2023-05283. Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Approval of 2023 and 2024 Sector Operations Plans and Allocation of 2023 Northeast Multispecies Annual Catch Entitlements

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

We propose to approve sector operations plans and contracts, grant regulatory exemptions for fishing years 2023 and 2024, and propose Northeast multispecies allocations of annual catch entitlements to approved groundfish sectors for fishing year 2023. Approval of sector operations plans and contracts is necessary for sectors to operate and receive allocations of annual catch entitlements. 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 30, 2023.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NMFS-2023-0009 by the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov and enter NOAA-NMFS-2023-0009 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 from fishing years 2021-2022; the Sector Operations Plan Guide for Fishing Years 2023-2024, which includes NMFS recommended changes for final sector operations plans for fishing years 2023-2024, 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 Samantha Tolken at [e-mail]. These documents are also accessible via the Federal eRulemaking Portal: http://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:

Samantha Tolken, Fishery Management Specialist, [phone].

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. As long as at least three persons issued a Northeast multispecies permit meet these requirements, permit owners may have common ownership interests in other permits, vessels, or businesses associated with such permits. 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 approved 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 minimum codend mesh size restrictions for trawl gear when fishing in compliance with 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 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 (77 FR 16942; March 23, 2012) allowed a state-operated permit bank to receive an allocation without needing to comply with sector administrative and procedural requirements. 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 previously approved 16 sectors to operate in fishing years 2021 and 2022, and also approved 18 requested exemptions for sectors (87 FR 24875; April 27, 2022). Copies of the operations plans and contracts from fishing years 2021-2022, the Sector Operations Plan Guide for Fishing Years 2023-2024, which includes NMFS recommended changes for final sector operations plans for fishing years 2023-2024, 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 to approve sector operations plans and contracts, and grant regulatory exemptions for fishing years 2023 and 2024. This action also proposes 2023 allocations to the proposed approved sectors based on the specifications proposed by the New England Fishery Management Council in Framework Adjustment 65 to the FMP. NMFS will consider Framework Adjustment 65 in a separate rulemaking.

Operations Plan Submissions and Changes

Annually, we solicit operations plan submissions for consideration for approval. Twenty-two groundfish sectors are approved to receive catch allocations, 16 of which submitted operations plans and were approved to operate, received allocations, and were active in fishing year 2022. Two approved sectors did not submit operations plans in fishing year 2022. Additionally, four states are approved to operate permit banks and two, New Hampshire and Maine, did so in fishing year 2022. We received 16 sector operations plans for approval for fishing years 2023 and 2024, all of which were approved in previous fishing years. We did not receive any new operations plans for approval for fishing year 2023. As a result, we are not proposing to approve any additional sectors to operate in fishing year 2023 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 changes to their operations. Several sectors have requested changes related to at-sea monitoring (ASM) and electronic monitoring (EM), including adding revised NMFS-recommended language for the ASM, audit model EM, and maximized retention EM programs to their existing operations plans. Several sectors have requested changes to the list of previously-approved sector exemptions by removing their sector-specific Redfish exemption, which is now an approved universal sector exemption under Framework Adjustment 61 to the Northeast Multispecies FMP. We propose to approve these changes to existing sector operations plans for fishing years 2023 and 2024. We are publishing the fishing year 2021-2022 operations plans for review with this action, because final operations plans for fishing year 2023-2024 have not yet been submitted. The sectors' initial operations plans for fishing year 2023- 2024 request updates to NMFS-recommended language and minor administrative modifications. Due to the timing of sector operations plans submissions, they do not contain NMFS-recommended language for changes implemented in Northeast Multispecies FMP Amendment 23, however, these changes are expected to be made prior to any approval in a final rule. We are making the Sector Operations Plan Guide for Fishing Years 2023-2024 (2023-2024 Guide) available to the public as a supplemental document for review with this action. The 2023-2024 Guide includes the NMFS-recommended language for inclusion in the final operations plans. The changes in the recommended language comport with Amendment 23 requirements. The initial fishing years 2023-2024 operations plans submitted by sectors do not request substantial changes from fishing years 2021-2022 final operations plans.

Sector Allocations for Fishing Year 2023

This rule proposes 2023 ACE allocations to all sectors based on their 2022 sector rosters and the Council-recommended 2023 ACL for each stock in Framework Adjustment 65 to the Northeast Multispecies FMP. Framework Adjustment 65 is subject to Regional Administrator review and public comment separate from this rulemaking. If approved, NMFS expects to implement Framework Adjustment 65 and the 2023 ACLs early in the 2023 fishing year. If Framework Adjustment 65 is not implemented by May 1, 2023, we would allocate ACE based on default specifications and catch limits set by Framework Adjustments 61 and 63.

Sectors have not yet submitted 2023 sector rosters. Therefore, the 2022 sector rosters are the best available information to provide industry with ACE allocation estimates at this time. For fishing year 2023, the deadline for sectors to submit preliminary sector rosters for fishing year 2023 is three weeks after NMFS's announcement of the ASM coverage target, which we expect to announce sometime in March. Sectors may set a more restrictive enrollment deadline for their members. NMFS will use preliminary 2023 roster submissions to establish rosters and allocations in the final rule for this action. 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, but we note that significant changes have not typically occurred from year to year. Rosters published in the final rule may still not reflect the final ACE allocation for fishing year 2023 because all permits enrolled in a sector, and the vessels associated with those permits, have until April 30, 2023, to withdraw from a sector and fish in the common pool for fishing year 2023. Any changes to sector rosters after the final rule has published are expected to be minor and are not expected to lead to substantial changes in allocations.

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 2023. Tables 2 and 3 show estimates of the preliminary allocations that each sector will be allocated, in pounds and metric tons, respectively, for fishing year 2023, based on their fishing year 2022 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-ACLs are managed separately from sectors and do 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 2022 catch information for sectors in summer 2023. If there are fishing year 2022 overages, we will allow sectors to trade fishing year 2022 ACE for 2 weeks upon our completion of year-end catch accounting to reduce or eliminate any fishing year 2022 overages. If necessary, we will reduce any sector's fishing year 2023 allocation to account for a remaining overage in fishing year 2022. 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.

Exemptions Previously Granted for Fishing Years 2021 and 2022

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

We propose to grant exemptions from the following requirements for fishing years 2023 and 2024, 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 2021 and 2022

Exemptions	Rulemaking	Date of publication	Citation
1-2, 4-9	Fishing Year 2011 Sector Operations Final Rule	April 25, 2011	76 FR 23076.
10-11	Fishing Year 2012 Sector Operations Final Rule	May 2, 2012	77 FR 26129.
12-14	Fishing Year 2013 Sector Operations Interim Final Rule	May 2, 2013	78 FR 25591.
3, 15	Fishing Years 2015-2016 Sector Operations Final Rule	May 1, 2015	80 FR 25143.
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 Operations Final Rule	May 1, 2018	83 FR 18965.
Northeast Multispecies Federal Register documents can be found at http://www.greateratlantic.fisheries.noaa.gov/​sustainable/​species/​multispecies/​.

Exemption Requests in Fishing Year 2023

For fishing year 2023, sectors did not request any novel exemptions.

Classification

NMFS is issuing this rule pursuant to section 305(d) of the Magnuson-Stevens Act. Consistent with MSA section 305(d), this action is necessary to carry out the Northeast Multispecies FMP in accordance with the FMP's implementing regulations. These regulations require NMFS approval of operations plans for sectors to receive their ACE for specific groundfish stocks. The NMFS Assistant Administrator has 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 review under Executive Order 12866 because it contains no implementing regulations.

This proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

NMFS finds that a 15-day comment period provides a reasonable opportunity for public participation in this action pursuant to Administrative Procedure Act section 553(c) (5 U.S.C. 553(c)), while also ensuring that the final rule is in place for the start of the groundfish fishing year on May 1, 2023. Because sectors would not be approved to operate or receive allocations in this fishery until this final rule is in place, stakeholder and industry groups expect this rule to be implemented prior to May. This is an annual allocation process established under the FMP, and, as such, it does not raise novel concerns for stakeholders. A prolonged comment period and subsequent potential delay in implementation past the start of the 2023 fishing year would be both unnecessary 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 that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.

The proposed rule would approve sector operations plans for fishing years 2023 and 2024 and allocate ACE to the proposed approved sectors for fishing year 2023 (May 1, 2023, through April 30, 2024). Approved sectors are exempt from certain common pool effort control regulations (such as trip limits and days-at-sea), and instead fish under the sector provisions of the Northeast Multispecies FMP and their sector's harvest rules. As described below, this action is expected to have positive impacts on fishing vessels and permit holders.

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 2019 through 2021).

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 552 distinct business entities that hold at least one permit impacted by the proposed action. Of these, 544 are categorized as small entities and 8 are categorized as large entities, per NMFS guidelines.

This rule proposes to approve sector operations plans and contracts and grant regulatory exemptions for fishing years 2023 and 2024. This rule also proposes allocations of ACE to approved sectors for fishing year 2023 consistent with the FMP. The approval of sector operations plans for fishing years 2023 and 2024 and allocation of fishing year 2023 ACE to sectors will have a positive impact on all 552 entities (including the 544 small entities), as it will provide additional flexibility afforded by participating in the sector program, rather than fishing under the common pool effort control regulations. Sectors are not required to fish in accordance with requirements in the common pool effort control regulations, such as limits on days-at-sea, trip limits, gear restrictions, and closures intended to control overall fishing mortality, all of which also would be subject to in-season modifications and fishery closures based on industry-wide landings. This additional flexibility is expected to improve the efficiency and economic opportunities of vessels in the sector program.

For the reasons stated above, this proposed rule would 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: March 10, 2023.

Samuel D. Rauch, III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.