Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Proposed Rule To Allow Northeast Multispecies Sector Vessels Access to Year-Round Closed Areas, 41772-41780 [2013-16644]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 133 (Thursday, July 11, 2013)]
[Proposed Rules]
[Pages 41772-41780]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16644]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 697

[Docket No. 130319263-3577-01]
RIN 0648-BD09


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; Proposed Rule To Allow 
Northeast Multispecies Sector Vessels Access to Year-Round Closed Areas

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This rule proposes to partially reopen several groundfish 
closed areas in the 2013 fishing year. If implemented as proposed, this 
action would open portions of Closed Areas I and II to selective 
fishing gear for a limited time period. Two areas within the Nantucket 
Lightship Closed Area are also proposed to be opened to selective gear 
year-round. The Western Gulf of Maine and Cashes Ledge Closed Areas, 
both located in the Gulf of Maine, would not be opened.

DATES: Written comments must be received on or before July 26, 2013.

ADDRESSES: A copy of the accompanying environmental assessment is 
available from the NMFS Northeast Regional Office: John K. Bullard, 
Regional Administrator, National Marine Fisheries Service, 55 Great 
Republic Drive, Gloucester, MA 01930. These documents are also 
accessible via the Federal eRulemaking Portal: https://www.regulations.gov.
    You may submit comments on this document, identified by NOAA-NMFS-
2013-0084, by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0084, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Fax: (978) 281-9135, Attn: William Whitmore.
     Mail: Paper, disk, or CD-ROM comments should be sent to 
John K. Bullard, Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the 
outside of the envelope: ``Comments on Closed Area Rule.''
    Instructions: All comments received are part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. No comments will be posted for public viewing until after the 
comment period has closed. All Personal Identifying Information (for 
example, name, address, etc.) voluntarily submitted by the commenter 
may be publicly accessible. Do not submit Confidential Business 
Information or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter N/A in the required fields, if you 
wish to remain anonymous). You may submit attachments to electronic 
comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file 
formats only.
    Once submitted to NMFS, copies of addenda to fishing year 2013 
sector operations plans detailing industry-funded monitoring plans, and 
the environmental assessment (EA), will be available from the NMFS NE 
Regional Office at the mailing address above.

FOR FURTHER INFORMATION CONTACT: William Whitmore, Fishery Policy 
Analyst, phone (978) 281-9182, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    Amendment 16 to the Northeast Multispecies Fisheries Management 
Plan (groundfish plan) includes several universal regulatory exemptions 
that apply to all groundfish sectors. Sectors can also request 
additional regulatory exemptions in their annual sector operations 
plans. These exemptions are reviewed and approved by the National 
Marine Fisheries Service (NMFS) on an annual basis. For additional 
information on sector exemptions, the process for approving sector 
exemptions, and a description of current sector exemptions, please see 
the final rule for fishing year 2013 sector operations plans (78 FR 
25591, May 2, 2013).
    Amendment 16 also prohibited sectors from requesting exemptions 
from certain regulations, including exemptions from year-round closed 
areas. Some year-round closed areas were established as effort controls 
to reduce fishing mortality. Other year-round closed areas were 
established to protect essential fish habitat. In an attempt to 
mitigate the impacts of the low catch limits for fishing year 2013, the 
New England Fishery Management Council (Council) included a measure in 
Framework Adjustment 48 that would allow sectors to request regulatory 
exemptions to the year-round closed areas that were established for 
mortality reductions.
    On May 3, 2013, NMFS partially approved Framework 48 (78 FR 26118), 
including the Framework 48 provision allowing sectors to request access 
to year-round mortality closure areas. Anticipating that Framework 48 
would be approved, sectors included exemption requests from year-round 
closure areas in their initial 2013 operations plan submissions. 
Exemption requests are only approved after we determine that the 
exemption is consistent with the groundfish plan's goals and 
objectives. For additional information on which areas sectors can 
request exemptions from, please see the final rule implementing 
Framework 48 (78 FR 26118, see page 26131).
    Anticipating that Framework 48 would be approved, sectors included 
exemption requests from year-round closure areas in their initial 2013 
operations plan submissions. These exemption requests are being 
developed in a separate action from the final rule for fishing year 
2013 sector operations plans to provide sufficient time for the 
extensive analyses needed for this action. Table 1 indicates which 
sectors requested access to particular closed areas in their initial 
fishing year 2013 operations plans.
    These closed area exemption requests are being considered as 
amendments to the sector operations plans in this action. Because the 
environmental assessment analyzes the potential effort and associated 
environmental impacts from all sectors fishing in the proposed areas, 
any sector could request access to any of the areas, if approved.

[[Page 41773]]

[GRAPHIC] [TIFF OMITTED] TP11JY13.000

    The Council's Closed Area Technical Team (CATT) was asked by the 
Council to research and recommend potential changes to the groundfish 
mortality closures for the upcoming Omnibus Essential Fish Habitat 
(EFH)

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Amendment. The CATT conducted many analyses on the potential benefits 
derived from the current year-round groundfish closed areas, as well as 
how the area closures could be modified to improve protection of 
groundfish habitat or protection of groundfish during critical life 
stages. The group began by conducting a comprehensive literature and 
data review of groundfish closed areas--these data served as the basis 
for the analysis used in the Framework 48 environmental assessment.
    The CATT then attempted to identify areas where groundfish spawn, 
as well as areas that are critical to juvenile habitat. Currently, the 
CATT is attempting to take those data and identify groundfish closure 
areas that would provide the greatest benefit to groundfish stocks in 
need of rebuilding. Much of the research by the CATT is incorporated 
into the environmental assessment for this action. We are considering 
recent scientific analyses, including work by the CATT, in determining 
whether or not allowing sector vessels some access to these year-round 
closure areas is consistent with the goals and objectives of the 
groundfish plan while still protecting essential fish habitat 
management areas. The analyses developed by the CATT were reviewed and 
endorsed by the Council's Scientific and Statistical Committee on May 
16, 2013.
    Using the CATT's analyses and other information, this proposed rule 
evaluates the impacts of any actual fishing effort in these mortality 
closure areas, including the concerns raised in public comments during 
the development of Framework 48. The Council believes, and we agree, 
that proposing access to the closed areas through a separate sector 
exemption review and approval process provides a better opportunity to 
address specific concerns with the potential impact of actual sector 
proposals. This is primarily because the NMFS Regional Administrator 
may include stipulations and constraints on specific exemptions to 
facilitate the monitoring and enforcement of sector operations or as 
mitigation measures to address specific potential impacts. In fact, the 
three measures proposed in this rule include additional constraints to 
mitigate impacts on groundfish stocks and protected resources. We want 
to ensure that any exemptions that are granted are consistent with the 
goals and objectives of the groundfish plan.
    As previously mentioned, the Council is also in the process of 
preparing an Essential Fish Habitat (EFH) Omnibus Amendment to several 
fishery management plans, including the groundfish plan. The Omnibus 
Amendment currently includes a review and update of EFH requirements 
and EFH management area designations, a review and update of Habitat 
Area of Particular Concern (HAPC) designations, a review of other EFH 
requirements of fishery management plans, including prey species 
information and non-fishing impacts, and alternatives to minimize the 
adverse effects of fisheries on EFH. Because there is considerable 
spatial overlap between the groundfish mortality closed areas and the 
current habitat areas that are closed to bottom tending mobile gears, a 
review of the groundfish mortality closures is also included in the 
Omnibus Amendment. Currently, it is anticipated that the Omnibus 
Amendment will be completed by May 2014, and potentially implemented by 
the end of 2014. While the measures proposed in this rule are only for 
the 2013 fishing year, it is likely that the current closed areas will 
be modified sometime during the 2014 fishing year as a result of the 
Omnibus Amendment. Additional information on the Habitat Omnibus 
Amendment, including a map and descriptions of the proposed closed area 
modification can be found on the Council's Web site at https://nefmc.org/habitat/.
    A variety of concerns about the impacts from opening these areas 
have been expressed by fishery managers, members of the fishing 
industry, and the public, including many environmental non-governmental 
organizations. Most of these comments were provided during the public 
comment periods for the fishing year 2013 sector operations plans and 
Framework 48 proposed rules. Many comments were also sent to us during 
the development of Framework 48. Concerns were raised about potential 
impacts to protected species, spawning groundfish, and to other 
commercial species, like lobsters, that may result from opening these 
areas to new fishing effort. Some commenters also were worried that 
allowing groundfish vessels into these areas, mainly Closed Area II, 
could increase gear conflicts between mobile and lobster gear. Other 
commenters expressed concern that opening the closed areas could 
undermine current rebuilding efforts for stocks that are overfished or 
undergoing overfishing. Some commenters stated that this measure could 
undermine measures under consideration in the Omnibus EFH Amendment, as 
described above. The Council attempted to mitigate these concerns by 
excluding existing and potential habitat closed areas from 
consideration in Framework 48 to preserve the process under way to 
evaluate these areas in the Omnibus EFH Amendment. The Council also 
included seasonal restrictions on sector exemptions to reduce 
interactions with spawning stocks. We are attempting to further 
mitigate these concerns by only allowing seasonal access to specific 
areas with selective fishing gears. Selective fishing gear, such as a 
haddock separator trawl, allows a vessel to better target a specific 
species when compared to a standard bottom otter trawl. Selective 
fishing gear allows a vessel to reduce its catch of non-target species, 
which in turn reduces bycatch and lowers the sector's discard rate.
    This action proposes granting seasonal access into portions of 
Closed Areas I and II to sector vessels fishing selective gears (see 
Figure A). This action also proposes granting access to portions of the 
Nantucket Lightship Closed Area for vessels fishing selective gears for 
the remainder of the 2013 fishing year. In addition, to prevent harbor 
porpoise takes, vessels fishing in the western portion of Nantucket 
Lightship Closed Area would be required to use pingers, as stipulated 
in the Harbor Porpoise Take Reduction Plan (which can be found online 
at https://www.nero.noaa.gov/protected/porptrp/). Each of the four areas 
proposed could be approved independently of the others. It is hoped 
that allowing carefully designed access to these areas will allow 
vessels to increase their catch of under-harvested groundfish stocks 
(such as Georges Bank haddock and pollock) and healthy non-groundfish 
stocks (such as monkfish, dogfish, and skates), while minimizing 
impacts to recovering groundfish stocks and protected resources.
    We believe that this proposed rule is consistent with the goals and 
objective of Amendment 16 to the groundfish plan (for a complete list 
of the Amendment 16 goals and objectives, see page 67 of the Amendment 
16 environmental impact statement). This proposed rule would provide 
reasonable and regulated access to regulated groundfish (Goal 5). This 
rule would allow sector vessels additional opportunities to increase 
their catch while constrained by an annual catch limit (Objectives 1 
and 3). By restricting vessels to specific areas, gears, and seasons, 
this rule minimizes vessel bycatch. Habitat impacts from fishing would 
be minimized to the extent practicable because the areas were 
determined to have low vulnerability (Objectives 9 and 10). The 
considerations in this rule would allow

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vessels increased opportunity to meet optimum yield while constraining 
fishing mortality. The increased profits would benefit fishermen and 
fishing communities while the gear restrictions would continue to allow 
overfished stocks to rebuild.
    This action does not propose to grant sector vessels access to 
either the Western Gulf of Maine or Cashes Ledge year-round closed 
areas. There has been little public or industry support for opening the 
Gulf of Maine areas, and analyses indicate that access to these areas 
would not provide greater opportunity to target healthy stocks than 
areas already open. Moreover, preliminary analyses indicate that 
allowing access to Gulf of Maine non-habitat closed areas may have 
negative impacts on depleted and recovering stocks of groundfish, such 
as Gulf of Maine cod and haddock, and protected harbor porpoise.
[GRAPHIC] [TIFF OMITTED] TP11JY13.001

1. Closed Area I Exemption Area

    Closed Area I was closed year-round to groundfish fishing in 1994 
to protect Georges Bank cod and haddock. If this proposed provision is 
implemented, the central portion of Closed Area I would be opened 
seasonally to selective gear only from the date the final rule is 
published through December. It is anticipated that, if this provision 
is implemented, the final rule would be published and effective in 
August. Trawl vessels would be restricted to selective trawl gear, 
including the separator trawl, the Ruhle trawl, the mini-Ruhle trawl, 
rope trawl, and any other gear authorized by the Council in a 
management action. Hook gear would be permitted in this area as well. 
Because Georges Bank cod is considered overfished and subject to 
overfishing and gillnets cannot selectively capture haddock without 
catching cod, vessels would be prohibited from fishing with gillnets in 
this area. Flounder nets would be prohibited, as Georges Bank 
yellowtail flounder are considered overfished and subject to 
overfishing.
    Allowing vessels into the Closed Area I Exemption Area would 
increase their opportunities to target healthy stocks of Georges Bank 
haddock. Since the closure, Georges Bank haddock have rebounded and are 
healthy. In fact, during fishing year 2012, less than 10 percent of the 
Georges Bank haddock quota was harvested. On the other hand, Georges 
Bank cod and Georges Bank yellowtail flounder are overfished and 
subject to overfishing. This proposed action would allow fishing for 
Georges Bank haddock and other healthy stocks

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while selective gear will help minimize catch of Georges Bank cod and 
yellowtail flounder.
    Selective gear is required to reduce bycatch of overfished stocks 
such as Georges Bank yellowtail flounder and cod. Although the Council 
specified that vessels could fish in the area until February 15, we are 
proposing to prohibit vessels from fishing in the Closed Area I 
Exemption Area after December 31 to avoid impacts to spawning stocks of 
Georges Bank cod.
    Except for a special access program that allows hook vessels to 
fish in a portion of the area), the portion of Closed Area I proposed 
to be reopened in this rule has been a part of the Scallop Access Area 
Rotational Management Program since 2004. As a result, the seabed in 
this area has been disturbed by scallop dredges and is not a preserved 
habitat area. Furthermore, analyses for the Habitat Omnibus Amendment 
did not identify this area as vulnerable to trawl gear. There are 
minimal concerns regarding impacts to protected species in this area. 
While there were initial concerns about effort shifts from lobster gear 
in the area, an analysis of lobster effort in the area indicates that 
there is very little lobster effort in this area. Because of this, it 
is not anticipated that lobster gear displaced from this area would 
result in increased interactions with protected species. More 
information on lobster effort in the proposed areas is available in the 
accompanying environmental assessment.

2. Closed Area II Exemption Area

    Closed Area II was closed year-round to groundfish fishing in 1994 
to protect Georges Bank cod and haddock. If approved, the central 
portion of Closed Area II would be opened seasonally to selective gear 
only through December 31, 2013. The gear restrictions in Closed Area II 
are the same as those proposed for Closed Area I--selective trawl and 
hook gear only. Trawl and hook vessels would be permitted in this area 
when specified (see below). Vessels would be prohibited from fishing 
with gillnets in Closed Area II. Flounder nets would be prohibited. As 
noted above, in the time since the closure, Georges Bank haddock has 
fully recovered, is rebuilt and is consistently under-harvested. 
Selective gear is proposed to minimize the catch of Georges Bank cod 
and yellowtail flounder, both of which are considered overfished and 
subject to overfishing.
    Only the central portion of Closed Area II is proposed to be 
reopened because the northern portion represents a habitat area of 
particular concern (HAPC) and the southern portion is the Closed Area 
II Yellowtail Flounder/Haddock Special Access Program area. There is no 
need to grant sector vessels access to the southern portion of Closed 
Area II through this rule because the fishing year 2013 sector rule 
already granted sector vessels an exemption to fish in this area 
through December 31, 2013. We also extended the Eastern United States/
Canada Haddock SAP, which occurs in the northern tip of Closed Area II 
from May 1 through December 31, 2013 (see 78 FR 25599-25600; May 2, 
2013).
    The offshore lobster industry and sector trawl vessels proposed a 
rotational gear-use agreement for proposed the Closed Area II Exemption 
Area (a copy of the agreement is included as an appendix in the EA). 
The restrictions proposed in the rotational gear use agreement have 
been adopted by the Atlantic States Marine Fisheries Commission, who 
modified the Interstate Fisheries Management Plan for American Lobster 
through Addendum XX to the lobster plan. This rule incorporates most 
portions of that agreement, a more detailed explanation is below.
    We remain concerned that fishing in Closed Area II could have 
negative impacts on spawning Georges Bank cod and dense concentrations 
of Georges Bank yellowtail flounder, both of which are considered 
overfished and subject to overfishing. The proposed seasons and gear 
requirements incorporate the rotational gear-use agreement and mitigate 
fishing effort on yellowtail flounder and spawning cod:
     June 16-October 31: Sector trawl vessels would be 
prohibited, lobster and sector hook gear vessels only.
     November 1-December 31: Only sector trawl vessels could 
access the area; lobster and hook gear vessels prohibited.
     January 1-April 30: Lobster vessels permitted; sector 
groundfish vessels would be prohibited in Closed Area II during this 
time.
     May 1-June 15: Only sector trawl vessels could access the 
area; lobster and hook gear vessels prohibited.
    The gears and seasons listed above match the agreement between the 
offshore lobster industry and sector trawl vessels, with the exception 
that groundfish vessels would be prohibited from fishing in Closed Area 
II after December 31. It should be noted that tyhe sector exemptions 
proposed in this rule are only for fishing year 2013, which ends April 
30, 2014. In contrast, the lobster regulations at Sec.  697.7 are 
proposed to be modified for fishing years 2013 and 2014, through this 
rule to prohibit lobster vessels from accessing the Closed Area II 
Exemption Area from November 1-December 31, 2013 and May 1-June 15 and 
November 1-December 31, 2014. The regulatory changes proposed for 
federally permitted lobster vessels would be effective through the end 
of fishing year 2014, the time frame established under the gear-use 
agreement and under Addendum XX. If sector vessels wish to request 
access to the Closed Area II Exemption Area from May 1-June 15 for 
fishing year 2014, that exemption request would be included in their 
2014 sector operations plans and analyzed in the 2014 sector proposed 
rule and environmental assessment.
    Like Closed Area I, allowing vessels into this area would increase 
their opportunities to target healthy stocks of Georges Bank haddock. 
Selective gear is required to reduce bycatch of overfished stocks such 
as Georges Bank yellowtail flounder and cod to the extent practicable. 
Although the Council specified in Framework 48 that vessels could fish 
in Closed Area I until February 15, we are proposing to prohibit 
vessels into Closed Area I after December 31 due to impacts to Georges 
Bank cod spawning. While this area has been closed year-round to 
groundfishing since 1994, the majority of the seabed in this area is 
sand and is impacted by strong currents. As a result, this area is not 
considered to be vulnerable to trawl gear. Some areas are shallow 
enough that the bottom is affected by wave action. As a result, bottom 
trawling in this area would likely have minimal impact on benthic 
habitats.
    The agreement between the offshore lobster industry and sector 
vessels reduces concerns of gear conflicts in the area. Analyses for 
the environmental assessment indicate that only a small portion of the 
annual lobster catch from this portion of Closed Area II is gathered 
during November. No trips were reported in the proposed area during 
December of 2011 or 2012. As a result, the displacement of lobster 
effort into other areas is expected to be minimal. Because of this, it 
is not anticipated that lobster gear displaced from this area would 
result in increased interactions with protected species in other 
locations.

3. Nantucket Lightship Closed Area Exemption

    The Nantucket Lightship Closed Area was established as a year-round 
groundfish closure in 1994 to protect yellowtail flounder. If approved, 
this measure would allow sector vessels to access the eastern and 
western portions of the Nantucket Lightship Closed Area.

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The central area is essential fish habitat and not proposed to be re-
opened. Trawl vessels would be restricted to selective trawl gear, 
including the separator trawl, the Ruhle trawl, the mini-Ruhle trawl, 
rope trawl, and any other gear authorized by the Council in a 
management action. Flounder nets would be prohibited because there is 
concern that the population of yellowtail flounder in the area 
represents a source population that is critical to the Southern New 
England/Mid-atlantic stock. Gillnet vessels would be restricted to 
fishing 10-inch (25.4-cm) diamond mesh or larger. This would allow 
gillnet vessels to target monkfish and skates while reducing catch of 
flatfish. Because the area lies within the Southern New England 
Management Area of the Harbor Porpoise Take Reduction Plan, gillnet 
vessels would be required to use pingers when fishing in the Nantucket 
Lightship Closed Area--Western Exemption Area between December 1 and 
May 31. These catches could also help mitigate the low fishing year 
2013 allocations for several groundfish stocks.
    Opening the eastern and western portions of the Nantucket Lightship 
Closed Area to selective gear is not expected to have any significant 
adverse habitat impacts. While this area has been closed year-round to 
groundfishing since 1994, the eastern portion proposed to be reopened 
in this rule has been a part of the Scallop Access Area Rotational 
Management Program since 2004--so it has been subject fishing. The 
western portion is referred to as the ``mudhole'' with a benthic 
habitat not vulnerable to bottom trawling. Therefore, bottom impacts 
from opening this area are anticipated to be minimal.
    Requiring selective gear in this area will help minimize flounder 
bycatch and address concerns that vessels could harvest a large portion 
of Southern New England/Mid Atlantic yellowtail flounder allocation 
from this area, which is considered home to an important source 
population for yellowtail flounder. To reduce potential interactions 
with harbor porpoises, gillnet gear in the western exemption would need 
to be equipped with pingers between December 1 and May 31 as described 
in the Harbor Porpoise Take Reduction Plan.

4. Industry-Funded At-Sea Monitoring

    Sectors must have a NMFS-approved industry-funded at-sea monitoring 
program to receive the proposed exemptions from closed areas, and 
vessels that fish in these closed areas would be required to have an 
industry-funded at-sea monitor on board. A high level of at-sea 
monitoring coverage is necessary to accurately monitor total catch from 
these areas. Without a high level of at-sea monitoring coverage, 
discard rates would be difficult to estimate (as we do with other 
sector fishing trips) because there is very little catch history or 
data from these areas. Requiring 100 percent at-sea monitoring coverage 
would also allow NMFS to monitor whether vessels are interacting with 
protected species. This level of monitoring would also provide an 
ancillary benefit of gaining additional fishery dependent data from the 
catch from these areas.
    While NMFS has committed to pay for at-sea monitoring coverage for 
sector fishing trips during fishing year 2013, the agency does not have 
enough funding to also pay for additional trips utilizing regulatory 
exemptions that require 100-percent monitoring (such as trips targeting 
redfish and trips into closed areas). However, we are currently looking 
into possible ways to provide funding for these trips.
    A sector vessel intending to fish in these closed access areas 
would be required to declare its intent through its Vessel Monitoring 
System prior to departing the dock. Catch from these trips would not be 
used for determining a sector's discard rate because these trips are 
different than standard groundfish trips.

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 proposed rule is 
consistent with the Northeast Multispecies Fishery Management Plan, 
other provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires 
agencies to assess the economic impacts of their proposed regulations 
on small entities. The objective of the RFA is to consider the impacts 
of a rulemaking on small entities, and the capacity of those affected 
by regulations to bear the direct and indirect costs of regulation. 
Size standards have been established for all for-profit economic 
activities or industries in the North American Industry Classification 
System. The Small Business Administration (SBA) defines a small 
business in the commercial fishing and recreational fishing sector, as 
a firm with receipts (gross revenues) of up to $4 million. The Small 
Business Act defines affiliation as: Affiliation may arise among two or 
more persons with an identity of interest. Individuals or firms that 
have identical or substantially identical business or economic 
interests (such as family members, individuals or firms with common 
investments, or firms that are economically dependent through 
contractual or other relationships) may be treated as one party with 
such interests aggregated (13 CFR 121.103(f)).
    An Initial Regulatory Flexibility Analysis (IRFA) has been 
prepared, as required by section 603 of the RFA. The Final Regulatory 
Flexibility Analysis (FRFA) will be prepared after the comment period 
for this proposed rule, and will be published with the final rule. The 
IRFA describes the economic impact that this proposed rule, if adopted, 
would have on small entities. The IRFA consists of this section, the 
SUMMARY section of the preamble of this proposed rule, and the EA 
prepared for this action. A description of the action, why it is being 
considered, and the legal basis for this action are contained in the 
preamble to this proposed rule and in Sections 1.0, 2.0, and 3.0 of the 
EA prepared for this action, and is not repeated here. A summary of the 
analysis follows. A copy of this analysis is available from NMFS (see 
ADDRESSES).

Description of the Reasons Why Action by Agency Is Being Considered

    The flexibility afforded sectors includes exemptions from certain 
specified regulations as well as the ability to request additional 
exemptions. Sector members no longer have groundfish catch limited by 
days-at-sea (DAS) allocations and are instead limited by their 
allocations. In this manner, the economic incentive changes from a 
vessel maximizing its effective catch of all species on a DAS to 
maximizing the value of its allocation, which places a premium on 
timing landings to market conditions, as well as changes in the 
selectivity and composition of species landed on fishing trips. Further 
description of the purpose and need for the proposed action is 
contained in Section 2.0 of the EA prepared for this action.

The Objectives and Legal Basis for the Proposed Action

    The objective of the proposed action is to grant sectors a 
regulatory exemption allowing sector vessels to fish in portions of 
several year-round groundfish closed areas. The legal basis for the 
proposed action is the NE Multispecies FMP and promulgating

[[Page 41778]]

regulations at Sec.  648.87. Regulations adding increased restrictions 
on offshore lobster vessels will be added to Sec.  697.7.

Estimate of the Number of Small Entities

    The SBA size standard for commercial fishing entities (North 
American Industry Classification System code 114111) is $4 million in 
annual sales. We have recently worked to identify ownership 
affiliations, and incorporated those data into this analysis. Although 
work to more accurately identify ownership affiliations is ongoing, for 
the purposes of this analysis, ownership entities are defined as an 
association of fishing permits held by common ownership personnel as 
listed on permit application documentation. Only permits with identical 
ownership personnel are categorized as an ownership entity.
    The maximum number of entities that could be affected by the 
proposed exemptions is expected to be approximately 355 ownership 
entities (352 qualifying as small entities)--this includes 303 entities 
enrolled in sectors as well as 52 offshore lobster vessels, but many of 
the offshore lobster vessels do not fish in the areas discussed in this 
action. A total of 301 groundfish ownership entities and 51 offshore 
lobster ownership entities would be considered small entities, based on 
the definition as stated above. The economic impact resulting from this 
action on these small groundfish entities is positive, since the 
action, if implemented, would provide additional operational 
flexibility to vessels participating in NE multispecies sectors for FY 
2013. In addition, this action would further mitigate negative impacts 
from the implementation of Amendment 16, Frameworks 44 and 45, which 
have placed additional restrictions on the NE multispecies fleet, as 
well as Frameworks 48 and 50. The economic impact resulting from this 
action on offshore lobster entities is expected to be negligible, since 
they historically have very little fishing effort in an area that they 
would be unable to fish during a specific portion of the year.

Reporting, Recordkeeping and Other Compliance Requirements

    This proposed rule contains no collection-of-information 
requirement subject to the Paperwork Reduction Act. The proposed action 
provides additional flexibility to sector vessels in fishing year 2013 
by allowing them to fish in areas that were previously closed. Sector 
vessels would be required to declare their intent to fish in these 
areas prior to departure. As currently proposed, sectors interested in 
utilizing this exemption must have a NMFS-approved industry-funded at-
sea monitoring program. Exemptions implemented through this action 
would be documented in a letter of authorization issued to each vessel 
participating in an approved sector.

Duplication, Overlap or Conflict With Other Federal Rules

    The proposed action is authorized by the regulations implementing 
the NE Multispecies FMP. It does not duplicate, overlap, or conflict 
with other Federal rules.

Alternatives Which Minimize Any Significant Economic Impact of Proposed 
Action on Small Entities

    NMFS considered two alternatives for the action proposed in this 
rule, the No Action Alternative and the Preferred Alternative. Under 
the No Action Alternative, sector vessels would not be able to fish in 
year-round closed areas unless fishing within an existing, approved 
Special Access Program. The No Action Alternative is the disapproval of 
the exemption and addendum to any sector's operations plan. The No 
Action Alternative would result in sector vessels operating under the 
operations plans as approved for the start of the 2013 FY on May 1, 
2013. Approving the No Action Alternative would result in continued 
underharvesting of Georges Bank haddock and would eliminate the 
potential for groundfish to increase their profits.
    The Preferred Alternative (the proposed action) would allow sector 
vessels to fish in portions of the Nantucket Lightship Closed Area, 
Closed Area I, and Closed Area II. The Preferred Alternative would 
create a positive economic impact for the participating ownership 
entities that include sector vessels because it would mitigate the 
impacts from restrictive management measures implemented under NE 
Multispecies FMP. Few quantitative data on the precise economic impacts 
to individual ownership entities are available. The 2011 Final Report 
on the Performance of the Northeast Multispecies (NE multispecies) 
Fishery (May 2010-April 2011) (copies are available from NMFS, see 
ADDRESSES) documents that all measures of gross nominal revenue per 
trip and per day absent in 2011 were higher for the average sector 
vessel than in 2010, and lower for the average common pool vessel than 
in 2010, except for average revenue per day on a groundfish trip for 
vessels under 30 ft (9.14 m) in length and for vessels 75 ft (22.86 m) 
and above. However, the report stipulates that this comparison is not 
useful for evaluating the relative performance of DAS and sector-based 
management because of fundamental differences between these groups of 
vessels, which were not accounted for in the analyses. Accordingly, 
quantitative analysis of the impacts of sector operations plans is 
still limited. NMFS anticipates that by switching from effort controls 
of the common pool regime to operating under a sector ACE, sector 
members will have a greater opportunity to remain economically viable 
while adjusting to changing economic and fishing conditions. Thus, the 
proposed action provides benefits to sector members that they would not 
have under the No Action Alternative.

Economic Impacts on Small Entities Resulting From Proposed Action

    The environmental impact statement for Amendment 16 compares 
economic impacts of sector vessels with common pool vessels and 
analyzes costs and benefits of the universal exemptions. The final 
rules for the approval of sector operations plans and contracts for 
fishing years 2010-2013 (75 FR 18113, April 9, 2010; 75 FR 80720, 
December 23, 2010; 76 FR 23076, April 25, 2011; 77 FR 26129, May 2, 
2012; 78 FR 25591, May 2, 2013) and their accompanying EAs discussed 
the economic impacts of the exemptions requested by sectors in those 
years.
    The EA prepared for this rule evaluates the impacts of each closed 
area alternative individually relative to the no-action alternative 
(i.e., no sectors are approved), and the alternatives may be approved 
or disapproved individually or as a group. The impacts associated with 
the implementation of each of the exemptions proposed in this rule are 
analyzed as if each exemption would be implemented for all sectors. The 
EA analyses includes all sectors because all sectors can request the 
exemption. Sectors can also add approved exemptions to the operations 
plans at any point during the fishing year. Further, attempting to 
limit the analyses to a specific number of sectors would be incorrect 
because any sector(s) could lease in all the remaining allocation and 
fish for that allocation under the exemption. Therefore, it is 
important to analyze the impacts as if the entire allocation could be 
harvested under the exemption. However, each exemption will only be 
implemented for the sector(s) that requested that exemption.
    Approval of this rule, as proposed, would provide greater 
operational flexibility and increased fishing

[[Page 41779]]

opportunities to sector vessels. Increased ``operational flexibility'' 
generally has positive impacts on human communities as sectors and 
their associated exemptions grant fishermen some measure of increased 
operational flexibility. By removing the limitations on vessel effort 
(amount of gear used, number of days declared out of fishery, trip 
limits and area closures), sectors help create a more simplified 
regulatory environment. This simplified regulatory environment grants 
fishers greater control over how, when, and where they fish, without 
working under increasingly complex fishing regulations with higher risk 
of inadvertently violating one of the many regulations. The increased 
control granted by the sectors and their associated exemptions may also 
allow fishermen to maximize the ex-vessel price of landings by timing 
them based on market prices and conditions. Generally, increased 
operational flexibility can result in reduced costs and/or increased 
revenues. All exemptions contained in the proposed fishing year 2013 
sector operations plans are expected to generate positive social and 
economic effects for sector members and ports. In general, profits can 
be increased by increasing revenues or decreasing costs. Similarly, 
profits decrease when revenues decline or costs rise. The intent of 
this action is to allow fishermen to increase their revenues by 
increasing their catch, which would increase their revenue. Also, 
fishermen may potentially increase their catch per unit effort, which 
would also decrease their costs.
    It is anticipated that any economic impacts on offshore lobster 
vessels would be negligible. Analyses in the accompanying EA indicates 
that very little lobster fishing occurs in the Closed Area II Exemption 
Area when lobster vessels would be prohibited from entering the area. 
In addition, the offshore lobster industry voluntarily signed a gear-
use agreement with several groundfish sectors agreeing not to fish in 
the area during certain seasons. It is unlikely that the offshore 
lobster industry would have voluntarily entered an agreement that 
resulted in greatly disproportionate impacts. This rule incorporates 
that agreement in an effort to minimize any economic impacts on lobster 
vessels.

List of Subjects in 50 CFR Part 697

    Fisheries, fishing.

    Dated: July 8, 2013.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, performing the 
functions and duties of the Assistant Administrator for Fisheries, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 697 is 
proposed to be amended as follows:

PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

0
1. The authority citation for part 697 continues to read as follows:

    Authority: 16 U.S.C. 5101 et seq.

0
2. In Sec.  697.7, add paragraph (c)(1)(xxxi) to read as follows:


Sec.  697.7  Prohibitions.

* * * * *
    (c) * * *
    (1) * * *
    (xxxi) Closed Area II Exemption Area seasonal closure. The Federal 
waters in a portion of Northeast Multispecies Closed Area II, referred 
to as the Closed Area II Exemption Area, shall be defined by straight 
lines connecting the following points in the order stated stated here:

                      Closed Area II Exemption Area
------------------------------------------------------------------------
             Point                     N. lat.             W. long.
------------------------------------------------------------------------
A..............................  41[deg]50'           67[deg]20'
B..............................  41[deg]50'           67[deg]10'
C..............................  42[deg]00'           67[deg]10'
D..............................  42[deg]00'           \1\ (67[deg]00.5')
E \2\..........................  41[deg]30'           \1\ (66[deg]34.8')
F..............................  41[deg]30'           67[deg]20'
A..............................  41[deg]50'           67[deg]20'
------------------------------------------------------------------------
\1\ The U.S.-Canada Maritime Boundary, approximate longitude in
  parentheses.
\2\ Points D and E are connected along the U.S.-Canada maritime
  boundary.

    (A) Seasonal closure. Federal lobster permit holders fishing with 
traps from May 1 through June 15 and from November 1 through December 
31 in NE multispecies fishing years 2013 and 2014. During this closure, 
Federally permitted trap fishers are prohibited from possessing or 
landing lobster taken from the Closed Area II Exemption Area.
    (B) All lobster traps must be removed from Closed Area II Exemption 
Area waters before the start of the seasonal closure and may not be re-
deployed into Closed Area II Exemption Area waters until after the 
seasonal closure ends. Federal trap fishers are prohibited from 
setting, hauling, storing, abandoning or in any way leaving their traps 
in Closed Area II Exemption Area waters during the seasonal closure of 
this section. Federal lobster permit holders are prohibited from 
possessing or carrying lobster traps aboard a vessel in Closed Area II 
Exemption Area waters during the seasonal closure unless the vessel is 
transiting through the area pursuant to paragraph (c)(1)(xxxi)(E) of 
this section.
    (C) The seasonal closure relates only to the Closed Area II 
Exemption Area. The restrictive provisions of Sec. Sec.  697.3 and 
697.4(a)(7)(v) do not apply to this closure. Federal lobster permit 
holders with an Area 3 designation and another Lobster Management Area 
designation on their Federal lobster permit would not have to similarly 
remove their lobster gear from the other designated management areas. 
This restriction does not apply to Federal non-trap lobster permit 
holders.
    (D) The Regional Administrator may exempt Federal lobster permit 
holders from these closure provisions if no NE multispecies sector has 
been granted access into the Closed Area II Exemption Area. If the 
Regional Administrator decides to exempt Federal lobster permit holders 
from the seasonal closure, then the Regional Administrator must file 
notice of the exemption in the Federal Register setting forth the dates 
during which the exemption applies.
    (E) Transiting Closed Area II Exemption Area. Federal lobster 
permit holders may possess lobster traps on their vessel in the Closed 
Are II Exemption Area during the seasonal closure only if:
    (1) The trap gear is stowed; and
    (2) The vessel is transiting the Closed Area II Exemption Area. For 
the purposes of this section, transiting shall mean passing through the 
Closed Area II Exemption Area without stopping to reach a destination 
outside the Closed Area II Exemption Area.
    (F) The Regional Administrator may authorize a permit holder or 
vessel owner to haul ashore lobster traps from the Closed Area II 
Exemption Area during the seasonal closure without having to engage in 
the exempted fishing process in Sec.  697.22 if the permit holder or 
vessel owner can establish the following:

[[Page 41780]]

    (1) That the lobster traps were not able to be hauled ashore before 
the seasonal closure due to incapacity, vessel/mechanical 
inoperability, and/or poor weather; and
    (2) That all lobsters caught in the subject traps will be 
immediately returned to the sea.
    (3) The Regional Administrator may condition this authorization as 
appropriate in order to maintain the overall integrity of the closure.
* * * * *
[FR Doc. 2013-16644 Filed 7-10-13; 8:45 am]
BILLING CODE 3510-22-P