[Federal Register Volume 76, Number 115 (Wednesday, June 15, 2011)]
[Rules and Regulations]
[Pages 34903-34910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14853]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100923469-1298-03]
RIN 0648-BA27


Revisions to Framework Adjustment 45 to the Northeast 
Multispecies Fishery Management Plan and Sector Annual Catch 
Entitlements; Updated Annual Catch Limits for Sectors and the Common 
Pool for Fishing Year 2011

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

ACTION: Temporary final rule; adjustment to specifications.

-----------------------------------------------------------------------

SUMMARY: Based on the final multispecies sector rosters submitted as of 
May 1, 2011, NMFS announces adjustments to the Northeast (NE) 
multispecies fishing year (FY) 2011 specification of annual catch 
limits (ACLs) for common pool vessels (common pool sub-ACLs), ACLs for 
sector vessels (sector sub-ACLs), and sector Annual Catch Entitlements 
(ACEs) for groundfish stocks managed under the NE Multispecies Fishery 
Management Plan (FMP). This revision to FY 2011 catch levels is 
necessary to account for changes to the number of participants electing 
to fish in either sectors or the common pool fishery in FY 2011.

DATES: Effective June 14, 2011, through April 30, 2012.

FOR FURTHER INFORMATION CONTACT: William Whitmore, Fishery Policy 
Analyst, (978) 281-9182.

SUPPLEMENTARY INFORMATION: Pursuant to the Magnuson-Stevens Fishery 
Conservation and Management Act and Amendment 16 to the FMP (75 FR 
18262; April 9, 2010), Framework Adjustment (FW) 44 to the FMP, which 
was published in the Federal Register on April 9, 2010 (75 FR 18356), 
specified catch levels for 20 NE groundfish stocks for FY 2010-2012. In 
addition, FW 45 (April 25, 2011; 76 FR 23042) modified the 2011 ACLs 
for five stocks (Georges Bank (GB) haddock, GB cod, GB yellowtail 
flounder, white hake, and pollock). FW 45 also specified catch levels 
for various components of the groundfish fishery, including sub-ACLs 
for the common pool and sectors. These sub-ACLs were based on the catch 
history of the vessels enrolled in sectors, as of December 1, 2010.
    On April 25, 2011, NMFS published an interim final rule approving 
FY 2011 sector operations plans and allocating ACE to sectors for FY 
2011 (76 FR 23076; ``sector rule''). The sector rule included FY 2011 
sector sub-ACL information also reflected in FW 45, where the sum of 
the ACEs for each sector equals the sector sub-ACL. Unlike FW 45, 
though, the sector ACEs in the sector rule were derived from February 
1, 2011, sector rosters. To provide increased flexibility to the 
fishing industry, vessels initially enrolled in sectors for FY 2011 
were allowed to drop out and join the common pool fishery through April 
30, 2011. Additional flexibility was also provided to allow NE 
multispecies permitted vessels purchased after the sector enrollment 
deadline of December 1, 2010, to enroll in a sector up through April 
30, 2011. Because the sector ACEs, as well as the sector sub-ACLs (sum 
of ACEs for all sectors) and the common pool sub-ACL (groundfish sub-
ACL minus sector sub-ACL), are based upon the specific membership of 
sectors, any changes in membership since FW 45 and the sector rule were 
implemented requires that NMFS revise the sector ACEs and sub-ACLs for 
the common pool and sectors. This rule adjusts the FY 2011 sector ACEs 
and sub-ACLs for the common pool and sectors based on the members of 
each sector roster as of May 1, 2011 (``final sector rosters'').
    The preamble of the final rule implementing FW 45 informed the 
public that ``NMFS intends to publish a rule in early May 2011 to 
modify these [common pool and sector] sub-ACLs and notify the public if 
these numbers change.'' Through this temporary final rule, NMFS is 
revising FY 2011 ACEs for all approved sectors and for FY 2011 sub-ACLs 
for common pool and sector vessels, based on the final sector rosters. 
The final number of vessels electing to fish in sectors for FY 2011 is 
829 (reduced by 7 vessels since the February 2011, rosters). All ACE 
and sub-ACL values for sectors assume that each NE multispecies vessel 
enrolled in a sector has a valid permit for FY 2011.
    Additionally, this rule implements a revised definition of 
``unmarketable fish'' for the purposes of a sector exemption first 
introduced in the interim final rule approving FY 2011 sector 
operations plans. NMFS requested comments on this definition (76 FR 
23076), as well as comments on the final sector rosters. However, NMFS 
received no comments to the notice of final sector rosters, or to the 
definition of ``unmarketable'' fish, as included in the interim final 
rule. Therefore, the definition will remain as stated in the interim 
final rule.
    Tables 1, 2, and 3 (below) explain the allocation of the FY 2011 
ACE for each sector and stock, as a percentage and absolute amount (in 
metric tons and pounds), based on the final sector rosters. The 
regulations provide sectors two weeks following the completion of catch 
data reconciliation by NMFS to trade FY 2010 ACE in order to account 
for any overharvesting during that period. After the completion of two 
week trading window, accountability measures, specifically the 
reduction in FY 2011 ACE for sectors that exceeded their FY 2010 ACE, 
will be implemented. In addition, sectors that did not harvest their 
entire ACE of any particular stock are allowed to carry over up to 10 
percent of their initial allocation to the next year. To discourage 
overfishing of the NE groundfish species, current regulations also 
require NMFS to reserve 20 percent of each sector's FY 2011 ACE until 
FY 2010 landings data are reconciled. Once the reconciliation of FY 
2010 sector catch is complete, the remaining 20 percent of ACE withheld 
from sectors will be allocated, and any sector that still exceeded its 
FY 2010 after reconciliation will have its share of the withheld ACE 
reduced accordingly. NMFS will publish a follow-up rule detailing any 
FY 2011 sector ACE reductions resulting from FY 2010 ACE

[[Page 34904]]

overages, or FY 2011 ACE increases from FY 2010 ACE carryover.
    Table 4 compares the preliminary FY 2011 sub-ACLs for common pool 
and sector vessels published in the final rule implementing FW 45, with 
the current revised sub-ACLs based on the final sector rosters as of 
May 1, 2011.
BILLING CODE 3510-22-P

[[Page 34905]]

[GRAPHIC] [TIFF OMITTED] TR15JN11.000


[[Page 34906]]


[GRAPHIC] [TIFF OMITTED] TR15JN11.001

BILLING CODE 3510-22-C

[[Page 34907]]

[GRAPHIC] [TIFF OMITTED] TR15JN11.002


[[Page 34908]]


[GRAPHIC] [TIFF OMITTED] TR15JN11.003

    Changes in the sub-ACLs for stocks in sectors range from a decrease 
of 1.22 percent of SNE/MA yellowtail flounder, to an increase of 0.73 
percent of GOM winter flounder. Adjustments of the sub-ACLs for stocks 
in the common pool

[[Page 34909]]

range between a 37.93 percent decrease in GOM haddock, to a 46.51 
percent increase in GB haddock. The changes in the common-pool ACLs are 
greater because the common-pool has a significantly lower sub-ACL for 
all stocks, so even small changes appear large when viewed as a percent 
increase or decrease. There is also a large increase in both the common 
pool and sector sub-ACLs for GB yellowtail flounder because of a change 
in the U.S./Canada resource sharing agreement from the International 
Fisheries Agreement Clarification Act (2011) that dramatically 
increased the U.S. TAC of GB yellowtail flounder.
    FW 45 specifies incidental catch TACs applicable to the NE 
multispecies Special Management Programs for FY 2011-2012, based on the 
ACLs, the FMP, and advice from the Council. Incidental catch TACs are 
specified for certain stocks of concern for common pool vessels fishing 
in the Special Management Programs, in order to limit the amount of 
catch of stocks of concern that can be caught under such programs. 
Since these incidental catch TACs are also based on the sub-ACLs for 
the common pool, they have changed based on the revised sub-ACLs. The 
incidental catch TACs for most stocks were based upon the Council's FW 
44 Environmental Assessment (EA), while the incidental catch TACs for 
GB haddock, GB cod, GB yellowtail flounder, white hake, and pollock 
were based upon the Council's FW 45 EA.

                            Table 5--Incidental Catch TACs by Stock for FY 2011 (mt)
----------------------------------------------------------------------------------------------------------------
                                                                            Final rule 2011      Revised 2011
                        Stock                            Percentage of     incidental catch    incidental catch
                                                            sub-ACL               TAC                 TAC
----------------------------------------------------------------------------------------------------------------
GB cod...............................................                  2                 2                  1.86
GOM cod..............................................                  1                 1.3                1.04
GB yellowtail flounder...............................                  2                 0.3                0.4
CC/GOM yellowtail flounder...........................                  1                 0.3                0.27
SNE/MA yellowtail flounder...........................                  1                 1.1                1.2
American plaice......................................                  5                 3.9                3.5
Witch flounder.......................................                  5                 1.2                1.25
SNE/MA winter flounder...............................                  1                 7.3                7.3
GB winter flounder...................................                  2                 0.3                0.28
White hake...........................................                  2                 0.7                0.56
----------------------------------------------------------------------------------------------------------------


                                Table 6--Incidental Catch TACs for Special Management Programs by Stock for FY 2011 (mt)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Regular B DAS program       Closed area I hook gear       Eastern U.S./Canada
                                                                  ------------------------------         haddock SAP                 haddock SAP
                              Stock                                                             --------------------------------------------------------
                                                                     Final rule   Revised  2011   Final rule      Revised     Final rule
                                                                        2011                         2011          2011          2011      Revised  2011
--------------------------------------------------------------------------------------------------------------------------------------------------------
GB cod...........................................................           1.0            0.93           0.3           0.3            .7           0.63
GOM cod..........................................................           1.3            1.04  ............  ............  ............  .............
GB yellowtail flounder...........................................           0.15           0.2   ............  ............            .1           0.2
CC/GOM yellowtail flounder.......................................           0.30           0.27  ............  ............  ............  .............
SNE/MA yellowtail flounder.......................................           1.1            1.2   ............  ............  ............  .............
American plaice..................................................           3.9            3.5   ............  ............  ............  .............
Witch flounder...................................................           1.2            1.25  ............  ............  ............  .............
SNE/MA winter flounder...........................................           7.3            7.3   ............  ............  ............  .............
GB winter flounder...............................................           0.1            0.14  ............  ............            .1           0.14
White hake.......................................................           0.7            0.56  ............  ............  ............  .............
--------------------------------------------------------------------------------------------------------------------------------------------------------

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), the NMFS 
Assistant Administrator has determined that this final rule is 
consistent with the NE Multispecies FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Orders 12866.
    Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), there is good cause to 
waive prior notice and opportunity for public comment, as well as the 
delayed effectiveness for this action, because notice, comment, and a 
delayed effectiveness would be impractical and contrary to the public 
interest. Vessel owners that enroll in sectors could drop out of 
sectors through April 30 (the day before the beginning of the fishing 
year and sector enrollment period), and because NMFS allowed NE 
multispecies permitted vessels purchased after the sector enrollment 
deadline of December 1, 2010, to enroll in a sector until April 30, 
2011, it is necessary to adjust sector ACEs and ACLs for sectors and 
the common pool to account for membership changes. This action makes 
those adjustments to the sector and common pool ACEs and ACLs. NMFS 
discussed and requested public comments on the need to and procedure 
for adjusting the sector and common pool ACEs and ACLs in FW 45 and the 
sector rule. The public offered no comments on these matters, and this 
rule simply implements the procedures previously set forth to adjust 
the ACEs and ACLs to account for changes in sector membership. 
Therefore, it is unnecessary at this point to provide a third 
opportunity to the public to comment on this adjustment. This issue was 
discussed in both the FY 2011 sector and FW 45 proposed and final 
rules.
    Moreover, allowing public comment on these rules is contrary to the 
public interest. If the sector ACEs and sub-ACLs are not adjusted 
immediately, they will operate under incorrect specifications until the 
adjustments are implemented. The implications of delaying the date on 
which the specifications are corrected depends

[[Page 34910]]

upon the size of the ACE and sub-ACL, the size of the change in 
specification relative to the ACE and sub-ACL, and the rate of catch of 
the particular stock. If, for example, a sector were currently catching 
a particular stock for which they have a small ACE at a high rate, and 
that sector's ACE for that stock is adjusted downward in this rule, 
then a significant fraction of that sector's ultimate FY 2011 ACE could 
be harvested and the sector's fishing season shortened upon 
implementation of this rule. In the worst case scenario, excessive 
catch by sectors could lead to a sector catching more than its ACE for 
the applicable FY, and having to forego any additional fishing this 
year. Thus, delaying this rule's effectiveness and allowing for another 
round of public comment could cause negative economic impacts to the 
common pool and to the sectors.
    Additionally, any delays for an additional public comment period or 
to the effectiveness of the rule would create uncertainty for the 
affected entities that would have negative economic implications, which 
are contrary to the public interest. Until the stock allocations are 
finally adjusted, the affected fishing entities will not know how many 
fish of a particular stock they can catch without going over their 
ultimate limits. Fishermen may make both short- and long-term business 
decisions based on the ACLs in a given sector or the common pool; thus, 
it is important to implement adjusted ACEs and sub-ACLs as soon as 
possible. Any delays in adjusting the ACLs and ACEs may cause the 
affected fishing entities to curtail, or speed up, their fishing 
activities during the interim period before the rule's effectiveness. 
Both of these reactions could negatively affect the fishery and the 
businesses and communities that depend on them; the former by delaying 
profits and potentially reducing harvests, the latter by increasing the 
potential for exceeding the ultimate fishing limits. Thus, a delay in 
this rule's effectiveness creates uncertainty in the fishing market 
that is contrary to the public's interest.
    For these reasons, NMFS is waiving the public comment period and 
delay in effectiveness for this rule, pursuant to 5 U.S.C. 553(c) and 
(d).

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

    Dated: June 9, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 2011-14853 Filed 6-14-11; 8:45 am]
BILLING CODE 3510-22-P