[Federal Register Volume 77, Number 190 (Monday, October 1, 2012)]
[Proposed Rules]
[Pages 59883-59887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24160]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120710231-2473-01]
RIN 0648-BC33

Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Atlantic Sea Scallop Fishery; Proposed Emergency 

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

ACTION: Proposed rule; request for comments.


SUMMARY: NMFS proposes to partially exempt the scallop fishery from 
fishing year 2012-related Georges Bank yellowtail flounder 
accountability measures. This action is being proposed to respond to a 
request for emergency rulemaking from the New England Fishery 
Management Council (Council). This proposed action is intended to 
provide an explanation of how the partial exemption would function; 
outline how the proposed action satisfies Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) emergency 
rulemaking criteria; and to solicit public input on the proposed 

DATES: Comments must be received on or before October 31, 2012.

ADDRESSES: You may submit comments on this document, identified by 
``NOAA-NMFS-2012-0179,'' 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-2012-0179 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 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 draft environmental assessment (EA) prepared for this 
action by NMFS are available from John K. Bullard, Regional 
Administrator, 55 Great Republic Drive, Gloucester, MA 01930. The EA is 
accessible via the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Michael Ruccio, Fishery Policy 
Analyst, phone: 978-281-9104.



    In New England fisheries, catch limits are developed by the Council 
and recommended for implementation through rulemaking by NMFS. When 
established catch limits are exceeded, various accountability measures 
(AMs) are triggered. These AMs modify subsequent years' fishing 
opportunities to prevent future overages so that overfishing does not 
occur. Catch limits and AMs are both requirements of the Magnuson-
Stevens Act.
    Georges Bank (GB) yellowtail flounder is found on both sides of the 
international maritime border between the United States and Canada, the 
Hague Line, and is a U.S./Canada shared stock. The Council's process 
for developing the catch limit for GB yellowtail flounder is done in 
conjunction with Canada through a formal understanding between both 
countries (i.e., the U.S./Canada Resource Sharing Understanding, 
commonly referred to as ``the Understanding''). This Understanding 
provides a process for collaborative scientific stock assessments, as 
well as a management allocation framework for distributing catch 
allowances to both countries.
    The 2012 fishing year total catch limit for GB yellowtail flounder, 
recommended by the Council and

[[Page 59884]]

implemented by NMFS, for the U.S. fishery is 547.8 metric tons (mt). 
Within this catch limit, the groundfish fishery was allocated an 
individual fishery catch limit, called the sub-annual catch limit 
(ACL), of 217.7 mt; the scallop fishery's initial limit was 307.5 mt; 
and 22.6 mt were provided for the other sub-component fisheries. The 
other sub-component fisheries are those not targeting either groundfish 
or scallops but that incidentally catch GB yellowtail flounder, such as 
the summer flounder trawl fishery.
    During the April 25, 2012, Council meeting in Mystic, CT, members 
of the groundfish fishing industry expressed concern to the Council 
that the 2012 groundfish GB yellowtail flounder sub-ACL of 217.7 mt was 
too low. The concerned parties stated that the catch limit was so low 
that it would effectively prevent fishermen from targeting more 
abundant, healthy stocks such as haddock. Given this concern and 
indications that the scallop fishery sub-ACL for GB yellowtail flounder 
may be higher than needed by the scallop fishery in light of more 
current catch projections information, the Council requested that NMFS 
create a GB yellowtail flounder working group to explore the 
possibilities of increasing the amount of GB yellowtail sub-ACL 
allocated to the groundfish fishery. The request suggested that the 
working group include members from the Transboundary Management 
Guidance Committee (TMGC), Council Groundfish and Scallop Committees, 
and NMFS and Council staff. The Council requested that the working 
group revisit the FY 2012 sub-ACLs for the scallop and groundfish 
fisheries based on new information suggesting that the projections of 
GB yellowtail flounder catch in the scallop fishery were much higher 
than needed, and to consider modification of the U.S. and Canadian 
shares of GB yellowtail flounder established through the Understanding.
    In response to this request, NMFS formed a working group consistent 
with the Council's request. NMFS also invited the fishing industry, 
non-governmental organization representatives, and the general public 
to the working group meetings. The working group held teleconferences 
on May 11, 2012, and May 18, 2012, a 1-day workshop in New Bedford, MA, 
on May 23, 2012, and teleconferences on May 31, 2012, and June 15, 
2012. During these five meetings, the working group discussed a range 
of short-term and long-term measures for GB yellowtail flounder 
management, in addition to the Council requests made at its April 2012 
meeting. The working group recognized that the most effective short-
term tool to address the Council's request was to utilize existing 
regulatory authority to revise sub-ACLs allocated to the scallop and 
groundfish fisheries for GB yellowtail flounder. To determine the 
feasibility and magnitude of potential revisions of the scallop and 
groundfish sub-ACLs, the working group asked for updated projections by 
NMFS's Northeast Fisheries Science Center (NEFSC) of expected catch of 
GB yellowtail flounder in FY 2012 by the scallop fishery. In addition, 
the working group discussed the concept of exempting the scallop 
fishery from any scallop fishery sub-ACL revision AM if the sub-ACLs 
were revised based on the updated information.
    In addition to the working group meetings, the Council's Groundfish 
and Scallop Committees convened jointly on June 18, 2012, in Portland, 
ME, to discuss the Council's original requests and review the 
discussions from the working group. On that same date, the NEFSC 
provided revised projections of GB yellowtail flounder catch by the 
scallop fishery ranging from 47.6 mt to 174.3 mt, with a median 
projection of 105.2 mt. Using these new projections, the Joint 
Committee recommended to the Council that it request that NMFS use its 
current regulatory authority to reduce the scallop GB yellowtail 
flounder sub-ACL to 90 percent of the 174.3 mt high-end estimate 
provide by NEFSC (i.e., 156.9 mt), and increase the groundfish GB 
yellowtail flounder sub-ACL by the amount of this reduction. The 
recommendation was to decrease the scallop sub-ACL from 307.5 mt to 
156.9 mt and increase the groundfish sub-ACL from 217.7 mt to 368.3 mt. 
The Joint Committee also recommended that the Council request emergency 
action to relieve the scallop fishery from any fishing year 2012 AM 
triggered by GB yellowtail flounder catch less than 307.5 mt that would 
otherwise be required under the existing regulations. At its June 
Council meeting, the Council adopted the Joint Committee 
recommendations and forwarded them to NMFS for evaluation and 
    On July 16, 2012, NMFS used its existing authority to revise the 
fishing year 2012 GB yellowtail flounder sub-ACLs for the groundfish 
and scallop fisheries, consistent with the Council's request. The other 
sub-component sub-ACL was not revised, and remains 22.6 mt.

             Table 1--Initial and Revised FY 2012 GB Yellowtail Flounder Catch Limits in Metric Tons
                                                                                                   Other sub-
                                              Total ACL        Groundfish      Scallop fishery   component sub-
                                                             fishery sub-ACL       sub-ACL             ACL
Initial.................................             547.8             217.7             307.5              22.6
Revised.................................             547.8             368.3             156.9              22.6

    This adjustment increased the groundfish sub-ACL to 368.3 mt and 
decreased the scallop sub-ACL to 156.9 mt. NMFS announced, in 
conjunction with the sub-ACL revision, its intention to propose the 
Council-recommended AM exemption for the scallop fishery.

Proposed Action

    The current regulatory language allows NMFS to evaluate GB 
yellowtail flounder catch in the scallop fishery relative to the 
revised sub-ACL of 156.9 mt. Thus, if no action is taken, the scallop 
fishery could be subject to an AM if the FY 2012 catch of GB yellowtail 
flounder in the scallop fishery exceeds 156.9 mt. The AM for the 
scallop fishery can become necessary under two scenarios: If the 
scallop fishery exceeds its GB yellowtail flounder sub-ACL by more than 
50 percent, or if the scallop sub-ACL is exceeded by 1 or more pounds 
and the total GB yellowtail flounder fishery ACL is also exceeded by 1 
or more pounds. The AM for the scallop fishery is found in 50 CFR 
Section 648.64. Generally, the scallop fishery AM for GB yellowtail 
flounder implements time and area closures based on the magnitude of 
the overage to decrease fishery access in a subsequent fishing year.
    This proposed emergency action, requested by the Council, would 
exempt the Atlantic sea scallop fishery from any AM specified for catch 
of GB yellowtail flounder exceeding the revised scallop fishery sub-ACL 
of 156.9 mt up to the

[[Page 59885]]

initial sub-ACL level of 307.5 mt. Any GB yellowtail flounder overage 
in the scallop fishery above 307.5 mt would result in an AM being 
implemented. The following table summarizes the actions proposed to be 
implemented by NMFS through this emergency rulemaking.

 Table 2--Proposed FY 2012 Scallop Fishery GB Yellowtail Flounder Catch
                       and Accountability Actions
   Yellowtail catch in the                             Accountability
       scallop fishery             Description             action
Less than156.9 mt...........  Below revised sub-    None.
Greater than 156.9 mt but     Exceeds revised sub-  None under proposed
 below 307.5 mt.               ACL (post             exemption.
                               transfer); below
                               initial sub-ACL.
Greater than 307.5 mt.......  Exceeds initial sub-  Implemented, as
                               ACL.                  required by

    Accountability at the fishery level remains unchanged by this 
proposed action. Any overage of the 547.8-mt fishery level ACL is to be 
repaid pound-for-pound in a subsequent fishing year. Overages at the 
fishery level ACL could be the result of excess taken by the 
groundfish, scallop, other sub-component fisheries, or some combination 
of those three.

Authority for Proposed Action, Including Emergency Action Justification

    Section 305 of the Magnuson-Stevens Act authorizes the Secretary of 
Commerce (Secretary) to act if: (1) The Secretary finds that an 
emergency involving a fishery exists; (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. 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. NMFS policy guidelines further provide that 
emergency action is justified for certain situations where emergency 
action would prevent significant direct economic loss, or to preserve a 
significant economic opportunity that otherwise might be foregone. 
Under the statute and guidance, the rationale for issuing these 
emergency and interim regulations is as follows:
    First, the magnitude of the recently revised projections of GB 
yellowtail flounder catch by the scallop fishery, coupled with the 
timing of and need for this revised projection, so relatively early in 
the scallop and groundfish FYs, meet the threshold criterion that the 
need for the emergency arises from recent, unforeseen events. The 
request by the Council to revise the groundfish and scallop sub-ACLs 
early in the fishing year, based on projections for Georges Bank 
yellowtail flounder catch in the scallop fishery, was not foreseeable. 
While the authority for making such revisions was granted to NMFS 
through Framework Adjustment 47 to the NE Multispecies FMP, the 
revision process was designed with the expectation that revisions to 
the sub-ACLs would occur late in the fishing season when current 
fishing year catch data are available for analysis. Second, given the 
magnitude of the reduction in the scallop sub-ACL at this point in the 
scallop fishery, and the inherent uncertainties in making such 
projections, which creates a much lower threshold for triggering AMs, 
it is necessary, to ensure fairness and equity in the consequences of 
this revision, that the scallop fishery not be unduly penalized for 
exceeding a sub-ACL revised midway through the fishing year. The 
Council's request to provide a partial exemption from the Georges Bank 
yellowtail flounder AM to the scallop fishery was also unforeseen. 
There are no regulatory provisions that provide any amount of exemption 
from AMs following revision of the sub-ACLs; thus, the Council's 
request was unexpected but understandable given the desire to maintain 
equitability between fisheries. The emergency will also serve to 
enhance consistency with National Standard 4 of the Magnuson-Stevens 
Act regarding requirements for fishing measures to be fair and 
equitable, and National Standard 8 regarding the requirement to 
minimize adverse economic impacts. The third criterion relating to 
justifying an emergency without prior public comment is not relevant 
because this emergency rule provides prior notice and opportunity for 
public comment. It should be noted, however, that the Council process 
would likely be unable to develop and implement the proposed action on 
a timeframe that would provide the partial exemption. For this reason, 
emergency action provides a timely response to ensure adverse economic 
impacts are avoided.
    It is important to understand that the revision of sub-ACLs, while 
contemplated within the authority provided by Framework Adjustment 47 
to the NE Multispecies FMP, occurred early within the fishing year 
because of new projections of scallop catch based on updated 2011 
observer and dealer data. The regulatory language for the revision 
process references examining catch data by January 15 of the fishing 
year. Framework 47 presumably envisioned an examination of 6-8 months 
of current fishing year catch data before adjusting the sub-ACLs, as 
necessary, with any revision based on the best available catch 
projection information for GB yellowtail flounder catch in the scallop 
fishery. This year, the sub-ACL adjustment was completed using the best 
available catch projection information, rather than 6-8 months of 
actual catch data in the scallop fishery. This means that there are 
more uncertainties associated with how accurate the actual catch will 
be over the course of the fishing year than there may have been if this 
revision was made much later in the fishing year. The projection 
indicates that the scallop fishery is expected to catch no less than 
47.6 mt (low-end estimate) and no more than 174.3 mt (high-end 
estimate) of GB yellowtail flounder in the 2012 fishing year. The 
revised sub-ACLs are based on the high end of this projected range, 
which helps mitigate some of the uncertainties about the potential 
scallop harvest by basing the revisions on the projected ``worst case 
scenario'' for catch. Nevertheless, as more fully explained below, the 
inherent uncertainties associated with revising the scallop fishery 
sub-ACL for GB yellowtail flounder this early in the

[[Page 59886]]

fishing year is a major justification to adjust the triggering of AMs 
for the scallop fishery.
    The scallop fishery is operating in a somewhat different manner 
this fishing year. The GB access areas are operating without a 
yellowtail flounder closure cap for the first time. The scallop fleet 
continues to use a proactive, near real-time system for avoiding 
yellowtail flounder; however, the negative implications for exceeding 
the catch projections and ultimately the sub-ACL are substantial. 
Although the scallop sub-ACL reflects a high-end projection of what is 
expected to be caught in fishing year 2012, the early adjustment of the 
sub-ACLs paired with the different operational constraints in the 
scallop fishery this year increase the uncertainty associated with the 
sub-ACL adjustment based on catch projections. Given these 
uncertainties, the scallop fleet may have operated differently in the 
first part of the fishing year had they known the sub-ACL would be so 
drastically modified. In order to ensure that both fleets may operate 
reasonably within the constraints of the total GB yellowtail flounder 
ACL, NMFS proposes to exempt the scallop fishery from accountability 
below the initial 307.5 mt level, as previously stated. This is 
necessary to ensure the scallop fishery is not penalized by the 
unanticipated early-season, large revision of the sub-ACLs, which 
occurred after the start of the fishing year.


    The Administrator, Northeast Region, NMFS, determined that this 
emergency proposed rule is necessary for the conservation and 
management of the GB yellowtail flounder fishery and that it is 
consistent with the Magnuson-Stevens Act and other applicable laws, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed emergency rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities.
    In 2010 there were 347 permitted scallop vessels in the limited 
access category and 730 in the general category. Mean annual gross 
sales for vessels in the limited access category are just over $1 
million, while for the general category this figure is slightly under 
    The small business size standard threshold for both shell and 
finfish fishing is gross sales above $4.0 million annually (13 CFR 
Section 121.201). Below this threshold, the SBA considers fishing 
businesses to be small entities. No individual vessel was estimated to 
gross more than $3 million in any one fishing year from 1994 to 2010; 
therefore, all of the vessels in the scallop fishery are considered 
small business entities.
    This action, if implemented, effectively changes the point at which 
GB yellowtail flounder accountability measures are triggered for the 
scallop fishery. The AM is required by both the Scallop FMP and the 
Magnuson-Stevens Act, and must minimize the impact on small regulated 
entities to the extent practicable, while ensuring compliance with the 
regulatory and statutory requirements for fishery accountability.
    Previous analysis conducted for Framework Adjustment 47 to the NE 
Multispecies FMP, which is available on the Council's Web site (http://www.nefmc.org/nemulti/index.html), concluded that less than 1 percent 
of total scallop fishery revenues came from areas potentially affected 
by the GB yellowtail flounder AM. Furthermore, the analysis concluded 
that a significant effect on profitability is likely to be minimal if 
the scallop fishery AM were triggered. Because all participating 
scallop vessels are deemed to be small regulated entities, there would 
be no disproportionate impacts.
    As compared to the status quo, the proposed action reduces the 
likelihood that the scallop fishery GB yellowtail flounder AM will be 
triggered. Under the proposed action, the scallop fishery AM would be 
implemented under the following circumstances: (1) If the total ACL is 
not exceeded but the scallop fishery catch of GB yellowtail flounder 
exceeded 461.3 mt (i.e., exceeded 307.5 mt by 50 percent); or (2) if 
the total GB yellowtail flounder ACL is exceeded and the scallop 
fishery catch exceeds 307.5 mt. By comparison, the status quo would 
trigger the AM if: (1) The total GB yellowtail flounder ACL is not 
exceeded but the scallop fishery catch exceeds 235.0 mt (i.e., 50 
percent above the 156.7 mt revised sub-ACL); or if the total fishery 
ACL is exceeded and the revised scallop sub-ACL of 156.7 is exceeded.
    The potential impact to the groundfish fishery is the same under 
both the status quo and the proposed action. If the total fishery ACL 
is exceeded, a pound-for-pound repayment of the overage is required in 
a subsequent fishing year. The overage repayment provision is required 
by the NE Multispecies FMP, consistent with the Magnuson-Stevens Act 
and the U.S./Canada Resource Sharing Understanding.
    The proposed action will reduce the likelihood that the scallop 
fishery AM may be triggered. The prior analysis concluded that the 
potential economic impacts of the scallop fishery AM, if triggered, are 
unlikely to be significant to the small entities of the scallop 
fishery. The potential impacts of the proposed action to the groundfish 
are the same as the status quo and, if necessary, minimized to the 
extent practicable consistent with the applicable requirements for the 
fishery. Because the proposed rule would reduce the likelihood of 
triggering the scallop fishery AM and would not increase the likelihood 
of adverse impacts to the groundfish fishery, it would not have a 
significant impact on a substantial number of small entities. As a 
result, an initial regulatory flexibility analysis is not required and 
none has been prepared.

 List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: September 25, 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.

    For the reasons stated in the preamble, 50 CFR part 648 is proposed 
to be amended as follows:


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

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

    2. In Sec.  648.90,
    a. Suspend paragraph (a)(5)(iv); and
    b. Add new paragraphs (a)(5)(v)(A) through (D) to read as follows:

Sec.  648.90  NE multispecies assessment, framework procedures and 
specifications, and flexible area action system.

* * * * *
    (a)* * *
    (5)* * *
    (v) AMs if the sub-ACL for the Atlantic sea scallop fishery is 
exceeded. At the end of the Atlantic sea scallop fishing year, NMFS 
shall evaluate Atlantic sea scallop fishery catch to determine 
    (A) For stocks with established sub-ACLs, the determination will be 
made whether the Atlantic sea scallop fishery catch has exceeded the 
fishery sub-ACL.

[[Page 59887]]

    (B) For fishing year 2012, the Georges Bank yellowtail flounder 
sub-ACL does not apply. Rather, the determination will be to evaluate 
if the Atlantic sea scallop fishery catch of Georges Bank yellowtail 
flounder exceeds 307.5 mt.
    (C) On January 15, or when information is available to make an 
accurate projection, NMFS will also determine whether the overall ACL 
for each stock allocated to the Atlantic sea scallop fishery has been 
exceeded. When evaluating whether the overall ACL has been exceeded, 
NMFS will add the maximum carryover available to sectors, as specified 
at Sec.  648.87(b)(1)(i)(C), to the estimate of total catch for the 
pertinent stock.
    (D) If catch by scallop vessels exceeds the pertinent sub-ACL 
specified in paragraph (a)(4)(iii)(C) of this section, or 307.5 mt for 
Georges Bank yellowtail flounder, by 50 percent or more, or if scallop 
catch exceeds the scallop fishery sub-ACL, or 307.5 mt for Georges Bank 
yellowtail flounder, and the overall ACL for that stock is also 
exceeded, then the applicable scallop fishery AM shall take effect, as 
specified in Sec.  648.64 of the Atlantic sea scallop regulations.
* * * * *
[FR Doc. 2012-24160 Filed 9-28-12; 8:45 am]