Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Final Rule To Allow Northeast Multispecies Sector Vessels Access to Year-Round Closed Areas, 76077-76091 [2013-29857]

Download as PDF Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations (iv) Denotation as either governmentfurnished property (GFP) or contractoracquired property (CAP) (If from another DOS contract, or government agency, please specify); (v) Noun name of property (i.e. generator); (vi) Description of property; (vii) Manufacturer; (viii) Model; (ix) Serial number; (x) National Stock Number if applicable (xi) Unique-item identifier or equivalent: such as barcode label (tag number) or systemassigned number. For highway motor vehicles, this must be the vehicle identification number (VIN); (xii) Date received: Date contractor took possession; (xiii) Date placed in service; (xiv) Acquisition cost (As defined in FAR clause 52.245–1(a)): Use estimated fairmarket value for property transferred or donated, at the time acquired, if actual cost is unknown; (xv) Estimated useful life in years: The period during which the property is expected to provide the service for which it was intended. This should normally be equivalent to the depreciation schedule; (xvi) Current location of the property: Country and city; (xvii) Disposal Date; (xviii) Disposal Method; (e) The Contractor shall submit a full property report, as described in this clause, including affirmation, for the report covering the first quarter of the base contract. Thereafter, submission of reports shall follow the time frames outlined in paragraph (h) below. Quarterly property reports, other than the annual report, may be either full property reports or only updates to the full property report. Quarterly reports do not require affirmations even when the Contractor chooses to submit a full property report. Affirmations are only required for the report covering the first quarter of the contract and the annual report for each subsequent option year of the contract. If the Contractor submits a full property report, dispositions subsequent to any previous report must also be identified in the report. If a Contractor submits a quarterly report in the form of an update, the update shall include acquisitions and dispositions. (f) The Contractor shall provide any required affirmation in the following format. The affirmation shall be signed by the Contractor’s managerial personnel (as defined in FAR clause 52.245–1): ‘‘I hereby affirm that a physical inventory of the government property (as defined in Federal Acquisition Regulation (FAR) 45.101) of Department of State contract number Report pmangrum on DSK3VPTVN1PROD with RULES (i) The Contractor shall send a copy of all reports to the individuals listed below. The Contractor shall submit reports in electronic format as an attachment to an email. The affirmation described in paragraph (f) of this clause shall be in Adobe Acrobat (.pdf) format (including the signature), while the inventories, both quarterly and annual, shall be in Microsoft Excel format (Adobe Acrobat and Microsoft Excel versions shall be compatible with versions used by DOS). Send all reports to: (1) The contracting officer; (2) The Property Administrator; (3) The contracting officer’s representative (COR); (4) Propertyreports@state.gov; (5) RM-FPRA-PROP@state.gov; and (6) All individuals listed below (if any): [contracting officer shall list individuals, if any]. (j) The Contractor shall cooperate by responding timely to all follow up questions and requests for supporting documentation whether requested by the Department or external auditors. (End of clause) Dated: November 26, 2013. Corey M. Rindner, Procurement Executive, Department of State. [FR Doc. 2013–29861 Filed 12–13–13; 8:45 am] BILLING CODE 4710–24–P VerDate Mar<15>2010 13:31 Dec 13, 2013 (insert contract number) has been completed as of (insert date), the inventory has been reconciled to our records and the property information in our report, and that to the best of my knowledge and belief, this inventory is accurate, current, and complete. Signed: lllllllllllllllllllll Printed: lllllllllllllllllllll Title: lllllllllllllllllllll Date: lllllllllllllllllllll (g) In addition to the information required above, the Contractor shall include in all property reports: (1) The current degree to which properly qualified Government personnel have evaluated the Contractor’s property management system as being an adequate property management system; (2) The name, mailing address, telephone number, and email address of the qualified Government person(s) who performed the evaluation of the Contractor’s property management system; and (3) The cognizant contractor government property manager. (h) Reports shall cover the following time periods and are due on the following dates: Period covered 1st Quarter Report ............................................................ 2nd Quarter Report (Annual Property Report) ................. 3rd Quarter Report ........................................................... 4th Quarter Report ............................................................ Jkt 232001 For For For For National Oceanic and Atmospheric Administration 50 CFR Parts 648 and 697 [Docket No. 130319263–3823–02] RIN 0648–BD09 Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Final Rule To Allow Northeast Multispecies Sector Vessels Access to Year-Round Closed Areas National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Interim final rule. AGENCY: This rule allows fishing access for Northeast multispecies sectors to two portions of the Southern New England Nantucket Lightship Closed Area for the remainder of the 2013 fishing year under specified conditions. Although NMFS considered and proposed exemption requests that would allow sector vessels access to SUMMARY: PO 00000 Frm 00047 Due date 1st quarter ending December 31 ............................. 2nd quarter ending March 31 ................................... 3rd quarter ending June 30 ...................................... 4th quarter ending September 30 ............................ DEPARTMENT OF COMMERCE Fmt 4700 Sfmt 4700 76077 January 15. April 30. July 15. October 8. portions of Georges Bank Closed Areas I and II, NMFS is not granting access to those areas at this time. The intent of this rule is to allow sector vessels increased opportunities to harvest nongroundfish stocks such as monkfish, dogfish, and skates while minimizing impacts to overfished groundfish stock such as Georges Bank cod and yellowtail flounder. DATES: Effective December 31, 2013, through April 30, 2014. Comments on the interim monitoring coverage measure must be received by January 15, 2014. 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: http://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 E:\FR\FM\16DER1.SGM 16DER1 76078 Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES Federal eRulemaking Portal. Go to www.regulations.gov/ #!docketDetail;D=NOAA-NMFS-20130084, 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 Interim Final Rule.’’ Instructions: All comments received are part of the public record and will generally be posted to http:// 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 industryfunded 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) allows sectors to request regulatory exemptions in their annual sector operations plans. We review and approve or disapprove sector exemptions on an annual basis. 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 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). VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 On May 3, 2013, NMFS partially approved Framework Adjustment 48 to the groundfish plan, which includes a provision that allows sectors to request access to year-round mortality closure areas. For additional information on Framework 48, see 78 FR 26118; May 3, 2013. Anticipating that Framework 48 would be approved, sectors included exemption requests from year-round closure areas in their initial fishing year 2013 operations plan submissions in the fall of 2012. This interim final rule partially approves these exemption requests. As explained in the proposed rule (78 FR 41772; July 11, 2013), recent analyses of these closed areas were undertaken by the New England Fishery Management Council’s (Council) Closed Area Technical Team (CATT). Much of the work done by the CATT was incorporated into the environmental assessment that accompanies this action. In a separate action, the Council is also in the process of preparing Essential Fish Habitat (EFH) Omnibus Amendment 2 (referred to as the Omnibus Habitat Amendment) to several fishery management plans, including the groundfish plan. It is anticipated that the Omnibus Habitat Amendment will be completed by May 2014, and potentially implemented by the end of 2014. While the measures approved in this rule are only for the 2013 fishing year, the current closed areas could be modified sometime during the 2014 fishing year as a result of the Omnibus Habitat Amendment. The Omnibus Habitat Amendment is considering allowing access to the areas being opened in this action within the context of balancing the protections and opportunities provided by a broad array of potential essential fish habitat management areas. The balance will seek to minimize impacts to essential fish habitat to the extent practicable. This action involves access to portions of these specific closed areas, without balancing the potential protections or opportunities provided by other areas. The broader focus of the Omnibus Habitat Amendment may result in providing more or less restrictive access to the portions of the closed areas considered in this action. Additional information on the Omnibus Habitat Amendment, including a map and descriptions of the proposed closed area modifications, can be found on the Council’s Web site at http://nefmc.org/ habitat/index.html. We considered exemption requests from portions of the Nantucket Lightship Closed Area and Closed Areas PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 I and II in a separate action from the final rule for fishing year 2013 sector operations plans for several reasons. First, proposing these exemption requests in a separate action gave us additional time to develop a more detailed and complete environmental analysis. Second, it provided a better opportunity to address specific concerns with the potential impact of actual sector proposals. Third, the public could provide additional comments to those already expressed in response to Framework 48. Fourth, because access to these closed areas was considered through sector exemptions, the NMFS Regional Administrator could include additional stipulations and constraints on specific exemptions to facilitate the monitoring and enforcement of sector operations or as mitigation measures to address specific potential impacts. The three proposed exemptions included additional constraints to mitigate impacts on groundfish stocks and protected resources to ensure that any approved exemptions are consistent with the goals and objectives of the groundfish plan. Our consideration of these sector exemptions balanced factors specific to the protections of, and fishing opportunities for, fish stocks within small portions of these closed areas. The proposed exemptions were intended to provide economic opportunities to sector vessels to mitigate the impact of sharp reductions in catch limits. After considering over 81,100 comments submitted by the public, and after further review of the environmental assessment, we have elected not to grant sectors restricted access to Georges Bank Closed Areas I and II in fishing year 2013. This rule, however, does grant sector vessels access to portions of the Southern New England Nantucket Lightship Closed Area for the remainder of this fishing year. Further, we will use at least the standard federally funded sector at-sea monitoring and observer coverage level (22 percent of trips for the 2013 fishing year) for trips into the Eastern and Western Exemption Areas of Nantucket Lightship Closed Area (Figure A). Because this coverage level differs from what was initially proposed, we are soliciting additional comment on this issue. It is hoped that allowing carefully designed access to the Nantucket Lightship Closed Area will allow vessels to increase their catch of healthy non-groundfish stocks (such as monkfish, dogfish, and skates), while minimizing impacts to recovering groundfish stocks and protected resources. E:\FR\FM\16DER1.SGM 16DER1 pmangrum on DSK3VPTVN1PROD with RULES Disapproval of Exemption Requests To Fish in Portions of Closed Areas I and II Although we proposed to allow access to fish in portions of Closed Areas I and II in the proposed rule, we are not approving sector exemption requests that would allow sector vessels to fish in those areas. Comments submitted by the fishing industry indicated that they would be unable to participate in the exemption if they were required to pay for a monitor on every trip. We are also concerned about the current status of Georges Bank cod and yellowtail flounder stocks, which are found in Closed Areas I and II. Furthermore, the vast majority of comments submitted by members of the public and environmental organizations are opposed to reopening the closed areas. Our proposal to allow access to these areas was based on a balance of potential economic opportunity and efficiency with cost-effective monitoring and fish stock protections. We have concluded that the utility of opening these areas is outweighed by the potential adverse impacts to overfished fish stocks and because comments from industry state that it is too costly for them to participate in these exemptions. Because of the combination of the industry’s lack of participation in these exemptions and our concern about the VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 status of these overfished stocks, we are disapproving these requests. We continue to believe it is critical that every trip into Closed Area I and II have an at-sea monitor or observer on board the vessel to monitor total catch from these areas. These areas were originally closed to protect struggling fish stocks. Specifically, Closed Areas I and II were closed to protect Georges Bank cod and haddock, which spawn in these areas. Because we know Georges Bank cod and yellowtail flounder, which are both severely depleted, reside in these areas, we believe it is appropriate to require additional monitoring coverage, especially since there are very few historical catch data from these areas. We are also concerned that observing only 22 percent of the trips into the areas could be insufficient for us to promptly address changes in the discard rates for groundfish stocks. Monitoring every trip would allow us to respond more quickly, should there be an unanticipated impact to the area, such as increased harvests of juveniles, large adult spawners, or impacts on protected species. Additionally, if a large amount of haddock, cod, or yellowtail flounder is found in a reopened area, then vessels may unintentionally catch more fish than they have an allocation for, because catch limits are relatively low for these stocks. Avoiding exceeding one’s PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 76079 allocation could provide a strong incentive for illegal discarding. Requiring a monitor to be on each vessel fishing in a closed area would mitigate this concern. Also, if there is a large amount of haddock in the area, a vessel may be tempted to misreport or illegally discard limiting stocks of Georges Bank cod and yellowtail flounder so that it can continue to harvest haddock. These concerns are not unique to closure areas. Because the closure areas provide additional protection to depleted groundfish stocks, we believe it is vitally important to get good catch information from these areas. Further, this level of monitoring would provide greater chances to observe interactions with protected species, if they occur, as well as an ancillary benefit of gaining additional fishery dependent data from the trips into these areas. We proposed that sector vessels pay for at-sea monitors on these trips because we do not have money to pay for these additional trips. Unfortunately, comments submitted by members of the fishing industry, fishing industry interest groups, and sector managers argued that no fishing vessel would utilize the exemption if it were required to pay for an at-sea monitor. Industry claims that the additional expenses offset any potential increase in profit, making the exemption useless. E:\FR\FM\16DER1.SGM 16DER1 ER16DE13.005</GPH> Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES 76080 Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations We are seriously concerned about the sustainability of the Georges Bank cod and yellowtail flounder stocks. Both of these stocks, which are overfished and subject to overfishing, are found in Closed Areas I and II, with yellowtail flounder found predominantly in Closed Area II. Despite proposals to require selective gears and seasonality restrictions, without 100-percent coverage of these trips, we cannot approve access to Closed Areas I and II. There is no utility in providing access, however, if industry does not participate. Lastly, we are hearing from fishermen that they are having a difficult time catching Georges Bank haddock. As of September 11, 2013, we are over one third of the way into the fishing year and sector vessels have harvested only 2.7 percent of the Georges Bank haddock east quota, and 2.5 percent of the Georges Bank west haddock quota. These drastically low catch amounts suggest that the closed areas alone are not the only limiting factor influencing fishermen’s Georges Bank haddock catch. Fishermen were requesting that we open Closed Areas I and II so they could increase their haddock catch— these low catch amounts, along with comments from some fishermen, suggest that opening Closed Areas I and II would not lead to a significant increase in haddock catch. Sector exemptions should provide fishermen with greater flexibility to enhance their efficiency and, ultimately, improve their profits, all while maintaining the goals and objectives of the groundfish plan. We proposed allowing sectors restricted access into Closed Areas I and II, believing that if there were a substantial chance of enhancing efficiency, the increased revenue associated with increases in catch would easily offset the costs associated with funding an at-sea monitor. The proposal sought to provide the industry an opportunity for increasing catch and mitigating the impact of lower catch limits, while balancing efficiency in utilizing fishery resources, minimizing costs, and minimizing bycatch to the extent practicable consistent with MagnusonStevens Fishery Conservation and Management Act National Standards. Comments submitted by industry indicate that the proposed exemptions for these areas would not meet those goals because industry perceived that the economic benefits of the potential catch from these areas would not outweigh the costs of monitoring and stated they would not participate. Because of this, and because we want to continue working to rebuild overfished VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 groundfish stocks, we are not approving these exemptions at this time. NMFS is interested in gathering data from Closed Areas I and II so that it may conduct analyses to determine whether fishing can be allowed at a level of observer coverage less than 100 percent. Sector vessels interested in assisting NMFS in obtaining additional fisheriesdependent data from year-round closed areas may submit a request to NMFS for an exempted fishing permit. Exempted fishing permits authorize a federally permitted fishing vessel (or vessels) to conduct fishing activities that would otherwise be prohibited—in this instance, to fish in a year-round closed area under conditions that would not harm stocks. Exempted fishing permit requests would be expeditiously reviewed and authorized based on their merit. Permits would not be approved if it is determined that the exempted activities could undermine measures that were established to conserve and manage fisheries or reduce interactions with protected species. NMFS will also reassess whether groundfish sector vessels might be able to access these closed areas if they are assigned a random observer or at-sea monitor. However, NMFS must ensure that new information or analysis from this reassessment shows that such trips would not compromise the legally required monitoring coverage levels for other groundfish trips across the entire fishery, or the underlying analytical principles that support catch and discard monitoring. NMFS will complete this reanalysis in time to determine whether this is a viable option for sector exemptions for the next fishing year, which begins May 1, 2014. Approval of an Exemption Request Allowing Sector Vessels Into Portions of Nantucket Lightship Closed Area This rule allows sector vessels access to the Eastern and Western Exemption Areas within the Nantucket Lightship Closed Area for the duration of fishing year 2013, as outlined in this preamble. Trawl vessels are restricted to using 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 are prohibited in this area. Hook vessels are permitted. Gillnet vessels are restricted to fishing 10-inch (25.4-cm) diamond mesh or larger. Gillnet vessels are required to use pingers when fishing in the Western Exemption Area from December 1–May 31, because this area lies within the existing Southern New PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 England Management Area of the Harbor Porpoise Take Reduction Plan. Requiring selective gear in the Nantucket Lightship Closed Area allows vessels to target monkfish, dogfish, and skates while minimizing flounder bycatch. Although Southern New England/Mid-Atlantic yellowtail flounder is considered rebuilt, the requirement to use selective gear addresses concerns that vessels could harvest a large portion of yellowtail flounder allocation from this area, which is considered home to an important source population for yellowtail flounder. Catches of monkfish, dogfish, and skates could help mitigate the low fishing year 2013 allocations for several groundfish stocks. After further review of the environmental assessment and after considering comments submitted by the public, we are reducing the necessary at-sea monitoring coverage level to the standard 22 percent. We will fund the at-sea monitors and observers and if any additional at-sea monitoring or Federal observer funding becomes available, we will consider increasing the coverage rate for trips into this area. We have several reasons for modifying the at-sea monitoring coverage level in the Nantucket Lightship Closed Area. First, this exemption is designed to allow vessels to target non-groundfish stocks while reducing groundfish catch, and therefore groundfish discard rates. Second, there are not significant numbers of Georges Bank cod in the Nantucket Lightship Closed Area, and there are no Georges Bank yellowtail flounder in the area. Requiring selective gear in these areas reduces the likelihood that groundfish, including Southern New England/Mid-Atlantic yellowtail flounder, will be caught. Second, the Western Exemption Area is surrounded by the Southern New England Monkfish, Skate, and Dogfish Exemption Area, where vessels fishing with extra-large mesh gillnets are already exempted from at-sea monitoring entirely (See Figure B). Gillnet vessels fishing under this exemption in the Western Exemption Area would be fishing in a similar area and with similar mesh size as those in the surrounding exempted fishery, but would have monitoring coverage. Vessels fishing just south of the areas are also exempt from monitoring coverage when fishing large mesh. Discard rates on trips in these two Exemption Areas are low, and we expect similar discard rates for this gear used in the Eastern and Western Exemption Areas. So while we have E:\FR\FM\16DER1.SGM 16DER1 Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations 76081 more information on these exempted fisheries see §§ 648.80(b)(6) and (b)(7). This action becomes effective 15 days after the date of publication in the Federal Register. This delay is to allow vessels fishing fixed gear, such as lobster pots, to remove their gear from the eastern and western exemption areas, if they wish to do so, to avoid potential gear conflicts. If there is an increase in fishing effort as a result of allowing sector vessels into portions of the Nantucket Lightship Closed Area, and it is determined that the increased effort is reducing our ability to provide the necessary at-sea monitoring coverage to monitor other sector trips, we will discontinue the exemption. The Regional Administrator also reserves the authority to discontinue the exemption if it is determined that the exemption jeopardizes management measures, objectives, or rebuilding efforts. A sector vessel intending to fish in the Eastern or Western Exemption Areas will be required to call the Northeast Fishery Observer Program at least 48 hr prior to departure. A separate number and call-in system is being developed and will be detailed in a bulletin to permit holders. Each vessel is also required to declare its intent through its Vessel Monitoring System prior to departing the dock. Unlike previously proposed, because we are using the same at-sea monitoring coverage rate as other sector trips, catch from these trips will be used for determining a sector’s discard rate. We continue to work on additional implementation issues and will explain any additional reporting requirements (changes to trip start or end hail requirements, for example) to each sector that requests to utilize this exemption. Because this level of monitoring coverage was not discussed in the proposed rule or the accompanying draft environmental assessment, we are specifically requesting public comment on the modification to reduce the monitoring coverage level (both at-sea monitors and observers) from 100 percent to some level that is at least 22 percent but less than 100 percent. We have determined that this action 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 rule allows 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 and gears, this rule minimizes vessel bycatch. Habitat impacts from fishing are minimized to the extent practicable because the areas were determined to have low vulnerability (Objectives 9 and 10). The exemptions granted to sector vessels through this rule increase the opportunity to meet optimum yield of several healthy fish stocks while constraining fishing mortality. Any increase in profits will benefit fishermen and fishing communities, while the gear restrictions will continue to allow overfished stocks to rebuild. VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 Comments and Responses We received 90,263 comments in response to the proposed rule consisting of five petitions and numerous letters from individuals, organizations, and government entities. Three of the petitions including 74,943 signatures that were initially submitted in response to Framework 48, were resubmitted for this action. The remaining two petitions included 6,187 provided additional comments in response to this action. NMFS also received a petition that included another 9,082 additional comments, however this petition was submitted well after the comment period expired. The petitions, and E:\FR\FM\16DER1.SGM 16DER1 ER16DE13.006</GPH> pmangrum on DSK3VPTVN1PROD with RULES reduced the monitoring coverage requirement from 100 percent to 22 percent, this 22 percent is still a higher level of coverage than for most trips in the immediate surrounding areas. For 76082 Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES therefore the majority of comments, were submitted by environmental organizations. The individual comments consisted of letters received from the Council, U.S. Coast Guard, Maine Department of Marine Resources, seven environmental organizations, six fishing industry groups, and dozens of individuals. Some of the comments did not address the proposed measures and are not included here. Many comments are similar, if not identical, to those that were submitted for Framework 48. In those instances, we reference the Framework 48 response. Closed Areas Provide Benefits Comment 1: Several of the petitions submitted, as well as comments from many environmental groups and individuals, said that the closed areas should not be opened because they provide important protection for critical life stages and spawning activities of severely depressed stocks, such as cod. Response: Closed Areas I and II were approved as year-round closures in 1994 to protect Georges Bank haddock and cod. The Nantucket Lightship Closed Area was approved as a year-round closed area that same year to reduce mortality on Southern New England/ Mid-Atlantic yellowtail flounder. While Georges Bank haddock and Southern New England/Mid-Atlantic yellowtail flounder have rebuilt, both the Georges Bank cod and yellowtail flounder stocks are in decline and are struggling to rebuild. We felt that we could provide increased access to the rebuilt Georges Bank haddock in Closed Areas I and II if we required vessels to use selective gear to reduce catch of Georges Bank cod and yellowtail flounder. We also proposed seasonal prohibitions in Closed Areas I and II to protect spawning Georges Bank cod. These provisions were an attempt to prevent a potential mortality increase on stocks that are critically depressed. These gear and season restrictions were in addition to the quota that already constrains mortality. We also proposed 100-percent monitoring coverage so that we could have a very clear picture of catch and discards. We believed that this level of coverage would allow us to monitor the use and impacts of the exemption in near-real time and potentially close the area earlier if necessary, should the information warrant it. However, comments submitted by members of the fishing industry stated that they are unable to pay for this level of coverage and would not access these areas under this monitoring requirement. Given the importance of having a high level of coverage in these areas, the fact that we VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 are unable to fund this level of coverage, and the industry’s comments that the cost of coverage required for access is too high compared to the potential benefit from access to these areas, we are disapproving access to Closed Areas I and II. The status of many key groundfish stocks is poor. Recent status reports from the Transboundary Resource Assessment Committee (TRAC), which conducts an annual stock assessment of Georges Bank cod, haddock, and yellowtail flounder, have several troubling findings. For example, the combined Canadian and U.S. catches of Georges Bank yellowtail flounder in 2012 were 722 mt. The report explains that this is the first time since 1940 that catch has been less than 1,000 mt. Further, recruitment of the three most recent yellowtail flounder cohorts is estimated to be the lowest in the time series. The TRAC also explained that the average weight at length of Georges Bank cod, used to reflect condition, has been stable in the past, but has started to decline in recent years. Lower weights at age in the population in recent years and poor recruitment have contributed to the lack of rebuilding, and the TRAC is recommending a reduction in allocation for the 2014 fishing year. We believe that the proposed rule included restrictions that would limit fishing impacts on these stocks, and properly monitor fishing trips under this exemption. However, in light of our concern about the continually declining status of Georges Bank cod and yellowtail flounder, we believe that it is not appropriate to increase fishing activity in Closed Areas I and II at this time. On the other hand, Georges Bank cod are rarely in the Nantucket Lightship Closed Area, and Southern New England/Mid-Atlantic yellowtail flounder has recently been declared to be rebuilt. Vessels fishing in this area will not be targeting cod, haddock, or yellowtail flounder. Acknowledging concerns that a source population for Southern New England/Mid-Atlantic yellowtail flounder exists in that area, we included selective gear requirements with the exemption. For example, in addition to prohibiting the use of flounder nets in these areas, gillnet vessels will be fishing with net mesh sizes consistent with the requirements of nearby Exempted Fisheries that experience little to no groundfish bycatch. These selective gear requirements are in addition to each sector also being restricted by an allocation. We believe that we can monitor this fishery with the standard PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 coverage rate. For these reasons, we believe that the Nantucket Lightship Closed Area differs from Closed Areas I and II, which is why we are approving restricted access to and lower monitoring coverage for this area so sector vessels can target monkfish, skate, and dogfish. Comment 2: Four individuals, the Environmental Defense Fund, the Penobscot East Resource Center, and the Maine Coast Fishermen’s Association suggested that closed areas are helping to provide needed refuge to overfished stocks and are helping struggling stocks rebuild. Response: The results of analyses conducted by the Council’s Closed Area Technical Team (CATT) are mixed when it comes to measuring the effectiveness of closed areas. The data indicate that Closed Area II likely contributed to the recovery of Georges Bank haddock. Some data indicate that Closed Area II is providing refuge to stocks of Georges Bank cod and yellowtail flounder. It appears that a significant portion of the Georges Bank yellowtail flounder population can be found in Closed Area II. Larger cod are found in the Western Gulf of Maine Closed Area, as well as the northern portion of Closed Area II. These stocks have not rebuilt despite these closed areas. The peer-reviewed literature reviewed by the CATT had different findings regarding a correlation between closed areas and stock health. Our proposed rule attempted to provide a balanced approach to reopening the areas by allowing very restricted access. While we are not allowing vessels into Closed Areas I or II, we are allowing vessels into the Nantucket Lightship Closed Area. More importantly, we are not deeming any of these areas as effective or ineffective. Further, this action is for fishing year 2013 only. A full review of essential fish habitats and year-round closures will be undertaken in the Habitat Omnibus Amendment, in which the most effective closed areas will be identified and implemented. Comment 3: Several of the petitions, as well as comments from five individuals, argued that closed areas should not be opened because they protect vital benthic habitat and conserve essential fish habitat. Response: While we agree that closing areas to bottom trawling does provide increased protection for essential fish habitats, the areas we proposed to reopen do not have benthic habitats that are considered vulnerable to fishing. An essential fish habitat assessment was conducted for this action, and we determined that the proposed action E:\FR\FM\16DER1.SGM 16DER1 pmangrum on DSK3VPTVN1PROD with RULES Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations would only have a minimal (or low negative) impact on essential fish habitat for federally managed species in the Northeast Region. As explained in the environmental assessment, benthic habitats in two of the areas (the Eastern Exemption Area within the Nantucket Lightship Closed Area, and Closed Area I) are periodically exposed to scallop dredging, and the overall vulnerability of bottom habitats in all four areas is low. More vulnerable hard-bottom areas in Closed Area II on eastern Georges Bank where there has been no bottom trawling or dredging since these areas were closed in 1994 would have only been exposed to fishing for 2 months. Habitats in the western Nantucket Lightship Closed Area Western Exemption Area are predominantly mud and sand, so any impacts of trawling there would be minimal. Furthermore, we did not propose to open any of the year-round essential fish habitat closed areas any of the areas proposed to be closed in Omnibus Habitat Amendment 2. Comment 4: Environmental Defense Fund and the Maine Coast Fishermen’s Association suggested that closed areas provide managers with a buffer against uncertainty. Response: We agree. A management buffer is helpful during times of such unknowns as retrospective patterns in stock assessments and the effect of climate changes. Based on fishing industry comments that the industryfunded monitoring requirements are unacceptable, we concluded that the benefit of this buffer is greater than the potential increase in catch and revenue from opening Closed Areas I and II. However, because the stocks in Nantucket Lightship Closed Area are healthier, and stocks of monkfish, dogfish, and skates are underharvested, we believe we can allow vessels into those areas with the standard federally funded monitoring coverage. Comment 5: One individual suggested that we conduct additional scientific research, specifically a before-aftercontrol impact analysis, prior to allowing vessels into the closed areas. Response: Gathering additional data would be beneficial; however, we have very limited funding available. Research vessels do trawl in closed areas, but we have limited data from closed areas due to a very small number of tows. Again, this research effort is limited due to fiscal and time constraints. Further, in an effort to provide mitigation now for vessels struggling to overcome reduced allocations for fishing year 2013, we are attempting to provide increased access as soon as possible. It is highly unlikely that enough data could be gathered to VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 properly conduct a before-after-control impact analysis prior to opening the area in fishing year 2013—potentially even before the Omnibus Habitat Amendment. Comment 6: The Conservation Law Foundation, Earthjustice, and one individual commented that opening year-round closed areas to provide financial mitigation to offset decreased revenue that results from declining groundfish allocations is inappropriate. Several other commenters, including members of the fishing industry, environmental organizations, the Council, and Maine Division of Marine Resources, stated that the action as proposed would not provide any economic relief. Some commented that the short-term benefits would not outweigh the long-term financial loss associated with delayed rebuilding efforts. Others suggested that, because the data show no indication that there are larger amounts of fish in the closed areas, there would not be increased revenue from accessing the closed areas. Response: In general, we agree with these comments. Our consideration of these exemptions involved a balancing of providing the industry an additional opportunity to achieve optimum yield to mitigate adverse effects of lower allocations with protecting vulnerable stocks and sufficiently monitoring fishing in these areas. If it were clear that vessels could significantly increase their catch per unit effort in a sustainable manner when accessing the closed areas (as we proposed), we would be more inclined to grant access, should industry participants be willing to pay for observer coverage. This does not seem to be the case for Closed Areas I and II. Because the universal comment submitted by both industry and environmental groups was that the proposed exemptions for Closed Areas I and II would likely not provide the amount of economic relief necessary to offset required monitoring costs, as this rule was intended to do, we are not opening Closed Areas I and II. Because the stocks in Nantucket Lightship Closed Area are healthier than stocks in Closed Areas I and II and because we have included the selective gear requirements, we can provide access to Nantucket Lightship Closed Area with federally funded coverage at the standard coverage rate of 22 percent. Therefore, this option could allow industry more fishing opportunities with no additional expenses. Comment 7: One individual and the Blue Ocean Institute commented that opening the year-round closed areas would result in increased mortality. PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 76083 Response: We disagree with this assumption. Quotas are set using the best available science to limit fishing mortality overall so that overfishing does not result. Each sector is restricted to its allocation, which is a portion of a total quota. Fishing mortality in each of these closed areas would be further constrained by gear or season restrictions. Moreover, as proposed, every trip inside Closed Areas 1 and 2 would have been monitored and all catch (landings plus discards) would have counted against each sector’s allocation. Further, having an at-sea monitor on board every trip would have reduced the possibility of some vessels illegally discarding catch. For each area, if a sector reaches its allocation of even a single stock, it would be prohibited from fishing in that stock area. Therefore, we believe that opening these areas as proposed would not result in increased mortality. Comment 8: The Conservation Law Foundation suggested that requiring 100-percent at-sea monitoring coverage within a closed area and only 22percent coverage outside of a closed area would increase illegal discarding on unobserved trips outside of closed areas. The Conservation Law Foundation explained that the catch inside the closed areas would ‘‘be fully identified by observers and will result in significant reductions in the cod and yellowtail flounder that will be available to sector vessels outside the closed areas. Because the later trips will be observed at a much lower rate and the quotas for cod and yellowtail are so low, this access program almost creates an incentive for sector vessels to misreport cod and yellowtail bycatch and discards on observed trips outside the closed areas . . .’’ Response: We disagree that these exemptions would provide an incentive to discard catch on unobserved trips outside of the closed areas that would result in substantially higher discards on unobserved trips. We have determined that the current level of observer coverage provides sufficiently reliable catch estimates to monitor sector allocations and ensure accountability of catch limits. This level of coverage currently applies outside of the closed areas and is sufficient to provide the basis for discard rates in those areas. Furthermore, because we are not allowing sectors access to Closed Areas I and II through this action, and we are removing the 100-percent coverage requirement for the Nantucket Lightship Closed Area, this concern is no longer valid. E:\FR\FM\16DER1.SGM 16DER1 pmangrum on DSK3VPTVN1PROD with RULES 76084 Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations Process and Policies Comment 9: Several of the environmental groups argued that this action undermines the development of Omnibus Habitat Amendment 2. The commenters explained that this action makes a decision on a closed area prior to the completion of the Omnibus Amendment. For example, the areas this action considered opening represent the ‘‘status quo’’ areas in the Omnibus Amendment. These comments contend that, if we were to open these areas to fishing, they would be damaged prior to potentially being selected as the preferred alternative for the Omnibus Habitat Amendment. Response: Both NMFS and the Council agreed to consider opening these areas because they are not considered to be vulnerable habitat, and this rule is only for a duration of fishing year 2013. The Council did not allow sectors to request exemptions from any areas that were newly proposed essential fish habitat management area alternatives in the Omnibus Habitat Amendment. As explained above, the proposed portions of Eastern Exemption Area within the Nantucket Lightship Closed Area and Closed Area I are already subject to fishing pressure. The Western Exemption Area and Closed Area II that we considered temporarily opening are not considered to be vulnerable to fishing. While these areas are included as the ‘‘status quo’’ under the Omnibus Habitat Amendment, research done by the Habitat Plan Development Team indicates that there could be better areas set-aside for habitat protection than the areas included in this rule. The Omnibus Habitat Amendment is considering numerous potential management areas in combination to minimize adverse effects on essential fish habitat to the extent practicable. This action is specific to providing suitable opportunities to mitigate sharp reductions in catch limits while still preventing overfishing and protecting vulnerable stocks. In other words, we believe that the Omnibus Habitat Amendment will provide ample opportunities to further enhance habitat protection, and these exemptions will not adversely impact that Amendment. Comment 10: Several environmental organizations said that an environmental impact statement (EIS) is necessary because the impacts associated with this action would be significant. Response: Framework 48 permits sectors to request exemptions from portions of the Western Gulf of Maine Closed Area, Closed Area I, Closed Area VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 II, the Nantucket Lightship Closed Area, and Cashes Ledge Closed Area. We determined that the original exemption requests submitted by the sectors could have resulted in significant impacts. However, the Regional Administrator has the authority to modify sector exemption requests, which we did in this instance (see Comment 19 below). The exemptions proposed in this action were limited to areas of low vulnerability and are effective only in fishing year 2013. They included additional gear and season restrictions to further reduce potential impacts. Because of the additional restrictions, we determined that there would not be any significant impact and that an environmental assessment was sufficient for this action. Comment 11: Earthjustice and the Conservation Law Foundation argued that including the groundfish closed areas in a Notice of Intent for the Omnibus Habitat Amendment directly linked the groundfish closed areas with essential fish habitat and that not taking a holistic approach represents a shift in NOAA/NMFS policy. Response: The groundfish closed areas considered in this action were initially established to ‘‘provide protection to depleted cod and haddock stocks.’’ Other commenters, and the Council, have argued that these areas were established as ‘‘mortality closure areas.’’ There are obvious habitat benefits with closing an area to fishing, so it is understandable how the two can be linked. Simply put, not fishing in an area can provide an opportunity to improve the habitat. Despite the fact that some argue that the proposed areas represent ‘‘de facto’’ habitat closed areas, and that discussing the two in the same Notice of Intent links them, they are in fact, two separate closures that are managed differently. Mobile bottom tending gear (bottom trawls and dredges) are prohibited from fishing in a habitat closed area. However, vessels can use bottom trawls and dredges in some groundfish yearround closed areas, for instance, through groundfish special access programs and scallop access areas. Because of this, we supported the ability for sectors to request exemptions from portions of groundfish closed areas that are not managed as essential fish habitat closed areas, and we are allowing vessels to fish in portions of the Nantucket Lightship Closed Area. Comment 12: Earthjustice and the Conservation Law Foundation commented that this action (opening closed areas) cannot be undertaken as a framework adjustment to the groundfish PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 plan and that an amendment is necessary. Response: This comment was also submitted as a comment to Framework 48 allowing sectors to request a regulatory exemption that would allow them to fish in portions of the groundfish year-round closed areas. The response to this comment can also be found in the final rule for Framework 48 (78 FR 26148, May 3, 2013). The regulations at § 648.90(c)(1)(i) state that changes to closed areas, management boundaries, essential fish habitat, sector administrative provisions, and sector specifications can be made in a framework. We believe that this action is consistent with the goals and objectives of the groundfish plan. For these reasons, we do not believe that an amendment is necessary. Comment 13: The Conservation Law Foundation contends that this action illegally segments the required National Environmental Policy Act (NEPA) analyses from the Council’s ongoing Omnibus Habitat Amendment. Response: We responded to this comment in the final rule for Framework 48 (78 FR 26146, May 3, 2013). In our response we explained that we are not avoiding the development of an EIS because an EIS is being drafted for the Omnibus Habitat Amendment. Comment 14: Several environmental groups claim that this action is inconsistent with the Magnuson-Stevens Act, NEPA, the Endangered Species Act, and the Marine Mammal Protection Act. They also commented that a Finding of No Significance (FONSI) cannot be approved for an environmental assessment without a proper Endangered Species Act (ESA) Section 7 consultation. Response: NMFS followed the requirements of the Magnuson-Stevens Act and NEPA and believe that this action is consistent with the MagnusonStevens Act National Standards and the goals and objectives of the groundfish plan. The approved exemption balances providing an additional opportunity to achieve optimum yield to mitigate reductions in catch limits while preventing overfishing and protecting vulnerable stocks. We conducted an environmental assessment, including a review of impacts on essential fish habitat and endangered species and determined that there are no significant impacts. While an ESA Section 7 consultation continues to be developed for the groundfish plan, we have determined that allowing these fisheries and associated research to continue during the reinitiation period will not violate E:\FR\FM\16DER1.SGM 16DER1 Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES ESA sections 7(a)(2) and 7(d), meaning this action will not jeopardize the ESAlisted species in the action area. Northeast Regional Office staff analyzed these exemption requests through an environmental assessment, reviewed the assessment, and concluded that there would be no significant impacts. Comment 15: Earthjustice and the Conservation Law Foundation commented that this rule represents a policy shift from Amendments 11 and 13 to the groundfish plan, where we explained that essential fish habitat is necessary to help groundfish stocks rebuild. Response: We agree that it is necessary to minimize adverse impacts of fishing on essential fish habitat to the extent practicable. We do not believe that this rule represents a policy shift, however. It meets the goals and objectives of the groundfish plan and is consistent with Magnuson-Stevens Act National Standards. It balances allowing vessels an additional opportunity to achieve optimum yield to mitigate the adverse effects of reduced catch limits while preventing overfishing and protecting vulnerable fish stocks and habitat. The proposed areas are not vulnerable habitats and are already exposed to fishing pressure (see comments 3 and 9 above). The exemption attempts to minimize costs and improve efficient use of resources while taking into account the variations and contingencies in fisheries by allowing vessels to target healthy stocks while avoiding more vulnerable stocks and adjusting monitoring levels where practicable. We also included additional gear and seasonality restrictions that further help minimize bycatch to the extent practicable. Specifically, based on public comment and our continuing goal of rebuilding fish stocks, we are not opening Closed Areas I and II. We are opening the portions of the Nantucket Lightship Closed Area because the area is not critical to stocks that are overfished or undergoing overfishing, such as Georges Bank cod or yellowtail flounder. Further, we have included additional restrictions with this exemption that will limit groundfish harvests while allowing vessels to target monkfish, skates, and dogfish. Protected Species Interactions Comment 16: One petition, the Center for Biological Diversity, the Humane Society, Whale and Dolphin Conservation, the Conservation Law Foundation, and one individual commented that they are concerned about an increase in protected species interactions in the proposed areas. One VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 individual also commented that gillnets should be prohibited from fishing in any of the proposed areas. Response: Analyses in the EIS for the Large Whale Take Reduction Plan indicate that the impacts on large whales and harbor porpoises from gillnets in these areas is substantially less than pot gear. In other words, there are significantly more vertical lines from pot gear than gillnets and, as a result, most impacts result from pot gear, not gillnet gear. For more information, see Chapter 3 of the Large Whale Take Reduction Plan EIS can be found at http://www.nero.noaa.gov/protected/ whaletrp/eis2013/deis/chapter-3regulatory_alternatives.pdf. To reduce potential impacts on harbor porpoises, we are requiring pingers in the Western Exemption Area of the Nantucket Lightship Closed Area as required by the Harbor Porpoise Take Reduction Plan. Importantly, it is likely that vessels will only fish in this area if they can increase their catch per unit effort of whatever fish they are targeting. In other words, it is illogical for vessels to continually fish in an area where they catch less fish. We expect either this area will not be more productive and will not be utilized, or it will be utilized with greater catch per unit effort, which would reduce the overall effort and therefore reduce the potential for interactions between protected species and fishing gear. Comment 17: The Center for Biological Diversity, the Humane Society, and Whale and Dolphin Conservation argued that the Harbor Porpoise and Atlantic Large Whale Take Reduction Plans were constructed assuming that these areas would be closed. Response: The original Harbor Porpoise Take Reduction Plan was based on the Gulf of Maine rolling closures, designed to protect spawning Gulf of Maine cod. The Western Gulf of Maine and Cashes Ledge year-round closed areas were added shortly afterwards (63 FR 66464, December 2, 1998). One of the reasons we cited for not including the Western Gulf of Maine and Cashes Ledge closed areas in the proposed rule was because of our concern about harbor porpoise interactions. Importantly, overall fishing effort has been decreasing as a result of the drastic reductions in allocations. There were 447 takes during fishing year 2011 compared to the established potential biological removal level of 706. Furthermore, if there is an unanticipated increase in observed interactions with protected species as a PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 76085 result of allowing vessels to fish in the Nantucket Lightship Closed Area, the Regional Administrator reserves the authority to revoke the exemption. In addition, both the Harbor Porpoise and Large Whale Take Reduction Plans include accountability measures that would be enacted if the potential biological removal level is exceeded. Lastly, as previously stated, this action complies with and follows the requirements of the Harbor Porpoise Take Reduction Plan, including the use of pingers in the Western Exemption Area. One peer-reviewed study that was published in the journal Nature (1997, Vol 388, page 525) found that harbor porpoise takes were reduced by 92 percent when pingers were used. For these reasons, in addition to those included in the environmental assessment for this action, we do not believe that opening portions of the Nantucket Lightship Closed Area will have a significant impact on harbor porpoise or large whales. Industry-Funded At-Sea Monitoring Comment 18: Several fishing industry groups, including the Associated Fisheries of Maine, the Cape Cod Commercial Fishermen’s Alliance, and the Northeast Seafood Coalition, along with the Council, Maine Division of Marine Resources, and several individuals, argued that the fishing industry needs financial assistance and that requiring industry to fund an at-sea monitor on 100 percent of the trips into closed area is financially unfeasible and negates the benefits of the proposed action. Response: We proposed 100-percent at sea monitoring coverage for several reasons. As explained earlier in the preamble, these areas were originally closed to protect struggling fish stocks. Specifically, Closed Areas I and II were closed to protect Georges Bank cod and haddock. Because we know Georges Bank cod and yellowtail flounder, which are both severely depleted, reside in these areas, we believe it would be appropriate to require additional monitoring coverage if they were opened, so that we could thoroughly account for catch and discards. There is very little historical catch data from these areas, and we are concerned that observing only 22 percent of the trips into the area could be insufficient to identify changes in the discard rates for groundfish stocks. Monitoring every trip would allow us to respond more quickly, should there be an unanticipated impact to the area, such as increased harvests of juveniles, large adult spawners, or impacts on protected species. If a large amount of haddock, E:\FR\FM\16DER1.SGM 16DER1 pmangrum on DSK3VPTVN1PROD with RULES 76086 Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations cod, or yellowtail flounder were found in a re-opened area, then vessels could accidentally catch more fish than they have an allocation for, which could create an incentive for illegal discarding in an area for which we do not have established discard rates. Also, if there were a large amount of haddock in the area, a vessel could be tempted to misreport or illegally discard limiting stocks of Georges Bank cod and yellowtail flounder so that it could continue to harvest haddock. For these reasons, we believe that the proposed 100-percent at-sea monitoring coverage would be necessary if Closed Areas I and II were reopened. We disagree with assertions that we are not providing mitigation to the fishing industry. We do not have enough Federal funds to cover this level of monitoring in these areas because we are already paying for 100 percent of the coverage on standard sector fishing trips. Arguably, we could fund trips into this area if we reduced our funding of other trips—but we do not believe this is a viable solution to provide coverage across the entire sector fishery. Amendment 16 stated that sectors would be required to fund all their monitoring coverage by fishing year 2012, yet we have provided funding for fishing years 2012, 2013, and are working to provide assistance for at least a portion of monitoring costs in fishing year 2014. After reconsidering our initial proposal, we believe that we can allow vessels into portions of Nantucket Lightship Closed Areas with standard levels of monitoring coverage. Because we do not anticipate an increase in effort resulting from this decision, we believe that we can fund these trips. Comment 19: Associated Fisheries of Maine, Maine Division of Marine Resources, the Council, and several individuals contend that NMFS inappropriately altered the Council’s intent for Framework 48 by requiring 100-percent industry-funded at-sea monitoring without Council comment. Associated Fisheries of Maine, the Northeast Seafood Coalition, and several individuals also argued that NMFS should not alter the action as proposed by the Council and requested by the sectors. Response: The regulations provide the Regional Administrator with the authority to consider, approve/ disapprove, and modify exemption requests proposed by sectors (§ 648.87(c)(1–2)). We are required to ensure that exemptions are consistent with the Magnuson-Stevens Act National Standards and the groundfish plan’s goals and objectives. We VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 modified the request after careful consideration of the many factors required to ensure that compliance. Further, we modified the sector requests to avoid significant environmental impacts and to allow sectors to fish under the exemption during the current fishing year. The proposed rule for fishing year 2013 sector operations plans (78 FR 16220; March 14, 2013, see page 16236) explained that we would require 100percent industry-funded at-sea monitoring for several exemptions, including access to year-round closed areas. The comment period for the sector operations plans proposed rule was from March 14, 2013, until March 29, 2013. The Framework 48 final rule explained that it was unlikely that we would open the Western Gulf of Maine or Cashes Ledge Year-Round Closed Areas (78 FR 26118; May 3, 2013, see page 26145). Also, the Framework 48 final rule and the final rule for fishing year 2013 sector operations plans responded to comments opposed to industry-funded at-sea monitoring (78 FR 26118; May 3, 2013, see page 26145 and 78 FR 25591; May 2, 2013, see page 25610). Despite these comments and responses, the issue was not discussed at either the June 12, 2013, Groundfish Committee meeting or the June Council meeting the following week. We believe that the Council had adequate opportunities to comment on this issue. We must consider efficiency in the utilization of fishery resources and minimize costs to the extent practicable when we consider exemptions. For example, if opening these closed areas were to provide sector vessels with economic benefits, the economic benefits should at least outweigh the costs of the appropriate level of at-sea monitoring deemed necessary to properly account for catch. If the financial benefits do not outweigh the costs of carrying a monitor, we believe that there is likely not enough financial incentive (enough fish) to outweigh the potential resource risks. This conclusion is supported by our analyses, as well as analyses by the Council’s Closed Area Technical Team and industry comments. To be clear, we have modified sector exemptions in the past and will likely modify them in the future if we believe it could be beneficial to the sectors. We do not necessarily know the impact of an exemption request until we analyze it. We need to review the requests within an environmental assessment. If an exemption request could have a significant impact, it requires an EIS. Because an EIS requires a substantial amount of time to develop, it is not PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 possible to develop an EIS in time to approve a sector exemption during the fishing year. Furthermore, any action that requires an EIS should likely be discussed and approved by the Council. It should be noted that approved exemptions are completely voluntary. Exemption requests are not regulations that are required to be approved or implemented. We view exemptions as opportunities to provide additional flexibility that can be utilized by a sector vessel as they wish, as long as the exemption meets the goals and objectives of the groundfish plan. Despite frequent opposition by industry to our modifications of exemption requests, we propose revised exemptions as an effort to aid sectors by offering an approvable option instead of simply denying a request. As explained earlier, the proposed rule was our attempt at finding a sustainable solution to a controversial issue. Comment 20: The Council contends that catch history is not needed to accurately estimate discard rates because Standardized Bycatch Reporting Methodologies (SBRM) exist. The Council suggests that nothing in the SBRM guidelines link the accuracy of discard estimates to past catch history. The Council contends that SBRM does not indicate that 100-percent observer coverage is necessary in order to accurately monitor protected species interactions. Lastly, the Council argues that there is no evidence that the Agency considered a coverage level that is higher than in open areas but less than 100 percent. Response: Because these areas have been closed, there is a lack of historical fishing data within the closed areas (referred to here as ‘‘catch history’’). We are concerned that observing only 22 percent of the trips into the area could be insufficient to identify changes in the discard rates for groundfish stocks. Monitoring every trip allows us to respond more quickly, should there be an unanticipated impact to the area, such as increased harvests of juveniles, large adult spawners, or protected species. The SBRM is not used alone to determine the at-sea monitoring levels necessary to monitor proposed management measures. It is a methodology designed to specify at-sea observer coverage levels that will allow discards to be estimated for the groundfish stocks as a group, with a specified level of precision. Text from the executive summary of the 2011 SBRM 3-year Review Report explains that ‘‘SBRM is not intended to be the definitive document on the estimation methods nor is it a compendium of discard rates and total discards. Instead, E:\FR\FM\16DER1.SGM 16DER1 pmangrum on DSK3VPTVN1PROD with RULES Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations the SBRM is intended to support the application of multiple bycatch estimation methods that can be used in specific stock assessments. The SBRM provides a general structure for defining fisheries into homogeneous groups and allocating observer coverage based on prior information and the expected improvement in overall performance of the program. The general structure helps identify gaps in existing coverage, similarities among groups that allow for realistic imputation, and the tradeoffs associated with coverage levels for different species.’’ While SBRM may not indicate that 100-percent coverage is necessary to properly monitor protected species interactions, 100-percent coverage was proposed not only for protected species interactions, but also to monitor catch (including discards) in an area where we have very little fishery data. We did consider a coverage level that was higher than that in an open area but less than 100 percent but decided, as stated in comment 18, that 100-percent monitoring would be necessary for this exemption. For additional information on why we proposed 100-percent industry-funded at-sea monitoring, see the proposed rule for fishing year 2013 sector operations plans (78 FR 16220; page 16236). Also, it appears from the comments submitted on behalf of industry members that industry is unwilling to pay for any level of at-sea monitoring, making the argument for an intermediate level of coverage moot. Recognizing the concern of the Council though, we have modified our original proposal to allow vessels to fish in portions of the Nantucket Lightship Closed Area with at least the standard monitoring coverage rate. Comment 21: The Cape Cod Commercial Fishermen’s Alliance suggested that we should have additional funding for at-sea monitoring this year due to a reduction in effort. Response: We do not have additional funding this year. Only 6 months before the fishing year started, we were unsure if we would be able to even cover half of the trips that needed to be monitored. However, we were able to find additional money, and because of additional money that could be carried over from the previous year, we are hopeful we can fund observer coverage at the specified level for fishing year 2013. We are going to fund the monitoring of trips into the Eastern and Western Exemption Areas in Nantucket Lightship Closed Area. If any additional at-sea monitoring or Northeast Fisheries Observer Program funding remains, we will increase our coverage as possible. VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 We do not have adequate funding to pay for trips into Closed Areas I and II at the full coverage rate we believe is necessary. Comment 22: The Council argued the Atlantic Herring management plan allows herring mid-water trawl vessels to fish in the groundfish closed areas only when an observer, funded by NMFS, is on board, and that a similar approach should be permitted in the groundfish fishery. Response: We implemented a similar approach to industry-funded at-sea monitoring coverage with a fishing year 2012 exemption that allowed vessels to target redfish with smaller mesh (78 FR 14226; March 5, 2013). However, we were uncomfortable with this approach and later explained in the proposed rule for fishing year 2013 sector operations plans why we would not propose this method in the future (78 FR 16220; March 14, 2013, see page 16236). Essentially, we believe that a vessel that could fish in the closed areas would do so whenever it was randomly selected for an observer or at sea monitor. If every vessel did this, it could skew our observer coverage, affect our discard and catch estimates, and possibly prevent us from achieving the required at-sea monitoring coverage levels in other stock areas. Further, the at-sea monitoring coverage requirements for the herring fishery are very different. Unlike the groundfish fishery, there is no regulatory requirement for at-sea monitoring coverage to achieve a specified level of precision. Comment 23: The Cape Cod Commercial Fishermen’s Alliance, The Maine Coast Fishermen’s Association, Penobscot East Resource Center, and the Environmental Defense Fund supported our requirement for 100-percent at-sea monitoring coverage. These groups felt that a high level of monitoring is necessary to provide more real-time data. The Penobscot East Resource Center also commented that discarding in these areas is at a higher level than other areas. Response: We proposed 100-percent monitoring because we believe it is necessary to properly monitor catch under these circumstances. A higher coverage rate allows us to better monitor vessels utilizing the exemption and therefore better manage the fishery, meaning we could stop the exemption if there were any unanticipated negative impacts. After further review, we are opening portions of the Nantucket Lightship Closed Area with the standard coverage level because we have less concern about overfished groundfish stocks in that area. PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 76087 Comment 24: Environmental Defense Fund and the Cape Cod Commercial Fishermen’s Alliance suggested that we make the at-sea monitoring information recorded from these areas available to the public following the end of the fishing year. Response: To explain the fishing year 2013 at-sea monitoring requirements for the fishery, we published a document titled, ‘‘Summary of analyses conducted to determine at-sea monitoring requirements for multispecies sectors, fishing year 2013.’’ This report is available online at http:// www.nero.noaa.gov/ro/fso/reports/ Sectors/ASM/FY2013_Multispecies_ Sector_ASM_Requirements_ Summary.pdf. One of the appendices to that report presents data for each sector, by stock and gear, in a manner consistent with the data confidentiality requirements of Section 402(b) of the Magnuson-Stevens Act. This final rule establishes a sector exemption for specified gears within the Nantucket Lightship Closed Area requiring only the standard at-sea monitoring coverage level. As a result, the data for sector vessels that make trips into the exemption area will be pooled with the data for other trips made by vessels in each sector when the stock area and gear are the same. The information from the 2013 fishing year will be included in the summary we will publish in 2014 to support the determination of the at-sea monitoring requirements for the FY 2015 fishery. General Opposition to the Rule as Proposed Comment 25: The Associated Fisheries of Maine, Northeast Sector Support Network, Northeast Seafood Coalition, and several industry members suggested that we should open Cashes Ledge and the Western Gulf of Maine year-round closed areas. Response: We did not propose allowing access to these areas because we cannot ensure at this time that access to these areas would be consistent with the groundfish plans goals and objectives and the MagnusonStevens Act National Standards. These areas provide refuge to overfished stocks of Gulf of Maine cod and haddock, both which are overfished and subject to overfishing. In addition, harbor porpoise are commonly found in the Western Gulf of Maine. The Council may consider opening up these portions after developing an EIS for the Omnibus Habitat Amendment, but we do not feel that it is appropriate to open these areas at this time. Comment 26: The Northeast Seafood Coalition and the Northeast Sector E:\FR\FM\16DER1.SGM 16DER1 pmangrum on DSK3VPTVN1PROD with RULES 76088 Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations Support Network contend that effort controls are no longer necessary now that sectors have an allocation that limits their effort. As a result, closed areas and the accompanying restrictions that are proposed in this rule are not necessary to manage the fishery. Response: We strongly disagree that managing effort, or input controls, including the use of closed areas and gear restrictions, are no longer necessary. Since Amendment 16 to the groundfish plan established annual catch limits and accountability measures and expanded the scope of sectors, not one sector has exceeded its allocation—this is important in a quotamanaged fishery. Yet several key groundfish stocks, including Gulf of Maine cod, Gulf of Maine haddock, Georges Bank cod, and Georges Bank yellowtail flounder, are in worse condition than they were in fishing year 2010 when Amendment 16 was implemented. Despite our attempts at utilizing the best available science to develop annual quotas, and despite each sector adhering to its allocation each fishing year, many of our stocks continue to struggle to rebuild for a variety of reasons, including poor recruitment and possibly climate change. Simply put, quotas alone cannot manage this fishery. Because of this, we do believe that additional measures, such as protection for juvenile and spawning fish, as well as essential fish habitats, are vital to helping the stocks rebuild. Furthermore, it is counter-productive to increase fishing pressure on stocks that are overfished and undergoing overfishing. Comment 27: The Northeast Seafood Coalition and the Northeast Sector Support Network are opposed to the seasonality restrictions that were included in the proposed rule. The Cape Cod Commercial Fishermen’s Alliance argued that gillnets should be permitted in Closed Area I and that hook gear should not be subject to the same restrictions as lobster and trawl gear. Response: The seasonality restrictions were included to protect spawning stocks of Georges Bank cod, which is overfished and undergoing overfishing. As explained on our response to Comment 26, we believe effort controls such as seasonality restrictions are necessary to protect stocks that are in poor condition. The Cape Cod Commercial Fishermen’s Alliance comment focused on the fact that Closed Area I is not in a designated whale protection zone, harbor porpoise are not in the area, and pinger compliance could reduce any concern of increased interactions with protected species. We were prohibiting VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 gillnets in the Closed Area I exemption area to protect Georges Bank cod because gillnets have relatively high bycatch rates; we were not prohibiting them in the area because of protected species interactions. Lastly, the comment suggesting that hook gear should not be subject to the same restrictions as lobster and trawl gear as defined by the Addendum XX to the Atlantic States Marine Fisheries Commission Lobster Management Plan is moot since we are no longer opening Closed Area II as proposed. Comment 28: The Northeast Seafood Coalition and Northeast Sector Support Network commented that the mortality closure areas, which is what the Council included in Framework 48 as areas that sectors could request exemptions from, have never been identified as habitat closed areas either in the past or proposed as alternatives in the Omnibus Habitat Amendment. Further, they say that they are commonly known and understood to be mortality closures only. Response: As explained in the response to comment section in the Framework 48 final rule (78 FR 26118; May 3, 2013; see pages 26147–26148), the record clearly shows that the areas in question were created with several considerations in mind, including protection for spawning stocks and improvement of benthic habitats. It is not irrational to link mortality closure areas with habitat closure areas because there has been no groundfish fishing in many of the mortality areas, specifically the portions we proposed to open in this rule, for almost 20 years. It seems reasonable to argue that an area that was once closed to reduce mortality has been closed so long that it has improved habitat. However, as explained in our response to Comment 11, we are not denying access to Closed Areas I and II because of habitat concerns. In fact, we proposed to open the areas because we believe that the habitat in these areas is either already subject to fishing pressure or not vulnerable to fishing. We are not allowing access into these two areas because industry has stated that they are unable to pay for the monitoring coverage we see necessary, given our concern about the health of such groundfish as Georges Bank cod and yellowtail flounder. Comments in General Support of the Proposed Action Comment 29: The Penobscot East Resource Center commented that allowing vessels offshore into Closed Areas I and II could increase inshore PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 fishing opportunities for smaller dayboats. Response: We expect this would be the case, at least to some degree, if the areas were opened. However, there is no guarantee that allowing vessels to fish offshore in Closed Areas I and II would reduce their inshore fishing effort. For example, even though a vessel may shift some of its fishing effort into Closed Area II to increase its catch of Georges Bank haddock, that vessel still has an allocation of Gulf of Maine winter flounder, American plaice, Cape Cod/ Gulf of Maine yellowtail flounder, and other stocks that they could possibly catch inshore. As a result, approving the proposed opening of offshore areas would not necessarily reduce the inshore fishing effort of large vessels. Comment 30: The Maine Coastal Fishermen’s Association supported the accountability measures as proposed. Response: We modified the exemptions because we believe that access to closed areas needs to be done in a responsible manner that is well monitored and protects struggling fish stocks. It is also important to consider the efficiency of fishery resources so that the utility of opening an area outweighs the potential costs, and to the extent practicable, reduce adverse economic impacts on communities and minimize costs. Because the vast majority of the comments submitted argued that the areas should not be opened, and industry is unwilling to pay for additional monitoring that we deem necessary to monitor stocks of concern, we are not opening Closed Areas I and II. Comment 31: Environmental Defense Fund and the Penobscot East Resource Center suggested developing trigger thresholds that would result in closing the areas if certain catch levels are obtained. Response: While we agree with this concept, we are not opening Closed Areas I or II at this time, therefore thresholds are not needed for those areas. We will monitor catches of groundfish, as well as catches of monkfish, dogfish, and skates in the Nantucket Lightship Closed Area, and will revoke the exemption if opening the area results in any unanticipated negative impacts. We will also revoke the exemption if it is determined that we have insufficient funding to meet our monitoring costs by allowing access to this area under standard observer coverage. Comment 32: The Environmental Defense Fund supported opening the Nantucket Lightship Closed Area as long as a Great South Channel closure E:\FR\FM\16DER1.SGM 16DER1 Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations is included in the Omnibus Habitat Amendment. Response: While we support the idea of a variety of habitat closure areas in a variety of locations, we cannot predict a future Council decision. There are several alternatives in the Council’s Omnibus Habitat Amendment for the Great South Channel area, and we continue to support a comprehensive approach to habitat protection. We proposed opening the Nantucket Lightship Closed Area because we do not believe that it provides extensive habitat benefits and the benefits to the groundfish fishery of re-opening that area outweigh the potential impacts on fishery stocks. The Omnibus Habitat Amendment, if approved, is intended to minimize the adverse effects of fishing on EFH, to the extent practicable. Comment 33: The Atlantic Offshore Lobstermen’s Association and one industry member suggested that NMFS needs to anticipate potential gear conflicts and work with industry to resolve the conflicts rather than forcing industry to take on the burden itself. Response: We understand the concerns expressed by lobstermen and will take a more active role in the future. Further, we commend the lobster and groundfish industries for working together to develop a compromise. Because we did not approve the exemption that would allow sector vessels into a portion of Closed Area II, the lobster agreement made between the Atlantic Offshore Lobstermen’s Association and several sectors is no longer necessary for fishing year 2013. If sectors request the exemption for fishing year 2014, and if it is approved, the agreement would come into play and the regulatory language that was included in the proposed rule would be proposed again. Regulations adding increased restrictions on offshore lobster vessels were included in the proposed rule, but because the exemption is not being approved, the regulations are not included in this final rule. If the exemption is requested in the future, similar regulations would be proposed and would be implemented if the exemption were approved. pmangrum on DSK3VPTVN1PROD with RULES Classification Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Northeast Multispecies Fishery Management Plan, other provisions of the Magnuson-Stevens Act, and other applicable law. VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 This final rule has been determined to be significant for purposes of Executive Order E.O. 12866. This final rule does not contain policies with federalism or ‘‘takings’’ implications as those terms are defined in E.O. 13132 and E.O. 12630. Under 5 U.S.C. 553(d)(1), the Assistant Administrator for Fisheries finds good cause to waive the 30-day delayed effectiveness of this action. Waiving the 30-day delay in the effective date balances the needs of different user groups who fish in the Eastern and Western Exemption Areas. This action reduces regulatory restrictions by allowing sector vessels access to areas previously closed to fishing. Failure to waive the 30-day delayed effectiveness would result in missed opportunities for sector vessels to increase profits by increasing their catch of healthy fish stocks that are underharvested. However, NMFS is allowing for 15 days before implementing this rule so that vessels fishing fixed gear, such as lobster pots, in the Eastern and Western Exemption Areas can remove their gear from the areas should they wish to do so. This shorter delay should provide sufficient time for vessels to remove gear and avoid potential gear conflicts while also providing sector vessels quick access to these fishing grounds. Implementing this plan quickly meets Objectives 1 and 3 of the groundfish plan by allowing sector vessels additional fishing opportunities. Selective gears used in these areas reduces bycatch, and minimizes habitat impacts (Objectives 9 and 10). The Regulatory Flexibility Act, 5 U.S.C. 601–612, requires agencies to assess the economic impacts of their proposed regulations on small entities. The objective of the Regulatory Flexibility Act 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. On June 20, 2013, the Small Business Administration (SBA) issued a final rule revising the small business size standards for several industries effective July 22, 2013 (78 FR 37398). The rule increased the size standard for Finfish Fishing from $4.0 to $19.0 million, Shellfish Fishing from $4.0 to $5.0 million, and Other Marine Fishing from $4.0 to $7.0 million. Taking this change and public comment into consideration, NMFS has identified no additional significant PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 76089 alternatives that accomplish statutory objectives and minimize any significant economic impacts of the proposed rule on small entities. Because sector exemptions are voluntary and would likely only be utilized when economically beneficial to sector vessels, we do not see any difference between impacts to larger vessels or companies versus smaller. We also do not see any significant economic impacts in general. Further, the new size standards do not affect the decision to prepare a Final Regulatory Flexibility Analysis as opposed to a certification for this action. Because there are so few companies that were listed as large entities prior to the rule change, increasing the size standards would only further reduce the number of larger entities. In this instance we believe that preparing a Final Regulatory Flexibility Analysis was a more transparent, conservative, responsible approach that required additional analyses that provided the agency and the public with more information. Pursuant to the Regulatory Flexibility Act, and prior to Small Business Administration’s June 20 final rule, an initial regulatory flexibility analysis was developed for this action using Small Business Administration’s former size standards. NMFS has reviewed the analyses prepared for this action in light of the new size standards. The new standards could result in a few more entities being considered small. 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)). A Final Regulatory Flexibility Analysis was prepared for this action, as required by section 604 of the Regulatory Flexibility Act. The Final Regulatory Flexibility Analysis includes the SUMMARY and Comments and Responses section in this rule, the analyses contained in the accompanying environmental assessment (including the Regulatory Impact Review and Regulatory Flexibility Analysis, and the Initial Regulatory Flexibility Analyses summary in the proposed rule). The Final Regulatory Flexibility Analysis describes the economic impact of this action on small entities. A description of the action, why it is being considered, and the legal basis for this action are E:\FR\FM\16DER1.SGM 16DER1 76090 Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations contained in the preamble to the proposed and final rule 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 to 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 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 day-at-sea 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 this action is contained in Section 2.0 of the EA. pmangrum on DSK3VPTVN1PROD with RULES The Objectives and Legal Basis for the Proposed Action This action grants sectors a regulatory exemption allowing sector vessels restricted access to fish in portions of Nantucket Lightship Closed Area. The legal basis for the proposed action is the NE Multispecies FMP and promulgating regulations at § 648.87. Regulations adding increased restrictions on offshore lobster vessels were included in the proposed rule, but because the exemption is not being approved, the regulations are not included in this final rule. Estimate of the Number of Small Entities As explained above, the SBA size standard for commercial fin-fishing entities (North American Industry Classification System code 114111) is $19 million in annual sales and $5 million in annual sales for shellfish fishing entities. To determine an entity’s size, we consider a vessel’s affiliations. 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. VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 Using the Small Business Administration’s size standard prior to its revision, NMFS determined that the maximum number of entities affected by this action is expected to be approximately 303. A total of 301 groundfish ownership entities are considered small entities, based on the Small Business Administration’s prior size standard. It is likely that all 303 of the groundfish vessels ownership entities would be considered small entities following the Small Business Administration’s revision. The economic impact resulting from this action on these small groundfish entities is positive, since the action provides additional operational flexibility to vessels participating in NE multispecies sectors for FY 2013. In addition, this action further mitigates 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. Reporting, Recordkeeping, and Other Compliance Requirements This rule contains no collection-ofinformation requirement subject to the Paperwork Reduction Act. This action provides additional flexibility to sector vessels in fishing year 2013 by allowing them to fish in areas that were previously closed. Sector vessels are required to declare their intent to fish in these areas prior to departure. Exemptions implemented through this action will 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 final rule 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 this action, 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 PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 could contribute to continued under harvesting of Georges Bank haddock and would eliminate the potential for groundfish fishermen to increase their profits by limiting access to other stocks such as monkfish, dogfish, and skates. The Preferred Alternative (the proposed action) would allow sector vessels to fish in portions of the Nantucket Lightship Closed Area, Closed Area I, and/or Closed Area II. The Preferred Alternative is expected to 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 the groundfish plan within certain groundfish closed areas. 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 allocation, sector members will have a greater opportunity to remain economically viable while adjusting to changing economic and fishing conditions. Thus, the preferred 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; E:\FR\FM\16DER1.SGM 16DER1 Federal Register / Vol. 78, No. 241 / Monday, December 16, 2013 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES 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 include 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 VerDate Mar<15>2010 13:31 Dec 13, 2013 Jkt 232001 exemption. However, each exemption will only be implemented for the sector(s) that requested that exemption. Approval of this rule would provide greater operational flexibility and increased fishing 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 PO 00000 Frm 00061 Fmt 4700 Sfmt 9990 76091 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. Authority: 16 U.S.C. 1801 et seq. Dated: December 11, 2013. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2013–29857 Filed 12–13–13; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\16DER1.SGM 16DER1

Agencies

[Federal Register Volume 78, Number 241 (Monday, December 16, 2013)]
[Rules and Regulations]
[Pages 76077-76091]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-29857]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 648 and 697

[Docket No. 130319263-3823-02]
RIN 0648-BD09


Magnuson-Stevens Act Provisions; Fisheries of the Northeastern 
United States; Northeast Multispecies Fishery; Final 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: Interim final rule.

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SUMMARY: This rule allows fishing access for Northeast multispecies 
sectors to two portions of the Southern New England Nantucket Lightship 
Closed Area for the remainder of the 2013 fishing year under specified 
conditions. Although NMFS considered and proposed exemption requests 
that would allow sector vessels access to portions of Georges Bank 
Closed Areas I and II, NMFS is not granting access to those areas at 
this time. The intent of this rule is to allow sector vessels increased 
opportunities to harvest non-groundfish stocks such as monkfish, 
dogfish, and skates while minimizing impacts to overfished groundfish 
stock such as Georges Bank cod and yellowtail flounder.

DATES: Effective December 31, 2013, through April 30, 2014. Comments on 
the interim monitoring coverage measure must be received by January 15, 
2014.

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: http://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

[[Page 76078]]

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 Interim Final 
Rule.''
    Instructions: All comments received are part of the public record 
and will generally be posted to http://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) allows sectors to request regulatory exemptions 
in their annual sector operations plans. We review and approve or 
disapprove sector exemptions on an annual basis. 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 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).
    On May 3, 2013, NMFS partially approved Framework Adjustment 48 to 
the groundfish plan, which includes a provision that allows sectors to 
request access to year-round mortality closure areas. For additional 
information on Framework 48, see 78 FR 26118; May 3, 2013. Anticipating 
that Framework 48 would be approved, sectors included exemption 
requests from year-round closure areas in their initial fishing year 
2013 operations plan submissions in the fall of 2012. This interim 
final rule partially approves these exemption requests.
    As explained in the proposed rule (78 FR 41772; July 11, 2013), 
recent analyses of these closed areas were undertaken by the New 
England Fishery Management Council's (Council) Closed Area Technical 
Team (CATT). Much of the work done by the CATT was incorporated into 
the environmental assessment that accompanies this action. In a 
separate action, the Council is also in the process of preparing 
Essential Fish Habitat (EFH) Omnibus Amendment 2 (referred to as the 
Omnibus Habitat Amendment) to several fishery management plans, 
including the groundfish plan. It is anticipated that the Omnibus 
Habitat Amendment will be completed by May 2014, and potentially 
implemented by the end of 2014.
    While the measures approved in this rule are only for the 2013 
fishing year, the current closed areas could be modified sometime 
during the 2014 fishing year as a result of the Omnibus Habitat 
Amendment. The Omnibus Habitat Amendment is considering allowing access 
to the areas being opened in this action within the context of 
balancing the protections and opportunities provided by a broad array 
of potential essential fish habitat management areas. The balance will 
seek to minimize impacts to essential fish habitat to the extent 
practicable. This action involves access to portions of these specific 
closed areas, without balancing the potential protections or 
opportunities provided by other areas. The broader focus of the Omnibus 
Habitat Amendment may result in providing more or less restrictive 
access to the portions of the closed areas considered in this action. 
Additional information on the Omnibus Habitat Amendment, including a 
map and descriptions of the proposed closed area modifications, can be 
found on the Council's Web site at http://nefmc.org/habitat/index.html.
    We considered exemption requests from portions of the Nantucket 
Lightship Closed Area and Closed Areas I and II in a separate action 
from the final rule for fishing year 2013 sector operations plans for 
several reasons. First, proposing these exemption requests in a 
separate action gave us additional time to develop a more detailed and 
complete environmental analysis. Second, it provided a better 
opportunity to address specific concerns with the potential impact of 
actual sector proposals. Third, the public could provide additional 
comments to those already expressed in response to Framework 48. 
Fourth, because access to these closed areas was considered through 
sector exemptions, the NMFS Regional Administrator could include 
additional stipulations and constraints on specific exemptions to 
facilitate the monitoring and enforcement of sector operations or as 
mitigation measures to address specific potential impacts. The three 
proposed exemptions included additional constraints to mitigate impacts 
on groundfish stocks and protected resources to ensure that any 
approved exemptions are consistent with the goals and objectives of the 
groundfish plan.
    Our consideration of these sector exemptions balanced factors 
specific to the protections of, and fishing opportunities for, fish 
stocks within small portions of these closed areas. The proposed 
exemptions were intended to provide economic opportunities to sector 
vessels to mitigate the impact of sharp reductions in catch limits. 
After considering over 81,100 comments submitted by the public, and 
after further review of the environmental assessment, we have elected 
not to grant sectors restricted access to Georges Bank Closed Areas I 
and II in fishing year 2013. This rule, however, does grant sector 
vessels access to portions of the Southern New England Nantucket 
Lightship Closed Area for the remainder of this fishing year. Further, 
we will use at least the standard federally funded sector at-sea 
monitoring and observer coverage level (22 percent of trips for the 
2013 fishing year) for trips into the Eastern and Western Exemption 
Areas of Nantucket Lightship Closed Area (Figure A). Because this 
coverage level differs from what was initially proposed, we are 
soliciting additional comment on this issue. It is hoped that allowing 
carefully designed access to the Nantucket Lightship Closed Area will 
allow vessels to increase their catch of healthy non-groundfish stocks 
(such as monkfish, dogfish, and skates), while minimizing impacts to 
recovering groundfish stocks and protected resources.

[[Page 76079]]

[GRAPHIC] [TIFF OMITTED] TR16DE13.005

Disapproval of Exemption Requests To Fish in Portions of Closed Areas I 
and II

    Although we proposed to allow access to fish in portions of Closed 
Areas I and II in the proposed rule, we are not approving sector 
exemption requests that would allow sector vessels to fish in those 
areas. Comments submitted by the fishing industry indicated that they 
would be unable to participate in the exemption if they were required 
to pay for a monitor on every trip. We are also concerned about the 
current status of Georges Bank cod and yellowtail flounder stocks, 
which are found in Closed Areas I and II. Furthermore, the vast 
majority of comments submitted by members of the public and 
environmental organizations are opposed to reopening the closed areas.
    Our proposal to allow access to these areas was based on a balance 
of potential economic opportunity and efficiency with cost-effective 
monitoring and fish stock protections. We have concluded that the 
utility of opening these areas is outweighed by the potential adverse 
impacts to overfished fish stocks and because comments from industry 
state that it is too costly for them to participate in these 
exemptions. Because of the combination of the industry's lack of 
participation in these exemptions and our concern about the status of 
these overfished stocks, we are disapproving these requests.
    We continue to believe it is critical that every trip into Closed 
Area I and II have an at-sea monitor or observer on board the vessel to 
monitor total catch from these areas. These areas were originally 
closed to protect struggling fish stocks. Specifically, Closed Areas I 
and II were closed to protect Georges Bank cod and haddock, which spawn 
in these areas. Because we know Georges Bank cod and yellowtail 
flounder, which are both severely depleted, reside in these areas, we 
believe it is appropriate to require additional monitoring coverage, 
especially since there are very few historical catch data from these 
areas. We are also concerned that observing only 22 percent of the 
trips into the areas could be insufficient for us to promptly address 
changes in the discard rates for groundfish stocks. Monitoring every 
trip would allow us to respond more quickly, should there be an 
unanticipated impact to the area, such as increased harvests of 
juveniles, large adult spawners, or impacts on protected species. 
Additionally, if a large amount of haddock, cod, or yellowtail flounder 
is found in a re-opened area, then vessels may unintentionally catch 
more fish than they have an allocation for, because catch limits are 
relatively low for these stocks. Avoiding exceeding one's allocation 
could provide a strong incentive for illegal discarding. Requiring a 
monitor to be on each vessel fishing in a closed area would mitigate 
this concern. Also, if there is a large amount of haddock in the area, 
a vessel may be tempted to misreport or illegally discard limiting 
stocks of Georges Bank cod and yellowtail flounder so that it can 
continue to harvest haddock. These concerns are not unique to closure 
areas. Because the closure areas provide additional protection to 
depleted groundfish stocks, we believe it is vitally important to get 
good catch information from these areas. Further, this level of 
monitoring would provide greater chances to observe interactions with 
protected species, if they occur, as well as an ancillary benefit of 
gaining additional fishery dependent data from the trips into these 
areas.
    We proposed that sector vessels pay for at-sea monitors on these 
trips because we do not have money to pay for these additional trips. 
Unfortunately, comments submitted by members of the fishing industry, 
fishing industry interest groups, and sector managers argued that no 
fishing vessel would utilize the exemption if it were required to pay 
for an at-sea monitor. Industry claims that the additional expenses 
offset any potential increase in profit, making the exemption useless.

[[Page 76080]]

    We are seriously concerned about the sustainability of the Georges 
Bank cod and yellowtail flounder stocks. Both of these stocks, which 
are overfished and subject to overfishing, are found in Closed Areas I 
and II, with yellowtail flounder found predominantly in Closed Area II. 
Despite proposals to require selective gears and seasonality 
restrictions, without 100-percent coverage of these trips, we cannot 
approve access to Closed Areas I and II. There is no utility in 
providing access, however, if industry does not participate.
    Lastly, we are hearing from fishermen that they are having a 
difficult time catching Georges Bank haddock. As of September 11, 2013, 
we are over one third of the way into the fishing year and sector 
vessels have harvested only 2.7 percent of the Georges Bank haddock 
east quota, and 2.5 percent of the Georges Bank west haddock quota. 
These drastically low catch amounts suggest that the closed areas alone 
are not the only limiting factor influencing fishermen's Georges Bank 
haddock catch. Fishermen were requesting that we open Closed Areas I 
and II so they could increase their haddock catch--these low catch 
amounts, along with comments from some fishermen, suggest that opening 
Closed Areas I and II would not lead to a significant increase in 
haddock catch.
    Sector exemptions should provide fishermen with greater flexibility 
to enhance their efficiency and, ultimately, improve their profits, all 
while maintaining the goals and objectives of the groundfish plan. We 
proposed allowing sectors restricted access into Closed Areas I and II, 
believing that if there were a substantial chance of enhancing 
efficiency, the increased revenue associated with increases in catch 
would easily offset the costs associated with funding an at-sea 
monitor. The proposal sought to provide the industry an opportunity for 
increasing catch and mitigating the impact of lower catch limits, while 
balancing efficiency in utilizing fishery resources, minimizing costs, 
and minimizing bycatch to the extent practicable consistent with 
Magnuson-Stevens Fishery Conservation and Management Act National 
Standards. Comments submitted by industry indicate that the proposed 
exemptions for these areas would not meet those goals because industry 
perceived that the economic benefits of the potential catch from these 
areas would not outweigh the costs of monitoring and stated they would 
not participate. Because of this, and because we want to continue 
working to rebuild overfished groundfish stocks, we are not approving 
these exemptions at this time.
    NMFS is interested in gathering data from Closed Areas I and II so 
that it may conduct analyses to determine whether fishing can be 
allowed at a level of observer coverage less than 100 percent. Sector 
vessels interested in assisting NMFS in obtaining additional fisheries-
dependent data from year-round closed areas may submit a request to 
NMFS for an exempted fishing permit. Exempted fishing permits authorize 
a federally permitted fishing vessel (or vessels) to conduct fishing 
activities that would otherwise be prohibited--in this instance, to 
fish in a year-round closed area under conditions that would not harm 
stocks. Exempted fishing permit requests would be expeditiously 
reviewed and authorized based on their merit. Permits would not be 
approved if it is determined that the exempted activities could 
undermine measures that were established to conserve and manage 
fisheries or reduce interactions with protected species.
    NMFS will also reassess whether groundfish sector vessels might be 
able to access these closed areas if they are assigned a random 
observer or at-sea monitor. However, NMFS must ensure that new 
information or analysis from this reassessment shows that such trips 
would not compromise the legally required monitoring coverage levels 
for other groundfish trips across the entire fishery, or the underlying 
analytical principles that support catch and discard monitoring. NMFS 
will complete this reanalysis in time to determine whether this is a 
viable option for sector exemptions for the next fishing year, which 
begins May 1, 2014.

Approval of an Exemption Request Allowing Sector Vessels Into Portions 
of Nantucket Lightship Closed Area

    This rule allows sector vessels access to the Eastern and Western 
Exemption Areas within the Nantucket Lightship Closed Area for the 
duration of fishing year 2013, as outlined in this preamble. Trawl 
vessels are restricted to using 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 are prohibited in this area. Hook vessels are permitted. 
Gillnet vessels are restricted to fishing 10-inch (25.4-cm) diamond 
mesh or larger. Gillnet vessels are required to use pingers when 
fishing in the Western Exemption Area from December 1-May 31, because 
this area lies within the existing Southern New England Management Area 
of the Harbor Porpoise Take Reduction Plan.
    Requiring selective gear in the Nantucket Lightship Closed Area 
allows vessels to target monkfish, dogfish, and skates while minimizing 
flounder bycatch. Although Southern New England/Mid-Atlantic yellowtail 
flounder is considered rebuilt, the requirement to use selective gear 
addresses concerns that vessels could harvest a large portion of 
yellowtail flounder allocation from this area, which is considered home 
to an important source population for yellowtail flounder. Catches of 
monkfish, dogfish, and skates could help mitigate the low fishing year 
2013 allocations for several groundfish stocks.
    After further review of the environmental assessment and after 
considering comments submitted by the public, we are reducing the 
necessary at-sea monitoring coverage level to the standard 22 percent. 
We will fund the at-sea monitors and observers and if any additional 
at-sea monitoring or Federal observer funding becomes available, we 
will consider increasing the coverage rate for trips into this area.
    We have several reasons for modifying the at-sea monitoring 
coverage level in the Nantucket Lightship Closed Area. First, this 
exemption is designed to allow vessels to target non-groundfish stocks 
while reducing groundfish catch, and therefore groundfish discard 
rates. Second, there are not significant numbers of Georges Bank cod in 
the Nantucket Lightship Closed Area, and there are no Georges Bank 
yellowtail flounder in the area. Requiring selective gear in these 
areas reduces the likelihood that groundfish, including Southern New 
England/Mid-Atlantic yellowtail flounder, will be caught.
    Second, the Western Exemption Area is surrounded by the Southern 
New England Monkfish, Skate, and Dogfish Exemption Area, where vessels 
fishing with extra-large mesh gillnets are already exempted from at-sea 
monitoring entirely (See Figure B). Gillnet vessels fishing under this 
exemption in the Western Exemption Area would be fishing in a similar 
area and with similar mesh size as those in the surrounding exempted 
fishery, but would have monitoring coverage. Vessels fishing just south 
of the areas are also exempt from monitoring coverage when fishing 
large mesh. Discard rates on trips in these two Exemption Areas are 
low, and we expect similar discard rates for this gear used in the 
Eastern and Western Exemption Areas. So while we have

[[Page 76081]]

reduced the monitoring coverage requirement from 100 percent to 22 
percent, this 22 percent is still a higher level of coverage than for 
most trips in the immediate surrounding areas. For more information on 
these exempted fisheries see Sec. Sec.  648.80(b)(6) and (b)(7).
    This action becomes effective 15 days after the date of publication 
in the Federal Register. This delay is to allow vessels fishing fixed 
gear, such as lobster pots, to remove their gear from the eastern and 
western exemption areas, if they wish to do so, to avoid potential gear 
conflicts.
[GRAPHIC] [TIFF OMITTED] TR16DE13.006

    If there is an increase in fishing effort as a result of allowing 
sector vessels into portions of the Nantucket Lightship Closed Area, 
and it is determined that the increased effort is reducing our ability 
to provide the necessary at-sea monitoring coverage to monitor other 
sector trips, we will discontinue the exemption. The Regional 
Administrator also reserves the authority to discontinue the exemption 
if it is determined that the exemption jeopardizes management measures, 
objectives, or rebuilding efforts.
    A sector vessel intending to fish in the Eastern or Western 
Exemption Areas will be required to call the Northeast Fishery Observer 
Program at least 48 hr prior to departure. A separate number and call-
in system is being developed and will be detailed in a bulletin to 
permit holders. Each vessel is also required to declare its intent 
through its Vessel Monitoring System prior to departing the dock. 
Unlike previously proposed, because we are using the same at-sea 
monitoring coverage rate as other sector trips, catch from these trips 
will be used for determining a sector's discard rate. We continue to 
work on additional implementation issues and will explain any 
additional reporting requirements (changes to trip start or end hail 
requirements, for example) to each sector that requests to utilize this 
exemption.
    Because this level of monitoring coverage was not discussed in the 
proposed rule or the accompanying draft environmental assessment, we 
are specifically requesting public comment on the modification to 
reduce the monitoring coverage level (both at-sea monitors and 
observers) from 100 percent to some level that is at least 22 percent 
but less than 100 percent.
    We have determined that this action 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 rule allows 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 and gears, this rule minimizes 
vessel bycatch. Habitat impacts from fishing are minimized to the 
extent practicable because the areas were determined to have low 
vulnerability (Objectives 9 and 10). The exemptions granted to sector 
vessels through this rule increase the opportunity to meet optimum 
yield of several healthy fish stocks while constraining fishing 
mortality. Any increase in profits will benefit fishermen and fishing 
communities, while the gear restrictions will continue to allow 
overfished stocks to rebuild.

Comments and Responses

    We received 90,263 comments in response to the proposed rule 
consisting of five petitions and numerous letters from individuals, 
organizations, and government entities. Three of the petitions 
including 74,943 signatures that were initially submitted in response 
to Framework 48, were resubmitted for this action. The remaining two 
petitions included 6,187 provided additional comments in response to 
this action. NMFS also received a petition that included another 9,082 
additional comments, however this petition was submitted well after the 
comment period expired. The petitions, and

[[Page 76082]]

therefore the majority of comments, were submitted by environmental 
organizations. The individual comments consisted of letters received 
from the Council, U.S. Coast Guard, Maine Department of Marine 
Resources, seven environmental organizations, six fishing industry 
groups, and dozens of individuals. Some of the comments did not address 
the proposed measures and are not included here. Many comments are 
similar, if not identical, to those that were submitted for Framework 
48. In those instances, we reference the Framework 48 response.

Closed Areas Provide Benefits

    Comment 1: Several of the petitions submitted, as well as comments 
from many environmental groups and individuals, said that the closed 
areas should not be opened because they provide important protection 
for critical life stages and spawning activities of severely depressed 
stocks, such as cod.
    Response: Closed Areas I and II were approved as year-round 
closures in 1994 to protect Georges Bank haddock and cod. The Nantucket 
Lightship Closed Area was approved as a year-round closed area that 
same year to reduce mortality on Southern New England/Mid-Atlantic 
yellowtail flounder. While Georges Bank haddock and Southern New 
England/Mid-Atlantic yellowtail flounder have rebuilt, both the Georges 
Bank cod and yellowtail flounder stocks are in decline and are 
struggling to rebuild. We felt that we could provide increased access 
to the rebuilt Georges Bank haddock in Closed Areas I and II if we 
required vessels to use selective gear to reduce catch of Georges Bank 
cod and yellowtail flounder. We also proposed seasonal prohibitions in 
Closed Areas I and II to protect spawning Georges Bank cod. These 
provisions were an attempt to prevent a potential mortality increase on 
stocks that are critically depressed. These gear and season 
restrictions were in addition to the quota that already constrains 
mortality.
    We also proposed 100-percent monitoring coverage so that we could 
have a very clear picture of catch and discards. We believed that this 
level of coverage would allow us to monitor the use and impacts of the 
exemption in near-real time and potentially close the area earlier if 
necessary, should the information warrant it. However, comments 
submitted by members of the fishing industry stated that they are 
unable to pay for this level of coverage and would not access these 
areas under this monitoring requirement. Given the importance of having 
a high level of coverage in these areas, the fact that we are unable to 
fund this level of coverage, and the industry's comments that the cost 
of coverage required for access is too high compared to the potential 
benefit from access to these areas, we are disapproving access to 
Closed Areas I and II.
    The status of many key groundfish stocks is poor. Recent status 
reports from the Transboundary Resource Assessment Committee (TRAC), 
which conducts an annual stock assessment of Georges Bank cod, haddock, 
and yellowtail flounder, have several troubling findings. For example, 
the combined Canadian and U.S. catches of Georges Bank yellowtail 
flounder in 2012 were 722 mt. The report explains that this is the 
first time since 1940 that catch has been less than 1,000 mt. Further, 
recruitment of the three most recent yellowtail flounder cohorts is 
estimated to be the lowest in the time series. The TRAC also explained 
that the average weight at length of Georges Bank cod, used to reflect 
condition, has been stable in the past, but has started to decline in 
recent years. Lower weights at age in the population in recent years 
and poor recruitment have contributed to the lack of rebuilding, and 
the TRAC is recommending a reduction in allocation for the 2014 fishing 
year.
    We believe that the proposed rule included restrictions that would 
limit fishing impacts on these stocks, and properly monitor fishing 
trips under this exemption. However, in light of our concern about the 
continually declining status of Georges Bank cod and yellowtail 
flounder, we believe that it is not appropriate to increase fishing 
activity in Closed Areas I and II at this time.
    On the other hand, Georges Bank cod are rarely in the Nantucket 
Lightship Closed Area, and Southern New England/Mid-Atlantic yellowtail 
flounder has recently been declared to be rebuilt. Vessels fishing in 
this area will not be targeting cod, haddock, or yellowtail flounder. 
Acknowledging concerns that a source population for Southern New 
England/Mid-Atlantic yellowtail flounder exists in that area, we 
included selective gear requirements with the exemption. For example, 
in addition to prohibiting the use of flounder nets in these areas, 
gillnet vessels will be fishing with net mesh sizes consistent with the 
requirements of nearby Exempted Fisheries that experience little to no 
groundfish bycatch. These selective gear requirements are in addition 
to each sector also being restricted by an allocation. We believe that 
we can monitor this fishery with the standard coverage rate. For these 
reasons, we believe that the Nantucket Lightship Closed Area differs 
from Closed Areas I and II, which is why we are approving restricted 
access to and lower monitoring coverage for this area so sector vessels 
can target monkfish, skate, and dogfish.
    Comment 2: Four individuals, the Environmental Defense Fund, the 
Penobscot East Resource Center, and the Maine Coast Fishermen's 
Association suggested that closed areas are helping to provide needed 
refuge to overfished stocks and are helping struggling stocks rebuild.
    Response: The results of analyses conducted by the Council's Closed 
Area Technical Team (CATT) are mixed when it comes to measuring the 
effectiveness of closed areas.
    The data indicate that Closed Area II likely contributed to the 
recovery of Georges Bank haddock. Some data indicate that Closed Area 
II is providing refuge to stocks of Georges Bank cod and yellowtail 
flounder. It appears that a significant portion of the Georges Bank 
yellowtail flounder population can be found in Closed Area II. Larger 
cod are found in the Western Gulf of Maine Closed Area, as well as the 
northern portion of Closed Area II. These stocks have not rebuilt 
despite these closed areas. The peer-reviewed literature reviewed by 
the CATT had different findings regarding a correlation between closed 
areas and stock health.
    Our proposed rule attempted to provide a balanced approach to 
reopening the areas by allowing very restricted access. While we are 
not allowing vessels into Closed Areas I or II, we are allowing vessels 
into the Nantucket Lightship Closed Area. More importantly, we are not 
deeming any of these areas as effective or ineffective. Further, this 
action is for fishing year 2013 only. A full review of essential fish 
habitats and year-round closures will be undertaken in the Habitat 
Omnibus Amendment, in which the most effective closed areas will be 
identified and implemented.
    Comment 3: Several of the petitions, as well as comments from five 
individuals, argued that closed areas should not be opened because they 
protect vital benthic habitat and conserve essential fish habitat.
    Response: While we agree that closing areas to bottom trawling does 
provide increased protection for essential fish habitats, the areas we 
proposed to reopen do not have benthic habitats that are considered 
vulnerable to fishing. An essential fish habitat assessment was 
conducted for this action, and we determined that the proposed action

[[Page 76083]]

would only have a minimal (or low negative) impact on essential fish 
habitat for federally managed species in the Northeast Region. As 
explained in the environmental assessment, benthic habitats in two of 
the areas (the Eastern Exemption Area within the Nantucket Lightship 
Closed Area, and Closed Area I) are periodically exposed to scallop 
dredging, and the overall vulnerability of bottom habitats in all four 
areas is low. More vulnerable hard-bottom areas in Closed Area II on 
eastern Georges Bank where there has been no bottom trawling or 
dredging since these areas were closed in 1994 would have only been 
exposed to fishing for 2 months. Habitats in the western Nantucket 
Lightship Closed Area Western Exemption Area are predominantly mud and 
sand, so any impacts of trawling there would be minimal.
    Furthermore, we did not propose to open any of the year-round 
essential fish habitat closed areas any of the areas proposed to be 
closed in Omnibus Habitat Amendment 2.
    Comment 4: Environmental Defense Fund and the Maine Coast 
Fishermen's Association suggested that closed areas provide managers 
with a buffer against uncertainty.
    Response: We agree. A management buffer is helpful during times of 
such unknowns as retrospective patterns in stock assessments and the 
effect of climate changes. Based on fishing industry comments that the 
industry-funded monitoring requirements are unacceptable, we concluded 
that the benefit of this buffer is greater than the potential increase 
in catch and revenue from opening Closed Areas I and II. However, 
because the stocks in Nantucket Lightship Closed Area are healthier, 
and stocks of monkfish, dogfish, and skates are underharvested, we 
believe we can allow vessels into those areas with the standard 
federally funded monitoring coverage.
    Comment 5: One individual suggested that we conduct additional 
scientific research, specifically a before-after-control impact 
analysis, prior to allowing vessels into the closed areas.
    Response: Gathering additional data would be beneficial; however, 
we have very limited funding available. Research vessels do trawl in 
closed areas, but we have limited data from closed areas due to a very 
small number of tows. Again, this research effort is limited due to 
fiscal and time constraints. Further, in an effort to provide 
mitigation now for vessels struggling to overcome reduced allocations 
for fishing year 2013, we are attempting to provide increased access as 
soon as possible. It is highly unlikely that enough data could be 
gathered to properly conduct a before-after-control impact analysis 
prior to opening the area in fishing year 2013--potentially even before 
the Omnibus Habitat Amendment.
    Comment 6: The Conservation Law Foundation, Earthjustice, and one 
individual commented that opening year-round closed areas to provide 
financial mitigation to offset decreased revenue that results from 
declining groundfish allocations is inappropriate. Several other 
commenters, including members of the fishing industry, environmental 
organizations, the Council, and Maine Division of Marine Resources, 
stated that the action as proposed would not provide any economic 
relief. Some commented that the short-term benefits would not outweigh 
the long-term financial loss associated with delayed rebuilding 
efforts. Others suggested that, because the data show no indication 
that there are larger amounts of fish in the closed areas, there would 
not be increased revenue from accessing the closed areas.
    Response: In general, we agree with these comments. Our 
consideration of these exemptions involved a balancing of providing the 
industry an additional opportunity to achieve optimum yield to mitigate 
adverse effects of lower allocations with protecting vulnerable stocks 
and sufficiently monitoring fishing in these areas. If it were clear 
that vessels could significantly increase their catch per unit effort 
in a sustainable manner when accessing the closed areas (as we 
proposed), we would be more inclined to grant access, should industry 
participants be willing to pay for observer coverage. This does not 
seem to be the case for Closed Areas I and II. Because the universal 
comment submitted by both industry and environmental groups was that 
the proposed exemptions for Closed Areas I and II would likely not 
provide the amount of economic relief necessary to offset required 
monitoring costs, as this rule was intended to do, we are not opening 
Closed Areas I and II.
    Because the stocks in Nantucket Lightship Closed Area are healthier 
than stocks in Closed Areas I and II and because we have included the 
selective gear requirements, we can provide access to Nantucket 
Lightship Closed Area with federally funded coverage at the standard 
coverage rate of 22 percent. Therefore, this option could allow 
industry more fishing opportunities with no additional expenses.
    Comment 7: One individual and the Blue Ocean Institute commented 
that opening the year-round closed areas would result in increased 
mortality.
    Response: We disagree with this assumption. Quotas are set using 
the best available science to limit fishing mortality overall so that 
overfishing does not result. Each sector is restricted to its 
allocation, which is a portion of a total quota. Fishing mortality in 
each of these closed areas would be further constrained by gear or 
season restrictions. Moreover, as proposed, every trip inside Closed 
Areas 1 and 2 would have been monitored and all catch (landings plus 
discards) would have counted against each sector's allocation. Further, 
having an at-sea monitor on board every trip would have reduced the 
possibility of some vessels illegally discarding catch. For each area, 
if a sector reaches its allocation of even a single stock, it would be 
prohibited from fishing in that stock area. Therefore, we believe that 
opening these areas as proposed would not result in increased 
mortality.
    Comment 8: The Conservation Law Foundation suggested that requiring 
100-percent at-sea monitoring coverage within a closed area and only 
22-percent coverage outside of a closed area would increase illegal 
discarding on unobserved trips outside of closed areas. The 
Conservation Law Foundation explained that the catch inside the closed 
areas would ``be fully identified by observers and will result in 
significant reductions in the cod and yellowtail flounder that will be 
available to sector vessels outside the closed areas. Because the later 
trips will be observed at a much lower rate and the quotas for cod and 
yellowtail are so low, this access program almost creates an incentive 
for sector vessels to misreport cod and yellowtail bycatch and discards 
on observed trips outside the closed areas . . .''
    Response: We disagree that these exemptions would provide an 
incentive to discard catch on unobserved trips outside of the closed 
areas that would result in substantially higher discards on unobserved 
trips. We have determined that the current level of observer coverage 
provides sufficiently reliable catch estimates to monitor sector 
allocations and ensure accountability of catch limits. This level of 
coverage currently applies outside of the closed areas and is 
sufficient to provide the basis for discard rates in those areas. 
Furthermore, because we are not allowing sectors access to Closed Areas 
I and II through this action, and we are removing the 100-percent 
coverage requirement for the Nantucket Lightship Closed Area, this 
concern is no longer valid.

[[Page 76084]]

Process and Policies

    Comment 9: Several of the environmental groups argued that this 
action undermines the development of Omnibus Habitat Amendment 2. The 
commenters explained that this action makes a decision on a closed area 
prior to the completion of the Omnibus Amendment. For example, the 
areas this action considered opening represent the ``status quo'' areas 
in the Omnibus Amendment. These comments contend that, if we were to 
open these areas to fishing, they would be damaged prior to potentially 
being selected as the preferred alternative for the Omnibus Habitat 
Amendment.
    Response: Both NMFS and the Council agreed to consider opening 
these areas because they are not considered to be vulnerable habitat, 
and this rule is only for a duration of fishing year 2013. The Council 
did not allow sectors to request exemptions from any areas that were 
newly proposed essential fish habitat management area alternatives in 
the Omnibus Habitat Amendment. As explained above, the proposed 
portions of Eastern Exemption Area within the Nantucket Lightship 
Closed Area and Closed Area I are already subject to fishing pressure. 
The Western Exemption Area and Closed Area II that we considered 
temporarily opening are not considered to be vulnerable to fishing. 
While these areas are included as the ``status quo'' under the Omnibus 
Habitat Amendment, research done by the Habitat Plan Development Team 
indicates that there could be better areas set-aside for habitat 
protection than the areas included in this rule. The Omnibus Habitat 
Amendment is considering numerous potential management areas in 
combination to minimize adverse effects on essential fish habitat to 
the extent practicable. This action is specific to providing suitable 
opportunities to mitigate sharp reductions in catch limits while still 
preventing overfishing and protecting vulnerable stocks. In other 
words, we believe that the Omnibus Habitat Amendment will provide ample 
opportunities to further enhance habitat protection, and these 
exemptions will not adversely impact that Amendment.
    Comment 10: Several environmental organizations said that an 
environmental impact statement (EIS) is necessary because the impacts 
associated with this action would be significant.
    Response: Framework 48 permits sectors to request exemptions from 
portions of the Western Gulf of Maine Closed Area, Closed Area I, 
Closed Area II, the Nantucket Lightship Closed Area, and Cashes Ledge 
Closed Area. We determined that the original exemption requests 
submitted by the sectors could have resulted in significant impacts. 
However, the Regional Administrator has the authority to modify sector 
exemption requests, which we did in this instance (see Comment 19 
below). The exemptions proposed in this action were limited to areas of 
low vulnerability and are effective only in fishing year 2013. They 
included additional gear and season restrictions to further reduce 
potential impacts. Because of the additional restrictions, we 
determined that there would not be any significant impact and that an 
environmental assessment was sufficient for this action.
    Comment 11: Earthjustice and the Conservation Law Foundation argued 
that including the groundfish closed areas in a Notice of Intent for 
the Omnibus Habitat Amendment directly linked the groundfish closed 
areas with essential fish habitat and that not taking a holistic 
approach represents a shift in NOAA/NMFS policy.
    Response: The groundfish closed areas considered in this action 
were initially established to ``provide protection to depleted cod and 
haddock stocks.'' Other commenters, and the Council, have argued that 
these areas were established as ``mortality closure areas.'' There are 
obvious habitat benefits with closing an area to fishing, so it is 
understandable how the two can be linked. Simply put, not fishing in an 
area can provide an opportunity to improve the habitat.
    Despite the fact that some argue that the proposed areas represent 
``de facto'' habitat closed areas, and that discussing the two in the 
same Notice of Intent links them, they are in fact, two separate 
closures that are managed differently. Mobile bottom tending gear 
(bottom trawls and dredges) are prohibited from fishing in a habitat 
closed area. However, vessels can use bottom trawls and dredges in some 
groundfish year-round closed areas, for instance, through groundfish 
special access programs and scallop access areas. Because of this, we 
supported the ability for sectors to request exemptions from portions 
of groundfish closed areas that are not managed as essential fish 
habitat closed areas, and we are allowing vessels to fish in portions 
of the Nantucket Lightship Closed Area.
    Comment 12: Earthjustice and the Conservation Law Foundation 
commented that this action (opening closed areas) cannot be undertaken 
as a framework adjustment to the groundfish plan and that an amendment 
is necessary.
    Response: This comment was also submitted as a comment to Framework 
48 allowing sectors to request a regulatory exemption that would allow 
them to fish in portions of the groundfish year-round closed areas. The 
response to this comment can also be found in the final rule for 
Framework 48 (78 FR 26148, May 3, 2013).
    The regulations at Sec.  648.90(c)(1)(i) state that changes to 
closed areas, management boundaries, essential fish habitat, sector 
administrative provisions, and sector specifications can be made in a 
framework. We believe that this action is consistent with the goals and 
objectives of the groundfish plan. For these reasons, we do not believe 
that an amendment is necessary.
    Comment 13: The Conservation Law Foundation contends that this 
action illegally segments the required National Environmental Policy 
Act (NEPA) analyses from the Council's ongoing Omnibus Habitat 
Amendment.
    Response: We responded to this comment in the final rule for 
Framework 48 (78 FR 26146, May 3, 2013). In our response we explained 
that we are not avoiding the development of an EIS because an EIS is 
being drafted for the Omnibus Habitat Amendment.
    Comment 14: Several environmental groups claim that this action is 
inconsistent with the Magnuson-Stevens Act, NEPA, the Endangered 
Species Act, and the Marine Mammal Protection Act. They also commented 
that a Finding of No Significance (FONSI) cannot be approved for an 
environmental assessment without a proper Endangered Species Act (ESA) 
Section 7 consultation.
    Response: NMFS followed the requirements of the Magnuson-Stevens 
Act and NEPA and believe that this action is consistent with the 
Magnuson-Stevens Act National Standards and the goals and objectives of 
the groundfish plan. The approved exemption balances providing an 
additional opportunity to achieve optimum yield to mitigate reductions 
in catch limits while preventing overfishing and protecting vulnerable 
stocks. We conducted an environmental assessment, including a review of 
impacts on essential fish habitat and endangered species and determined 
that there are no significant impacts.
    While an ESA Section 7 consultation continues to be developed for 
the groundfish plan, we have determined that allowing these fisheries 
and associated research to continue during the reinitiation period will 
not violate

[[Page 76085]]

ESA sections 7(a)(2) and 7(d), meaning this action will not jeopardize 
the ESA-listed species in the action area. Northeast Regional Office 
staff analyzed these exemption requests through an environmental 
assessment, reviewed the assessment, and concluded that there would be 
no significant impacts.
    Comment 15: Earthjustice and the Conservation Law Foundation 
commented that this rule represents a policy shift from Amendments 11 
and 13 to the groundfish plan, where we explained that essential fish 
habitat is necessary to help groundfish stocks rebuild.
    Response: We agree that it is necessary to minimize adverse impacts 
of fishing on essential fish habitat to the extent practicable. We do 
not believe that this rule represents a policy shift, however. It meets 
the goals and objectives of the groundfish plan and is consistent with 
Magnuson-Stevens Act National Standards. It balances allowing vessels 
an additional opportunity to achieve optimum yield to mitigate the 
adverse effects of reduced catch limits while preventing overfishing 
and protecting vulnerable fish stocks and habitat. The proposed areas 
are not vulnerable habitats and are already exposed to fishing pressure 
(see comments 3 and 9 above). The exemption attempts to minimize costs 
and improve efficient use of resources while taking into account the 
variations and contingencies in fisheries by allowing vessels to target 
healthy stocks while avoiding more vulnerable stocks and adjusting 
monitoring levels where practicable. We also included additional gear 
and seasonality restrictions that further help minimize bycatch to the 
extent practicable.
    Specifically, based on public comment and our continuing goal of 
rebuilding fish stocks, we are not opening Closed Areas I and II. We 
are opening the portions of the Nantucket Lightship Closed Area because 
the area is not critical to stocks that are overfished or undergoing 
overfishing, such as Georges Bank cod or yellowtail flounder. Further, 
we have included additional restrictions with this exemption that will 
limit groundfish harvests while allowing vessels to target monkfish, 
skates, and dogfish.

Protected Species Interactions

    Comment 16: One petition, the Center for Biological Diversity, the 
Humane Society, Whale and Dolphin Conservation, the Conservation Law 
Foundation, and one individual commented that they are concerned about 
an increase in protected species interactions in the proposed areas. 
One individual also commented that gillnets should be prohibited from 
fishing in any of the proposed areas.
    Response: Analyses in the EIS for the Large Whale Take Reduction 
Plan indicate that the impacts on large whales and harbor porpoises 
from gillnets in these areas is substantially less than pot gear. In 
other words, there are significantly more vertical lines from pot gear 
than gillnets and, as a result, most impacts result from pot gear, not 
gillnet gear. For more information, see Chapter 3 of the Large Whale 
Take Reduction Plan EIS can be found at http://www.nero.noaa.gov/protected/whaletrp/eis2013/deis/chapter-3-regulatory_alternatives.pdf.
    To reduce potential impacts on harbor porpoises, we are requiring 
pingers in the Western Exemption Area of the Nantucket Lightship Closed 
Area as required by the Harbor Porpoise Take Reduction Plan.
    Importantly, it is likely that vessels will only fish in this area 
if they can increase their catch per unit effort of whatever fish they 
are targeting. In other words, it is illogical for vessels to 
continually fish in an area where they catch less fish. We expect 
either this area will not be more productive and will not be utilized, 
or it will be utilized with greater catch per unit effort, which would 
reduce the overall effort and therefore reduce the potential for 
interactions between protected species and fishing gear.
    Comment 17: The Center for Biological Diversity, the Humane 
Society, and Whale and Dolphin Conservation argued that the Harbor 
Porpoise and Atlantic Large Whale Take Reduction Plans were constructed 
assuming that these areas would be closed.
    Response: The original Harbor Porpoise Take Reduction Plan was 
based on the Gulf of Maine rolling closures, designed to protect 
spawning Gulf of Maine cod. The Western Gulf of Maine and Cashes Ledge 
year-round closed areas were added shortly afterwards (63 FR 66464, 
December 2, 1998). One of the reasons we cited for not including the 
Western Gulf of Maine and Cashes Ledge closed areas in the proposed 
rule was because of our concern about harbor porpoise interactions.
    Importantly, overall fishing effort has been decreasing as a result 
of the drastic reductions in allocations. There were 447 takes during 
fishing year 2011 compared to the established potential biological 
removal level of 706. Furthermore, if there is an unanticipated 
increase in observed interactions with protected species as a result of 
allowing vessels to fish in the Nantucket Lightship Closed Area, the 
Regional Administrator reserves the authority to revoke the exemption. 
In addition, both the Harbor Porpoise and Large Whale Take Reduction 
Plans include accountability measures that would be enacted if the 
potential biological removal level is exceeded.
    Lastly, as previously stated, this action complies with and follows 
the requirements of the Harbor Porpoise Take Reduction Plan, including 
the use of pingers in the Western Exemption Area. One peer-reviewed 
study that was published in the journal Nature (1997, Vol 388, page 
525) found that harbor porpoise takes were reduced by 92 percent when 
pingers were used.
    For these reasons, in addition to those included in the 
environmental assessment for this action, we do not believe that 
opening portions of the Nantucket Lightship Closed Area will have a 
significant impact on harbor porpoise or large whales.

Industry-Funded At-Sea Monitoring

    Comment 18: Several fishing industry groups, including the 
Associated Fisheries of Maine, the Cape Cod Commercial Fishermen's 
Alliance, and the Northeast Seafood Coalition, along with the Council, 
Maine Division of Marine Resources, and several individuals, argued 
that the fishing industry needs financial assistance and that requiring 
industry to fund an at-sea monitor on 100 percent of the trips into 
closed area is financially unfeasible and negates the benefits of the 
proposed action.
    Response: We proposed 100-percent at sea monitoring coverage for 
several reasons. As explained earlier in the preamble, these areas were 
originally closed to protect struggling fish stocks. Specifically, 
Closed Areas I and II were closed to protect Georges Bank cod and 
haddock. Because we know Georges Bank cod and yellowtail flounder, 
which are both severely depleted, reside in these areas, we believe it 
would be appropriate to require additional monitoring coverage if they 
were opened, so that we could thoroughly account for catch and 
discards. There is very little historical catch data from these areas, 
and we are concerned that observing only 22 percent of the trips into 
the area could be insufficient to identify changes in the discard rates 
for groundfish stocks. Monitoring every trip would allow us to respond 
more quickly, should there be an unanticipated impact to the area, such 
as increased harvests of juveniles, large adult spawners, or impacts on 
protected species. If a large amount of haddock,

[[Page 76086]]

cod, or yellowtail flounder were found in a re-opened area, then 
vessels could accidentally catch more fish than they have an allocation 
for, which could create an incentive for illegal discarding in an area 
for which we do not have established discard rates. Also, if there were 
a large amount of haddock in the area, a vessel could be tempted to 
misreport or illegally discard limiting stocks of Georges Bank cod and 
yellowtail flounder so that it could continue to harvest haddock. For 
these reasons, we believe that the proposed 100-percent at-sea 
monitoring coverage would be necessary if Closed Areas I and II were 
reopened.
    We disagree with assertions that we are not providing mitigation to 
the fishing industry. We do not have enough Federal funds to cover this 
level of monitoring in these areas because we are already paying for 
100 percent of the coverage on standard sector fishing trips. Arguably, 
we could fund trips into this area if we reduced our funding of other 
trips--but we do not believe this is a viable solution to provide 
coverage across the entire sector fishery. Amendment 16 stated that 
sectors would be required to fund all their monitoring coverage by 
fishing year 2012, yet we have provided funding for fishing years 2012, 
2013, and are working to provide assistance for at least a portion of 
monitoring costs in fishing year 2014.
    After reconsidering our initial proposal, we believe that we can 
allow vessels into portions of Nantucket Lightship Closed Areas with 
standard levels of monitoring coverage. Because we do not anticipate an 
increase in effort resulting from this decision, we believe that we can 
fund these trips.
    Comment 19: Associated Fisheries of Maine, Maine Division of Marine 
Resources, the Council, and several individuals contend that NMFS 
inappropriately altered the Council's intent for Framework 48 by 
requiring 100-percent industry-funded at-sea monitoring without Council 
comment. Associated Fisheries of Maine, the Northeast Seafood 
Coalition, and several individuals also argued that NMFS should not 
alter the action as proposed by the Council and requested by the 
sectors.
    Response: The regulations provide the Regional Administrator with 
the authority to consider, approve/disapprove, and modify exemption 
requests proposed by sectors (Sec.  648.87(c)(1-2)). We are required to 
ensure that exemptions are consistent with the Magnuson-Stevens Act 
National Standards and the groundfish plan's goals and objectives. We 
modified the request after careful consideration of the many factors 
required to ensure that compliance. Further, we modified the sector 
requests to avoid significant environmental impacts and to allow 
sectors to fish under the exemption during the current fishing year.
    The proposed rule for fishing year 2013 sector operations plans (78 
FR 16220; March 14, 2013, see page 16236) explained that we would 
require 100-percent industry-funded at-sea monitoring for several 
exemptions, including access to year-round closed areas. The comment 
period for the sector operations plans proposed rule was from March 14, 
2013, until March 29, 2013. The Framework 48 final rule explained that 
it was unlikely that we would open the Western Gulf of Maine or Cashes 
Ledge Year-Round Closed Areas (78 FR 26118; May 3, 2013, see page 
26145). Also, the Framework 48 final rule and the final rule for 
fishing year 2013 sector operations plans responded to comments opposed 
to industry-funded at-sea monitoring (78 FR 26118; May 3, 2013, see 
page 26145 and 78 FR 25591; May 2, 2013, see page 25610). Despite these 
comments and responses, the issue was not discussed at either the June 
12, 2013, Groundfish Committee meeting or the June Council meeting the 
following week. We believe that the Council had adequate opportunities 
to comment on this issue.
    We must consider efficiency in the utilization of fishery resources 
and minimize costs to the extent practicable when we consider 
exemptions. For example, if opening these closed areas were to provide 
sector vessels with economic benefits, the economic benefits should at 
least outweigh the costs of the appropriate level of at-sea monitoring 
deemed necessary to properly account for catch. If the financial 
benefits do not outweigh the costs of carrying a monitor, we believe 
that there is likely not enough financial incentive (enough fish) to 
outweigh the potential resource risks. This conclusion is supported by 
our analyses, as well as analyses by the Council's Closed Area 
Technical Team and industry comments.
    To be clear, we have modified sector exemptions in the past and 
will likely modify them in the future if we believe it could be 
beneficial to the sectors. We do not necessarily know the impact of an 
exemption request until we analyze it. We need to review the requests 
within an environmental assessment. If an exemption request could have 
a significant impact, it requires an EIS. Because an EIS requires a 
substantial amount of time to develop, it is not possible to develop an 
EIS in time to approve a sector exemption during the fishing year. 
Furthermore, any action that requires an EIS should likely be discussed 
and approved by the Council.
    It should be noted that approved exemptions are completely 
voluntary. Exemption requests are not regulations that are required to 
be approved or implemented. We view exemptions as opportunities to 
provide additional flexibility that can be utilized by a sector vessel 
as they wish, as long as the exemption meets the goals and objectives 
of the groundfish plan. Despite frequent opposition by industry to our 
modifications of exemption requests, we propose revised exemptions as 
an effort to aid sectors by offering an approvable option instead of 
simply denying a request. As explained earlier, the proposed rule was 
our attempt at finding a sustainable solution to a controversial issue.
    Comment 20: The Council contends that catch history is not needed 
to accurately estimate discard rates because Standardized Bycatch 
Reporting Methodologies (SBRM) exist. The Council suggests that nothing 
in the SBRM guidelines link the accuracy of discard estimates to past 
catch history. The Council contends that SBRM does not indicate that 
100-percent observer coverage is necessary in order to accurately 
monitor protected species interactions. Lastly, the Council argues that 
there is no evidence that the Agency considered a coverage level that 
is higher than in open areas but less than 100 percent.
    Response: Because these areas have been closed, there is a lack of 
historical fishing data within the closed areas (referred to here as 
``catch history''). We are concerned that observing only 22 percent of 
the trips into the area could be insufficient to identify changes in 
the discard rates for groundfish stocks. Monitoring every trip allows 
us to respond more quickly, should there be an unanticipated impact to 
the area, such as increased harvests of juveniles, large adult 
spawners, or protected species. The SBRM is not used alone to determine 
the at-sea monitoring levels necessary to monitor proposed management 
measures. It is a methodology designed to specify at-sea observer 
coverage levels that will allow discards to be estimated for the 
groundfish stocks as a group, with a specified level of precision. Text 
from the executive summary of the 2011 SBRM 3-year Review Report 
explains that ``SBRM is not intended to be the definitive document on 
the estimation methods nor is it a compendium of discard rates and 
total discards. Instead,

[[Page 76087]]

the SBRM is intended to support the application of multiple bycatch 
estimation methods that can be used in specific stock assessments. The 
SBRM provides a general structure for defining fisheries into 
homogeneous groups and allocating observer coverage based on prior 
information and the expected improvement in overall performance of the 
program. The general structure helps identify gaps in existing 
coverage, similarities among groups that allow for realistic 
imputation, and the tradeoffs associated with coverage levels for 
different species.''
    While SBRM may not indicate that 100-percent coverage is necessary 
to properly monitor protected species interactions, 100-percent 
coverage was proposed not only for protected species interactions, but 
also to monitor catch (including discards) in an area where we have 
very little fishery data.
    We did consider a coverage level that was higher than that in an 
open area but less than 100 percent but decided, as stated in comment 
18, that 100-percent monitoring would be necessary for this exemption. 
For additional information on why we proposed 100-percent industry-
funded at-sea monitoring, see the proposed rule for fishing year 2013 
sector operations plans (78 FR 16220; page 16236). Also, it appears 
from the comments submitted on behalf of industry members that industry 
is unwilling to pay for any level of at-sea monitoring, making the 
argument for an intermediate level of coverage moot.
    Recognizing the concern of the Council though, we have modified our 
original proposal to allow vessels to fish in portions of the Nantucket 
Lightship Closed Area with at least the standard monitoring coverage 
rate.
    Comment 21: The Cape Cod Commercial Fishermen's Alliance suggested 
that we should have additional funding for at-sea monitoring this year 
due to a reduction in effort.
    Response: We do not have additional funding this year. Only 6 
months before the fishing year started, we were unsure if we would be 
able to even cover half of the trips that needed to be monitored. 
However, we were able to find additional money, and because of 
additional money that could be carried over from the previous year, we 
are hopeful we can fund observer coverage at the specified level for 
fishing year 2013.
    We are going to fund the monitoring of trips into the Eastern and 
Western Exemption Areas in Nantucket Lightship Closed Area. If any 
additional at-sea monitoring or Northeast Fisheries Observer Program 
funding remains, we will increase our coverage as possible. We do not 
have adequate funding to pay for trips into Closed Areas I and II at 
the full coverage rate we believe is necessary.
    Comment 22: The Council argued the Atlantic Herring management plan 
allows herring mid-water trawl vessels to fish in the groundfish closed 
areas only when an observer, funded by NMFS, is on board, and that a 
similar approach should be permitted in the groundfish fishery.
    Response: We implemented a similar approach to industry-funded at-
sea monitoring coverage with a fishing year 2012 exemption that allowed 
vessels to target redfish with smaller mesh (78 FR 14226; March 5, 
2013). However, we were uncomfortable with this approach and later 
explained in the proposed rule for fishing year 2013 sector operations 
plans why we would not propose this method in the future (78 FR 16220; 
March 14, 2013, see page 16236). Essentially, we believe that a vessel 
that could fish in the closed areas would do so whenever it was 
randomly selected for an observer or at sea monitor. If every vessel 
did this, it could skew our observer coverage, affect our discard and 
catch estimates, and possibly prevent us from achieving the required 
at-sea monitoring coverage levels in other stock areas.
    Further, the at-sea monitoring coverage requirements for the 
herring fishery are very different. Unlike the groundfish fishery, 
there is no regulatory requirement for at-sea monitoring coverage to 
achieve a specified level of precision.
    Comment 23: The Cape Cod Commercial Fishermen's Alliance, The Maine 
Coast Fishermen's Association, Penobscot East Resource Center, and the 
Environmental Defense Fund supported our requirement for 100-percent 
at-sea monitoring coverage. These groups felt that a high level of 
monitoring is necessary to provide more real-time data. The Penobscot 
East Resource Center also commented that discarding in these areas is 
at a higher level than other areas.
    Response: We proposed 100-percent monitoring because we believe it 
is necessary to properly monitor catch under these circumstances. A 
higher coverage rate allows us to better monitor vessels utilizing the 
exemption and therefore better manage the fishery, meaning we could 
stop the exemption if there were any unanticipated negative impacts. 
After further review, we are opening portions of the Nantucket 
Lightship Closed Area with the standard coverage level because we have 
less concern about overfished groundfish stocks in that area.
    Comment 24: Environmental Defense Fund and the Cape Cod Commercial 
Fishermen's Alliance suggested that we make the at-sea monitoring 
information recorded from these areas available to the public following 
the end of the fishing year.
    Response: To explain the fishing year 2013 at-sea monitoring 
requirements for the fishery, we published a document titled, ``Summary 
of analyses conducted to determine at-sea monitoring requirements for 
multispecies sectors, fishing year 2013.'' This report is available 
online at http://www.nero.noaa.gov/ro/fso/reports/Sectors/ASM/FY2013_Multispecies_Sector_ASM_Requirements_Summary.pdf. One of the 
appendices to that report presents data for each sector, by stock and 
gear, in a manner consistent with the data confidentiality requirements 
of Section 402(b) of the Magnuson-Stevens Act. This final rule 
establishes a sector exemption for specified gears within the Nantucket 
Lightship Closed Area requiring only the standard at-sea monitoring 
coverage level. As a result, the data for sector vessels that make 
trips into the exemption area will be pooled with the data for other 
trips made by vessels in each sector when the stock area and gear are 
the same. The information from the 2013 fishing year will be included 
in the summary we will publish in 2014 to support the determination of 
the at-sea monitoring requirements for the FY 2015 fishery.

General Opposition to the Rule as Proposed

    Comment 25: The Associated Fisheries of Maine, Northeast Sector 
Support Network, Northeast Seafood Coalition, and several industry 
members suggested that we should open Cashes Ledge and the Western Gulf 
of Maine year-round closed areas.
    Response: We did not propose allowing access to these areas because 
we cannot ensure at this time that access to these areas would be 
consistent with the groundfish plans goals and objectives and the 
Magnuson-Stevens Act National Standards. These areas provide refuge to 
overfished stocks of Gulf of Maine cod and haddock, both which are 
overfished and subject to overfishing. In addition, harbor porpoise are 
commonly found in the Western Gulf of Maine. The Council may consider 
opening up these portions after developing an EIS for the Omnibus 
Habitat Amendment, but we do not feel that it is appropriate to open 
these areas at this time.
    Comment 26: The Northeast Seafood Coalition and the Northeast 
Sector

[[Page 76088]]

Support Network contend that effort controls are no longer necessary 
now that sectors have an allocation that limits their effort. As a 
result, closed areas and the accompanying restrictions that are 
proposed in this rule are not necessary to manage the fishery.
    Response: We strongly disagree that managing effort, or input 
controls, including the use of closed areas and gear restrictions, are 
no longer necessary. Since Amendment 16 to the groundfish plan 
established annual catch limits and accountability measures and 
expanded the scope of sectors, not one sector has exceeded its 
allocation--this is important in a quota-managed fishery. Yet several 
key groundfish stocks, including Gulf of Maine cod, Gulf of Maine 
haddock, Georges Bank cod, and Georges Bank yellowtail flounder, are in 
worse condition than they were in fishing year 2010 when Amendment 16 
was implemented. Despite our attempts at utilizing the best available 
science to develop annual quotas, and despite each sector adhering to 
its allocation each fishing year, many of our stocks continue to 
struggle to rebuild for a variety of reasons, including poor 
recruitment and possibly climate change. Simply put, quotas alone 
cannot manage this fishery.
    Because of this, we do believe that additional measures, such as 
protection for juvenile and spawning fish, as well as essential fish 
habitats, are vital to helping the stocks rebuild. Furthermore, it is 
counter-productive to increase fishing pressure on stocks that are 
overfished and undergoing overfishing.
    Comment 27: The Northeast Seafood Coalition and the Northeast 
Sector Support Network are opposed to the seasonality restrictions that 
were included in the proposed rule. The Cape Cod Commercial Fishermen's 
Alliance argued that gillnets should be permitted in Closed Area I and 
that hook gear should not be subject to the same restrictions as 
lobster and trawl gear.
    Response: The seasonality restrictions were included to protect 
spawning stocks of Georges Bank cod, which is overfished and undergoing 
overfishing. As explained on our response to Comment 26, we believe 
effort controls such as seasonality restrictions are necessary to 
protect stocks that are in poor condition.
    The Cape Cod Commercial Fishermen's Alliance comment focused on the 
fact that Closed Area I is not in a designated whale protection zone, 
harbor porpoise are not in the area, and pinger compliance could reduce 
any concern of increased interactions with protected species. We were 
prohibiting gillnets in the Closed Area I exemption area to protect 
Georges Bank cod because gillnets have relatively high bycatch rates; 
we were not prohibiting them in the area because of protected species 
interactions.
    Lastly, the comment suggesting that hook gear should not be subject 
to the same restrictions as lobster and trawl gear as defined by the 
Addendum XX to the Atlantic States Marine Fisheries Commission Lobster 
Management Plan is moot since we are no longer opening Closed Area II 
as proposed.
    Comment 28: The Northeast Seafood Coalition and Northeast Sector 
Support Network commented that the mortality closure areas, which is 
what the Council included in Framework 48 as areas that sectors could 
request exemptions from, have never been identified as habitat closed 
areas either in the past or proposed as alternatives in the Omnibus 
Habitat Amendment. Further, they say that they are commonly known and 
understood to be mortality closures only.
    Response: As explained in the response to comment section in the 
Framework 48 final rule (78 FR 26118; May 3, 2013; see pages 26147-
26148), the record clearly shows that the areas in question were 
created with several considerations in mind, including protection for 
spawning stocks and improvement of benthic habitats. It is not 
irrational to link mortality closure areas with habitat closure areas 
because there has been no groundfish fishing in many of the mortality 
areas, specifically the portions we proposed to open in this rule, for 
almost 20 years. It seems reasonable to argue that an area that was 
once closed to reduce mortality has been closed so long that it has 
improved habitat.
    However, as explained in our response to Comment 11, we are not 
denying access to Closed Areas I and II because of habitat concerns. In 
fact, we proposed to open the areas because we believe that the habitat 
in these areas is either already subject to fishing pressure or not 
vulnerable to fishing. We are not allowing access into these two areas 
because industry has stated that they are unable to pay for the 
monitoring coverage we see necessary, given our concern about the 
health of such groundfish as Georges Bank cod and yellowtail flounder.

Comments in General Support of the Proposed Action

    Comment 29: The Penobscot East Resource Center commented that 
allowing vessels offshore into Closed Areas I and II could increase 
inshore fishing opportunities for smaller dayboats.
    Response: We expect this would be the case, at least to some 
degree, if the areas were opened. However, there is no guarantee that 
allowing vessels to fish offshore in Closed Areas I and II would reduce 
their inshore fishing effort. For example, even though a vessel may 
shift some of its fishing effort into Closed Area II to increase its 
catch of Georges Bank haddock, that vessel still has an allocation of 
Gulf of Maine winter flounder, American plaice, Cape Cod/Gulf of Maine 
yellowtail flounder, and other stocks that they could possibly catch 
inshore. As a result, approving the proposed opening of offshore areas 
would not necessarily reduce the inshore fishing effort of large 
vessels.
    Comment 30: The Maine Coastal Fishermen's Association supported the 
accountability measures as proposed.
    Response: We modified the exemptions because we believe that access 
to closed areas needs to be done in a responsible manner that is well 
monitored and protects struggling fish stocks. It is also important to 
consider the efficiency of fishery resources so that the utility of 
opening an area outweighs the potential costs, and to the extent 
practicable, reduce adverse economic impacts on communities and 
minimize costs. Because the vast majority of the comments submitted 
argued that the areas should not be opened, and industry is unwilling 
to pay for additional monitoring that we deem necessary to monitor 
stocks of concern, we are not opening Closed Areas I and II.
    Comment 31: Environmental Defense Fund and the Penobscot East 
Resource Center suggested developing trigger thresholds that would 
result in closing the areas if certain catch levels are obtained.
    Response: While we agree with this concept, we are not opening 
Closed Areas I or II at this time, therefore thresholds are not needed 
for those areas. We will monitor catches of groundfish, as well as 
catches of monkfish, dogfish, and skates in the Nantucket Lightship 
Closed Area, and will revoke the exemption if opening the area results 
in any unanticipated negative impacts. We will also revoke the 
exemption if it is determined that we have insufficient funding to meet 
our monitoring costs by allowing access to this area under standard 
observer coverage.
    Comment 32: The Environmental Defense Fund supported opening the 
Nantucket Lightship Closed Area as long as a Great South Channel 
closure

[[Page 76089]]

is included in the Omnibus Habitat Amendment.
    Response: While we support the idea of a variety of habitat closure 
areas in a variety of locations, we cannot predict a future Council 
decision. There are several alternatives in the Council's Omnibus 
Habitat Amendment for the Great South Channel area, and we continue to 
support a comprehensive approach to habitat protection.
    We proposed opening the Nantucket Lightship Closed Area because we 
do not believe that it provides extensive habitat benefits and the 
benefits to the groundfish fishery of re-opening that area outweigh the 
potential impacts on fishery stocks. The Omnibus Habitat Amendment, if 
approved, is intended to minimize the adverse effects of fishing on 
EFH, to the extent practicable.
    Comment 33: The Atlantic Offshore Lobstermen's Association and one 
industry member suggested that NMFS needs to anticipate potential gear 
conflicts and work with industry to resolve the conflicts rather than 
forcing industry to take on the burden itself.
    Response: We understand the concerns expressed by lobstermen and 
will take a more active role in the future. Further, we commend the 
lobster and groundfish industries for working together to develop a 
compromise. Because we did not approve the exemption that would allow 
sector vessels into a portion of Closed Area II, the lobster agreement 
made between the Atlantic Offshore Lobstermen's Association and several 
sectors is no longer necessary for fishing year 2013. If sectors 
request the exemption for fishing year 2014, and if it is approved, the 
agreement would come into play and the regulatory language that was 
included in the proposed rule would be proposed again.
    Regulations adding increased restrictions on offshore lobster 
vessels were included in the proposed rule, but because the exemption 
is not being approved, the regulations are not included in this final 
rule. If the exemption is requested in the future, similar regulations 
would be proposed and would be implemented if the exemption were 
approved.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this final rule is 
consistent with the Northeast Multispecies Fishery Management Plan, 
other provisions of the Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be significant for purposes 
of Executive Order E.O. 12866.
    This final rule does not contain policies with federalism or 
``takings'' implications as those terms are defined in E.O. 13132 and 
E.O. 12630.
    Under 5 U.S.C. 553(d)(1), the Assistant Administrator for Fisheries 
finds good cause to waive the 30-day delayed effectiveness of this 
action. Waiving the 30-day delay in the effective date balances the 
needs of different user groups who fish in the Eastern and Western 
Exemption Areas. This action reduces regulatory restrictions by 
allowing sector vessels access to areas previously closed to fishing. 
Failure to waive the 30-day delayed effectiveness would result in 
missed opportunities for sector vessels to increase profits by 
increasing their catch of healthy fish stocks that are underharvested. 
However, NMFS is allowing for 15 days before implementing this rule so 
that vessels fishing fixed gear, such as lobster pots, in the Eastern 
and Western Exemption Areas can remove their gear from the areas should 
they wish to do so. This shorter delay should provide sufficient time 
for vessels to remove gear and avoid potential gear conflicts while 
also providing sector vessels quick access to these fishing grounds. 
Implementing this plan quickly meets Objectives 1 and 3 of the 
groundfish plan by allowing sector vessels additional fishing 
opportunities. Selective gears used in these areas reduces bycatch, and 
minimizes habitat impacts (Objectives 9 and 10).
    The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires agencies 
to assess the economic impacts of their proposed regulations on small 
entities. The objective of the Regulatory Flexibility Act 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. On June 20, 2013, the Small Business 
Administration (SBA) issued a final rule revising the small business 
size standards for several industries effective July 22, 2013 (78 FR 
37398). The rule increased the size standard for Finfish Fishing from 
$4.0 to $19.0 million, Shellfish Fishing from $4.0 to $5.0 million, and 
Other Marine Fishing from $4.0 to $7.0 million.
    Taking this change and public comment into consideration, NMFS has 
identified no additional significant alternatives that accomplish 
statutory objectives and minimize any significant economic impacts of 
the proposed rule on small entities. Because sector exemptions are 
voluntary and would likely only be utilized when economically 
beneficial to sector vessels, we do not see any difference between 
impacts to larger vessels or companies versus smaller. We also do not 
see any significant economic impacts in general. Further, the new size 
standards do not affect the decision to prepare a Final Regulatory 
Flexibility Analysis as opposed to a certification for this action. 
Because there are so few companies that were listed as large entities 
prior to the rule change, increasing the size standards would only 
further reduce the number of larger entities. In this instance we 
believe that preparing a Final Regulatory Flexibility Analysis was a 
more transparent, conservative, responsible approach that required 
additional analyses that provided the agency and the public with more 
information.
    Pursuant to the Regulatory Flexibility Act, and prior to Small 
Business Administration's June 20 final rule, an initial regulatory 
flexibility analysis was developed for this action using Small Business 
Administration's former size standards. NMFS has reviewed the analyses 
prepared for this action in light of the new size standards. The new 
standards could result in a few more entities being considered small.
    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)).
    A Final Regulatory Flexibility Analysis was prepared for this 
action, as required by section 604 of the Regulatory Flexibility Act. 
The Final Regulatory Flexibility Analysis includes the SUMMARY and 
Comments and Responses section in this rule, the analyses contained in 
the accompanying environmental assessment (including the Regulatory 
Impact Review and Regulatory Flexibility Analysis, and the Initial 
Regulatory Flexibility Analyses summary in the proposed rule). The 
Final Regulatory Flexibility Analysis describes the economic impact of 
this action on small entities. A description of the action, why it is 
being considered, and the legal basis for this action are

[[Page 76090]]

contained in the preamble to the proposed and final rule 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 to 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 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 day-at-sea 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 this action is contained in 
Section 2.0 of the EA.

The Objectives and Legal Basis for the Proposed Action

    This action grants sectors a regulatory exemption allowing sector 
vessels restricted access to fish in portions of Nantucket Lightship 
Closed Area. The legal basis for the proposed action is the NE 
Multispecies FMP and promulgating regulations at Sec.  648.87. 
Regulations adding increased restrictions on offshore lobster vessels 
were included in the proposed rule, but because the exemption is not 
being approved, the regulations are not included in this final rule.

Estimate of the Number of Small Entities

    As explained above, the SBA size standard for commercial fin-
fishing entities (North American Industry Classification System code 
114111) is $19 million in annual sales and $5 million in annual sales 
for shellfish fishing entities. To determine an entity's size, we 
consider a vessel's affiliations. 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.
    Using the Small Business Administration's size standard prior to 
its revision, NMFS determined that the maximum number of entities 
affected by this action is expected to be approximately 303. A total of 
301 groundfish ownership entities are considered small entities, based 
on the Small Business Administration's prior size standard. It is 
likely that all 303 of the groundfish vessels ownership entities would 
be considered small entities following the Small Business 
Administration's revision. The economic impact resulting from this 
action on these small groundfish entities is positive, since the action 
provides additional operational flexibility to vessels participating in 
NE multispecies sectors for FY 2013. In addition, this action further 
mitigates 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.

Reporting, Recordkeeping, and Other Compliance Requirements

    This rule contains no collection-of-information requirement subject 
to the Paperwork Reduction Act. This action provides additional 
flexibility to sector vessels in fishing year 2013 by allowing them to 
fish in areas that were previously closed. Sector vessels are required 
to declare their intent to fish in these areas prior to departure. 
Exemptions implemented through this action will 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 final rule 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 this action, 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 could contribute to continued under harvesting of 
Georges Bank haddock and would eliminate the potential for groundfish 
fishermen to increase their profits by limiting access to other stocks 
such as monkfish, dogfish, and skates.
    The Preferred Alternative (the proposed action) would allow sector 
vessels to fish in portions of the Nantucket Lightship Closed Area, 
Closed Area I, and/or Closed Area II. The Preferred Alternative is 
expected to 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 the groundfish plan within certain groundfish closed areas. 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 allocation, sector members will 
have a greater opportunity to remain economically viable while 
adjusting to changing economic and fishing conditions. Thus, the 
preferred 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;

[[Page 76091]]

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 include 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 would provide greater operational flexibility 
and increased fishing 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.

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

    Dated: December 11, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2013-29857 Filed 12-13-13; 8:45 am]
BILLING CODE 3510-22-P