[Federal Register Volume 77, Number 187 (Wednesday, September 26, 2012)]
[Rules and Regulations]
[Pages 59132-59136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23734]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120109034-2153-02]
RIN 0648-XC168

Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Fishing Year 2012 Days-at-Sea Adjustment for 
Common Pool Fishery; Announcement of Fishing Year 2011 Sector Annual 
Catch Entitlement Carryover

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

ACTION: Temporary rule.


SUMMARY: NMFS adjusts the differential days-at-sea (DAS) rate for 
common pool vessels for fishing year (FY) 2012 due to overages of FY 
2011 catch levels. This measure will help prevent FY 2012 catch levels 
from being exceeded. NMFS also announces the final amount of unused FY 
2011 annual catch entitlement (ACE) carryover available to each sector 
in FY 2012.

DATES: Effective September 26, 2012, through April 30, 2013.

FOR FURTHER INFORMATION CONTACT: Brett Alger, Fisheries Management 
Specialist, (978) 675-2153.


FY 2012 Differential DAS Counting for Common Pool Vessels

    Amendment 16 to the Northeast (NE) Multispecies Fishery Management 
Plan requires that a catch overage of a sub-annual catch limit (sub-
ACL) or total ACL, triggers an accountability measure (AM) for common 
pool vessels in the distinct Differential DAS Area where each stock is 
predominantly caught. The AM is a differential DAS adjustment to all 
Category A DAS used by common pool vessels, and is applied to the time 
spent in the applicable DAS counting area where a vessel fishes. The 
AMs account for the percentage by which the sub-ACL or total ACL is 
exceeded, and are meant to prevent overages of future catch levels. For 
example, an overage of the Atlantic halibut sub-ACL requires a 
differential DAS rate adjustment to be applied to common pool vessels 
fishing in the area(s) that past catch information shows the majority 
of the Atlantic halibut is caught. The AM regulation at 50 CFR 
648.82(n) also requires applying an additional differential DAS 
counting factor in an area for a specific stock if the sub-ACL is 
exceeded again in a subsequent year, to account for both year's 
overages. For example, if the sub-ACL for Georges Bank (GB) winter 
flounder was exceeded in FY 2010 by 60 percent and triggered a 
differential DAS adjustment (1.6) in FY 2011, and the sub-ACL was 
exceeded again in FY 2011 by 30 percent (requiring a 1.3 differential), 
then in FY 2012, a differential DAS rate of 2.1 (1.6 x 1.3) would be 
    Final FY 2011 sector and common pool catch information became 
available in June 2012. This information showed that in the commercial 
groundfish fishery (sector and common pool only), the sub-ACL for 
Atlantic halibut was exceeded by 29 percent. This requires NMFS to 
implement a differential DAS rate of 1.3 in the Offshore Gulf of Maine 
(GOM) and the Inshore GB Differential DAS areas as an AM for Atlantic 
    Final FY 2011 sector and common pool catch information shows that 
the sub-ACL for northern windowpane flounder was exceeded by 42 
percent. The northern windowpane flounder overage occurred despite a 
differential DAS rate of 1.3 applied in FY 2011 due to an overage in FY 
2010 of 27 percent. As a result, NMFS is required to implement a 
differential DAS rate of 1.8 (1.3 x 1.4) in the Offshore GB 
Differential DAS Area as a result of the consecutive FY 2010 and 2011 
overages of northern windowpane flounder.
    In addition to the commercial groundfish fishery information, NMFS 
has preliminary FY 2011 catch estimates for other components of the 
groundfish fishery, i.e., exempted fisheries, non-groundfish vessels 
(e.g., scallop vessels), and state-only permitted vessels. Based on 
these preliminary estimates of the other components of the groundfish 
fishery and final FY 2011 sector and common pool catch information, the 
total ACL for southern windowpane flounder was exceeded by 135 percent. 
This overage also requires a differential DAS adjustment for common 
pool vessels fishing in the area where the stock is predominantly 
caught. Therefore, a differential DAS rate of 2.4 will be applied to 
common pool vessels fishing in the Southern New England (SNE)/Mid-
Atlantic (MA) Differential DAS Area as an AM for southern windowpane 
flounder. Further adjustments to the common pool differential DAS rate 
are possible based on final 2011 catch information for other components 
of the groundfish fishery.

[[Page 59133]]

FY 2011 Sector ACE Carryover

    The regulations allow each sector to carry over into the following 
fishing year up to 10 percent of its initial allocation for all but one 
groundfish stock. ACE for GB yellowtail flounder cannot be carried over 
because catch levels for this stock are set each year by the U.S./
Canada Resource Sharing Understanding. In addition, although the New 
Hampshire and Maine Permit Banks are allocated ACE for each FY, they 
are not eligible to carry over any amount of uncaught ACE. The 
following tables show the carryover for each Sector for FY 2011 based 
on final catch data.

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    This action is authorized by 50 CFR part 648 and is exempt from 
review under Executive Order 12866.
    The Assistant Administrator for Fisheries, NOAA (AA) finds good 
cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive prior notice and 
opportunity for public comment on these in-season DAS Differential and 
ACE carryover adjustments. Delay in the adjustments' effectiveness is 
impracticable, unnecessary, and contrary to the public interest and 
could hamper a fisherman's ability to make business decisions. Plus, 
the public has already been provided with an opportunity for notice and 
comment on potential adjustments, including the basis for such 
    Notice and comment are impracticable, unnecessary, and contrary to 
the public interest. A delay implementing adjustments based on this 
information would prolong the time period that the fishery would be 
operating under a less restrictive differential DAS rate and could 
subject the vessels to FY 2012 overages, which would require even more 
restrictive AMs next year. Also, ACE carryover amounts may increase 
fishing opportunities available to each sector for FY 2012 or affect a 
sector's trading decisions for available ACE.
    Common pool fishermen and sectors adjust their fishing plans based 
on available DAS and ACE. Delaying the effectiveness of the DAS 
Differential adjustments could hamper a common pool fisherman's ability 
to make effective business decisions based on the number of DAS 
available to them. Likewise, a delay in the ACE carryover adjustments 
for sectors could disrupt sector operations and prevent sectors from 
planning for the fishing year based on the amount of ACE available to 
them in FY 2012. FY 2011 ACE carryover may increase fishing 
opportunities available to each sector in FY 2012, especially if a 
sector has a small allocation for particular stocks. A delay in this 
action could result in foregone fishing opportunities during summer 
months when weather conditions are generally better. Because ACE may be 
traded between sectors, a delay in this action could also affect the 
ACE available to the market for trading, to the economic detriment of 
the fishery.
    Lastly, a delay for prior opportunity for public comments is 
unnecessary and impracticable because the public was provided the 
opportunity to comment on the possibility of the anticipated 
adjustments, including the basis for such adjustments. Both the 
Framework Adjustment 47 final rule and the FY 2012 adjustment rule 
based on final sector rosters indicated that future adjustments may be 
made based on updated FY 2011 catch information and final sector 
rosters. Additionally, the Amendment 16 final rule indicated that 
differential DAS may be adjusted as an AM for the Common Pool. NMFS is 
making these adjustments now because FY 2011 catch information and 
sector final rosters only recently became available.
    For the same reasons stated above, the AA finds good cause under 5 
U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness so that 
this final rule may become effective upon filing. Waiving this delay in 
effectiveness will help fishermen avoid exceeding FY 2012 catch limits. 
Finally, implementing this exemption as early as possible will provide 
fishermen and sectors the flexibility to strategize and adjust their 
plans for the remainder of the fishing year.

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

    Dated: September 21, 2012.
Lindsay Fullenkamp,
Acting Deputy Director, Office of Sustainable Fisheries, National 
Marine Fisheries Service.
[FR Doc. 2012-23734 Filed 9-25-12; 8:45 am]