[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]



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 


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.

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     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.



    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)
                                --------------------------------   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.


    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 
    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]