82 FR 81 pgs. 19618-19630 - Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; 2017 and 2018 Sector Operations Plans and 2017 Allocation of Northeast Multispecies Annual Catch Entitlements
Type: RULEVolume: 82Number: 81Pages: 19618 - 19630Pages: 19618, 19619, 19620, 19621, 19622, 19623, 19624, 19625, 19626, 19627, 19628, 19629, 19630
Docket number: [Docket No. 170104016-7016-01]
FR document: [FR Doc. 2017-08617 Filed 4-27-17; 8:45 am]
Agency: Commerce Department
Sub Agency: National Oceanic and Atmospheric Administration
Official PDF Version: PDF Version
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 170104016-7016-01]
Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; 2017 and 2018 Sector Operations Plans and 2017 Allocation of Northeast Multispecies Annual Catch Entitlements
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Interim final rule.
We have approved sector operations plans for fishing years 2017 and 2018, granting regulatory exemptions for fishing years 2017 and 2018, and providing Northeast multispecies annual catch entitlements to approved sectors for fishing year 2017. Approval of sector operations plans is necessary to allocate annual catch entitlements to the sectors and for the sectors to operate. The Northeast Multispecies Fishery Management Plan allows limited access permit holders to form sectors, and requires sectors to submit their operations plans and contracts to us, NMFS, for approval or disapproval. This interim final rule approves sector operations plans, grants regulatory exemptions for sectors, and provides preliminary allocations of annual catch entitlements to sectors for the start of the 2017 fishing year. Changes to exemptions and updates to sector annual catch entitlements may be considered in subsequent rulemakings.
Sector operations plans and regulatory exemptions are effective May 1, 2017, through April 30, 2019. Northeast multispecies annual catch entitlements for sectors are effective May 1, 2017, through April 30, 2018. The default catch limit for Eastern Georges Bank cod is effective May 1, 2017, through July 31, 2017, or until the final rule for Framework 56 is implemented if prior to July 31, 2017. Written comments must be received on or before May 30, 2017.
You may submit comments on this document, identified by NOAA-NMFS-2017-0016, by either of the following methods:
• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0016, click the "Comment Now!" icon, complete the required fields, and enter or attach your comments.
• Mail: Submit written comments to Kyle Molton, 55 Great Republic Drive, Gloucester, MA 01930.
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 final operations plan and contract are 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:
Kyle Molton, Fishery Management Specialist, (978) 281-9236. To review Federal Register documents referenced in this rule, you can visit: http://www.greateratlantic.fisheries.noaa.gov/sustainable/species/multispecies.
Amendment 13 to the Northeast (NE) Multispecies Fishery Management Plan (FMP) (69 FR 22906; April 27, 2004) established a process for forming sectors within the NE multispecies (groundfish) fishery, and Amendment 16 to the FMP (74 FR 18262; April 9, 2010), followed by Framework Adjustment 45 to the FMP (76 FR 23042; April 25, 2011) and Framework 48 to the FMP (78 FR 26118; May 3, 2013), expanded and revised sector management.
The FMP defines a sector as "[a] group of persons (three or more persons, none of whom have an ownership interest in the other two persons in the sector) holding limited access vessel 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." Sectors are self-selecting, meaning each sector can choose its members.
The NE multispecies sector management system allocates a portion of the NE multispecies stocks to each sector. These annual sector allocations are known as annual catch entitlements (ACEs) and are based on the collective fishing history of a sector's members. Sectors may receive allocations of large-mesh NE multispecies stocks with the exception of Atlantic halibut, windowpane flounder, Atlantic wolffish, and ocean pout, which are non-allocated species. The ACEs are a portion of a stock's annual catch limit (ACL) available to commercial NE multispecies vessels within a sector. A sector determines how to harvest its ACEs and may decide to limit operations to fewer vessels.
[top] 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; the Georges Bank (GB) Seasonal Closure Area; NE 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 GB; portions of the Gulf of Maine (GOM) Cod Protection Closures; and the at-sea monitoring (ASM) coverage level for sector vessels fishing exclusively in the Southern New England (SNE) and Inshore GB Broad Stock Areas (BSA) with extra-large mesh gillnets (10-inch [25.4-cm] or greater). The FMP prohibits sectors from requesting exemptions from permitting restrictions, gear restrictions designed to minimize habitat impacts, and most reporting requirements.
We received operations plans and preliminary contracts for fishing years 2017 and 2018 from 19 sectors. The operations plans are similar to previously approved versions and cover two fishing years. Continuing to approve two-year sector operations plans will help streamline the process for sector managers and reduce administrative burdens for both sectors and NMFS. In addition to the approved sectors, there are several state-operated permit banks, which receive allocation based on the history of the permits owned by the states. The final rule implementing Amendment 17 to the FMP allowed a state-operated permit bank to receive an allocation without needing to comply with the administrative and procedural requirements for sectors (77 FR 16942; March 23, 2012). Instead, permit banks are required to submit a list of participating permits to us, as specified in the permit bank's Memorandum of Agreement, to determine the ACE allocated to the permit bank. These allocations may be leased to fishermen enrolled in sectors. Although state-operated permit banks are no longer approved through the sector approval process, they are included in this discussion of allocations because they contribute to the total allocation under the sector system.
We have determined that the 19 sector operations plans and contracts that we have approved, and 21 of the 26 regulatory exemptions requested, are consistent with the FMP's goals and objectives, and meet sector requirements outlined in the regulations at §?648.87. These 19 operations plans are similar to previously approved plans. Copies of the operations plans and contracts, and the environmental assessment (EA), are available at: http://www.regulations.gov and from NMFS (see ADDRESSES ).
Default Catch Limits for Fishing Year 2017
Last year, Framework 55 (81 FR 26412; May 2, 2016) set fishing year 2017 catch limits for all groundfish stocks. The 2017 catch limits for most stocks remain the same as, or similar, to 2016 limits, with minor adjustments for projected stock growth or revised estimates of Canadian catch. Framework 55 did not, however, specify a 2017 catch limit for Eastern GB cod, which is a management unit of the GB cod stock that is jointly managed with Canada. In addition, the Northeast Fisheries Science Center conducted a new benchmark assessment for witch flounder in December 2016.
This year, in Framework 56, the Council adopted a new 2017 catch limit for witch flounder based on the 2016 benchmark assessment, as well as 2017 catch limits for the three U.S./Canada stocks (Eastern GB cod, Eastern GB haddock, and GB yellowtail flounder). We are working to publish a proposed rule to request comments on the Framework 56 measures. Given the timing of the 2016 witch flounder stock assessment, the development and submission of Framework 56 was delayed, and it will not be possible to implement Framework 56 measures in time for May 1, 2017.
As a result, this rule sets a default catch limit for Eastern GB cod to prevent disruption to the groundfish fishery. The default catch limit for Eastern GB cod is set at 35 percent of the previous year's (2016) catch limit. This rule also announces the 2017 catch limits that will be effective on May 1, 2017, including the sector and common pool allocations based on the preliminary fishing year 2017 sector rosters (Table 1). The default catch limit for Eastern GB cod would be effective from May 1, 2017, through July 31, 2017, or the date on which the final rule for Framework 56 is implemented if prior to July 31. The catch limits for GB cod, GB haddock, GB yellowtail flounder, and witch flounder would be replaced once Framework 56 is implemented.
In Framework 56, the Council recommended a 23-percent decrease for GB yellowtail flounder for fishing year 2017 compared to 2016, and compared to the fishing year 2017 catch limit previously set in Framework 55. The recommended decrease is based on the Transboundary Management Guidance Committee's recommendation, which is the joint U.S./Canada management body that meets annually to recommend shared quotas for the three transboundary stocks. This recommendation will be further discussed in the Framework 56 proposed rule. We are highlighting this proposed decrease to sectors in this rule because the GB yellowtail flounder sector allocation issued in this rule is based on the higher 2017 catch limit previously approved in Framework 55.
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Based on preliminary sector rosters submitted on March 20, 2017, we have projected fishing year 2017 allocations in this final rule. All permits enrolled in a sector, and the vessels associated with those permits, have until April 30, 2017, to withdraw from a sector and fish in the common pool for fishing year 2017. For fishing year 2018, we will set similar roster deadlines, notify permit holders of the fishing year 2018 deadlines, and allow permit holders to change sectors separate from the annual sector operations plans approval process.
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 2 shows the projected total PSC for each sector by stock for fishing year 2017. Tables 3 and 4 show the initial allocations that each sector will be allocated, in pounds and metric tons, respectively, for fishing year 2017, based on their preliminary fishing year 2017 rosters. At the start of the fishing year, we provide the final allocations, to the nearest pound, to the individual sectors, and we use those final allocations to monitor sector catch. The common pool sub-ACLs are also included in each of these tables for comparison.
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 and 6 percent of the GB haddock ACL, the sector is allocated 4 percent of the commercial Eastern U.S./Canada Area GB cod total allowable catch (TAC) and 6 percent of the commercial Eastern U.S./Canada Area GB haddock TAC as its Eastern GB cod and haddock ACEs. 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, but may "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 2016 catch information in summer 2017. We will allow sectors to transfer fishing year 2016 ACE for 2 weeks upon our completion of year-end catch accounting to reduce or eliminate any fishing year 2016 overages. If necessary, we will reduce any sector's fishing year 2017 allocation to account for a remaining overage in fishing year 2016. We will follow the same process for fishing year 2018. Each year of the operations plans, we will notify the Council and sector managers of this deadline in writing and will announce this decision on our Web site at: http://www.greateratlantic.fisheries.noaa.gov/.
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Sector Operations Plans and Contracts
As previously stated, we received and are approving 19 sector operations plans and contracts for fishing years 2017 and 2018. In order to approve a sector's operations plan for fishing years 2017 and 2018, we consider whether a sector has been compliant with reporting requirements from previous years, including the year-end reporting requirements found at §?648.87(b)(1)(vi)(C). Approved operations plans, provided on our Web site as a single document for each sector, not only contain the rules under which each sector would fish, but also provide the legal contract that binds each member to the sector for the length of the sector's operations plan. Each sector's operations plan, and each sector's members, must comply with the regulations governing sectors, found at §?648.87. In addition, each sector must conduct fishing activities as detailed in its approved operations plan.
Participating vessels are required to comply with all pertinent Federal fishing regulations, except as specifically exempted in the letter of authorization (LOA) issued by the Regional Administrator, which details any approved sector exemptions from the regulations. If, during a fishing year, or between fishing years 2017 and 2018, a sector requests an exemption that we have already granted, or proposes a change to administrative provisions, we may amend the sector operations plans. Should any such amendments require modifications to LOAs, we would include these changes in updated LOAs and provide them to the appropriate sectors.
As in previous years, we retain the right to revoke exemptions in-season if: We determine that the exemption jeopardizes management measures, objectives, or rebuilding efforts; the exemption results in unforeseen negative impacts on other managed fish stocks, habitat, or protected resources; the exemption causes enforcement concerns; catch from trips utilizing the exemption cannot adequately be monitored; or a sector is not meeting certain administrative or operational requirements. If it becomes necessary to revoke an exemption, we will do so through a process consistent with the Administrative Procedure Act.
Each sector is required to ensure that it does not exceed its ACE during the fishing year. Sector vessels are required to retain all legal-sized allocated NE multispecies stocks, unless a sector is granted an exemption allowing its member vessels to discard legal-sized unmarketable fish at sea. Catch (defined as landings and dead discards) of all allocated NE multispecies stocks by a sector's vessels count against the sector's allocation. Catch from a sector trip targeting dogfish, monkfish, skate, and lobster (with non-trap gear) would be deducted from the sector's ACE because these are groundfish trips using gear capable of catching groundfish. This includes trips that have declared into the small-mesh exemption described below, because vessels fishing under this sector exemption, ( i.e., vessels fishing with both small mesh and large mesh during the same trip) are considered to be on a sector trip for purposes of monitoring ACE. Catch from a non-sector trip in an exempted fishery does not count against a sector's allocation and is assigned to a separate ACL sub-component to account for any groundfish bycatch that occurs in non-groundfish fisheries.
In fishing years 2010 and 2011, we funded an ASM program with a target ASM coverage level of 30 percent of all trips. In addition, we provided 8-percent observer coverage through the Northeast Fishery Observer Program (NEFOP), which helps to support the Standardized Bycatch Reporting Methodology (SBRM) and stock assessments. This resulted in an overall target coverage level of 38 percent for fishing years 2010 and 2011, between ASM and NEFOP. Beginning in fishing year 2012, we have conducted an annual analysis to determine the total target coverage level. Industry has been required to pay for their costs of ASM coverage since 2012, while we continued to fund NEFOP coverage. However, we were able to fund the industry's portion of ASM costs and NEFOP coverage in fishing years 2012 through most of 2015. Industry began paying for their portion of the ASM program in March 2016. In June 2016, after determining that the SBRM monitoring program could be fully funded, NOAA Fisheries announced that we had remaining funds to offset some of industry's costs of the groundfish ASM program in 2016. We provided a grant to the Atlantic States Marine Fisheries Commission (ASMFC) to reimburse sectors for 85 percent of their costs for at-sea monitoring. We expect that there will be funds remaining in the grant to the ASMFC at the end of the 2016 fishing year that will be available to reimburse sectors for a portion of their ASM costs in fishing year 2017. We have not yet determined the reimbursement rate for 2017. However, it may be lower than 85 percent. Table 5 shows the target coverage level in previous fishing years.
|Fishing year||Total target coverage level (%)||ASM target coverage level (%)||NEFOP target coverage level (%)|
[top] Sectors are responsible for paying the at-sea portion of costs associated with the sector ASM program and for designing, implementing, and funding an ASM program that will provide the level of ASM coverage specified annually. We are required to specify a level of ASM coverage using a process described in Framework 55 that attempts to balance minimizing the cost burden to sectors and NMFS to the extent practicable, while still providing a reliable estimate of overall catch by sectors needed for monitoring ACEs and ACLs. Using this method, NMFS has determined that the total appropriate target coverage level for fishing year 2017 is 16 percent of all eligible sector trips. Federally-funded observer coverage provided by NEFOP to meet SBRM will partially satisfy the 16-percent coverage requirement, so sectors will pay for ASM coverage on less than 16 percent of their groundfish trips. We will use discards derived from these observed and monitored trips to calculate and apply discards to unobserved sector trips. We have published a more detailed summary of the supporting information, explanation and justification for this decision at: http://www.greateratlantic.fisheries.noaa.gov/ro/fso/reports/Sectors/ASM/FY2017_Multispecies_Sector_ASM_Requirements_Summary.pdf.
The draft operations plans submitted in September 2016 included industry-funded ASM plans to be used for fishing year 2017. As in previous years, we gave sectors the option to design their own programs in compliance with regulations, or elect to adopt the NMFS-designed ASM program that we have used in previous fishing years. As in past years, several sectors chose to adopt the NMFS-designed program while others proposed programs of their own design. Sector-designed ASM programs for fishing years 2017 and 2018 were similar to those approved in past years. We reviewed all sector-proposed ASM programs for consistency with ASM requirements and have approved them. ASM programs proposed by the sectors are described in detail later in this final rule.
Each sector contract details the method for initial ACE sub-allocation to sector members. For fishing years 2017 and 2018, each sector has proposed that each sector member could harvest an amount of fish equal to the amount each individual member's permit contributed to the sector, as modified by the sector for reserves or other management measures. Each sector operations plan submitted for fishing years 2017 and 2018 states that the sector would withhold an initial reserve from the sector's ACE sub-allocation to each individual member to prevent the sector from exceeding its ACE. A sector and sector members can be held jointly and severally liable for ACE overages, discarding legal-sized fish, and/or misreporting catch (landings or discards). Each sector contract provides procedures for enforcement of the sector's rules, explains sector monitoring and reporting requirements, provides sector managers with the authority to issue stop fishing orders to sector members who violate provisions of the operations plan and contract, and presents a schedule of penalties that managers may levy for sector plan violations.
Sectors are required to monitor their allocations and catch. To help ensure that a sector does not exceed its ACE, each sector operations plan explains sector monitoring and reporting requirements, including a requirement to submit weekly catch reports to us. If a sector reaches an ACE threshold (specified in the operations plan), the sector must provide us with sector allocation usage reports on a daily basis. Once a sector's allocation for a particular stock is caught, that sector is required to cease all sector fishing operations in that stock area until it acquires more ACE, likely by an ACE transfer between sectors. Within 60 days of when we complete year-end catch accounting, each sector is required to submit an annual report detailing the sector's catch (landings and discards), enforcement actions, and pertinent information necessary to evaluate the biological, economic, and social impacts of each sector.
Future Consideration of 2017 Sector Operations
An ongoing case, United States v. Carlos Rafael, may affect sector operations for the 2017 fishing year. On March 30, 2017, Carlos Rafael pleaded guilty to federal criminal charges involving falsely reporting catch information on dealer reports and vessel trip reports. All of the vessels involved were enrolled in NEFS 9 during the period of misreporting, are currently enrolled in the sector for fishing year 2016, and are on the preliminary sector roster for fishing year 2017. Sentencing for these violations is currently scheduled for June 27, 2017, and may provide additional information that could affect sector operations. Because the case is ongoing, we are approving the NEFS 9 operations plan at this time. However, we intend to take into account additional information regarding NEFS 9 operations as it becomes available and take further action, as necessary, including consideration of further management or monitoring requirements and continued approval of the sector.
Granted Exemptions for Fishing Years 2017 and 2018
Previously Granted Exemptions Granted for Fishing Years 2017 and 2018 (1-20)
[top] We are granting exemptions from the following requirements for fishing years 2017 and 2018, 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) prohibition on a vessel hauling another vessel's gillnet gear; (4) limits on the number of gillnets that may be hauled on GB when fishing under a NE multispecies/monkfish DAS; (5) limits on the number of hooks that may be fished; (6) DAS Leasing Program length and horsepower restrictions; (7) prohibition on discarding; (8) daily catch reporting by sector managers for sector vessels participating in the Closed Area (CA) I Hook Gear Haddock Special Access Program (SAP); (9) prohibition on fishing inside and outside of the CA I Hook Gear Haddock SAP while on the same trip; (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 SAP and the CA II Yellowtail Flounder/Haddock SAP prior to leaving the dock; (12) gear requirements in the Eastern U.S./Canada Management Area; (13) seasonal restrictions for the Eastern U.S./Canada Haddock SAP; (14) seasonal restrictions for the CA II Yellowtail Flounder/Haddock SAP; (15) sampling exemption; (16) prohibition on groundfish trips in the Nantucket Lightship Closed Area; (17) prohibition on combining small-mesh exempted fishery and sector trips in Southern New England; (18) limits on the number of gillnets for day gillnet vessels fishing outside the GOM; (19) 6.5-inch minimum mesh size requirement for trawl nets to allow a 5.5 inch codend on directed redfish trips; and (20) extra-large mesh requirement to target dogfish on trips excluded from ASM in SNE and Inshore GB. A detailed description of the previously granted exemptions and supporting rationale can be found in the applicable final rules identified in Table 6 below.
|Exemptions||Rulemaking||Date of publication||Citation|
|1-8, 12||Fishing Year 2011 Sector Operations Final Rule||April 25, 2011||76 FR 23076.|
|9-11||Fishing Year 2012 Sector Operations Final Rule||May 2, 2012||77 FR 26129.|
|13-15||Fishing Year 2013 Sector Operations Interim Final Rule||May 2, 2013||78 FR 25591.|
|16||Fishing Year 2014 Sector Operations Final Rule||April 28, 2014||79 FR 23278.|
|17-19||Fishing Years 2015-2016 Sector Operations Final Rule||May 1, 2015||80 FR 25143.|
|20||Framework 55 Final Rule||May 2, 2016||81 FR 26412.|
|NE Multispecies Federal Register documents can be found at http://www.greateratlantic.fisheries.noaa.gov/sustainable/species/multispecies/.|
New Exemption Granted for Fishing Years 2017 and 2018
(21) Requirement To Carry a VMS for Handgear A Vessels Fishing in a Single Broad Stock Area
Sectors are prohibited from requesting exemptions from reporting requirements. However, Amendment 18 included a measure that allows a sector to request a VMS exemption for Handgear A vessels, and we are granting this exemption for the 2017 and 2018 fishing years. Because the cost of VMS units is often a significant barrier to sector participation for handgear vessels, this exemption is intended to increase Handgear A vessel participation in sectors. Handgear A vessels using the VMS exemption (enrolled in a sector that has the exemption and fishing in a single broad stock area) must declare the start of trips to NMFS using the interactive voice response (IVR) system. Vessels must also declare their trip end through IVR, similar to a VMS trip end hail.
To ensure that catch and discards are reported to the correct broad stock area, Handgear A vessels may only use the VMS exemption when fishing in a single broad stock area. Handgear vessels intending to fish in multiple broad stock areas (for example, Gulf of Maine and Inshore Georges Bank) must declare their trip through a VMS system and submit daily VMS catch reports when fishing inside and outside of the Gulf of Maine on the same trip. A VMS unit is also required when fishing in the Eastern and Western U.S./Canada Areas, and may be required for some sector exemptions or special access areas, and this exemption does not waive those requirements.
Handgear A vessels using the VMS exemption are still required to call into the pre-trip notification system (PTNS) at least 48 hours prior to the start of a trip to facilitate ASM selection procedures. Additionally, all other reporting and monitoring requirements still apply, including the requirement to complete a vessel trip report (VTR) and declare their trip end before beginning to offload. We expect the requirement to complete a VTR and declare a trip end before offloading to assist with coordinating dockside enforcement and sampling.
As with other exemptions, sectors that have requested the exemption must include it in their operations plan, and have their plan approved, in order for their sector members to use the exemption. We will monitor the use of this exemption and update requirements, as necessary.
Denied Fishing Years 2017 and 2018 Exemption Requests
We are denying five exemption requests. Three of these requests sought to allow the use of nets with mesh smaller than the minimum mesh size to target healthy stocks. We are denying these exemptions because of concerns about bycatch of undersized groundfish, concerns about impacts on stocks in poor condition, like cod, and a lack of available data to support approval. Increasing fishing opportunities to catch healthy stocks is important, but we must ensure that these opportunities do not negatively affect stocks in poor condition. As such, testing these concepts and collecting data necessary to support future exemption requests are needed. These ideas should be pursued through experimental fishing permits and other research to collect data useful in evaluating their effectiveness. We are also denying an exemption request that would allow certain gillnet vessels to leave nets in the water between trips because this could undermine effort controls in the Monkfish FMP due to interactions between that plan and the groundfish FMP. Because of the complicated interplay between this exemption request and multiple FMP's we have forwarded this request to the New England Council for their consideration in future groundfish or monkfish actions, should they choose. We are denying the VMS powerdown exemption because of a lack of compliance with the requirements of the exemptions when it was granted in previous years. In years when this exemption was granted, we worked with sectors to improve use of this exemption; however, compliance did not improve. As a result, we did not approve this exemption for fishing years 2015 and 2016. Requests for this exemption for fishing years 2017 and 2018 did not include any additional requirements or information that would suggest use of this exemption would improve from previous years. For these reasons, we do not have confidence that compliance with this exemption would be adequate, which would undermine our ability to adequately monitor the fishery. For these reasons, we are again denying this exemption.
Exemption We Propose To Modify
Modifications to the Sectors Small-Mesh Fishery Exemption Area
We received a request to modify the area for an approved exemption (17) that allows the use of small-mesh and large mesh trawl gear on a sector trip in portions of Southern New England. As approved in fishing years 2015 and 2016, and in this rule for fishing years 2017 and 2018, the exemption allows vessels to combine sector and small-mesh fishery trips by first targeting groundfish with large mesh and then switching to small-mesh mid-trip to target exempted fishery species. There are additional requirements for gear modifications on the small-mesh portion of the trip to reduce bycatch of groundfish, and all legal groundfish caught on the small-mesh portion of the trip must be kept and counted against the sector's allocation. A vessel using this exemption is still required to meet the same NEFOP and ASM coverage as groundfish trips, and is also required to submit a VMS catch report when switching gears.
[top] The current small-mesh sector exemption area as described in the Final 2015 and 2016 Sector Rule (80 FR 25143, May 1 2015) includes two discrete areas, one that parallels the southern shore of Long Island to the waters just off Narragansett Bay, and a second area south of Martha's Vineyard (see Figure 1). The request was to modify the area to include all of statistical areas 537, 539 and 613, which would expand the geographic footprint of the exemption area, to better reflect fishing practices in the area and increase efficiency and opportunities for sector vessels (see Figure 2). We are proposing to grant the modification to the exemption area, as requested, but the exemption would not be applicable to any areas that overlap groundfish closed areas or southern windowpane flounder accountability measure (AM) areas, regardless of whether the AM areas are triggered. We are excluding the overlapping southern windowpane flounder AM areas because of concerns about interactions with windowpane flounder and other regulated groundfish species within the AM area. As with all sector exemptions, we will continue to monitor the use of the updated exemption, as well as any changes to AM areas by the New England Council, in future consideration of this exemption.
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Modified Exemption Reporting Requirements
Changes to the Reporting Requirements for the Exemption From the Extra-Large Mesh Requirement To Target Dogfish on Trips Excluded From ASM
Last year, Framework 55 removed the ASM coverage requirement for sector trips using gillnets with extra-large mesh (10 inches (25.4 cm) or greater) in the SNE and Inshore GB Broad Stock Areas. We also approved a sector exemption that allows vessels on these ASM-excluded sector trips to target dogfish using 6.5-inch (16.5-cm) mesh gillnet gear within the footprint and season of either the Nantucket Shoals Dogfish Exemption Area (June 1 to October 15), the Eastern Area of the Cape Cod Spiny Dogfish Exemption Area (June 1 to December 31), or the Southern New England Dogfish Gillnet Exemption Area (May 1 to October 31). At the time, we announced that we would closely monitor the exemption during the 2016 fishing year to evaluate whether additional reporting measures are necessary. In order to improve the monitoring of this exemption, and to be consistent with reporting requirements of similar exemptions, we are updating the reporting requirements for this exemption beginning in the 2017 fishing year.
In addition to the PTNS requirement, a vessel is now required to declare its intent to use gillnets with extra-large mesh (10 inches (25.4 cm) or greater) in the SNE/MA and Inshore GB Broad Stock Areas by submitting a trip start hail through its VMS unit prior to departure. This trip start hail will be used for monitoring and enforcement purposes. Trips declaring this exemption must stow their regulated mesh gear and use their extra large mesh (10 inches (25.4 cm) or greater) first. Also starting fishing year 2017, the vessel, once finished with the extra-large mesh portion of the trip, must submit a Multispecies Catch Report via VMS with a good faith estimate of all catch on board, and an indication of the switch to regulated mesh. The vessel could then fish with regulated mesh within the allowable dogfish exemption areas, and comply with the remaining requirements of a sector trip, including the submission of VTRs, a trip end hail, and a final Multispecies Catch Report.
We will continue to closely monitor this exemption to evaluate whether additional reporting measures are necessary. While sector trips using this exemption are exempt from ASM coverage, any legal-sized allocated groundfish stocks caught during these trips must be landed and the associated landed weight (dealer or VTR) will be deducted from the sector's ACE.
Additional Sector Operations Plan Provisions
Inshore GOM Restrictions
Several sectors have proposed an operations plan provision to limit and more accurately document a vessel's behavior when fishing in an area they define as the inshore portion of the GOM BSA, or the area to the west of 70°15' W. long. As in fishing years 2015 and 2016, we are approving this provision, but note that a sector may elect to remove this provision in the final version of its operations plan, and it is not a requirement under NMFS regulations.
Under this provision, a vessel that is carrying an observer or at-sea monitor would remain free to fish in all areas, including the inshore GOM area, without restriction. If a vessel is not carrying an observer or at-sea monitor and fishes any part of its trip in the GOM west of 70°15' W. long., the vessel would be prohibited from fishing outside of the GOM BSA. Also, if a vessel is not carrying an observer or at-sea monitor and fishes any part of its trip outside the GOM BSA, this provision would prohibit a vessel from fishing west of 70°15' W. long. within the GOM BSA. The approved provision includes a requirement that a vessel declare whether it intends to fish in the inshore GOM area through the trip start hail using its VMS unit prior to departure. We provide sector managers with the ability to monitor this provision through the Sector Information Management Module, a Web site where we also provide roster, trip, discard, and observer information to sector managers. A sector vessel may use a federally funded NEFOP observer or at-sea monitor on these trips because we believe it will not create bias in coverage or discard estimates, as fishing behavior is not expected to change as a result of this provision.
Prohibition on a Vessel Hauling Another Vessel's Trap Gear To Target Groundfish
Several sectors have requested a provision to allow a vessel to haul another vessel's fish trap gear, similar to the current exemptions that allow a vessel to haul another vessel's gillnet gear or hook gear. These exemptions have generally been referred to as "community" gear exemptions. Regulations at §?648.84(a) require a vessel to mark all bottom-tending fixed gear, which would include fish trap gear used to target groundfish. To facilitate enforcement of this regulation, we are requiring that any community fish trap gear be tagged by each vessel that plans to haul the gear, similar to how this sector operations plan provision was implemented in fishing years 2014 through 2016. This allows one vessel to deploy the trap gear and another vessel to haul the trap gear, provided both vessels tag the gear prior to deployment. This requirement is included in the sector's operations plan to provide the opportunity for the sector to monitor the use of this provision and ensure that the Office of Law Enforcement (OLE) and the U.S. Coast Guard can enforce the marking requirement.
At-Sea Monitoring Proposals
For fishing years 2017 and 2018, each sector is required to develop and fund an approved ASM program. In the event we cannot approve a proposed ASM program we asked all sectors to include an option to use the current NMFS-designed ASM program as a back-up. Sustainable Harvest Sectors 1, 2, and 3, GB Cod Fixed Gear Sector, Northeast Coastal Communities Sector, and Maine Coast Community Sector have proposed to use the ASM program that was developed by NMFS. We approve this program for these sectors because it is consistent with goals and objectives of monitoring, and with regulatory requirements. Sectors that operate only as permit banks, and explicitly prohibit fishing in their operations plans, are not required to include provisions for an ASM program.
We approve the ASM programs proposed by the remaining 12 sectors, which state that they will: Contract with a NMFS-approved ASM provider; meet the specified coverage level; and utilize the PTNS for random selection of monitored trips and notification to providers. These ASM programs also include additional protocols for ASM coverage waivers, incident reporting, and safety requirements for their sector mangers and members. We have determined that the programs are consistent with the goals and objectives of at-sea monitoring, and within the regulatory requirements.
[top] 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 interim final rule is consistent with the NE Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
The AA finds that prior notice and the opportunity for public comment would be contrary to the public interest, consistent with 5 U.S.C. 553(b)(B). The purpose of this action is to allocate quotas to sectors and to authorize vessels to fish under the sector operations plans during the 2017 fishing year. The sector operations plans must be approved before sector vessels can fish in the sector fishery. In 2015, Framework Adjustment 55 to the NE Multispecies FMP set 2017 annual catch limits for groundfish stocks. However, in January 2017 the New England Fishery Management Council approved Framework Adjustment 56 to the FMP which would change the annual catch limits for 2017 for some stocks (some stocks would increase and others would decrease). To avoid public confusion and a mid-year change in allocations, we initially developed this rule to complement the Framework 56 rulemaking process. Typically, the framework rulemaking and related sector operations rule are completed in time for the start of the fishing year on May 1. However, the Council did not formally submit Framework 56 to us until April 13, 2017, which prohibited us from coordinating the publication of the two actions. Due to the late submission of Framework 56, this rule instead makes allocations based on the quota previously set by Framework 55. This rule could not be revised, as necessary, in time to provide prior notice and comment and still be effective for the start of the 2017 fishing year on May 1, 2017.
Delaying the effective date of this action past the beginning of the fishing year on May 1 would cause a major disruption in sector member fishing plans and impose substantial opportunity costs through lost fishing opportunities. Sectors include 838 permits and 99 percent of fishing activity. Thus, any delay past the beginning of the fishing year would effectively shut down nearly the entire groundfish fishery during that delay. This delay may also require sector members to reconsider their decision and plans to fish in the sector rather than the common pool. Shutting down the fishery and disrupting business plans is contrary to this rule's intended purpose of providing operational flexibility and maximum opportunity for catching up to the fishery's allocated amounts. Further, these allocated amounts are gauged to achieve Optimum Yield and producing the greatest benefit to the nation as required by the Magnuson-Stevens Fishery Conservation and Management Act. A delay in the beginning of the fishery would be contrary to this statutory requirement and FMP goal. The economic loss from this lost opportunity and disruption would further exacerbate the severe economic impacts experienced by the groundfish fishery that have resulted from the substantial catch limit reductions for many key groundfish stocks over the past 5 years. For these reasons, delaying the effective date of this action to provide prior opportunity for public comment is contrary to the public interest. The AA finds that there is adequate justification under 5. U.S.C. 553(d)(1) to waive the 30-day delay in effective date because this rule relieves several restrictions. This action allocates quotas and approves sector operations plans for fishing year 2017. A delay in effectiveness would not be in the public interest because this rule does not impose any new requirements or costs on industry for which industry needs time to prepare to comply. Further, if the effectiveness of this action is delayed beyond the May 1, 2017, start of the fishing year, the 838 permits enrolled to fish in a sector in 2017 would either need to cease fishing on May 1, until this rule became effective, or forego fishing as part of a sector, including the associated regulatory exemptions, for the entirety of the fishing year and instead fish under the effort control regulations of the common pool. For example, vessels fishing in the common pool would be subject to effort controls that do not apply to vessels fishing under an approved sector operations plan. Common pool vessels will have their catch limited each trip, will be further limited in the number of days they could fish, and will be subject to several seasonal closures that sector vessels will be exempted from.
Additionally, there is good cause under 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness so that the purpose of this rule is not undermined. As stated above, the purpose of this action is to allocate quotas to sectors and to authorize vessels to fish under the sector operations plans during the 2017 fishing year. If the effectiveness of this action is delayed beyond the May 1, 2017, start of the fishing year, the 838 permits enrolled to fish in a sector in 2017 would either need to cease fishing on May 1 until this rule became effective, or forego fishing as part of a sector, including the associated regulatory exemptions, for the entirety of the fishing year and instead fish under the effort control regulations of the common pool. Preventing vessels from fishing under the provisions of an approved operations plan either for the whole year, or a portion of the year, would severely disrupt the sector fishery and have direct negative economic effects on the affected vessels.
This interim final rule does not contain policies with Federalism or "takings" implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.
This interim final rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.
16 U.S.C. 1801 et seq.
Dated: April 25, 2017.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
[FR Doc. 2017-08617 Filed 4-27-17; 8:45 am]
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