[Federal Register Volume 70, Number 129 (Thursday, July 7, 2005)]
[Rules and Regulations]
[Pages 39190-39192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13356]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 050331089-5172-02; I.D. 031005A]
RIN 0648-AS74


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Total Allowable Catches for Georges Bank Cod, 
Haddock, and Yellowtail Flounder in the U.S./Canada Management Area for 
Fishing Year 2005

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

ACTION:  Final rule.

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SUMMARY:  The following Total Allowable Catches (TACs) in the U.S./
Canada Management Area are implemented for the 2005 fishing year (FY): 
260 mt of Georges Bank (GB) cod, 7,590 mt of GB haddock, and 4,260 mt 
of yellowtail flounder. This action is intended to meet the 
conservation and management requirements of the Magnuson-Stevens 
Fishery Conservation and Management Act.

DATES:  This rule is effective July 7, 2005, through April 30, 2006.

ADDRESSES:  Copies of the Transboundary Management Guidance Committee's 
(TMGC) 2004 Guidance Document and copies of the Environmental 
Assessment of the 2005 TACs (including the Regulatory Impact Review and 
Regulatory Flexibility Analysis (FRFA)) may be obtained from: 
Sustainable Fisheries Division, National Marine Fisheries Service, One 
Blackburn Drive, Gloucester, MA 01930; telephone (978) 281-9315.
    NMFS prepared a summary of the FRFA, which is contained in the 
Classification section of this final rule.

FOR FURTHER INFORMATION CONTACT:  Thomas Warren, Fishery Policy 
Analyst, (978) 281-9347, fax (978) 281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: A proposed rule for this action was 
published on April 14, 2005 (70 FR 19724), with public comments 
accepted through May 16, 2005. A detailed description of the 
administrative process used to develop the TACs was contained in the 
preamble of the proposed rule and is not repeated here. The Northeast 
(NE) Multispecies Fishery Management Plan (FMP) specifies a procedure 
for setting annual hard (i.e., the fishery or area closes when a TAC is 
reached) TAC levels for GB cod, GB haddock, and GB yellowtail flounder. 
The regulations governing the annual development of TACs (Sec.  
648.85(a)(2)) were implemented by Amendment 13 to the FMP (69 FR 22906; 
April 27, 2004) in order to be consistent with the U.S./Canada Resource 
Sharing Understanding (Understanding), which is an informal 
understanding between the United States and Canada that outlines a 
process for the management of the shared GB groundfish resources. The 
Understanding specifies an allocation of TAC for these three stocks for 
each country, based on a formula that considers historical catch 
percentages and current resource distribution. The TACs apply to the 
shared GB groundfish resources. The shared stocks of GB cod and haddock 
in U.S. waters represent portions (subsets) of the stocks of GB cod and 
haddock managed in the U.S. Exclusive Economic Zone under the FMP. The 
shared stock of GB yellowtail flounder in U.S. waters represents the 
entire stock of GB yellowtail flounder managed by the FMP.
    On September 16, 2004, the New England Fishery Management Council 
recommended the following U.S. TACs for FY 2005: 260 mt of GB cod, 
7,590 mt of GB haddock, and 4,260 mt of GB yellowtail flounder. These 
2005 TACs are based upon stock assessments conducted in June 2004 by 
the Transboundary Resource Assessment Committee (TRAC). The 2005 cod 
and yellowtail flounder TACs represent a decrease from 2004 TAC levels, 
and the 2005 haddock TAC represents an increase from the 2004 TAC. The 
percentage shares of these stocks for 2004 and 2005 between the U.S. 
and Canada are presented in the following tables:

[[Page 39191]]



                        2004 U.S./Canada TACs (mt) and percentage shares (in parentheses)
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                                                                                                   GB Yellowtail
                                                                      GB Cod        GB Haddock       flounder
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                  Total Shared TAC                                         1,300          15,000           7,900
                  U.S. TAC                                              300 (23)      5,100 (34)      6,000 (76)
                  Canada TAC                                          1,000 (77)      9,900 (66)      1,900 (24)
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                        2005 U.S./Canada TACs (mt) and percentage shares (in parentheses)
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                                                                                                   GB Yellowtail
                                                                      GB Cod        GB Haddock       flounder
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                  Total Shared TAC                                         1,000          23,000           6,000
                  U.S. TAC                                              260 (26)      7,590 (33)      4,260 (71)
                  Canada TAC                                            740 (74)     15,410 (67)      1,740 (29)
----------------------------------------------------------------------------------------------------------------

    The regulations implemented by Amendment 13, at Sec.  
648.85(a)(2)(ii), state the following: ``Any overages of the GB cod, 
haddock, or yellowtail flounder TACs that occur in a given fishing year 
will be subtracted from the respective TAC in the following fishing 
year.'' Therefore, should an analysis of the catch of the shared stocks 
by U.S. vessels indicate that an overage occurred during FY 2004 the 
pertinent TACs will be adjusted downward in order to be consistent with 
the FMP and the Understanding. If an adjustment to one of the 2005 TACs 
for cod, haddock, or yellowtail flounder is necessary, the public will 
be notified through a Federal Register notice and through a letter to 
permit holders.

Comments and Responses

    Three comments on the proposed rule were received by the close of 
business on May 16, 2005.
    Comment 1: Two commenters fully supported the proposed FY 2005 
TACs, one of whom felt that the TACs were appropriate because they were 
calculated by taking into account many factors and represented a fair 
allocation.
    Response: NMFS has approved the TACs as proposed.
    Comment 2: One commenter believed that the proposed TACs were too 
high, and was concerned about the status of the stocks.
    Response: NMFS believes that the FY 2005 TACs are set at the 
correct level, based on the best available science, the FMP, and the 
U.S./Canada Understanding, as explained in detail in the preamble to 
the proposed rule. The TAC levels are consistent with stock rebuilding, 
as required by the FMP.

Classification

    This final rule is required by 50 CFR part 648 and has been 
determined to be not significant for purposes of Executive Order 12866.
    NMFS prepared a FRFA, which incorporates the IRFA, a summary of the 
significant issues raised by the public comments in response to the 
IRFA, and a summary of the analyses completed to support the action. A 
copy of this analysis is available from NMFS (see ADDRESSES) and is 
summarized as follows:
    The specification of hard TACs is necessary to ensure that the 
agreed upon U.S./Canada fishing mortality levels for these shared 
stocks of fish are achieved in the U.S./Canada Management Area (the 
geographic area on GB defined to facilitate management of stocks of 
cod, haddock, and yellowtail flounder that are shared with Canada). A 
full description of the objectives and legal basis for the proposed 
TACs is contained in the preamble of the proposed rule. No public 
comments received specifically addressed the IRFA or the potential 
economic impacts of the TACs.
    Under the Small Business Administration (SBA) size standards for 
small fishing entities ($3.5 million in gross receipts), all permitted 
and participating vessels in the groundfish fishery are considered to 
be small entities and, therefore, there are no disproportionate impacts 
between large and small entities caused by this action. The maximum 
number of small entities that will be affected by the FY 2005 TACs is 
approximately 1,000 vessels, i.e., those vessels with limited access NE 
multispecies days-at-sea (DAS) permits, that have an allocation of 
Category A or B DAS. Realistically, however, the number of vessels that 
choose to fish in the U.S./Canada Management Area, and that therefore 
will be subject to the associated restrictions, including hard TACs, 
will be substantially less.
    Because the regulatory regime in FY 2005 is similar to that in 
place in FY 2004, it is likely that the number of vessels that choose 
to fish in the U.S./Canada Management Area during FY 2005 will be 
similar to the number of vessels that fished in the U.S./Canada 
Management Area during FY 2004 (155 different vessels). Preliminary 
NMFS monitoring data supports the assertion that similar numbers of 
vessels will fish during the 2005 fishing year as fished during the 
2004 fishing year. During the time period from May through the third 
week of June (2004), 109 different vessels had fished in the Eastern 
U.S./Canada Area. This fishing year, the data indicates that for the 
period May 2005 through the third week of June, 108 different vessels 
fished in this area. The total numbers of vessels fishing in the U.S./
Canada Management Area on a fishing year basis, will likely be less 
than during the 2004 fishing year, due to the fact that the Closed Area 
II Yellowtail Flounder Special Access Program, which occurred in 2004, 
will not be open this year (70 CFR 37057).
    The economic impacts of the TACs are difficult to predict due to 
several factors that affect the amount of catch, as well as the price 
of the fish. Furthermore, the economic impacts are difficult to predict 
due to the newness of these regulations (May 2004; Amendment 13 to the 
FMP). Therefore, there is relatively little historic data, and little 
is known about the specific fishing patterns or market impacts that may 
be caused by this hard TAC management system.
    The amount of GB cod, haddock, and yellowtail flounder landed and 
sold will not be equal to the sum of the TACs, but will be reduced as a 
result of discards (discards are counted against the hard TACs), and 
may be further reduced by limitations on access to stocks that may 
result from the associated rules. Reductions to the value of the fish 
may result from fishing derby behavior and the potential impact on 
markets. The overall economic impact of the FY 2005

[[Page 39192]]

U.S./Canada TACs will likely be similar to the economic impacts of the 
TACs specified for the 2004 fishing year.
    A downward adjustment to the TACs specified for FY 2005 could occur 
after these TACs are implemented, if it is determined that the U.S. 
catch of one or more of the shared stocks during FY 2004 exceeded the 
relevant TACs specified for FY 2004.
    Three alternatives were considered for FY 2005: The proposed TACs, 
the status quo TACs, and the no action alternative. No additional set 
of TACs was proposed because the process involving the TMGC and the 
Council yields only one proposed set of TACs. The implemented TACs will 
have a similar economic impact as the status quo TACs. Adoption of the 
status quo TACs, however, would not be consistent with the FMP because 
the status quo TACs do not reflect the best available scientific 
information. Although the no action alternative (no TACs) would not 
constrain catch in the U.S./Canada Management Area, and therefore would 
likely provide some additional fishing opportunity, the no action 
alternative is not a reasonable alternative because it is inconsistent 
with the FMP in both the short and long term. The FMP requires 
specification of hard TACs in order to limit catch of shared stocks to 
the appropriate fish mortality level (i.e., consistent with the 
Understanding and the FMP). The appropriate fishing mortality enables 
consistent management between the U.S. and Canada and therefore the 
full benefits of U.S. conservation actions are more likely to be 
realized. The no action alternative would likely provide fewer economic 
benefits to the industry in the long term than the implemented 
alternative, and likely result in fishing mortality levels that are 
inconsistent with the fishing mortality levels of the Canadian portions 
of the shared stocks.
    Two of the three FY 2005 TACs (cod and yellowtail flounder) 
represent reductions from the FY 2004 level and could, under certain 
circumstances, constrain fishing opportunity on haddock (for which the 
TAC is increasing). The FY 2005 TACs implemented by this final rule do 
not modify any collection of information, reporting, or recordkeeping 
requirements. The FY 2005 TACs do not duplicate, overlap, or conflict 
with any other Federal rules.
    There is good cause under 5 U.S.C. 553(d)(3), to waive the 30-day 
delay in effective date because doing otherwise may compromise full and 
effective management of the GB stocks of cod, haddock, and yellowtail 
flounder. Because of recent unanticipated high catch rates of GB cod in 
the Eastern U.S./Canada Area, it is crucial that the TACs are 
implemented as soon as possible in order to ensure that the fishing 
mortality objective for the shared stock of cod is not exceeded. The 
timeline for the development of the EA that analyzed the TACs and 
publication of the proposed rule for the TACs, prior to the 2005 
fishing year, did not anticipate a high catch rate of cod during the 
2005 fishing year (based upon the 2004 fishing year information). The 
FMP provides authority to the Regional Administrator to make 
modifications to various rules associated with the U.S./Canada 
Management Area, once 30 percent of any of the TACs has been harvested. 
If the delay is not waived it is highly possible that the TAC for the 
most depleted stock, GB cod, could be reached and exceeded during the 
30 day delay period, and the Regional Administrator will be unable to 
take action to stop fishing on this stock. Failure to stop fishing on 
this stock when the TAC is caught would severely undermine the 
conservation objectives of the groundfish FMP. Any resulting TAC 
overages are required to be deducted from the following year's TAC, 
which is already very small for GB cod. The consequences of any 
substantial overage that could occur if the effectiveness of the 
implementation of the 2005 TACs is delayed could be very severe for the 
industry in the 2006 fishing year. The high catch rate of cod created 
the need for regulatory action early in the fishing year, based on an 
implemented cod TAC.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
small entity compliance guide (the guide) was prepared. Copies of this 
final rule are available from the Northeast Regional Office, and the 
guide, i.e., permit holder letter, will be sent to all holders of 
limited access DAS permits for the NE multispecies fishery. The guide 
and this final rule will be posted on the NMFS NE Regional Office web 
site at http://www.nero.noaa.gov and will also be available upon 
request.

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

    Dated: June 30, 2005.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 05-13356 Filed 7-1-05; 3:07 pm]
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