Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 61

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This action approves and implements Framework Adjustment 61 to the Northeast Multispecies Fishery Management Plan. This rule revises the status determination criteria for Georges Bank and Southern New England-Mid Atlantic winter flounder, implements a revised rebuilding plan for white hake, sets or adjusts catch limits for 17 of the 20 multispecies (groundfish) stocks, and implements a universal exemption for sectors to target Acadian redfish. This action is necessary to respond to updated scientific information and to achieve the goals and objectives of the fishery management plan. The final measures are intended to help prevent overfishing, rebuild overfished stocks, achieve optimum yield, and ensure that management measures are based on the best scientific information available.

DATES:

Effective July 27, 2021.

ADDRESSES:

Copies of Framework Adjustment 61, including the Environmental Assessment, the Regulatory Impact Review, and the Regulatory Flexibility Act Analysis prepared by the New England Fishery Management Council in support of this action, are available from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The supporting documents are also accessible via the internet at: http://www.nefmc.org/management-plans/northeast-multispecies or http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Liz Sullivan, Fishery Policy Analyst, phone: 978-282-8493; email: Liz.Sullivan@noaa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Summary of Approved Measures

2. Status Determination Criteria

3. Rebuilding Plan for White Hake

4. Fishing Year 2021 Shared U.S./Canada Quotas

5. Catch Limits for Fishing Years 2021-2023

6. Universal Sector Exemption for Acadian Redfish (Redfish)

7. Comments and Responses on Measures Proposed in the Framework 61 Proposed Rule

8. Changes From the Proposed Rule

1. Summary of Approved Measures

This action approves the management measures in Framework Adjustment 61 to the Northeast Multispecies Fishery Management Plan (FMP). The measures implemented in this final rule:

• Revise the status determination criteria (SDC) for Georges Bank (GB) and Southern New England/Mid-Atlantic (SNE/MA) winter flounder and provide the numeric estimates of the SDCs for these stocks, based on the peer review recommendations;
• Implement a revised rebuilding plan for white hake;
• Set fishing year 2021 shared U.S./Canada quotas for GB yellowtail flounder and eastern GB cod and haddock;
• Set 2021-2023 specifications, including catch limits, for nine groundfish stocks and adjust 2021-2022 allocations for seven other groundfish stocks; and
• Implement a universal exemption for sectors to target redfish.

2. Status Determination Criteria

The Northeast Fisheries Science Center conducted management track stock assessment updates in 2020 for nine groundfish stocks. This action revises SDCs for GB and SNE/MA winter flounder, and provides updated numerical estimates of these criteria, in order to incorporate the results of the 2020 stock assessments and based on the peer review recommendations from the 2020 stock assessments. Table 1 provides the revisions to the SDCs for GB and SNE/MA winter flounder, and Table 2 provides the resulting numerical estimates of the SDCs. While the numeric estimates are updated based on the revision to the SDCs, we are not changing the stock statuses for both stocks as a result of this update. We provided an explanation of the basis for the revision to the SDCs in the proposed rule (86 FR 33191, June 24, 2021), and it is not repeated here.

3. Rebuilding Plan for White Hake

Framework 61 revises the rebuilding plan for white hake, which we more fully described in the proposed rule and Appendix III of the Framework 61 Environmental Assessment (EA; see ADDRESSES for information on how to get this document). The approved rebuilding plan for white hake sets the fishing mortality (F) rate that is required to rebuild the stock (F_rebuild) at 70 percent of the fishing mortality rate associated with maximum sustainable yield (F_MSY) with an 87-percent probability of achieving the biomass associated with maximum sustainable yield (B_MSY) by 2031, the end of the rebuilding plan. As explained in more detail in Appendix III of the EA, the approved rebuilding plan accounts for the white hake's stock status, the needs of fishing communities, and the interaction of white hake with other multispecies in the groundfish fishery.

4. Fishing Year 2021 Shared U.S./Canada Quotas

Management of Transboundary Georges Bank Stocks

As described in the proposed rule, eastern GB cod, eastern GB haddock, and GB yellowtail flounder are jointly managed with Canada under the United States/Canada Resource Sharing Understanding. This action adopts shared U.S./Canada quotas for these stocks for fishing year 2021 based on 2020 assessments and the recommendations of the Transboundary Management Guidance Committee (TMGC) and consistent with the Council's Scientific and Statistical Committee (SSC) recommendations. The 2021 shared U.S./Canada quotas, and each country's allocation, are listed in Table 3. Detailed summaries of the assessments can be found at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/international-affairs/population-dynamics-international-collaboration.

The regulations implementing the U.S./Canada Resource Sharing Understanding require deducting any overages of the U.S. quota for eastern GB cod, eastern GB haddock, or GB yellowtail flounder from the U.S. quota in the following fishing year. Based on preliminary data through June 22, 2021, the U.S. fishery did not exceed its 2020 fishing year quota for any of the shared stocks. However, if final catch accounting for the 2020 fishing year indicates that the U.S. fishery exceeded its quota for any of the shared stocks, we will reduce the respective U.S. quotas for the 2021 fishing year in an adjustment action, as soon as possible in the 2021 fishing year. If any fishery that is allocated a portion of the U.S. quota exceeds its allocation and causes an overage of the overall U.S. quota, the overage reduction would be applied only to that fishery's allocation in the following fishing year. This ensures that catch by one component of the overall fishery does not negatively affect another component of the overall fishery.

5. Catch Limits for Fishing Years 2021-2023

Summary of the Catch Limits

This rule replaces default specifications as discussed in detail in the proposed rule and adopts catch limits for nine groundfish stocks for the 2021-2023 fishing years based on stock assessments completed in 2020, and fishing year 2021-2022 specifications for GB yellowtail flounder. Framework 59 (85 FR 45794; July 30, 2020) previously set 2021-2022 quotas for the 10 groundfish stocks not assessed in 2020, based on assessments conducted in 2019. This action includes minor adjustments for seven of these stocks for fishing years 2021-2022. The catch limits implemented in this action, including overfishing limits (OFL), acceptable biological catches (ABC), and annual catch limits (ACL), are listed in Tables 4 through 12. A summary of how these catch limits were developed, including the distribution to the various fishery components, was provided in the proposed rule and in Appendix II (Calculation of Northeast Multispecies Annual Catch Limits, FY 2021-FY 2023) to the EA, and is not repeated here. The sector and common pool sub-ACLs implemented in this action are based on fishing year 2021 potential sector contributions (PSC) and final fishing year 2021 sector rosters.

Sector Annual Catch Entitlements (ACE)

At the start of the 2021 fishing year, we allocated stocks to each sector, based on the catch limits set by prior frameworks. This rule updates the ACE allocated to sectors based on the catch limits approved in Framework 61, fishing year 2021 PSC, and final fishing year 2021 sector rosters. We calculate a sector's allocation for each stock by summing its members' PSC for the stock and then multiplying that total percentage by the commercial sub-ACL for that stock. The process for allocating ACE to sectors is further described in the final rule allocating ACE to sectors for fishing year 2021 (86 FR 22898; April 30, 2021) and is not repeated here. Table 13 shows the cumulative PSC by stock for each sector for fishing year 2021. Tables 14 and 15 show the ACEs allocated to each sector for fishing year 2021, in pounds and metric tons, respectively. We have included the common pool sub-ACLs in tables 13 through 15 for comparison.

6. Universal Sector Exemption for Acadian Redfish

This rule approves and implements a new universal sector exemption that allows sector vessels to target redfish within a defined area using a 5.5-inch (14.0-centimeter (cm)) mesh codend. Redfish is a healthy stock that sectors already harvest under a sector exemption that is evaluated and approved as part of the sector operations plan process annually or biennially. As part of this rule, we are also eliminating the current sector exemption for redfish, to prevent conflict and confusion between two very similar exemptions, consistent with the Council's intent to replace the current redfish sector exemption with a new universal redfish exemption for sectors.

The approved universal sector exemption expands the current redfish exemption area (Figure 1), creates two seasonal closures of the redfish exemption area, adds a 55-percent or greater annual redfish catch threshold, modifies the existing monthly catch and discard thresholds, and creates provisions that require sectors to be placed in probationary status and/or have their vessels prohibited from using the universal exemption if catch or discard thresholds are not met. The reporting and monitoring requirements of the universal exemption remain the same as the annually approved redfish exemption; however, those requirements are codified in regulation rather than detailed in sector operations plans. A complete description of the universal exemption is described in the proposed rule, and is not repeated here. The universal redfish exemption, instead of an annual sector exemption, is intended to increase stability for fishery participants and to improve Council oversight of the redfish fishery.

7. Comments and Responses on Measures Proposed in the Framework 61 Proposed Rule

We received comments on the Framework 61 proposed rule from Sustainable Harvest Sector (SHS), Northeast Sector Service Network (NESSN), Associated Fisheries of Maine (AFM), Conservation Law Foundation (CLF), and the New England Fishery Management Council. Only comments that were applicable to the proposed measures are addressed below.

General Comments on Framework 61

Comment 1: NESSN commented in support of NMFS waiving the cooling off period in order to ensure the fishery can continue to operate seamlessly between the default specifications and the implementation of this action. AFM also urged swift approval of the framework to prevent a disruption to the fishery due to the expiration of default specifications on July 31.

Response 1: We agree. For the reasons discussed in the Classification section of this final rule, the Assistant Administrator for Fisheries finds that there is good cause to waive the 30-day delayed effectiveness of this action.

Catch Limits for Fishing Years 2021-2023

Comment 2: CLF commented that NMFS should disapprove the catch limits for GOM cod and GB cod as proposed in Framework 61, because they will not rebuild the stocks. Additionally, CLF urged NMFS to take emergency action to implement interim measures for GOM cod.

Response 2: The OFLs and ABCs for GOM cod and GB cod were set by Framework 59, which was approved on July 28, 2020, and are not subject to approval or disapproval in this action. The changes to the specifications for all groundfish stocks were summarized in Table 4 of the proposed rule. For GOM cod, the only change under consideration in Framework 61 is an adjustment to the sub-components, which results in a change only to the sub-ACLs for the stock. For GB cod, Framework 61 is adjusting the sub-components, as well as setting a new U.S. ABC, but the total ABC and ACL are unchanged and were not subject to change in this action. The new U.S. ABC is due to a small decrease in the eastern GB cod TAC and a slight increase in the portion of this shared U.S./Canada quota that is allocated to the United States, consistent with the TMGC recommendations. To disapprove the changes as proposed in Framework 61 would mean the continuation of the sub-ACLs and sub-components, and of the U.S. ABC for GB cod, as set by Framework 59. Because the sub-ACLs and sub-components are adjusted based on the most recent catch data for state and other fisheries (see Appendix II of the EA for a full description of this process), disapproval of the proposed changes would result in specifications based on outdated information. Disapproval of the U.S. ABC for GB cod would go against the recommendations of the TMGC. Therefore, we are approving the proposed changes to the specifications of GOM cod and GB cod, which are based on the best scientific information available and consistent with National Standard 2. A request for emergency action would be considered separate from the Council's recommended measures in this action, and we are therefore not addressing it here.

Universal Sector Exemption for Acadian Redfish

Comment 3: SHS, NESSN, and AFM support the universal sector exemption for redfish. AFM cited an increase in the spring survey index for redfish between 2019 and 2021.

Response 3: We agree. For the reasons discussed in the preamble, we have approved the universal sector exemption for redfish as proposed. Data from the spring 2021 survey will be considered in the next stock assessment for redfish, which will be used to help evaluate the stock status and the performance and appropriateness of this universal exemption.

Comment 4: SHS and NESSN identified a typographical error in the regulatory text. In Table 14 to Paragraph (e)(1)(ii), the latitude of point H should be 42°00′ N, not 42°20′ N.

Response 4: We have corrected the coordinate in the final regulatory text as noted by SHS and NESSN.

Comment 5: SHS requested clarification regarding the timing of when a vessel must submit the redfish exemption fishing notification. Under the previous redfish exemption, the notification must be submitted by a vessel once inside the redfish exempted area. SHS asked whether this was also required under the proposed universal sector exemption.

Response 5: The commenter is correct that the previous redfish exemption required that vessels submit the notification once the vessel has entered the redfish exemption area, which is also the intent of the new universal redfish exemption. We have updated the regulatory text to make it clear that vessels must enter the redfish exemption area before sending the notification.

Comment 6: The New England Council commented regarding the use of the term “Northeast multispecies,” rather than the term “regulated multispecies and ocean pout,” in the regulatory text. Specifically, the Council questioned which term was more appropriate in the paragraph at 648.85(e)(1)(ii)(C), which states “No vessel may participate in the Redfish Exemption Program in any areas that are otherwise closed to fishing for Northeast multispecies or fishing with trawl gear, including but not limited to year-round closed areas, seasonal closed areas, or habitat closures.” The Council expressed concern that this language could be misinterpreted to mean that the universal sector exemption for redfish could not be used in areas where fishing for silver, red, and offshore hake is not permitted, and therefore the use of this term would limit the redfish exemption to a smaller area than what was proposed by the Council in Framework 61.

Response 6: We disagree that a change to the regulatory text is needed, but agree with the Council's intent for the redfish exemption. The regulation that the Council cited is intended to prevent vessels from fishing in closed areas such as regulatory-defined seasonal and permanent closed areas. NMFS does not include regulatory references to such areas in the noted paragraph because doing so would be complex—there are several different sections and paragraphs where these closed areas are included in the regulations. The regulations very clearly distinguish between closed areas and areas where minimum mesh sizes and broad area-based restrictions on fishing apply. As such, NMFS does not agree with the Council's concern that restrictions in the regulations on small-mesh fisheries represent “areas closed to Northeast multispecies fishing.” Vessels that fish for silver, red, and offshore hake are regulated by a series of exemptions to the Northeast Multispecies FMP. These exemptions allow vessels to be exempt from the minimum mesh size, provided the vessels operate in specific management areas and comply with seasonal closures and possession limits. However, harvest of these stocks is not limited to trips that fall under the small-mesh exemption. It would not be accurate to describe the areas outside the small-mesh exemption areas as being closed for silver, red, and offshore hake, but instead those areas are not open for use of small-mesh gear (unless otherwise exempted, such as through the universal sector exemption to target redfish). Therefore, we do not believe the broader term of “Northeast multispecies” limits the use of the universal sector exemption to areas that are open to the small-mesh exemption.

Comment 7: CLF expressed concern about increased bycatch of GB cod in the universal exemption area relative to the 2020 sector exemption area and that there is an insufficient analysis of the impacts of the universal exemption on GB cod. Based on its concerns, CLF commented that NMFS should disapprove the universal exemption as proposed until it has fully analyzed its potential impact.

Response 7: The Council conducted a thorough review of the proposed universal exemption relative to the smaller-sized exemption NMFS implemented through sector operations plans in fishing year 2020. The Council used the best available information for its consideration, which is reflected in the EA and appendices for Framework 61 (see ADDRESSES). Based on the available information, the impacts on groundfish species other than redfish resulting from the proposed universal exemption could be slightly negative compared to the current sector exemption. We expect GB cod catch in the universal exemption area to be very low based on the analysis, although possibly slightly higher than catch from the 2020 exemption area. All GB cod catch will still be attributed towards a sector's ACE and the total GB cod ACL. The analysis also notes a higher level of uncertainty with the annual sector exemption program (if NMFS were to disapprove the universal sector exemption in this action) as it could change from year to year and would use less restrictive performance measures to ensure targeting of redfish and reduced catch of other groundfish species. The universal exemption allows vessels to target the healthy redfish stock while maintaining controls to limit catch of other groundfish, including GB cod, to ensure that catch remains within the catch limits specified for each stock. NMFS has determined that the measure is consistent with the Magnuson-Stevens Act in part because it minimizes bycatch to the extent practicable while allowing opportunity to target a healthy groundfish stock. We therefore disagree that the measure should be disapproved.

Comment 8: CLF commented that if NMFS approves the universal sector exemption, it should require the Council to review the exemption after the next GB cod stock assessment rather than after the next redfish stock assessment. CLF noted that this review is necessary to be responsive to the state of the GB cod stock and to ensure that the exemption is not interfering with the ability to prevent overfishing and rebuild GB cod.

Response 8: We disagree that the redfish exemption should incorporate a review of the program following the next assessment of the GB cod stock rather than following the next redfish stock assessment. The review of the redfish exemption following the next redfish stock assessment will ensure that we are not allowing a directed fishery to target a stock with highly efficient gear if the stock is overfished or approaching an overfished condition, is experiencing overfishing, or is otherwise found to be in poor condition. We will evaluate the fishery based on performance standards and overall catch, including GB cod, on an ongoing basis through its monitoring of the fishery. Following assessments for all species and stocks, the Council and NMFS must consider all sources of fishing mortality. If the redfish exemption is a source of fishing mortality that needs to be addressed, the Council will need to consider modifications of the redfish exemption and any other sources of unacceptable fishing.

Comment 9: CLF commented that NMFS should require 100-percent at-sea monitoring on vessels taking redfish exemption trips to verify all catch—including discards.

Response 9: We disagree that trips taken using the universal sector exemption require 100-percent at-sea monitoring in fishing year 2021. We have set the at-sea monitoring coverage level for sectors to monitor their catch on sector trips including redfish exemption trips. The fishing year 2021 coverage level was set at the level that could be practicably achieved in 2021, while the Council continued work on Amendment 23. This coverage level provides data to monitor the sectors' performance in the universal exemption for both catch accounting and for the sectors to manage participating vessel's performance and catch. Amendment 23 proposes to increase the at-sea monitoring coverage level to 100 percent, and that action will undergo review and rulemaking beginning later this year.

8. Changes From the Proposed Rule

The proposed rule included sector and common pool sub-ACLs based on fishing year 2021 PSCs and final fishing year 2021 sector rosters, but did not include the PSCs and ACEs allocated to each sector. This rule includes this information at the sector level.

In the proposed rule, the regulatory text for Table 14 to Paragraph (e)(1)(ii) defined the latitude of point H as 42°20′ N. The latitude of point H has been updated to correctly specify 42°00′ N.

This rule makes a minor adjustment to the regulatory text of the reporting requirements for the universal redfish exemption to clarify that the redfish exemption fishing notification required prior to fishing under the new universal redfish exemption must be sent after a vessel has entered the redfish exemption area.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866. This final rule does not contain policies with federalism or takings implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

The Assistant Administrator for Fisheries finds that there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delayed effectiveness of this action. This action relies on the best available science to set 2021 catch limits for groundfish stocks and adopts several other measures to improve the management of the groundfish fishery. This final rule must be in effect by August 1, 2021, to capture fully the conservation and economic benefits of Framework 61 and avoid adverse economic impacts.

The development of Framework 61 began in June 2020. In October 2020, the Council voted to revise the Council's 2020 priorities and include a universal sector exemption for targeting redfish in the Framework 61 measures. While the Council took final action on the other Framework 61 measures on December 2, 2020, it did not take final action on the universal sector exemption until January 26, 2021. The groundfish fishing year began on May 1, 2021, and the framework was not formally submitted to NMFS until June 14, 2021. Given the timing of the Council process, the earliest we were able to publish a proposed rule for Framework 61 was on June 24, 2021.

A delay in implementation of this rule increases negative economic effects for regulated entities. Five stocks (redfish, Gulf of Maine winter flounder, Southern New England winter flounder, ocean pout, and wolffish), as well as the eastern portions of the GB cod and haddock stocks, which are jointly managed with Canada, did not have 2021 quotas set by a previous framework. A separate action implemented a default quota (35 percent of the 2020 quota) for these stocks that will be in effect only through July 31, 2021, and will significantly constrain fishing unless Framework 61 is implemented before that date. After July 31, the default quotas expire, at which point vessels would be prohibited from fishing in the waters of the Northeast until Framework 61 is effective. The default quotas are especially constraining the fishery in the Eastern U.S./Canada Area. The majority of fishing in that region occurs during summer primarily due to the seasonal geographic distribution of the stocks. Providing timely access to these stocks is also a potential safety issue. Vessels fish in the summer in the Eastern U.S./Canada Area (approximately 150-200 miles offshore) to avoid extremely dangerous weather in the winter, spring, and fall.

The 30-day delay in implementation for this rule is unnecessary because this rule contains no new measures (e.g., requiring new nets or equipment) for which regulated entities need time to prepare or revise their current practices. Fishermen who are subject to this action expect and need timely implementation to avoid adverse economic impacts. This action is similar to the process used to set quotas every 1-2 years, approves all items as proposed, and contains only quotas and minor adjustments to the management plan that were discussed at multiple noticed meetings where the public was provided opportunity to learn about the action, ask questions, and provide input into the development of the measures. Affected parties and other interested parties participated in this public process to develop this action and expect implementation as close to the beginning of the fishing year on May 1 as possible. In fact, we received a comment from the Northeast Sector Service Network urging the agency to waive the 30-day delay. While this action replaces the current annual sector exemption to target redfish with the universal sector redfish exemption, the universal sector exemption was developed in close collaboration with the industry. The additional operational flexibility and fishing opportunities that fishermen have become accustomed to and rely on remain in place under the universal sector exemption, without requiring changes to fishing practices.

Overall, a delay in implementation of this action would greatly diminish the benefits of these specifications and other approved measures. For these reasons, a 30-day delay in the effectiveness of this rule is impracticable and contrary to the public interest.

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 determination for this determination 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.

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 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 § 648.14, add paragraph (k)(21) to read as follows:

3. In § 648.85, add paragraph (e) to read as follows:

4. Amend § 648.87 by revising paragraphs (c)(2)(ii)(B) through (D) and adding paragraph (c)(2)(ii)(E) to read as follows: