Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; 2018 Allocation of Northeast Multispecies Annual Catch Entitlements and Approval of a Regulatory Exemption for Sectors

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This rule provides allocations to 17 of 19 groundfish sectors for the 2018 fishing year and also approves a new regulatory exemption for sector vessels. The action is necessary because sectors must receive allocations in order to operate in the 2018 fishing year. This action is intended to maximize fishing opportunities, ensure sector allocations are based on the best scientific information available, and help achieve optimum yield for the fishery.

DATES:

Effective May 1, 2018, through April 30, 2019.

ADDRESSES:

Copies of each sector's operations plan and contract, as well as the programmatic environmental assessment for sectors operations in fishing years 2015 to 2020, are available from the NMFS Greater Atlantic Regional Fisheries Office (GARFO): Michael Pentony, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. These documents are also accessible via the GARFO website: https://www.greateratlantic.fisheries.noaa.gov/sustainable/species/multispecies/.

FOR FURTHER INFORMATION CONTACT:

Kyle Molton, Fishery Management Specialist, (978) 281-9236.

SUPPLEMENTARY INFORMATION:

Background

The Northeast multispecies (groundfish) sector management system allows us to allocate a portion of available groundfish catch by stock to each sector. Each sector's annual allocations are known as annual catch entitlements (ACE) and are based on the collective fishing history of a sector's members. The ACEs are a portion of a stock's annual catch limit (ACL) available to commercial groundfish vessels. A sector determines how to harvest its ACEs and may decide to limit operations to fewer vessels. Atlantic halibut, windowpane flounder, Atlantic wolffish, and ocean pout are not managed under the sector system, and sectors do not receive allocations of these groundfish species. With the exception of halibut, which has a one-fish per vessel trip limit, possession of these stocks is prohibited.

Because sectors elect to receive an allocation under a quota-based system, the Northeast Multispecies Fishery Management Plan (FMP) grants sector vessels several “universal” exemptions from the FMP's effort controls. The FMP allows sectors to request additional exemptions to increase flexibility and fishing opportunities for consideration and approval by NMFS. Sectors are prohibited from requesting, and NMFS from approving, exemptions from permitting restrictions, gear restrictions designed to minimize habitat impacts, and most reporting requirements.

In addition to the sectors, there are several state-operated permit banks, which receive allocations based on the fishing history of permits that the state holds. The final rule implementing Amendment 17 to the FMP allowed a state-operated permit bank to receive an allocation without needing to comply with sector administrative and procedural requirements (77 FR 16942; March 23, 2012). Instead, permit banks are required to submit a list of permits to us, as specified in the permit bank's Memorandum of Agreement between NMFS and the state. These permits are not active vessels; instead, the allocations associated with the permits may be leased to other sectors. State-operated permit banks contribute to the total allocation under the sector system.

We approved nineteen sectors to operate in fishing years 2017 and 2018, and also approved 21 requested exemptions for sectors (82 FR 19618; April 28, 2017). On November 20, 2017, we withdrew approval of Northeast Fishery Sector IX (NEFS 9) (82 FR 55522; November 22, 2017). This action allocates 2018 ACE to 17 of 19 sectors based on the specifications in Framework Adjustment 57 to the Northeast Multispecies FMP. This action also approves a new regulatory exemption to increase fishing opportunities for monkfish while fishing on a groundfish sector trip.

Sector Allocations for Fishing Year 2018

The 2018 allocations in this rule are based on sector enrollment in fishing year 2018 as determined by preliminary roster submissions. All permits enrolled in a sector, and the vessels associated with those permits, have until April 30, 2018, to withdraw from a sector and fish in the common pool for fishing year 2018. The allocations in this rule are based on the fishing year 2018 specifications in Framework 57 to the FMP. As explained in more detail below, this rule does not allocate 2018 ACE to NEFS 7 or NEFS 9, or make any determinations on their operations plans.

We calculate a sector's allocation for each stock by summing its members' potential sector contributions (PSC) for a stock and then multiplying that total percentage by the available commercial sub-ACL for that stock. Table 1 shows the total PSC by stock for each sector receiving an allocation under this rule for fishing year 2018. Tables 2 and 3 show the allocations for each sector, in pounds and metric tons, respectively, for fishing year 2018, based on their submitted fishing year 2018 rosters. The common pool sub-ACLs are also included in each of these tables. Framework 57 sets the fishing year 2018 common pool sub-ACLs, and are calculated using the PSC of permits not enrolled in sectors. The common pool sub-ACL is managed separately from sectors and does not contribute to available ACE for leasing or harvest by sector vessels, but is shown for comparison.

We do not assign a permit separate PSCs for the Eastern Georges Bank (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 Western ACE, based on each sector's percentage of the GB cod and GB haddock ACLs. For example, if a sector is allocated 4 percent of the GB cod ACL, the sector is allocated 4 percent of the commercial Eastern U.S./Canada Area GB cod total allowable catch. The Eastern GB haddock allocations are determined in the same way. These amounts are then subtracted from the sector's overall GB cod and haddock allocations to determine its Western GB cod and haddock ACEs. A sector may only harvest its Eastern GB cod and haddock ACEs in the Eastern U.S./Canada Area. A sector may also “convert,” or transfer, its Eastern GB cod or haddock allocation into Western GB allocation and fish that converted ACE outside the Eastern GB area.

All sectors were required to submit preliminary fishing year 2018 sector rosters to us by March 26, 2018. Prior to the start of each fishing year, we review preliminary rosters to determine, among other issues, whether the vessels enrolled in sectors are eligible, whether the sectors have signed contracts from permit holders demonstrating membership, and whether the sector continues to fulfill the “rule of three” requirement, which requires sectors to be composed of permits held by at least three distinct entities. Enrollment of sectors may change each year, but these changes in enrollment are usually minor and require minimal review.

Subsequent to the proposed rule for this action (83 FR 12706; March 23, 2018), there were significant changes in sector enrollment for NEFS 7, NEFS 8, and NEFS 9 for the 2018 fishing year. Sector roster submissions indicated that all permits enrolled in NEFS 7 in fishing year 2017 are leaving the sector for fishing year 2018, with several moving to the common pool and the remainder moving to NEFS 8. Additionally, sector roster submissions indicated that nearly all permits enrolled in NEFS 9 (55 of 60 permits) during fishing year 2017 are enrolling in NEFS 7 for fishing year 2018. Five of these permits are subject to forfeiture as a result of the criminal case against Carlos Rafael. Two permits from NEFS 9 enrolled in NEFS 8. Only three permits remain enrolled in NEFS 9. These changes are especially significant given ongoing efforts to account for misreported catch by NEFS 9 vessels in prior fishing years and resolve other issues that caused withdrawal of approval of the NEFS 9 operations plan. We are also working to resolve whether the five permits subject to forfeiture can be enrolled in a sector given that Mr. Rafael's interest in them has been forfeited to the U.S. Government.

These significant roster changes, including substantive operational and overage payback issues, require further consideration. Therefore, we are delaying a decision regarding allocating 2018 ACE to NEFS 7 or NEFS 9, and this final rule does not include allocations for either sector. Although the proposed rule for this action included allocations for both NEFS 7 and NEFS 9, issuing an allocation to either sector in this rule would be premature until the large-scale changes to sector enrollment and related issues are fully considered and resolved, and we consult with the New England Fishery Management Council. Any allocation to NEFS 7 or NEFS 9, or operations plan approvals, will be completed in a separate rulemaking.

Holdback of Allocation and End of Year Catch Accounting

The FMP authorizes us to hold 20 percent of a sector's ACE up to, and through, June 30 to allow time to complete catch accounting and reconcile overages, if necessary. At the start of fishing year 2018, we will withhold 20 percent of NEFS 8's allocation. We are requiring a holdback because two vessels enrolled in NEFS 9 for 2017 have joined NEFS 8 for fishing year 2018, and we are evaluating potential pound-for-pound payback of allocation necessary to account for NEFS 9 overages in previous fishing years. If we have not finalized our analysis and catch accounting prior to June 30, 2018, NEFS 8 will receive the holdback allocation. No other sectors receiving an allocation for 2018 in this rule will be subject to the holdback provision. Holding back this quota will ensure that NEFS 8 has sufficient allocation to begin operating on May 1, 2018, while also ensuring sufficient allocation is available to cover any potential overage associated with vessels previously enrolled in NEFS 9, if payback is determined to be necessary. In 2018, NEFS 7 and 9 will be almost entirely made up of permits that were enrolled in NEFS 9 in 2017. Therefore, we determined that a 20-percent holdback is potentially not sufficient to ensure proper accounting of overages that may affect these two sectors.

We expect to finalize 2017 catch information for all groundfish sectors in the summer of 2018 consistent with the normal sector process. We will allow sectors to transfer fishing year 2017 ACE for 2 weeks upon our completion of year-end catch accounting to reduce or eliminate any fishing year 2017 overages. If necessary, we will reduce any sector's fishing year 2018 allocation to account for a remaining overage in fishing year 2017. We will notify managers of any overages their sector has for 2017 and the 2-week trading window when we have finalized 2017 catch information.

New Sector Exemption Approved for Fishing Year 2018

Limit on the Number of Gillnets for Day Gillnet Vessels Fishing in the Gulf of Maine

Each year, vessels fishing with gillnet gear must declare as either a “Day” or “Trip” gillnet vessel. A Day gillnet vessel is limited in the number of nets it may fish, but can return to port while leaving the gear in the water. A Trip gillnet vessel is not limited in the number of nets it may fish, but must retrieve all of its gear each trip. This action approves an exemption for Day gillnet vessels fishing in the Gulf of Maine from the current 100-net limit. The intent of this exemption is to increase opportunities for sector vessels to harvest monkfish, a healthy non-groundfish stock, while fishing on a groundfish trip. The exemption allows sector vessels to fish up to 150 gillnets, provided at least 50 nets are 10-inch (25.4-cm) or larger mesh and those nets are fished east of 70 degrees West longitude. The 100-net limit still applies in the portion of the Gulf of Maine (GOM) Regulated Mesh Area west of 70 degrees West longitude (Figure 1).

This exemption is a variation of an exemption we previously approved for Day gillnet vessels in the GOM. The original exemption allowed the use of 150 gillnets and the use of a single gillnet tag per net, as is currently allowed for sector vessels fishing in other areas. We withdrew approval of the original exemption in 2014 as part of the GOM cod emergency action (79 FR 67362; November 13, 2014) due to concerns about potential GOM cod catch from the additional gillnet effort. The new exemption approved in this action is more restrictive than the original exemption in several ways. The new exemption requires the use of larger mesh nets, limits the geographic scope of any additional nets, and does not modify tagging provisions for nets fished in the GOM. These restrictions were developed to reduce any additional impacts to GOM cod and address the concerns underlying our withdrawal of the original exemption.

This exemption does not change the 50-roundfish or “stand up” net limit in the GOM. Day gillnet vessels are still required to tag each roundfish net with two gillnet tags and each flatfish or “tied down” net with a single gillnet tag. We will not issue additional gillnet tags, so vessels must choose between fishing their full suite of roundfish nets or taking advantage of the extra nets available under this exemption. Keeping tagging provisions in place will maintain consistency and allow for better enforcement of the gillnet limits, including the 50-roundfish gillnet limit in the GOM and the overall 150-net limit. Sector vessels fishing under the exemption are also still required to comply with any regulatory measures designed to limit gear interactions with protected resources, such as the mandated use of pingers or weak-links.

Comments and Responses

We received two public comments on the proposed rule. One was a joint letter from the Northeast Seafood Coalition (NSC) and the Northeast Sector Service Network (NESSN). The other comment submitted was from a member of the fishing industry, but was not relevant to the proposed measures. NSC and NESSN also resubmitted their comments on the interim final rule which withdrew approval of NEFS 9 (82 FR 55522; November 22, 2017). Only comments that related to the proposed measures are addressed below.

Approval of a New Regulatory Exemption for Sectors

Comment 1: NSC and NESSN supported the approval of the new gillnet exemption as proposed. NSC and NESSN also state that the Day gillnet fishery in the GOM will benefit from the opportunity to better target monkfish, and state that they expect impacts to the monkfish resource to be minimal.

Response: We have granted the exemption, as proposed.

Changes From the Proposed Rule

This final rule does not include allocations for NEFS 7 or NEFS 9, which were included in the proposed rule. There are no other changes from the proposed measures made in this final rule.

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 determined that this rule is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This action is exempt from the procedures of Executive Order (E.O.) 12866.

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

Because this rule relieves several restrictions, the NMFS Assistant Administrator 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 May 1, 2018. If this action is not implemented by the start of the 2018 fishing year on May 1, 2018, sectors would not have allocations, and sector vessels would be unable to fish. Sector vessels would be prohibited from fishing for groundfish until this rule was finalized. This would result in significant negative economic impacts.

Permit holders make decisions about sector enrollment based largely on allocations to permits that are based on overall available catch. The sector allocations in this rulemaking are based on catch limits set by Framework 57, which incorporates information from updated stock assessments for the 20 groundfish stocks. The development of Framework 57 was timed to rely on the best available science by incorporating the results of the assessments. This information was not finalized, however, until mid-December 2017. By regulation, rosters are required to be submitted by December 1, unless we instruct otherwise. This year, we instructed sectors to provide roster information to us by March 26, 2018, instead of December 1, 2017. This later date was necessary to provide permit holders the opportunity to use the Framework 57 catch limit information to make more fully informed decisions of where they would enroll for this fishing year. Accommodating this need for information required us to delay publishing the proposed and final rules for this action and was unavoidable.

Sector exemptions relieve restrictions that provide operational flexibility and efficiency that help avoid short-term adverse economic impacts on North east multispecies sector vessels. 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 on any given trip. This flexibility increases efficiency and reduces costs. A delay in implementing this action would forego the flexibility and economic efficiency that sector exemptions are intended to provide. Additionally, a delay in this action would delay approval of a new exemption to increase fishing opportunities for monkfish. For all of these 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.