[Federal Register Volume 77, Number 64 (Tuesday, April 3, 2012)]
[Rules and Regulations]
[Pages 19944-19951]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7972]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 120316196-2195-01]
RIN 0648-BB89
Magnuson-Stevens Fishery Conservation and Management Act
Provisions; Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Interim Action
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary rule; interim measures; request for comments.
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SUMMARY: This temporary rule implements interim Gulf of Maine (GOM)
Atlantic cod (cod) management measures for the 2012 fishing year. This
action is necessary to: Establish GOM cod Annual Catch Limits (ACLs);
implement recreational management measures that will constrain catch to
the recreational sub-ACL; and reduce overfishing occurring on GOM cod
in anticipation of further action to end overfishing in fishing year
2013.
DATES: Effective May 1, 2012, until September 30, 2012; comments must
be received by June 4, 2012.
ADDRESSES: You may submit comments on this document, identified by
``NOAA-NMFS-2012-0045,'' by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal www.regulations.gov. To
submit comments via the e-Rulemaking Portal, first click the ``submit a
comment'' icon, then enter NOAA-NMFS-2012-0045 in the keyword search.
Locate the document you wish to comment on from the resulting list and
click on the ``Submit a Comment'' icon on the right of that line.
Mail: Submit written comments to Daniel Morris, Acting
Regional Administrator, 55 Great Republic Drive, Gloucester, MA 01930.
Fax: (978) 281-9135.
Instructions: Comments must be submitted by one of the above
methods to ensure that the comments are received, documented, and
considered by NMFS. 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. 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, etc.) submitted voluntarily by the
sender will be publicly accessible. Do not submit confidential business
information, or otherwise sensitive or protected information. NMFS will
accept anonymous comments (enter ``N/A'' in the required fields if you
wish to remain anonymous). Attachments to electronic comments will be
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file
formats only.
Copies of the supplemental environmental assessment (EA) prepared
for this action by NMFS are available from Daniel Morris, Acting
Regional Administrator, 55 Great Republic Drive, Gloucester, MA 01930.
The supplemental EA is accessible via the Internet at http://www.nero.noaa.gov. A copy of the most recent stock assessment for GOM
cod is also accessible via the Internet at http://www.nefsc.noaa.gov/groundfish.
FOR FURTHER INFORMATION CONTACT: Michael Ruccio, Fishery Policy
Analyst, phone: 978-281-9104.
SUPPLEMENTARY INFORMATION:
Plain Language Executive Summary
A recent assessment of the amount of cod found in the GOM was
finalized in January 2012. The results are substantially different from
those from a similar examination conducted in 2008. The new assessment
concludes that GOM cod are ``overfished,'' meaning there is a lower
amount of fish than necessary to sustain the population over the long
term. It also concludes that GOM cod are subject to ``overfishing,''
meaning fishing activities are removing too many fish from the sea to
sustain the population. The required population and fishing-related
removal levels are set for GOM cod under a fishery management plan
developed by the New England Fishery Management Council (Council) in
collaboration with NMFS. This plan is designed to satisfy requirements
of the primary law governing U.S. fisheries--the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act).
The new assessment indicates that increasing GOM cod to the
rebuilding stock size target is not possible by 2014, even if no cod
are harvested by fisheries between now and then. Based on the
information in the new assessment, NMFS has determined that the GOM cod
rebuilding program is not making adequate progress toward building the
stock to the required size. NMFS has notified the Council of this
finding. Based on this notification and in accordance with Magnuson-
Stevens Act requirements, the Council must revisit the GOM cod
rebuilding plan and revise it within the next two years so that the
recovery effort is back on track. NMFS also advised the Council that
there is some limited flexibility the agency may use to reduce, rather
than end, overfishing on GOM cod for up to one year. The Council had
originally intended to use the new assessment information and recommend
measures for fishing year 2012 (May 1, 2012-April 30, 2013). However,
the Council elected not to do so, based on concerns about the new
assessment. Instead, the Council has asked NMFS to implement interim
measures for the fishing year,
[[Page 19945]]
under its authorization to do so provided by section 305(c) of the
Magnuson-Stevens Act.
In response to the Council's request, NMFS has decided that it is
necessary and appropriate to implement this interim action to address
overfishing of GOM cod using NMFS' authority in the Magnuson-Stevens
Act (see Justification for Interim Action section later in this
preamble for additional detail). In anticipation of implementing an
interim rule, NMFS held several meetings with the Council,
stakeholders, and interested parties. The objective of these meetings
was to help identify fishing measures for the 2012 fishing year that
will reduce overfishing. The measures implemented by this interim rule
reduce GOM cod catch levels available to fishermen by approximately 17
percent from 2010 catch levels and 22 percent from 2011 catch levels,
reduce the rate of fishing mortality by approximately 23 percent from
the 2010 rate and approximately 4 percent from the 2011 rate, and
therefore are consistent with Magnuson-Stevens Act requirements. These
measures are based, in part, on the input from the meetings and are
intended to reduce the magnitude of negative economic impact to fishery
participants, fishery-dependent businesses, and coastal communities in
New England in comparison to taking a more strict action to achieve
reductions from 2010 catch levels by 84 percent and from 2011 catch
levels by 85 percent that would be necessary to end overfishing.
This action implements catch levels and recreational management
measures designed to reduce rather than end overfishing on the GOM cod
stock in fishing year 2012. The Council intends to revisit the stock's
rebuilding plan over the next two years and to develop measures to end
overfishing on GOM cod starting in fishing year 2013 (May 1, 2013-April
30, 2014).
This interim rule implements a total GOM cod total annual catch
limit (ACL) of 6,700 mt and divides this catch limit among the fishery
as follows: Sectors, 3,618 mt, with an additional 471 mt as carryover;
Common Pool, 81 mt; Recreational, 2,215 mt; State Waters, 253 mt; and
Other Sub-component, 62 mt. This rule also implements a 19-inch (48.26-
cm) minimum fish size for recreationally caught GOM cod and a
recreational possession limit of 9 fish per angler. This rule is
effective for 180 days.
NMFS is requesting comment on these interim measures in
anticipation of extending the measures this fall to ensure measures are
in place for the entire 2012 fishing year. Further, in response to
public input, additional analysis is planned during 2012 to re-examine
some components of the recent stock assessment. NMFS cannot predict how
this additional analysis may influence what is known about the size and
condition of the GOM cod population. It is possible that changes to
measures may be necessary to respond to comments or new information
when catch and management measures are extended this fall.
Additional detail is provided in the remainder of the preamble to
this rule.
Background
The Northeast (NE) Multispecies Fishery Management Plan (FMP)
specifies management measures for 16 fish species that occur in Federal
waters off the New England and Mid-Atlantic coasts. Cod, along with
haddock, yellowtail flounder, pollock, American plaice, witch flounder,
white hake, windowpane flounder, Atlantic halibut, winter flounder,
redfish, and Atlantic wolffish are referred to as ``regulated
species,'' in that they are subject to large mesh size requirements
through the FMP. These regulated species are jointly managed by the
Council and NMFS. Several of the regulated species are further
subdivided into 19 separate stocks. These stocks, along with ocean
pout, form the groundfish fishery complex managed under the FMP. There
are two recognized stocks of cod in the U.S. portion of the North
Atlantic: GOM and George's Bank.
Rebuilding Program and Stock Assessment Information
Amendment 13 to the FMP, developed by the Council and implemented
by NMFS, established a program designed to rebuild the GOM cod stock
from low population levels. This program, implemented in 2004 (69 FR
22906; April 27, 2004), was designed to rebuild the GOM cod stock in 10
years, by May 1, 2014.
Comprehensive assessments of the GOM cod stock were conducted in
2005, 2008, and most recently in December 2011 (published in January
2012). The 2008 assessment, conducted by NMFS' Northeast Fisheries
Science Center (NEFSC) in collaboration with state agency scientists,
academia, and industry-hired consultants, and externally peer-reviewed
by the Center for Independent Experts, indicated that the GOM cod stock
was likely to rebuild by 2014, consistent with the rebuilding plan.
The new assessment, conducted through a similar collaborative and
peer-review process, provided a new and significantly revised
scientific understanding of the status of GOM cod. The most recent
assessment indicates that rebuilding the stock to the biomass target of
61,218 mt would not be possible by 2014 even in the absence of all
fishing mortality. Additionally, this assessment indicates that the
stock is subject to continued overfishing and is overfished. Because
the most recent assessment provides a substantially changed perspective
for the status of GOM cod, the inability to adequately rebuild the
stock is the fault of neither the Council nor fishery participants.
Additional detail on all the GOM stock assessments, including the
most recent assessment results, are available on the NEFSC stock
assessment-related Web site (http://www.nefsc.noaa.gov/nefsc/saw/) and
are not further summarized here.
Implications of New Assessment Information
Based on the new assessment, the fishing mortality rate (F) on GOM
cod in 2010 was 1.14. Based on the Council's Plan Development Team
(PDT) analysis, the current projection indicates F for 2011 is 0.92.
The overfishing threshold calculated by the assessment is an F of 0.2;
thus to end overfishing, the F rate would need to be reduced by at
least 82 percent from the 2010 rate and 78 percent from the 2011 rate
to be at or below the overfishing threshold.
The mechanism for reducing F is to reduce catch. To achieve the
level of reduction in F to end overfishing immediately (i.e., F = 0.2
or less), the assessment calculated that total catch limit for fishing
year 2012 would need to be 1,313 mt, and stock biomass would increase
to 11,463 mt in 2013. Further, the Council established in Amendment 13
that it would set an F rate at 75 percent of the overfishing threshold
of 0.2 for an F of 0.15. This 0.15 F rate would result in a catch limit
of 1,001 mt in fishing year 2012, and stock biomass would increase to
11,838 mt in 2013. Reductions in catch limits of this magnitude would
end overfishing; however, this would have significant negative economic
impacts to fishery participants, fishing-related industries in New
England, and coastal communities in the region.
Council Process for Fishing Year 2012 Measures
The Council was aware that the new assessment for GOM cod was being
conducted in December 2011, and that final results from the assessment
would be available in early 2012. Typically, the Council takes final
action on recommendations for the subsequent fishing year in November
of the
[[Page 19946]]
preceding year (i.e., November 2011 for 2012 measures). Because the
timing of the GOM cod assessment complicated the normal process used,
the Council had included a range of potential catch levels in its
analysis of Framework Adjustment 47 to the FMP (FW47). The Council took
final action on FW47 in November 2011. The Council intended to have its
PDT and Scientific and Statistical Committee (SSC) review the
assessment results in early 2012 to provide advice for a GOM cod
Acceptable Biological Catch (ABC) for fishing year 2012. Subsequently,
the Council expected to finalize GOM cod catch recommendations to NMFS
for inclusion in the FW47 rulemaking.
However, as the preliminary GOM cod assessment results became
available, the Council grew concerned about the assessment as well as
the potentially low catch levels that appeared to be required for the
2012 fishing year. It was at this point that NMFS began a detailed
examination of potential options for the fishing year and concurrently
began meeting with the Council and stakeholders.
Flexibility To Reduce But Not Immediately End Overfishing
When the assessment results were finalized in late January 2012,
NMFS notified the Council, as required by section 304(e)(7) of the
Magnuson-Stevens Act, that the GOM cod rebuilding program is not making
adequate progress toward rebuilding the stock based on the new and
significantly revised scientific understanding of the stock's status.
Based on this determination and subsequent notification to the Council,
NMFS has determined the Secretary of Commerce (Secretary) may take
interim action for up to one year under section 304 (e)(6) of the
Magnuson-Stevens Act to reduce rather than end overfishing on GOM cod
while the Council revisits the rebuilding program. Measures to reduce
rather than end overfishing must, at a minimum, maintain the current
GOM cod stock size and preferably, should result in an increase in the
stock size. Further, the reduction in overfishing must be appreciable.
In addition, to invoke the flexibility of section 304(e)(6) of the
Magnuson-Stevens Act for fishing year 2012, the Council must be in the
process of revising the GOM cod rebuilding program for completion
within 2 years for implementation no later than May 1, 2014. The
Council has stated its intent to address the rebuilding needs and NMFS
anticipates collaborating with the Council on the development of stock-
rebuilding measures over the months to come.
The Secretary may implement emergency or interim measures for only
up to 1 year under the emergency action authority provided by section
305(c) of the Magnuson-Stevens Act. The Council is expected to develop
measures to end overfishing beginning with the 2013 fishing year, which
starts May 1, 2013.
Council Recommendation for Fishing Year 2012
Upon receiving the preliminary GOM cod assessment results in early
2012, the Council asked the SSC not to recommend an ABC in part due to
concerns about the assessment. Subsequently, the Council did not
recommend ABC or ACLs in FW 47 for GOM cod. Instead, the Council,
relying on the notification and flexibility measures previously
described, voted to request of NMFS that it implement an interim action
to reduce rather than end overfishing for fishing year 2012. In making
this request, the Council recommended that NMFS implement interim GOM
cod catch and recreational fishery management measures for the 2012
fishing year. The Council recommended three specific items to NMFS for
consideration in developing and implementing interim measures:
Setting a total GOM cod ACL in a 6,700 to 7,500 mt range;
Modifying the recreational management measures with
particular emphasis on reductions in the possession/bag limit and
minimum fish size to reduce discards; and,
Re-opening several existing closed areas: Nantucket
Lightship Closed Area year round, Closed Area I from 1 May 1-February
15, Closed Area II south of 41[deg]50' May 1 through February to
selective fishing gear, and a portion of the both the Western GOM
Closed Area and Cashes Ledge Closed Area year round.
Interim 2012 Fishing Measures
After considering the Council recommendations and public input from
outreach meetings, NMFS implements, through this interim action, the
following measures for the commercial and recreational GOM cod
fisheries for fishing year 2012. These measures, based on a total GOM
cod ACL of 6,700 mt, are expected to reduce overfishing. The assessment
found an F of 1.14 for 2010 and PDT-conducted analysis has projected an
F of 0.92 for 2011. The 6,700 mt catch limit established for this rule
is expected to produce an F of 0.879, or a reduction in F of 23 percent
from 2010 and 4 percent from 2011. Fishing under these measures in
fishing year 2012 is expected to increase spawning stock biomass by 19
percent, from 8,618 mt in 2012, to 10,235 mt in 2013.
As noted above, if overfishing were ended in 2012 based on an F
rate of 0.2, the ACL would be 1,313 mt, and the 2013 stock biomass
would increase to 11,463 mt. If the fishery were closed in fishing year
2012, the 2013 stock biomass would increase to 13,073. Under the
Council's recommended upper bound ACL of 7,500 mt for fishing year
2012, the 2013 stock biomass would increase to 9,564 mt, but the F rate
would increase to 1.031 (i.e., overfishing would not be reduced).
There are several compelling reasons why NMFS is implementing an
ACL of 6,700 mt as opposed to a higher or lower limit. Fishing at this
level is likely to reduce overfishing to an appreciable degree while
allowing meaningful mitigation of negative impacts for fishing year
2012 resulting from the reduced ACL while the Council develops
revisions to the GOM cod rebuilding program. Fishing at 6,700 mt in
fishing year 2012 is projected to allow growth in the GOM cod biomass
and should not significantly influence the fishing year 2013 catch
level. The magnitude of reduction needed for fishing year 2013 is so
substantial that it is unlikely that the 2013 ACL will be greater than
3,000 mt. This would be true even if the fishing year 2012 ACL were set
at a much lower level.
The 6,700 mt ACL is consistent with National Standard 8, which
requires fishing measures to minimize adverse economic impacts on
fishing communities while remaining consistent with conservation
requirements. Adopting a measure effectively eliminating the GOM cod
harvest for 2012 could permanently remove the smaller fishing
operations from the fishery, without a significant corresponding
benefit (e.g., in terms of increasing stock biomass). Setting the ACL
at this level is further justified as an equitable measure as it
recognizes that the need for more severe reductions of GOM cod fishing
mortality is not the result of a failure of the FMP or the fishing
industry in complying with FMP measures, but rather it is the result of
a sudden change in the understanding of the GOM cod stock status. In
light of this sudden change in the assessment, this fishing level is
particularly needed to help mitigate the negative economic impacts in
the transition year before more restrictive measures having more
substantial adverse impacts are necessary for the 2013 fishing year.
Rationale for the agency's decision not to adopt some
recommendations is
[[Page 19947]]
also provided within each following sub-section.
Annual Catch Limits (ACLs)
This action implements a total GOM cod ACL of 6,700 mt for fishing
year 2012. Normally, the sub-ACL allocations are derived from the ABC;
however, for the interim action no ABC has been set by the Council. To
determine sub-ACLs, NMFS calculated a proxy for ABC from the ACL of
6,700 mt. This results in a proxy ABC value of 7,066 mt. Under the
Council's procedures for setting ACLs, the ACL is set 5 percent lower
for commercial fisheries and 7 percent lower for the recreational
fishery to offset management uncertainty. However, instead of using the
FMP-established distribution percentages for calculating the sub-ACLs
from ABC, this action modifies the distribution percentages by reducing
State Waters and Other Sub-component catch levels, and shifting tonnage
from those sub-components to the commercial fishery. The revised sub-
sector ACLs are shown in Table 1.
Table 1--GOM Cod Fishing Year 2012 Sub-ACLs, in Metric Tons (mt)
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Interim sub-ACLs (mt)
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Total ACL Commercial fishery
----------------------------------------------------------- Recreational State Other sub-
Total Sectors Common pool waters component
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6,700 4,170 4,089 potential total, 3,618 81 2,215 253 62
sub-ACL, (471 as carryover).
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Consistent with the FMP, the recreational fishery sub-ACL was
calculated first. The remaining tonnage was apportioned across the four
commercial fishery sub-components: Sectors, Common Pool, State Waters,
and the Other Sub-component.
The adjustment in commercial catch levels was done to help ensure
that sector carryover, if maximized to 10 percent from fishing year
2011 and fully utilized in fishing year 2012, would not cause fishing
to increase above the projected fishing year 2011 level. Neither the
State Waters nor Other Sub-component categories were fully utilized in
fishing year 2010, nor are they projected to be fully harvested in
fishing year 2011. NMFS has moved tonnage from these two categories to
the Commercial (Sector and Common Pool) sub-ACLs to provide a buffer
for sector carryover from fishing year 2011. The catch from state
waters was approximately 250 mt, and catch attributed to the other sub-
component category was approximately 60 mt in fishing year 2010. It is
expected that these sub-sectors will harvest around that same amount in
fishing year 2011. NMFS has reduced the catch components for the two
categories from 468 to 253 mt (State Waters) and 234 to 62 mt (Other
Sub-component) and reapportioned the 387 mt derived from these
fisheries to the Total Commercial ACL. The Commercial ACL is then
subdivided to the sub-ACLs for the sector and the common pool
fisheries.
Incidental Catch Total Allowable Catches (TACs) and Allocations to
Special Management Programs
Incidental catch TACs are specified for certain stocks of concern
(i.e., stocks that are overfished or subject to overfishing) for common
pool vessels fishing in the special management programs (i.e., special
access programs and the Regular B Days-At-Sea (DAS) Program), in order
to limit the catch of these stocks in these programs. The Incidental
Catch TAC for each stock is based on the Common Pool sub-ACL and is
distributed to each special management program using a predetermined
formula specified in the implementing regulations for the FMP. Any
catch on a trip that ends on a Category B DAS (either Regular or
Reserve B DAS) is attributed to the Incidental Catch TAC for the
pertinent stock. Catch on a trip that starts under a Category B DAS and
then flips to a Category A DAS is attributed to the Common Pool sub-
ACL.
The incidental catch TAC for GOM cod is 1 percent of the common
pool sub-ACL. For fishing year 2012, the incidental catch TAC is 0.81
mt, and 100 percent of this incidental catch TAC is allocated to the
Regular B DAS Program.
Common Pool Trimester TACs
Beginning in fishing year 2012, Common Pool trimester TACs outlined
in Amendment 16 become effective. The Common Pool sub-ACL for each
stock will be divided into trimester TACs at the start of the fishing
year. The percentage of each sub-ACL allocated to each trimester was
determined in Amendment 16. The regulations require that once 90
percent of an applicable trimester TAC is caught, the area where 90
percent of the catch for the pertinent stock occurred will be closed.
The area closure will apply to all common pool vessels fishing with
gear capable of catching the pertinent stock. Any overages or underages
of the trimester TAC in Trimester 1 or Trimester 2 will be applied to
the next trimester (e.g., any remaining portion of the Trimester 1 TAC
will be added to the Trimester 2 TAC). Any overage of the total sub-ACL
will be deducted from the following fishing year's Common Pool sub-ACL
for that stock. Uncaught portions of the Trimester 3 TAC will not be
carried over into the following fishing year.
Table 2 contains the fishing year 2012 trimester TACs for GOM cod.
Table 2--Fishing Year 2012 GOM Cod Common Pool Trimester TACs
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Percentage of sub-ACL Allocated to Each Trimester 2012 Trimester TACs (mt)
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Trimester 1 Trimester 2 Trimester 3 Trimester 1 Trimester 2 Trimester 3
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27 36 37 22 29 30
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The fishing year 2012 sector rosters will not be finalized until
May 1, 2012. Therefore, the allocation of the Commercial ACL between
the Common Pool and Sector sub-ACLs for GOM cod may change due to
changes in the sector rosters. An updated Sector sub-ACL, Common Pool
sub-ACL, incidental catch TAC, and trimester TACs for GOM
[[Page 19948]]
cod will be published in a subsequent adjustment rule, if necessary,
based on the final fishing year 2012 sector rosters as of May 1, 2012.
Sector Carryover
NMFS weighed several options for addressing GOM cod sector
carryover. NMFS considered providing less than the 10-percent
carryover, as well as options that would have allowed carryover to
occur above and beyond the total fishery ACL. However, the only viable
options to ensure that the potential fishing year 2012 catch would not
increase overfishing in light of the new assessment were scenarios that
kept all potential catch, both sub-ACLs and carryover, within the total
fishery ACL of 6,700 mt. Allowing catch to exceed 6,700 mt could cause
overfishing to occur at levels equal to or higher than the overfishing
level in fishing year 2011. Thus, the potential fishing year 2011
sector carryover of 471 mt is being allowed in conjunction with the
Sector sub-ACL of 3,618 mt. The sub-ACL of 3,618 mt will be used to
calculate Sector Annual Catch Entitlement (ACE). Overall, this is an
83-mt reduction from the Sector sub-ACL of 3,701 mt discussed
publically at the February 10, 2012, GOM Cod Working Group meeting in
Portsmouth, NH. If the sector sub-ACL and full 10-percent carryover are
caught in fishing year 2012, the total sector catch will be 4,089 mt.
By constraining potential carryover catch within the total fishery ACL,
overfishing will be reduced in fishing year 2012 from 2011 levels. If
all recreational and commercial fishery components, including a
potential sector harvest of 4,089 mt (i.e., sub-ACL plus 10-percent
carryover) catch their full allocations, the total catch will be 6,700
mt under this apportionment scheme.
Consistent with the existing regulations, accountability measures
(AMs) for the State Waters and Other Sub-component sub-ACLs are
implemented only if the total ACL (i.e., 6,700 mt) is exceeded and the
State Waters and/or the Other Sub-component sub-ACLs are also exceeded.
If the State Waters and/or Other Sub-component sub-ACLs are exceeded
and the total ACL is not, no AMs are implemented.
Recreational Fishery Management Measures
As indicated in Table 1, the recreational sub-ACL for fishing year
2012 is 2,215 mt. NMFS is reducing the recreational GOM cod minimum
fish size from 24 to 19 inches (60.96 to 48.26 cm) and is reducing the
per-angler possession limit from 10 to 9 fish. Preliminary analysis
indicates that these measures will sufficiently reduce recreational
catch to ensure that the revised recreational sub-ACL of 2,215 mt will
not be exceeded in fishing year 2012. NMFS engaged the Council's
Recreational Advisory Panel (RAP) and recreational fishery stakeholders
during development of these measures in a public meeting held February
10, 2012, in Portsmouth, NH. These measures were supported for use by
the Council's RAP. Most stakeholders present at the meeting also
supported these measures for fishing year 2012.
It may seem counterintuitive that reducing the minimum fish size
will reduce total catch. The most recent stock assessment assumes that
all recreational discarded cod die--a discard mortality assumption of
100 percent. The reduction in minimum fish size is expected to increase
overall effort by a minor amount; however, analysis indicates that
anglers will likely have higher success in catching legal-sized fish
more quickly, so that there will theoretically be fewer discarded fish
within trips. There is also a lower average fish weight with the lower
minimum fish size that has some effect in reducing the total
recreational landings amount.
Anglers are reminded that the per-person limit is a possession
limit. The act of ``high-grading,'' or discarding previously captured
smaller fish for larger fish is strongly discouraged, as it would
undermine the management program.
Potential Changes to Recreational Measures in 6 Months
The interim measures implemented by this rule were developed
through a new analytical model. The theory of its operation is as
previously outlined and is sound. However, the model, its underlying
assumptions, and output have not yet been subject to the type of
rigorous review typically used before providing advice for management.
To be clear, this model is new, untested, and not yet peer-reviewed.
There exists some uncertainty about the effectiveness of the measures
produced, particularly if anglers ``high grade'' to keep larger cod.
The previously used approach for deriving recreational management
measures did not consider discard mortality of 100 percent. NMFS has
determined that using this new model in the limited, short-term context
of this interim rule is appropriate given the caveats discussed in this
preamble.
Prior to the expiration of this temporary rule, NMFS intends to
rigorously review the new model and will work to have some level of
external review of the model, the underlying assumptions, and the
output generated during the period between issuing these interim
measures and the renewal of interim measures after 180 days.
Recreational measures will be revisited once the model has been peer-
reviewed to ensure that the measures are effective in meeting the catch
reductions necessary for the 2012 fishing year (i.e., to constrain
catch within the recreational sub-ACL).
In addition, it is possible that NMFS will re-evaluate or otherwise
re-visit the 100-percent discard mortality assumption utilized in the
most recent assessment during the course of the 2012 fishing year. The
discard mortality assumption used in the assessment is also used to
monitor catch in the fishery. If the assumed discard mortality of
recreationally caught fish were to change from 100 percent to a lower
value, the effectiveness of a reduced minimum fish size could be less.
Based on these ongoing examinations, it is possible that NMFS may
need to include changes to recreational management measures when these
interim measures are extended after 180 days in October 2012. There are
two possible outcomes:
The modeling approach is valid and appropriate and the
discard mortality assumption is unchanged.
In this scenario, it is unlikely that any changes to the interim
recreational measures implemented by this rule would be necessary.
The model-generated advice is found to be inappropriate to
achieve the required reduction and/or the discard mortality assumption
is changed to a level less than 100 percent.
Under this scenario, it is likely that additional, more restrictive
measures would be necessary for the second half of the fishing year--
essentially for April 16-30, 2013, due to the GOM recreational cod
closure currently in place from November 1-April 15. This is the more
problematic scenario, as fishing will have already occurred for 6
months and more restrictive measures would be implemented mid-year.
NMFS anticipates working closely with the Council's RAP and the
recreational fishing industry in developing any mid-year changes to
reduce catch, should such measures become necessary. Such measures
would likely include at least some closure of the fishery in April
2013, and/or increases to minimum fish size, and/or reduction in
possession limits. There is also the potential for changes in our
understanding of GOM cod status. See the 6-month renewal of interim
measures section for additional detail.
[[Page 19949]]
Closed Areas
NMFS is not taking action at this time to re-open those closed
areas as requested by the Council. NMFS finds that there are several
compelling reasons for not modifying these closed areas through this
interim or other emergency action. While the agency did receive some
input supporting the Council's request, the majority of comments
received through correspondence and at the February 10, 2012, GOM Cod
Working Group meeting requested that NMFS leave in place the existing
closed areas.
The process for evaluating the biological impacts to fish stocks,
particularly GOM cod, as well as the habitat protection requirements
outlined in the Magnuson-Stevens Act, involves complex analyses. Such
analyses could not be completed in a thorough, deliberative, and
transparent manner in the time period NMFS had to develop and implement
the interim measures contained in this rule.
The Council continues to develop a comprehensive omnibus amendment
process to address the Essential Fish Habitat requirements of the
Magnuson-Stevens Act. This process is undertaking analysis that
contemplates modification of many of the closed areas. This process is
tentatively scheduled to be completed in 2013. In addition, the PDT
continues to discuss and analyze stock-level impacts of re-opening
closed areas. It is appropriate to examine potential changes to the
closed areas through these deliberative Council processes to ensure
that analysis to support any changes is both robust and conducted in a
transparent manner.
6-Month Renewal of Interim Measures
NMFS' interim authority is available for up to 180 days in an
initial action and may be extended up to an additional 186 days by a
subsequent rule. This system provides for a full year of interim
measures, when necessary. NMFS will renew interim measures in October
2012 to ensure coverage of the entire 2012 fishing year. We are
accepting comment on these initial interim measures for consideration
on the extension to be issued this fall.
It is expected that additional information regarding calendar and
fishing year 2011 catch will become available between now and the 6-
month renewal of this action. In addition, several concurrent processes
are underway to more closely examine components of the most recent GOM
stock assessment. These include the assumed discard mortality rate,
analysis of industry catch-per-unit-effort data, further development
and potential incorporation of Marine Recreational Information Program
data, and potentially other components of the assessment. Additional
recreational analysis may be conducted pending review of the modeling
approach used to develop measures for this rule. It is possible that
any one or several of these ongoing efforts may provide additional
information on the status of GOM cod and/or the appropriateness of the
measures being implemented by this initial set of interim measures.
NMFS will work closely with the Council, public, and interested parties
to openly discuss potential catch-level or management measure changes
necessary for the second half of fishing year 2012.
It is not possible to predict whether changes, either more liberal
or more constraining, may become necessary to reduce overfishing and/or
to ensure ACLs are not likely to be exceeded; however, as previously
stated, the current situation for GOM cod is highly unusual. We remain
committed to providing as much information as possible as quickly as
practical so that business and fishing-related operations can be
planned.
Justification for Interim Action
The Magnuson-Stevens Act authorizes the Secretary to act if (1) the
Secretary finds that an emergency involving a fishery exists; or (2)
the Secretary finds that interim measures are needed to reduce
overfishing in any fishery; or (3) if the Council finds one of those
factors exists and requests that the Secretary act. See section 305 of
the Magnuson-Stevens Act. Where such circumstances exist, the Secretary
may promulgate emergency rules or interim measures ``to address the
emergency or overfishing.'' 16 U.S.C. 1855(c)(1) and (2). The Secretary
has delegated this authority to NMFS. Further, NMFS has issued guidance
defining when ``an emergency'' involving a fishery exists. 62 FR 44421;
August 21, 1997. This guidance defines an emergency as a situation that
(1) arose from recent, unforeseen events, (2) presents a serious
conservation problem in the fishery, and (3) can be addressed through
interim emergency regulations for which the immediate benefits outweigh
the value of advance notice, public comment, and the deliberative
consideration of the impacts on participants to the same extent as
would be expected under the formal rulemaking process. Under the
statute and guidance, the rationale for issuing these emergency and
interim regulations is as follows:
The new GOM cod stock assessment indicates that the stock is
overfished, is subject to overfishing, and is not making adequate
progress toward the rebuilding objective. Neither NMFS nor the Council
could have foreseen the GOM cod stock assessment's recent findings,
because the previous stock assessment suggested that GOM cod was
recovering according to the schedule set out in a prior rebuilding
plan. The most recent stock assessment represents a significant and
unforeseen change in scientific understanding of the GOM cod stock, and
the final stock assessment did not become available to NMFS and the
Council until late January 2012.
Both NMFS and the Council agree with the stock assessment's
findings. Thus, both NMFS and the Council have determined that
overfishing is occurring on GOM cod. Further, based on this
information, the Council has found that interim measures are needed to
reduce overfishing in the GOM cod fishery, and has requested that NMFS
issue emergency regulations designed to reduce overfishing of GOM cod.
Accordingly, under the Magnuson-Stevens Act, NMFS, acting by delegation
for the Secretary under the previously outlined provisions, is issuing
emergency interim measures designed to address the emergency situation
concerning the overfishing of GOM cod.
Classification
The Acting Administrator, Northeast Region, NMFS, determined that
this interim rule is necessary for the conservation and management of
the GOM cod fishery and that it is consistent with the Magnuson-Stevens
Act and other applicable laws.
Pursuant to 5 U.S.C. 553(b)(B) and 553(d)(3), the Assistant
Administrator finds good cause to waive prior notice and an opportunity
for public comment on this action along with the 30-day delay in
effectiveness, as notice and comment and delayed effectiveness are
impracticable and contrary to the public interest. There has been
insufficient time to conduct notice-and-comment rulemaking for this
action, which is necessary due to recent, unforeseen events; namely,
the most recent GOM cod stock analysis indicates that despite the
management measures in place, GOM cod is currently overfished and
undergoing overfishing. This analysis, which came out in January 2012,
has complicated the timing and process for setting catch levels and
management measures that normally occurs. As a result of these changes,
NMFS has had to quickly conduct substantial and complex analyses to
develop rulemaking to ensure that measures to reduce overfishing would
be in place by
[[Page 19950]]
the start of the fishing year on May 1, 2012. These timing
complications were unavoidable. The immediate benefits of the interim
measures, implemented by this rule, the mitigation of substantial
negative economic impacts to fishery participants, associated
businesses, and coastal communities that depend on GOM cod-related
revenues, outweigh the value of formal advance notice and public
comment.
Though notice-and-comment rulemaking is not being conducted,
substantial outreach discussions have occurred with the Council,
public, and interested parties to explore what measures should be
included in this interim action. NMFS has shared a great deal of
information with these groups, and has received input on the interim
measures from a wide range of stakeholders and interested parties. NMFS
requests comment on these interim measures in anticipation of extending
the measures this fall to ensure management measures are in place for
the entire fishing year.
The normal process for establishing ACLs for GOM cod was
substantially impacted for the 2012 fishing year. In a typical process,
the Council receives new scientific information by October and
decisions on ACLs and any necessary management measures changes would
be voted on by the Council in November. By late December/early January
of the following year, the Council's recommendations are forwarded to
NMFS for rulemaking. The Council would typically forward with its
recommendation the comprehensive analyses necessary to satisfy all
applicable laws, including the National Environmental Policy Act
(NEPA). Notice-and-comment rulemaking would be conducted by NMFS
through the spring months and measures would be implemented for the May
1 start of the fishing year.
For the cycle leading into fishing year 2012, the Council and
public knew that a new stock assessment for GOM cod would be conducted
in December 2011. The Council acknowledged that the assessment could
differ from previous management advice and result in a wide range of
catch recommendations; thus, it recommended a range of ACLs and other
measures for NMFS' consideration in FW47 for implementation beginning
on May 1, 2012. The Council had intended to receive the new assessment
results in January 2012, evaluate this new information quickly, and
finalize its catch and management measures recommendations to NMFS for
the 2012 fishing year at its February 1, 2012, meeting. This schedule
would allow the Council to utilize the most recent stock assessment
information in its recommendation to NMFS.
As stated in the preamble of this rule, the new assessment markedly
changed the understanding of the GOM cod stock. It is overfished and
subject to overfishing, the rebuilding plan is not making adequate
progress, and the stock biomass is at a much lower level than
previously believed. The magnitude of change in our understanding of
the GOM cod stock was unforeseen. The previous assessment, conducted in
2008, indicated that the GOM cod stock was growing and expected to be
rebuilt by 2014. The new assessment directly contradicts those findings
and indicates rebuilding will not be achieved by 2014.
The GOM cod catch levels that would result from using the new
assessment information, if applied by the Council to end overfishing,
would result in very low catch levels for the 2012 fishing year. In
light of the substantially changed stock information, the magnitude of
negative economic impacts associated with very low catch levels, and a
number of assessment-related topics the Council would like to explore
further, the Council elected not to formally recommend a specific catch
level to NMFS for the 2012 GOM cod fishery. Instead, in understanding
that NMFS could utilize limited authority to reduce, but not end,
overfishing, in the interim while the Council revisits the GOM cod
rebuilding program design, the Council recommended a range of catch and
requested NMFS implement interim measures for the 2012 fishing year
based on these recommendations. This specific request to the Secretary
to act under section 305(c) of the Magnuson-Stevens Act is consistent
with NMFS policy guidelines for the use of emergency rules issued
August 21, 1997 (62 FR 44421), as it is a request from the Council to
address an emergency situation. Had the Council not taken such action,
it would have been compelled to recommend very low catch levels for the
2012 fishing year that in turn would have substantial negative economic
impacts to the fishery participants and coastal communities in New
England that rely on fishing-related revenues. The emergency, in the
context of the Council's request, is for NMFS to apply the interim
rulemaking provisions of section 305(c) to avoid the significant
negative economic impacts to fishery participants and communities that
would result from ending overfishing at the beginning of fishing year
2012 (i.e., May 1, 2012).
NMFS received the Council's recommended catch range of 6,700 to
7,500 mt at the February 1, 2012 meeting. NMFS began analyzing this
range along with recreational measures for consistency with the
requirement to reduce overfishing, and to determine which catch levels
would be appropriate within this range. In conjunction with the
Council, NMFS held a GOM Cod Working Group meeting on February 10,
2012, in Portsmouth, NH. This group was chaired by the Acting Assistant
Administrator for Fisheries. At this meeting, NMFS indicated that
fishing at a level higher than 6,700 mt would likely not reduce
overfishing on the GOM cod stock. NMFS discussed potential sub-ACLs
that would result from fishing at 6,700 mt for the year as well as
providing potential changes to the recreational management measures for
discussion, should this catch level eventually be implemented. Though
no formal recommendations were sought or provided, a great deal of
public input was received during this meeting and through
correspondence after the meeting. This input was very helpful for NMFS
as the interim measures were further developed.
The typical analytical process that is used to inform development
of catch and recreational measures spans from late August through late
December. Because of the introduction of new and substantially changed
GOM cod stock information, these analyses had to be conducted by NMFS
within a few weeks' time to ensure that rulemaking-related analyses and
development could be conducted and concluded in sufficient time for the
start of the fishing year (May 1). Though the work and discussion were
conducted as quickly as possible, it was not possible to do so in a
manner that provided sufficient time for notice-and-comment rulemaking.
NMFS is relying on the collaborative development process for the
measures within this interim rule to have provided a meaningful
opportunity to engage with the affected public prior to issuing interim
measures. Although this rule is becoming effective on May 1, based on
the emergency precipitating it, NMFS is allowing the public an
opportunity to comment on the measure for 60 days after the rule
becomes published. NMFS will address public comments, including any
necessary changes, before these interim measures are renewed in 6
months (October 2012).
Similarly, NMFS finds good cause under 5 U.S.C. 553(d)(3) to waive
the full 30-day delay in effectiveness for this rule, and to have it
become effective on May 1, 2012. That date is the beginning of the
fishing year for GOM cod. If this rule does not become
[[Page 19951]]
effective on May 1, 2012, then the previous ACL and AMs would remain in
effect, with the result that overfishing would not be reduced. These
measures would increase overfishing on the GOM cod stock and, as such,
are inconsistent with the Magnuson-Stevens Act, the stated intent of
the GOM cod rebuilding program, and the FMP. Moreover, failing to have
the rule effective on May 1, 2012, may lead to confusion in the fishing
community as to what regulations govern the harvest of GOM cod. Thus,
the 30-day delay is impracticable and contrary to the public interest,
and NMFS waives the requirement and makes this rule effective on May 1,
2012.
NMFS has consulted with the Office of Information and Regulatory
Affairs (OIRA) and due to the circumstances described above this action
is exempt from review under Executive Order 12866.
Under section 608 of the Regulatory Flexibility Act, an agency may
waive the requirement to perform a regulatory flexibility analysis for
a rule where the agency finds that the ``rule is being promulgated in
response to an emergency that makes compliance or timely compliance
with [the regulatory flexibility analysis requirements]
impracticable.'' 5 U.S.C. 608. As discussed in the preamble to this
interim rule, and as elaborated in this classification section, NMFS
takes this action to address an emergency situation in the GOM cod
fishery. Undertaking a regulatory flexibility analysis would delay this
action and put the GOM cod and any small businesses that depend on it
at further risk. Because the nature of this emergency requires
immediate action, NMFS finds that compliance with the Regulatory
Flexibility Act is impracticable. Thus, the requirements of the
Regulatory Flexibility Act are hereby waived.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: March 29, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
For the reasons stated in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.89,
0
a. Amend paragraph (b)(1) introductory text by removing the reference
``paragraph (b)(3)'' and adding ``paragraph (b)(5) in its place'';
0
b. Suspend paragraphs (b)(3), (c)(1)(i), and (c)(2)(i); and
0
c. Add new paragraphs (b)(5), (c)(1)(vi), and (c)(2)(vi) to read as
follows:
Sec. 648.89 Recreational and charter/party vessel restrictions.
(b) * * *
(5) GOM cod. Private recreational vessels and charter party vessels
described in paragraph (b)(1) of this section may not possess cod
smaller than 19 inches (48.26 cm) in total length when fishing in the
GOM Regulated Mesh Area specified under Sec. 648.80(a)(1).
* * * * *
(c) * * *
(1) * * *
(vi) Unless further restricted by the Seasonal GOM Cod Possession
Prohibition specified under paragraph (c)(1)(v) of this section, each
person on a private recreational vessel may possess no more than 9 cod
per day in, or harvested from, the EEZ.
* * * * *
(2) * * *
(vi) Unless further restricted by the Seasonal GOM Cod Possession
Prohibition specified in paragraph (c)(2)(v) of this section, each
person on a charter/party vessel may possess no more than 9 cod per
day.
* * * * *
[FR Doc. 2012-7972 Filed 4-2-12; 8:45 am]
BILLING CODE 3510-22-P