[Federal Register Volume 70, Number 123 (Tuesday, June 28, 2005)]
[Rules and Regulations]
[Pages 37057-37058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12746]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050314072-5126-02; I.D. 062305E]


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; 2005 Trip Authorization for Closed Area II 
Yellowtail Flounder Special Access Program

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

ACTION: Temporary rule; notification of maximum number of trips.

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SUMMARY: NMFS announces that no trips are authorized into the Closed 
Area (CA) II Yellowtail Flounder Special Access Program (SAP) for the 
2005 fishing year. The Administrator, Northeast Region, NMFS (Regional 
Administrator) has determined that the available catch of Georges Bank 
(GB) yellowtail flounder is insufficient to support a minimum level of 
fishing activity within the CA II Yellowtail Flounder SAP for the 2005 
fishing year. This action is intended to help achieve optimum yield 
(OY) in the fishery by allowing Northeast (NE) multispecies days-at-sea 
(DAS) vessels to achieve, but not exceed, the GB yellowtail flounder 
total allowable catch (TAC) specified for the Eastern U.S./Canada Area 
throughout the 2005 fishing year, in accordance with the Magnuson-
Stevens Fishery Conservation and Management Act.

DATES: Effective June 23, 2005 through April 30, 2006.

FOR FURTHER INFORMATION CONTACT: Douglas W. Christel, Fishery Policy 
Analyst, (978) 281-9141, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    Framework Adjustment (FW) 40B was developed by the New England 
Fishery Management Council (Council) primarily to improve the 
effectiveness of the effort control program implemented under Amendment 
13 to the NE Multispecies Fishery Management Plan (April 27, 2004; 69 
FR 22906), including the opportunities developed to target healthy 
stocks and other measures to facilitate adaptation to the Amendment 13 
effort reductions. The final rule implementing measures approved under 
FW 40B was published on June 1, 2005 (70 FR 31323). Detailed 
descriptions, justifications, and a summary of the impacts of all of 
the management measures proposed under FW 40B were included in the 
proposed and final rules for that action and are not repeated here.
    FW 40B implemented several revisions to the CA II Yellowtail 
Flounder SAP intended to help better achieve OY for the fishery and 
ensure that the maximum benefits from the GB yellowtail flounder TAC 
are realized. Among other provisions, FW 40B provided the Regional 
Administrator with the authority, after consulting with the Council, to 
adjust the trip limit and determine the total number of trips allowed 
into this SAP each fishing year, if necessary, in order to adapt to 
changing stock and fishery conditions. The authority to adjust these 
measures is intended to ensure that the catch of GB yellowtail flounder 
within the SAP would not increase the likelihood that the Eastern U.S./
Canada Area would be closed due to catching the GB yellowtail flounder 
TAC before the end of the fishing year. Such a premature closure would 
likely result in regulatory discards of GB yellowtail flounder and 
reduce the possibility of fully harvesting the GB cod and GB haddock 
TAC from the Eastern U.S./Canada Area.
    When determining the total number of trips allowed into the CA II 
Yellowtail Flounder SAP, the Regional Administrator considers specific 
criteria outlined in FW 40B, including the available TAC for GB 
yellowtail flounder, recent discards, and the potential catch of GB 
yellowtail flounder by vessels fishing outside of the SAP. Using these 
criteria, a formula was developed in FW 40B to assist the Regional 
Administrator in determining the appropriate number of trips for this 
SAP on a yearly basis. The suggested formula in FW 40B is as follows: 
Number of trips = (GB yellowtail flounder TAC - 4,000 mt)/4.54 mt.
    Note that 4.54 mt is equivalent to the 10,000-lb (4,536-kg) trip 
limit established for this SAP. This formula assumes that approximately 
4,000 mt of GB yellowtail flounder would be caught by vessels operating 
in the U.S./Canada Management Area, but outside of the CA II Yellowtail 
Flounder SAP, based on recent catches by all fisheries. FW 40B 
authorizes the Regional Administrator to not allow any trips into this 
SAP if

[[Page 37058]]

the available GB yellowtail flounder catch (i.e., the GB yellowtail 
flounder TAC - 4,000 mt) is not sufficient to support 150 trips with a 
15,000-lb (6,804-kg) GB yellowtail flounder trip limit. One hundred and 
fifty trips at 15,000 lb (6,804 kg) per trip amounts to 1,020 mt of GB 
yellowtail flounder recommended to support the CA II Yellowtail 
Flounder SAP. Based on the 4,260-mt TAC of GB yellowtail flounder 
specified in a recent proposed rule for the 2005 fishing year (April 
14, 2005; 70 FR 19724), and using the formula specified in FW 40B, only 
260 mt of GB yellowtail flounder are estimated to be available to allow 
for the CA II Yellowtail Flounder SAP in the 2005 fishing year.
    Based on this information, the available 2005 GB yellowtail 
flounder catch is less than the minimum 1,020 mt recommended to support 
vessel operations in this SAP for the 2005 fishing year. The Regional 
Administrator consulted with the Council regarding determining the 
appropriate number of trips into the CA II Yellowtail Flounder SAP for 
the 2005 fishing year at its June 21-23, 2005, meeting, and is 
authorizing zero trips into the CA II Yellowtail Flounder SAP for the 
2005 fishing year pursuant to Sec.  648.85(b)(3)(vii).
    Under NOAA Administrative Order 205-11, 07/01, dated December 17, 
1990, the Undersecretary for Oceans and Atmosphere has delegated 
authority to sign material for publication in the Federal Register to 
the Assistant Administrator for Fisheries, NOAA.

Classification

    This action is required by Sec.  648.85(b)(3)(vii) and is exempt 
from review under Executive Order 12866.
    Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), the Assistant 
Administrator finds good cause to waive prior notice and opportunity 
for public comment, as well as the 30-day delayed effectiveness for 
this action, as notice and comment and delayed effectiveness would be 
impracticable and contrary to the public interest. NMFS cannot initiate 
rulemaking for actions implemented by a framework action until that 
action is approved and implemented through a final rule. NMFS did not 
receive the final FW 40B package until February 15, 2005. This delayed 
the review, approval, and implementation of FW 40B. The regulations 
implemented by FW 40B require the Regional Administrator to consult 
with the Council before announcing the maximum number of trips into the 
CA II Yellowtail Flounder SAP for a particular fishing year. Since the 
authority to modify the maximum number of trips into the SAP did not 
become effective until June 1, 2005, the first opportunity for the 
Regional Administrator to formally consult with the Council was at the 
Council's June 21-23, 2005, meeting. Because the delayed implementation 
of the measures included in FW 40B and the resulting late consultation 
with the Council, it would be impracticable for NMFS to pursue notice 
and comment rulemaking in time to specify the number of trips into the 
CA II Yellowtail Flounder SAP for the 2005 fishing year prior to the 
start of the SAP on July 1, 2005.
    The public has had an opportunity to comment on the appropriate 
number of trips into the CA II Yellowtail Flounder SAP through the 
proposed rule for FW 40B. The proposed rule (March 29, 2005; 70 FR 
15803) indicated that preliminary information suggested that there 
would be insufficient available catch of GB yellowtail flounder to 
support the CA II Yellowtail Flounder SAP for the 2005 fishing year. 
During the public comment period, several commenters expressed support 
for the actions taken through this temporary rule. NMFS received no 
comments in opposition to the action implemented by this rule during 
the public comment period for FW 40B.
    Failure to waive the 30-day delayed effectiveness would allow the 
SAP to open on July 1, 2005, resulting in potentially high landings of 
GB yellowtail flounder until the SAP is closed again after the delayed 
effectiveness. Increased landings caused by the opening of the SAP on 
July 1 could contribute to the premature harvest of the GB Yellowtail 
Flounder TAC, resulting in the closure of access to the Eastern U.S./
Canada Area prior to the end of the 2005 fishing year (i.e., before 
April 30, 2006) and a prohibition on the retention of GB yellowtail 
flounder in the entire U.S./Canada Management Area by limited access NE 
multispecies DAS vessels for the remainder of the 2005 fishing year. 
Such a premature closure and retention prohibition could cause 
unnecessary additional discards of GB yellowtail flounder, further 
increasing mortality and the potential that the fishery will exceed the 
yearly TAC. Exceeding the yearly TAC would result in any TAC overages 
being deducted from the available TAC allocated to the following 
fishing year, causing additional economic impacts for the following 
fishing year. A premature closure and retention prohibition would also 
decrease opportunities to fish for GB haddock and GB cod in the Eastern 
U.S./Canada Area, thereby reducing sources of potential vessel revenue 
and decreasing the chance that OY will be achieved in the fishery. 
Effort reductions implemented by Amendment 13 resulted in substantial 
adverse economic impacts to the groundfish fishery. Additional economic 
impacts resulting from a delayed effectiveness of the measures 
contained in this rule, taken cumulatively, represent further economic 
hardships to an already struggling industry. Finally, since this action 
specifies zero trips into this SAP for the 2005 fishing year, failure 
to implement this action by July 1, 2005, would result in the opening 
of the SAP on July 1, 2005, only to be closed again once this action 
becomes effective. This would cause confusion to the industry. 
Therefore, a delayed effectiveness would be contrary to the public 
interest because it could potentially: (1) Lead to additional discards 
and the associated additional mortality on GB yellowtail flounder (2) 
result in reduced sources of potential revenue, decreased economic 
returns, and further adverse economic impacts to the fishing industry; 
and (3) increase confusion in the fishing industry through rapid 
closure of the SAP. Therefore, given the likely impacts resulting from 
a delayed effectiveness of this action as described above, it would be 
contrary to the public interest to provide further notice and 
opportunity for public comment and a 30-day delayed effectiveness.

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

    Dated: June 22, 2005.
Alan D. Risenhoover,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 05-12746 Filed 6-23-05; 2:57 pm]
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