[Federal Register Volume 83, Number 221 (Thursday, November 15, 2018)]
[Proposed Rules]
[Pages 57395-57398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24975]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 151124999-8985-01]
RIN 0648-BF57


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; Approval of New Gear 
Under Small-Mesh Fisheries Accountability Measures

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

ACTION: Proposed rule; request for comments.

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SUMMARY: We propose to approve new selective trawl gear for use in 
several non-groundfish fisheries when subject to the Georges Bank 
yellowtail flounder accountability measure. The proposed selective gear 
would reduce bycatch of groundfish species, while allowing the target 
fisheries to continue operating when selective trawl gear is required. 
Approving this selective trawl gear would provide the fishing industry 
with more flexibility because there are limited selective trawl gears 
currently approved for use. We also propose to disapprove the use of 
this gear in the southern windowpane accountability measure areas.

DATES: Written comments must be received on or before December 17, 
2018.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2018-0119, 
by either of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal eRulemaking Portal.
    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0119;
    2. Click the ``Comment Now!'' icon and complete the required 
fields; and
    3. Enter or attach your comments.
     Mail: Submit written comments to Michael Pentony, Regional 
Administrator, National Marine Fisheries Service, 55 Great Republic 
Drive, Gloucester, MA 01930. Mark the outside of the envelope, 
``Comments on the Proposed Rule for Selective Gear.''
    Instructions: All comments received that were timely and properly 
submitted are a part of the public record and will generally be posted 
for public viewing on www.regulations.gov without change. All personal 
identifying information (e.g., name, address, etc.), confidential 
business information, or otherwise sensitive information submitted 
voluntarily by the sender will be publicly accessible. We will accept 
anonymous comments (enter ``N/A'' in the required fields if you wish to 
remain anonymous). Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by us.

FOR FURTHER INFORMATION CONTACT: Emily Keiley, Fishery Management 
Specialist, phone: (978) 281-9116; email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The Northeast Multispecies Fishery Management Plan (FMP) requires 
the use of selective trawl gear in certain times and areas. The FMP 
specifies the list of selective trawl gear that meet the required 
selectivity standards. The FMP also authorizes NMFS to approve 
additional selective gear, at the request of the New England Fishery 
Management Council, if the gear meets the regulatory requirements for 
new selective gear. The regulations (Sec.  648.85(b)(6)(iv)(J)(2)(i)) 
require that new selective gear must either: Demonstrate a 
statistically significant reduction in catch of at least 50 percent, by 
weight, on a trip-by-trip basis, of each regulated species stock of 
concern, or, catch of stocks of concern must be less than 5 percent of 
the total catch of regulated groundfish (by weight, on a trip-by-trip 
basis). The Council submitted two requests to add the large-mesh belly 
panel to the list of approved selective gears: (1) For the Georges Bank 
yellowtail accountability measure (AM); and (2) for the southern 
windowpane AM.
    The small-mesh trawl fishery (e.g., whiting and squid) has a sub-
annual catch limit (sub-ACL) and AM for Georges Bank yellowtail 
flounder. If catch exceeds the sub-ACL, the AM requires small-mesh 
trawl vessels to use selective trawl gear that reduces flatfish catch 
in certain areas for the subsequent fishing year.
    Southern windowpane flounder is allocated to three fishery 
components: Groundfish; scallops; and, other non-groundfish fisheries. 
The other (non-groundfish) component is primarily the scup, fluke, 
squid, and whiting fisheries. If the AM for the other (non-groundfish) 
component is triggered, vessels fishing with any trawl gear with a 
codend mesh size greater than, or equal to 5 in (12.7 cm), are required 
to use one of the approved selective trawl gears to reduce flatfish 
bycatch in certain areas in Southern New England in a subsequent year.
    The selective trawl gears approved for use under these AMs are: 
Haddock separator trawl; Ruhle trawl; and rope separator trawl. When we 
adopted the AMs for the non-groundfish fisheries, many industry members 
expressed concern that the selective trawl gears currently approved for 
use were not suitable for their fisheries. To address this concern, 
Cornell University conducted a series of studies to test the 
effectiveness of a new selective gear, the large-mesh belly panel, in 
several non-groundfish fisheries. The experimental gear included a 
large-mesh panel to replace the first bottom belly of the trawl net 
that allows flatfish such as windowpane and yellowtail flounder to 
escape.
    Cornell University conducted two studies in 2014 to investigate 
using a large-mesh belly panel in a small-mesh trawl net typical of 
those used in the squid and whiting fisheries on Georges Bank. Both 
experiments demonstrated a statistically significant reduction in catch 
of more than 50 percent of Georges Bank yellowtail flounder on a trip-
by-trip basis, as required by regulations, without a significant 
reduction in squid and whiting catch. These studies also demonstrated 
that the large-mesh belly panel reduced catch, by more than 50 percent 
per trip, of stocks that are overfished or subject to overfishing.
    Cornell University conducted an additional study in 2015 to 
investigate using a large-mesh belly panel in a trawl net typical of 
those used in the scup fishery in southern New England

[[Page 57396]]

waters. The experiment demonstrated a statistically significant 
reduction in southern windowpane flounder catch of more than 50 
percent, without a significant reduction in catch of legal-sized scup. 
Catch in the large-mesh belly panel gear was compared to catch in the 
standard net, and three regulated stocks of concern were caught in 
significant numbers in the standard net. The percent reduction by trip, 
and the mean percent reduction, for each species is presented in Table 
1; trips that do not meet the 50 percent reduction standard are 
highlighted in gray. Catches, on average, of yellowtail and winter 
flounder were only reduced by 48 percent when the large-mesh belly 
panel was used.
[GRAPHIC] [TIFF OMITTED] TP15NO18.001

Proposed Action

    Based on the results of the studies described above (copies 
available from NMFS at the mailing address listed under ADDRESSES), we 
have preliminarily determined that the large-mesh belly panel meets the 
necessary gear performance standards for use in the Georges Bank 
yellowtail AM area, and we are proposing to approve the use of this 
gear in that area. The large-mesh belly panel would be added to the 
list of three existing selective gears currently authorized for use in 
the Georges Bank yellowtail AM area. We have also preliminarily 
determined that the large-mesh belly panel does not meet the gear 
standard in the southern windowpane AM area, and we are proposing to 
disapprove its use in that area.
    This action would define the large-mesh belly panel in the 
regulations in Sec.  648.80. The proposed gear specifications included 
in this rule are based on the experimental gear used in the Cornell 
studies. The experimental selective gear was a 4-seam 3-bridal otter 
trawl, modified to include a large-mesh panel to replace the first 
bottom belly that allows escapement of flatfish. The large-mesh panel 
was made from 5 mm (\3/16\ in) poly webbing and the mesh size was 
approximately 32 in (81.3 cm) knot-center to knot-center diamond mesh. 
The panel was two meshes deep and was sewn into the standard mesh of 
the first bottom belly using a ``saw-toothing'' technique. This 
resulted in an effective area for fish escapement of three full 32-in 
(81.3-cm) meshes, or an opening in the belly of the net that is 
approximately 8 ft (2.4 m) deep from front to back. The large-mesh 
belly panel was attached approximately 1 ft (30.5 cm) behind the 
footrope and extended widthwise across the entire belly of the net 
(from gore to gore). Because it is important that the large-mesh belly 
panel gear definition balance the conservation requirements and 
adaptability of the gear modifications across multiple fisheries, we 
are requesting specific comments on this gear configuration.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
National Marine Fisheries Service (NMFS) Assistant Administrator has 
made a preliminary determination that this proposed rule is consistent 
with Framework 51, other provisions of the Magnuson-Stevens Act, and 
other applicable law. In making the final determination, we will 
consider the data, views, and comments received during the public 
comment period.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order (E.O.) 12866.
    This proposed rule does not contain policies with Federalism or 
takings implications as those terms are defined in E.O. 13132 and E.O. 
12630, respectively.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The factual determination for this determination is as follows.
    The Council requested that we approve a new selective trawl gear 
(the large-mesh belly panel) for use in several non-groundfish 
fisheries to reduce groundfish bycatch. For some stocks, non-groundfish 
fisheries have an AM that requires the use of selective trawl gear when 
the ACL has been exceeded. Most of the approved selective trawls are 
not designed for use in these fisheries, and the large-mesh belly panel 
would provide these fisheries a better alternative than what is 
currently available. The requirement to use selective trawl gear was 
adopted in 2013. This rule would provide vessels an alternative 
selective gear for meeting that requirement, which would provide 
additional fishing opportunities, increase operational flexibility, and 
improve economic efficiency. This action is necessary to allow the 
fisheries to more effectively harvest its optimum yield, while 
continuing to reduce bycatch of windowpane and yellowtail flounder. 
This action seeks to fulfill the purpose and need while meeting the 
overarching goals and objectives of the Northeast Multispecies FMP.
    For purposes of the Regulatory Flexibility Act, NMFS established a 
small business size standard for businesses, including their 
affiliates, whose primary industry is commercial fishing (see 50 CFR 
200.2). A business

[[Page 57397]]

primarily engaged in commercial fishing (NAICS code 11411) is 
classified as a small business if it is independently owned and 
operated, is not dominant in its field of operation (including its 
affiliates), and has combined annual receipts not in excess of $11 
million for all its affiliated operations worldwide. The determination 
of whether the entity is large or small is based on the average annual 
revenue for the most recent 3 years for which data are available (in 
this case, from 2014 through 2016).
    The small-mesh exempted fishery allows vessels to harvest species 
in designated areas using mesh sizes smaller than the minimum mesh size 
required by Regulated Mesh Area regulations. To participate in the 
small-mesh multispecies exempted fishery, vessels must possess either a 
limited access multispecies permit (categories A, C, D, E, or F) or an 
open access multispecies permit (category K). Limited access 
multispecies permit holders can target small-mesh multispecies with 
different possession limit requirements depending on fishing region and 
mesh size used. Open access, Category K permit holders may fish for 
small-mesh multispecies when participating in an exempted fishing 
program. Therefore, entities holding one or more multispecies permits 
(permit type A, C-F, K) are the entities that have the potential to be 
directly impacted by this action. According to the commercial database, 
there were 853 distinct ownership entities, based on entities' 
participation during the 2014-2016 time-period, that could potentially 
target small-mesh multispecies. This includes entities that could not 
be classified into a business type because they did not earn revenue 
from landing and selling fish in 2014-2016 and thus are considered to 
be small. Of the 853 total firms, 844 are categorized as small business 
entities and 9 are categorized as large businesses. While 853 
commercial entities have the potential to be impacted by the proposed 
action, not all of these entities actively land small-mesh multispecies 
for commercial sale. There are 406 distinct entities that commercially 
sold small-mesh multispecies from 2014-2016 and may be directly 
affected by the proposed action. Of those, 404 are categorized as small 
businesses.
    The measures proposed are expected to have a positive economic 
effect on small entities. It could increase catch of target stocks, in 
a scenario when fishing would otherwise be prohibited. Providing 
increased fishing opportunities should increase landings and profits. 
This action is not expected to have a significant or substantial effect 
on small entities. The effects on the regulated small entities 
identified in this analysis are expected to be positive relative to the 
no action alternative, in which this new selective trawl gear would not 
be added to the list of approved selective gears. Under the proposed 
action, small entities would not be placed at a competitive 
disadvantage relative to large entities, and the regulations would not 
reduce the profit for any small entities. As a result, an initial 
regulatory flexibility analysis is not required and none has been 
prepared.
    This proposed rule contains a collection-of-information requirement 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). This requirement will be submitted to OMB for approval. Public 
reporting burden for the selection of the gear code is estimated to 
average one minute per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to NMFS at 
the ADDRESSES above, and by email to [email protected] or fax 
to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: November 9, 2018.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, 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

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.84, add paragraph (f) to read as follows:


Sec.  648.84   Gear-marking requirements and gear restrictions.

* * * * *
    (f) Large-mesh belly panel trawl. A large-mesh belly panel trawl is 
defined as a four-seam bottom trawl net (i.e., a net with a top and 
bottom panel and two side panels) modified to include a large-mesh 
panel to replace the first bottom belly, as further specified in 
paragraphs (f)(1) and (2) of this section.
    (1) Mesh size. The minimum mesh size applied throughout the body of 
the trawl, as well as the codend mesh size, must be consistent with 
mesh size requirements specified in Sec.  648.80. If a vessel is 
fishing in an exemption area or an exempted fishery, it must comply 
with all of the requirements and conditions of the exemption.
    (2) Large-mesh belly panel. The large-mesh belly panel must have a 
minimum mesh size of 30 in (76.2 cm) measured using the standard 
defined in Sec.  648.80(f)(2). The width of the panel must extend the 
full width of the bottom panel (i.e., from one bottom gore to the other 
bottom gore). The depth must be at least 90 in (228.6 cm) and at least 
3 meshes deep (2 meshes deep with a 15-in (38.1-cm) sewing seam on top 
and bottom). No more than six meshes of the small-mesh net may be left 
behind the sweep, before the large-mesh panel is sewn in.
0
3. In Sec.  648.90, revise paragraph (a)(5)(v), to read as follows:


Sec.  648.90  NE multispecies assessment, framework procedures, and 
specifications, and flexible area action system.

    (a) * * *
    (5) * * *
    (v) AM if the small-mesh fisheries GB yellowtail flounder sub-ACL 
is exceeded. If NMFS determines that the sub-ACL of GB yellowtail 
flounder allocated to the small-mesh fisheries, pursuant to paragraph 
(a)(4)(iii)(G) of this section, is exceeded, NMFS shall implement the 
AM specified in this paragraph consistent with the Administrative 
Procedures Act. The AM requires that small-mesh fisheries vessels, as 
defined in paragraph (a)(4)(iii)(G)(1) of this section, use one of the 
following approved selective trawl gear in the GB yellowtail flounder 
stock area, as defined at Sec.  648.85(b)(6)(v)(H): A haddock separator 
trawl, as specified

[[Page 57398]]

in Sec.  648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in Sec.  
648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in Sec.  
648.84(e); a large-mesh belly panel trawl, as specified in Sec.  
648.84(f); or any other gear approved consistent with the process 
defined in Sec.  648.85(b)(6). If reliable information is available, 
the AM shall be implemented in the fishing year immediately following 
the year in which the overage occurred only if there is sufficient time 
to do so in a manner consistent with the Administrative Procedures Act. 
Otherwise, the AM shall be implemented in the second fishing year after 
the fishing year in which the overage occurred. For example, if NMFS 
determined after the start of Year 2 that the small-mesh fisheries sub-
ACL for GB yellowtail flounder was exceeded in Year 1, the applicable 
AM would be implemented at the start of Year 3. If updated catch 
information becomes available subsequent to the implementation of an AM 
that indicates that an overage of the small-mesh fisheries sub-ACL did 
not occur, NMFS shall rescind the AM, consistent with the 
Administrative Procedure Act.
* * * * *
[FR Doc. 2018-24975 Filed 11-14-18; 8:45 am]
 BILLING CODE 3510-22-P