Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; 2019 and 2020 Sector Operations Plans and 2019 Allocation of Northeast Multispecies Annual Catch Entitlements

AGENCY:

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

ACTION:

Proposed rule.

SUMMARY:

We propose to approve Northeast multispecies sector operations plans and grant regulatory exemptions for fishing years 2019 and 2020, approve the formation of a new sector, and provide preliminary annual catch entitlements to approved sectors for fishing year 2019. Approval of sector operations plans and contracts is necessary to allocate annual catch entitlements to the sectors and for the sectors to operate. This action is intended to allow limited access permit holders to form sectors, as authorized under the Northeast Multispecies Fishery Management Plan, and to exempt them from certain effort control regulations to improve the efficiency and economics of sector vessels.

DATES:

Written comments must be received on or before March 22, 2019.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NMFS-2018-0139, by either of the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0139 ,, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
• Mail: Submit written comments to Claire Fitz-Gerald, 55 Great Republic Drive, Gloucester, MA 01930.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

Copies of each sector's final operations plan and contract are available from the NMFS Greater Atlantic Regional Fisheries Office: Michael Pentony, 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:

Claire Fitz-Gerald, Fishery Management Specialist, (978) 281-9255. To review Federal Register documents referenced in this rule, you can visit: http://www.greateratlantic.fisheries.noaa.gov/sustainable/species/multispecies.

SUPPLEMENTARY INFORMATION:

Background

The Northeast Multispecies Fishery Management Plan (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 Northeast multispecies sector management system allocates a portion of the Northeast multispecies stocks to each sector. These annual sector allocations are known as annual catch entitlements (ACE) and are based on the collective fishing history of a sector's members. Sectors may receive allocations of large-mesh Northeast multispecies stocks with the exception of Atlantic halibut, windowpane flounder, Atlantic wolffish, and ocean pout, which are non-allocated species managed under separate effort controls. ACEs are portions of a stock's annual catch limit (ACL) available to commercial Northeast multispecies vessels. A sector determines how to harvest its ACE.

Because sectors elect to receive an allocation under a quota-based system, the FMP grants sector vessels several “universal” exemptions from the FMP's effort controls. These universal exemptions apply to: Trip limits on allocated stocks; Northeast multispecies days-at-sea (DAS) restrictions; the requirement to use a 6.5-inch (16.5-cm) mesh codend when fishing with selective gear on Georges Bank (GB); portions of the Gulf of Maine (GOM) Cod Protection Closures; and the at-sea monitoring (ASM) coverage requirement for sector vessels fishing exclusively in the Southern New England (SNE) and Inshore GB Broad Stock Areas (BSA) with extra-large mesh gillnets (10-inch [25.4-cm] or greater). The FMP prohibits sectors from requesting exemptions from permitting restrictions, gear restrictions designed to minimize habitat impacts, and most reporting requirements.

In addition to the approved sectors, there are several state-operated permit banks, which receive allocations based on the history of the permits owned by the states. The final rule implementing Amendment 17 to the FMP allowed a state-operated permit bank to receive an allocation without needing to comply with the administrative and procedural requirements for sectors (77 FR 16942; March 23, 2012). Instead, permit banks are required to submit a list of participating permits to us, as specified in the permit bank's Memorandum of Agreement, to determine the ACE allocated to the permit bank. These allocations may be leased to fishermen enrolled in sectors. Although state-operated permit banks are no longer approved through the sector approval process, they are included in this discussion of allocations because they contribute to the total allocation under the sector system.

We received operations plans and preliminary contracts for fishing years 2019 and 2020 from 20 sectors. The operations plans are similar to operations plans and contracts previously approved for prior fishing years. We have made a preliminary determination that the 20 sector operations plans and contracts that we received, and the 19 regulatory exemptions requested, are consistent with the FMP's goals and objectives, and meet sector requirements outlined in the regulations at § 648.87. Copies of the operations plans and contracts, and the environmental assessment (EA), are available at: http://www.regulations.gov and from NMFS (see ADDRESSES).

Default Catch Limits for Fishing Year 2019

Last year, Framework 57 set fishing year 2019 catch limits for all groundfish stocks (83 FR 18985; May 1, 2018). The 2019 catch limits for most stocks remain the same as, or similar, to 2018 limits. Framework 57 did not, however, specify a 2019 catch limit for Eastern GB cod. Eastern GB cod is a management unit of the GB cod stock that is jointly managed with Canada, and the shared quota is set annually.

This year, in Framework 58, the Council adopted revised 2019 catch limits for GB cod, GB haddock, GB yellowtail, witch flounder, GB winter flounder, GOM winter flounder, and Atlantic halibut. We are working to publish a proposed rule to request comments on the Framework 58 measures. Due to the 35-day Federal government shutdown resulting from a lapse in appropriations, there will be a delay in the rulemaking process for Framework 58, and it will not be possible to implement these measures in time for May 1, 2019.

As a result, this rule announces the 2019 catch limits set in Framework 57 that would be effective on May 1, 2019, including preliminary sector and common pool allocations based on final 2018 fishing year rosters (Table 1). If Framework 58 is approved, the 2019 catch limits announced in this rule for GB cod, GB haddock, GB yellowtail, witch flounder, GB winter flounder, GOM winter flounder, and Atlantic halibut will change. This rule also sets a default catch limit for Eastern GB cod. The groundfish regulations require default catch limits for any stock for which final specifications are not in place by the beginning of the fishing year on May 1. The FMP's default specifications provision sets catch at 35 percent of the previous year's (2018) catch limits beginning on May 1 through July 31, or until the final rule for Framework 58 is implemented if prior to July 31.

In Framework 58, the Council recommended a total ACL of 103 mt for GB yellowtail flounder in fishing year 2019. This is a 64-percent decrease from the fishing year 2019 ACL previously set in Framework 57, and a 50-percent decrease from the fishing year 2018 ACL. The Council also revised the fishing year 2019 ACL for GB cod to 1,741 mt. This a 14-percent increase from the fishing year 2018 ACL, but a 20-percent decrease from the fishing year 2019 ACL previously set in Framework 57. The adjustments are based on the recommendation of the Transboundary Management Guidance Committee, which is the joint U.S./Canada management body that meets annually to recommend shared quotas for the three transboundary stocks. These recommendations will be further discussed in the Framework 58 proposed rule. We are highlighting these changes in this rule because the GB yellowtail flounder and GB cod sector allocations proposed in this rule are based on the higher 2019 catch limits previously approved in Framework 57. If the Council's recommended catch limits become final with no changes, ACE for these stocks will be reduced when Framework 58 is implemented.

Framework 58 would also adjust the GOM cod catch limits for commercial groundfish vessels. The sector sub-ACL for GOM cod would be reduced by 28.8 mt for fishing year 2019. This adjustment is required because the total ACL was exceeded in fishing year 2017. Therefore, sectors' ACE will be reduced when Framework 58 is implemented compared to their May 1 allocations.

Formation of a New Sector

This action proposes to approve the formation of a new sector, Mooncusser Sector, for operation beginning in the 2019 fishing year. We have preliminarily determined that the sector operations plan and preliminary contract submitted by Mooncusser Sector contains the required provisions for operations. The request to form the sector went through the new approval process established in Framework 55 (81 FR 26412; May 2, 2016). As required by the FMP, we consulted with the New England Fishery Management Council on the formation of this new sector. At its January 2019 meeting, the Council reviewed the sector's proposed operations plan and preliminary contract and recommended that we approve the new sector.

Sector Allocations

The sector allocations proposed in this rule are based on the 2019 catch limits established in Framework 57 and final fishing year 2018 sector rosters. Due to the 35-day partial Federal government shutdown resulting from a lack of appropriations, there was a delay in distributing the annual letter describing each vessel's potential contribution to a sector's quota for the upcoming fishing year, and the deadline to enroll in a sector is set for March 8, 2019, although sectors may set a more restrictive deadline for their members. Thus, we are using fishing year 2018 rosters as a proxy for fishing year 2019 sector membership and to calculate the fishing year 2019 projected allocations in this proposed rule.

Any permits that change ownership after December 1, 2018, retain the ability to join a sector through April 30, 2019. All permits enrolled in a sector, and the vessels associated with those permits, have until April 30, 2019, to withdraw from a sector and fish in the common pool for fishing year 2019. For fishing year 2020, we will set similar roster deadlines, notify permit holders of the fishing year 2020 deadlines, and allow permit holders to change sectors separate from the annual sector operations plans approval process.

We calculate the sector's allocation for each stock by summing its members' potential sector contributions (PSC) for a stock and then multiplying that total percentage by the available commercial sub-ACL for that stock. Table 2 shows the projected total fishing year 2019 PSC by stock for the 18 sectors approved to operate in fishing year 2018 that submitted operations plans for 2019. Tables 3 and 4 show the initial allocations that each sector would be allocated for fishing year 2019 based on their final fishing year 2018 rosters. At the start of the 2019 fishing year, we provide final allocations, to the nearest pound, to each sector based on their final May 1 rosters. We use these final allocations, along with later adjustments for ACE transfers, reductions for overages, or increases for carryover from fishing year 2018, to monitor sector catch. We have included the common pool sub-ACLs in tables 2 through 4 for comparison.

These tables do not represent the final allocations for the 2019 fishing year. Northeast Fishery Sector IX (NEFS 9) was approved for operation in fishing year 2018. However, NEFS 9 did not submit an operations plan and will not operate in fishing year 2019. As a result, NEFS 9 is not included in these tables and the permits enrolled in NEFS 9 for fishing year 2018 are excluded from tables 2 through 4. We expect the permits enrolled in NEFS 9 for fishing year 2018 to enroll in a different sector or join the common pool for fishing year 2019. ACE attributable to those permits will be allocated to whichever sector(s) those permits enroll in for 2019, or to the common pool.

We also cannot calculate ACEs for the GB Cod Hook Gear and Mooncusser sectors until they submit their preliminary rosters. We do not have roster data for these sectors because they did not operate in fishing year 2018. GB Cod Hook Gear and Mooncusser sectors' 2019 rosters will include permits currently enrolled in other sectors or fishing in the common pool, and these two sectors' final ACE allocations will be based on the PSC of their enrolled permits.

We do not assign a permit separate PSCs for Eastern GB cod or Eastern GB haddock; instead, we assign each permit a PSC for the GB cod stock and GB haddock stock. Each sector's GB cod and GB haddock allocations are then divided into an Eastern ACE and a Western ACE, based on each sector's percentage of the GB cod and GB haddock ACLs. For example, if a sector is allocated 4 percent of the GB cod ACL and 6 percent of the GB haddock ACL, the sector is allocated 4 percent of the commercial Eastern U.S./Canada Area GB cod total allowable catch (TAC) and 6 percent of the commercial Eastern U.S./Canada Area GB haddock TAC as its Eastern GB cod and haddock ACEs. These amounts are then subtracted from the sector's overall GB cod and haddock allocations to determine its Western GB cod and haddock ACEs. A sector may only harvest its Eastern GB cod and haddock ACEs in the Eastern U.S./Canada Area, but may “convert,” or transfer, its Eastern GB cod or haddock allocation into Western GB allocation and fish that converted ACE outside the Eastern GB area.

At the start of fishing year 2019, we may withhold 20 percent of each sector's fishing year 2019 allocation until we finalize fishing year 2018 catch information. We expect to finalize 2018 catch information in summer 2019. We will allow sectors to transfer fishing year 2018 ACE for 2 weeks upon our completion of year-end catch accounting to reduce or eliminate any fishing year 2018 overages. If necessary, we will reduce any sector's fishing year 2019 allocation to account for a remaining overage in fishing year 2018. We will follow the same process for fishing year 2020. Each year of the operations plans, we will notify the Council and sector managers of this deadline in writing and will announce our final ACE determination on our website at: http://www.greateratlantic.fisheries.noaa.gov/.

Sector Operations Plans and Contracts

Twenty-one groundfish sectors are approved to operate in the groundfish sector fishery, 19 of which were active in fishing year 2018. Of those 19 sectors, 18 submitted operations plans and contracts for approval for fishing years 2019 and 2020. Northeast Fishery Sector IX did not submit an operations plan for fishing year 2019. Two additional sectors, GB Cod Hook Gear and Mooncusser, submitted operations plans and contracts, for a total of 20 sectors. We are proposing to approve 20 sector operations plans and contracts for fishing years 2019 and 2020. In order to approve a sector's operations plan for fishing years 2019 and 2020, we consider whether a sector's plan is consistent with regulatory requirements and FMP objectives, and whether it has been compliant with reporting requirements from previous years, including the year-end reporting requirements found at § 648.87(b)(1)(vi)(C). Approved operations plans, provided on our website as a single document for each sector, not only contain the rules under which each sector would fish, but also provide the legal contract that binds each member to the sector for the length of the sector's operations plan. Each sector's operations plan, and each sector's members, must comply with the regulations governing sectors, found at § 648.87. In addition, each sector must conduct fishing activities as detailed in its approved operations plan.

Participating vessels are required to comply with all pertinent Federal fishing regulations, except as specifically exempted in the letter of authorization (LOA) issued by the Regional Administrator, which details any approved sector exemptions from the regulations. If, during a fishing year, or between fishing years 2019 and 2020, a sector requests an exemption that we have already granted, or proposes a change to administrative provisions, we may amend the sector operations plans. Should any such amendments require modifications to LOAs, we would include these changes in updated LOAs and provide them to the appropriate sectors.

As in previous years, we retain the right to revoke exemptions in-season if: We determine that the exemption jeopardizes management measures, objectives, or rebuilding efforts; the exemption results in unforeseen negative impacts on other managed fish stocks, habitat, or protected resources; the exemption causes enforcement concerns; catch from trips using the exemption cannot adequately be monitored; or a sector is not meeting certain administrative or operational requirements. If it becomes necessary to revoke an exemption, we will do so through a process consistent with the Administrative Procedure Act.

Each sector is required to ensure that it does not exceed its ACE during the fishing year. Sector vessels are required to retain all legal-sized allocated Northeast multispecies stocks, unless a sector is granted an exemption allowing its member vessels to discard legal-sized unmarketable fish at sea. Catch (defined as landings and discards) of all allocated Northeast multispecies stocks by a sector's vessels count against the sector's allocation. Groundfish catch from a sector trip targeting non-groundfish species would be deducted from the sector's ACE because these are groundfish trips using gear capable of catching groundfish. Catch from a non-sector trip in an exempted fishery does not count against a sector's allocation and is assigned to a separate ACL sub-component to account for any groundfish bycatch that occurs in non-groundfish fisheries.

Each sector contract details the method for initial ACE sub-allocation to sector members. For fishing years 2019 and 2020, each sector has proposed that each active sector member could harvest an amount of fish equal to the amount each individual member's permit contributed to the sector, as modified by the sector for reserves or other management measures. Each sector operations plan submitted for fishing years 2019 and 2020 states that the sector would withhold an initial reserve from the sector's ACE sub-allocation to each individual member to prevent the sector from exceeding its ACE. A sector and sector members can be held jointly and severally liable for ACE overages, discarding legal-sized fish, and/or misreporting catch (landings or discards). Each sector contract provides procedures for enforcement of the sector's rules, explains sector monitoring and reporting requirements, provides sector managers with the authority to issue stop fishing orders to sector members who violate provisions of the operations plan and contract, and presents a schedule of penalties that managers may levy for sector plan violations.

Sectors are required to monitor their allocations and catch. To help ensure that a sector does not exceed its ACE, each sector operations plan explains sector monitoring and reporting requirements, including a requirement to submit weekly catch reports to us. If a sector reaches an ACE threshold (specified in the operations plan), the sector must provide us with sector allocation usage reports on a daily basis. Once a sector's allocation for a particular stock is caught, that sector is required to cease all sector fishing operations in that stock area until it acquires more ACE, likely by an ACE transfer between sectors. Within 60 days of when we complete year-end catch accounting, each sector is required to submit an annual report detailing the sector's catch (landings and discards), enforcement actions, and pertinent information necessary to evaluate the biological, economic, and social impacts of each sector.

At-Sea Monitoring

Sectors are responsible for the at-sea portion of costs associated with the sector ASM program, even in years when reimbursement funds are available, and for designing, implementing, and funding an ASM program that will provide the level of ASM coverage specified annually. We are required to specify a level of ASM coverage using a process described in Framework 55 (81 FR 26412; May 2, 2016) that provides a reliable estimate of overall catch by sectors needed for monitoring ACEs and ACLs while minimizing the cost burden to sectors and NMFS to the extent practicable.

The draft operations plans submitted in October 2018 included industry-funded ASM plans to be used for fishing year 2019. As in previous years, we gave sectors the option to design their own programs in compliance with regulations, or elect to adopt the NMFS-designed ASM program that we have used in previous fishing years. As in past years, several sectors chose to adopt the NMFS-designed program while others proposed programs of their own design. Sector-designed ASM programs for fishing years 2019 and 2020 were similar to those approved in past years. In the event we cannot approve a proposed ASM program, we asked all sectors to include an option to use the current NMFS-designed ASM program as a back-up.

Sustainable Harvest Sectors 1, 2, and 3, GB Cod Fixed Gear Sector, Mooncusser Sector, Northeast Coastal Communities Sector, Maine Coast Community Sector, and Northeast Fishery Sectors 5, 10, 11, and 13 have proposed to use the ASM program that was developed by NMFS. We propose to approve this program for these sectors because it is consistent with goals and objectives of monitoring and regulatory requirements. Sectors that operate only as permit banks, and explicitly prohibit fishing in their operations plans, are not required to include provisions for an ASM program.

We propose to approve the ASM programs proposed by the remaining seven active sectors, NEFS 1, 2, 3, 6, 7, 8, and 12, which state that they will: Contract with a NMFS-approved ASM provider; meet the specified coverage level; and utilize the PTNS for random selection of monitored trips and notification to providers. These ASM programs also include additional protocols for ASM coverage waivers, incident reporting, and safety requirements for their sector managers and members. We have determined that the programs are consistent with the goals and objectives of at-sea monitoring and regulatory requirements.

In fishing years 2010 and 2011, we funded an ASM program with a target ASM coverage level of 30 percent of all trips. In addition, we provided 8-percent observer coverage through the Northeast Fishery Observer Program (NEFOP), which helps to support the Standardized Bycatch Reporting Methodology (SBRM) and stock assessments. This resulted in an overall target coverage level of 38 percent for fishing years 2010 and 2011, from the combined ASM and NEFOP. Beginning in fishing year 2012, we have conducted an annual analysis to determine the total target coverage level. Table 5 depicts the annual target coverage levels. Industry has been required to pay for their ASM coverage costs since 2012, while we continued to fund NEFOP coverage. However, we were able to fund the industry's portion of ASM costs and NEFOP coverage in fishing years 2012 through most of 2015. Industry paid for their portion of the ASM program beginning in March 2016. In June 2016, after determining that the SBRM monitoring program could be fully funded with additional funding remaining, we announced that we had funds available to offset some of industry's costs of the groundfish ASM program in 2016. We reimbursed sectors for 85 percent of their ASM costs for 10 months of the fishing year, distributed through a grant by the Atlantic States Marine Fisheries Commission. In fishing year 2017, using leftover funds from the 2016 grant, we reimbursed sectors for 60 percent of industry costs in fishing year 2017. Fishing effort was lower than expected in the first few months of the fishing year, and we were ultimately able to retroactively reimburse sectors for an additional estimated 25 percent of industry's 2017 costs, which exhausted the remaining available SBRM funds.

In fiscal year 2018, Congress appropriated $10.3 million for groundfish at-sea monitoring. With these funds, we were able to fully reimburse industry costs in fishing year 2018. Although the exact costs for fishing year 2019 are not known at this time, based on previous fishing year costs, we expect funds to be available to reimburse industry costs. We are in the process of determining the target coverage level for fishing year 2019. When it is available, we will announce the coverage level and make the supporting documentation available to the public.

In fishing year 2018, a number of sectors have realized ASM coverage levels below the target coverage level. Since this issue became known during the fishing year, we have been working with the sectors and approved service providers to increase coverage levels. Sectors have been proactive in their efforts to correct the issue. Sectors with low ASM coverage levels have participated in monthly meetings with the Northeast Fisheries Science Center staff and service providers to develop strategies for increasing coverage; conducted targeted outreach with sector members to improve their understanding of ASM requirements; and submitted monthly reports to us documenting their efforts. Two sectors have contracted with an additional service provider for the remainder of the fishing year. Service providers are also working to improve coverage levels. The Northeast Fisheries Science Center held an ASM certification course in December 2018, and all four approved providers took the opportunity to train additional staff. Increased staffing levels will help providers meet ASM contract requirements. We expect to continue working with sectors and service providers throughout the remainder of the year to increase coverage levels for 2018, and to ensure they meet the specified coverage target in 2019.

Granted Exemptions for Fishing Years 2019 and 2020

Previously Granted Exemptions Granted for Fishing Years 2019 and 2020 (1-19)

We are granting exemptions from the following requirements for fishing years 2019 and 2020, all of which have been requested and granted in previous years: (1) 120-day block out of the fishery required for Day gillnet vessels; (2) 20-day spawning block out of the fishery required for all vessels; (3) limits on the number of gillnets for Day gillnet vessels outside the GOM; (4) prohibition on a vessel hauling another vessel's gillnet gear; (5) limits on the number of gillnets that may be hauled on GB when fishing under a Northeast multispecies/monkfish DAS; (6) limits on the number of hooks that may be fished; (7) DAS Leasing Program length and horsepower restrictions; (8) prohibition on discarding; (9) gear requirements in the Eastern U.S./Canada Management Area; (10) prohibition on a vessel hauling another vessel's hook gear; (11) the requirement to declare an intent to fish in the Eastern U.S./Canada Special Access Program (SAP) and the Closed Area (CA) II Yellowtail Flounder/Haddock SAP prior to leaving the dock; (12) seasonal restrictions for the Eastern U.S./Canada Haddock SAP; (13) seasonal restrictions for the CA II Yellowtail Flounder/Haddock SAP; (14) sampling exemption; (15) 6.5-inch minimum mesh size requirement for trawl nets to allow a 5.5-inch codend on directed redfish trips; (16) prohibition on combining small-mesh exempted fishery and sector trips in SNE; (17) extra-large mesh requirement to target dogfish on trips excluded from ASM in SNE and Inshore GB; (18) requirement that Handgear A vessels carry a Vessel Monitoring System (VMS) unit when fishing in a single broad stock area; and (19) limits on the number of gillnets for Day gillnet vessels in the GOM. A detailed description of the previously granted exemptions and supporting rationale can be found in the applicable final rules identified in Table 6 below.

Several exemptions available to sectors in previous fishing years were rendered obsolete when the Omnibus Essential Fish Habitat Amendment 2 went into effect (83 FR 15240; April 9, 2018). The amendment removed the GB Seasonal Closure Area and Nantucket Lightship Closed Area, and changed CA I from a year-round closed area to a seasonal spawning closure. Consequently, sector exemptions pertaining to these closed areas are no longer applicable. These exemptions include: GB Seasonal Closure Area in May (previously a “universal” exemption); daily catch reporting by sector managers for vessels participating in the CA I Hook Gear Haddock SAP; prohibition on fishing inside and outside the CA I Hook Gear Haddock SAP while on the same trip; and the prohibition on groundfish trips in Nantucket Lightship Closed Area. Sectors did not request any of these exemptions for fishing year 2019.

Additional Sector Operations Plan Provisions

Inshore GOM Restrictions

Several sectors have proposed an operations plan provision to limit and more accurately document a vessel's behavior when fishing in an area they define as the inshore portion of the GOM BSA, or the area to the west of 70°15′ W long. As in fishing years 2017 and 2018, we are approving this provision, but note that a sector may elect to remove this provision in the final version of its operations plan, and it is not a requirement under NMFS regulations.

Under this provision, a vessel that is carrying an observer or at-sea monitor would remain free to fish in all areas, including the inshore GOM area, without restriction. If a vessel is not carrying an observer or at-sea monitor and fishes any part of its trip in the GOM west of 70°15′ W long., the vessel would be prohibited from fishing outside of the GOM BSA. Also, if a vessel is not carrying an observer or at-sea monitor and fishes any part of its trip outside the GOM BSA, this provision would prohibit a vessel from fishing west of 70°15′ W long. within the GOM BSA. The approved provision includes a requirement that a vessel declare whether it intends to fish in the inshore GOM area through the trip start hail using its VMS unit prior to departure. We provide sector managers with the ability to monitor this provision through the Sector Information Management Module, a website where we also provide roster, trip, discard, and observer information to sector managers. A sector vessel may use a federally funded NEFOP observer or at-sea monitor on these trips because we believe it will not create bias in coverage or discard estimates, as fishing behavior is not expected to change as a result of this provision.

Prohibition on a Vessel Hauling Another Vessel's Trap Gear To Target Groundfish

Several sectors have requested a provision to allow a vessel to haul another vessel's fish trap gear, similar to the current exemptions that allow a vessel to haul another vessel's gillnet gear or hook gear. These exemptions have generally been referred to as “community” gear exemptions. Regulations at § 648.84(a) require a vessel to mark all bottom-tending fixed gear, which would include fish trap gear used to target groundfish. To facilitate enforcement of this regulation, we are requiring that any community fish trap gear be tagged by each vessel that plans to haul the gear, similar to how this sector operations plan provision was implemented in fishing years 2014 through 2018. This allows one vessel to deploy the trap gear and another vessel to haul the trap gear, provided both vessels tag the gear prior to deployment. This requirement is included in the sector's operations plan to provide the opportunity for the sector to monitor the use of this provision and facilitate the Office of Law Enforcement and the U.S. Coast Guard's enforcement of the marking requirement.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has preliminarily determined that this proposed rule is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866.

This proposed rule does not contain policies with Federalism or takings implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.

The Regulatory Flexibility Act (RFA) requires Federal agencies to consider disproportionality and profitability to determine the significance of regulatory impacts. For RFA purposes only, NMFS established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts less than $11 million for all its affiliated operations worldwide. The determination of whether the entity is large or small is based on the average annual revenue for the most recent 3 years for which data are available (from 2015 through 2017).

As of May 1, 2017 (beginning of fishing year 2017), NMFS had issued limited-access groundfish permits to 894 vessels. Each of these permits is eligible to join a sector or enroll in the common pool in fishing year 2019. Alternatively, each permit owner could also allow their permit to expire by failing to renew it. Each vessel may be individually owned or part of a larger corporate ownership structure, and for RFA purposes it is the ownership entity that is ultimately regulated by the proposed action. Ownership entities are identified on June 1 of each year based on the list of all permit numbers, for the most recent complete calendar year, that have applied for any type of Northeast Federal fishing permit. The current ownership data set is based on calendar year 2017 permits and contains gross sales associated with those permits for calendar years 2015 through 2017.

Ownership data collected from permit holders indicates that there are 697 distinct business entities that hold at least one permit regulated by the proposed action. Of the 697 entities, 691 entities are categorized as small and 6 are categorized as large entities per the NMFS guidelines. All 691 small entities would be directly regulated by this proposed action.

This proposed rule would implement specified universal regulatory exemptions that would provide more flexible management options to fishing businesses that join a sector. For this reason, the proposed rule will have a positive impact on all 697 entities, as it will allow them to participate in the sector groundfish fishery rather than fish under the common pool regulations, which include limits of days-at-sea, trip limits, gear restrictions, size limits, and closures intended to control overall fishing mortality. In addition, these effort controls would be subject to in-season modifications based on industry-wide landings. Conversely, the sector fishery would provide increased efficiency and flexibility to fishing businesses. Under the proposed rule, small entities would not be placed at a competitive disadvantage relative to large entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Recordkeeping and reporting requirements

For the reasons stated in the preamble, 50 CFR part 648 is proposed to be amended as follows:

PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

2. In § 648.87, revise paragraph (d) to read as follows: