[Federal Register Volume 79, Number 81 (Monday, April 28, 2014)]
[Rules and Regulations]
[Pages 23278-23296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-09511]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 131115971-4345-02]
RIN 0648-XC995
Magnuson-Stevens Act Provisions; Fisheries of the Northeastern
United States; Northeast Multispecies Fishery; 2014 Sector Operations
Plans and Contracts and Allocation of Northeast Multispecies Annual
Catch Entitlements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We have partially approved 17 sector operations plans and
contracts for fishing year 2014, providing allocations of Northeast
multispecies (groundfish) to these sectors, and granting 20 regulatory
exemptions. Approval of sector operations plans is necessary to
allocate quotas 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. Approved sectors are exempt from certain effort control
regulations and receive allocations of groundfish based on their
members' fishing history.
DATES: Effective May 1, 2014, through April 30, 2015.
ADDRESSES: Copies of each sector's final operations plan and contract,
and the environmental assessment (EA), 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: Brett Alger, Fishery Management
Specialist, phone (978) 675-2153, fax (978) 281-9135. To review Federal
Register documents referenced in this rule, you can visit http://www.nero.noaa.gov/sfd/sfdmultifr.html.
SUPPLEMENTARY INFORMATION:
Background
Amendment 13 to the FMP (69 FR 22906, April 27, 2004) established a
process for forming sectors within the
[[Page 23279]]
groundfish fishery, implemented restrictions applicable to all sectors,
and authorized allocations to a sector of a total allowable catch (TAC)
for specific groundfish species. Amendment 16 to the Northeast (NE)
Multispecies Fishery Management Plan (FMP) (74 FR 18262, April 9, 2010)
expanded sector management, revised the two existing sectors to comply
with the expanded sector rules (summarized below), and authorized 17
new sectors. Framework Adjustment (FW) 45 to the FMP (76 FR 23042,
April 25, 2011) further revised the rules for sectors and authorized 5
new sectors (for a total of 24 sectors). FW 48 to the FMP (78 FR 26118,
May 3, 2013) eliminated dockside monitoring requirements, revised at-
sea monitoring (ASM) requirements, removed the prohibition on
requesting an exemption to allow access in year-round groundfish
closures, and modified minimum fish sizes for several groundfish
stocks.
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 groundfish sector management system allocates a portion of the
Groundfish stocks to each sector. These annual sector allocations are
known as annual catch entitlements (ACE), which are a portion of a
stock's annual catch limit (ACL) available to commercial groundfish
vessels, based on the collective fishing history of a sector's members.
Currently, sectors may receive allocations of most large-mesh
groundfish stocks, with the exception of Atlantic halibut, windowpane
flounder, Atlantic wolffish, and ocean pout. A sector determines how to
harvest its ACEs and may decide to consolidate operations to fewer
vessels.
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; groundfish 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) Rolling Closure Areas; and the
ASM coverage rate for sector vessels fishing on a monkfish DAS in the
Southern New England (SNE) Broad Stock Area (BSA) with extra-large mesh
gillnets. The FMP prohibits sectors from requesting exemptions from
permitting restrictions, gear restrictions designed to minimize habitat
impacts, and reporting requirements.
Of the 24 approved sectors, we received operations plans and
contracts for FY 2014 from 19 sectors. Two sectors that submitted
operations plans (Northeast Fishery Sector (NEFS) XII and GB Cod Hook
Sector), did not meet the membership requirements; therefore, their
proposed operations plan and contract were disapproved. The remaining
five sectors that did not submit operations plans or contracts for FY
2014 were the following: The Tri-State Sector; the State of Maine
Permit Bank Sector; the State of New Hampshire Permit Bank Sector; the
Commonwealth of Massachusetts Permit Bank Sector; and the State of
Rhode Island Permit Bank Sector.
We determined that the remaining 17 sector operations plans and
contracts that we have approved, and 20 of the 28 regulatory exemptions
requested, are consistent with the goals of the FMP and meet sector
requirements outlined in the regulations at Sec. 648.87. These 17
operations plans are similar to previously approved plans, but include
new exemption requests. Copies of the operations plans and contracts,
and the EA, are available at http://www.regulations.gov and from NMFS
(see ADDRESSES). Of the 17 approved operations plans and contracts, the
Northeast Fishery Sector IV and Sustainable Harvest Sector 3 are
approved to operate as lease-only sectors. The Sustainable Harvest
Sector 3 operation plan has not explicitly prohibited fishing activity,
and it may transfer permits to active vessels.
We intend to consider an additional exemption request to access GB
closed areas (Closed Area I and II) later in the year, should results
of any approved experimental fishing permits (EFPs) indicate that such
an exemption is appropriate. The remaining exemption requests were not
approved because they are prohibited; or because they were previously
rejected, continue to be of concern, and no new information has been
provided that justifies their approval.
Sector Allocations
Based on sector enrollment as of March 6, 2014, we use projected FY
2014 allocations in this final rule. All permits enrolled in a sector,
and the vessels associated with those permits, have until April 30,
2014, to withdraw from a sector and fish in the common pool for FY
2014. We will publish final sector ACEs and common pool sub-ACL totals,
based upon final rosters, as soon as possible after the start of FY
2014.
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, as approved in FW 51 to the FMP (79 FR 22421, April 22,
2014). Table 1 shows the projected total PSC for each sector by stock
for FY 2014. Table 2 shows the total percentage of each commercial sub-
ACL each sector will receive for FY 2014, based on their preliminary FY
2014 rosters. Table 3 shows the allocations each sector will be
allocated for FY 2014, also based on their preliminary FY 2014 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. While the common pool does not
receive a specific allocation, the common pool sub-ACLs have been
included in each of these tables for comparison.
The Eastern GB cod and haddock allocations are the portion of the
overall stock that is allowed to be fished in the Eastern U.S./Canada
Area. A sector's Eastern GB cod and haddock allocations are not ACEs.
They are established differently than all other sector allocations
because the Eastern GB cod and haddock allocations are derived from the
negotiated commercial Eastern U.S./Canada Area GB cod TAC and
commercial Eastern U.S./Canada GB haddock TAC.
We do not assign an individual permit separate PSCs for the Eastern
GB cod or haddock allocations. To determine these allocations, we sum
the PSCs that determine a sector's overall allocation of GB cod and GB
haddock. Next, we determine what portion each sector is allocated for
the entire GB cod and haddock stock, to calculate what allocation they
should receive from the Eastern TACs. For example, if based on their
summed PSCs, 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 TAC and 6 percent of the
commercial Eastern U.S./Canada Area GB haddock TAC as its Eastern GB
cod and haddock allocations, respectively. After the Eastern GB cod and
haddock allocations are determined, a sector's Western GB cod and
haddock allocations are determined by
[[Page 23280]]
subtracting the sector's Eastern GB cod and haddock allocations, from
the sector's overall GB cod and haddock ACEs. In Table 1, we display
the summed PSCs for each sector for GB cod and haddock stocks. In
Tables 2 and 3, we display each sector's Eastern and Western GB cod and
haddock allocations.
Effective May 1, 2014, sector vessels will be allowed to
``convert'' their Eastern GB haddock allocation into Western GB
allocation (see a detailed discussion of this in the preamble of the FW
51 final rule (79 FR 22421, April 22, 2014).
As in past years, at the start of FY 2014, we will temporarily
withhold 20 percent of each sector's FY 2014 allocation until we
finalize FY 2013 catch information. Further, we will allow sectors to
transfer FY 2013 ACE during the first 2 weeks of the FY 2014, to reduce
or eliminate any FY 2013 overages. If necessary, we will reduce any
sector's FY 2014 allocation to account for a remaining overage in FY
2013. We will notify the New England Fishery Management Council
(Council) and sector managers of this deadline in writing and will
announce this decision on our Web site at http://www.nero.noaa.gov/.
BILLING CODE 3510-22-P
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[GRAPHIC] [TIFF OMITTED] TR28AP14.154
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[GRAPHIC] [TIFF OMITTED] TR28AP14.155
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BILLING CODE 3510-22-C
Sector Operations Plans and Contracts
We received 19 sector operations plans and contracts by the
September 3, 2013, deadline. Each sector elected to submit a single
document that is both its contract and operations plan. Therefore,
these submitted operations plans not only contain the rules under which
each sector would fish, but also provide the legal contract that binds
each member to the sector. The GB Cod Hook Sector and NEFS XII
submitted operations plans for FY 2014, however, no members elected to
join these sectors, therefore, they do not qualify as sectors for FY
2014, and their operations plan are disapproved. All sectors proposed
operations plans are for FY 2014 only. Each sector's operations plan,
and sector members, must comply with the regulations governing sectors
(Sec. 648.87). In addition, each sector and sector member 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 and
detailed in the letter of authorization (LOA) issued by the Regional
Administrator. If, during a fishing year, a sector requests an
exemption that we have already approved, or proposes a change to
administrative provisions, we may amend the sector operations plans.
Should any amendments require modifications to LOAs, we would include
these changes in updated LOAs and provide the updated LOAs to the
appropriate sector's members.
Each sector is required to ensure that it does not exceed its ACE
during the FY. Sector vessels are required to retain all legal-sized
allocated groundfish 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 discards) of all allocated
groundfish stocks by a sector's vessels count against the sector's
ACEs. Catch from a sector trip (e.g., not fishing under provisions of a
regulatory groundfish exempted fishery or with exempted gear) also
targeting dogfish, monkfish, skate, or lobster (with non-trap gear)
would be deducted from the sector's ACE, because these trips use gear
capable of catching groundfish. This includes trips that have declared
into Exemption 18 (below), since vessels fishing under this sector
exemption, i.e., vessel fishing with both small mesh and large mesh
during the same trip, are considered a sector trip for purposed of
monitoring ACE. Alternatively, catch from a trip in an exempted fishery
(and fishing outside of a sector trip) does not count against a
sector's allocation, and is counted instead against a separate
``other'' sub-component ACL.
For FYs 2010 and 2011, there was no requirement for an industry-
funded ASM program, and NMFS was able to fund an ASM program with a
target ASM coverage rate 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 rate of 38 percent, between ASM
and NEFOP, for FYs 2010 and 2011. For FY 2012, we conducted an analysis
to determine the total coverage that would be necessary to achieve the
same level of precision as attained by the 38-percent total coverage
target used for FY's 2010 and 2011, and ultimately set a target
coverage rate of 25 percent for FY 2012, which was 17 percent ASM, and
8 percent NEFOP. For FY 2013, we conducted the same analysis, and set a
target coverage rate of 22 percent for FY 2013, which was 14 percent
ASM, and 8 percent NEFOP. Since the beginning of FY 2012, industry was
required to pay for ASM coverage, while we continued to fund NEFOP.
However, we were able to fund both ASM and NEFOP in FY 2012 and 2013.
As announced on February 21, 2014, NMFS will cover the ASM costs for
groundfish sectors to meet the requirements under the NE Multispecies
FMP in FY 2014, as well.
Amendment 16 regulations require NMFS to specify a level of ASM
coverage that is sufficient to at least meet the same coefficient of
variation (CV) specified in the SBRM and also to accurately monitor
sector operations. FW 48 clarified that the SBRM CV level should be met
at the overall stock level. The appropriate level of ASM coverage meets
the CV requirement specified in the SBRM and minimizes 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. Based on this standard, NMFS has determined that the
appropriate target coverage rate for FY 2014 is 26 percent. Using both
NEFOP and ASM, we expect to cover 26 percent of all FY 2014 sector
trips. Discards derived from these observed and monitored trips will be
used to calculate discards for unobserved sector trips. We have
published a more detailed summary of the supporting information,
explanation and justification for this decision at: http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/FY2014_Multispecies_Sector_ASM_Requirements_Summary.pdf.
The draft operations plans submitted in September 2013 included
industry-funded ASM plans for FY 2014. However, because NMFS will be
funding and operating ASM for sectors in FY 2014, we have removed these
ASM plans from the final sector operations plans.
Each sector contract details the method for initial ACE sub-
allocation to sector members. For FY 2014, 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. Each
sector operations plan submitted for FY 2014 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
to enforce the sector operations plan, explains sector monitoring and
reporting requirements, presents a schedule of penalties for sector
plan violations, and provides sector managers with the authority to
issue stop fishing orders to sector members who violate provisions of
the operations plan and contract.
Sectors are required to monitor their allocations and catch. To
help ensure 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 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 fishing operations in that stock area until it
acquires more ACE, unless that sector has an approved plan to fish
without ACE for that stock. ACE may be transferred between sectors, but
transfers to or from common pool vessels is prohibited. 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.
[[Page 23285]]
Approved FY 2013 Exemptions
Previously Approved Exemptions Approved for FY 2014 (1-16)
We approved exemptions from the following requirements for FY 2014,
all of which have been previously requested and approved: (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 groundfish/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) powering
vessel monitoring systems (VMS) while at the dock, (10) prohibition on
fishing inside and outside of the CA I Hook Gear Haddock SAP while on
the same trip, (11) prohibition on a vessel hauling another vessel's
hook gear, (12) the requirement to declare intent to fish in the
Eastern U.S./Canada SAP and the CA II Yellowtail Flounder/Haddock SAP
prior to leaving the dock, (13) gear requirements in the Eastern U.S./
Canada Area, (14) seasonal restrictions for the Eastern U.S./Canada
Haddock SAP, (15) seasonal restrictions for the CA II Yellowtail
Flounder/Haddock SAP, and (16) sampling exemption. These exemptions
were used consistent with the purpose for which they were approved and
benefitted sector operations. The rationale for their approval remains
valid. A detailed description of the previously approved exemptions and
rationale for their approval can be found in the applicable final rules
identified in Table 4 below:
Table 4--Exemptions From Previous FYs To Be Approved in FY 2014
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Exemptions Rulemaking Publication date Citation
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1-9, 13............................ FY 2011 Sector Operations April 25, 2011........ 76 FR 23076
Final Rule.
10-12.............................. FY 2012 Sector Operations May 2, 2012........... 77 FR 26129
Final Rule.
14-16.............................. FY 2013 Sector Operations May 2, 2013........... 78 FR 25591
Interim Final Rule.
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NE Multispecies FR documents can be found at http://www.nero.noaa.gov/sfd/sfdmultifr.html.
Please note that on March 17, 2014, NMFS published a proposed rule
(79 FR 14635) that proposes to modify the reporting requirements for
vessels declared to fish in the Eastern U.S./Canada Area. These
proposed requirements, if approved, may affect vessels using Exemption
12 above, which allows a vessel to flex at-sea into portions of the
Eastern U.S./Canada Area, by declaring either the Eastern U.S./Haddock
SAP or the CA II Yellowtail Flounder/Haddock SAP. A final rule for that
action is expected sometime in May 2014.
Exemptions of Concern That Are Approved for FY 2014 (17-20)
17. Limits on the Number of Gillnets Imposed on Day Gillnet Vessels
The FMP limits the number of gillnets a Day gillnet vessel may fish
in the groundfish regulated mesh areas (RMA) to prevent an uncontrolled
increase in the number of nets being fished, thus undermining
applicable DAS effort controls. The limits are specific to the type of
gillnet within each RMA: 100 gillnets (of which no more than 50 can be
roundfish gillnets) in the GOM RMA (Sec. 648.80(a)(3)(iv)); 50
gillnets in the GB RMA (Sec. 648.80(a)(4)(iv)); 75 gillnets in the
Southern New England (SNE) RMA (Sec. 648.80(b)(2)(iv)(B)); and 75
gillnets in the Mid-Atlantic (MA) RMA (Sec. 648.80(c)(2)(v)(B)). An
exemption from these net restrictions was previously approved in FYs
2010, 2011, and 2012, which allowed sector vessels to fish up to 150
nets (any combination of flatfish or roundfish nets) in any RMA to
provide greater operational flexibility to sector vessels in deploying
gillnet gear. Although sectors requested that the 150-net limit be
continued in FY 2013, effort analysis of all sector vessels from
previous fishing years using gillnet gear, indicated an increase in
gear used with no corresponding increase in catch efficiency. Based on
the concern of this exemption potentially having an impact on protected
species and GOM spawning cod, beginning in FY 2013, we restricted its
use to seasons with minimal cod spawning in the GOM, i.e., late spring.
Therefore, a vessel fishing in the GOM RMA was able to use this
exemption seasonally, but was restricted to the 100-net gillnet limit
in blocks 124 and 125 in May, and in blocks 132 and 133 in June. A
vessel fishing in GB RMA, SNE RMA, MA RMA, and the GOM RMA outside of
these times and areas did not have this additional restriction. For FY
2014, we proposed this same exemption, including the GOM seasonal
restrictions that we approved in FY 2013.
We received two comments pertaining to the exemption. One commenter
pointed out that effort controls are no longer a concern in a fishery
that is managed through a hard quota (e.g., ACLs). Although hard quotas
may allow for more flexibility and may reduce the need for some effort
controls, restrictions such as net limits may still be necessary to
mitigate impacts to protected resources, spawning fish, and gear
conflicts. The second commenter supported the exemption as proposed and
recognized the need to restrict nets seasonally in the GOM to address
impacts on cod spawning. Both commenters highlighted the recent efforts
to increase pinger compliance for gillnet gear.
Based on the comments received and the concern for protected
species and spawning cod, we have approved this exemption as proposed
for FY 2014. Gillnet vessels will be restricted to a 150 gillnet limit
in the GB, SNE, MA, and GOM RMAs, with the exception that in blocks 124
and 125 in May, and in blocks 132 and 133 in June, the vessel will be
restricted to a 100-gillnet limit.
18. Prohibition on Combining Small-Mesh Exempted Fishery and Sector
Trips
We received an exemption request in FY 2013 to allow sector vessels
to fish in small-mesh exempted fisheries (e.g., whiting, squid) and in
the large-mesh groundfish fishery on the same trip. A full description
of the request and relevant regulations is in the FY 2013 Sector
proposed rule (78 FR 16220, see page 16230, March 14, 2013). In
summary, we raised several concerns about the exemption, including the
ability to monitor these trips, the impacts that the exemption could
have on juvenile fish, and the enforceability of using multiple mesh
sizes on the same trip (i.e., participating in multiple directed
fisheries on a single trip). We received comments in support of and
against the exemption request. Ultimately, it was disapproved in the
[[Page 23286]]
FY 2013 Sector interim final rule (78 FR 25591, May 2, 2013) for the
concerns stated above.
For FY 2014, we proposed a similar exemption that would allow
vessels to possess and use small-mesh and large-mesh trawl gear on a
single trip within portions of the SNE RMA with modifications intended
to address our concerns. First, we proposed modifications developed by
sectors to address some of the concerns from FY 2013, sectors proposed
restricting vessels using this exemption to fishing with smaller mesh
in two discrete SNE areas that have been shown to have minimal amounts
of regulated species and ocean pout. The map (Figure 1) and coordinates
for these two areas are shown below.
[GRAPHIC] [TIFF OMITTED] TR28AP14.156
Sector Small-Mesh Fishery Exemption Area 1 is bounded by the
following coordinates connected in the order listed by straight lines,
except where otherwise noted:
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Point N. Latitude W. Longitude Note
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A............................ 40[deg]39.2' 73[deg]07.0'
B............................ 40[deg]34.0' 73[deg]07.0'
C............................ 41[deg]03.5' 71[deg]34.0'
D............................ 41[deg]23.0' 71[deg]11.5'
E............................ 41[deg]27.6' 71[deg]11.5' (\1\)
F............................ 41[deg]18.3' 71[deg]51.5'
G............................ 41[deg]04.3' 71[deg]51.5' (\2\)
A............................ 40[deg]39.2' 73[deg]07.0'
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\1\ From POINT E to POINT F along the southernmost coastline of Rhode
Island and crossing all bays and inlets following the COLREGS
Demarcation Lines defined in 33 CFR part 80.
\2\ From POINT G back to POINT A along the southernmost coastline of
Long Island, NY and crossing all bays and inlets following the COLREGS
Demarcation Lines defined in 33 CFR part 80.
Sector Small-Mesh Fishery Exemption Area 2 is bound by the
following coordinates connected in the order listed by straight lines:
------------------------------------------------------------------------
Point N. Latitude W. Longitude
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H.............................. 41[deg]00.0' N. 71[deg]20.0' W.
I.............................. 41[deg]00.0' N. 70[deg]00.0' W.
J.............................. 40[deg]27.0' N. 70[deg]00.0' W.
K.............................. 40[deg]27.0' N. 71[deg]20.0' W.
H.............................. 41[deg]00.0' N. 71[deg]20.0' W.
------------------------------------------------------------------------
Sectors also proposed that one of the following trawl gear
modifications would be required for use when using small mesh in these
two areas: Drop chain sweep with a minimum of 12 inches (30.48 cm) in
length; a large-mesh belly panel with a minimum of 32-inch (81.28-cm)
mesh size; or an excluder grate secured forward of the codend with an
outlet hole forward of the grate with bar spacing of no more than 1.97
inches (5.00 cm) wide. These gear modifications, when fished properly,
have been shown to reduce the catch of legal and sub-legal groundfish
stocks. Requiring these modifications is intended to also reduce the
incentive for a sector vessel to target groundfish when fishing with
small mesh on these trips. Finally, sectors requested subjecting a
vessel using this exemption to the same NEFOP and ASM coverage as a
standard groundfish trip (i.e., a total of 26 percent in FY 2014).
In addition to the sector's requested restrictions, and to better
address some of our monitoring and enforcement concerns, we also
proposed that the vessel: Declare its intent to use the exemption prior
to leaving the dock via a Trip Start Hail through VMS; fish first as a
groundfish sector trip using a regulated groundfish mesh net (large-
mesh net); and, once finished with the large-mesh portion of the trip,
submit a report listing all kept fish on board at that time. Once this
report is sent, the vessel could then deploy its net with mesh size
less than the regulated groundfish mesh net (small-mesh net), with one
of the required trawl gear modifications stated above, in either Sector
Small-Mesh Fishery Exemption Areas 1 or 2 (see map), outside of the
Nantucket Lightship CA, at which point, the large mesh could not be
redeployed. Any legal-sized allocated groundfish stocks caught during
these small-mesh hauls must be landed and the associated landed weight
(dealer or vessel trip report (VTR)) will be deducted from the sector's
ACE.
[[Page 23287]]
We received two comments in support of the approval of the
exemption as proposed. Both commenters are supportive of all catch from
the small-mesh portion of the trip being attributed to the sector's
ACE. One commenter supported a mid-year revocation of the exemption if
it is deemed necessary and feels that the exemption will not be used at
a large enough scale to have impacts on NMFS and its ASM monitoring
resources.
Based on the comments received, we have approved this exemption as
proposed for FY 2014. In this final rule, we want to remind sectors of
the requirements of this exemption, the monitoring and enforcement
concerns that remain, and the potential need to train some at-sea
monitors in order to support the use of this exemption.
Each vessel will be required to declare its intent to fish in this
exemption using a small-mesh net to target non-regulated groundfish
species (e.g., whiting) and/or other small-mesh species (e.g., squid)
for a portion of the trip by submitting a Trip Start Hail through its
VMS unit prior to departing port by checking the box under 4c. ``Other
Exemption (when directed by NMFS)''; this declaration will be used for
monitoring and enforcement purposes. Once a vessel declares into the
exemption, it must adhere to all of the requirements of the exemption,
even if a decision is made during the trip to not deploy small mesh.
Trips declaring this exemption must first fish as sector groundfish
trip with large mesh nets. During the large-mesh portion of the trip,
all small-mesh nets must be stowed in accordance with the regulations.
Once the groundfish trip (with large mesh) is finished, the vessel is
required to submit a Multispecies Catch Report via VMS stating kept
fish (in lb) of all species on board at that time. The Catch Report is
intended to be a hail weight of what is on board the vessel prior to
deploying small mesh and entering the small-mesh areas, to inform those
monitoring and enforcing the exemption. Once the Catch Report is sent,
the vessel can then deploy its small-mesh net as modified by one of the
following trawl gear modifications: Drop chain sweep with a minimum of
12 inches (30.48 cm) in length; a large-mesh belly panel with a minimum
of 32-inch (81.3-cm) mesh size; or an excluder grate secured forward of
the codend with an outlet hole forward of the grate with bar spacing of
no more than 1.97 inches (5.00 cm) wide, in either Small-Mesh Fishery
Exemption Areas 1 or 2 (see map above), outside of the Nantucket
Lightship CA, at which point, the large mesh can not be redeployed.
Although vessels will be allowed to fish with small mesh for non-
groundfish species under this exemption, this trip will be considered a
sector trip for purposes of monitoring groundfish catch. Therefore, any
legal-sized allocated groundfish stocks caught during these small-mesh
hauls must be landed, and the associated landed weight (dealer or
vessel trip report (VTR)) will be deducted from the sector's ACE. Any
allocated groundfish species caught that are sub-legal, must be
discarded, per the requirements of a commercial groundfish trip, and
these too will be deducted from the sector's ACE. For trips that are
observed using this exemption, observed discards will be attributed to
the vessel, similar to standard groundfish trips. We will use observed
trips to estimate discards from unobserverd trips, similar to standard
groundfish trips. Vessels declaring this exemption will have their
trips assessed using a new discard strata (i.e., area fished and gear
type) and will be treated separately from sector trips that do not
declare this exemption. After one year, an analysis will be conducted
to determine whether large-mesh hauls on these trips should continue as
a separate discard stratum.
We will closely monitor all vessels that declare into this
exemption. If under this exemption it is determined that there is a
negative impact on groundfish stocks, non-compliance with the
requirements, negative impacts on the NEFOP's resources and/or ability
to monitor the use of the exemption (i.e., not enough observed trips
using the exemption), the Regional Administrator could rescind approval
of this exemption.
19. Exemption From the 6.5-Inch (16.5-cm) Mesh Size for Directed
Redfish Trips
Minimum mesh size restrictions (Sec. 648.80(a)(3)(i), (a)(4)(i),
(b)(2)(i), and (c)(2)(i)) were implemented under previous groundfish
actions to reduce overall mortality on groundfish stocks, change the
selection pattern of the fishery to target larger fish, improve
survival of sublegal fish, and allow sublegal fish more opportunity to
spawn before entering the fishery. Beginning in FY 2012, sectors were
allowed to use a 6-inch (15.2-cm) mesh codend to target redfish in the
GOM. Subsequently, based on catch information from ongoing redfish
research showing areas with large amounts of redfish, at the end of FY
2012 and into FY 2013 sectors were allowed to use a 4.5-inch (11.4-cm)
mesh codend to target redfish. To date, the exemption has required 100-
percent monitoring with either an ASM or observer onboard every trip,
primarily because of concerns over a greater retention of sub-legal
groundfish, as well as non-allocated species and bycatch, and to ensure
compliance with the intent of the exemption, which is to target
redfish. Additionally, the thresholds were monitored at the sub-trip
level, whereby hauls using mesh 4.5 inches (11.4 cm) up to 6.5 inches
(16.5 cm) were monitored separately from hauls not using the exemption
(i.e., hauls using mesh 6.5 inches (16.5 cm) and greater). While this
provided additional flexibility to switch codends during the trip and,
therefore, allowed vessels to switch between using and not using the
exemption on a given trip, it added an additional layer of monitoring
for these trips. Having monitors on every redfish exemption trip has
allowed NMFS to observe changes in catch rates of target and non-target
species when using different codend mesh sizes, helping to ensure that
we can monitor the use of the exemption (i.e., accurately monitor catch
thresholds), when requested to do so, on a haul-by-haul level.
Table 5--Redfish Exemptions From Previous FYs
----------------------------------------------------------------------------------------------------------------
Exemptions Rulemaking Date Citation
----------------------------------------------------------------------------------------------------------------
6.0 inch with 100% NMFS-funded FY 2012 Sector May 2, 2012................... 77 FR 26129
coverage. Operations Final
Rule.
4.5 inch with 100% NMFS-funded FY 2012 Redfish March 5, 2013................. 78 FR 14226
coverage. Exemption Final Rule.
4.5 inch with 100% Industry-funded FY 2013 Sector May 2, 2013................... 78 FR 25591
coverage. Operations Interim
Final Rule.
----------------------------------------------------------------------------------------------------------------
NE Multispecies FR documents can be found at http://www.nero.noaa.gov/sfd/sfdmultifr.html.
[[Page 23288]]
As of the end of FY 2012, 14 trips had used the exemption allowing
a 4.5-inch (11.4-cm) mesh codend, and all trips were monitored by
either a federally funded NEFOP observer or ASM. While most trips were
effectively able to target redfish and minimize groundfish discards,
not all trips were able to meet the target and bycatch thresholds. The
thresholds were defined as catching no lower than 80 percent redfish of
the total groundfish catch on hauls using the exemption, and having no
more than 5 percent discard of total groundfish, including redfish, for
hauls using the exemption. In preparation for the FY 2013 rule, we
raised numerous concerns about the impacts of implementing additional
monitoring requirements and using federally funded monitoring for the
exemption. We found that allowing trips that are randomly selected for
federally funded NEFOP or ASM coverage provided an incentive to take an
exemption trip when selected for coverage, thereby reducing the number
of observers/monitors available to cover standard sector trips (i.e.,
trips not utilizing this exemption). If fewer observers/monitors deploy
on standard sector trips, then the exemption undermines both the
ability to meet required coverage levels and the reliability of discard
rates calculated for unobserved standard sector trips. Therefore,
beginning in FY 2013, we required sectors using this exemption to pay
for 100 percent of the at-sea cost for a monitor on all redfish
exemption trips. To date, no sector has submitted an ASM proposal to
monitor trips using this exemption in FY 2013 and, therefore, no trips
have used the exemption in FY 2013.
For FY 2014, we proposed an exemption that would allow vessels to
use a 6-inch (15.2-cm) or larger mesh codend nets to target redfish
when fishing in the Redfish Exemption Area (see below). Sectors
requested subjecting a vessel using this exemption to the same NEFOP
and ASM coverage as standard groundfish trips (i.e., a total of 26
percent in FY 2014). We believe that the standard target coverage is
appropriate because based on our review of fishing trips using a 6-inch
(15.2-cm) or large mesh codend, there are fewer concerns regarding the
retention of sub-legal groundfish and non-allocated species. In
addition, we would monitor the exemption for an entire trip, rather
than for part of a trip. That is, regardless of how many 6-inch (15.2-
cm) or 6.5-inch (16.5-cm) mesh codend hauls are made on a given trip,
it would not change the applicability of any restrictions associated
with the exemption (e.g., thresholds). This approach would allow
vessels to retain the flexibility to switch codends during a redfish
trip and allow us to monitor the thresholds at the trip level versus
the haul level. Because a 6-inch (15.2-cm) mesh and a 6.5-inch (16.5-
cm) mesh codend net fall under the same ``large'' mesh category for
both stock assessments and the SBRM, there is less concern for
monitoring the differences in selectivity and bycatch patterns compared
to trips that had previously been allowed the use of a 4.5-inch (11.4-
cm) mesh codend net, which is under a different category for stock
assessments and the SBRM.
We received three comments in support of the approval of the
exemption as proposed. They were all supportive of monitoring
thresholds to ensure that vessels target redfish and are aware that in-
season revocation of the exemption is possible, should it be deemed
necessary. One of commenters stated she recognized the enforcement
concerns about a vessel potentially using multiple mesh sizes in
multiple areas, but appreciated the flexibility given through this
exemption.
Based on the comments received, we approve this exemption as
proposed for FY 2014. Under this exemption, a vessel will be required
to declare its intent to use 6-inch (15.2-cm) mesh codend nets to
target redfish by submitting a Trip Start Hail through its VMS unit
prior to departure by checking the box under 4a. ``Redfish Trip.'' The
hail will be used for monitoring and enforcement purposes. A vessel may
fish using a 6-inch codend (15.2-cm) mesh net, or greater, on a
standard trawl when fishing exclusively in the Redfish Exemption Area
defined below, outside of the Western GOM CA and Cashes Ledge CA. This
area resides within portions of the GOM and GB BSAs. Consistent with
requirements for all commcercial trips, each time the vessel switches
codend mesh size or statistical area, it must fill out a new VTR. For
all trips declaring this exemption, VTRs will be used to identify
whether or not the 6-inch (15.2-cm) mesh codend net was actually used
on the trip. Additionally, for all trips (by sector, by month)
declaring this exemption, we will monitor landings for the entire trip
to determine if 80 percent of the total groundfish catch is redfish.
For observed trips only, we will determine if total groundfish
discards, including redfish, is less than 5 percent of total catch. We
will use observed trips to estimate discards for unobserved trips.
Vessels declaring this exemption will have their trips assessed using a
new discard strata (i.e., area fished and gear type) and will be
treated separately from sector trips that do not declare this
exemption. After one year, an analysis will be conducted to determine
if these trips should continue to be treated as a separate discard
stratum.
Vessels that have declared into this exemption may also fish in the
GB BSA under the universal exemption that allows the use of a 6-inch
(15.2-cm) mesh codend nets in the GB BSA while using selective trawl
gear (e.g., haddock separator trawl, Ruhle trawl). These trips would be
in areas on GB, south of the Redfish Exemption Area. Vessels that
declare the redfish exemption may also use codends with 6.5-inch (16.5-
cm) mesh, or larger, in any open area on the same trip. Allowing
vessels to fish both inside and outside the Redfish Exemption Area on
the same trip provides flexibility to target other allocated stocks
after successfully targeting redfish; however, all catch from each trip
declaring this exemption will be considered in evaluating compliance
with the thresholds.
We will monitor the exemption and determine if there is non-
compliance with the reporting requirements, if a sector is unable to
meet the thresholds, and whether we have sufficient monitoring
coverage. We remind sectors that the RA retains authority to rescind
approval of this exemption, if it is needed, to address these concerns.
[[Page 23289]]
[GRAPHIC] [TIFF OMITTED] TR28AP14.157
The Redfish Exemption Area is bounded on the east by the U.S.-
Canada Maritime Boundary, and bounded on the north, west, and south by
the following coordinates, connected in the order listed by straight
lines:
------------------------------------------------------------------------
Point N. Lat. W. Long. Note
------------------------------------------------------------------------
A............................ 44[deg]27.25' 67[deg]02.75'
B............................ 44[deg]16.25' 67[deg]30.00'
C............................ 44[deg]04.50' 68[deg]00.00'
D............................ 43[deg]52.25' 68[deg]30.00'
E............................ 43[deg]40.25' 69[deg]00.00'
F............................ 43[deg]28.25' 69[deg]30.00'
G............................ 43[deg]16.00' 70[deg]00.00'
H............................ 42[deg]00.00' 70[deg]00.00'
I............................ 42[deg]00.00' (67[deg]00.63') (\1\)
------------------------------------------------------------------------
\1\ The intersection of 42[deg]00' N. latitude and the U.S.-Canada
Maritime Boundary, approximate longitude in parentheses.
20. Prohibition on Groundfish Trips in the Nantucket Lightship CA
In FY 2013, we approved an exemption that allowed sector vessels
access to the eastern and western portions of the Nantucket Lightship
CA (Eastern and Western Exemption Areas) for the duration of FY 2013.
For a detailed description of the exemption request and justifications
for approving it, see the final rule (78 FR 41772, December 16, 2013).
In summary, trawl vessels were restricted to using selective trawl
gear, flounder nets were prohibited, hook vessels were permitted, and
gillnet vessels were restricted to fishing 10-inch (25.4-cm) or larger
diamond mesh. Gillnet vessels were required to use pingers when fishing
in the Western Exemption Area from December 1-May 31 because this area
lies within the existing SNE Management Area of the Harbor Porpoise
Take Reduction Plan. We specified that at-sea monitoring coverage would
come from the combined NEFOP and ASM target coverage level of 22
percent in FY 2013 for the Nantucket Lightship CA after further review
and in response to public comments. Consistent with that requirement,
we proposed that this exemption be continued in FY 2014, with the
standard target sector coverage level of 26 percent for NEFOP and ASM
combined, with one modification.
For FY 2014, to address comments from trawl fishermen that the FY
2013 gear restrictions prevented them from fishing in the Eastern and
Western Exemption Areas as intended, we reviewed our decision and found
that a ``source population'' of SNE/MA yellowtail flounder that we
previously expressed concern about is found primarily in the Eastern
Exemption Area of the Nantucket Lightship CA. The data suggest that
yellowtail flounder are not concentrated nearly as much in the Western
Exemption Area. Based on this, we proposed to allow all legal trawl
gear to be fished in the Western Exemption Area, while still
maintaining the selective trawl gear requirements and prohibition on
flounder nets in the Eastern Exemption Area.
We received one comment in support of the approval of the exemption
as proposed, with an acknowledgment to the gear restriction adjustment
for the Western Exemption Area. We received two comments opposed to
opening any closed areas.
Based on the comments received, we approve this exemption as
proposed for FY 2014. Under this exemption, a vessel is required to
declare its intent to access the Eastern and Western Exemption Areas of
the Nantucket Lightship CA (defined below), by submitting a Trip Start
Hail through its VMS unit prior to departure by checking the box under
4b. ``Closed Area Trip.'' The hail will be used for monitoring and
enforcement purposes. The central portion of the Nantucket Lightship CA
is essential fish habitat (EFH) and is not open to sector vessels.
Trawl vessels fishing in the Eastern Exemption Area will be restricted
to the use of selective trawl gear, including the separator trawl, the
Ruhle trawl, the mini-Ruhle trawl, rope trawl, and any other gear
authorized by the Council and NMFS in a management action. Flounder
nets are prohibited. In the Western Exemption Area, all legal trawl
gear is permitted. In both areas,
[[Page 23290]]
gillnet vessels are restricted to fishing 10-inch (25.4-cm) diamond
mesh or larger. This will allow gillnet vessels to target monkfish and
skates while reducing catch of flatfish. Because the western area lies
within the SNE Management Area of the Harbor Porpoise Take Reduction
Plan, gillnet vessels will be required to use pingers when fishing in
the Western Exemption Area between December 1 and May 31.
Nantucket Lightship Closed Area--Western Exemption Area
The waters in the western portion of the Nantucket Lightship CA,
defined by straight lines connecting the following points in the order
stated here:
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
A.............................. 40[deg]50' 70[deg]20'
B.............................. 40[deg]50' 70[deg]00'
C.............................. 40[deg]20' 70[deg]00'
D.............................. 40[deg]20' 70[deg]20'
A.............................. 40[deg]50' 70[deg]20'
------------------------------------------------------------------------
Nantucket Lightship Closed Area--Eastern Exemption Area
The waters in the eastern portion of the Nantucket Lightship CA,
defined by straight lines connecting the following points in the order
stated here:
------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
A.............................. 40[deg]50' 69[deg]30'
B.............................. 40[deg]50' 69[deg]00'
C.............................. 40[deg]20' 69[deg]00'
D.............................. 40[deg]20' 69[deg]30'
A.............................. 40[deg]50' 69[deg]30'
------------------------------------------------------------------------
We will closely monitor the vessels that have declared into this
exemption. If when fishing under this exemption it is determined that
there is a negative impact on groundfish stocks, non-compliance with
the requirements, or adverse impacts on the NEFOP's resources and/or
ability to monitor the use of the exemption (i.e., not enough observed
trips using the exemption), the RA may use the authority to rescind
approval of this exemption.
Exemption To Be Considered in a Later Rulemaking (21)
21. Prohibition on Groundfish Trips in Closed Areas I and II
In FY 2013, we disapproved an exemption that would have allowed
sector vessels restricted access to portions of CAs I and II, provided
each trip carried an industry-funded ASM. For a detailed description of
the exemption request and justifications for disapproval, see the final
rule (78 FR 41772, December 16, 2013). When we proposed allowing sector
access to these areas, we announced that we did not have funding to pay
for monitoring the additional trips for exemptions requiring a 100-
percent coverage level. Industry members indicated that it was too
expensive to participate in the exemption given the requirement to pay
for a monitor on every trip. This, in combination with extensive
comment opposing access to these areas to protect depleted stocks and
our concern about the impacts on depleted stocks such as GB cod and GB
yellowtail flounder, resulted in disapproval.
For FY 2014, we announced in the proposed rule that we remain
unable to fund monitoring costs for exemptions requiring a 100-percent
coverage level. We also have concerns about funding and administering
the shore-side portion of an at-sea monitoring program for an exemption
that requires additional ASM, such as the exemption to access CAs I and
II. However, we also announced in the proposed rule that we are
interested in conducting research through an EFP(s) to gather catch
data from portions of these areas. Allowing a small number of trips
into these areas through EFPs could provide information to help the
fishing industry determine whether trips into the area with an
industry-funded monitor could be profitable. These ``test'' trips would
provide recent and reliable catch information from CAs I and II,
including catch rates of both abundant and depleted stocks. This
information could help industry determine whether the cost of an ASM
could be offset by increased landings of a stock with relatively high
abundance (e.g., GB haddock), while avoiding stocks that are limiting
to them. Although there have been studies in the past that examine
catch rates of selective trawl gear, these studies have not been
conducted inside the CAs being proposed for access. Results from any
EFPs conducted in these areas could better inform the industry, the
public, and NMFS, regarding the economic efficacy of accessing these
CAs, while providing information specific to bycatch of depleted
stocks.
The Greater Atlantic Regional Fisheries Office and the Northeast
Fisheries Science Center (NEFSC) are currently working on an idea for a
short-term EFP that would allow a small number of groundfish trips into
CAs I and II. We have also received an industry-led EFP request to
access portions of CAs I and II. In addition to these EFPs, we welcome
additional EFP requests that may help to address some of the following
questions: (1) Could enough fish be caught to adequately offset the
industry's additional expense of having an ASM on board, and (2) could
catch of groundfish stocks of concern be addressed? Given these areas
have been closed for approximately 20 years, it would also be important
to obtain information about any beneficial effects from these closures,
particularly as it applies to groundfish, since the Council is
considering opening portions of CAs I and II through the Omnibus
Habitat Amendment in the near future.
The two EFPs that are currently under consideration would allow
access into the same portions CAs I and II that were originally
proposed for access to sectors. Vessels would be required to use
specialized trawl gear to reduce impacts on flounder species and would
be restricted seasonally to avoid spawning fish, as well as to adhere
to an agreement between the lobster and groundfish fishery in CA II to
avoid gear conflicts. At this time, we cannot determine if results from
these EFPs would be timely enough to inform any exemptions requests to
fish in CAs I and II in FY 2014, or to be considered in future fishing
years. Contingent on the results of any EFPs that we have available
during FY 2014, assuming that we could fund and administer the shore-
side portion of a monitoring program, and there is sufficient at-sea
monitors available for deployment on CA trips, we have proposed to
allow sectors restricted access to CAs I and II in FY 2014 (79 FR
14639, March 17, 2014). If we were to approve access, we would codify
the lobster and groundfish agreement in the regulations in addition to
including language in each sector's letter of authorization (LOA) to
enforce the agreement.
Disapproved FY 2014 Exemption Requests
In addition to the 20 exemptions approved in this final rule, and
the potential approval of an additional exemption allowing access to
portions of CAs I and II later in FY 2014, there were several other
sector FY 2014 exemption requests that we did not propose for approval
because they are either prohibited; or were previously rejected,
continue to be of concern, and no new information has been submitted
that justifies their approval. Based on this, we do not consider them
in this final rule.
Additional Sector Provisions
A sector may also include additional provisions in its operations
plan, including additional requirements for or restrictions of fishing
practices. A detailed description of these provisions is included
below:
[[Page 23291]]
Inshore GOM Restrictions
Several sectors (with the exception of NEFS 4) proposed a provision
to limit and more accurately document a vessel's behavior when fishing
in a part of the GOM BSA in what they consider to be the inshore
portion of the GOM BSA, or the area to the west of 70[deg]15'W. long.
We approve this provision, but note that a sector may elect to remove
this provision in the final version of its operations plan.
Under this provision, a trip that is carrying an observer or at-sea
monitor remains 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[deg]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 prohibits the vessel from fishing west of 70[deg]15'W. long.
within the GOM BSA. The approved provision includes a requirement for a
vessel to declare whether or not it intends to fish in the inshore GOM
area through the Trip start Hail using its VMS unit prior to departure
by checking the box under 5b. ``Inshore Gulf of Maine''. This hail
report will help the sector manager identify a trip fishing under this
provision for monitoring purposes. We are providing sector managers
with the ability to monitor this provision through the Sector
Information Management Module (SIMM), a Web site where we currently
provide roster, trip, discard, and observer/ASM information to sector
managers. A sector vessel may use a federally funded NEFOP observer or
at-sea monitor on these trips because we do not believe it will 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
The Northeast Coastal Communities Sector (NCCS) requested an
exemption to allow a vessel to haul another vessel's fish trap gear,
similar to the current exemptions that allow a vessel to haul another
vessels gillnet gear, or hook gear. These exemptions have generally
been referred to as ``community'' gear exemptions. Unlike hook and
gillnet gear, the NE multispecies FMP does not prohibit a vessel from
hauling another vessel's trap gear, therefore, we cannot grant an
exemption. Because of this, it is more appropriate to consider
community fish trap gear as a ``provision'' of the sector operations
plan, rather than a requested exemption.
Regulations at Sec. 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 that regulation, we are
requiring that any community fish trap gear be tagged by each vessel
that plans on hauling the gear. 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 will be
captured in the sector's operations plan to provide the opportunity for
the sector to monitor the use of this provision and ensure that the OLE
and the U.S. Coast Guard can enforce the provision.
At-Sea Monitoring Proposals
Prior to the publication of the proposed rule, we announced that we
would pay for ASM on sector trips during FY 2014, in addition to trips
assigned a NEFOP observer. Therefore, the sector's ASM proposals for FY
2014 are no longer applicable, and were removed from the sector's final
operations plans.
Comments and Responses
A total of eight comments were received from: Associated Fisheries
of Maine (AFM), the Conservation Law Foundation (CLF), the Atlantic
Offshore Lobstermen's Association (AOLA), the New England Fishery
Management Council (Council), Northeast Fishery Sector V (NEFS V), the
Northeast Sector Service Network (NESSN), Oceana, and the Pew
Charitable Trusts (Pew). Only comments that were applicable to the
proposed measures, including the analyses used to support these
measures, are responded to below.
Re-Authorization of Sector Exemptions Previously Granted (1-16)
Comment 1: The NESSN and AFM supported approving the exemptions as
proposed.
Response: We have approved all 16 exemptions as proposed.
Exemption from the Number of Gillnets in the Gulf of Maine (17)
Comment 2: AFM supports approving this exemption, noting that
gillnet limits were an effort control measure under an old management
regime. NESSN also supports the approval of the exemption and believes
that the seasonal component with restricted nets in May and June in the
inshore GOM RMA addresses concerns regarding cod spawning
Response: We have approved the exemption as proposed.
Prohibition on Combining Small-Mesh Exempted Fishery and Sector Trips
(18)
Comment 3: NESSN and NEFS V both strongly supported this exemption
and all of the proposed requirements to adequately monitor and enforce
the exemption, noting the collaborative work between industry and NMFS
in developing these requirements to mitigate the agency's previous
concerns. NEFS V also commented in support of a mid-year revocation of
the exemption if it is necessary. NEFS V does not understand the
concerns of having inadequately trained NEFOP observers and at-sea
monitors for this exemption, but appreciates concerns on maintaining a
target coverage of 26 percent for all sectors trips, while still
covering this exemption. They also believe that the exemption would not
be utilized on a large enough scale and, therefore, should not have too
much impact.
Response: We agree that the suite of additional requirements
proposed for this exemption mitigates the monitoring and enforcement
concerns to a large degree and have therefore approved the exemption,
as proposed. Regarding at-sea monitors, training of these monitors
requires more than teaching them to identify small-mesh species. Some
small-mesh fisheries generally catch large volumes of fish, so there
are specific protocols and training that all NEFOP observers receive to
observe small-mesh fisheries such as squid and whiting, but not all
ASMs receive this training. ASM training is focused on the groundfish
fishery. NEFOP is in the process of training some ASMs to accommodate
this exemption for the small-mesh hauls.
Comment 4: AFM asked for an explanation of why the SNE small-mesh
exemption was proposed at a monitoring coverage level of 26 percent,
while past redfish exemptions were proposed at 100 percent.
Response: Our experience with these exemptions, new information,
and development of measures to address our bycatch and enforcement
concerns, have provided an opportunity for us to approve these measures
requiring the lower, standard monitoring coverage levels. Both
exemptions allow the use of nets with mesh smaller than the regulated
groundfish mesh size. The use of smaller mesh nets raised concerns with
potential bycatch of several groundfish species. We also are concerned
with our ability to enforce requirements to fish with appropriate mesh
sizes. To address these concerns, we originally proposed both of these
exemptions requiring 100 percent at-sea monitoring.
[[Page 23292]]
Our experience with the redfish exemption and information we
gathered under that exemption and the development of other
precautionary measures addressing our concerns have allowed us to
propose at-sea monitoring at the lower standard coverage levels. For
example, for the redfish exemption, threshold catch levels have helped
control bycatch. To further address our bycatch concerns and minimize
our enforcement concerns, we limited the reduction in mesh size to the
larger 6-inch (15.2-cm) mesh size, limited the area in which fishing
with the smaller mesh may occur, and we required additional reporting
requirements.
We have approved similar measures for the SNE small-mesh exemption
to address the same concerns as in the redfish exemption. This year,
the SNE small-mesh exemption requires gear modifications, limited
fishing areas to help avoid certain groundfish species, and required
additional reporting requirements similar as those in the redfish
exemption. Because these measures have reduced our concerns like the
precautionary measures adopted in the redfish exemption, we approved
both exemptions with the standard at-sea monitoring coverage level.
Exemption from the 6.5-inch (16.5-cm) Mesh Size for Directed Redfish
Trips (19)
Comment 5: The NESSN, AFM, and Council commented in support of this
exemption. NESSN recognizes the law enforcement concerns with allowing
flexibility of multiple mesh sizes in multiple areas, and pointed out
that this is currently allowed in other circumstances. They commented
on their appreciation of the collaborative work between sectors and
NMFS to address concerns that we have noted in the past on this
exemption, and they welcome further collaboration on ensuring
compliance with the catch thresholds or other potential issues with
vessels using the exemption.
Response: We have approved this exemption as proposed and we are
appreciative of the collaborative work with the sectors in bringing
about a workable solution. We intend to communicate with the NOAA
Office of Law Enforcement closely to address any enforcement concerns
that may arise from this exemption throughout the year. We will also be
monitoring the compliance thresholds closely and will notify sectors as
needed.
Prohibition on Groundfish Trips in Nantucket Lightship CA (20)
Comment 6: NESSN supported this exemption as proposed, noting the
allowance of trawl gear in the Western Exemption Area was ``a step in
the right direction.'' Both CLF and PEW commented in opposition to
closed area access in all groundfish closed areas, including the
Nantucket Lightship CA.
Response: The Nantucket Lightship CA was approved in 1994 as a
year-round closed area to reduce mortality on SNE/MA yellowtail
flounder, a stock that has been declared rebuilt. Other groundfish
stocks in poor shape, such as GB cod, are generally not found in the
area. In FY 2013, we approved an exemption (78 FR 41772, December 16,
2013) that allowed sector vessels access to the Eastern and Western
Exemption Areas within the Nantucket Lightship CA for the duration of
FY 2013. Vessels fishing in these areas were not expected to be
targeting cod, haddock, or yellowtail flounder. Nonetheless, we
included selective trawl gear requirements, prohibited flounder nets,
and restricted gillnet vessels to fishing 10-inch (25.4-cm) diamond
mesh or larger, due to concerns that a source population for SNE/MA
yellowtail founder exists in both areas. To date, there have only been
a few vessels that used the exemption that was approved during FY 2013,
all of which have used gillnets.
To address a concern that was raised by trawl fishermen, that the
FY 2013 gear restrictions prevented them from fishing in this area as
intended, we reviewed our decision and found that a ``source
population'' of SNE/MA yellowtail flounder that we previously expressed
concern about is found primarily in the Eastern Exemption Area of the
Nantucket Lightship CA, and to a much lesser degree in the Western
Exemption Area. Based on this, we are approving a modification to the
Eastern Exemption Area to allow trawl gear access by sector vessels.
Because of the selective gear requirements, and the belief that
there would be little harm caused to groundfish stocks of concern, we
have approved this exemption under the standard monitoring coverage
rate of 26 percent. This exemption is intended to provide sector
vessels with access to these two areas within the Nantucket Lightship
CA for the purpose of targeting monkfish, skate, and dogfish to provide
additional flexibility to the groundfish fleet during this time period
when they have little groundfish quota to fish.
We analyzed the potential impacts of allowing access to these areas
in the Environmental Assessment for this action. Our analysis was
thorough and sufficiently considers the potential impacts of these
exemptions. The exemptions were carefully developed and include many
measures that minimize the potential adverse impacts from access to
these areas. Further, these closed area exemptions considered in this
rule do not open any of the year-round essential fish habitat closed
areas that are proposed to be closed in the Omnibus Habitat Amendment
2. As a result of our consideration, we made a Finding of No
Significant Impact. This finding supports our approval of these
exemptions.
Comments on Additional Issues and Closed Areas I and II Exemptions 100-
Percent Industry-Funded Monitoring Requirement for Closed Area I and II
Comment 7: The Council opposed 100 percent monitoring coverage for
any of the sector exemptions, stating that they did not choose to
require 100-percent monitoring coverage as a condition of allowing
sectors to request access to year-round closed areas. They believed
that there is little justification provided for the 100-percent
coverage level requirement and claimed that analysis concludes that 26
percent coverage provides sufficient precision and accuracy. They urged
the agency to justify any coverage level above 26 percent.
Response: Closed areas have served to protect spawning fish and
provide a refuge for troubled fish stocks. CAs I and II have
specifically helped to protect GB cod, a stock in very poor shape. CA
II also helps to protect GB yellowtail flounder, another stock that is
seriously depleted. These areas have been largely closed to groundfish
fishing for almost 20 years. As we have stated several times, both in
recent rules and publically, we believe that it is extremely important
to get accurate information from these areas for many reasons. For
example, we believe that it is important to determine quickly if
discards will be different relative to areas outside of the closures.
Requiring 100-percent coverage allows us to better monitor discards
from each trip and will allow us to respond as quickly as possible if
discards are high. It will also allow us to respond quickly if there
are increased catches of spawning fish, or if there are protected
resource interactions.
While the Council did not require 100-percent coverage as a pre-
requisite to allow sectors to request access to closed areas, it is
within the Regional Administrator's discretion to approve and implement
exemptions, with requirements as needed. Our proposal for 100-percent
coverage in CAs I and II attempts to balance the biological and
[[Page 23293]]
habitat concerns noted in the paragraph above with potential industry
benefits and costs. Although NMFS has been able to pay for recent
NEFOP/ASM coverage, we are unable to pay for the additional coverage we
believe is necessary. We believe it is necessary to gather further
catch information collected from inside these closed areas, in
particular on stocks that are of concern (e.g., GB cod and GB
yellowtail flounder) to determine whether access to CAs I and II should
be approved in a separate rulemaking later in FY 2014. Before we
consider approval of access to these areas, we intend to evaluate
results from any approved EFP's in part to determine if we can justify
access with less than 100 percent monitoring coverage. This additional
information will allow us to consider potential impacts to stocks of
concern along with weighing the benefits to the fishing industry from
the catch in these areas against the costs of necessary at-sea
monitoring.
We want to remind the Council that exemptions are voluntary, not a
regulation, and that they provide additional flexibility beyond what
has traditionally been allowed under the FMP. We are hopeful that
potential EFP(s) could examine the potential costs/benefits of
accessing closed areas while paying for an ASM, which could remove some
uncertainty for industry and the public, rather than continue to
speculate if it is appropriate to require industry funding. An EFP will
also help inform the resource impacts and environmental risks with
allowing closed area access.
Use of the Term ``Standard Sector Trip''
Comment 8: NESSN feels that the term ``standard sector trip''
should not be used because fishing activity has always been diverse,
both before and after sectors were implemented. They noted that using
traditional fishing as a measure of how an exemption should be treated,
does not take into account the increased flexibility given to sectors.
Response: A sector trip is defined in the regulations as ``. . .
any trip taken by a sector vessel. . . .'' When we make ASM coverage
level determinations for new exemption proposals, we need to
differentiate between sector trips that include well documented fishing
activity and sector trips under new exemption proposals that include
fishing activity for which we need more information. For proposed
exemptions in FY 2014 and in previous sector rulemakings, we identify
sector trip activities that are similar to previous years' sector trip
activities on which our ASM analysis is based. These are called
``standard sector trips.'' We refer to ``standard sector trips'' as a
way to distinguish these fishing activities from activities under new
proposed exemption sector trips that may have significantly different
fishing behavior, until we are able to collect more information to make
a better determination for coverage. The FY 2014 exemption allowing a
sector vessel to use both small-mesh and large-mesh on the same trip is
a good example because we do not have information of how fishing
activities under this new exemption will compare to the way sector
vessels generally fish. Until we can examine sector trips using this
exemption compared to other sector trips not using this exemption, we
must consider them to be unique and differentiate them.
Exempted Fishing Permit To Access Closed Areas
Comment 9: AOLA supported an EFP research proposal in Closed Area
II; however, they requested that any such approved EFP include criteria
to minimize impacts on lobster gear. They also suggested involving AOLA
with helping to determine the details of any proposed EFP, and
requested that, once approved, researchers communicate with them during
the study to avoid any groundfish/lobster gear conflicts. CLF and PEW
both noted that they are generally supportive of an EFP approach to
research but questioned the agency's rationale for the research. PEW
specifically raised concerns about the research questions posed in the
proposed rule and stated that these questions needed to be broadened
beyond economic questions to address a range of concerns, including
biological questions about the fish stocks in the closed areas. PEW
stated that, despite having 100-percent monitoring on all EFP trips,
damage to fish and habitat could still occur rapidly and the agency
could not act fast enough to prevent this harm. CLF commented that the
use of an EFP approach to support potential access to the closed areas
confuses the ``EFH gear impact utilization approach.''
Response: Any proposed EFP(s) that we consider would first be
announced in a Federal Register notice and the public would be provided
a 15-day public comment period to comment. The notice would include the
details of the EFP proposal, including the proposed gears, areas, and
times under consideration. We expect that any approved EFPs would have
limitations on the number of vessels allowed, would be required to use
selective trawl gear, and would need to comply with the lobster/trawl
agreement inn Closed Area II, among other possible restrictions. In
regard to AOLA's request to participate in the development of an EFP,
for a NMFS-led EFP, we would contact AOLA directly to address their
concerns. For all other EFP applicants, we will request that the
applicant work with the lobster industry to address their concerns and
will provide the applicant contact information to AOLA. It would remain
up to each of these EFP applicant to reach out to AOLA directly in
planning research and to communicate issues.
We share PEW and CLFs concern about potential impacts to depleted
fish stocks in the mortality portions of the closed areas that are
being considered for access, but believe that the questions that the
agency is proposing for an agency-led EFP could provide information for
both science and management purposes. In addition, we believe that
information derived from the closed areas could be used to inform
future access to these areas through the Habitat Omnibus Amendment.
Specific EFP and potential sector vessel access through any future
rulemaking would require that vessels adhere to specific criteria such
as selective gear, at-sea monitors, detailed reporting requirements,
sector ACEs, and Regional Administrator authority to stop fishing,
should there be concern for the health of the groundfish resource. We
believe that vessel activity allowed via an EFP or through follow-up
rulemaking in FY 2014 would be relatively small and that we could
adequately monitor this activity to ensure that harm is prevented to
these resources. We do not need to do a separate rulemaking to rescind
an EFP.
Lobster Agreement If Access Is Granted to Closed Areas I and II
Comment 10: AOLA commented on the importance of codifying the ocean
bottom-sharing agreement with the groundfish industry to mitigate gear
conflicts and impacts to lobsters during June 15 through October 31 in
Closed Area II. They also supported the requirement for 100 percent at-
sea monitor coverage to help determine bycatch of lobsters, and
documentation by NMFS of any gear conflict that occurs. They are also
requesting that, if access is granted to Closed Area II, the lobster
industry would get a 30-day warning to remove their gear.
Response: The lobster agreement was originally proposed in the FY
2013 sector rule but was not implemented because access to CA II was
never granted in FY 2013, rendering the agreement moot for FY 2013. For
FY 2014, we have proposed access to CA II again, contingent upon the
results of
[[Page 23294]]
any EFPs conducted during the fishing year. If NMFS were to approve
access during FY 2014, we would publish a proposed rule soliciting
public comment on the lobster/groundfish agreement and, if approved,
codify this agreement in a final rule. Should access to the GB closed
areas be approved later in the fishing year, we intend to provide the
lobster industry with adequate time to remove their lobster gear.
Setting Target Observer Coverage Rate
Comment 11: Oceana did not support the administration of sector
accountability measures (AMs) or the continued use of a CV metric for
setting monitoring coverage that they feel is inappropriate. They also
feel that coverage levels are based on inappropriate assumptions about
bias and the effects of bias on the efficacy of the ASM program to
administer the fishery.
Response: Amendment 16 included many accountability measures (AMs)
for various portions of the groundfish fishery, including specific AMs
to address the possibility that sector catches might at some point
exceed their ACEs. Among the AM's instituted for sectors are: (1) Catch
allocated to each sector is based on the stock ACL established by the
Council. The ACL takes into account biological and management
uncertainty to reduce the risk of overfishing. (2) Sectors are required
to stop groundfish fishing when they are projected to have caught their
allocation for any groundfish stock. (3) Reporting requirements are
implemented to ensure that monitoring of sector catches is timely and
accurate. (4) Sectors are provided opportunities to balance catches
with their allocation through the trading of ACEs between sectors. (5)
If a sector exceeds its allocation in a given year, and cannot balance
its catch and allocation through ACE trading, then its allocation in
the following year is reduced by the overage. Through the end of FY
2012, no sector has exceeded its sub-ACL for any of the allocated
stocks at the conclusion of the year.
Sector ACEs are only one of several sub-allocations of each
allocated stock's ACL. In addition to the sector-specific AMs, there
are additional AMs that apply to each allocated stock's ACL and AMs
that apply to other sub-ACLs and sub-components of each stock. A ``hard
TAC'' backstop was adopted for the common pool, under which the fishery
would be suspended upon reaching the year's sub-ACL for a stock. For
the recreational fishery, AMs include adjustments to seasons,
adjustments to minimum fish sizes, or adjustments to bag limits.
Amendment 16 specifically contemplated the roles of AMs at the ACL,
sub-ACL, and sub-component level, noting that with more than one sub-
component, and with ACLs set lower than the ABC (due to scientific and
management buffers), it is possible that an overage by one component
and not the others may not lead to a depressed stock size that requires
adjusting ACLs. Accordingly, it sets up an entire process of evaluating
any ACL overage to determine if an AM is necessary or sufficient to
account for the overage and the current biological condition of the
stock. This exists above and beyond the AMs set for sectors which are
designed to engender responsibility and accountability in the sector
system. The overall context is to allow adjustments at the sub-
component level so that components not responsible for any overage at
the ACL level are not subject to reductions in their sub-ACL and
resultant changes in fishing opportunities.
We have determined that 26-percent at-sea monitoring/observer
coverage of sector trips is sufficient, to the extent practicable in
light of Magnuson-Stevens Act requirements; to reliably estimate catch
for purposes of monitoring sector ACEs and ACLs for groundfish stocks.
This determination is based not only on the statistical sufficiency of
the level of coverage as summarized in more detail at: http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/FY2014_Multispecies_Sector_ASM_Requirements_Summary.pdf, but also on the totality of how
data and information is collected and analyzed including obligations on
sectors to self-monitor and self-report, which is linked to agency
monitoring. For the most part, the commenter has generally asserted
that this system and level of monitoring is not adequate without
providing any specific justification or information to support their
assertion.
Amendment 16 specified that ASM coverage levels should be less than
100 percent, which requires an estimation of the discard portion of
catch, and thus total catch. Amendment 16 also specified that the ASM
coverage levels should achieve a 30-percent CV. The level of observer
coverage, ultimately, should provide confidence that the overall catch
estimate is accurate enough to ensure that sector fishing activities
are consistent with National Standard 1 requirements to prevent
overfishing while achieving, on a continuing basis, optimum yield from
each fishery. To that end, significant additional uncertainty buffers
are established in the setting of ACLs that help make up for any lack
of absolute precision and accuracy in estimating overall catch by
sector vessels.
We rely on a number of data sources to monitor groundfish catch:
Sector vessels are required to have an operational Vessel Monitoring
System (VMS) and must use VMS to notify us when they are taking a
groundfish trip; vessels must also submit vessel logbook reports (VTR),
which are used to determine catch (landings and discards), gear and
fishing area; depending upon their fishing activity, some vessels are
also required to submit daily VMS catch reports to further refine catch
by fishing area; dealers are required to report all purchases from
groundfish vessels, which are used to determine landings; and sectors
are required to submit sub-trip level catch and gear information
weekly, or daily when certain catch thresholds (for FY 2014 the daily
reporting threshold is 90 percent of any ACE) are reached. The detailed
discard information provided by at-sea observers is critical for
determining total catch (pounds, gear used, stock area). We conduct
weekly reconciliation with sector-reported data, verifying that each
sector and the agency have the same set of data to monitor catch and
sector ACEs.
We have determined the level of monitoring coverage that is
necessary to monitor sector operations consistent with the national
standards and other requirements of the MSA. We have determined that
the appropriate level of observer coverage should be set at the level
that meets the 30-percent CV requirement (at a minimum) at the overall
stock level for all sectors and gears combined, to reliably estimate
catch for purposes of monitoring ACEs and ACLs. This level of coverage
minimizes the cost burden, while still providing a reliable estimate of
overall catch by sectors to monitor annual catch levels. This
interpretation is justified in light of the requirement for
conservation and management measures to be consistent with all national
standards. Specifically, National Standards 2, 7, and 8, which speak,
respectively, to the need to use the best scientific information
available; the need to minimize costs and avoid unnecessary
duplication, where practicable; and the need to take into account
impacts on fishing communities and minimize adverse economic impacts,
to the extent practicable. We have conducted analyses, and considered
both precision and accuracy issues in determining the appropriate level
of coverage that minimizes the cost burden to sectors and NMFS, while
still providing a reliable estimate of overall catch. As
[[Page 23295]]
stated previously, we have published a more detailed summary of the
supporting analyses, and an explanation and justification supporting
our determination that an at-sea coverage target rate of 26 percent is
appropriate. Summary tables of the data used in the analyses were also
posted on our Web site. A table of information by stock, gear, and
sector was posted at: http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/asmcvdata2.html. A table of information that can be sorted by stock
and gear (without sector affiliation) was posted at: http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/asmcvdata.html.
Lastly, the recent court decision on Oceana's challenge to the
Agency's monitoring standards supports the ASM coverage level announced
in the proposed rule. Most notably, Oceana challenged the FY 2013
sector operations rule, where we announced the target coverage level of
22 percent, claiming that we set an unreasonably low coverage level.
That challenge is identical to the comments made on the FY 2014 sector
proposed rule, where we announced the target coverage level of 26
percent.
On February 18, 2014, in Oceana, Inc. v. Pritzker, 1:13-cv-00770
(D.D.C. 2014), the Court upheld our use of a 30-percent CV standard set
ASM coverage levels. In addition to upholding our determination of
sufficient coverage levels, the Court noted that the ASM program is not
the sole method of monitoring compliance with ACLs, there are many
reporting requirements that vessels adhere to, and there are strong
incentives for vessels to report accurately because each sector is held
jointly and severally liable for overages.
Prohibition on Groundfish Trips in Closed Areas I and II
Comment 12: AFM disagrees that closed areas are biologically
different from areas that are outside of closed areas, and therefore do
not warrant additional observer coverage. They support opening closed
areas immediately and reference that many members of the Council
support opening them as well. CLF and PEW remain opposed to all closed
area access, referencing many of the same arguments and analysis
submitted on the FY 2013 sector proposed rule that proposed sector
exemptions to closed areas. CLF highlighted their challenge to FW 48,
which is the action that allowed sectors to request access to closed
areas. CLF is incorporating its legal arguments in that case with its
comments on the proposed rule. CLF also commented that allowing access
through a sector exemption, or even a controlled EFP, could confuse and
complicate the analysis and considerations regarding the Omnibus EFH
Amendment, which is considering changes to some of the areas in
question. CLF and PEW express concern for depleted groundfish stocks on
GB. PEW references the FY 2013 sector interim final rule. In that
rulemaking, we did not approve access to CAs I and II and highlighted
similar concerns for these depleted groundfish stocks. PEW comments
similarly to CLF in regards to the Omnibus Habitat Amendment under
consideration by the Council, that allowing mobile gear (i.e., trawl
fishing) could impact the areas being analyzed, potentially disrupt
habitat and spawning aggregations, and further degrade GB.
Response: As explained in the response to comment sections in
previous rulemakings (e.g., FW 48 final rule, FY 2013 closed area
interim final rule), these areas were created with several
considerations in mind, including protection for spawning stocks and
improvement of benthic habitats. CAs I and II have specifically helped
to protect GB cod, a stock in very poor shape. CA II also helps to
protect GB yellowtail flounder, another stock that is seriously
depleted. These areas have been largely closed to groundfish fishing
for almost 20 years. It is reasonable to argue that an area that was
once closed to reduce mortality has been closed so long that it has
improved habitat. Moreover, areas closed for such a long period of time
may be different in many ways from areas outside.
We also recognize that many industry members, as well as the
Council, support opening some closed areas, without additional observer
coverage. For a more detailed response on this issue, see comment 7
above. While the Council did not require 100-percent coverage as a pre-
requisite to allow sectors to request access to closed areas, it is
within the Regional Administrator's discretion to approve and implement
exemptions, with requirements as needed. For CAs I and II, we currently
feel that it is necessary until there is further catch information
collected from inside closed areas, specifically on stocks that are of
concern.
To address the comments on keeping areas closed, we want to remind
CLF and PEW on the significant response to comment section from the FY
2013 Closed Area interim final rule (78 FR 76077, December 16 2013, see
pages 76082 through 76085), which addresses the same comments received
from this rulemaking. Additionally, we remind everyone that we proposed
to consider opening CA I and CA II in FY 2014, only after receiving the
results of any EFPs that are to occur. We feel that the catch data
collected from those trips will help to address many of the questions
and comments that the fishing industry and public have in regards to
the resources inside closed areas, the economic efficacy of funding an
ASM to access those areas, and to further respond to the comments that
are made here. Until then, it is difficult to address the repetitive
comments any differently than how we responded in December.
CLF refers to its challenge to FW 48 as a basis to disapprove these
exemption requests. The Court, in CLF v. Pritzker, 1:13-cv-00820
(D.D.C. 2014), --F.Supp.2d-- (D.D.C. 2014), upheld our use of FW 48 to
allow sectors to request access to closed areas. We believe this
decision supports our consideration and approval process for these
exemption requests.
Classification
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the
NMFS Assistant Administrator for Fisheries (AA) has determined that
this final rule is consistent with the NE Multispecies FMP, other
provisions of the Magnuson-Stevens Act, and other applicable law.
This action is exempt from review under Executive Order (E.O) 12866
because this action contains no implementing regulations.
The AA finds good cause under 5 U.S.C. 553(d)(1) and (3) to waive
the 30-day delay in effectiveness so that this final rule may become
effective upon filing because this rule relieves several restrictions.
Sector Operation Plan exemptions grant exemptions or relieve
restrictions that provide operational flexibility and efficiency that
help avoid short-term adverse economic impacts on NE multispecies
sector vessels. When the 17 approved Sector Operations Plans become
effective, sector vessels are exempted from common pool trip limits,
DAS limits, and seasonal closed areas. These exemptions provide vessels
with flexibility in choosing when to fish, how long to fish, what
species to target, and how much catch they may land. They also relieve
some gear restrictions, reporting and monitoring requirements, and
provide access to additional fishing grounds through the authorization
of 20 exemptions from NE multispecies regulations for FY 2014. This
flexibility increases efficiency and reduces costs.
In addition to relieving restrictions and granting exemptions,
avoiding a delay in effectiveness avoids significant adverse economic
impacts. A delay in implementing this rule would prevent owners who
joined a sector in FY 2014
[[Page 23296]]
(849 permits, accounting for 99 percent of the historical NE
multispecies catch) from fishing during the delay and would diminish
the advantage of the flexibility in vessel operations, thereby
undermining the intent of the rule. During any delay, sector vessels
would be prohibited from fishing for groundfish. Being prohibited from
fishing for up to 30 days would have a significant adverse economic
impact on these vessels because vessels would be prevented from fishing
in a month when sector vessels landed approximately 10 percent of
several allocations, including GB cod east and GB winter flounder.
Further, sector vessels could only fish during this delay if they chose
to fish in the common pool. Once they switched to the common pool,
however, they could not return to a sector for the entire fishing year
and would forego the flexibility and economic efficiency afforded by
sector exemptions. Vessels choosing to fish in the common pool to avoid
a 30 day delay in the beginning of their season would then forego
potential increased flexibility and efficiencies for an entire fishing
year. For the reasons outlined above, good cause exists to waive the
otherwise applicable requirement to delay implementation of this rule
for a period of 30 days.
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for this certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification. As a result, a regulatory flexibility
analysis was not required and none was prepared.
Authority: 16 U.S.C. 1801 et seq.
Dated: April 22, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2014-09511 Filed 4-25-14; 8:45 am]
BILLING CODE 3510-22-P