's goals and objectives. We completed 
an extensive analysis of the sectors request to access the year round 
closed areas and found that the potential costs exceeded the benefits 
of opening Closed Areas I and II.
    Comment 5: The Northeast Seafood Coalition contends that we could 
have allowed vessels to better harvest their remaining allocations of 
Georges Bank cod and yellowtail flounder by letting vessels fish in 
Closed Areas I and II. They argue that allowing vessels into those 
areas would have allowed them to better target Georges Bank haddock, 
pollock, and redfish without having to worry about bycatch of choke 
stocks such as American plaice and witch flounder.
    Response: We initially proposed access to Closed Areas I and II to 
do exactly as the Northeast Seafood Coalition suggests. This action was 
developed to provide sector vessels with the opportunity to access 
Closed Areas I and II to increase their Georges Bank haddock catch. 
However, because of the need to monitor catch on each trip in near 
real-time, along with a lack of historical catch data, every trip 
needed to be monitored. After explaining that we could not pay for the 
additional monitoring coverage, industry responded that they would not 
fish in the closed areas because the benefits would not exceed the 
monitoring costs. As a result, we did not open Closed Areas I and II.
    Comment 6: The Northeast Seafood Coalition suggests that a decrease 
in fishing effort for the 2013 fishing year should result in a surplus 
of monitoring funds that could be used to cover fishing trips into 
Closed Areas I and II.
    Response: Currently, staff from the Science Center are still 
analyzing SBRM sea day needs and target coverage rates to meet the 
required mandates for catch monitoring and the SBRM, and identifying 
available resources. We are unable to determine whether there is a 
surplus of monitoring funds at this time.
    Second, access for Closed Areas I and II was only proposed until 
December 31, 2013, rendering this comment moot.
    Comment 7: Massachusetts Division of Marine Fisheries requested 
that we clarify our position on haddock abundance and why access to 
Closed Areas I and II will not give fishermen needed opportunities to 
catch more of the allocation and optimum yield.
    Response: In the interim final rule, we explained that current low 
catches of haddock, along with some fishermen commenting that they are 
having a difficult time catching Georges Bank haddock, suggests that 
``opening Closed Areas I and II would not lead to significant increases 
in haddock catch.''
    As of March 4, 2014, only 8.7 percent of the Georges Bank East 
haddock quota has been landed, and 7.8 percent of the Georges Bank West 
haddock quota has been landed, with only two months remaining in 
fishing year 2013. This means that there are plenty of haddock that 
remain uncaught. If a significantly larger portion of haddock were 
available in the portions of Closed Areas I and II that we had proposed 
to open, surely the increased revenue from the catch would have offset 
the expense of having a monitor on board. The Massachusetts Division of 
Marine Fisheries agreed with this rationale within its comments. This 
conclusion is also supported by the EA for this action, which did not 
find a statistically significant larger amount of haddock within the 
portions of Closed Areas I and II that we were considering opening, 
during the time period we were proposing (see the swept area analyses 
in section 4.1.2 as well as the economic impacts in section 5.1.5). The 
EA concluded that access to these areas would likely result in low 
positive impacts to fishermen and fishing communities.
    Massachusetts Division of Marine Fisheries said that we based our 
``decision on a likely lack of haddock'' in the closed areas. This is 
incorrect. Fishermen having a difficult time harvesting haddock was 
only one of several reasons why we did not allow fishermen into Closed 
Areas I and II. Other reasons include potential impacts on Georges Bank 
cod and yellowtail flounder stocks as well as a lack of economic 
opportunity and increased efficiency evidenced by industry's 
willingness to pay for monitoring coverage for trips into closed areas.
    It is a stretch to claim that a low catch rate of Georges Bank 
haddock raises concerns about the status of the haddock quota--there 
could be other factors limiting the fleet's ability to harvest more of 
the Georges Bank haddock quota. For example, increased fuel expenses to 
fish offshore, high lease rates for choke stocks that could be 
necessary to harvest the haddock, or possibly the movement of fish 
further offshore into Canadian waters. One could also argue that it 
does not make sense for fishermen to pay for a monitor so they can fish 
inside a closed area when they can fish immediately adjacent to the 
area for free.
    Comment 8: Massachusetts Division of Marine Fisheries suggested 
that tying a specific research requirement to special access into a 
closed area through an exempted fishing permit would prevent timely 
access and unnecessarily complicate matters.
    Response: We agree. We expect that any type of scientific 
assessment would take at least one year so that we could analyze and 
incorporate seasonal changes. As explained earlier, we are developing 
an exempted fishing permit program that would allow for a limited 
number of trips so that industry could then determine whether or not 
they could afford to pay for a monitor while fishing in the area. Data 
would also be reviewed to ensure that opening the area would not have a 
negative impact on Georges Bank cod or yellowtail flounder.
    Comment 9: The Georges Bank Cod Fixed Gear Sector contends that 
requiring the standard level of monitoring coverage (currently 22 
percent) is unnecessary when vessels are fishing selectively in the 
eastern and western portions of the Nantucket Lightship Closed Area.
    Response: While we understand the point that the Sector is trying 
to make, selective gear is required in the area because groundfish are 
present. In fact, some sectors have requested the

[[Page 22047]]

exemption so that they can target haddock with selective trawl gear. 
Because this is relatively new fishing effort in the areas, it is 
appropriate to keep the standard monitoring coverage level at this 
time.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this final rule is 
consistent with the Northeast Multispecies Fishery Management Plan, 
other provisions of the Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order E.O. 12866.
    Pursuant to the Regulatory Flexibility Act, and prior to the Small 
Business Administration's (SBA) June 20, 2013, final rule, a Final 
Regulatory Flexibility Analysis (FRFA) was prepared for this action, as 
required by section 604 of the Regulatory Flexibility Act, as part of 
the regulatory impact review. This analysis used SBA's former size 
standards. The FRFA describes the economic impact the interim rule 
would have on small entities. In the interim final rule, we determined 
that the new size standards did not affect the previously completed 
IRFA. Each of the statutory requirements of section 604(b) and (c) were 
addressed in the Classification section of the interim final rule. NMFS 
did not receive any comments on the FRFA during the comment period for 
the interim final rule, nor did it make any changes to the provisions 
implemented in the interim final rule. Therefore, no changes are 
necessary to the FRFA that was published with the interim final rule.
    A small entity compliance guide for the interim measure, as 
required by Section 212 of the Small Business Regulatory Enforcement 
Fairness Act of 1996, was issued on December 12, 2013. This final rule 
makes no changes to the interim final rule. Therefore, NMFS is not re-
issuing the previously distributed compliance guide. Small entities 
have been operating under the interim measure since December 31, 2013, 
so redistributing the previously issued compliance guide would likely 
result in confusion. A small entity compliance guide was sent to all 
holders of Federal groundfish permits that are enrolled in a groundfish 
sector. In addition, copies of this final rule and guides (i.e., 
information bulletins) are available from NMFS (see ADDRESSES) and at 
the following Web site: http://www.nero.noaa.gov/.
    Accordingly, the interim rule amending 50 CFR Parts 648 and 697 
which was published at 78 FR 76077 on December 16, 2013, is adopted as 
a final rule without change.

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

    Dated: April 15, 2014.
Paul N. Doremus,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 2014-09031 Filed 4-18-14; 8:45 am]
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