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Rule

Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 59

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Start Preamble

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This action approves and implements Framework Adjustment 59 to the Northeast Multispecies Fishery Management Plan. This rule sets or adjusts catch limits for 19 of the 20 multispecies (groundfish) stocks and makes minor changes to groundfish management measures. This action is necessary to respond to updated scientific information and to achieve the goals and objectives of the fishery management plan. The final measures are intended to help prevent overfishing, rebuild overfished stocks, achieve optimum yield, and ensure that management measures are based on the best scientific information available.

DATES:

Effective July 28, 2020.

ADDRESSES:

Copies of Framework Adjustment 59, including the Environmental Assessment, the Regulatory Impact Review, and the Regulatory Flexibility Act Analysis prepared by the New England Fishery Management Council in support of this action are available from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The supporting documents are also accessible via the internet at: http://www.nefmc.org/​management-plans/​northeast-multispecies or http://www.regulations.gov.

Copies of the small entity compliance guide are available from Michael Pentony, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930-2298, or available on the internet at: https://www.fisheries.noaa.gov/​management-plan/​northeast-multispecies-management-plan.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

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

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Summary of Approved Measures

2. Fishing Year 2020 Shared U.S./Canada Quotas

3. Catch Limits for Fishing Years 2020-2022

4. Regulatory Corrections under Secretarial Authority

5. Comments and Responses on Measures Proposed in the Framework 59 Proposed Rule

6. Changes from the Proposed Rule

1. Summary of Approved Measures

This action approves the management measures in Framework Adjustment 59 Start Printed Page 45795to the Northeast Multispecies Fishery Management Plan (FMP). The measures implemented in this final rule:

  • Set fishing year 2020 shared U.S./Canada quotas for Georges Bank (GB) yellowtail flounder and Eastern GB cod and haddock;
  • Set 2020-2022 specifications, including catch limits, for 15 groundfish stocks;
  • Adjust 2020 allocations for four groundfish stocks: Gulf of Maine (GOM) winter flounder, Southern New England/Mid-Atlantic (SNE/MA) winter flounder, redfish, and ocean pout;
  • Address commercial/recreational allocation issues raised by new Marine Recreational Information Program (MRIP) data; and
  • Revise the GB cod Incidental Catch total allowable catch (TAC) to remove the allocation to the Closed Area I Hook Gear Haddock Special Access Program (SAP).

This action also implements regulatory corrections that are not part of Framework 59, but that are implemented under our section 305(d) authority in the Magnuson-Stevens Act to make changes necessary to carry out the FMP. We are implementing these corrections in conjunction with the Framework 59 measures for expediency purposes. We describe these corrections in Section 4, Regulatory Corrections under Secretarial Authority.

2. Fishing Year 2020 Shared U.S./Canada Quotas

Management of Transboundary Georges Bank Stocks

As described in the proposed rule (85 FR 32347; May 29, 2020), Eastern GB cod, Eastern GB haddock, and GB yellowtail flounder are jointly managed with Canada under the U.S./Canada Resource Sharing Understanding. This action adopts shared U.S./Canada quotas for these stocks for fishing year 2020 based on 2019 assessments and the recommendations of the Transboundary Management Guidance Committee (TMGC). The 2020 shared U.S./Canada quotas, and each country's allocation, are listed in Table 1. Detailed summaries of the assessments can be found at: https://www.fisheries.noaa.gov/​new-england-mid-atlantic/​international-affairs/​population-dynamics-international-collaboration.

Table 1—2020 Fishing Year U.S./Canada Quotas (mt, live weight) and Percent of Quota Allocated to Each Country

QuotaEastern GB codEastern GB haddockGB yellowtail flounder
Total Shared Quota65030,000162
U.S. Quota188.5 (29%)16,200 (54%)120 (74%)
Canadian Quota461.5 (71%)13,800 (46%)42 (26%)

The regulations implementing the U.S./Canada Resource Sharing Understanding require deducting any overages of the U.S. quota for Eastern GB cod, Eastern GB haddock, or GB yellowtail flounder from the U.S. quota in the following fishing year. Based on preliminary data through July 9, 2020, the U.S. fishery did not exceed its 2019 fishing year quota for any of the shared stocks. However, if final catch accounting for the 2019 fishing year indicates that the U.S. fishery exceeded its quota for any of the shared stocks, we will reduce the respective U.S. quotas for the 2020 fishing year in an adjustment action, as soon as possible in the 2020 fishing year. If any fishery that is allocated a portion of the U.S. quota exceeds its allocation and causes an overage of the overall U.S. quota, the overage reduction would be applied only to that fishery's allocation in the following fishing year. This ensures that catch by one component of the overall fishery does not negatively affect another component of the overall fishery.

3. Catch Limits for Fishing Years 2020-2022

Summary of the Catch Limits

This rule adopts new catch limits for 14 groundfish stocks for the 2020-2022 fishing years based on stock assessments completed in 2019, and fishing year 2020-2021 specifications for GB yellowtail flounder. Framework 57 (83 FR 18985; May 1, 2018) previously set 2020 quotas for the five groundfish stocks not assessed in 2019 (GOM winter flounder, SNE/MA winter flounder, redfish, ocean pout, and Atlantic wolffish), based on assessments conducted in 2017. This action includes minor adjustments for four of these stocks (excluding Atlantic wolffish) for fishing year 2020. The catch limits implemented in this action, including overfishing limits (OFL), acceptable biological catches (ABC), and annual catch limits (ACL), are listed in Tables 2 through 10. A summary of how these catch limits were developed, including the distribution to the various fishery components, was provided in the proposed rule and in Appendix II (Calculation of Northeast Multispecies Annual Catch Limits, FY 2020-FY 2022) to the Framework 59 Environmental Assessment (EA) (see ADDRESSES for information on how to get this document), and is not repeated here. The sector and common pool sub-ACLs implemented in this action are based on fishing year 2020 potential sector contributions (PSC) and final fishing year 2020 sector rosters.

Recreational Allocations

Amendment 16 to the FMP (75 FR 18262; April 9, 2010) established the method for determining the original commercial and recreational allocations of GOM cod and haddock based on the ratio of reported landings (for commercial and recreational) and discards (commercial only) for the time period 2001-2006 using data from the Groundfish Assessment Review Meeting III (GARM III). The 2019 stock assessments used updated data to assess groundfish stocks including GOM cod and haddock. The proposed rule included an explanation of the data changes incorporated into the 2019 stock assessments and is not repeated here.

Framework 59, applying the same method approved in Amendment 16 but with the revised data for the same time period of 2001-2006, approves a revised recreational allocation of 37.5 percent for GOM cod and 33.9 percent for GOM haddock. The remaining portion of the ABC (62.5 percent for GOM cod, 66.1 percent for GOM haddock) is allocated to the commercial fisheries, which include the Federal commercial groundfish fishery, state commercial fishery, and other Federal fisheries. Table 11 shows the original and revised split in allocations as a percentage for Start Printed Page 45796the commercial and recreational fisheries for GOM cod and haddock.

Closed Area I Hook Gear Haddock SAP

Framework 59 removes the portion of the Incidental Catch Total Allowable Catch (TAC) for GB cod that is allocated to the Closed Area I Hook Gear Haddock SAP. The allocation of the GB cod Incidental Catch TAC remains for the Regular B Days-at-Sea Program and the Eastern U.S./Canada Haddock SAP (Table 8).

Table 2—Fishing Years 2020-2022 Overfishing Limits and Acceptable Biological Catches

[Mt, live weight]

Stock2020Percent change from 201920212022
OFLU.S. ABCOFLU.S. ABCOFLU.S. ABC
GB CodUNK1,291−29UNK1,291UNK1,291
GOM Cod724552−219295521,150552
GB Haddock184,822131,567126116,88376,537114,92575,056
GOM Haddock25,33419,6965821,52116,79414,83411,526
GB Yellowtail FlounderUNK12013UNK120
SNE/MA Yellowtail Flounder3122−68712218422
CC/GOM Yellowtail Flounder1,136823611,0768231,116823
American Plaice4,0843,155963,7402,8813,6872,825
Witch FlounderUNK1,48349UNK1,483UNK1,483
GB Winter Flounder790561−319445611,590561
GOM Winter Flounder *5964470
SNE/MA Winter Flounder *1,2287270
Redfish *15,85211,9421
White Hake2,8572,147−272,9062,1472,9862,147
Pollock35,35827,447−3228,47522,06221,74416,812
N. Windowpane Flounder8459−3684598459
S. Windowpane Flounder568426−10568426568426
Ocean Pout *1691270
Atlantic HalibutUNK1062UNK1060106
Atlantic Wolffish *120900
CC = Cape Cod; N = Northern; S = Southern; UNK = Unknown.
* The GOM winter flounder, SNE/MA winter flounder, redfish, ocean pout, and Atlantic wolffish stocks have U.S. ABCs previously approved in Framework 57, based on the 2017 assessments. All other stocks' proposed ABCs based on the 2019 assessments.
Note: An empty cell indicates no OFL/ABC is adopted for that year. These catch limits would be set in a future action.

Table 3—Catch Limits for the 2020 Fishing Year

[Mt, live weight]

StockTotal ACLGroundfish sub-ACLSector sub-ACLCommon pool sub-ACLRecreational sub-ACLMidwater trawl fisheryScallop fisherySmall- mesh fisheriesState waters sub- componentOther sub- component
A to HA + B + CABCDEFGH
GB Cod1,2341,0731,0413119142
GOM Cod5234682679193487
GB Haddock124,969121,864119,4102,4542,4470658
GOM Haddock18,58018,26711,7543036,2101836565
GB Yellowtail Flounder1169592318.62.20.00.0
SNE/MA Yellowtail Flounder2115123204
CC/GOM Yellowtail Flounder787688656325841
American Plaice3,0002,9372,859783232
Witch Flounder1,4141,3101,275354459
GB Winter Flounder54552250221022
GOM Winter Flounder432287272141397
SNE/MA Winter Flounder6995394756336124
Redfish11,35111,23111,0851476060
White Hake2,0412,0191,995241111
Pollock26,18423,98923,7522361,0981,098
N. Windowpane Flounder5538na381215
S. Windowpane Flounder41248na4814326196
Ocean Pout12092na92127
Atlantic Halibut10277na77214
Atlantic Wolffish8482na8211
na: not allocated to sectors.
Start Printed Page 45797

Table 4—Catch Limits for the 2021 Fishing Year

[Mt, live weight]

StockTotal ACLGroundfish sub-ACLSector sub-ACLCommon pool sub-ACLRecreational sub-ACLMidwater trawl fisheryScallop fisherySmall- mesh fisheriesState waters sub- componentOther sub- component
A to HA + B + CABCDEFGH
GB Cod1,2341,0731,0413119142
GOM Cod5234682679193487
GB Haddock72,69970,89269,4651,4281,4240383
GOM Haddock15,84315,57510,0222585,2951565656
GB Yellowtail Flounder1169592319200
SNE/MA Yellowtail Flounder2115123204
CC/GOM Yellowtail Flounder787688656325841
American Plaice2,7402,6822,611712929
Witch Flounder1,4141,3101,275354459
GB Winter Flounder54552250221022
GOM Winter Flounder *00
SNE/MA Winter Flounder *00
Redfish *00
White Hake2,0412,0191,995241111
Pollock21,04719,28219,092190882882
N. Windowpane Flounder5538na381215
S. Windowpane Flounder41248na4814326196
Ocean Pout *
Atlantic Halibut10277na77214
Atlantic Wolffish*
na: not allocated to sectors.
* These stocks only have an allocation for fishing year 2020, previously approved in Framework 57.

Table 5—Catch Limits for the 2022 Fishing Year

[Mt, live weight]

StockTotal ACLGroundfish sub-ACLSector sub-ACLCommon pool sub-ACLRecreational sub-ACLMidwater trawl fisheryScallop fisherySmall- mesh fisheriesState waters sub- componentOther sub- component
A to HA + B + CABCDEFGH
GB Cod1,2341,0731,0413119142
GOM Cod5234682679193487
GB Haddock71,29269,52168,1201,4001,3960375
GOM Haddock10,87310,6906,8791773,6341073838
GB Yellowtail Flounder **00
SNE/MA Yellowtail Flounder2115133204
CC/GOM Yellowtail Flounder787688656325841
American Plaice2,6872,6302,560702828
Witch Flounder1,4141,3101,275354459
GB Winter Flounder54552250221022
GOM Winter Flounder *00
SNE/MA Winter Flounder *00
Redfish *00
White Hake2,0412,0191,995241111
Pollock16,03914,69414,549145672672
N. Windowpane Flounder5538na381215
S. Windowpane Flounder41248na4814326196
Ocean Pout *
Atlantic Halibut10277na77214
Atlantic Wolffish *
na: not allocated to sectors.
* These stocks only have an allocation for fishing year 2020, previously approved in Framework 57.
** Framework 59 sets allocations for GB yellowtail flounder for fishing years 2020 and 2021 only.

Table 6—Fishing Years 2020-2022 Common Pool Trimester TACs

[Mt, live weight]

Stock202020212022
Trimester 1Trimester 2Trimester 3Trimester 1Trimester 2Trimester 3Trimester 1Trimester 2Trimester 3
GB Cod8.810.711.98.810.711.98.810.711.9
GOM Cod4.32.91.64.32.91.64.32.91.6
GB Haddock662.7810.0981.8385.5471.2571.1378.1462.1560.1
GOM Haddock81.878.8142.469.867.2121.547.946.183.4
Start Printed Page 45798
GB Yellowtail Flounder0.61.01.70.61.01.7
SNE/MA Yellowtail Flounder0.60.81.50.60.81.50.60.81.5
CC/GOM Yellowtail Flounder18.08.25.418.08.25.418.08.25.4
American Plaice57.66.214.052.65.712.851.65.612.6
Witch Flounder19.57.18.919.57.18.919.57.18.9
GB Winter Flounder1.75.014.21.75.014.21.75.014.2
GOM Winter Flounder5.45.53.6
Redfish36.745.564.6
White Hake9.37.67.69.37.67.69.37.67.6
Pollock66.282.787.553.266.570.340.550.753.6

Table 7—Common Pool Incidental Catch TACs for the 2020-2022 Fishing Years

[Mt, live weight]

StockPercentage of common pool sub-ACL202020212022
GB Cod1.680.530.530.53
GOM Cod10.090.090.09
GB Yellowtail Flounder20.070.07
CC/GOM Yellowtail Flounder10.320.320.32
American Plaice53.893.563.49
Witch Flounder51.771.771.77
SNE/MA Winter Flounder10.63

Table 8—Percentage of Incidental Catch TACs Distributed to Each Special Management Program

StockRegular B DAS program (%)Closed Area I hook gear haddock SAP (%)Eastern U.S./CA haddock SAP (%)
GB Cod60040
GOM Cod100n/an/a
GB Yellowtail Flounder50n/a50
CC/GOM Yellowtail Flounder100n/an/a
American Plaice100n/an/a
Witch Flounder100n/an/a
SNE/MA Winter Flounder100n/an/a

Table 9—Fishing Years 2020-2022 Incidental Catch TACs for Each Special Management Program

[Mt, live weight]

StockRegular B DAS programClosed Area I hook gear haddock SAPEastern U.S./Canada haddock SAP
2020202120222020-2022202020212022
GB Cod0.320.320.320.00.210.210.21
GOM Cod0.090.090.09n/an/an/an/a
GB Yellowtail Flounder0.030.03n/a0.030.03
CC/GOM Yellowtail Flounder0.320.320.32n/an/an/an/a
American Plaice3.893.563.49n/an/an/an/a
Witch Flounder1.771.771.77n/an/an/an/a
SNE/MA Winter Flounder0.63n/an/an/an/a

Table 10—Fishing Years 2020-2022 Regular B DAS Program Quarterly Incidental Catch TACs

[Mt, live weight]

Stock202020212022
1st quarter (13%)2nd quarter (29%)3rd quarter (29%)4th quarter (29%)1st quarter (13%)2nd quarter (29%)3rd quarter (29%)4th quarter (29%)1st quarter (13%)2nd quarter (29%)3rd quarter (29%)4th quarter (29%)
GB Cod0.040.090.090.090.040.090.090.090.040.090.090.09
GOM Cod0.010.030.030.030.010.030.030.030.010.030.030.03
Start Printed Page 45799
GB Yellowtail Flounder0.0040.0100.0100.0100.000.010.010.01
CC/GOM Yellowtail Flounder0.040.090.090.090.040.090.090.090.040.090.090.09
American Plaice0.511.131.131.130.461.031.031.030.451.011.011.01
Witch Flounder0.230.510.510.510.230.510.510.510.230.510.510.51
SNE/MA Winter Flounder0.080.180.180.18

Table 11—Original and Revised Allocations, by Percentage, for Commercial and Recreational Gulf of Maine Cod and Haddock Fisheries

GOM codGOM haddock
Commercial (%)Recreational (%)Commercial (%)Recreational (%)
Original66.333.772.527.5
Revised62.537.566.133.9

Sector Annual Catch Entitlements (ACE)

At the start of the 2020 fishing year, we allocated stocks to each sector, based on the catch limits set by Frameworks 57 and 58. This rule updates the ACE allocated to sectors based on the catch limits approved in Framework 59, fishing year 2020 PSC, and final fishing year 2020 sector rosters. We calculate a sector's allocation for each stock by summing its members' PSC for the stock and then multiplying that total percentage by the commercial sub-ACL for that stock. The process for allocating ACE to sectors is further described in the interim final rule allocating ACE to sectors for fishing year 2020 (85 FR 23229; April 27, 2020) and is not repeated here. Table 12 shows the cumulative PSC by stock for each sector for fishing year 2020. Tables 13 and 14 show the ACEs allocated to each sector for fishing year 2020, in pounds and metric tons, respectively. We have included the common pool sub-ACLs in tables 12 through 14 for comparison.

Start Printed Page 45800

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Default Catch Limits for Future Fishing Years

Framework 53 established a mechanism for setting default catch limits in the event a future management action is delayed. If final catch limits have not been implemented by the start of a fishing year on May 1, then default catch limits are set at 35 percent of the previous year's catch limit, effective until July 31 of that fishing year, or when replaced by new catch limits sooner than July 31. If this default value exceeds the Council's recommendation for the upcoming fishing year, the default catch limits will be reduced to an amount equal to the Council's recommendation for the upcoming fishing year. Because groundfish vessels are not able to fish if final catch limits have not been implemented, this default measure was established to prevent disruption to the groundfish fishery. Additional description of the default catch limit mechanism is provided in the preamble to the Framework 53 final rule (80 FR 25110; May 1, 2015).

4. Regulatory Corrections Under Secretarial Authority

The following corrections are being made using Magnuson-Stevens Act section 305(d) authority to ensure that FMPs or amendments are implemented in accordance with the Magnuson-Stevens Act.

Authority To Change Gear Standard

In 2007, the Council recommended that the Regional Administrator implement gear performance standards that gear must meet before being considered for use in the Regular B DAS Program and the Eastern U.S./Canada Haddock SAP. On December 26, 2007, we published a final rule approving the Council's recommended gear standards (72 FR 72965). In updating the regulations to reflect the new gear standards, the 2007 rule inadvertently removed the portion of the regulations that gave the Regional Administrator authority to approve additional gear standards, if recommended by the Council. This rulemaking revises the regulatory text to correctly reflect the Council's original intent.

Citation for Windowpane Flounder Accountability Measure

The regulations regarding the windowpane flounder accountability measures include a process by which the AM may be reduced. The regulations implementing this provision include an incorrect citation to a paragraph that was moved to a new location. This action corrects this citation.

5. Comments and Responses on Measures Proposed in the Framework 59 Proposed Rule

We received comments on the Framework 59 proposed rule from 37 members of the public, the Recreational Fishing Alliance, Stellwagen Bank Charter Boat Association, Maine Association of Charterboat Captains, the Northeast Seafood Coalition (NSC), the Fisheries Survival Fund (FSF), and the Conservation Law Foundation (CLF). Only comments that were applicable to the proposed measures are addressed below. Consolidated responses are provided to similar comments on the proposed measures.

Fishing Year 2020 Shared U.S./Canada Quotas

Comment 1: FSF disagreed with a statement in the proposed rule that the Council may not set catch limits that would exceed the Council's Scientific and Statistical Committee's (SSC) recommendations for GB yellowtail flounder. FSF raises three specific concerns: That the Council is not held to the Magnuson-Stevens Act when setting catch limits for stocks with international agreements and therefore the Council is not held to the SSC's recommendation for such stocks; that the International Fisheries Agreement Clarification Act (IFACA) defines the Council's responsibilities in setting catch limits for stocks under international agreement; and that neither the Council nor the SSC have the authority to establish law, through determination of catch limits, under Article II of the Constitution of the United States, Article II.

Response 1: FSF raises concerns about the process that the Council used to set the U.S. share of the GB yellowtail specifications. We disagree with FSF's first two claims about the applicability of the Magnuson-Stevens Act and the IFACA. The Understanding is not a bilateral treaty or agreement, as defined by the Magnuson-Stevens Act, rather it is a cooperative agreement intended to provide guidance in the form of harvest strategies to effectively manage three transboundary groundfish resources. The Council's recommended catch limits are consistent with the TMGC's advice, the Understanding, and IFACA. The IFACA expressly does not amend the Magnuson-Stevens Act, including the Council mandate to not exceed catch limits recommended by its SSC and to set catch limits that prevent overfishing. This mandate is also reflected in the agency's National Standard 2 guidelines at 50 CFR 600.315(c)(6). IFACA acknowledged the Understanding as an international agreement only for the purposes of providing flexibility in rebuilding requirements that would otherwise have been limited to a maximum of 10 years under MSA provisions. As such, IFACA provides flexibility in setting rebuilding plan catch limits and time periods for GB yellowtail flounder. Further, the Council's terms of reference for the SSC's ABC recommendation are consistent with the Understanding and IFACA. The Council requested that the SSC should, taking into consideration the Council's Risk Policy Statement, determine an ABC that will prevent overfishing and meet the management objective to rebuild the stock. GB yellowtail flounder is currently under a 26-year rebuilding plan that expires in 2032. The ABCs for this stock are and have been based on this 26-year rebuilding plan, which was revised in 2012 under the provisions of IFACA.

We disagree with FSF's claim that the SSC unconstitutionally constrains the Executive's authority to set domestic or international policy. Under the Magnuson-Stevens Act, the Council makes recommendations for catch limits and other fishery management measures. The Act requires the Council's SSC to provide scientific advice for the Council to make those recommendations, in accordance with the terms of reference provided by the Council. The Secretary is authorized to approve Council actions that comply with the Magnuson-Stevens Act and applicable laws and will disapprove Council actions that are not consistent with law. Given the Council's and Secretary's roles and authorities defined in the Magnuson-Stevens Act, FSF provides no example of how the Council's actions were unconstitutional by law or in practice in Framework 59's development or implementation.

While the Council may ask the SSC to reconsider its ABC recommendation when warranted, the Council cannot set an ABC higher than that ultimately recommended by its SSC, per the Magnuson-Stevens Act. However, this provision does not apply to the Secretary of Commerce, who exercises his authority under the Magnuson-Stevens Act to approve or disapprove Council recommendations based on inconsistency with law, including National Standard 2's best available science standard. While NMFS has deviated from the Council's recommendation and developed separate rulemaking in emergency situations, such an approach is not warranted for 2020.Start Printed Page 45804

Catch Limits for Fishing Years 2020-2022

Comment 2: CLF opposed the ABCs set for GB cod and GOM cod. It stated that the management of cod has been, and continues to be, inconsistent with the Magnuson-Stevens Act. CLF referenced a suite of measures that it requested NMFS implement through a Secretarial amendment and an emergency or interim action to immediately address CLF's alleged cod rebuilding and protection failures. CLF stated that the best scientific information available confirms the continued overfished and overfishing status of cod. It stated that the proposed catch limits for GOM and GB cod do not end overfishing or rebuild the stocks, in part because the Council did not take into account scientific uncertainty in bycatch estimates due to bias in at-sea monitoring coverage that was discovered during the development of Amendment 23 to the groundfish plan. CLF urged NMFS to disapprove the catch limits for GOM and GB cod and remand the decision back to the Council for immediate reconsideration with recommendations that bring the Northeast Multispecies FMP into conformity with the requirements of the Magnuson-Stevens Act.

Response 2: The approved 2020-2022 ABCs and ACLs are based on peer-reviewed 2019 stock assessments and the recommendations of the Council's SSC, consistent with the National Standard 2 requirement to use the best scientific information available. Further, the ABCs and ACLs were calculated to prevent overfishing while achieving optimum yield, as required by National Standard 1, and they are consistent with the current rebuilding programs.

As explained in Appendix I to the EA, in recent years, the SSC has either used the default control rule for a groundfish stock or applied other approaches tailored to address particular elements of scientific uncertainty. The 2019 assessments for GOM cod cite the estimate of natural mortality, as well as stock structure and the veracity of fishery catch data, as important sources of uncertainty. For GB cod, the assessment stated that the major source of uncertainty for the stock assessment was the unknown cause of the retrospective pattern that led to the analytical assessment of this stock not being accepted for the 2015 operational assessment. The SSC considered this scientific uncertainty in setting catch advice for both cod stocks and used the Council's ABC control rule in the absence of better information that would allow a more explicit determination of scientific uncertainty. In both cases, the SSC recommended a 3-year constant catch to help account for uncertainty in the catch projections that are often overly optimistic in the out years. Future stock growth is often projected to be higher than what is realized. As a result, the SSC's ABC recommendations in many cases are lower than the estimated ABCs coming out of the model.

Specific to GOM cod, CLF expressed concern about cod mortality in the American lobster fishery. CLF cited a study that published in March 2020 and therefore was not available for consideration for the 2019 stock assessments, during the SSC's review and recommendation of ABCs, or for the Council's development of and final action for Framework 59. Accordingly, it could not be used in setting fishing year 2020 specifications. The 2019 and prior assessments have not included catch of cod by trap gear in part due to the lack of discard sampling in pot gear and the very limited information on which to base hindcast cod discard estimates or the discard mortality rate for the gear. The goal of stock assessments is to account for the true removals from the population over the entire time series. Future management and research track assessments may consider any additional information on catch estimate accuracy, sources of catch, and estimates of natural mortality, as appropriate.

For GB cod, the SSC considered whether to follow the previous groundfish updates, which used the output of the Plan B Smooth calculation as an OFL. Because the Plan B smooth model does not produce biological reference points, the majority of the SSC concluded that the OFL is unknown for this stock, and therefore recommended using the output to set the ABC, rather than the OFL. This is a similar approach that has been used for other groundfish stocks that use empirical models and do not have biological reference points.

As explained in Appendix I to the EA, in recent years, the SSC has either used the default control rule for a groundfish stock or applied other approaches tailored to address particular elements of scientific uncertainty. One example of a tailored approach is the use of constant catch levels. The Council's Groundfish Plan Development Team (PDT) used the outcomes of operational assessments to develop OFL and ABC alternatives for the SSC to consider using either the defined ABC control rule, approaches tailored for particular stocks in recent specification setting, or recommendations from the accepted peer reviewed stock assessments. The SSC also developed new approaches for some stocks based on its evaluation of uncertainty and attributes of the available science. The SSC routinely uses a constant catch approach and has recommended formally adopting this approach as part of the SSC's control rules.

For the catch limits incorporated into Framework 59, the SSC considered scientific uncertainty, including the issue of how to account for cod discards and bycatch in the assessment, when they recommended the ABCs. This consideration did not include determining the level of at-sea monitoring coverage necessary to ensure catch accountability. Given the Groundfish PDT's analyses of bias, earlier this year we determined that the level of at-sea monitoring coverage for the 2020 fishing year needed to be increased above the minimum coverage necessary to achieve a CV30. We set the coverage target level at 40 percent, which took into account the level of coverage that may be practicably provided and necessary to sufficiently ensure catch accountability for the 2020 fishing year. The level of at-sea monitoring coverage that is necessary on a permanent basis is being considered in Amendment 23 and is outside of the scope of this Framework.

The catch limits implemented in this rule, based on the SSC's recommendation, practicably mitigate economic impacts consistent with Magnuson-Stevens Act requirements. Ignoring an alternative that meets conservation objectives of the Magnuson-Stevens Act that could help mitigate some of the substantial economic impacts of recent groundfish management actions would not be consistent with National Standard.

8. Groundfish vessels catch cod along with other stocks in this multispecies fishery. As a result, a lower cod ABC could also jeopardize achieving optimum yield for the groundfish fishery by restricting the ability to fish for other species compared to the ABCs approved in this final rule.

The catch limits implemented in this rule will replace the fishing year 2020 specifications set in previous frameworks for most groundfish stocks, including GOM and GB cod. For both stocks, the 2020 ABCs set were based on the 2017 assessments and at the time were the best scientific information available (BSIA). Framework 59 sets new ABCs based on the updated BSIA. Any delay in approving these specifications would leave in place higher and outdated ABCs for both of these stocks.Start Printed Page 45805

Comment 3: A member of public commented in support of the proposed catch limits to allow for sustainable catch of groundfish species.

Response 3: We agree. For the reasons discussed in the preamble, we have approved the catch limits as proposed.

Comment 4: NSC commented on the adjustment to the recreational and commercial allocations of GOM cod and haddock. It raised concerns about the analysis of potential impacts to GOM cod of the increased proportion of quota allocated to the recreational fishery, and corresponding decrease to the commercial fishery, specifically sectors. It commented that the Council and NMFS did not take into account how the allocation adjustment will impact rebuilding efforts of GOM cod, impact stock assessments, or how the catch could be removed from areas otherwise closed to the commercial fishery to protect GOM cod.

Response 4: As described in the preamble, Amendment 16 established the method for determining the commercial and recreational allocations of GOM cod and haddock based on the ratio of reported landing and discards using data from GARM III. The 2019 stock assessment used updated data, including updated commercial landings and discards, the incorporation of recreational discards, and MRIP recreational landings and discards, as revised following the transition from the telephone-based effort survey to the mail-based effort survey and the re-calibration of recreational catch estimates from 1981 to the present. Framework 59 applies the same method approved in Amendment 16, as well as the same time period used to set allocations in Amendment 16, but with the revised data used in the 2019 assessments, to consistently use the best scientific information available. As stated in Amendment 16, “by allocating certain groundfish stocks to the commercial and recreational components of the fishery, the design of management measures can be tailored to the components that are responsible should mortality targets be exceeded.” The change in allocation between the commercial and recreational fisheries is not expected to have direct or indirect impacts on regulated groundfish species or other species because the total catch is constrained by the overall ACL.

While not within the scope of Framework 59, the Council has annually consulted with NMFS regarding recreational management measures for GOM cod and haddock, including adjustments to fishing seasons, minimum fish sizes, and possession limits. Other measures that NSC references, such as changes to the recreational fishery's monitoring and reporting, would require Council action. Similarly, the Council is required to adjust the management uncertainty buffers for each component of the fishery. The PDT reviews the buffers in each specifications action, and there was no information to suggest that a change to the current 7-percent buffer for the recreational fishery's quotas for GOM cod and haddock was needed.

Comment 5: Stellwagen Bank Charter Boat Association, Maine Association of Charterboat Captains, Recreational Fishing Alliance, and 36 members of the public commented in support of the adjustment to the recreational and commercial allocations for GOM cod and haddock, because the reallocation better reflects the complete data that should have been used when the original allocations were developed, such as the inclusion of discards by the recreational fishery in the totals of recreational catch.

Response 5: We agree, and approve the adjusted allocation for these two stocks as proposed, for the reasons discussed in the preamble.

Comment 6: Multiple commenters also recommended that NMFS consider increasing the GOM cod and/or haddock limits and expanding the open seasons.

Response 6: Such possible changes to recreational measures are outside the scope of Framework 59, and will be addressed in a separate action. At its June 2020 Council meeting, the Council updated its recommendation for recreational measures for the 2020 fishing year, to account for lower effort in the spring.

Comment 7: Several commenters also requested that the Council and NMFS take action to allow in-season changes to recreational measures, such as opening of closed months and increasing bag limits if in-season catch data showed that such changes were warranted.

Response 7: The Council did not discuss or recommend such changes to NMFS authority, and therefore this was not considered as part of Framework 59.

6. Changes From the Proposed Rule

The proposed rule included sector and common pool sub-ACLs based on fishing year 2020 PSCs and final fishing year 2020 sector rosters, but did not include the PSCs and ACEs allocated to each sector. This rule includes this information at the sector level.

In the regulatory text, the proposed rule included the text at 50 CFR 648.85(b)(5)(ii), which includes a reference to paragraph (b)(8). This citation has been updated to correctly refer to paragraph (b)(7).

Classification

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866. This final rule is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

The Assistant Administrator for Fisheries finds that there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delayed effectiveness of this action. This action relies on the best available science to set 2020 catch limits for groundfish stocks and adopts several other measures to improve the management of the groundfish fishery. This final rule must be in effect as early in fishing year 2020 as possible to capture fully the conservation and economic benefits of Framework 59 and avoid adverse economic impacts.

This rulemaking incorporates information from updated stock assessments from 15 of the 20 groundfish stocks. The development of Framework 59 was timed to incorporate the results of the 2019 groundfish stock assessments, for which the prepublication copy was available in October 2019. In December 2020, the Council took final action on Framework 59, but remanded the OFL and ABC recommendations for four stocks to the Council's SSC for further review. The SSC provided its revised recommendations for these four stocks at the January 2020 Council meeting. The formal submission of the framework to NMFS occurred on April 10, 2020. Given the timing of the Council process, the earliest we were able to publish a proposed rule for Framework 59 was on May 29, 2020.

A delay in implementation of this rule increases negative economic effects for regulated entities. The eastern portions of the GB cod and haddock stocks, jointly managed with Canada, did not have a 2020 quota set by a previous framework. A separate action implemented a constraining default quota (35 percent of the 2019 quota) for Eastern GB cod and haddock that will be in effect only through July 31, 2020, unless we implement Framework 59 before that date. After July 31, the default quotas expire, at which point vessels would be prohibited from Start Printed Page 45806fishing in the Eastern U.S./Canada Area until Framework 59 is effective. The default quotas are constraining the fishery in the Eastern U.S./Canada Area. The majority of fishing in that region occurs during summer primarily due to the seasonal geographic distribution of the stocks jointly managed with Canada. Providing timely access to these stocks is also a safety issue. Summer weather is generally safer for fishing in the Eastern U.S./Canada Area (approximately 150-200 miles offshore).

The allocation changes for GOM haddock and GOM cod in this action would allow for increases in the recreational possession limits for both stocks through a separate, concurrent rulemaking. A delay in this action would delay setting recreational measures for the 2020 fishing year and the economic benefits that these measures would provide. Additionally, recreational fishermen book fishing trips months in advance for the upcoming fishing year. Thus, delays in finalizing recreational measures result in additional negative impacts on the recreational fishing industry due to uncertainty and the inability to book trips.

The 30-day delay in implementation for this rule is unnecessary because this rule contains no new measures (e.g., requiring new nets or equipment) for which regulated entities need time to prepare or revise their current practices. Fishermen who are subject to this action expect and need timely implementation to allow for planning and to avoid adverse economic impacts. This action is similar to the process used to set quotas every 1-2 years, approves all items as proposed, and contains only quotas and minor adjustments to the management plan that were discussed at multiple noticed meetings where the public was provided opportunity to learn about the action, ask questions, and provide input into the development of the measures. Affected parties and other interested parties participated in this public process to develop this action and expect implementation as close to the beginning of the fishing year on May 1 as possible.

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

Final Regulatory Flexibility Analysis

Section 604 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 604, requires Federal agencies to prepare a Final Regulatory Flexibility Analysis (FRFA) for each final rule. The FRFA describes the economic impact of this action on small entities. The FRFA includes a summary of significant issues raised by public comments, the analyses contained in Framework 59 and its accompanying Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (IRFA), the IRFA summary in the proposed rule, as well as the summary provided below. A statement of the necessity for and for the objectives of this action are contained in Framework 59 and in the preamble to this final rule, and is not repeated here.

A Summary of the Significant Issues Raised by the Public in Response to the IRFA, a Summary of the Agency's Assessment of Such Issues, and a Statement of Any Changes Made in the Final Rule as a Result of Such Comments

There were no comments directly related to the IRFA; the Chief Counsel for the Office of Advocacy of the Small Business Administration (SBA) did not file any comments. Therefore, no changes to the proposed rule measures were necessary.

Description and Estimate of the Number of Small Entities to Which the Rule Would Apply

The final rule impacts the recreational groundfish, Atlantic sea scallop, small-mesh multispecies, Atlantic herring, and large-mesh non-groundfish fisheries. Individually-permitted vessels may hold permits for several fisheries, harvesting species of fish that are regulated by several different FMPs, even beyond those affected by the proposed action. Furthermore, multiple-permitted vessels and/or permits may be owned by entities affiliated by stock ownership, common management, identity of interest, contractual relationships, or economic dependency. For the purposes of the RFA analysis, the ownership entities, not the individual vessels, are considered to be the regulated entities.

As of June 1, 2019, NMFS had issued 801 commercial limited-access groundfish permits associated with vessels (including those in confirmation of permit history), 589 party/charter groundfish permits, 730 limited access and general category Atlantic sea scallop permits, 716 small mesh multispecies permits, 78 Atlantic herring permits, and 834 large-mesh non-groundfish permits (limited access summer flounder and scup permits). Therefore, 3,748 permits are potentially regulated by this action. When accounting for overlap between fisheries, this number falls to 2,177 permitted vessels. Each vessel may be individually owned or part of a larger corporate ownership structure, and for RFA purposes it is the ownership entity that is ultimately regulated by the proposed action. Ownership entities are identified on June 1st of each year based on the list of all permit numbers, for the most recent complete calendar year, that have applied for any type of Northeast Federal fishing permit. The current ownership data set is based on calendar year 2018 permits and contains gross sales associated with those permits for calendar years 2016 through 2018.

For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. The determination as to whether the entity is large or small is based on the average annual revenue for the three years from 2016 through 2018. The SBA has established size standards for all other major industry sectors in the U.S., including for-hire fishing (NAICS code 487210). These entities are classified as small businesses if combined annual receipts are not in excess of $8.0 million for all its affiliated operations. As with commercial fishing businesses, the annual average of the three most recent years (2016-2018) is utilized in determining annual receipts for businesses primarily engaged in for-hire fishing.

Ownership data collected from permit holders indicate that there are 1,670 distinct business entities that hold at least one permit regulated by the proposed action. All 1,670 business entities identified could be directly regulated by this proposed action. Of these 1,670 entities, 1,010 are commercial fishing entities, 305 are for-hire entities, and 355 did not have revenues (were inactive in 2018). Of the 1,010 commercial fishing entities, 998 are categorized as small entities and 12 are categorized as large entities per the NMFS guidelines. All 305 for-hire entities are categorized as small businesses.Start Printed Page 45807

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

The action does not contain any new collection-of-information requirements under the Paperwork Reduction Act (PRA).

Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes

The economic impacts of each measure are discussed in more detail in sections 6.5 and 7.12 of the Framework 59 EA and are not repeated here. The economic impacts of this action are predicted to generate $70.1 million in gross revenues on the sector portion of the commercial groundfish trips, $4.8 million more than No Action. Fishery-wide operating profits are predicted to be $3.7 million more than No Action. Therefore, there are no alternatives that would have lower economic impacts.

Small Entity Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency will publish one or more guides to assist small entities in complying with the rule, and will designate such publications as “small entity compliance guides.” The agency will explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a bulletin to permit holders that also serves as a small entity compliance guide was prepared. This final rule and the guide (i.e. bulletin) will be sent via email to the Greater Atlantic Regional Fisheries Office Northeast multispecies fishery email list, as well as the email lists for scallop and herring fisheries, which receive an allocation of some groundfish stocks. The final rule and the guide are available from NMFS at the following website: https://www.fisheries.noaa.gov/​management-plan/​northeast-multispecies-management-plan. Hard copies of the guide and this final rule will be available upon request (see ADDRESSES).

Start List of Subjects

List of Subjects in 50 CFR Part 648

  • Fisheries
  • Fishing
  • Recordkeeping and reporting requirements
End List of Subjects Start Signature

Dated: July 23, 2020.

Samuel D. Rauch, III,

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

End Signature

For the reasons stated in the preamble, 50 CFR part 648 is amended as follows:

Start Part

PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

End Part Start Amendment Part

1. The authority citation for part 648 continues to read as follows:

End Amendment Part Start Authority

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

End Authority Start Amendment Part

2. Section 648.85 is amended by revising paragraph (b)(5)(ii) and adding (b)(6)(iv)(J)( 2)(iii) to read as follows:

End Amendment Part
Special management programs.
* * * * *

(b) * * *

(5) * * *

(ii) GB cod. The Incidental Catch TAC for GB cod specified in this paragraph (b)(5) shall be subdivided as follows: 60 percent to the Regular B DAS Program described in paragraph (b)(6) of this section and 40 percent to the Eastern U.S./Canada Haddock SAP described in paragraph (b)(7) of this section.

(6) * * *

(iv) * * *

(J) * * *

(2) * * *

(iii) The Council may recommend to the Regional Administrator an addition or modification to the gear standards specified in paragraph (b)(6)(iv)(J)(2)(i) or (ii) of this section, and the Regional Administrator may approve the Council's recommendation in a manner consistent with the Administrative Procedure Act. If the Regional Administrator does not approve an addition or modification to the gear standards as recommended by the Council, NMFS must provide a written rationale to the Council regarding its decision not to do so.

* * * * *
Start Amendment Part

3. In § 648.90, revise paragraph (a)(5)(i)(E)( 5) to read as follows:

End Amendment Part
NE multispecies assessment, framework procedures and specifications, and flexible area action system.
* * * * *

(a) * * *

(5) * * *

(i) * * *

(E) * * *

(5) Reducing the size of an AM. If the overall northern or southern windowpane flounder ACL is exceeded by more than 20 percent and NMFS determines that the stock is rebuilt, and the biomass criterion, as defined by the Council, is greater than the most recent fishing year's catch, then only the small AM may be implemented as described in this paragraph (a)(5)(i)(E), consistent with the Administrative Procedure Act. This provision applies to a limited access NE multispecies permitted vessel fishing on a NE multispecies DAS or sector trip, and to all vessels fishing with trawl gear with a codend mesh size equal to or greater than 5 inches (12.7 cm) in other, non-specified sub-components of the fishery, including, but not limited to, exempted fisheries that occur in Federal waters and fisheries harvesting exempted species specified in § 648.80(b)(3).

* * * * *
End Supplemental Information

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[FR Doc. 2020-16424 Filed 7-28-20; 11:15 am]

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