[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Rules and Regulations]
[Pages 82197-82200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33319]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 111128700-1702-01]
RIN 0648-BB66


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Recreational Accountability Measures

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

ACTION: Interim rule; request for comments.

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SUMMARY: This interim final rule implements a possession limit and 
increases the minimum fish size for haddock caught in the Gulf of Maine 
by recreational anglers aboard private or charter/party vessels. This 
action is intended to address an overage of the fishing year 2010 GOM 
haddock sub-annual catch limit by the recreational fishery, and prevent 
a similar overage from occurring in the future. NMFS implements this 
interim final rule pursuant to its authority under the Magnuson-Stevens 
Fishery Conservation and Management Act and the Northeast Multispecies 
Fishery Management Plan and its implementing regulations.

DATES: Effective January 6, 2012 through December 30, 2012. Comments 
must be received by January 17, 2012.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2011-0252, 
by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking Portal: http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, 
first click the ``Submit a Comment'' icon, then enter ``FDMS Docket 
Number NOAA-NMFS-2011-0252'' in the keyword search. Locate the document 
you wish to comment on from the resulting list and click on the 
``Submit a Comment'' icon on the right of that line.
     Mail: Submit written comments to Daniel Morris, Acting 
Regional

[[Page 82198]]

Administrator, National Marine Fisheries Service, 55 Great Republic 
Drive, Gloucester, MA 01930-2276. Mark the outside of the envelope: 
``Comments on NE Multispecies Recreational AMs.''
     Fax: (978) 281-9135; Attn: Douglas Christel.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only.
    The analysis of the impacts of the measures implemented by this 
action is included in the Final Environmental Impact Statement (FEIS) 
prepared for Amendment 16 to the Northeast (NE) Multispecies Fishery 
Management Plan (FMP) and summarized in the Classification section of 
the preamble of this interim final rule. Copies of Amendment 16, its 
Regulatory Impact Review (RIR), and the FEIS are available from Paul J. 
Howard, Executive Director, New England Fishery Management Council, 50 
Water Street Mill 2, Newburyport, MA 01950. The FEIS/RIR is also 
accessible via the Internet at http://www.nefmc.org/nemulti/index.html.

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

SUPPLEMENTARY INFORMATION: 
    In 2007, the Magnuson-Stevens Fishery Conservation and Management 
Act (Magnuson-Stevens Act) was reauthorized to require that fishery 
management councils establish a mechanism for specifying annual catch 
limits (ACLs) for each managed fishery such that overfishing does not 
occur in the fishery. The reauthorized Magnuson-Stevens Act also 
required that FMPs include measures to ensure accountability in case 
ACLs were exceeded, and to prevent future overages from occurring. The 
final rule implementing Amendment 16 to the NE Multispecies FMP (April 
9, 2010, 75 FR 18262) established a process to set and distribute ACLs 
among the various components of the fishery that catch regulated NE 
multispecies and ocean pout (also known as groundfish) stocks. 
Amendment 16 also established accountability measures (AMs) that would 
be implemented if any ACL is exceeded during a particular fishing year 
(FY).
    The recreational groundfish fishery consists of anglers on private 
recreational and charter/party vessels. This fishery is responsible for 
nearly 30 percent of haddock catch in the Gulf of Maine (GOM) in recent 
years. Accordingly, Amendment 16 allocated the recreational fishery 
27.5 percent of the GOM haddock ACL available to the groundfish 
fishery. Amendment 16 also specified that if the sub-ACL allocated to 
the recreational fishery is exceeded, the Regional Administrator must 
implement the appropriate AMs in the subsequent FY to address the 
overage and prevent such an overage from occurring in the future 
following consultation with the New England Fishery Management Council 
(Council). The recreational AM may include adjustments to season, 
minimum fish size, or possession limits. Separate AMs may be specified 
for the private boat and charter/party components of the recreational 
fishery. Due to the availability of recreational catch data, Amendment 
16 anticipated that an overage would be implemented by January of the 
FY following the overage, and may remain in effect for an undefined 
period of time.
    In FY 2010, the recreational fishery was allocated 324 mt of GOM 
haddock as part of Framework Adjustment 44 to the FMP (April 9, 2010, 
75 FR 18356). Based on available information, NMFS has determined that 
the recreational fishery caught 396.3 mt of GOM haddock during FY 2010. 
This represents an overage of 72.3 mt, or 22.3 percent. In November 
2011, NMFS consulted with the Council and its Recreational Advisory 
Panel to seek input on the appropriate AMs to address this overage. The 
Recreational Advisory Panel recommended that NMFS implement increases 
in the GOM haddock size limit to address the overage, while the Council 
recommended that NMFS consider a possession limit first, adjustments to 
the current minimize fish size second, and additional closed seasons 
last in developing recreational AMs to address the overage.

Management Measures Implemented by This Interim Final Rule

    This interim final rule implements a 9-fish possession limit (a 
reduction, as previously there was no constraint on possession) and 
increases the minimum fish size for haddock caught in the GOM Regulated 
Mesh Area from 18 inches (45.72 cm) to 19 inches (48.26 cm) total 
length. These measures will remain in effect until changed in a future 
action. Based on the flexibility provided in Amendment 16, as codified 
at Sec.  648.89(f), the effective period of such measures could be 
modified through notice consistent with the Administrative Procedure 
Act if it is determined that such measures are not necessary to prevent 
overfishing or ensure that a similar overage does not occur during 
future FYs. NMFS is specifically interested in public input regarding 
the duration necessary for these measures.
    The AMs implemented by this action were selected because they are 
expected to achieve the necessary fishing mortality reduction due to 
the overage of the FY 2010 sub-ACL for this stock, reflect the 
Council's general preference for recreational AMs, are similar to 
measures in place for this stock until recently, and could be 
implemented in a timely manner. For example, a 10-fish possession limit 
was in effect for GOM haddock until 2004, and the minimum size limit 
for GOM haddock was only recently reduced from 19 inches (48.26 cm) to 
18 inches (45.7 cm) in 2009. Because these AMs have already been 
analyzed under the Amendment 16 FEIS, no additional analysis is 
necessary for such measures. This minimizes unnecessary delays in 
implementing this action. Implementation of these measures in a timely 
manner is critical to enabling charter/party operations to finalize 
business plans and advertising strategies as quickly as possible.
    These AMs conflict with the Recreational Advisory Panel's 
recommendation to address the 2010 overage using only increases in size 
limits. However, during the discussion at the Recreational Advisory 
Panel, private anglers supported possession limits in conjunction with 
an increased size limit as an acceptable AM, despite opposition from 
charter/party vessel operators.
    The 9-fish possession limit and 19-inch (48.26 cm) minimum size 
limit for GOM haddock were originally considered during the development 
of Amendment 16 as one of several options designed to reduce the 
fishing mortality rate (F) on GOM haddock by the recreational fishery. 
Amendment 16

[[Page 82199]]

considered such measures in the context of effort reductions that would 
have been necessary if other options to distribute the GOM haddock ACL 
between the commercial and recreational groundfish fisheries were 
adopted by the Council. However, such measures can also be used to 
reduce recreational catch as part of AMs, as described in this action.
    The biological and economic impacts of the AMs implemented by this 
action were analyzed in Section 7.2.2.3.2.3 and 7.5.2.3.2.3 of the 
Amendment 16 FEIS, respectively. The F reduction resulting from the 
measures implemented by this action is nearly identical to the amount 
of overage of the GOM haddock sub-ACL during FY 2010 (22.3 percent), 
and is expected to result in the necessary reduction in catch once 
implemented.
    The Amendment 16 analysis does not quantify the precise economic 
impacts of these measures, but indicates that a 9-fish possession limit 
and a 19-inch (48.26 cm) minimum fish size may result in greater 
negative economic impacts than increasing the minimum fish size to 21 
inches (53.34 cm) to reduce recreational catch of GOM haddock, and less 
economic impacts than implementing a 7-fish possession limit and an 18-
inch (45.72 cm) minimum fish size. The analysis notes that anglers 
likely prefer options that focus on maintaining a higher possession 
limit because of the reliance upon high possession limits to attract 
customers for charter/party trips. However, it was suggested that 
because haddock do not grow as large as cod, exclusive reliance upon 
size limits to achieve the necessary F reductions for GOM haddock may 
reduce the probability of catching and being able to keep a legal-sized 
fish to such an extent that anglers may prefer a lower possession limit 
to a higher size limit.

Classification

    The Administrator, Northeast Region, NMFS, determined that the 
management measures implemented by this interim final rule are 
necessary for the conservation and management of the NE multispecies 
fishery, and that they are consistent with the Magnuson-Stevens Act and 
other applicable law.
    There is good cause under 5 U.S.C. 553(b)(3)(B) and (d)(3) to waive 
prior notice and opportunity for public comment, and the 30-day delay 
in effective date, respectively, for the measures implemented by this 
interim final rule because such a delay would be impracticable and 
contrary to the public interest. This interim final rule is necessary 
to implement AMs to address an overage of the FY 2010 GOM haddock sub-
ACL by the recreational groundfish fishery and prevent a similar 
overage from occurring in the future. Data available to estimate the 
recreational catch of GOM haddock come from the Marine Recreational 
Fisheries Statistics Survey (MRFSS), a telephone and shore-side 
intercept survey of fishing effort and angler catch. This process 
results in ``waves'' (a 2-month period) of data that estimate catch 
throughout the year. Catch data through the end of a particular FY 
(April of each year) are only available in June or July. These data 
must then be analyzed based on the distribution of anglers and fishing 
effort to estimate the catch of haddock in the GOM and on Georges Bank, 
the two stocks of haddock managed under the FMP. An estimate of the 
recreational catch of GOM haddock during FY 2010 (May 2010-April 2011) 
was made available to NMFS and the Council just before the September 
Council meeting. However, because the issue was not on the published 
Council agenda and there was no information available on which to base 
potential AMs at the time of the meeting, the Council did not offer 
recommendations about the appropriate AMs to address the FY 2010 
overage by the recreational fishery. Further, there were substantial 
concerns raised by the Council about the accuracy of the recreational 
data, primarily because the existing MRFSS process is expected to be 
replaced in the near future by a more accurate and thorough process for 
estimating recreational catch. It is unclear at this time whether the 
updated methodology will result in different estimates of recreational 
catch of GOM haddock during FY 2010, or other years. As a result, it 
was not until November that the Council or its advisory bodies were 
able to discuss the recreational overage of the FY 2010 GOM haddock 
sub-ACL, and recommend appropriate AMs to NMFS, as required by the 
existing regulations. Thus, it was impracticable for NMFS to publish 
rulemaking soliciting public comment on appropriate AMs in the 
recreational fishery until first consulting with the Council at its 
November 15-17, 2011, meeting.
    As noted above, this interim final rule immediately reduces fishing 
mortality on GOM haddock by the recreational fishery in order to 
address an overage of the FY 2010 recreational sub-ACL. This is 
important for preventing overfishing from occurring, as required in the 
Magnuson-Stevens Act, especially considering that the biomass for GOM 
haddock is expected to continue to decline over the next few years. The 
recreational fishing season, particularly for charter/party vessels, 
begins in earnest in March and April of each year. Charter/party 
operations advertise and try to book fishing trips prior to the start 
of the fishing season as part of their yearly business plans. As a 
result, it is important to implement recreational AMs in a timely 
manner and before the recreational fishing begins to not only increase 
the effectiveness of such measures at achieving desired F reductions in 
the recreational fishery, but also to enable charter/party vessel 
operators to effectively plan, advertise, and book trips for the 
upcoming fishing season. Delays in implementing recreational AMs to 
consider additional public input for the measures implemented by this 
action will only complicate business plans currently being developed by 
charter/party operations for the upcoming fishing season. Further, 
delays in implementing such measures could result in the AMs becoming 
effective midway into the spring recreational fishing season. This 
could result in unanticipated negative economic impacts to charter/
party vessel operators and associated supporting businesses due to 
confusion in applicable regulations, changes to advertisements, and 
potentially cancelled trips. In addition, mid-season implementation may 
undermine compliance with such measures and reduce the effectiveness of 
the AMs and their benefits to the GOM haddock stock. If such measures 
are not effective at reducing recreational catch and, therefore, F on 
this stock, further measures may be necessary in the future to ensure 
that overfishing does not occur, as required by the Magnuson-Stevens 
Act. Therefore, it is contrary to the public interest to unnecessarily 
delay the implementation of such measures due to the potential 
biological and economic impacts that may result.
    The measures implemented by this interim final rule have already 
been considered by the public as part of Amendment 16 to the FMP. 
During the development of Amendment 16, several public meetings were 
held in which these measures were discussed. Further, the public had an 
opportunity to comment on these measures as part of the public review 
of the notices of availability for both the Amendment 16 Draft 
Environmental Impact Statement (DEIS) and FEIS that were published in 
the Federal Register on April 24, 2009 (74 FR 18705), and October 30, 
2009 (74 FR 56194), respectively. During both comment periods, public 
comments were received concerning recreational measures considered in 
Amendment 16,

[[Page 82200]]

including specific comments regarding the haddock minimum size limit 
and the recreational AMs. These comments were considered during the 
decision by the Council to adopt final measures in Amendment 16 (DEIS 
comments only), and by the Secretary in the partial approval of 
Amendment 16. Moreover, the public also had an opportunity to discuss 
such measures during the comment period for the proposed rule to 
implement measures adopted by the Council in Amendment 16 (December 31, 
2009, 74 FR 69382). As noted above, NMFS consulted with the Council, 
the Groundfish Recreational Advisory Panel, and the Groundfish 
Oversight Committee at meetings in November 2011 to elicit their input 
into appropriate AMs to address the recreational fishery overage of the 
GOM haddock sub-ACL during FY 2010. During the Advisory Panel and 
Committee meetings, the measures implemented by this interim final rule 
were specifically discussed as potential AMs to address the overage. 
The public, including both private recreational anglers and charter/
party vessel operators, provided input into their preference for AMs to 
address this overage during these meetings. Finally, additional public 
comment on these measures is being sought through the implementation of 
this action as an interim final rule.
    Pursuant to the procedures established to implement section 6 of 
E.O. 12866, the Office of Management and Budget has initially 
determined that this interim rule is not significant.
    This interim final rule does not contain policies with Federalism 
or ``takings'' implications as those terms are defined in E.O. 13132 
and E.O. 12630, respectively.

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

    Dated: December 22, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-33319 Filed 12-29-11; 8:45 am]
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