[Federal Register Volume 87, Number 43 (Friday, March 4, 2022)]
[Proposed Rules]
[Pages 12416-12422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04643]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 220228-0063; RTID 0648-XX078]


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; 2022 Allocation of 
Northeast Multispecies Annual Catch Entitlements

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

ACTION: Proposed rule; request for comments.

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SUMMARY: We propose to approve allocations of annual catch entitlements 
to groundfish sectors for the 2022 fishing year and approve changes to 
previously approved sector operations plans. This rule also proposes to 
disapprove four novel sector exemption requests. The action is 
necessary because sectors must receive allocations in order to operate 
in fishing year 2022. This action is intended to allow limited access 
permit holders to continue to operate or form sectors, as authorized 
under the Northeast Multispecies Fishery Management Plan, and to exempt 
sectors from certain effort control regulations to improve the 
efficiency and economics of sector vessels.

DATES: Comments must be received on or before March 21, 2022.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2022-0026, by either of the following methods:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov 
and enter NOAA-NMFS-2022-0026 in the Search box. Click on the 
``Comment'' icon, complete the required fields, and enter or attach 
your comments.
    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 operations plan and contract, as well as 
the programmatic environmental assessment for sectors operations in 
fishing years 2015 to 2020 and other supporting documents are available 
from the NMFS Greater Atlantic Regional Fisheries Office (GARFO): 
Contact Kyle Molton at <a href="/cdn-cgi/l/email-protection#bdf6c4d1d893f0d2d1c9d2d3fdd3d2dcdc93dad2cb"><span class="__cf_email__" data-cfemail="8cc7f5e0e9a2c1e3e0f8e3e2cce2e3ededa2ebe3fa">[email protected]</span></a>. These documents are also 
accessible via the Federal eRulemaking Portal: https://www.regulations.gov.
    To review Federal Register documents referenced in this rule, you 
can visit: https://www.fisheries.noaa.gov/management-plan/northeast-multispecies-management-plan.

FOR FURTHER INFORMATION CONTACT: Kyle Molton, Fishery Management 
Specialist, (978) 281-9236.

SUPPLEMENTARY INFORMATION:

Background

    The Northeast Multispecies Fishery Management Plan (FMP) defines a 
sector as ``a group of persons holding limited access Northeast 
multispecies 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.'' A 
sector must be comprised of at least three Northeast multispecies 
permits issued to at least three different persons, none of whom have 
any common ownership interest in the permits, vessels, or businesses 
associated with the permits issued [to] the other two or more persons 
in that sector. Sectors are self-selecting, meaning participation is 
voluntary, and each sector can choose its members.
    The Northeast multispecies sector management system annually 
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; portions of the Gulf of Maine (GOM) Cod 
Protection Closures; 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); and the 
requirement to use a 6.5-inch (16.5-cm) mesh codend when fishing under 
the provisions of the Redfish Exemption Program. The FMP allows the 
Council to add universal exemptions using the framework adjustment 
procedure. Sectors may request additional exemptions annually as part 
of their sector operations plans to increase flexibility and fishing 
opportunities. Sectors are prohibited from requesting exemptions from 
permitting restrictions, gear restrictions designed to minimize

[[Page 12417]]

habitat impacts, and most reporting requirements.
    In addition to the sectors, there are several state-operated permit 
banks that each receive an allocation based on the fishing history of 
permits they hold. 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 NMFS, as specified in the 
permit bank's Memorandum of Agreement between NMFS and the state. These 
permits are not assigned to active vessels; instead, the allocations 
associated with the permits may be leased to vessels enrolled in 
sectors. State-operated permit banks contribute to the total allocation 
under the sector system.
    We have previously approved 16 sectors to operate in fishing years 
2021 and 2022 and also approved 19 requested exemptions for sectors (86 
FR 22898; April 30, 2021). Because all approved operations plans cover 
two fishing years, approved sectors may continue operations and the 
approved exemptions in fishing year 2022. Copies of the operations 
plans and contracts, the environmental assessment (EA), and other 
supporting documents are available at: https://www.fisheries.noaa.gov/species/northeast-multispecies and from NMFS (see ADDRESSES). This 
action proposes 2022 allocations to sectors based on the specifications 
proposed by the New England Fishery Management Council in Framework 
Adjustment 63 to the FMP. This action also proposes several changes to 
already approved sector operations plans and proposes to deny four 
requests for novel sector exemptions.

Operations Plan Submissions and Changes

    Annually, we solicit operations plan submissions for consideration 
for approval; however, sectors already approved to operate in fishing 
years 2021 and 2022 were not required to submit operations plans for 
2022. We did not receive any new operations plans for approval for 
fishing year 2022. As a result, we are not proposing to approve any 
additional sectors to operate in fishing year 2022 beyond those 
previously approved.
    Although no new operations plans were submitted we did receive 
several requests to modify existing sector operations plans that we 
propose to approve. Sectors may request changes to operations plans as 
needed to implement administrative changes to their operations. Several 
sectors have requested changes related to electronic monitoring (EM), 
including adding audit model EM plans to their existing operations 
plans, updates to methods used to estimate discards, and revised 
language authorizing the sharing of confidential data to support EM 
program operations. Additionally, several sectors requested 
modifications that would add NMFS-approved maximized retention 
electronic monitoring (MREM) program language to their sector 
operations plans. The addition of MREM language would allow for a more 
seamless transition to MREM for sectors vessels should it be approved 
for operation for all sectors in fishing year 2022. Several sectors 
also requested operations plan modifications to add a description of a 
gear conflict reduction agreement that sector members have agreed to in 
order to limit gear conflicts between sector groundfish and lobster 
vessels. We propose to approve these changes to existing sector 
operations plans.

Sector Allocations for Fishing Year 2022

    This rule proposes 2022 ACE allocations to all sectors based on 
their 2021 sector rosters, as sectors have not yet submitted 2022 
rosters. The preliminary allocations will be based on the expected 2022 
ACL for each stock. Because sectors are operating under 2-year 
operations plans for fishing years 2021 and 2022, these allocations 
would allow vessels enrolled in sectors to operate under their existing 
operations plan, as approved.
    For fishing year 2022, we set a deadline for sectors to submit 
preliminary sector rosters by February 28, 2022, in order to determine 
rosters for final rulemaking and allocations. Sectors may set a more 
restrictive enrollment deadline for their members. Any changes in 
sector rosters will be reflected in ACE allocations in the final rule; 
roster changes may result in significant changes in sector allocations. 
Rosters published in the final rule may still not reflect the final ACE 
allocation for fishing 2022 because all permits enrolled in a sector, 
and the vessels associated with those permits, have until April 30, 
2022, to withdraw from a sector and fish in the common pool for fishing 
year 2022.
    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 1 shows the preliminary projected total PSC for 
each sector by stock for fishing year 2022. Tables 2 and 3 show an 
estimate of the preliminary allocations that each sector will be 
allocated, in pounds and metric tons, respectively, for fishing year 
2022, based on their fishing year 2021 rosters. We provide the 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 including ACE transfers, reductions for overages, or 
increases for carryover, to monitor sector catch. The common pool sub-
ACLs are also included in each of these tables. The common pool sub-ACL 
is managed separately from sectors and does not contribute to available 
ACE for leasing or harvest by sector vessels.
    We do not assign a permit separate PSCs for the Eastern GB cod or 
Eastern GB haddock; instead, we assign each permit a PSC for the GB cod 
stock and GB haddock stock. Each sector's GB cod and GB haddock 
allocations are then divided into an Eastern ACE and a Western ACE, 
based on each sector's percentage of the GB cod and GB haddock ACLs. 
For example, if a sector is allocated 4 percent of the GB cod ACL, the 
sector is allocated 4 percent of the commercial Eastern U.S./Canada 
Area GB cod total allowable catch (TAC) as its Eastern GB cod. 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.
    We expect to finalize 2021 catch information for sectors in summer 
2022. We will allow sectors to transfer fishing year 2021 ACE for two 
weeks upon our completion of year-end catch accounting to reduce or 
eliminate any fishing year 2021 overages. If necessary, we will reduce 
any sector's fishing year 2022 allocation to account for a remaining 
overage in fishing year 2021. Each year we notify the Council and 
sector managers of this deadline and announce this decision on our 
website at: https://www.fisheries.noaa.gov/species/northeast-multispecies.
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Exemptions Previously Granted for Fishing Years 2021 and 2022

Previously Granted Exemptions for Fishing Years 2021 and 2022 (1-18)

    We have already granted exemptions from the following requirements 
for fishing years 2021 and 2022, 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) prohibition on 
combining small-mesh exempted fishery and sector trips in southern New 
England (SNE); (16) extra-large mesh requirement to target dogfish on 
trips excluded from at-sea monitoring (ASM) in SNE and Inshore GB; (17) 
requirement that Handgear A vessels carry a Vessel Monitoring System 
(VMS) unit when fishing in a single broad stock area; and (18) limits 
on the number of gillnets for Day gillnet vessels in the GOM. We also 
approved an exemption from the 6.5-inch (16.5-cm) minimum mesh size 
requirement for trawl nets to allow a 5.5-inch (14.0-cm) codend on 
directed redfish trips, however, that exemption was eliminated in 2021 
when we approved a new universal sector exemption for redfish as part 
of Framework Adjustment 61 (86 FR 40353; July 28, 2021). A detailed 
description of the previously granted exemptions and supporting 
rationale can be found in the applicable final rules identified in 
Table 4 below.

                     Table 4--Exemptions Previously Granted for Fishing Years 2020 and 2021
----------------------------------------------------------------------------------------------------------------
            Exemptions                    Rulemaking           Date of publication             Citation
----------------------------------------------------------------------------------------------------------------
1-2, 4-9.........................  Fishing Year 2011 Sector  April 25, 2011.........  76 FR 23076
                                    Operations Final Rule.
10-11............................  Fishing Year 2012 Sector  May 2, 2012............  77 FR 26129
                                    Operations Final Rule.
12-14............................  Fishing Year 2013 Sector  May 2, 2013............  78 FR 25591
                                    Operations Interim
                                    Final Rule.
3, 15............................  Fishing Years 2015-2016   May 1, 2015............  80 FR 25143
                                    Sector Operations Final
                                    Rule.
16...............................  Framework 55 Final Rule.  May 2, 2016............  81 FR 26412
17...............................  Amendment 18 Final Rule.  April 21, 2017.........  82 FR 18706
18...............................  Fishing Year 2018 Sector  May 1, 2018............  83 FR 18965
                                    Operations Final Rule.
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Northeast Multispecies Federal Register documents can be found at http://www.greateratlantic.fisheries.noaa.gov/sustainable/species/multispecies/ sustainable/species/multispecies/.

Exemption Requests We Do Not Propose To Approve in Fishing Year 2022

    For fishing year 2022, sectors requested a total of four new 
exemptions, two related to extra-large mesh gillnets and EM, and two 
related to MREM and existing universal exemptions. We are proposing to 
deny the new sector exemption requests for fishing year 2022.

Sector Exemptions Related to Extra-Large Mesh Gillnets and Electronic 
Monitoring

    We received two sector exemption requests that would grant 
exemptions from EM requirements for vessels fishing with gillnets with 
a minimum mesh size of 10-inch (25.4-cm) or larger. One would exempt 
vessels from the requirement to operate EM systems on trips using 10-
inch (25.4-cm) or larger mesh gillnets in the Inshore Georges Bank and 
Southern New England Broad Stock Areas. The other would exempt vessels 
from the requirement to operate EM systems on trips using 10-inch 
(25.4-cm) or larger mesh gillnets in all broad stock areas.
    The exemption applying only to the Inshore Georges Bank and 
Southern New England Broad Stock Areas would be similar to the 
operation of vessels using ASM to meet their monitoring requirements. 
Vessels using exclusively 10-inch (25.4-cm) or larger mesh gillnets in 
the Inshore Georges Bank and Southern New England Broad Stock Areas are 
not required to carry an ASM. However, neither exemption is consistent 
with the sector audit model EM program, which requires the operation of 
EM systems on all trips, whether or not they are required to carry an 
ASM. This is necessary to eliminate bias and ensure the appropriate 
application of EM video review. Exempting vessels from EM requirements 
in the manner requested under these exemptions would undermine the 
effectiveness of the EM programs. Additionally, in the case of the 
exemption request applying to all broad stock areas, there is no 
equivalent waiver from ASM coverage at this time. Past data reviews 
that supported removing the ASM requirement for extra-large mesh 
gillnet trips in the Inshore Georges Bank and Southern New England 
Broad Stock Areas found higher catches of groundfish in extra-large 
mesh gillnets in other broad stock areas. As a result, we are proposing 
to deny both of these exemption requests.

Sector Exemptions Related to Maximized Retention Electronic Monitoring

    We received two other novel sector exemption requests that would 
grant mesh size exemptions to sector vessels fishing under MREM. One 
would authorize the use of 4.5-inch (11.4-cm) mesh codends by MREM 
vessels when fishing under the provisions of the Redfish Exemption 
Program. The other would authorize the use of 5.1-inch (13.0-cm) mesh 
codends by MREM vessels when fishing on Georges Bank with haddock 
separator or Ruhle trawl. Both exemptions are based on activities 
currently authorized under an exempted fishing permit (EFP) that is 
allowing several vessels to test the use of MREM in the groundfish 
fishery. Both exemptions would allow MREM vessels fishing under 
universal sector exemptions to fish with mesh smaller than that 
otherwise allowed by regulation. The Redfish Exemption Program 
universal exemption allows trawl vessels to target redfish using a 5.5-
inch (14.0-cm) codend under certain conditions, while the other 
universal exemption allows vessels fishing on Georges Bank with a 
haddock separator or Ruhle trawl to use a 6.0-inch (15.2-

[[Page 12422]]

cm) codend. The sectors requesting these smaller mesh exemptions hope 
to increase the harvest of Acadian redfish and Georges Bank haddock and 
suggest that vessels using the exemptions will have minimal bycatch of 
non-target stocks while being accountable for all catch.
    We do not have sufficient information to support approval of these 
sector exemption requests at this time. While several vessels have been 
testing the use of the smaller meshes under a MREM EFP, there is still 
insufficient catch data for an in-depth analysis of catch composition 
comparing catch by mesh authorized under the universal exemptions and 
the mesh sizes sectors have requested. Initial findings suggest that 
there may not be substantial benefits from using smaller mesh and 
indicate the possibility of higher catch of some non-target stocks, 
including white hake and ocean pout which are both overfished and in a 
rebuilding plan. It will likely be necessary to collect additional 
data, potentially under an EFP or other cooperative research, to more 
thoroughly evaluate the potential impacts of approving either of these 
exemptions.
    We are also concerned that both of these exemptions would directly 
modify, for a subset of sector vessels, the provisions of universal 
sector exemptions developed by the Council. Universal exemptions are 
management provisions that are set in regulation. Amendment 16 to the 
FMP provided that listed universal exemptions should be modified or 
removed under a framework adjustment to the FMP in order to minimize 
sector and NMFS' administrative burden. It is unclear if the Council 
intended for GARFO to have the authority to modify universal 
exemptions, but we maintain that changes to universal exemptions should 
be made by the Council. This is consistent with the recently adopted 
universal redfish exemption, which has been in place for less than one 
year, was developed by the Council with the intent of increasing 
Council oversight over the redfish exemption. These exemption requests 
seek to change provisions of the universal exemptions outside the 
framework adjustment process. As a result of these circumstances we 
proposing to deny both of these novel sector exemptions.

Classification

    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 action is exempt from the procedures 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 that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    The proposed rule would allocate ACE to sectors for fishing year 
2022 (May 1, 2022, through April 30, 2023) and would make minor 
modifications to existing sector operations plans. Approved sectors are 
exempt from certain effort control regulations, like trip limits and 
days-at-sea, and fish under the sector provisions of the Northeast 
Multispecies FMP and their sector's harvest rules. This action is 
expected to have positive impacts on fishing vessels and purchasers of 
seafood products.
    For Regulatory Flexibility Act 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 three years for which data are available (from 2018 
through 2020).
    To participate in the Northeast Multispecies Sector Program, 
vessels must possess a limited access multispecies permit and operate 
as a member of a sector. Therefore, entities holding one or more 
limited access multispecies permits are the entities that have the 
potential to be directly impacted by this action. Ownership data 
collected from permit holders indicates that there are 579 distinct 
business entities that hold at least one permit impacted by the 
proposed action. Of these, 577 are categorized as small entities and 2 
are categorized as large entities, per NMFS guidelines.
    The allocation of fishing year 2022 annual catch entitlement to 
groundfish sectors will have a positive impact on all 577 entities, as 
it will allow them to participate in the sector groundfish fishery 
rather than fish under the common pool effort control 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 and fishery closures based on industry-wide 
landings. Conversely, the ability to participate in the sector fishery 
would provide increased efficiency and flexibility to fishing 
businesses.
    This action would provide preliminary ACE to previously approved 
groundfish sectors for fishing year 2022.
    The proposed rule will not have a significant economic impact on a 
substantial number of small entities. As a result, an initial 
regulatory flexibility analysis is not required and none has been 
prepared.

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

    Dated: February 28, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2022-04643 Filed 3-3-22; 8:45 am]
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