[Federal Register Volume 77, Number 84 (Tuesday, May 1, 2012)]
[Rules and Regulations]
[Pages 25623-25630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10528]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120316196-2422-02]
RIN 0648-BB89

Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Interim Action; Republication

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

ACTION: Temporary rule; interim measures; request for comments.


SUMMARY: NMFS is republishing a temporary rule that implements interim 
Gulf of Maine (GOM) Atlantic cod (cod) management measures for the 2012 
fishing year. This republication is necessary to ensure the effective 
date for the rule's measures are consistent with NMFS's interim rule 
authority provided by the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). This rule is unchanged from the 
rule published on April 3, 2012, and subsequently withdrawn. The need 
of the interim measures is unchanged by the withdrawal and 
republication: 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 

DATES: Effective May 1, 2012, until October 29, 2012; comments must be 
received by May 31, 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.


Explanation of Withdrawal and Republication of GOM Cod Interim Measures

    NMFS published the information that follows in this rule's 
preamble, classification, and amendatory language on April 3, 2012 (77 
FR 19944), in the Federal Register. The interim rule measures were 
issued under authority of section 305(c) of the Magnuson-Stevens Act 
and were designed to become effective on May 1, 2012, the first day of 
the 2012 GOM cod fishing year. The initially published interim rule did 
specify that the measures were to become effective on May 1, 2012, and 
were to be in effect for 180 days from the date of publication (April 
3-September 30, 2012). The interim rule was published in advance of the 
start of the fishing year to afford advanced notice of the measures to 
fishery participants and the interested public.
    However, the effective date specified in the April 3, 2012 
published interim rule is inconsistent with NMFS's authority provided 
by section 305(c) of the Magnuson-Stevens Act, which specifies that 
interim rules cannot be effective for more than 180 days from the date 
the rule publishes in the Federal Register. However, the rule was 
intended to be effective for 180 days from May 1, 2012, not April 3, 
2012. Because the language pertaining to effective dates for interim 
rules is specific in the Magnuson-Stevens Act, NMFS could not issue a 
correction notice to change the effective date and reset the 180-day 
effective period.
    To ensure that the interim rule measures effective date (May 1, 
2012) and duration (180 days) is both correct and consistent with the 
authority provided to NMFS by the Magnuson-Stevens Act, we withdrew the 
rule published on April 3, 2012 (77 FR 19944), and are now republishing 
the rule in the Federal Register, with minimal changes to explain the 
withdrawal and republication. For clarity, the language, descriptions, 
measures, and rules being implemented by this rule are the same as 
those previously published and withdrawn. The language that follows 
this section is unchanged from the language contained in the previously 
published and withdrawn rule.

Plain Language Executive Summary

    A recent assessment of the amount of cod found in the GOM was 
finalized in January 2012. The results are

[[Page 25624]]

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, 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.


    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.

[[Page 25625]]

    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 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

[[Page 25626]]

the F rate would increase to 1.031 (i.e., overfishing would not be 
    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 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)
                                                                                   Interim sub-ACLs (mt)
            Total ACL                                      Commercial fishery
                                  --------------------------------------------------------------------   Recreational     State waters      Other sub-
                                        Total                    Sectors                Common pool                                         component
6,700............................           4,170   4,089 potential total...........              81            2,215              253               62
                                                    3,618 sub-ACL...................
                                                    (471 as carryover)..............

    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 

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-
    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

[[Page 25627]]

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
                          Percentage of sub-ACL allocated to each trimester                                         2012 Trimester TACs (mt)
                            Trimester 1                                Trimester 2      Trimester 3      Trimester 1      Trimester 2      Trimester 3
27.................................................................              36               37               22               29               30

    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 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 
    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.,

[[Page 25628]]

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.

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 

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

[[Page 25629]]

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.


    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 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

[[Page 25630]]

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 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, 
    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: April 26, 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:


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

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

2. In Sec.  648.89,
a. Amend paragraph (b)(1) introductory text by removing the reference 
``paragraph (b)(3)'' and adding ``paragraph (b)(5)'' in its place;
b. Suspend paragraphs (b)(3), (c)(1)(i), and (c)(2)(i); and
c. Add paragraphs (b)(5), (c)(1)(vi), and (c)(2)(vi) to read as 

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 
* * * * *
[FR Doc. 2012-10528 Filed 4-30-12; 8:45 am]