[Federal Register Volume 72, Number 154 (Friday, August 10, 2007)]
[Rules and Regulations]
[Pages 44979-44981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15693]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070709299-7300-01]
RIN 0648-AV75


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Haddock Size Limit Change

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

ACTION: Temporary rule; emergency final rule.

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SUMMARY: NMFS implements this final rule pursuant to its authority to 
issue emergency measures under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). This emergency 
action implements measures intended to reduce immediately discards of 
Georges Bank (GB) and Gulf of Maine (GOM) haddock to prevent excessive 
waste and comply with the goals of reducing discards and maintaining 
the rebuilding programs of the Northeast (NE) Multispecies Fishery 
Management Plan (FMP), while helping to achieve optimum yield at the 
same time. Specifically, this emergency action reduces the commercial 
minimum haddock size to 18 inches (45 cm) from the current minimum size 
of 19 inches (48.3 cm). This action is intended to reduce discarding 
and maintain consistency with the FMP and the Magnuson-Stevens Act.

DATES: Effective August 10, 2007, through February 6, 2008.

FOR FURTHER INFORMATION CONTACT: Thomas A. Warren, Fishery Policy 
Analyst, (978) 281-9347, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    This final rule implements emergency measures, authorized by 
section 305(c) of the Magnuson-Stevens Act, intended to immediately 
reduce excessive discarding of GB and GOM haddock by lowering the 
commercial minimum fish size to 18 inches (45 cm), from the current 
minimum size of 19 inches (48.3 cm). The New England Fishery Management 
Council (Council) voted on June 21, 2007, to recommend that the 
Secretary of Commerce take action to lower the minimum size of haddock 
to 17 inches (43.2 cm) for vessels fishing on GB. A written request 
from the Council to NMFS for such action was dated June 25, 2007. 
Recent information from the Council and data from observed trips to the 
Eastern U.S./Canada Area indicate that there have been large amounts of 
discarding of haddock occurring because only a small fraction of the 
haddock from an exceptionally large year class being caught on GB has 
reached the minimum size of 19 inches (48.3 cm). Observer data show a 
discard-to-kept ratio of over 1 lb (0.45 kg) of haddock discarded to 
every pound of haddock landed. Cumulative haddock discards from the 
Eastern U.S./Canada Area from May 1, 2007, through July 4, 2007, are 
estimated at approximately 700,000 lb (318 mt).
    The reason for these large amounts of discards is that the very 
large 2003 year class of haddock, which is the largest since 1963, is 
growing more slowly than previously anticipated. Recent survey data 
indicate an average GB haddock size of 16.6 inches (42.2 cm) for fish 
in the 2003 year class. The average size of the fish in the 2003 year 
class is anticipated to be 19 inches (48.3 cm) by the summer of 2008, 
which would make them legal to retain under the existing regulations, 
so the current discard situation will resolve itself over the long 
term. However, in the short term, in order to reduce the large amount 
of discards and associated discard mortality that has been occurring in 
the haddock fishery, and enable such fish to be landed, a reduction in 
the haddock minimum size to18 inches (45.7 cm) is warranted. A 
temporary 18-inch (45-cm) minimum size limit will enable a larger 
fraction of the haddock catch to be landed, until a greater portion of 
the haddock population grows and reaches 19 inches (48.3 cm). NMFS is 
taking emergency action to effect this change.
    This emergency action differs from the Council's request in two 
aspects. The Council recommended a minimum size of 17 inches (43.2 cm), 
and limited the scope of the size reduction to GB. This emergency 
action reduces the minimum size to 18 inches (45.7 cm) in both the GB 
and GOM stock areas. Although the discarding situation is principally 
occurring on GB, and GOM haddock appear to have a higher rate of growth 
than GB haddock (Northeast Fisheries Science Center, (NEFSC)), this 
action decreases the minimum size limit for haddock throughout the 
range of the species to ensure meaningful and effective enforcement of 
the minimum size. Having differential size limits in the commercial 
fishery for two stocks of haddock that are landed by the same fishery 
in the same ports would make it virtually impossible to distinguish 
between the different size limits for enforcement purposes. Reducing 
the haddock minimum size from 19 inches (48.3 cm) to 18 inches (45 cm) 
will more than double the percentage of the GB haddock population 
available for harvest (from 22 percent to 47 percent in fall 2007; 
NEFSC). Such a size reduction will also modestly increase the 
percentage of GOM haddock available (from 57 percent to 61 percent in 
fall 2007), commensurate with the higher growth rate of haddock in the 
GOM. The decrease in the size limit for GOM haddock, therefore, should 
not increase the incentive to target smaller haddock. The recreational 
minimum size will remain at 19 inches (48.3 cm) because the magnitude 
of the recreational fishery for GB haddock, and the associated discard 
issue, is much less than the commercial fishery. Also, it is possible 
for a recreationally caught haddock that is undersized to be released 
alive, while it is more difficult to do so with commercially caught 
fish. Because the recreational fishery is distinct from the commercial 
fishery, the fact that the associated minimum sizes are different does 
not undermine enforcement of such restrictions.
    NMFS policy guidelines for the use of emergency rules (62 FR 44421; 
August 21, 1997) specify the following three criteria that define what 
an emergency situation is, and justification for final rulemaking: (1) 
The emergency results from recent, unforeseen events or recently 
discovered circumstances; (2) the emergency presents serious 
conservation or management problems in the fishery; and (3) the 
emergency can be addressed through emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and deliberative consideration of the impacts on participants 
to the same extent as would be expected under the normal 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

[[Page 44980]]

significant economic opportunity that otherwise might be foregone.
    Although the relative size of the 2003 year class has been evident 
since 2004, neither the observed slow growth rate of the year class, 
nor the large magnitude of the discarding problem were anticipated. 
These issues have become apparent only recently. Because of the limited 
selectivity of trawl mesh, it is not possible to effectively target 19-
inch (48.3-cm) haddock without catching 18-inch (45-cm) haddock. This 
limited selectivity, combined with the abnormally slow growth rate of 
the large 2003 year class, results in the trawl fishery temporarily 
experiencing an exceptionally high catch of undersized haddock. The 
inability of fishers to retain the extremely large numbers of haddock 
less than 19 inches (48.3 cm) being caught presents an immediate 
management problem. High levels of discards undermine the benefits of 
rebuilding this stock, and reduce the likelihood of attaining optimum 
yield because most discarded fish die and therefore never recruit into 
the fishery. As previously stated, recent observer data show a discard-
to-kept ratio of over 1 lb (0.45 kg) of haddock discarded to every 
pound of haddock landed. That means the fishery is discarding more 
haddock than it is keeping. Cumulative haddock discards from the 
Eastern U.S./Canada Area from May 1, 2007, through July 4, 2007, are 
estimated at approximately 700,000 lb (318 mt). In the context of 
historic discards, the amount of haddock discarded in the first 2 
months of fishing year (FY) 2007 is greater than the amount of haddock 
discarded during the entirety of FY 2006, FY 2005, or FY 2004. Reducing 
the haddock minimum size to 18 inches (45 cm) will reduce waste 
(discard mortality) in the fishery and may increase opportunities for 
the fishery to achieve optimum yield (OY). A collateral benefit of this 
action will be prevention of a significant direct economic loss by 
allowing the landing and sale of fish that would be discarded at sea if 
the minimum size limit were kept at 19 inches (48.3 cm). To delay this 
action for the time necessary to implement an amendment or framework 
action, with the opportunity for prior public comment, would result in 
continued discarding of large amounts of bycatch, the associated 
mortality of such discarding, the irretrievable loss of significant 
economic revenues from the discarded fish, and the further diminishing 
of the industry's ability to achieve OY. These consequences are 
inconsistent with National Standards 1, 7, and 9.
    The immediate benefits to be gained through the reduction of the 
haddock minimum size limit (e.g., reduced discarding and enhanced 
opportunities to achieve OY) justify this emergency action in accord 
with the guidelines outlined.
    This action is not expected to interfere with any conservation 
objective of the FMP. Although GB haddock is still considered 
overfished, overfishing is not occurring. In recent years, less than 50 
percent of the annual target Total Allowable Catch for GB haddock has 
been harvested. Allowing fish to be landed that would otherwise be 
discarded dead is not expected to increase fishing mortality or delay 
the rebuilding of the GB haddock stock. An increase in fishing effort 
is not expected due to the fact that, at current levels of fishing 
effort, trips under an 18-inch (45-cm) minimum haddock size may be more 
profitable, because the same amount of fishing effort will yield more 
legal catch that can be landed and sold. A shift to target smaller fish 
is not likely because haddock in the 18 to19-inch (45 to 48.3-cm) range 
are caught together, and there is limited selectivity of the fishing 
gear. Therefore, there appears to be, in the short term, no incentive 
or effective way to target 18-inch (45-cm) haddock. NMFS intends to 
monitor this fishery closely in order to determine whether this action 
results in significant changes in fishing behavior or substantive 
increases in fishing effort. If necessary, inseason implementation of 
management measures through existing Regional Administrator authority 
could be taken to control catch. Prior to the expiration of this 
temporary rule, NMFS will evaluate whether an emergency situation still 
exists, and whether extension or modification of this action is 
necessary. The NEFSC estimates that the average total length of GB 
haddock will not be above 19 inches (48.3 cm) until the summer of 2008.

Classification

    NMFS has determined that this rule is necessary to respond to an 
emergency situation and is consistent with the Magnuson-StevensAct and 
other applicable law.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
that the reasons justifying promulgation of this rule on an emergency 
basis also make it impractical and contrary to the public interest to 
provide additional notice and opportunity for the public to comment, or 
to delay for 30 days the effective date of this emergency regulation, 
under the provisions of sections 553(b) and (d) of the Administrative 
Procedure Act. As more fully explained above, solicitation of public 
comment or a delay in effectiveness would result in significant 
negative consequences inconsistent with Magnuson-Stevens Act and FMP 
mandates. In particular, the immediate implementation of this action 
will avoid wasteful discards of haddock, enhance opportunities to 
achieve OY, reduce costs, and increase revenues of the fishing 
industry, without jeopardizing any conservation and management 
objectives of the FMP. Further, waiver of prior public comment is 
necessary because a substantial portion of the fishing effort in the 
groundfish fishery occurs in summer and early fall, and to delay 
implementation of this action would mean that the change in minimum 
size would occur after the part of the fishing season when it is needed 
most.
    This emergency rule has been determined to be not significant for 
purposes of E.O. 12866.
    This rule is exempt from the procedures of the Regulatory 
Flexibility Act to prepare a regulatory flexibility analysis because 
the rule is issued without opportunity for prior public comment.
    This emergency action meets the Categorical Exclusion requirements 
of NOAA Administrative Order 216-6, and therefore no analysis was 
prepared pursuant to the National Environmental Policy Act.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: August 6, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons stated in the preamble, 50 CFR part 648 is amended as 
follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.60, the introductory text to paragraph (a)(5)(ii) is 
suspended, and paragraph (a)(5)(iii) is added to read as follows:


Sec.  648.60  Sea scallop area access program requirements.

    (a) * * *
    (5) * * *
    (iii) NE multispecies possession limits and yellowtail flounder 
TAC. Subject to the seasonal restriction established under the Sea 
Scallop Area Access

[[Page 44981]]

Program and specified in Sec.  648.59(b)(4), (c)(4), and (d)(4), and 
provided the vessel has been issued a scallop multispecies possession 
limit permit as specified in Sec.  648.4(a)(1)(ii), after declaring a 
trip into a Sea Scallop Access Area and fishing within the Access Areas 
described in Sec.  648.59(b) through (d), a vessel owner or operator of 
a limited access scallop vessel may fish for, possess, and land, per 
trip, up to a maximum of 1,000 lb (453. 6 kg) of all NE multispecies 
combined, subject to the minimum commercial fish size restrictions 
specified in Sec.  648.83(a)(3), and the additional restrictions for 
Atlantic cod, haddock, and yellowtail flounder specified in paragraphs 
(a)(5)(iii)(A) through (C) of this section.
* * * * *

0
3. In Sec.  648.83, paragraph (a)(1) is suspended and paragraph (a)(3) 
is added to read as follows:


Sec.  648.83  Multispecies minimum fish sizes.

    (a) * * *
    (3) Minimum fish sizes for recreational vessels and charter/party 
vessels that are not fishing under a NE multispecies DAS are specified 
in Sec.  648.17, all other vessels are subject to the following minimum 
fish sizes, determined by total length (TL):

             Minimum Fish Sizes (TL) for Commercial Vessels
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                  Species                          Sizes (Inches)
------------------------------------------------------------------------
                   Cod                            22 (55.9 cm)
                 Haddock                          18 (45.7 cm)
                 Pollock                          19 (48.3 cm)
        Witch flounder (gray sole)                14 (35.6 cm)
           Yellowtail flounder                    13 (33.0 cm)
             American plaice                      14 (35.6 cm)
             Atlantic halibut                     36 (91.4 cm)
       Winter flounder (blackback)                12 (30.5 cm)
                 Redfish                           9 (22.9 cm)
------------------------------------------------------------------------

* * * * *

0
4. In Sec.  648.85, the introductory text to paragraph (c) is 
suspended, and paragraph (c)(4) is added to read as follows:


Sec.  648.85  Special management programs.

* * * * *
    (c) * * *
    (4) Scallop fishery closed area access program. Limited access 
scallop vessels operating under the Sea Scallop Area Access Program, as 
defined in Sec.  648.59, and fishing in accordance with the regulations 
at Sec.  648.60 may possess and land up to 1,000 lb (453.6 kg) of all 
NE multispecies combined, as provided in Sec.  648.60(a)(5)(iii).
* * * * *

0
5. In Sec.  648.88, paragraph (c) is suspended and paragraph (e) is 
added to read as follows:


Sec.  648.88  Multispecies open access permit restrictions.

* * * * *
    (e) Scallop NE multispecies possession limit permit. With the 
exception of vessels fishing in the Sea Scallop Access Areas as 
specified in Sec.  648.59(b) through (d), a vessel that has been issued 
a valid open access scallop NE multispecies possession limit permit may 
possess and land up to 300 lb (136.1 kg) of regulated NE multispecies 
when fishing under a scallop DAS allocated under Sec.  648.53, provided 
the vessel does not fish for, possess, or land haddock from January 1 
through June 30, as specified under (a)(2)(i), and provided that the 
amount of regulated NE multispecies on board the vessel does not exceed 
any of the pertinent trip limits specified under Sec.  648.86, and 
provided the vessel has at least one standard tote on board. A vessel 
fishing in the Sea Scallop Access Areas as specified in Sec.  648.59(b) 
through (d) is subject to the possession limits specified in Sec.  
648.60(a)(5)(iii).
[FR Doc. E7-15693 Filed 8-9-07; 8:45 am]
BILLING CODE 3510-22-S