[Federal Register Volume 75, Number 138 (Tuesday, July 20, 2010)]
[Rules and Regulations]
[Pages 41996-41998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17693]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100427197-0207-01]
RIN 0648-AY86


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Pollock Catch Limit Revisions

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

ACTION: Emergency rule; request for comments.

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SUMMARY: NMFS issues 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 
new stock status determination criteria for pollock and associated 
increases in pollock catch limits under the Northeast (NE) Multispecies 
Fishery Management Plan (FMP), based on the most recent and best 
available scientific information. Specifically, this emergency action 
increases fishing year (FY) 2010 pollock catch levels specified by 
Framework Adjustment (FW) 44, including Overfishing Levels (OFLs), 
Acceptable Biological Catches (ABCs), Annual Catch Limits (ACLs), ACL 
components, incidental Total Allowable Catches (TACs) for special 
management programs, and sector Annual Catch Entitlements (ACEs). The 
ACL components include sub-ACLs for the common pool and sectors. This 
action is intended to provide additional fishing opportunities, 
consistent with the FMP and the Magnuson-Stevens Act.

DATES: Effective July 15, 2010, through January 11, 2011. Comments must 
be received by August 19, 2010.

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, to revise current pollock 
catch limits immediately. On May 1, 2010, NMFS implemented catch limits 
developed by the New England Fishery Management Council (Council) under 
FW 44 (75 FR 18356; April 9, 2010) for all groundfish stocks, including 
pollock, for FY 2010 through 2012. The catch levels specified by FW 44 
included OFLs, ABCs, ACLs, ACL components, and incidental TACs for 
special management programs. The ACL components included sub-ACLs for 
the common pool and sectors. On May 26, 2010, NMFS published (75 FR 
29459) adjusted ACL subcomponents and adjusted sector ACEs in order to 
reflect changes to the sector rosters just prior to the start of FY 
2010.
    The FW 44 catch levels for all stocks, including pollock, were 
based upon the most recent scientific information available at that 
time, i.e., the stock assessments conducted by the Groundfish 
Assessment Review Meeting (GARM III) in 2008, as well as subsequent 
pertinent information for pollock, as explained below. GARM III 
originally characterized pollock as overfished and subject to 
overfishing and, in accordance with required procedures, NMFS notified 
the Council of the status of the stock on September 2, 2008. Subsequent 
correspondence resulted in two modifications to the characterization of 
the status of the pollock biomass. A September 16, 2008,

[[Page 41997]]

letter from the Council to NMFS noted that these determinations 
regarding stock status were based upon erroneous methods. NMFS noted 
this error and subsequently made corrections[t3] to the methods and 
revised the characterization of the pollock stock status as approaching 
an overfished condition, but still likely subject to overfishing 
(October 3, 2008, NMFS letter to the Council). The stock status 
determination was revised a third time in order to incorporate the most 
recent scientific information (fall 2008 trawl survey data), which 
again characterized the pollock stock as overfished and subject to 
overfishing (February 6, 2009, NMFS letter to the Council).
    Due to the high uncertainty of the determination of pollock stock 
status (as noted in the GARM III stock assessment conclusions), the 
NMFS Northeast Fisheries Science Center, in conjunction with the 
Northeast Region Coordinating Council, which provides advice on the 
scheduling and prioritization of stock assessments, agreed to schedule 
another pollock stock assessment in 2010. In addition, the Council's 
Scientific and Statistical Committee (SSC) recommended that pollock 
should be reassessed as soon as possible so that they may have a more 
reliable basis for any projections and catch advice. The 2010 pollock 
benchmark stock assessment was scheduled as soon as practicable, after 
considering the availability date of pertinent data, and other 
constraints.
    The pollock peer reviewed benchmark stock assessment review (SAW 
50) was completed during the first week of June 2010, and the final 
summary report was completed on July 14, 2010. The conclusions in this 
report indicate that overfishing is not occurring, the stock is not 
overfished, and the stock is rebuilt. Based on this information, the 
estimates for spawning stock biomass size and fishing mortality in 2009 
are 196,000 mt (2.2 times Bmsy proxy) and 0.07 (28 percent 
of Fmsy), respectively.
    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 significant 
economic opportunity that otherwise might be foregone.
    The new information from the pollock benchmark stock assessment 
considered to be a ``recently discovered circumstance,'' which, in the 
context of the current FMP and low pollock catch limits specified for 
FY 2010, has been determined by NMFS to represent an emergency 
situation. This circumstance is the results of the recently conducted 
assessment of pollock, which significantly revises the status of this 
stock. Although the new assessment has been ongoing for a number of 
weeks, it was not possible to have predicted its final outcome; nor 
could the results have been expedited due to the need to convene the 
necessary scientists, several of whom are not affiliated with NOAA, to 
complete the assessment and its peer review.
    The emergency presents serious conservation and management problems 
because the low catch limits for pollock could result in substantially 
reduced fishing effort and decreased catch and revenue especially in 
light of the multiple species included in the fishery. When the 
projected catch of the ACL for a single stock such as pollock triggers 
a reduction or cessation of fishing effort (as required by the FMP for 
common pool and sector vessels, respectively), numerous other stocks 
that are caught concurrently with pollock may also be reduced.
    NMFS has determined that the current situation meets the criteria 
for emergency action. Because this is a Secretarial emergency action, 
not a Council action, the involvement of the SSC in the specification 
of ABC is not specifically required, although the emergency rule must 
still be consistent with the best scientific information available. 
Although NMFS could wait for the SSC to consider the new assessment, 
the time necessary to complete such a process would unduly delay the 
possibility of meeting the emergency exigencies of this matter. Due to 
the urgency of this issue, NMFS has relied upon the Amendment 16 
control rule for ABC established by the SSC to ensure consistency with 
the SSC's most recent advice concerning the appropriate level of ABC. 
Specifically, the control rule states that for most stocks, including 
pollock, the ABC should be determined as the catch associated with 75 
percent of Fmsy, or the catch associated with fishing 
mortality that meets the rebuilding requirements (whichever is lower). 
The duration of this action is limited by the Magnuson-Stevens Act to 
180 days, however NMFS will re-evaluate the status of the fishery at 
the end of the 180 days and may extend this action in order to make the 
catch limits effective for the duration of the fishing year (through 
April 30, 2011), consistent with the authority in the Magnuson-Stevens 
Act to extend emergency actions for up to an additional 186 days.
    Based upon the stock assessment results, NMFS is revising the stock 
Status Determination Criteria for pollock. The revised biomass target 
parameter (Bmsy proxy) is SSB msy (40 percent Maximum 
Spawning Potential (MSP)) (91,000 mt); and the maximum fishing 
mortality threshold is the Fmsy proxy (F 40 percent MSP) (0.25).
    The revised pollock catch limits are contained in Tables 1 and 2 
below. Consistent with the FMP, the incidental catch TAC is divided 
between the Regular B DAS Program (84 percent) and the Closed Area I 
Hook Gear Haddock Special Access Program (14 percent).

            Table 1. Revised Pollock Catch Levels for FY 2010
------------------------------------------------------------------------
                                            Current           Revised
        Pollock Catch Limit           Specification (mt)   Specification
                                       FW 44 Adjustment         (mt)
------------------------------------------------------------------------
OFL of Catch                         5,084                     25,200
------------------------------------------------------------------------
ABC                                  3,293                     19,800
------------------------------------------------------------------------
State Waters ACL subcomponent        200                        1,188
------------------------------------------------------------------------
Other ACL subcomponent               200                        1,188
------------------------------------------------------------------------
Groundfish sub-ACL                   2,748                     16,553
------------------------------------------------------------------------
Sector sub-ACL                       2,686                     16,178
------------------------------------------------------------------------
Common Pool sub-ACL                  62                           375
------------------------------------------------------------------------
Incidental Catch TAC                 1.24                         7.5
------------------------------------------------------------------------


                   Table 2. Pollock ACE by Sector (mt)
------------------------------------------------------------------------
                                          Current ACE (mt) FW    Revised
                 Sector                      44 Adjustment      ACE (mt)
------------------------------------------------------------------------
Fixed Gear                               214                      1,290
------------------------------------------------------------------------

[[Page 41998]]

 
NCCS                                     12                          73
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NEFS 2                                   338                      2,034
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NEFS 3                                   202                      1,218
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NEFS 4                                   155                        934
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NEFS 5                                   11                          68
------------------------------------------------------------------------
NEFS 6                                   88                         529
------------------------------------------------------------------------
NEFS 7                                   21                         124
------------------------------------------------------------------------
NEFS 8                                   18                         106
------------------------------------------------------------------------
NEFS 9                                   105                        632
------------------------------------------------------------------------
NEFS 10                                  40                         239
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NEFS 11                                  255                     1, 533
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NEFS 12                                  1                            9
------------------------------------------------------------------------
NEFS 13                                  61                         364
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Port Clyde Community                     117                        707
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Sustainable Harvest                      1,047                    6,309
------------------------------------------------------------------------
Tri-State                                2                            9
------------------------------------------------------------------------
Total                                    2,686                   16,178
------------------------------------------------------------------------
All ACE values for sectors assume that each sector member has a valid
  permit for FY 2010.
NCCS: Northeast Coastal Communities Sector; NEFS: Northeast Fishery
  Sectors

    An environmental assessment (EA) was prepared that analyzes the 
impact of the revised pollock catch limits for the duration of a year, 
and compares the impact to the current catch limits specified for FY 
2010 (i.e., the No Action Alternative). The revised level of pollock 
catch is consistent with sustaining the pollock biomass over the long-
term at the level associated with maximum sustainable yield 
(Bmsy) and fishing at a sustainable level of mortality 
(Fmsy). Both scientific and management uncertainty are 
accounted for in this catch level, so the risks of negative biological 
impacts have been minimized. The revision to the FY 2010 pollock catch 
limits contained in this rule may result in the catch of a 
substantially greater amount of pollock than under the No Action 
Alternative. The larger catch limit for pollock may result in greater 
fishing effort and greater catch of other stocks in addition to 
pollock, as compared to the current pollock catch limits, because it is 
not likely that pollock will serve as a constraining stock. The 
increased pollock catch limit is specified in the context of the FMP, 
which currently authorizes the NMFS NE Regional Administrator to adjust 
trip limits in-season to prevent the ACL from being exceeded or to 
facilitate additional catch.
    Due to the increased amount of pollock catch allowed under this 
emergency action, the increased pollock ACL represents an increase of 
potential revenue of $15 million, assuming recent average prices for 
pollock, and assuming that the full ACL for pollock will be harvested. 
This estimate of pollock revenue is likely high, given the level of 
recent pollock landings. The primary economic benefit of the revised 
ACL is expected to be associated with reducing the likelihood that an 
accountability measure would be triggered for the common pool and for 
sectors. The triggering of accountability measures would have reduced 
or precluded access to other stocks and the associated revenue.
    Even with a total increase in the revised sector specifications of 
13,492 mt of pollock, two sectors, NEFS 2 and NEFS 11, will still be 
left with less pollock ACE than the amount landed by the collective 
sector membership during FY 2008. That is, even though the revised 
aggregate pollock ACE is higher than the FY 2008 landings, the ACE for 
these ectors is still lower than the sector members' FY 2008 combined 
pollock landings. However, the deficit for the NEFS 2 sector may be 
readily overcome, since the operations plan for NEFS 4, which would 
receive an ACE of over 2 million lb (934 mt), states that NEFS 4 will 
be a lease-only sector in order to provide additional ACE to NEFS 2 and 
NEFS 3. The regulations would also allow NEFS 11 to lease additional 
ACE. With[t9] respect to the impact of the revised pollock catch limit 
on individual members of sectors, approximately 16 percent of permits 
that joined a sector and that had a non-zero pollock Potential Sector 
Contribution, will still have less pollock than they landed during FY 
2008.
    The Council is considering revising pollock catch limits for FY 
2011 and 2012 through a future rulemaking.

Classification

    NMFS has determined that this rule is necessary to respond to an 
emergency situation and is consistent with the Magnuson-Stevens Act and 
other applicable law.
    The Assistant Administrator for Fisheries, NOAA, finds it 
impracticable and contrary to the public interest to provide for prior 
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 section 553(b) and (d) of the Administrative Procedure 
Act. As more fully explained above, the reasons justifying promulgation 
of this rule on an emergency basis make solicitation of public comment 
or a delay in effectiveness contrary to the public interest. This 
action would result in the benefit of the revenues associated with 
larger pollock catch limits. This action could not allow for prior 
public comment because the scientific review process and determination 
could not have been completed any earlier due to the inherent time 
constraints associated with such process.
    If this rulemaking was delayed to allow for notice and comment and 
a 30-day delay in effectiveness, the current quota for some sectors 
could be exceeded, which could result in triggering restrictive and 
economically harmful management actions that otherwise could have been 
avoided. The time necessary to provide for prior notice, opportunity 
for public comment, and delayed effectiveness for this action may 
prevent some vessels from targeting pollock, or could severely curtail 
fishing operations if the current ACL is reached prior to 
implementation of the increased catch limit. In the interest of 
receiving public input on this action, the revised assessment upon 
which this action was based is made available to the public, and this 
action requests public comments on that document and the provisions in 
this rule.
    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.

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

    Dated: July 14, 2010
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 2010-17693 Filed 7-15-10; 4:15 pm]
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