[Federal Register Volume 87, Number 43 (Friday, March 4, 2022)]
[Proposed Rules]
[Pages 12416-12422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04643]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 220228-0063; RTID 0648-XX078]
Magnuson-Stevens Act Provisions; Fisheries of the Northeastern
United States; Northeast Multispecies Fishery; 2022 Allocation of
Northeast Multispecies Annual Catch Entitlements
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 allocations of annual catch entitlements
to groundfish sectors for the 2022 fishing year and approve changes to
previously approved sector operations plans. This rule also proposes to
disapprove four novel sector exemption requests. The action is
necessary because sectors must receive allocations in order to operate
in fishing year 2022. This action is intended to allow limited access
permit holders to continue to operate or form sectors, as authorized
under the Northeast Multispecies Fishery Management Plan, and to exempt
sectors from certain effort control regulations to improve the
efficiency and economics of sector vessels.
DATES: Comments must be received on or before March 21, 2022.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2022-0026, by either of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov
and enter NOAA-NMFS-2022-0026 in the Search box. Click on the
``Comment'' icon, complete the required fields, and enter or attach
your comments.
Instructions: 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 NMFS. All comments received 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. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
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 and other supporting documents are available
from the NMFS Greater Atlantic Regional Fisheries Office (GARFO):
Contact Kyle Molton at [email protected]. These documents are also
accessible via the Federal eRulemaking Portal: https://www.regulations.gov.
To review Federal Register documents referenced in this rule, you
can visit: https://www.fisheries.noaa.gov/management-plan/northeast-multispecies-management-plan.
FOR FURTHER INFORMATION CONTACT: Kyle Molton, Fishery Management
Specialist, (978) 281-9236.
SUPPLEMENTARY INFORMATION:
Background
The Northeast Multispecies Fishery Management Plan (FMP) defines a
sector as ``a group of persons holding limited access Northeast
multispecies permits who have voluntarily entered into a contract and
agree to certain fishing restrictions for a specified period of time,
and which has been granted a TAC(s) [sic] in order to achieve
objectives consistent with applicable FMP goals and objectives.'' A
sector must be comprised of at least three Northeast multispecies
permits issued to at least three different persons, none of whom have
any common ownership interest in the permits, vessels, or businesses
associated with the permits issued [to] the other two or more persons
in that sector. Sectors are self-selecting, meaning participation is
voluntary, and each sector can choose its members.
The Northeast multispecies sector management system annually
allocates a portion of the Northeast multispecies stocks to each
sector. These annual sector allocations are known as annual catch
entitlements (ACE) and are based on the collective fishing history of a
sector's members. Sectors may receive allocations of large-mesh
Northeast multispecies stocks with the exception of Atlantic halibut,
windowpane flounder, Atlantic wolffish, and ocean pout, which are non-
allocated species managed under separate effort controls. ACEs are
portions of a stock's annual catch limit (ACL) available to commercial
Northeast multispecies vessels. A sector determines how to harvest its
ACE.
Because sectors elect to receive an allocation under a quota-based
system, the FMP grants sector vessels several universal exemptions from
the FMP's effort controls. These universal exemptions apply to: Trip
limits on allocated stocks; portions of the Gulf of Maine (GOM) Cod
Protection Closures; Northeast multispecies days-at-sea (DAS)
restrictions; the requirement to use a 6.5-inch (16.5-cm) mesh codend
when fishing with selective gear on Georges Bank (GB); and the
requirement to use a 6.5-inch (16.5-cm) mesh codend when fishing under
the provisions of the Redfish Exemption Program. The FMP allows the
Council to add universal exemptions using the framework adjustment
procedure. Sectors may request additional exemptions annually as part
of their sector operations plans to increase flexibility and fishing
opportunities. Sectors are prohibited from requesting exemptions from
permitting restrictions, gear restrictions designed to minimize
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habitat impacts, and most reporting requirements.
In addition to the sectors, there are several state-operated permit
banks that each receive an allocation based on the fishing history of
permits they hold. 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 NMFS, as specified in the
permit bank's Memorandum of Agreement between NMFS and the state. These
permits are not assigned to active vessels; instead, the allocations
associated with the permits may be leased to vessels enrolled in
sectors. State-operated permit banks contribute to the total allocation
under the sector system.
We have previously approved 16 sectors to operate in fishing years
2021 and 2022 and also approved 19 requested exemptions for sectors (86
FR 22898; April 30, 2021). Because all approved operations plans cover
two fishing years, approved sectors may continue operations and the
approved exemptions in fishing year 2022. Copies of the operations
plans and contracts, the environmental assessment (EA), and other
supporting documents are available at: https://www.fisheries.noaa.gov/species/northeast-multispecies and from NMFS (see ADDRESSES). This
action proposes 2022 allocations to sectors based on the specifications
proposed by the New England Fishery Management Council in Framework
Adjustment 63 to the FMP. This action also proposes several changes to
already approved sector operations plans and proposes to deny four
requests for novel sector exemptions.
Operations Plan Submissions and Changes
Annually, we solicit operations plan submissions for consideration
for approval; however, sectors already approved to operate in fishing
years 2021 and 2022 were not required to submit operations plans for
2022. We did not receive any new operations plans for approval for
fishing year 2022. As a result, we are not proposing to approve any
additional sectors to operate in fishing year 2022 beyond those
previously approved.
Although no new operations plans were submitted we did receive
several requests to modify existing sector operations plans that we
propose to approve. Sectors may request changes to operations plans as
needed to implement administrative changes to their operations. Several
sectors have requested changes related to electronic monitoring (EM),
including adding audit model EM plans to their existing operations
plans, updates to methods used to estimate discards, and revised
language authorizing the sharing of confidential data to support EM
program operations. Additionally, several sectors requested
modifications that would add NMFS-approved maximized retention
electronic monitoring (MREM) program language to their sector
operations plans. The addition of MREM language would allow for a more
seamless transition to MREM for sectors vessels should it be approved
for operation for all sectors in fishing year 2022. Several sectors
also requested operations plan modifications to add a description of a
gear conflict reduction agreement that sector members have agreed to in
order to limit gear conflicts between sector groundfish and lobster
vessels. We propose to approve these changes to existing sector
operations plans.
Sector Allocations for Fishing Year 2022
This rule proposes 2022 ACE allocations to all sectors based on
their 2021 sector rosters, as sectors have not yet submitted 2022
rosters. The preliminary allocations will be based on the expected 2022
ACL for each stock. Because sectors are operating under 2-year
operations plans for fishing years 2021 and 2022, these allocations
would allow vessels enrolled in sectors to operate under their existing
operations plan, as approved.
For fishing year 2022, we set a deadline for sectors to submit
preliminary sector rosters by February 28, 2022, in order to determine
rosters for final rulemaking and allocations. Sectors may set a more
restrictive enrollment deadline for their members. Any changes in
sector rosters will be reflected in ACE allocations in the final rule;
roster changes may result in significant changes in sector allocations.
Rosters published in the final rule may still not reflect the final ACE
allocation for fishing 2022 because all permits enrolled in a sector,
and the vessels associated with those permits, have until April 30,
2022, to withdraw from a sector and fish in the common pool for fishing
year 2022.
We calculate the 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 preliminary projected total PSC for
each sector by stock for fishing year 2022. Tables 2 and 3 show an
estimate of the preliminary allocations that each sector will be
allocated, in pounds and metric tons, respectively, for fishing year
2022, based on their fishing year 2021 rosters. We provide the final
allocations, to the nearest pound, to each sector based on their final
May 1 rosters. We use these final allocations, along with later
adjustments including ACE transfers, reductions for overages, or
increases for carryover, to monitor sector catch. The common pool sub-
ACLs are also included in each of these tables. The common pool sub-ACL
is managed separately from sectors and does not contribute to available
ACE for leasing or harvest by sector vessels.
We do not assign a permit separate PSCs for the Eastern 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 a 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 (TAC) as its Eastern GB cod. 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.
We expect to finalize 2021 catch information for sectors in summer
2022. We will allow sectors to transfer fishing year 2021 ACE for two
weeks upon our completion of year-end catch accounting to reduce or
eliminate any fishing year 2021 overages. If necessary, we will reduce
any sector's fishing year 2022 allocation to account for a remaining
overage in fishing year 2021. Each year we notify the Council and
sector managers of this deadline and announce this decision on our
website at: https://www.fisheries.noaa.gov/species/northeast-multispecies.
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Exemptions Previously Granted for Fishing Years 2021 and 2022
Previously Granted Exemptions for Fishing Years 2021 and 2022 (1-18)
We have already granted exemptions from the following requirements
for fishing years 2021 and 2022, all of which have been requested and
granted in previous years: (1) 120-day block out of the fishery
required for Day gillnet vessels; (2) 20-day spawning block out of the
fishery required for all vessels; (3) limits on the number of gillnets
for Day gillnet vessels outside the GOM; (4) prohibition on a vessel
hauling another vessel's gillnet gear; (5) limits on the number of
gillnets that may be hauled on GB when fishing under a Northeast
multispecies/monkfish DAS; (6) limits on the number of hooks that may
be fished; (7) DAS Leasing Program length and horsepower restrictions;
(8) prohibition on discarding; (9) gear requirements in the Eastern
U.S./Canada Management Area; (10) prohibition on a vessel hauling
another vessel's hook gear; (11) the requirement to declare an intent
to fish in the Eastern U.S./Canada Special Access Program (SAP) and the
Closed Area (CA) II Yellowtail Flounder/Haddock SAP prior to leaving
the dock; (12) seasonal restrictions for the Eastern U.S./Canada
Haddock SAP; (13) seasonal restrictions for the CA II Yellowtail
Flounder/Haddock SAP; (14) sampling exemption; (15) prohibition on
combining small-mesh exempted fishery and sector trips in southern New
England (SNE); (16) extra-large mesh requirement to target dogfish on
trips excluded from at-sea monitoring (ASM) in SNE and Inshore GB; (17)
requirement that Handgear A vessels carry a Vessel Monitoring System
(VMS) unit when fishing in a single broad stock area; and (18) limits
on the number of gillnets for Day gillnet vessels in the GOM. We also
approved an exemption from the 6.5-inch (16.5-cm) minimum mesh size
requirement for trawl nets to allow a 5.5-inch (14.0-cm) codend on
directed redfish trips, however, that exemption was eliminated in 2021
when we approved a new universal sector exemption for redfish as part
of Framework Adjustment 61 (86 FR 40353; July 28, 2021). A detailed
description of the previously granted exemptions and supporting
rationale can be found in the applicable final rules identified in
Table 4 below.
Table 4--Exemptions Previously Granted for Fishing Years 2020 and 2021
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Exemptions Rulemaking Date of publication Citation
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1-2, 4-9......................... Fishing Year 2011 Sector April 25, 2011......... 76 FR 23076
Operations Final Rule.
10-11............................ Fishing Year 2012 Sector May 2, 2012............ 77 FR 26129
Operations Final Rule.
12-14............................ Fishing Year 2013 Sector May 2, 2013............ 78 FR 25591
Operations Interim
Final Rule.
3, 15............................ Fishing Years 2015-2016 May 1, 2015............ 80 FR 25143
Sector Operations Final
Rule.
16............................... Framework 55 Final Rule. May 2, 2016............ 81 FR 26412
17............................... Amendment 18 Final Rule. April 21, 2017......... 82 FR 18706
18............................... Fishing Year 2018 Sector May 1, 2018............ 83 FR 18965
Operations Final Rule.
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Northeast Multispecies Federal Register documents can be found at http://www.greateratlantic.fisheries.noaa.gov/sustainable/species/multispecies/ sustainable/species/multispecies/.
Exemption Requests We Do Not Propose To Approve in Fishing Year 2022
For fishing year 2022, sectors requested a total of four new
exemptions, two related to extra-large mesh gillnets and EM, and two
related to MREM and existing universal exemptions. We are proposing to
deny the new sector exemption requests for fishing year 2022.
Sector Exemptions Related to Extra-Large Mesh Gillnets and Electronic
Monitoring
We received two sector exemption requests that would grant
exemptions from EM requirements for vessels fishing with gillnets with
a minimum mesh size of 10-inch (25.4-cm) or larger. One would exempt
vessels from the requirement to operate EM systems on trips using 10-
inch (25.4-cm) or larger mesh gillnets in the Inshore Georges Bank and
Southern New England Broad Stock Areas. The other would exempt vessels
from the requirement to operate EM systems on trips using 10-inch
(25.4-cm) or larger mesh gillnets in all broad stock areas.
The exemption applying only to the Inshore Georges Bank and
Southern New England Broad Stock Areas would be similar to the
operation of vessels using ASM to meet their monitoring requirements.
Vessels using exclusively 10-inch (25.4-cm) or larger mesh gillnets in
the Inshore Georges Bank and Southern New England Broad Stock Areas are
not required to carry an ASM. However, neither exemption is consistent
with the sector audit model EM program, which requires the operation of
EM systems on all trips, whether or not they are required to carry an
ASM. This is necessary to eliminate bias and ensure the appropriate
application of EM video review. Exempting vessels from EM requirements
in the manner requested under these exemptions would undermine the
effectiveness of the EM programs. Additionally, in the case of the
exemption request applying to all broad stock areas, there is no
equivalent waiver from ASM coverage at this time. Past data reviews
that supported removing the ASM requirement for extra-large mesh
gillnet trips in the Inshore Georges Bank and Southern New England
Broad Stock Areas found higher catches of groundfish in extra-large
mesh gillnets in other broad stock areas. As a result, we are proposing
to deny both of these exemption requests.
Sector Exemptions Related to Maximized Retention Electronic Monitoring
We received two other novel sector exemption requests that would
grant mesh size exemptions to sector vessels fishing under MREM. One
would authorize the use of 4.5-inch (11.4-cm) mesh codends by MREM
vessels when fishing under the provisions of the Redfish Exemption
Program. The other would authorize the use of 5.1-inch (13.0-cm) mesh
codends by MREM vessels when fishing on Georges Bank with haddock
separator or Ruhle trawl. Both exemptions are based on activities
currently authorized under an exempted fishing permit (EFP) that is
allowing several vessels to test the use of MREM in the groundfish
fishery. Both exemptions would allow MREM vessels fishing under
universal sector exemptions to fish with mesh smaller than that
otherwise allowed by regulation. The Redfish Exemption Program
universal exemption allows trawl vessels to target redfish using a 5.5-
inch (14.0-cm) codend under certain conditions, while the other
universal exemption allows vessels fishing on Georges Bank with a
haddock separator or Ruhle trawl to use a 6.0-inch (15.2-
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cm) codend. The sectors requesting these smaller mesh exemptions hope
to increase the harvest of Acadian redfish and Georges Bank haddock and
suggest that vessels using the exemptions will have minimal bycatch of
non-target stocks while being accountable for all catch.
We do not have sufficient information to support approval of these
sector exemption requests at this time. While several vessels have been
testing the use of the smaller meshes under a MREM EFP, there is still
insufficient catch data for an in-depth analysis of catch composition
comparing catch by mesh authorized under the universal exemptions and
the mesh sizes sectors have requested. Initial findings suggest that
there may not be substantial benefits from using smaller mesh and
indicate the possibility of higher catch of some non-target stocks,
including white hake and ocean pout which are both overfished and in a
rebuilding plan. It will likely be necessary to collect additional
data, potentially under an EFP or other cooperative research, to more
thoroughly evaluate the potential impacts of approving either of these
exemptions.
We are also concerned that both of these exemptions would directly
modify, for a subset of sector vessels, the provisions of universal
sector exemptions developed by the Council. Universal exemptions are
management provisions that are set in regulation. Amendment 16 to the
FMP provided that listed universal exemptions should be modified or
removed under a framework adjustment to the FMP in order to minimize
sector and NMFS' administrative burden. It is unclear if the Council
intended for GARFO to have the authority to modify universal
exemptions, but we maintain that changes to universal exemptions should
be made by the Council. This is consistent with the recently adopted
universal redfish exemption, which has been in place for less than one
year, was developed by the Council with the intent of increasing
Council oversight over the redfish exemption. These exemption requests
seek to change provisions of the universal exemptions outside the
framework adjustment process. As a result of these circumstances we
proposing to deny both of these novel sector exemptions.
Classification
The NMFS Assistant Administrator has preliminarily determined that
this proposed rule is consistent with the Northeast Multispecies FMP,
other provisions of the Magnuson-Stevens Act, and other applicable law,
subject to further consideration after public comment.
This proposed action is exempt from the procedures 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 proposed rule would allocate ACE to sectors for fishing year
2022 (May 1, 2022, through April 30, 2023) and would make minor
modifications to existing sector operations plans. Approved sectors are
exempt from certain effort control regulations, like trip limits and
days-at-sea, and fish under the sector provisions of the Northeast
Multispecies FMP and their sector's harvest rules. This action is
expected to have positive impacts on fishing vessels and purchasers of
seafood products.
For Regulatory Flexibility Act purposes only, 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 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 less than $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 three years for which data are available (from 2018
through 2020).
To participate in the Northeast Multispecies Sector Program,
vessels must possess a limited access multispecies permit and operate
as a member of a sector. Therefore, entities holding one or more
limited access multispecies permits are the entities that have the
potential to be directly impacted by this action. Ownership data
collected from permit holders indicates that there are 579 distinct
business entities that hold at least one permit impacted by the
proposed action. Of these, 577 are categorized as small entities and 2
are categorized as large entities, per NMFS guidelines.
The allocation of fishing year 2022 annual catch entitlement to
groundfish sectors will have a positive impact on all 577 entities, as
it will allow them to participate in the sector groundfish fishery
rather than fish under the common pool effort control regulations,
which include limits of days-at-sea, trip limits, gear restrictions,
size limits, and closures intended to control overall fishing
mortality. In addition, these effort controls would be subject to in-
season modifications and fishery closures based on industry-wide
landings. Conversely, the ability to participate in the sector fishery
would provide increased efficiency and flexibility to fishing
businesses.
This action would provide preliminary ACE to previously approved
groundfish sectors for fishing year 2022.
The proposed rule will not have a significant economic impact on a
substantial number of small entities. As a result, an initial
regulatory flexibility analysis is not required and none has been
prepared.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 28, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2022-04643 Filed 3-3-22; 8:45 am]
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