[Federal Register Volume 77, Number 208 (Friday, October 26, 2012)]
[Rules and Regulations]
[Pages 65326-65329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26416]
=======================================================================
-----------------------------------------------------------------------
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; Rule Extension
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary rule; interim measures extended, and request for
comments.
-----------------------------------------------------------------------
SUMMARY: This rule extends interim Gulf of Maine Atlantic cod catch
limits and fishery management measures through the end of the 2012
fishing year (April 30, 2013). The need for the interim measures is
unchanged, which was to establish Gulf of Maine cod annual catch limits
and implement recreational management measures that will constrain
catch to the recreational sub-annual catch limit. The intended effect
of the interim measures is to reduce overfishing occurring on Gulf of
Maine cod in anticipation of further action to end overfishing in the
2013 fishing year.
DATES: The expiration date of the temporary rule published May 1, 2012
(77 FR 25623) is extended to April 30, 2013. Comments are accepted
through November 26, 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.
[[Page 65327]]
Mail: Submit written comments to John K. Bullard, 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 John Bullard, 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 Gulf
of Maine cod is also accessible via the Internet at http://www.nefsc.noaa.gov/groundfish.
FOR FURTHER INFORMATION CONTACT: Brett Alger, Fisheries Management
Specialist, phone: 978-675-2153.
SUPPLEMENTARY INFORMATION:
Background
As fully described in the initial interim rule implemented on May
1, 2012, (77 FR 25623), the final Gulf of Maine (GOM) cod assessment
results were finalized in late January 2012. At that time, NMFS
notified the New England Fishery Management Council (Council), as
required by section 304(e)(7) of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act), that the GOM
cod rebuilding program was not making adequate progress toward
rebuilding the stock, and that the Council must prepare an amendment
within 2 years to rebuild the GOM cod stock. As authorized at section
304(e)(6) of the Magnuson-Stevens Act, the Council requested the
Secretary of Commerce (Secretary) to implement interim measures to
reduce, rather than end, overfishing of GOM cod while the Council
developed a rebuilding plan. In response to the Council request and
acting on behalf of the Secretary under authority granted by section
305(c) of the Magnuson-Stevens Act, NMFS implemented an initial interim
rule May 1, 2012, to reduce rather than end overfishing on GOM cod
during fishing year (FY) 2012, with the intent to extend the initial
interim rule measures for the rest of FY 2012. However, the
effectiveness for such rules is limited in duration. Rules may be
issued for no more than 180 days with an extension of up to an
additional 186 days to provide 12 months of interim measures.
Therefore, this final interim rule extends the measures in the initial
interim rule. The initial interim rule provided detailed information on
how the interim measures are consistent with the authority provided by
the Magnuson-Stevens Act and applicable NMFS guidelines for issuing
interim measures. The background and authority-related information is
not repeated here.
This temporary final rule extends the interim GOM cod catch limits
and recreational management measures that were implemented on May 1,
2012. The initial interim measures expire on October 29, 2012;
therefore, it is necessary to extend the interim measures until April
30, 2013, so that catch limits and recreational management measures are
in place for the entire 2012 FY.
Eight comments were received on the initial interim rule. Responses
to those comments are found in the Comments and Responses section later
in this preamble.
Annual Catch Limits and Allocation
The initial interim rule implemented a GOM cod total annual catch
limit (ACL) of 6,700 mt that was divided among the various fishery
components (Table 1). The distribution of ACL between sectors and the
common pool was based on preliminary sector rosters in the initial
interim rule. Subsequently, there have been two modifications to the
original sector and common pool distribution based on final sector
rosters (June 25, 2012, 77 FR 37816) and carryover from FY 2011
(September 26, 2012, 77 FR 59132). While the total ACL of 6,700 mt has
remained unchanged, Table 1 highlights the revised allocations to
sectors and the common pool. This interim rule extends the allocations
in the most recent rule that published September 26, 2012.
Table 1--GOM Cod Allocations by Fishery (mt)
----------------------------------------------------------------------------------------------------------------
Sector
-------------------------------- Common Recreational State Other
Allocation Carryover pool waters
----------------------------------------------------------------------------------------------------------------
GOM Cod Interim Rule........... 3,618 471 81 2,215 253 62
Final Sector Rosters........... 3,619 471 80 2,215 253 62
FY 2011 Carryover.............. 3,619 467.2 80 2,215 253 62
----------------------------------------------------------------------------------------------------------------
Recreational Fishery Management Measures
The initial interim rule reduced the GOM cod recreational fishery
minimum fish size from 24 in (61.0 cm) to 19 in (48.3 cm) and
implemented a 9-fish bag limit (reduced from 10) to constrain catch to
the recreational sub-ACL of 2,215 mt. These measures were based on
analysis conducted by the Northeast Fisheries Science Center (NEFSC)
using a new, but preliminary modeling approach and analytical model.
Because of the uncertainty of the model and effectiveness of the
measures, NMFS highlighted these concerns in the initial interim rule
and outlined a plan to convene an external peer review of the model in
question prior to this extension. A subset of the New England and Mid-
Atlantic Fishery Management Councils' Science and Statistical
Committees (SSC) convened on September 7, 2012, in Woods Hole, MA, to
peer review the model and methods. The final SSC report found that the
modeling approach was technically sound and represented an improvement
over prior methods. Therefore, based on the findings of the peer review
and the final report, this interim final rule extends the recreational
measures through the end of FY 2012.
[[Page 65328]]
Comments and Responses
NMFS received eight comments during the comment period on the
initial interim rule, five from private citizens, one from the
Massachusetts Division of Marine Fisheries (DMF), and two from non-
governmental organizations (Earth Justice and Oceana). Three of the
comments from private citizens did not address measures of the rule
and, as such, no responses have been provided.
Comment 1: The individual commented on the cod catch of different
components of the recreational fishery and asked for additional
reporting requirements for large party/charter vessels.
Response: Vessel trip reports are submitted by all recreational
party/charter vessels to NMFS and the Marine Recreational Information
Program collects, analyzes, and reports recreational fishing data. This
interim rule was very limited in scope and duration for the purposes of
reducing overfishing for 1 year, and therefore, did not address the
larger issues and concerns about the sources of data that are needed to
make management decisions, or consider modifying reporting requirements
for the recreational fishery. The Council is the more appropriate forum
for examining these larger issues regarding fishery effort and catch
information by different components of the recreational fishery and to
determine appropriate management measures.
Comment 2: The individual requested a new stock assessment that
involves more input from members of the fishing industry.
Response: This comment does not directly pertain to the measures in
the interim rule. The NEFSC will be completing stock assessments for
Georges Bank (GB) and GOM cod in December 2012; these updates will
provide catch advice to the Council for FY 2013. The NEFSC also
recently hosted two workshops that included members of the fishing
industry; one that reviewed the estimates of cod discard mortality
rates and another that addressed the potential use of commercial catch
per unit effort information in upcoming cod stock assessments. Lastly,
the NEFSC has committed to side-by-side research with fishing industry
vessels and the NEFSC's research vessels in the future.
Comment 3: Earth Justice requested that NMFS reject a Council
request to allow partial access to the groundfish mortality closed
areas. They also asked that NMFS develop a mid-year report on the
interim catch levels and ongoing rebuilding efforts for GOM cod.
Response: NMFS denied the Council request to open closed areas in
the initial interim rule and does not change that decision in this
interim final rule. NMFS does not intend to complete a separate mid-
year report at this time because commercial and recreational catch
information is available (http://www.nero.noaa.gov/ro/fso/MultiMonReports.htm) and a comprehensive stock assessment is scheduled
to occur in December of this year. At the end of FY 2012, NMFS intends
to evaluate the commercial and recreational catch data and publish a
final report on fishery performance. As mentioned above, the NEFSC will
be completing a new GOM cod stock assessment which will provide insight
on rebuilding efforts and help determine future catch levels and
management measures for FY 2013.
Comment 4: The Massachusetts DMF and Oceana commented that there is
inadequate and inaccurate catch monitoring given the current coverage
rates of at-sea monitoring (25 percent), low catch limits for GOM cod,
and the inability to enforce full retention of all legal-sized fish on
unobserved trips.
Response: These comments align with a similar comment NMFS received
for the FY 2012 Sector Operations Plan Rule, which suggested that the
at-sea monitoring rate of 25 percent is inadequate. NMFS has
determined, based on current information and analysis, that for FY
2012, the prescribed level of at-sea monitoring coverage is likely to
provide reasonably accurate estimates of catch for sector vessels.
However, The Plan Development Team (PDT) for the Council's Groundfish
Oversight Committee and NMFS, are conducting an in depth examination
into the adequacy of at-sea monitoring in the sector program; NMFS will
reconsider the monitoring rate once this examination is complete.
Moreover, because of the limited scope and duration of this interim
rule, it is not appropriate or practicable to consider adjustments to
the at-sea monitoring program and coverage levels in the middle of the
fishing season. Resources for hiring, training, and allocating at-sea
monitors have been made for the full year. Adjusting at-sea monitoring
levels and protocol part way through the year has implications on
sector operations and catch monitoring which should be addressed more
fully in the Council process. Therefore, NMFS is attempting to address
these concerns for FY 2013 and beyond.
Classification
The Regional Administrator, Northeast Region, NMFS, determined that
this interim final 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 law.
Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator finds
good cause to waive the full 30-day delay in effectiveness for this
rule. This rule merely extends the rule currently in place for an
additional 6 months. The need for this extension was fully anticipated
and announced to the public in the initial interim rule published on
May 1, 2012. Accordingly, the entities affected by this rule and the
public have no need to be made aware of or adjust to this rule by
delaying its effectiveness for 30 days. The primary reason for delaying
the effectiveness of Federal regulations is not present, and,
therefore, such a delay would serve no public purposes. On the other
hand, it would be contrary to the public interest if this rule does not
become effective on October 29, 2012, because the previously
established ACL for FY 2012 of 8,551 mt would become effective, 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 October 29, 2012, may lead to confusion in the
fishing community as to what regulations govern the harvest of GOM cod.
For these reasons, there is good cause to waive the requirement for
delayed effectiveness. 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 and
classification section of initial interim rule, 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
[[Page 65329]]
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.
Authority: 16 U.S.C. 1801 et seq.
Dated: October 23, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
[FR Doc. 2012-26416 Filed 10-25-12; 8:45 am]
BILLING CODE 3510-22-P