[Federal Register Volume 83, Number 84 (Tuesday, May 1, 2018)]
[Rules and Regulations]
[Pages 18965-18972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09150]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 180123065-8378-02]
RIN 0648-XF989


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; 2018 Allocation of 
Northeast Multispecies Annual Catch Entitlements and Approval of a 
Regulatory Exemption for Sectors

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

ACTION: Final rule.

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SUMMARY: This rule provides allocations to 17 of 19 groundfish sectors 
for the 2018 fishing year and also approves a new regulatory exemption 
for sector vessels. The action is necessary because sectors must 
receive allocations in order to operate in the 2018 fishing year. This 
action is intended to maximize fishing opportunities, ensure sector 
allocations are based on the best scientific information available, and 
help achieve optimum yield for the fishery.

DATES: Effective May 1, 2018, through April 30, 2019.

ADDRESSES: Copies of each sector's operations plan and contract, as 
well as the programmatic environmental assessment for sectors 
operations in fishing years 2015 to 2020, are available from the NMFS 
Greater Atlantic Regional Fisheries Office (GARFO): Michael Pentony, 
Regional Administrator, National Marine Fisheries Service, 55 Great 
Republic Drive, Gloucester, MA 01930. These documents are also 
accessible via the GARFO website: https://www.greateratlantic.fisheries.noaa.gov/sustainable/species/multispecies/.

FOR FURTHER INFORMATION CONTACT: Kyle Molton, Fishery Management 
Specialist, (978) 281-9236.

SUPPLEMENTARY INFORMATION:

Background

    The Northeast multispecies (groundfish) sector management system 
allows us to allocate a portion of available groundfish catch by stock 
to each sector. Each sector's annual allocations are known as annual 
catch entitlements (ACE) and are based on the collective fishing 
history of a sector's members. The ACEs are a portion of a stock's 
annual catch limit (ACL)

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available to commercial groundfish vessels. A sector determines how to 
harvest its ACEs and may decide to limit operations to fewer vessels. 
Atlantic halibut, windowpane flounder, Atlantic wolffish, and ocean 
pout are not managed under the sector system, and sectors do not 
receive allocations of these groundfish species. With the exception of 
halibut, which has a one-fish per vessel trip limit, possession of 
these stocks is prohibited.
    Because sectors elect to receive an allocation under a quota-based 
system, the Northeast Multispecies Fishery Management Plan (FMP) grants 
sector vessels several ``universal'' exemptions from the FMP's effort 
controls. The FMP allows sectors to request additional exemptions to 
increase flexibility and fishing opportunities for consideration and 
approval by NMFS. Sectors are prohibited from requesting, and NMFS from 
approving, exemptions from permitting restrictions, gear restrictions 
designed to minimize habitat impacts, and most reporting requirements.
    In addition to the sectors, there are several state-operated permit 
banks, which receive allocations based on the fishing history of 
permits that the state holds. The final rule implementing Amendment 17 
to the FMP allowed a state-operated permit bank to receive an 
allocation without needing to comply with sector administrative and 
procedural requirements (77 FR 16942; March 23, 2012). Instead, permit 
banks are required to submit a list of permits to us, as specified in 
the permit bank's Memorandum of Agreement between NMFS and the state. 
These permits are not active vessels; instead, the allocations 
associated with the permits may be leased to other sectors. State-
operated permit banks contribute to the total allocation under the 
sector system.
    We approved nineteen sectors to operate in fishing years 2017 and 
2018, and also approved 21 requested exemptions for sectors (82 FR 
19618; April 28, 2017). On November 20, 2017, we withdrew approval of 
Northeast Fishery Sector IX (NEFS 9) (82 FR 55522; November 22, 2017). 
This action allocates 2018 ACE to 17 of 19 sectors based on the 
specifications in Framework Adjustment 57 to the Northeast Multispecies 
FMP. This action also approves a new regulatory exemption to increase 
fishing opportunities for monkfish while fishing on a groundfish sector 
trip.

Sector Allocations for Fishing Year 2018

    The 2018 allocations in this rule are based on sector enrollment in 
fishing year 2018 as determined by preliminary roster submissions. All 
permits enrolled in a sector, and the vessels associated with those 
permits, have until April 30, 2018, to withdraw from a sector and fish 
in the common pool for fishing year 2018. The allocations in this rule 
are based on the fishing year 2018 specifications in Framework 57 to 
the FMP. As explained in more detail below, this rule does not allocate 
2018 ACE to NEFS 7 or NEFS 9, or make any determinations on their 
operations plans.
    We calculate a sector's allocation for each stock by summing its 
members' potential sector contributions (PSC) for a stock and then 
multiplying that total percentage by the available commercial sub-ACL 
for that stock. Table 1 shows the total PSC by stock for each sector 
receiving an allocation under this rule for fishing year 2018. Tables 2 
and 3 show the allocations for each sector, in pounds and metric tons, 
respectively, for fishing year 2018, based on their submitted fishing 
year 2018 rosters. The common pool sub-ACLs are also included in each 
of these tables. Framework 57 sets the fishing year 2018 common pool 
sub-ACLs, and are calculated using the PSC of permits not enrolled in 
sectors. The common pool sub-ACL is managed separately from sectors and 
does not contribute to available ACE for leasing or harvest by sector 
vessels, but is shown for comparison.
    We do not assign a permit separate PSCs for the Eastern Georges 
Bank (GB) cod or Eastern GB haddock; instead, we assign each permit a 
PSC for the GB cod stock and GB haddock stock. Each sector's GB cod and 
GB haddock allocations are then divided into an Eastern ACE and Western 
ACE, based on each sector's percentage of the GB cod and GB haddock 
ACLs. For example, if a sector is allocated 4 percent of the GB cod 
ACL, the sector is allocated 4 percent of the commercial Eastern U.S./
Canada Area GB cod total allowable catch. The Eastern GB haddock 
allocations are determined in the same way. These amounts are then 
subtracted from the sector's overall GB cod and haddock allocations to 
determine its Western GB cod and haddock ACEs. A sector may only 
harvest its Eastern GB cod and haddock ACEs in the Eastern U.S./Canada 
Area. A sector may also ``convert,'' or transfer, its Eastern GB cod or 
haddock allocation into Western GB allocation and fish that converted 
ACE outside the Eastern GB area.
    All sectors were required to submit preliminary fishing year 2018 
sector rosters to us by March 26, 2018. Prior to the start of each 
fishing year, we review preliminary rosters to determine, among other 
issues, whether the vessels enrolled in sectors are eligible, whether 
the sectors have signed contracts from permit holders demonstrating 
membership, and whether the sector continues to fulfill the ``rule of 
three'' requirement, which requires sectors to be composed of permits 
held by at least three distinct entities. Enrollment of sectors may 
change each year, but these changes in enrollment are usually minor and 
require minimal review.
    Subsequent to the proposed rule for this action (83 FR 12706; March 
23, 2018), there were significant changes in sector enrollment for NEFS 
7, NEFS 8, and NEFS 9 for the 2018 fishing year. Sector roster 
submissions indicated that all permits enrolled in NEFS 7 in fishing 
year 2017 are leaving the sector for fishing year 2018, with several 
moving to the common pool and the remainder moving to NEFS 8. 
Additionally, sector roster submissions indicated that nearly all 
permits enrolled in NEFS 9 (55 of 60 permits) during fishing year 2017 
are enrolling in NEFS 7 for fishing year 2018. Five of these permits 
are subject to forfeiture as a result of the criminal case against 
Carlos Rafael. Two permits from NEFS 9 enrolled in NEFS 8. Only three 
permits remain enrolled in NEFS 9. These changes are especially 
significant given ongoing efforts to account for misreported catch by 
NEFS 9 vessels in prior fishing years and resolve other issues that 
caused withdrawal of approval of the NEFS 9 operations plan. We are 
also working to resolve whether the five permits subject to forfeiture 
can be enrolled in a sector given that Mr. Rafael's interest in them 
has been forfeited to the U.S. Government.
    These significant roster changes, including substantive operational 
and overage payback issues, require further consideration. Therefore, 
we are delaying a decision regarding allocating 2018 ACE to NEFS 7 or 
NEFS 9, and this final rule does not include allocations for either 
sector. Although the proposed rule for this action included allocations 
for both NEFS 7 and NEFS 9, issuing an allocation to either sector in 
this rule would be premature until the large-scale changes to sector 
enrollment and related issues are fully considered and resolved, and we 
consult with the New England Fishery Management Council. Any allocation 
to NEFS 7 or NEFS 9, or operations plan approvals, will be completed in 
a separate rulemaking.

Holdback of Allocation and End of Year Catch Accounting

    The FMP authorizes us to hold 20 percent of a sector's ACE up to, 
and

[[Page 18967]]

through, June 30 to allow time to complete catch accounting and 
reconcile overages, if necessary. At the start of fishing year 2018, we 
will withhold 20 percent of NEFS 8's allocation. We are requiring a 
holdback because two vessels enrolled in NEFS 9 for 2017 have joined 
NEFS 8 for fishing year 2018, and we are evaluating potential pound-
for-pound payback of allocation necessary to account for NEFS 9 
overages in previous fishing years. If we have not finalized our 
analysis and catch accounting prior to June 30, 2018, NEFS 8 will 
receive the holdback allocation. No other sectors receiving an 
allocation for 2018 in this rule will be subject to the holdback 
provision. Holding back this quota will ensure that NEFS 8 has 
sufficient allocation to begin operating on May 1, 2018, while also 
ensuring sufficient allocation is available to cover any potential 
overage associated with vessels previously enrolled in NEFS 9, if 
payback is determined to be necessary. In 2018, NEFS 7 and 9 will be 
almost entirely made up of permits that were enrolled in NEFS 9 in 
2017. Therefore, we determined that a 20-percent holdback is 
potentially not sufficient to ensure proper accounting of overages that 
may affect these two sectors.
    We expect to finalize 2017 catch information for all groundfish 
sectors in the summer of 2018 consistent with the normal sector 
process. We will allow sectors to transfer fishing year 2017 ACE for 2 
weeks upon our completion of year-end catch accounting to reduce or 
eliminate any fishing year 2017 overages. If necessary, we will reduce 
any sector's fishing year 2018 allocation to account for a remaining 
overage in fishing year 2017. We will notify managers of any overages 
their sector has for 2017 and the 2-week trading window when we have 
finalized 2017 catch information.
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New Sector Exemption Approved for Fishing Year 2018

Limit on the Number of Gillnets for Day Gillnet Vessels Fishing in the 
Gulf of Maine

    Each year, vessels fishing with gillnet gear must declare as either 
a ``Day'' or ``Trip'' gillnet vessel. A Day gillnet vessel is limited 
in the number of nets it may fish, but can return to port while leaving 
the gear in the water. A Trip gillnet vessel is not limited in the 
number of nets it may fish, but must retrieve all of its gear each 
trip. This action approves an exemption for Day gillnet vessels fishing 
in the Gulf of Maine from the current 100-net limit. The intent of this 
exemption is to increase opportunities for sector vessels to harvest 
monkfish, a healthy non-groundfish stock, while fishing on a groundfish 
trip. The exemption allows sector vessels to fish up to 150 gillnets, 
provided at least 50 nets are 10-inch (25.4-cm) or larger mesh and 
those nets are fished east of 70 degrees West longitude. The 100-net 
limit still applies in the portion of the Gulf of Maine (GOM) Regulated 
Mesh Area west of 70 degrees West longitude (Figure 1).
    This exemption is a variation of an exemption we previously 
approved for Day gillnet vessels in the GOM. The original exemption 
allowed the use of 150 gillnets and the use of a single gillnet tag per 
net, as is currently allowed for sector vessels fishing in other areas. 
We withdrew approval of the original exemption in 2014 as part of the 
GOM cod emergency action (79 FR 67362; November 13, 2014) due to 
concerns about potential GOM cod catch from the additional gillnet 
effort. The new exemption approved in this action is more restrictive 
than the original exemption in several ways. The new exemption requires 
the use of larger mesh nets, limits the geographic scope of any 
additional nets, and does not modify tagging provisions for nets fished 
in the GOM. These restrictions were developed to reduce any additional 
impacts to GOM cod and address the concerns underlying our withdrawal 
of the original exemption.
    This exemption does not change the 50-roundfish or ``stand up'' net 
limit in the GOM. Day gillnet vessels are still required to tag each 
roundfish net with two gillnet tags and each flatfish or ``tied down'' 
net with a single gillnet tag. We will not issue additional gillnet 
tags, so vessels must choose between fishing their full suite of 
roundfish nets or taking advantage of the extra nets available under 
this exemption. Keeping tagging provisions in place will maintain 
consistency and allow for better enforcement of the gillnet limits, 
including the 50-roundfish gillnet limit in the GOM and the overall 
150-net limit. Sector vessels fishing under the exemption are also 
still required to comply with any regulatory measures designed to limit 
gear interactions with protected resources, such as the mandated use of 
pingers or weak-links.
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Comments and Responses

    We received two public comments on the proposed rule. One was a 
joint letter from the Northeast Seafood Coalition (NSC) and the 
Northeast Sector Service Network (NESSN). The other comment submitted 
was from a member of the fishing industry, but was not relevant to the 
proposed measures. NSC and NESSN also resubmitted their comments on the 
interim final rule which withdrew approval of NEFS 9 (82 FR 55522; 
November 22, 2017). Only comments that related to the proposed measures 
are addressed below.

[[Page 18972]]

Approval of a New Regulatory Exemption for Sectors

    Comment 1: NSC and NESSN supported the approval of the new gillnet 
exemption as proposed. NSC and NESSN also state that the Day gillnet 
fishery in the GOM will benefit from the opportunity to better target 
monkfish, and state that they expect impacts to the monkfish resource 
to be minimal.
    Response: We have granted the exemption, as proposed.

Changes From the Proposed Rule

    This final rule does not include allocations for NEFS 7 or NEFS 9, 
which were included in the proposed rule. There are no other changes 
from the proposed measures made in this final rule.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), the NMFS 
Assistant Administrator has determined that this rule is consistent 
with the Northeast Multispecies FMP, other provisions of the Magnuson-
Stevens Act, and other applicable law.
    This action is exempt from the procedures of Executive Order (E.O.) 
12866.
    This rule does not contain policies with federalism or ``takings'' 
implications as those terms are defined in E.O. 13132 and E.O. 12630, 
respectively.
    Because this rule relieves several restrictions, the NMFS Assistant 
Administrator finds good cause under 5 U.S.C. 553(d)(1) and (3) to 
waive the 30-day delay in effectiveness so that this final rule may 
become effective May 1, 2018. If this action is not implemented by the 
start of the 2018 fishing year on May 1, 2018, sectors would not have 
allocations, and sector vessels would be unable to fish. Sector vessels 
would be prohibited from fishing for groundfish until this rule was 
finalized. This would result in significant negative economic impacts.
    Permit holders make decisions about sector enrollment based largely 
on allocations to permits that are based on overall available catch. 
The sector allocations in this rulemaking are based on catch limits set 
by Framework 57, which incorporates information from updated stock 
assessments for the 20 groundfish stocks. The development of Framework 
57 was timed to rely on the best available science by incorporating the 
results of the assessments. This information was not finalized, 
however, until mid-December 2017. By regulation, rosters are required 
to be submitted by December 1, unless we instruct otherwise. This year, 
we instructed sectors to provide roster information to us by March 26, 
2018, instead of December 1, 2017. This later date was necessary to 
provide permit holders the opportunity to use the Framework 57 catch 
limit information to make more fully informed decisions of where they 
would enroll for this fishing year. Accommodating this need for 
information required us to delay publishing the proposed and final 
rules for this action and was unavoidable.
    Sector exemptions relieve restrictions that provide operational 
flexibility and efficiency that help avoid short-term adverse economic 
impacts on North east multispecies sector vessels. These exemptions 
provide vessels with flexibility in choosing when to fish, how long to 
fish, what species to target, and how much catch they may land on any 
given trip. This flexibility increases efficiency and reduces costs. A 
delay in implementing this action would forego the flexibility and 
economic efficiency that sector exemptions are intended to provide. 
Additionally, a delay in this action would delay approval of a new 
exemption to increase fishing opportunities for monkfish. For all of 
these reasons outlined above, good cause exists to waive the otherwise 
applicable requirement to delay implementation of this rule for a 
period of 30 days.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.

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

    Dated: April 26, 2018.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2018-09150 Filed 4-30-18; 8:45 am]
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