Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Groundfish Fishery; Denial of Petition for Rulemaking for Gulf of Maine Cod, 39731-39734 [2015-16891]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
RIN 0648–XE008
Magnuson-Stevens Fishery
Conservation and Management Act
Provisions; Fisheries of the
Northeastern United States; Northeast
Groundfish Fishery; Denial of Petition
for Rulemaking for Gulf of Maine Cod
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of agency decision.
AGENCY:
In response to the most recent
stock assessment for Gulf of Maine cod,
which indicated that the stock is at
historically low abundance levels, a
group of environmental organizations
have requested that NMFS initiate
rulemaking to make the following
changes: prohibit commercial and
recreational fishing for Gulf of Maine
cod until the incidental fishing
mortality does not exceed the acceptable
biological catch limit; and limit catch,
including discards, to the level that
achieves the fishing mortality that meets
rebuilding requirements, in accordance
with Amendment 16 to the Northeast
Multispecies Fishery Management Plan.
After reviewing the petition and
considering recent management
measures we have implemented to
prevent overfishing of Gulf of Maine cod
and promote Gulf of Maine cod
rebuilding efforts, we are denying the
Petition for Rulemaking request.
DATES: The petition for rulemaking was
denied on June 4, 2015.
FOR FURTHER INFORMATION CONTACT:
William Whitmore, Fishery Policy
Analyst, phone: 978–281–9182; email:
William.Whitmore@noaa.gov.
SUMMARY:
A group of
environmental organizations, including
The Center for Biological Diversity,
Greenpeace, SandyHook Life
Foundation, and The Turtle Island
Restoration Network, have requested
that NMFS initiate rulemaking under
the Administrative Procedure Act. The
petitioners request that, because the
most recent stock assessment for Gulf of
Maine (GOM) cod indicates that the
stock is at historically low abundance
levels, NMFS initiate rulemaking to
make the following changes: (1) Prohibit
commercial and recreational fishing for
GOM cod until the incidental fishing
mortality does not exceed the acceptable
SUPPLEMENTARY INFORMATION:
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39731
biological catch (ABC) limit; and (2)
limit catch, including discards, to the
level that achieves the fishing mortality
that meets rebuilding requirements
(Frebuild), in accordance with
Amendment 16 to the Northeast
Multispecies Fishery Management Plan
(FMP).
We are denying the Petition for
Rulemaking. The measures in
Framework Adjustment 53 to the FMP
(80 FR 25110; May 1, 2015), combined
with other conservation and
management measures we implemented
for the recreational fishery (80 FR
25160; May 1, 2015), are expected to
prevent catch from exceeding the ABC,
prevent overfishing, and rebuild the
GOM cod stock within the rebuilding
period. Further, we intend to carefully
monitor updated stock assessment
information, which will be available
later this year, and will adjust measures,
if necessary, to address any changes to
stock condition. We carefully
considered the available information
and determined that all of the
management measures implemented in
the Framework 53 final rule, along with
corresponding recreational measures,
and our continued close monitoring of
the stock’s condition, will provide
sufficient protection for GOM cod to
prevent overfishing and contribute to
rebuilding consistent with the
requirements of the Magnuson-Stevens
Fishery Conservation and Management
Act. These measures balance MagnusonStevens Act objectives, including
achieving optimum yield and taking
into account the needs of fishing
communities, without compromising
conservation objectives to prevent
overfishing and rebuild the stock. In
effect, therefore, Framework 53,
combined with the other recreational
measures, achieves exactly what the
petition for rulemaking seeks. Moreover,
Framework 53 was developed and
implemented through the preferred
Regional Fishery Management Council
process as intended by the MagnusonStevens Act. Accordingly, as described
in more detail below, neither a
Secretarial amendment nor an
emergency action is necessary or
warranted to further limit GOM cod
mortality at this time.
Background
Petition Request
In August 2014, the Northeast
Fisheries Science Center updated the
2012 benchmark GOM cod stock
assessment. The assessment found that
the GOM cod stock is overfished,
subject to overfishing, and that the
condition of the stock had declined
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further from the 2012 assessment that
was used as a basis for the revised
rebuilding plan established in
Framework 51. The 2014 assessment
showed historically low abundance and
estimated that GOM cod was at only 3
percent of its rebuilding target. In
response, on November 13, 2014, we
issued interim measures (79 FR 67362)
to limit cod mortality for the duration of
the 2014 fishing year (which ended on
April 30, 2015).
We received a petition for rulemaking
on March 3, 2015, largely in response to
the results of the most recent GOM cod
stock assessment, the interim measures
to reduce GOM cod mortality, and the
Council’s recommended measures for
long-term GOM cod protection in
Framework 53. The petitioners
requested that NMFS initiate
rulemaking to limit GOM fishing
mortality consistent with the
specifications of the default ABC control
rule implemented in Amendment 16. In
support of their request, the petitioners
contend that historic overfishing and
mismanagement of the GOM cod stock
have led to declines in landings and
stock abundance, and resulted in
changes to the stock’s age structure (i.e.,
reduced the number of big, old, fat,
fertile female fish), spawning locations,
migratory behavior, and prey. They
assert that because past GOM cod
assessments have consistently
overestimated cod spawning stock
biomass and underestimated fishing
mortality, managers should consider
larger uncertainty buffers.
The petitioners claim that the ongoing
management regime for GOM cod has
not successfully ended overfishing or
promoted rebuilding of the GOM cod
stock, and that the management
measures proposed in Framework 53
will not support rebuilding by the end
of the revised rebuilding plan deadline
in 2024. Specifically, they claimed:
• The 2004 GOM cod rebuilding plan
failed because the Council set catch
limits to maximize fishing opportunity
rather than promote stock conservation,
and because the Council prolonged
overfishing by choosing the maximum
rebuilding timeline possible.
• The 2014 GOM cod interim
measures did not temporarily address
overfishing or allow for stock
rebuilding, and were only projected to
result in a 33-percent reduction in
fishing mortality in spite of advice from
the Council’s Scientific and Statistical
Committee (SSC) that a 75-percent
reduction in fishing limits was
necessary.
• The 386-mt GOM cod ABC
recommended by the Council in
Framework 53 is above the legal limit
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(i.e., 200 mt, the level of catch necessary
to achieve a fishing mortality equal to
Frebuild), and is unlikely to allow the
stock to rebuild by 2024.
To remedy the situation, the
petitioners request that we prohibit
commercial and recreational fishing for
GOM cod until incidental fishing
mortality does not exceed the ABC, and
limit catch, including discards, to the
level that achieves a fishing mortality
rate that meets rebuilding requirements
(Frebuild). In addition, the petitioners
suggest that because proper accounting
for dead discards may be one reason
that cod failed to rebuild from 2004–
2014, NMFS should increase observer
coverage for the commercial fleet to 100
percent to ensure that mortality of GOM
cod is monitored and counted toward
catch limits.
Framework 53
While we were developing the GOM
cod interim measures, the New England
Fishery Management Council developed
measures to end overfishing in the 2015
fishing year (beginning May 1, 2015)
and for long-term measures to rebuild
the GOM cod stock, consistent with the
revised rebuilding program, as part of
Framework 53. Framework 53, which
was implemented May 1, 2015, includes
a 75-percent reduction to the GOM cod
catch limit compared to 2014, a
prohibition on recreational possession
of GOM cod, and seasonal area closures
intended to protect spawning and
reduce fishing mortality on GOM cod.
Framework 53 also includes measures
consistent with the goals of a revised 10year rebuilding plan for GOM cod that
was established in Framework 51 (79 FR
22421; April 22, 2014). The 10-year
rebuilding program is intended to
account for past performance of
groundfish rebuilding programs and
uncertainties in long-term catch
projections by setting conservative catch
levels in the early years of the program.
This timeframe also provides flexibility
to better address the needs of fishing
communities compared to rebuilding
programs that target an earlier end date.
Basis for Denial
Section 304 of the Magnuson-Stevens
Act provides the Secretary of Commerce
with the authority to prepare and
implement a fishery management plan if
the Council fails to develop and submit
a plan or amendment after a reasonable
period of time that meets necessary
conservation and management
objectives. Or, the agency may put in
place emergency regulations or interim
measures to address an emergency or
overfishing. An emergency rulemaking
allows actions to prevent overfishing or
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economic loss or to preserve economic
opportunity when the emergency results
from recent, unforeseen events or
recently discovered circumstances. An
interim rule allows for measures that
reduce overfishing for a limited time.
The benefits of using the abbreviated
rulemaking procedures associated with
emergency rulemaking and interim
measures must outweigh the value of
advance notice, public comment, and
deliberative consideration of the
impacts on participants to the same
extent as expected under the normal
Council and full notice-and-comment
rulemaking process.
Rulemaking is not appropriate in this
instance because it would unnecessarily
replace the measures established in
Framework 53 and the recreational
measures put in place through the
Council process. These measures
achieve what the petition for
rulemaking seeks. These measures
balance Magnuson-Stevens Act
objectives, including achieving
optimum yield and taking into account
the needs of fishing communities,
without compromising conservation
objectives to prevent overfishing and
rebuild the stock. Therefore, neither a
Secretarial amendment nor an
emergency action is necessary or
warranted at this time to further limit
GOM cod mortality.
2004 Rebuilding Plan
We do not agree with the petitioner’s
statements that the Councilrecommended catch levels for GOM cod
during the 2004 rebuilding program
were intended to maximize economic
gain at the expense of the health of the
stock. A 2008 stock assessment
reviewed progress under the plan and
concluded that the stock was not
overfished but overfishing was
occurring, and, based in part on a strong
2005 year class, the stock was expected
to rebuild by 2014.
We notified the Council about the
lack of progress under the 2004
rebuilding plan following the 2012
GOM cod benchmark assessment. We
determined that inadequate progress
under the 2004 rebuilding plan was due
to a revised understanding of the
condition of the stock since the 2008
GOM cod assessment. In response to the
new understanding of the status of the
GOM cod stock, we worked with the
Council to implement measures to
reduce overfishing and revise the
rebuilding plan as swiftly as possible
though a 2012 interim action, and
Frameworks 50 and 51. These actions
incorporated new information and
lessons from past management
approaches. Our review of the Council’s
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revised 2014 GOM cod rebuilding plan
adopted in Framework 51 indicated that
the Council addressed past rebuilding
performance and accelerated the
rebuilding timeline by setting more
conservative catch limits in the early
portion of the rebuilding program.
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2014 Interim Action
We reject the petitioners claim that
the 2014 interim action insufficiently
addressed the information provided in
the updated assessment. One of our
primary objectives of the interim action
was to reduce overfishing by reducing
GOM cod commercial and recreational
catch. Given the mixed nature of the
groundfish fishery and its interaction
with other fisheries, this objective was
analyzed in the context of not closing
down the entire GOM, but to allow
some harvesting of other groundfish
stocks. We wanted to reduce GOM cod
mortality while the Council developed
more permanent measures in
Framework 53. We determined it was
unnecessary to try to prevent all fishing
mortality for the remainder of the 2014
fishing year as the stock can rebuild
even if subject to overfishing in 2014 as
long as measures would be in place to
prevent overfishing beginning in 2015.
Achieving zero fishing mortality would
have required closing all GOM fisheries,
including those that do not target
groundfish. The impacts of such
measures would be substantial and
impracticable. Such a closure was
unwarranted to ensure effective cod
conservation.
Framework 53 GOM Cod ABC
Most recently, we considered public
comment on and supporting analysis for
Framework 53 and the 2015 recreational
measures, and the best scientific
information available in making the
determination that an ABC of 386 mt
was appropriate and consistent with the
requirements of the Magnuson-Stevens
Act and its National Standards. In light
of current stock conditions, the 386 mt
ABC is a 75-percent catch limit
reduction compared to 2014, which is in
addition to the 80-percent reduction
implemented for the 2013–2014 fishing
years. In total, the GOM cod catch limit
has been reduced by 95 percent over the
last 5 years. Further, new recreational
measures prohibit recreational
fishermen from retaining any GOM cod.
This is the first zero-retention
prohibition on GOM cod for recreational
fishermen. Detailed information that
addresses the petitioners concerns about
the GOM cod ABC and further justifies
our decision to approve an ABC of 386
mt can be found in the Framework 53
final rule (see pages 25125–25127).
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We will continue to carefully consider
management measures to promote
timely rebuilding of the GOM cod stock.
In an effort to closely monitor stock
indicators, we reviewed the recent fall
2014 NEFSC bottom trawl survey
indices. The fall survey indicated a
small increase compared to 2012 and
2013; however, the general trend of
survey indices, as well as recruitment,
remains very low. While the updated
survey information may provide an
initial, and potentially positive,
indication of improvement, it is difficult
to anticipate the results of the full 2015
assessment. In any event, we plan to
make necessary adjustments for the
2016 fishing year based on the
upcoming 2015 stock assessment.
Incidental Fishing Mortality
The petitioners request prohibiting
fishing mortality until incidental
mortality does not exceed the ABC. An
ABC of 386 mt is expected to have
substantial adverse economic impacts
on groundfish vessels, and is below the
estimate of incidental catch of GOM cod
that occurred in the 2013 fishing year.
In the 2013 fishing year, when the ACL
was reduced by 80 percent, incidental
catch was estimated to be approximately
500–600 mt. Beginning in the 2013
fishing year, sectors primarily used their
GOM cod allocation to access other
groundfish stocks. Multiple sources of
information indicate a marked decline
in directed fishing for GOM cod. With
an additional 75-percent reduction
beginning in the 2015 fishing year, the
incentive to target GOM cod is virtually
eliminated, and the fishery will be, in
effect, a ‘‘bycatch-only’’ fishery.
Incidental catch is largely a function of
the overall ACLs on other stocks. At
such a low GOM cod catch limit, fishery
operations will be greatly restricted, and
in some cases eliminated. In addition,
the recreational fishery will be
prohibited from possessing any GOM
cod. Under this incidental catch
scenario, the GOM cod ABC is expected
to severely restrict catch of other
groundfish stocks, particularly GOM
haddock, pollock, redfish, and some
flatfish. Based on this information, the
386-mt ABC balances MagnusonStevens Act requirements of
conservation and achieving optimum
yield.
Monitoring and Catch Accounting
The petitioners raised a concern that
inaccurate accounting for catch could
undermine conservation objectives for
GOM cod. We share their concern, and
available analyses suggest that an
extremely low catch limit for GOM cod
may create an economic incentive to
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39733
misreport catch. If misreporting occurs,
it could reduce the accuracy of catch
apportionment. Information indicates
that this incentive increases as the GOM
cod catch limit is further reduced. To
help ensure correct catch apportionment
and compliance with the GOM cod ACL
adopted in Framework 53, we also
implemented an additional daily
reporting requirement for common pool
and sector vessels fishing in multiple
broad stock areas on the same trip. This
requirement is intended to help ensure
accurate catch attribution and reduce
the incentive for vessels to misreport.
We do not share the petitioners’ view
that 100-percent observer coverage is
necessary to monitor GOM cod fishing
mortality. Rather, we apply at-sea
monitoring coverage levels that we
determine are necessary to monitor and
enforce catch levels, or increase buffers
to account for uncertainty in catch as
part of the biennial quota-setting
process. We have received similar
comments on prior groundfish
rulemakings requesting high levels of
observer coverage for the commercial
fishery since the implementation of
Amendment 16. For the most part,
commenters have generally asserted that
the levels of monitoring we have
implemented are inadequate without
providing any specific justification or
information to support their assertion.
For sector trips, we have determined
that 24-percent observer coverage is
sufficient this fishing year, to the extent
practicable in light of MagnusonStevens Act requirements, to reliably
estimate catch for purposes of
monitoring ACLs for groundfish stocks.
This level of coverage is achieved
through a combination of groundfish atsea monitoring coverage and observer
coverage furnished by the Northeast
Fisheries Observer Program.
Amendment 16 specified that at-sea
monitoring coverage levels should be
less than 100 percent, which requires
estimations of the discard portion of
catch and thus total catch. Amendment
16 also specified that the at-sea
monitoring coverage levels should
achieve a 30-percent coefficient of
variation (CV). The level of observer
coverage, ultimately, should provide
confidence that the overall catch
estimate is sufficiently accurate to
ensure that sector fishing activities are
consistent with National Standard 1
requirements to prevent overfishing
while achieving optimum yield. To that
end, significant additional uncertainty
buffers are established when setting
ACLs that mitigate any lack of absolute
precision and accuracy in estimating
overall catch by sector vessels.
Collectively, the current level of sector
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Federal Register / Vol. 80, No. 132 / Friday, July 10, 2015 / Proposed Rules
observer coverage is providing more
data for quota management and
assessment science than was available
to NMFS prior to implementation of
Amendment 16.
On February 18, 2014, in Oceana, Inc.
v. Pritzker, 1:13–cv–00770 (D.D.C.
2014), the Court upheld our use of a 30percent CV standard to set sector
observer coverage levels. In addition to
upholding our determination of
sufficient coverage levels, the Court
noted that the current sector observer
coverage is not the sole method of
monitoring compliance with ACLs,
there are many reporting requirements
that vessels adhere to, and there are
strong incentives for vessels to report
accurately because each sector is held
jointly and severally liable for overages
and misreporting of catch and bycatch.
Conclusion
We remain concerned about the status
of GOM cod, but have determined that
the current FMP, as adjusted by
Framework 53, along with recreational
measures and planned future Council
and agency actions, provide the
appropriate regulatory mechanisms for
addressing the concerns regarding this
stock that were raised in the petition for
rulemaking. We will continue to
carefully monitor stock indicators
leading into the 2015 assessment to
fully inform our re-evaluation of the
GOM cod catch limit, and the need to
balance conservation and management
objectives. Therefore, we are denying
this petition; no other rulemaking is
necessary in response to the petition for
rulemaking.
Authority: 16 U.S.C. 1801 et seq.
Dated: July 6, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2015–16891 Filed 7–9–15; 8:45 am]
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50 CFR Part 679
[Docket No. 150126078–5078–01]
RIN 0648–BE85
Fisheries of the Exclusive Economic
Zone Off Alaska; Revise Maximum
Retainable Amounts for Skates in the
Gulf of Alaska
National Marine Fisheries
Service (NMFS), National Oceanic and
AGENCY:
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Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
NMFS proposes regulations to
reduce the maximum retainable amount
(MRA) of skates using groundfish and
halibut as basis species in the Gulf of
Alaska (GOA) from 20 percent to 5
percent. Reducing skate MRAs is
necessary to decrease the incentive for
fishermen to target skates and slow the
catch rate of skates in these fisheries.
This proposed rule would enhance
conservation and management of skates
and minimize skate discards in GOA
groundfish and halibut fisheries. This
proposed rule is intended to promote
the goals and objectives of the
Magnuson-Stevens Fishery
Conservation and Management Act, the
Northern Pacific Halibut Act of 1982,
the Fishery Management Plan for
Groundfish of the Gulf of Alaska, and
other applicable laws.
DATES: Comments must be received no
later than August 10, 2015.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
NMFS–2015–0015, by any of the
following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20150015, click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
• Mail: Submit written comments to
Glenn Merrill, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region NMFS, Attn:
Ellen Sebastian. Mail comments to P.O.
Box 21668, Juneau, AK 99802–1668.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous).
Electronic copies of the draft
Environmental Assessment/Regulatory
Impact Review/Initial Regulatory
Flexibility Analysis (collectively the
‘‘Analysis’’), Alaska Groundfish Harvest
SUMMARY:
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Specifications Final Environmental
Impact Statement (Final EIS),
Supplementary Information Report (SIR)
to the Final EIS, and the Initial
Regulatory Flexibility Analysis (IRFA)
for the Gulf of Alaska Groundfish
Harvest Specifications for 2015 and
2016 (Harvest Specifications IRFA)
prepared for this action are available
from https://www.regulations.gov or from
the NMFS Alaska Region Web site at
https://alaskafisheries.noaa.gov.
FOR FURTHER INFORMATION CONTACT:
Peggy Murphy, 907–586–7228.
SUPPLEMENTARY INFORMATION:
Authority for Action
NMFS manages the groundfish
fisheries in the exclusive economic zone
of the GOA under the Fishery
Management Plan for Groundfish of the
Gulf of Alaska (FMP). The North Pacific
Fishery Management Council (Council)
prepared the FMP under the authority of
the Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act), 16 U.S.C. 1801
et seq. Regulations governing groundfish
fishing in the GOA and implementing
the FMP appear at 50 CFR parts 600 and
679. The Council and NMFS manage
skates (Raja and Bathyraja species) as a
groundfish species under the FMP.
Background
NMFS proposes to modify regulations
that specify the MRA for skates in the
GOA. An MRA is the maximum amount
of a species closed to directed fishing
(i.e., skate species) that may be retained
onboard a vessel. MRAs are calculated
as a percentage of the weight of catch of
each groundfish species or halibut open
to directed fishing (the basis species)
that is retained onboard the vessel.
MRAs assist in limiting catch of a
species within its annual total allowable
catch (TAC). Once the TAC for a species
is reached, retention of that species
becomes prohibited and all catch of that
species must be discarded. NMFS closes
a species to directed fishing before the
entire TAC is taken to leave sufficient
amounts of the TAC available for
incidental catch. The amount of the
TAC remaining available for incidental
catch is managed by a species-specific
MRA. MRAs are a management tool to
slow down the rate of harvest and
reduce the incentive for targeting a
species closed to directed fishing.
NMFS has established a single MRA
percentage for big skate (Raja
binoculata), longnose skate (Raja rhina),
and for all remaining skate species
(Bathyraja spp.). The skate MRA in the
GOA is set at 20 percent. The proposed
rule would reduce the MRA for skates
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]]>Agencies
[Federal Register Volume 80, Number 132 (Friday, July 10, 2015)]
[Proposed Rules]
[Pages 39731-39734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16891]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
RIN 0648-XE008
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Northeast
Groundfish Fishery; Denial of Petition for Rulemaking for Gulf of Maine
Cod
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of agency decision.
-----------------------------------------------------------------------
SUMMARY: In response to the most recent stock assessment for Gulf of
Maine cod, which indicated that the stock is at historically low
abundance levels, a group of environmental organizations have requested
that NMFS initiate rulemaking to make the following changes: prohibit
commercial and recreational fishing for Gulf of Maine cod until the
incidental fishing mortality does not exceed the acceptable biological
catch limit; and limit catch, including discards, to the level that
achieves the fishing mortality that meets rebuilding requirements, in
accordance with Amendment 16 to the Northeast Multispecies Fishery
Management Plan. After reviewing the petition and considering recent
management measures we have implemented to prevent overfishing of Gulf
of Maine cod and promote Gulf of Maine cod rebuilding efforts, we are
denying the Petition for Rulemaking request.
DATES: The petition for rulemaking was denied on June 4, 2015.
FOR FURTHER INFORMATION CONTACT: William Whitmore, Fishery Policy
Analyst, phone: 978-281-9182; email: William.Whitmore@noaa.gov.
SUPPLEMENTARY INFORMATION: A group of environmental organizations,
including The Center for Biological Diversity, Greenpeace, SandyHook
Life Foundation, and The Turtle Island Restoration Network, have
requested that NMFS initiate rulemaking under the Administrative
Procedure Act. The petitioners request that, because the most recent
stock assessment for Gulf of Maine (GOM) cod indicates that the stock
is at historically low abundance levels, NMFS initiate rulemaking to
make the following changes: (1) Prohibit commercial and recreational
fishing for GOM cod until the incidental fishing mortality does not
exceed the acceptable biological catch (ABC) limit; and (2) limit
catch, including discards, to the level that achieves the fishing
mortality that meets rebuilding requirements (Frebuild), in
accordance with Amendment 16 to the Northeast Multispecies Fishery
Management Plan (FMP).
We are denying the Petition for Rulemaking. The measures in
Framework Adjustment 53 to the FMP (80 FR 25110; May 1, 2015), combined
with other conservation and management measures we implemented for the
recreational fishery (80 FR 25160; May 1, 2015), are expected to
prevent catch from exceeding the ABC, prevent overfishing, and rebuild
the GOM cod stock within the rebuilding period. Further, we intend to
carefully monitor updated stock assessment information, which will be
available later this year, and will adjust measures, if necessary, to
address any changes to stock condition. We carefully considered the
available information and determined that all of the management
measures implemented in the Framework 53 final rule, along with
corresponding recreational measures, and our continued close monitoring
of the stock's condition, will provide sufficient protection for GOM
cod to prevent overfishing and contribute to rebuilding consistent with
the requirements of the Magnuson-Stevens Fishery Conservation and
Management Act. These measures balance Magnuson-Stevens Act objectives,
including achieving optimum yield and taking into account the needs of
fishing communities, without compromising conservation objectives to
prevent overfishing and rebuild the stock. In effect, therefore,
Framework 53, combined with the other recreational measures, achieves
exactly what the petition for rulemaking seeks. Moreover, Framework 53
was developed and implemented through the preferred Regional Fishery
Management Council process as intended by the Magnuson-Stevens Act.
Accordingly, as described in more detail below, neither a Secretarial
amendment nor an emergency action is necessary or warranted to further
limit GOM cod mortality at this time.
Background
Petition Request
In August 2014, the Northeast Fisheries Science Center updated the
2012 benchmark GOM cod stock assessment. The assessment found that the
GOM cod stock is overfished, subject to overfishing, and that the
condition of the stock had declined
[[Page 39732]]
further from the 2012 assessment that was used as a basis for the
revised rebuilding plan established in Framework 51. The 2014
assessment showed historically low abundance and estimated that GOM cod
was at only 3 percent of its rebuilding target. In response, on
November 13, 2014, we issued interim measures (79 FR 67362) to limit
cod mortality for the duration of the 2014 fishing year (which ended on
April 30, 2015).
We received a petition for rulemaking on March 3, 2015, largely in
response to the results of the most recent GOM cod stock assessment,
the interim measures to reduce GOM cod mortality, and the Council's
recommended measures for long-term GOM cod protection in Framework 53.
The petitioners requested that NMFS initiate rulemaking to limit GOM
fishing mortality consistent with the specifications of the default ABC
control rule implemented in Amendment 16. In support of their request,
the petitioners contend that historic overfishing and mismanagement of
the GOM cod stock have led to declines in landings and stock abundance,
and resulted in changes to the stock's age structure (i.e., reduced the
number of big, old, fat, fertile female fish), spawning locations,
migratory behavior, and prey. They assert that because past GOM cod
assessments have consistently overestimated cod spawning stock biomass
and underestimated fishing mortality, managers should consider larger
uncertainty buffers.
The petitioners claim that the ongoing management regime for GOM
cod has not successfully ended overfishing or promoted rebuilding of
the GOM cod stock, and that the management measures proposed in
Framework 53 will not support rebuilding by the end of the revised
rebuilding plan deadline in 2024. Specifically, they claimed:
The 2004 GOM cod rebuilding plan failed because the
Council set catch limits to maximize fishing opportunity rather than
promote stock conservation, and because the Council prolonged
overfishing by choosing the maximum rebuilding timeline possible.
The 2014 GOM cod interim measures did not temporarily
address overfishing or allow for stock rebuilding, and were only
projected to result in a 33-percent reduction in fishing mortality in
spite of advice from the Council's Scientific and Statistical Committee
(SSC) that a 75-percent reduction in fishing limits was necessary.
The 386-mt GOM cod ABC recommended by the Council in
Framework 53 is above the legal limit (i.e., 200 mt, the level of catch
necessary to achieve a fishing mortality equal to Frebuild),
and is unlikely to allow the stock to rebuild by 2024.
To remedy the situation, the petitioners request that we prohibit
commercial and recreational fishing for GOM cod until incidental
fishing mortality does not exceed the ABC, and limit catch, including
discards, to the level that achieves a fishing mortality rate that
meets rebuilding requirements (Frebuild). In addition, the
petitioners suggest that because proper accounting for dead discards
may be one reason that cod failed to rebuild from 2004-2014, NMFS
should increase observer coverage for the commercial fleet to 100
percent to ensure that mortality of GOM cod is monitored and counted
toward catch limits.
Framework 53
While we were developing the GOM cod interim measures, the New
England Fishery Management Council developed measures to end
overfishing in the 2015 fishing year (beginning May 1, 2015) and for
long-term measures to rebuild the GOM cod stock, consistent with the
revised rebuilding program, as part of Framework 53. Framework 53,
which was implemented May 1, 2015, includes a 75-percent reduction to
the GOM cod catch limit compared to 2014, a prohibition on recreational
possession of GOM cod, and seasonal area closures intended to protect
spawning and reduce fishing mortality on GOM cod.
Framework 53 also includes measures consistent with the goals of a
revised 10-year rebuilding plan for GOM cod that was established in
Framework 51 (79 FR 22421; April 22, 2014). The 10-year rebuilding
program is intended to account for past performance of groundfish
rebuilding programs and uncertainties in long-term catch projections by
setting conservative catch levels in the early years of the program.
This timeframe also provides flexibility to better address the needs of
fishing communities compared to rebuilding programs that target an
earlier end date.
Basis for Denial
Section 304 of the Magnuson-Stevens Act provides the Secretary of
Commerce with the authority to prepare and implement a fishery
management plan if the Council fails to develop and submit a plan or
amendment after a reasonable period of time that meets necessary
conservation and management objectives. Or, the agency may put in place
emergency regulations or interim measures to address an emergency or
overfishing. An emergency rulemaking allows actions to prevent
overfishing or economic loss or to preserve economic opportunity when
the emergency results from recent, unforeseen events or recently
discovered circumstances. An interim rule allows for measures that
reduce overfishing for a limited time. The benefits of using the
abbreviated rulemaking procedures associated with emergency rulemaking
and interim measures must outweigh the value of advance notice, public
comment, and deliberative consideration of the impacts on participants
to the same extent as expected under the normal Council and full
notice-and-comment rulemaking process.
Rulemaking is not appropriate in this instance because it would
unnecessarily replace the measures established in Framework 53 and the
recreational measures put in place through the Council process. These
measures achieve what the petition for rulemaking seeks. These measures
balance Magnuson-Stevens Act objectives, including achieving optimum
yield and taking into account the needs of fishing communities, without
compromising conservation objectives to prevent overfishing and rebuild
the stock. Therefore, neither a Secretarial amendment nor an emergency
action is necessary or warranted at this time to further limit GOM cod
mortality.
2004 Rebuilding Plan
We do not agree with the petitioner's statements that the Council-
recommended catch levels for GOM cod during the 2004 rebuilding program
were intended to maximize economic gain at the expense of the health of
the stock. A 2008 stock assessment reviewed progress under the plan and
concluded that the stock was not overfished but overfishing was
occurring, and, based in part on a strong 2005 year class, the stock
was expected to rebuild by 2014.
We notified the Council about the lack of progress under the 2004
rebuilding plan following the 2012 GOM cod benchmark assessment. We
determined that inadequate progress under the 2004 rebuilding plan was
due to a revised understanding of the condition of the stock since the
2008 GOM cod assessment. In response to the new understanding of the
status of the GOM cod stock, we worked with the Council to implement
measures to reduce overfishing and revise the rebuilding plan as
swiftly as possible though a 2012 interim action, and Frameworks 50 and
51. These actions incorporated new information and lessons from past
management approaches. Our review of the Council's
[[Page 39733]]
revised 2014 GOM cod rebuilding plan adopted in Framework 51 indicated
that the Council addressed past rebuilding performance and accelerated
the rebuilding timeline by setting more conservative catch limits in
the early portion of the rebuilding program.
2014 Interim Action
We reject the petitioners claim that the 2014 interim action
insufficiently addressed the information provided in the updated
assessment. One of our primary objectives of the interim action was to
reduce overfishing by reducing GOM cod commercial and recreational
catch. Given the mixed nature of the groundfish fishery and its
interaction with other fisheries, this objective was analyzed in the
context of not closing down the entire GOM, but to allow some
harvesting of other groundfish stocks. We wanted to reduce GOM cod
mortality while the Council developed more permanent measures in
Framework 53. We determined it was unnecessary to try to prevent all
fishing mortality for the remainder of the 2014 fishing year as the
stock can rebuild even if subject to overfishing in 2014 as long as
measures would be in place to prevent overfishing beginning in 2015.
Achieving zero fishing mortality would have required closing all GOM
fisheries, including those that do not target groundfish. The impacts
of such measures would be substantial and impracticable. Such a closure
was unwarranted to ensure effective cod conservation.
Framework 53 GOM Cod ABC
Most recently, we considered public comment on and supporting
analysis for Framework 53 and the 2015 recreational measures, and the
best scientific information available in making the determination that
an ABC of 386 mt was appropriate and consistent with the requirements
of the Magnuson-Stevens Act and its National Standards. In light of
current stock conditions, the 386 mt ABC is a 75-percent catch limit
reduction compared to 2014, which is in addition to the 80-percent
reduction implemented for the 2013-2014 fishing years. In total, the
GOM cod catch limit has been reduced by 95 percent over the last 5
years. Further, new recreational measures prohibit recreational
fishermen from retaining any GOM cod. This is the first zero-retention
prohibition on GOM cod for recreational fishermen. Detailed information
that addresses the petitioners concerns about the GOM cod ABC and
further justifies our decision to approve an ABC of 386 mt can be found
in the Framework 53 final rule (see pages 25125-25127).
We will continue to carefully consider management measures to
promote timely rebuilding of the GOM cod stock. In an effort to closely
monitor stock indicators, we reviewed the recent fall 2014 NEFSC bottom
trawl survey indices. The fall survey indicated a small increase
compared to 2012 and 2013; however, the general trend of survey
indices, as well as recruitment, remains very low. While the updated
survey information may provide an initial, and potentially positive,
indication of improvement, it is difficult to anticipate the results of
the full 2015 assessment. In any event, we plan to make necessary
adjustments for the 2016 fishing year based on the upcoming 2015 stock
assessment.
Incidental Fishing Mortality
The petitioners request prohibiting fishing mortality until
incidental mortality does not exceed the ABC. An ABC of 386 mt is
expected to have substantial adverse economic impacts on groundfish
vessels, and is below the estimate of incidental catch of GOM cod that
occurred in the 2013 fishing year. In the 2013 fishing year, when the
ACL was reduced by 80 percent, incidental catch was estimated to be
approximately 500-600 mt. Beginning in the 2013 fishing year, sectors
primarily used their GOM cod allocation to access other groundfish
stocks. Multiple sources of information indicate a marked decline in
directed fishing for GOM cod. With an additional 75-percent reduction
beginning in the 2015 fishing year, the incentive to target GOM cod is
virtually eliminated, and the fishery will be, in effect, a ``bycatch-
only'' fishery. Incidental catch is largely a function of the overall
ACLs on other stocks. At such a low GOM cod catch limit, fishery
operations will be greatly restricted, and in some cases eliminated. In
addition, the recreational fishery will be prohibited from possessing
any GOM cod. Under this incidental catch scenario, the GOM cod ABC is
expected to severely restrict catch of other groundfish stocks,
particularly GOM haddock, pollock, redfish, and some flatfish. Based on
this information, the 386-mt ABC balances Magnuson-Stevens Act
requirements of conservation and achieving optimum yield.
Monitoring and Catch Accounting
The petitioners raised a concern that inaccurate accounting for
catch could undermine conservation objectives for GOM cod. We share
their concern, and available analyses suggest that an extremely low
catch limit for GOM cod may create an economic incentive to misreport
catch. If misreporting occurs, it could reduce the accuracy of catch
apportionment. Information indicates that this incentive increases as
the GOM cod catch limit is further reduced. To help ensure correct
catch apportionment and compliance with the GOM cod ACL adopted in
Framework 53, we also implemented an additional daily reporting
requirement for common pool and sector vessels fishing in multiple
broad stock areas on the same trip. This requirement is intended to
help ensure accurate catch attribution and reduce the incentive for
vessels to misreport.
We do not share the petitioners' view that 100-percent observer
coverage is necessary to monitor GOM cod fishing mortality. Rather, we
apply at-sea monitoring coverage levels that we determine are necessary
to monitor and enforce catch levels, or increase buffers to account for
uncertainty in catch as part of the biennial quota-setting process. We
have received similar comments on prior groundfish rulemakings
requesting high levels of observer coverage for the commercial fishery
since the implementation of Amendment 16. For the most part, commenters
have generally asserted that the levels of monitoring we have
implemented are inadequate without providing any specific justification
or information to support their assertion.
For sector trips, we have determined that 24-percent observer
coverage is sufficient this fishing year, to the extent practicable in
light of Magnuson-Stevens Act requirements, to reliably estimate catch
for purposes of monitoring ACLs for groundfish stocks. This level of
coverage is achieved through a combination of groundfish at-sea
monitoring coverage and observer coverage furnished by the Northeast
Fisheries Observer Program. Amendment 16 specified that at-sea
monitoring coverage levels should be less than 100 percent, which
requires estimations of the discard portion of catch and thus total
catch. Amendment 16 also specified that the at-sea monitoring coverage
levels should achieve a 30-percent coefficient of variation (CV). The
level of observer coverage, ultimately, should provide confidence that
the overall catch estimate is sufficiently accurate to ensure that
sector fishing activities are consistent with National Standard 1
requirements to prevent overfishing while achieving optimum yield. To
that end, significant additional uncertainty buffers are established
when setting ACLs that mitigate any lack of absolute precision and
accuracy in estimating overall catch by sector vessels. Collectively,
the current level of sector
[[Page 39734]]
observer coverage is providing more data for quota management and
assessment science than was available to NMFS prior to implementation
of Amendment 16.
On February 18, 2014, in Oceana, Inc. v. Pritzker, 1:13-cv-00770
(D.D.C. 2014), the Court upheld our use of a 30-percent CV standard to
set sector observer coverage levels. In addition to upholding our
determination of sufficient coverage levels, the Court noted that the
current sector observer coverage is not the sole method of monitoring
compliance with ACLs, there are many reporting requirements that
vessels adhere to, and there are strong incentives for vessels to
report accurately because each sector is held jointly and severally
liable for overages and misreporting of catch and bycatch.
Conclusion
We remain concerned about the status of GOM cod, but have
determined that the current FMP, as adjusted by Framework 53, along
with recreational measures and planned future Council and agency
actions, provide the appropriate regulatory mechanisms for addressing
the concerns regarding this stock that were raised in the petition for
rulemaking. We will continue to carefully monitor stock indicators
leading into the 2015 assessment to fully inform our re-evaluation of
the GOM cod catch limit, and the need to balance conservation and
management objectives. Therefore, we are denying this petition; no
other rulemaking is necessary in response to the petition for
rulemaking.
Authority: 16 U.S.C. 1801 et seq.
Dated: July 6, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2015-16891 Filed 7-9-15; 8:45 am]
BILLING CODE 3510-22-P
