Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Gulf of Maine Winter Flounder Catch Limit Revisions, 7000-7004 [2012-3167]
Download as PDF
<![CDATA[
7000
Federal Register / Vol. 77, No. 28 / Friday, February 10, 2012 / Rules and Regulations
and subsequent fishing years. The
recreational ACT for red grouper, in
gutted weight, is 1.730 million lb (0.785
million kg) for 2012 and subsequent
fishing years. Recreational landings will
be evaluated relative to the ACL based
on a moving multi-year average of
landings, as described in the FMP.
*
*
*
*
*
[FR Doc. 2012–3177 Filed 2–9–12; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 120131078–2207–01]
RIN 0648–XA913
Fisheries of the Northeastern United
States; Northeast Multispecies
Fishery; Gulf of Maine Winter Flounder
Catch Limit Revisions
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Emergency rule; request for
comments.
AGENCY:
NMFS issues this final
emergency rule under the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act). This action implements new stock
status determination criteria for Gulf of
Maine (GOM) winter flounder and
associated increases in GOM winter
flounder catch limits based on the most
recent and best available scientific
information. This action increases
fishing year (FY) 2011 GOM winter
flounder catch levels, including
Overfishing Levels (OFLs), Acceptable
Biological Catches (ABCs), Annual
Catch Limits (ACLs), ACL components,
and sector Annual Catch Entitlements
(ACEs). The ACL components include
sub-ACLs for the common pool and
sectors. This action is intended to
provide additional fishing
opportunities, consistent with the
Northeast (NE) Multispecies Fishery
Management Plan (FMP) and the
Magnuson-Stevens Act.
DATES: Effective February 7, 2012,
through April 30, 2012. Comments must
be received by March 12, 2012.
FOR FURTHER INFORMATION CONTACT:
Melissa Vasquez, Fishery Policy
Analyst, (978) 281–9166, fax (978) 281–
9135.
SUPPLEMENTARY INFORMATION:
wreier-aviles on DSK5TPTVN1PROD with RULES
SUMMARY:
VerDate Mar<15>2010
15:19 Feb 09, 2012
Jkt 226001
Background
This final emergency rule implements
emergency measures, authorized by
section 305(c) of the Magnuson-Stevens
Act, to revise current GOM winter
flounder catch limits immediately. On
May 1, 2010, NMFS implemented catch
limits developed by the New England
Fishery Management Council (Council)
under Framework Adjustment (FW) 44
(75 FR 18356; April 9, 2010) for all
groundfish stocks, including GOM
winter flounder, for FY 2010 through
2012. The catch levels specified by FW
44 included OFLs, ABCs, ACLs, and
ACL components, including sub-ACLs
for the common pool and sectors. On
June 15, 2011, NMFS published (76 FR
34903) adjusted ACL subcomponents
and adjusted sector ACEs for FY 2011 in
order to reflect changes to the sector
membership prior to the start the 2011
FY.
The FW 44 catch levels for all stocks,
including GOM winter flounder, were
based upon the most recent scientific
information available at that time, i.e.,
the stock assessments conducted by the
Groundfish Assessment Review Meeting
(GARM III) in 2008. The GARM III
rejected the GOM winter flounder
assessment due to its high degree of
uncertainty, but concluded that there
was a strong probability that the GOM
winter flounder stock was overfished.
As a result, the FY 2010–2012 catch
levels in FW 44 were set at 75 percent
of recent catches from 2006–2008; an
annual ABC of 239 mt was set for FY
2010, 2011, and 2012.
A new peer reviewed benchmark
stock assessment review (SARC 52) was
completed for the winter flounder
complex in June 2011, and the final
summary report was completed in
September 2011. The review committee
accepted an assessment that provided
an estimate of stock size and a proxy for
FMSY. The overfishing threshold was
derived using F 40 percent (0.31) as a
proxy for FMSY, and 0.23 as the
corresponding threshold exploitation
rate. Based on this information, the
estimate of fishing mortality in 2010
was 0.03 (13 percent of FMSY).
Reviewers were able to determine from
the data that the stock is not undergoing
overfishing, but could not make an
estimate of target biomass and,
therefore, could not determine whether
the stock is in an overfished condition.
The Council developed updated
groundfish specifications, including
updates for GOM winter flounder, for
FY 2012–2014 through FW 47 to the NE
Multispecies FMP. Using information
from the new GOM winter flounder
assessment, at its September 2011
PO 00000
Frm 00060
Fmt 4700
Sfmt 4700
meeting, the Council’s Scientific and
Statistical Committee (SSC)
recommended an annual ABC of 1,078
mt for FY 2012–2014, a substantially
higher amount than the currently
specified FY 2010–2012 ABC of 239 mt.
This recommendation was approved by
the Council in November 2011 as part
of FW 47, which is targeted for
implementation, if approved, for FY
2012 (May 1, 2012).
Through a letter sent November 21,
2011, the Council requested, based on
the new assessment results, that the
Secretary of Commerce (Secretary) use
emergency authority to increase the FY
2011 GOM winter flounder commercial
ACL for the remainder of the 2011 FY
out of concern that the current FY 2011
ACL may be unnecessarily constraining
on the groundfish fishery. Recent catch
information indicates that catches of
this stock are higher than last year and
may lead to lost opportunities for
groundfish fishermen if the quota is
reached before the end of the FY. Catch
of GOM winter flounder as of January 7,
2012, indicated that nearly 56 percent of
the FY 2011 commercial groundfish
fishery sub-ACL has already been
caught, with sectors having caught
nearly 57 percent of their sub-ACL for
this stock. During FY 2010, nearly 75
percent of the annual GOM winter
flounder catch was harvested after
November. This suggests that if those
catch rates were to continue during FY
2011, the majority of the groundfish
fishery would likely have to stop fishing
in the GOM to avoid exceeding the subACL for this stock by the end of FY 2011
(April 30, 2012), resulting in potentially
substantial lost economic yield for the
groundfish fishery.
NMFS policy guidelines for the use of
emergency rules (62 FR 44421; August
21, 1997) pursuant to section 305(c) of
the Magnuson-Stevens Act specify three
criteria that define what an emergency
situation is, and justification for final
rulemaking: (1) The emergency results
from recent, unforeseen events or
recently discovered circumstances; (2)
the emergency presents serious
conservation or management problems
in the fishery; and (3) the emergency
can be addressed through emergency
regulations for which the immediate
benefits outweigh the value of advance
notice, public comment, and
deliberative consideration of the
impacts on participants to the same
extent as would be expected under the
normal rulemaking process. NMFS
policy guidelines further provide that
emergency action is justified for certain
situations where emergency action
would prevent significant direct
economic loss, or to preserve a
E:\FR\FM\10FER1.SGM
10FER1
Federal Register / Vol. 77, No. 28 / Friday, February 10, 2012 / Rules and Regulations
significant economic opportunity that
otherwise might be foregone.
The new information from the GOM
winter flounder benchmark stock
assessment is considered to be a
‘‘recently discovered circumstance,’’
which, in the context of the current
FMP and low GOM winter flounder
catch limits specified for FY 2011, has
been determined by NMFS to represent
an emergency situation. This
circumstance is the result of the recently
conducted assessment of GOM winter
flounder, and the subsequent
recommendations by the SSC and the
Council, which significantly revised the
stock status and specifications for this
stock for the fishery. Although the new
assessment was completed in June 2011,
it was not possible to have predicted its
outcome; nor could the SSC’s
recommended FY 2012–2014 ABC, or
the Council’s subsequent approval of
this recommendation, have been
foreseen in time to follow normal
procedures for implementing this type
of action under the Magnuson-Stevens
Act. These decisions were made
following the normal procedures for
updating fishery specifications under
the MSA and the FMP and would not
have been completed any earlier.
Although the Council has the authority
to develop a management action to
modify the GOM winter flounder catch
limits, as exemplified through the
adoption of increased FY 2012–2014
catch limits for this stock under FW 47,
such an action could not be completed
before the end of FY 2011. If the normal
regulatory process is used to revise the
GOM winter flounder catch limits, it
would take substantially longer for the
new limits to be implemented, and
could result in triggering restrictive, and
economically harmful management
actions that otherwise may have been
avoided. The FMP requires that fishing
effort be reduced or stopped if catch of
a single stock is projected to reach an
ACL, and that accountability measures
(AMs) be implemented if an ACL is
exceeded, to payback an overage and to
prevent the ACL from being exceeded
again. Recent catch information
indicates that catches of this stock are
higher than last year and that, if these
catch rates were to continue for the
remainder of FY 2011, the majority of
the groundfish fishery would likely
have to stop fishing in the GOM well
before the end of the 2011 FY in order
to avoid exceeding the sub-ACL for this
stock, Thus, a delay in implementing
the revised catch limits could
potentially have resulted in lost
economic opportunity due to an early
end to the FY 2011 fishing season, not
only for GOM winter flounder, but also
for several other groundfish stocks that
are caught together.
The emergency presents serious
management problems because the low
catch limits for GOM winter flounder
could result in substantially reduced
fishing effort and decreased catch and
revenue due to the multispecies nature
of the fishery. When the projected catch
of the ACL for a single stock such as
GOM winter flounder triggers a
reduction or cessation of fishing effort
(for common pool and sector vessels,
respectively), catches of several other
stocks that are caught concurrently with
GOM winter flounder may also be
reduced.
NMFS has determined that the
current situation meets the criteria for
emergency action. Because this is a
Secretarial emergency action, not a
Council action, the involvement of the
SSC in the specification of ABC is not
specifically required, although the
emergency rule must still be consistent
with the best scientific information
available. In their letter, the Council
suggested NMFS consider alternatives
that would increase the commercial
groundfish GOM winter flounder subACL two to three fold. NMFS
considered this request and developed a
preferred alternative that essentially
implements the SSC and Council’s
recommended FY 2012 ABC in FY 2011,
but only releases a portion of this ABC
to the commercial fishery for the
7001
remainder of the current FY. Rather
than providing the full FY ACL to the
fishery, the FY 2011 GOM winter
flounder ACL and ACL sub-components
are increased by an amount equivalent
to the monthly proportion of the FY
2012 ACL applied over what was the
expected duration of this action
(January–April 2012, or 4 months).
Increasing the GOM winter flounder
catch limits for the remainder of FY
2011, while not providing the full FY
ACL, would enable the fishery to more
effectively harvest available ACL for
other stocks caught in conjunction with
GOM winter flounder, but not to a
degree that it would compromise efforts
to rebuild other overfished stocks.
Further, providing the full increase
could also lower the leasing market
price for this stock and potentially
eliminate demand for this stock on the
sector annual catch entitlement (ACE)
leasing market. While this would benefit
those seeking to acquire ACE for this
stock, it could eliminate any benefits to
those wishing to sell ACE of this stock
to others. Each revised FY 2011 subACL or sub-component was derived by
adding 4 months of the appropriate FY
2012 sub-ACL/sub-component (as
proposed in FW 47) to the FY 2011
catch (as of December 31, 2011) for that
component: FY 2011 catch + ((FY 2012
sub-ACL/12)*4; see Table 1). For the
remainder of the 2011 FY, this
alternative effectively doubles the FW
44 FY 2011 commercial groundfish subACL, thereby increasing the sector and
common pool sub-ACLs, and increases
the ACL sub-components allocated to
the state waters fishery and ‘‘other’’ subcomponent fisheries. Increasing the
GOM winter flounder ACL eliminates
the potential loss of economic
opportunity for groundfish vessels by
preventing an early closure of the
fishery, and allowing vessels a better
chance to catch their allocations of more
abundant stocks by not constraining
them under the FW 44 FY 2011 ACL.
TABLE 1—DERIVATION OF REVISED GOM WINTER FLOUNDER ACL COMPONENTS FOR FY 2011
Proposed FW 47 FY
2012 catch level (mt)
wreier-aviles on DSK5TPTVN1PROD with RULES
4 Months of FW 47
catch level (mt)
Catch as of
Dec. 31, 2011 (mt)
Revised ACL
component (mt)
(Column A)
GOM Winter Flounder ACL component
(Column B)
(Column C)
(Column D = B + C)
State Waters sub-component ..........................
Other sub-component ......................................
Groundfish sub-ACL ........................................
272
54
715
91
18
238
72
14
91
163
32
329
Total ACL ..................................................
1040
....................................
....................................
* 524
* The total ACL is derived by adding up the sub-ACL and ACL sub-components, consistent with the method specified in FW 44, Appendix III.
VerDate Mar<15>2010
15:19 Feb 09, 2012
Jkt 226001
PO 00000
Frm 00061
Fmt 4700
Sfmt 4700
E:\FR\FM\10FER1.SGM
10FER1
7002
Federal Register / Vol. 77, No. 28 / Friday, February 10, 2012 / Rules and Regulations
The Secretary is taking emergency
action to swiftly implement an increase
in the GOM winter flounder ACL. If the
normal regulatory process were to be
used to revise the GOM winter flounder
catch limits, it would not be able to be
completed prior to the end of the 2011
FY (April 30, 2012), and so all potential
benefits of this action would be lost and
could not be recouped the following
year. Thus, the immediate benefit of an
emergency action outweighs the value
that would be derived from the normal
regulatory process.
The duration of this action is limited
by the Magnuson-Stevens Act to 180
days. However, if the revised status
determination criteria and revised
specifications is made permanent by the
approval of FW 47, which is targeted for
implementation with the start of FY
2012 (May 1, 2012), then this temporary
action is likely to be effective for the
remainder of the 2011 FY (until April
30, 2012) as it is expected that FY 2012
specifications will be implemented
before the start of FY 2012 (May 1,
2012).
Based upon the stock assessment
results, NMFS is revising the stock
status determination criteria for GOM
winter flounder. The revised biomass
target parameter (SSBMSY or its proxy) is
classified as ‘‘undefined,’’ and the
maximum fishing mortality threshold is
the FMSY proxy F 40 percent MSP, or
0.31. To be consistent with the sweptarea biomass approach used to model
the status of this stock, FMSY must be
converted to an exploitation rate
(threshold exploitation rate of 0.23).
Consistent with the revised stock
status, NMFS is also revising the GOM
winter flounder catch limits for FY
2011, including the OFL, ABC, ACL,
and ACL components, including the FY
2011 sector ACEs and common pool
sub-ACL. The revised GOM winter
flounder catch limits are contained in
Tables 2 and 3 below. NMFS conducted
an analysis to determine new GOM
winter flounder trip limits for common
vessels for FY 2011, but was unable to
identify an appropriate limit. NMFS
examined historical fishing patterns, but
little relationship could be found
between GOM winter flounder
possession limits and catch rates of
GOM winter flounder in recent years.
Also, possession limits did not appear
to be a limiting factor in the catch of
GOM winter flounder, based on this
analysis. Furthermore, NMFS is
concerned that a high GOM winter
flounder trip limit for the remainder of
FY 2011 may increase catch of GOM cod
due to the multispecies nature of the
fishery. Results from the most recent
assessment of this stock (SARC 53)
suggests that catch of GOM cod must be
substantially reduced during FY 2012 to
maintain consistency with conservation
objectives of the FMP. In addition, the
NMFS Northeast Regional
Administrator has the authority under
the current regulations to revise
common pool trip limits at any time
inseason to ensure that available subACLs are caught and not exceeded.
Therefore, NMFS is maintaining the
current GOM winter flounder 250 lb/
trip (113 kg)/trip) limit for common pool
vessels. NMFS will continue to monitor
landings of GOM winter flounder and
will increase this trip limit, if necessary,
to ensure the GOM winter flounder trip
limit is not constraining on common
pool vessels during the remainder of FY
2011.
TABLE 2—REVISED GOM WINTER FLOUNDER OFL, ABC, ACL AND ACL COMPONENTS FOR FY 2011
Current FW 44
Adjusted catch
limits (mt)
GOM Winter flounder catch limits
OFL ..................................................................................................................................................
ABC ..................................................................................................................................................
Total ACL .........................................................................................................................................
State Waters sub-component ..........................................................................................................
Other sub-component ......................................................................................................................
Groundfish sub-ACL ........................................................................................................................
Sector sub-ACL * .............................................................................................................................
Common Pool sub-ACL * .................................................................................................................
Revised FY 2011
catch limits (mt)
570
239
231
60
12
159
150
8
1,458
1,078
524
163
32
329
313
16
* Final rule that updated sector membership (76 FR 34903; June 15, 2011).
TABLE 3—GOM WINTER FLOUNDER ACE BY SECTOR
[mt]
Current ACE (mt) FW
44 adjustment
wreier-aviles on DSK5TPTVN1PROD with RULES
Sector
Fixed Gear ...................................................................................................................................
Maine Permit Bank Sector ...........................................................................................................
NCCS ...........................................................................................................................................
NEFS 2 ........................................................................................................................................
NEFS 3 ........................................................................................................................................
NEFS 4 ........................................................................................................................................
NEFS 5 ........................................................................................................................................
NEFS 6 ........................................................................................................................................
NEFS 7 ........................................................................................................................................
NEFS 8 ........................................................................................................................................
NEFS 9 ........................................................................................................................................
NEFS 10 ......................................................................................................................................
NEFS 11 ......................................................................................................................................
NEFS 12 ......................................................................................................................................
NEFS 13 ......................................................................................................................................
PCGS ...........................................................................................................................................
Sustainable Harvest Sector I .......................................................................................................
Sustainable Harvest Sector III .....................................................................................................
VerDate Mar<15>2010
15:19 Feb 09, 2012
Jkt 226001
PO 00000
Frm 00062
Fmt 4700
Sfmt 4700
E:\FR\FM\10FER1.SGM
3.49
1.38
1.43
33.34
17.37
7.45
0.51
5.84
1.38
5.33
3.85
43.21
3.20
0.50
1.98
2.03
9.37
5.15
10FER1
Revised ACE (mt)
7.26
2.87
2.98
69.43
36.16
15.51
1.06
12.15
2.87
11.09
8.02
89.97
6.66
1.04
4.12
4.22
19.52
10.72
Federal Register / Vol. 77, No. 28 / Friday, February 10, 2012 / Rules and Regulations
7003
TABLE 3—GOM WINTER FLOUNDER ACE BY SECTOR—Continued
[mt]
Current ACE (mt) FW
44 adjustment
Sector
Tri-State .......................................................................................................................................
Revised ACE (mt)
3.29
Total ......................................................................................................................................
150
6.86
313
wreier-aviles on DSK5TPTVN1PROD with RULES
All ACE values for sectors assume that each sector member has a valid permit for FY 2011.
NCCS: Northeast Coastal Communities Sector; NEFS: Northeast Fishery Sectors; PCGS: Port Clyde Community Groundfish Sector.
An environmental assessment (EA)
was prepared that analyzes the impact
of the revised GOM winter flounder
catch limits for the remainder of FY
2011, and compares the impact to the
current catch limits specified for FY
2011 (i.e., the No Action Alternative).
The revised level of GOM winter
flounder catch is consistent with fishing
at a sustainable level of mortality
(FMSY). Both scientific and management
uncertainty are accounted for in this
catch level and the ACL and ACL
components are only getting a prorated
increase, as opposed to the full
proposed FY 2012 ACL, so the risks of
negative biological impacts have been
minimized. Furthermore, if the catch
limits specified here are exceeded, AMs
will be triggered, further reducing the
risk of overfishing and adverse impacts
to the stock. The revision to the FY 2011
GOM winter flounder catch limits in
this rule may result in the catch of
substantially more GOM winter
flounder than under the No Action
Alternative. The larger catch limit for
GOM winter flounder may result in
greater fishing effort and greater catch of
other stocks in addition to GOM winter
flounder, as compared to the current
GOM winter flounder catch limits,
because it is not likely that GOM winter
flounder will serve as a constraining
stock. However, all stocks have catch
limits and management measures
designed to manage catches, so
additional fishing effort that could
result from a larger GOM winter
flounder catch limit is not likely to
negatively impact other stocks or result
in catches exceeding catch limits for
other stocks. Given the preliminary
results of the recent GOM cod
assessment, NMFS was concerned that
an increase in the GOM winter flounder
ACL could have an impact on GOM cod,
since these two stocks co-occur.
However, in light of the overall effort
reductions in the fishery and the
constraints on fishing effort in effect,
including the GOM cod ACL and a
prohibition on discarding by sector
vessels, effects on GOM cod should not
be significant.
VerDate Mar<15>2010
15:19 Feb 09, 2012
Jkt 226001
The larger catch limit for GOM winter
flounder may result in an increased
interaction of groundfish gear with
protected species, as a result of
increased effort. However, the increased
effort in the context of the overall
fishery is not expected to result in
negative impacts to protected species.
Five distinct population segments
(DPSs) of Atlantic sturgeon are currently
proposed to be listed under the ESA.
Four DPSs are proposed to be listed as
endangered (New York Bight,
Chesapeake Bay, Carolina, and South
Atlantic) and one DPS as threatened
(Gulf of Maine). A final listing
determination is expected in January
2012. Because analysis has shown that
the NE multispecies fishery may interact
with Atlantic sturgeon, if these DPSs are
listed, a formal consultation will be
reinitiated for the NE Multispecies FMP
that will analyze the effects of any
fishery interactions in a biological
opinion (BO). NMFS will implement
any appropriate measures outlined in
the BO to mitigate harm to Atlantic
sturgeon. It is difficult to predict the
amount of fishing effort that will occur
during the remainder of FY 2011 as a
result of this action, due to the novelty
of management changes in the fishery in
recent years. Although effort may be
expected to increase as a result of this
action, the overall fishing effort in the
fishery is expected to be lower than
what has occurred in previous years as
a result of overall mortality reductions
implemented through Amendment 16
and FW 44 for GOM winter flounder
and other stocks. Therefore, the net
effect of the increase in the GOM winter
flounder catch limits for the limited
duration of this action, the remaining
three months of FY 2011, will likely be
negligible overall compared to operation
of the fishery in recent years. These
measures, therefore, are not likely to
jeopardize the continued existence of
Atlantic sturgeon between now and the
time when a final listing determination
will be made.
Due to the increased amount of GOM
winter flounder catch allowed under
this emergency action, the revised GOM
winter flounder ACL represents an
PO 00000
Frm 00063
Fmt 4700
Sfmt 4700
increase of potential revenue of $1.2
million, assuming recent average prices
for GOM winter flounder remain steady,
and assuming that the full ACL for GOM
winter flounder will be harvested. This
estimate of GOM winter flounder
revenue is likely high, given the level of
GOM winter flounder landings in recent
years. Additional revenue may be
generated from increased catch of other
stocks due to the revised GOM winter
flounder catch limits. The primary
economic benefit of the revised ACL is
expected to be associated with reducing
the likelihood that an accountability
measure would be triggered for the
common pool and for sectors. The
triggering of accountability measures
would have reduced or precluded
access to other stocks and the associated
revenue.
Even with a total increase in the
revised sector specifications of 163 mt
of GOM winter flounder, the common
pool and one of the sectors (NEFS XII)
will still be left with less GOM winter
flounder than their collective
memberships landed during FY 2010.
That is, even though the revised
aggregate GOM winter flounder ACE is
higher than the FY 2010 landings, the
ACE for these sectors is still lower than
the sector members’ FY 2010 combined
GOM winter flounder landings.
However, the deficit for the one sector
may be overcome by leasing ACE from
other sectors that may have a surplus of
GOM winter flounder ACE, that is, an
ACE that is greater than their members’
collective recent GOM winter flounder
landings. With respect to the impact of
the revised GOM winter flounder catch
limit on individual members of sectors,
there may be a similar deficit or surplus
between an individual vessel’s
allocation from its sector and its own
historical landings. However, these
differences may also be offset through
trading within a vessel’s sector and with
other sectors. The revised GOM winter
flounder catch limits may reduce the
ACE market price for leasing GOM
winter flounder, by reducing the
demand for GOM winter flounder on the
ACE trading market. The magnitude of
this decline is highly uncertain.
E:\FR\FM\10FER1.SGM
10FER1
7004
Federal Register / Vol. 77, No. 28 / Friday, February 10, 2012 / Rules and Regulations
wreier-aviles on DSK5TPTVN1PROD with RULES
However, NMFS is only allowing a
limited increase in the GOM winter
flounder specifications, in order to
provide additional fishing opportunity
to groundfish vessels without collapsing
the lease price.
Classification
NMFS has determined that this rule is
necessary to respond to an emergency
situation and is consistent with the
Magnuson-Stevens Act and other
applicable law.
The Assistant Administrator for
Fisheries, NOAA, finds it impracticable
and contrary to the public interest to
provide for prior notice and opportunity
for the public to comment under the
provisions of section 553(b)(B) of the
Administrative Procedure Act. As more
fully explained above, the reasons
justifying promulgation of this rule on
an emergency basis make solicitation of
public comment contrary to the public
interest. This action would result in the
benefit of the revenues associated with
larger GOM winter flounder catch
limits. This action could not allow for
prior public comment because the
scientific review process and
determination could not have been
completed any earlier due to the
inherent time constraints associated
with such process. This action was
initiated as a result of recently
discovered circumstances that warrant
an increase in the FY 2011 GOM winter
flounder catch limits. A new assessment
for GOM winter flounder was completed
in June 2011 that significantly revised
the status of this stock. As a result of the
new assessment, the SSC recommended,
and the Council subsequently approved
at its meeting on November 16, 2011,
substantially higher specifications for
this stock for FY 2012–2014. These
decisions were made following the
normal procedures for updating fishery
specifications under the MSA and the
FMP, and could not have been foreseen
in time to follow normal procedures for
implementing this type of action under
the Magnuson-Stevens Act. Although
the Council could have initiated a
management action to modify the GOM
winter flounder catch limits for the
remainder of FY 2011 at the time they
approved the SSC’s recommendation, as
they are doing with the FY 2012–2014
catch limits for this stock under FW 47,
such an action could not have been
completed before the end of FY 2011
VerDate Mar<15>2010
15:19 Feb 09, 2012
Jkt 226001
(April 30, 2012), and could have
resulted in triggering restrictive and
economically harmful management
actions that otherwise could have been
avoided. As described in an earlier
paragraph, GOM winter flounder catch
rates in FY 2011 have been such that
reduction or cessation of fishing effort
may have been necessary before the end
of the fishing year in order for the
common pool or sectors to avoid
exceeding an ACL. An early end to the
fishing season could have meant lost
economic opportunity for groundfish
vessels in the form of ACL left
unharvested for GOM winter flounder
and other stocks caught with it. An
emergency action can be developed and
implemented by NMFS much more
swiftly than development of a Council
action, which is subject to procedural
and other requirements not applicable
to the Secretary. Thus, NMFS initiated
this temporary rule, at the request of the
Council, to revise the GOM winter
flounder catch limits before the end of
FY 2011. If this rulemaking was delayed
to allow for notice and comment, the
current quota for some sectors could be
exceeded, which could result in
triggering restrictive and economically
harmful AMs that otherwise could have
been avoided. A sector that exceeds an
allocation must pay back that overage
on a pound-for-pound basis in the
following year. The time necessary to
provide for prior notice and opportunity
for public comment for this action could
severely curtail fishing operations if the
current ACL is reached and measures to
reduce or end fishing effort are triggered
prior to implementation of the increased
catch limit. In the interest of receiving
public input on this action, the revised
assessment upon which this action was
based is made available to the public,
and this action requests public
comments on that document and the
provisions in this rule.
The Assistant Administrator for
Fisheries, NOAA, finds good cause to
waive the requirement for a 30-day
delay in effectiveness under the
provisions of section 553(d) of the
Administrative Procedure Act. As stated
above, this action would result in a
benefit of additional revenues
associated with larger GOM winter
flounder catch limits, and more
opportunity for groundfish vessels to
harvest their allocations of other stocks
PO 00000
Frm 00064
Fmt 4700
Sfmt 9990
caught concurrently. This rule relieves a
restriction by increasing the catch limit
for GOM winter flounder and,
consequently, extends fishing
opportunity for fishermen that would
otherwise be constrained under the
current catch limits, which are
restrictive and based on outdated
biological information. If this
rulemaking was delayed to allow for a
30-day delay in effectiveness, the
fishery would likely forego some
amount of the increase in catch level,
and resulting additional fishing
opportunity, implemented by this rule,
and could suffer an early end to the
fishing season before the end of FY 2011
(April 30, 2012). If the common pool
was projected to catch the current catch
limit, while the effectiveness of the new
catch limits in this action is delayed, the
regulations would still require NMFS to
take action to implement unnecessary
restrictive measures in the GOM to
ensure the common pool did not exceed
its current catch limit. Similarly, sector
vessels would still be required to end
fishing effort in the GOM if they reached
their allocations under the current GOM
winter flounder catch limits. While
these restrictions would be alleviated
after this rule becomes effective, the lost
economic opportunity of foregone
catches of GOM winter flounder, and
other valuable groundfish stocks caught
concurrently in the GOM, that would
result from a delay in the effectiveness
of this action could not be recouped in
the few short weeks before the end of
FY 2011, or in the following fishing
year. For these reasons, the AA finds
good cause to implement this rule
immediately.
This emergency rule is exempt from
E.O. 12866 because it contains no
implementing regulations.
This rule is exempt from the
procedures of the Regulatory Flexibility
Act to prepare a regulatory flexibility
analysis because the rule is issued
without opportunity for prior public
comment.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 7, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2012–3167 Filed 2–7–12; 4:15 pm]
BILLING CODE 3510–22–P
E:\FR\FM\10FER1.SGM
10FER1
]]>Agencies
[Federal Register Volume 77, Number 28 (Friday, February 10, 2012)]
[Rules and Regulations]
[Pages 7000-7004]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3167]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 120131078-2207-01]
RIN 0648-XA913
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Gulf of Maine Winter Flounder Catch Limit
Revisions
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Emergency rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final emergency rule under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
This action implements new stock status determination criteria for Gulf
of Maine (GOM) winter flounder and associated increases in GOM winter
flounder catch limits based on the most recent and best available
scientific information. This action increases fishing year (FY) 2011
GOM winter flounder catch levels, including Overfishing Levels (OFLs),
Acceptable Biological Catches (ABCs), Annual Catch Limits (ACLs), ACL
components, and sector Annual Catch Entitlements (ACEs). The ACL
components include sub-ACLs for the common pool and sectors. This
action is intended to provide additional fishing opportunities,
consistent with the Northeast (NE) Multispecies Fishery Management Plan
(FMP) and the Magnuson-Stevens Act.
DATES: Effective February 7, 2012, through April 30, 2012. Comments
must be received by March 12, 2012.
FOR FURTHER INFORMATION CONTACT: Melissa Vasquez, Fishery Policy
Analyst, (978) 281-9166, fax (978) 281-9135.
SUPPLEMENTARY INFORMATION:
Background
This final emergency rule implements emergency measures, authorized
by section 305(c) of the Magnuson-Stevens Act, to revise current GOM
winter flounder catch limits immediately. On May 1, 2010, NMFS
implemented catch limits developed by the New England Fishery
Management Council (Council) under Framework Adjustment (FW) 44 (75 FR
18356; April 9, 2010) for all groundfish stocks, including GOM winter
flounder, for FY 2010 through 2012. The catch levels specified by FW 44
included OFLs, ABCs, ACLs, and ACL components, including sub-ACLs for
the common pool and sectors. On June 15, 2011, NMFS published (76 FR
34903) adjusted ACL subcomponents and adjusted sector ACEs for FY 2011
in order to reflect changes to the sector membership prior to the start
the 2011 FY.
The FW 44 catch levels for all stocks, including GOM winter
flounder, were based upon the most recent scientific information
available at that time, i.e., the stock assessments conducted by the
Groundfish Assessment Review Meeting (GARM III) in 2008. The GARM III
rejected the GOM winter flounder assessment due to its high degree of
uncertainty, but concluded that there was a strong probability that the
GOM winter flounder stock was overfished. As a result, the FY 2010-2012
catch levels in FW 44 were set at 75 percent of recent catches from
2006-2008; an annual ABC of 239 mt was set for FY 2010, 2011, and 2012.
A new peer reviewed benchmark stock assessment review (SARC 52) was
completed for the winter flounder complex in June 2011, and the final
summary report was completed in September 2011. The review committee
accepted an assessment that provided an estimate of stock size and a
proxy for FMSY. The overfishing threshold was derived using
F 40 percent (0.31) as a proxy for FMSY, and 0.23 as the
corresponding threshold exploitation rate. Based on this information,
the estimate of fishing mortality in 2010 was 0.03 (13 percent of
FMSY). Reviewers were able to determine from the data that
the stock is not undergoing overfishing, but could not make an estimate
of target biomass and, therefore, could not determine whether the stock
is in an overfished condition.
The Council developed updated groundfish specifications, including
updates for GOM winter flounder, for FY 2012-2014 through FW 47 to the
NE Multispecies FMP. Using information from the new GOM winter flounder
assessment, at its September 2011 meeting, the Council's Scientific and
Statistical Committee (SSC) recommended an annual ABC of 1,078 mt for
FY 2012-2014, a substantially higher amount than the currently
specified FY 2010-2012 ABC of 239 mt. This recommendation was approved
by the Council in November 2011 as part of FW 47, which is targeted for
implementation, if approved, for FY 2012 (May 1, 2012).
Through a letter sent November 21, 2011, the Council requested,
based on the new assessment results, that the Secretary of Commerce
(Secretary) use emergency authority to increase the FY 2011 GOM winter
flounder commercial ACL for the remainder of the 2011 FY out of concern
that the current FY 2011 ACL may be unnecessarily constraining on the
groundfish fishery. Recent catch information indicates that catches of
this stock are higher than last year and may lead to lost opportunities
for groundfish fishermen if the quota is reached before the end of the
FY. Catch of GOM winter flounder as of January 7, 2012, indicated that
nearly 56 percent of the FY 2011 commercial groundfish fishery sub-ACL
has already been caught, with sectors having caught nearly 57 percent
of their sub-ACL for this stock. During FY 2010, nearly 75 percent of
the annual GOM winter flounder catch was harvested after November. This
suggests that if those catch rates were to continue during FY 2011, the
majority of the groundfish fishery would likely have to stop fishing in
the GOM to avoid exceeding the sub-ACL for this stock by the end of FY
2011 (April 30, 2012), resulting in potentially substantial lost
economic yield for the groundfish fishery.
NMFS policy guidelines for the use of emergency rules (62 FR 44421;
August 21, 1997) pursuant to section 305(c) of the Magnuson-Stevens Act
specify three criteria that define what an emergency situation is, and
justification for final rulemaking: (1) The emergency results from
recent, unforeseen events or recently discovered circumstances; (2) the
emergency presents serious conservation or management problems in the
fishery; and (3) the emergency can be addressed through emergency
regulations for which the immediate benefits outweigh the value of
advance notice, public comment, and deliberative consideration of the
impacts on participants to the same extent as would be expected under
the normal rulemaking process. NMFS policy guidelines further provide
that emergency action is justified for certain situations where
emergency action would prevent significant direct economic loss, or to
preserve a
[[Page 7001]]
significant economic opportunity that otherwise might be foregone.
The new information from the GOM winter flounder benchmark stock
assessment is considered to be a ``recently discovered circumstance,''
which, in the context of the current FMP and low GOM winter flounder
catch limits specified for FY 2011, has been determined by NMFS to
represent an emergency situation. This circumstance is the result of
the recently conducted assessment of GOM winter flounder, and the
subsequent recommendations by the SSC and the Council, which
significantly revised the stock status and specifications for this
stock for the fishery. Although the new assessment was completed in
June 2011, it was not possible to have predicted its outcome; nor could
the SSC's recommended FY 2012-2014 ABC, or the Council's subsequent
approval of this recommendation, have been foreseen in time to follow
normal procedures for implementing this type of action under the
Magnuson-Stevens Act. These decisions were made following the normal
procedures for updating fishery specifications under the MSA and the
FMP and would not have been completed any earlier. Although the Council
has the authority to develop a management action to modify the GOM
winter flounder catch limits, as exemplified through the adoption of
increased FY 2012-2014 catch limits for this stock under FW 47, such an
action could not be completed before the end of FY 2011. If the normal
regulatory process is used to revise the GOM winter flounder catch
limits, it would take substantially longer for the new limits to be
implemented, and could result in triggering restrictive, and
economically harmful management actions that otherwise may have been
avoided. The FMP requires that fishing effort be reduced or stopped if
catch of a single stock is projected to reach an ACL, and that
accountability measures (AMs) be implemented if an ACL is exceeded, to
payback an overage and to prevent the ACL from being exceeded again.
Recent catch information indicates that catches of this stock are
higher than last year and that, if these catch rates were to continue
for the remainder of FY 2011, the majority of the groundfish fishery
would likely have to stop fishing in the GOM well before the end of the
2011 FY in order to avoid exceeding the sub-ACL for this stock, Thus, a
delay in implementing the revised catch limits could potentially have
resulted in lost economic opportunity due to an early end to the FY
2011 fishing season, not only for GOM winter flounder, but also for
several other groundfish stocks that are caught together.
The emergency presents serious management problems because the low
catch limits for GOM winter flounder could result in substantially
reduced fishing effort and decreased catch and revenue due to the
multispecies nature of the fishery. When the projected catch of the ACL
for a single stock such as GOM winter flounder triggers a reduction or
cessation of fishing effort (for common pool and sector vessels,
respectively), catches of several other stocks that are caught
concurrently with GOM winter flounder may also be reduced.
NMFS has determined that the current situation meets the criteria
for emergency action. Because this is a Secretarial emergency action,
not a Council action, the involvement of the SSC in the specification
of ABC is not specifically required, although the emergency rule must
still be consistent with the best scientific information available. In
their letter, the Council suggested NMFS consider alternatives that
would increase the commercial groundfish GOM winter flounder sub-ACL
two to three fold. NMFS considered this request and developed a
preferred alternative that essentially implements the SSC and Council's
recommended FY 2012 ABC in FY 2011, but only releases a portion of this
ABC to the commercial fishery for the remainder of the current FY.
Rather than providing the full FY ACL to the fishery, the FY 2011 GOM
winter flounder ACL and ACL sub-components are increased by an amount
equivalent to the monthly proportion of the FY 2012 ACL applied over
what was the expected duration of this action (January-April 2012, or 4
months). Increasing the GOM winter flounder catch limits for the
remainder of FY 2011, while not providing the full FY ACL, would enable
the fishery to more effectively harvest available ACL for other stocks
caught in conjunction with GOM winter flounder, but not to a degree
that it would compromise efforts to rebuild other overfished stocks.
Further, providing the full increase could also lower the leasing
market price for this stock and potentially eliminate demand for this
stock on the sector annual catch entitlement (ACE) leasing market.
While this would benefit those seeking to acquire ACE for this stock,
it could eliminate any benefits to those wishing to sell ACE of this
stock to others. Each revised FY 2011 sub-ACL or sub-component was
derived by adding 4 months of the appropriate FY 2012 sub-ACL/sub-
component (as proposed in FW 47) to the FY 2011 catch (as of December
31, 2011) for that component: FY 2011 catch + ((FY 2012 sub-ACL/12)*4;
see Table 1). For the remainder of the 2011 FY, this alternative
effectively doubles the FW 44 FY 2011 commercial groundfish sub-ACL,
thereby increasing the sector and common pool sub-ACLs, and increases
the ACL sub-components allocated to the state waters fishery and
``other'' sub-component fisheries. Increasing the GOM winter flounder
ACL eliminates the potential loss of economic opportunity for
groundfish vessels by preventing an early closure of the fishery, and
allowing vessels a better chance to catch their allocations of more
abundant stocks by not constraining them under the FW 44 FY 2011 ACL.
Table 1--Derivation of Revised GOM Winter Flounder ACL Components for FY 2011
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed FW 47 FY
GOM Winter Flounder ACL component 2012 catch level 4 Months of FW 47 Catch as of Dec. 31, Revised ACL
(mt) catch level (mt) 2011 (mt) component (mt)
(Column A) (Column B) (Column C) (Column D = B + C)
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Waters sub-component...................................... 272 91 72 163
Other sub-component............................................. 54 18 14 32
Groundfish sub-ACL.............................................. 715 238 91 329
---------------------------------------------------------------------------------------
Total ACL................................................... 1040 .................... .................... * 524
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The total ACL is derived by adding up the sub-ACL and ACL sub-components, consistent with the method specified in FW 44, Appendix III.
[[Page 7002]]
The Secretary is taking emergency action to swiftly implement an
increase in the GOM winter flounder ACL. If the normal regulatory
process were to be used to revise the GOM winter flounder catch limits,
it would not be able to be completed prior to the end of the 2011 FY
(April 30, 2012), and so all potential benefits of this action would be
lost and could not be recouped the following year. Thus, the immediate
benefit of an emergency action outweighs the value that would be
derived from the normal regulatory process.
The duration of this action is limited by the Magnuson-Stevens Act
to 180 days. However, if the revised status determination criteria and
revised specifications is made permanent by the approval of FW 47,
which is targeted for implementation with the start of FY 2012 (May 1,
2012), then this temporary action is likely to be effective for the
remainder of the 2011 FY (until April 30, 2012) as it is expected that
FY 2012 specifications will be implemented before the start of FY 2012
(May 1, 2012).
Based upon the stock assessment results, NMFS is revising the stock
status determination criteria for GOM winter flounder. The revised
biomass target parameter (SSBMSY or its proxy) is classified
as ``undefined,'' and the maximum fishing mortality threshold is the
FMSY proxy F 40 percent MSP, or 0.31. To be consistent with
the swept-area biomass approach used to model the status of this stock,
FMSY must be converted to an exploitation rate (threshold
exploitation rate of 0.23).
Consistent with the revised stock status, NMFS is also revising the
GOM winter flounder catch limits for FY 2011, including the OFL, ABC,
ACL, and ACL components, including the FY 2011 sector ACEs and common
pool sub-ACL. The revised GOM winter flounder catch limits are
contained in Tables 2 and 3 below. NMFS conducted an analysis to
determine new GOM winter flounder trip limits for common vessels for FY
2011, but was unable to identify an appropriate limit. NMFS examined
historical fishing patterns, but little relationship could be found
between GOM winter flounder possession limits and catch rates of GOM
winter flounder in recent years. Also, possession limits did not appear
to be a limiting factor in the catch of GOM winter flounder, based on
this analysis. Furthermore, NMFS is concerned that a high GOM winter
flounder trip limit for the remainder of FY 2011 may increase catch of
GOM cod due to the multispecies nature of the fishery. Results from the
most recent assessment of this stock (SARC 53) suggests that catch of
GOM cod must be substantially reduced during FY 2012 to maintain
consistency with conservation objectives of the FMP. In addition, the
NMFS Northeast Regional Administrator has the authority under the
current regulations to revise common pool trip limits at any time
inseason to ensure that available sub-ACLs are caught and not exceeded.
Therefore, NMFS is maintaining the current GOM winter flounder 250 lb/
trip (113 kg)/trip) limit for common pool vessels. NMFS will continue
to monitor landings of GOM winter flounder and will increase this trip
limit, if necessary, to ensure the GOM winter flounder trip limit is
not constraining on common pool vessels during the remainder of FY
2011.
Table 2--Revised GOM Winter Flounder OFL, ABC, ACL and ACL Components
for FY 2011
------------------------------------------------------------------------
Current FW 44
GOM Winter flounder catch Adjusted catch Revised FY 2011
limits limits (mt) catch limits (mt)
------------------------------------------------------------------------
OFL......................... 570 1,458
ABC......................... 239 1,078
Total ACL................... 231 524
State Waters sub-component.. 60 163
Other sub-component......... 12 32
Groundfish sub-ACL.......... 159 329
Sector sub-ACL *............ 150 313
Common Pool sub-ACL *....... 8 16
------------------------------------------------------------------------
* Final rule that updated sector membership (76 FR 34903; June 15,
2011).
Table 3--GOM Winter Flounder ACE by Sector
[mt]
----------------------------------------------------------------------------------------------------------------
Current ACE (mt) FW
Sector 44 adjustment Revised ACE (mt)
----------------------------------------------------------------------------------------------------------------
Fixed Gear........................................................ 3.49 7.26
Maine Permit Bank Sector.......................................... 1.38 2.87
NCCS.............................................................. 1.43 2.98
NEFS 2............................................................ 33.34 69.43
NEFS 3............................................................ 17.37 36.16
NEFS 4............................................................ 7.45 15.51
NEFS 5............................................................ 0.51 1.06
NEFS 6............................................................ 5.84 12.15
NEFS 7............................................................ 1.38 2.87
NEFS 8............................................................ 5.33 11.09
NEFS 9............................................................ 3.85 8.02
NEFS 10........................................................... 43.21 89.97
NEFS 11........................................................... 3.20 6.66
NEFS 12........................................................... 0.50 1.04
NEFS 13........................................................... 1.98 4.12
PCGS.............................................................. 2.03 4.22
Sustainable Harvest Sector I...................................... 9.37 19.52
Sustainable Harvest Sector III.................................... 5.15 10.72
[[Page 7003]]
Tri-State......................................................... 3.29 6.86
---------------------------------------------
Total......................................................... 150 313
----------------------------------------------------------------------------------------------------------------
All ACE values for sectors assume that each sector member has a valid permit for FY 2011.
NCCS: Northeast Coastal Communities Sector; NEFS: Northeast Fishery Sectors; PCGS: Port Clyde Community
Groundfish Sector.
An environmental assessment (EA) was prepared that analyzes the
impact of the revised GOM winter flounder catch limits for the
remainder of FY 2011, and compares the impact to the current catch
limits specified for FY 2011 (i.e., the No Action Alternative). The
revised level of GOM winter flounder catch is consistent with fishing
at a sustainable level of mortality (FMSY). Both scientific
and management uncertainty are accounted for in this catch level and
the ACL and ACL components are only getting a prorated increase, as
opposed to the full proposed FY 2012 ACL, so the risks of negative
biological impacts have been minimized. Furthermore, if the catch
limits specified here are exceeded, AMs will be triggered, further
reducing the risk of overfishing and adverse impacts to the stock. The
revision to the FY 2011 GOM winter flounder catch limits in this rule
may result in the catch of substantially more GOM winter flounder than
under the No Action Alternative. The larger catch limit for GOM winter
flounder may result in greater fishing effort and greater catch of
other stocks in addition to GOM winter flounder, as compared to the
current GOM winter flounder catch limits, because it is not likely that
GOM winter flounder will serve as a constraining stock. However, all
stocks have catch limits and management measures designed to manage
catches, so additional fishing effort that could result from a larger
GOM winter flounder catch limit is not likely to negatively impact
other stocks or result in catches exceeding catch limits for other
stocks. Given the preliminary results of the recent GOM cod assessment,
NMFS was concerned that an increase in the GOM winter flounder ACL
could have an impact on GOM cod, since these two stocks co-occur.
However, in light of the overall effort reductions in the fishery and
the constraints on fishing effort in effect, including the GOM cod ACL
and a prohibition on discarding by sector vessels, effects on GOM cod
should not be significant.
The larger catch limit for GOM winter flounder may result in an
increased interaction of groundfish gear with protected species, as a
result of increased effort. However, the increased effort in the
context of the overall fishery is not expected to result in negative
impacts to protected species. Five distinct population segments (DPSs)
of Atlantic sturgeon are currently proposed to be listed under the ESA.
Four DPSs are proposed to be listed as endangered (New York Bight,
Chesapeake Bay, Carolina, and South Atlantic) and one DPS as threatened
(Gulf of Maine). A final listing determination is expected in January
2012. Because analysis has shown that the NE multispecies fishery may
interact with Atlantic sturgeon, if these DPSs are listed, a formal
consultation will be reinitiated for the NE Multispecies FMP that will
analyze the effects of any fishery interactions in a biological opinion
(BO). NMFS will implement any appropriate measures outlined in the BO
to mitigate harm to Atlantic sturgeon. It is difficult to predict the
amount of fishing effort that will occur during the remainder of FY
2011 as a result of this action, due to the novelty of management
changes in the fishery in recent years. Although effort may be expected
to increase as a result of this action, the overall fishing effort in
the fishery is expected to be lower than what has occurred in previous
years as a result of overall mortality reductions implemented through
Amendment 16 and FW 44 for GOM winter flounder and other stocks.
Therefore, the net effect of the increase in the GOM winter flounder
catch limits for the limited duration of this action, the remaining
three months of FY 2011, will likely be negligible overall compared to
operation of the fishery in recent years. These measures, therefore,
are not likely to jeopardize the continued existence of Atlantic
sturgeon between now and the time when a final listing determination
will be made.
Due to the increased amount of GOM winter flounder catch allowed
under this emergency action, the revised GOM winter flounder ACL
represents an increase of potential revenue of $1.2 million, assuming
recent average prices for GOM winter flounder remain steady, and
assuming that the full ACL for GOM winter flounder will be harvested.
This estimate of GOM winter flounder revenue is likely high, given the
level of GOM winter flounder landings in recent years. Additional
revenue may be generated from increased catch of other stocks due to
the revised GOM winter flounder catch limits. The primary economic
benefit of the revised ACL is expected to be associated with reducing
the likelihood that an accountability measure would be triggered for
the common pool and for sectors. The triggering of accountability
measures would have reduced or precluded access to other stocks and the
associated revenue.
Even with a total increase in the revised sector specifications of
163 mt of GOM winter flounder, the common pool and one of the sectors
(NEFS XII) will still be left with less GOM winter flounder than their
collective memberships landed during FY 2010. That is, even though the
revised aggregate GOM winter flounder ACE is higher than the FY 2010
landings, the ACE for these sectors is still lower than the sector
members' FY 2010 combined GOM winter flounder landings. However, the
deficit for the one sector may be overcome by leasing ACE from other
sectors that may have a surplus of GOM winter flounder ACE, that is, an
ACE that is greater than their members' collective recent GOM winter
flounder landings. With respect to the impact of the revised GOM winter
flounder catch limit on individual members of sectors, there may be a
similar deficit or surplus between an individual vessel's allocation
from its sector and its own historical landings. However, these
differences may also be offset through trading within a vessel's sector
and with other sectors. The revised GOM winter flounder catch limits
may reduce the ACE market price for leasing GOM winter flounder, by
reducing the demand for GOM winter flounder on the ACE trading market.
The magnitude of this decline is highly uncertain.
[[Page 7004]]
However, NMFS is only allowing a limited increase in the GOM winter
flounder specifications, in order to provide additional fishing
opportunity to groundfish vessels without collapsing the lease price.
Classification
NMFS has determined that this rule is necessary to respond to an
emergency situation and is consistent with the Magnuson-Stevens Act and
other applicable law.
The Assistant Administrator for Fisheries, NOAA, finds it
impracticable and contrary to the public interest to provide for prior
notice and opportunity for the public to comment under the provisions
of section 553(b)(B) of the Administrative Procedure Act. As more fully
explained above, the reasons justifying promulgation of this rule on an
emergency basis make solicitation of public comment contrary to the
public interest. This action would result in the benefit of the
revenues associated with larger GOM winter flounder catch limits. This
action could not allow for prior public comment because the scientific
review process and determination could not have been completed any
earlier due to the inherent time constraints associated with such
process. This action was initiated as a result of recently discovered
circumstances that warrant an increase in the FY 2011 GOM winter
flounder catch limits. A new assessment for GOM winter flounder was
completed in June 2011 that significantly revised the status of this
stock. As a result of the new assessment, the SSC recommended, and the
Council subsequently approved at its meeting on November 16, 2011,
substantially higher specifications for this stock for FY 2012-2014.
These decisions were made following the normal procedures for updating
fishery specifications under the MSA and the FMP, and could not have
been foreseen in time to follow normal procedures for implementing this
type of action under the Magnuson-Stevens Act. Although the Council
could have initiated a management action to modify the GOM winter
flounder catch limits for the remainder of FY 2011 at the time they
approved the SSC's recommendation, as they are doing with the FY 2012-
2014 catch limits for this stock under FW 47, such an action could not
have been completed before the end of FY 2011 (April 30, 2012), and
could have resulted in triggering restrictive and economically harmful
management actions that otherwise could have been avoided. As described
in an earlier paragraph, GOM winter flounder catch rates in FY 2011
have been such that reduction or cessation of fishing effort may have
been necessary before the end of the fishing year in order for the
common pool or sectors to avoid exceeding an ACL. An early end to the
fishing season could have meant lost economic opportunity for
groundfish vessels in the form of ACL left unharvested for GOM winter
flounder and other stocks caught with it. An emergency action can be
developed and implemented by NMFS much more swiftly than development of
a Council action, which is subject to procedural and other requirements
not applicable to the Secretary. Thus, NMFS initiated this temporary
rule, at the request of the Council, to revise the GOM winter flounder
catch limits before the end of FY 2011. If this rulemaking was delayed
to allow for notice and comment, the current quota for some sectors
could be exceeded, which could result in triggering restrictive and
economically harmful AMs that otherwise could have been avoided. A
sector that exceeds an allocation must pay back that overage on a
pound-for-pound basis in the following year. The time necessary to
provide for prior notice and opportunity for public comment for this
action could severely curtail fishing operations if the current ACL is
reached and measures to reduce or end fishing effort are triggered
prior to implementation of the increased catch limit. In the interest
of receiving public input on this action, the revised assessment upon
which this action was based is made available to the public, and this
action requests public comments on that document and the provisions in
this rule.
The Assistant Administrator for Fisheries, NOAA, finds good cause
to waive the requirement for a 30-day delay in effectiveness under the
provisions of section 553(d) of the Administrative Procedure Act. As
stated above, this action would result in a benefit of additional
revenues associated with larger GOM winter flounder catch limits, and
more opportunity for groundfish vessels to harvest their allocations of
other stocks caught concurrently. This rule relieves a restriction by
increasing the catch limit for GOM winter flounder and, consequently,
extends fishing opportunity for fishermen that would otherwise be
constrained under the current catch limits, which are restrictive and
based on outdated biological information. If this rulemaking was
delayed to allow for a 30-day delay in effectiveness, the fishery would
likely forego some amount of the increase in catch level, and resulting
additional fishing opportunity, implemented by this rule, and could
suffer an early end to the fishing season before the end of FY 2011
(April 30, 2012). If the common pool was projected to catch the current
catch limit, while the effectiveness of the new catch limits in this
action is delayed, the regulations would still require NMFS to take
action to implement unnecessary restrictive measures in the GOM to
ensure the common pool did not exceed its current catch limit.
Similarly, sector vessels would still be required to end fishing effort
in the GOM if they reached their allocations under the current GOM
winter flounder catch limits. While these restrictions would be
alleviated after this rule becomes effective, the lost economic
opportunity of foregone catches of GOM winter flounder, and other
valuable groundfish stocks caught concurrently in the GOM, that would
result from a delay in the effectiveness of this action could not be
recouped in the few short weeks before the end of FY 2011, or in the
following fishing year. For these reasons, the AA finds good cause to
implement this rule immediately.
This emergency rule is exempt from E.O. 12866 because it contains
no implementing regulations.
This rule is exempt from the procedures of the Regulatory
Flexibility Act to prepare a regulatory flexibility analysis because
the rule is issued without opportunity for prior public comment.
Authority: 16 U.S.C. 1801 et seq.
Dated: February 7, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
[FR Doc. 2012-3167 Filed 2-7-12; 4:15 pm]
BILLING CODE 3510-22-P
