[Federal Register Volume 77, Number 136 (Monday, July 16, 2012)]
[Rules and Regulations]
[Pages 41704-41706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17245]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120109034-2171-01]
RIN 0648-XC077


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Adjustment of Georges Bank Yellowtail Flounder 
Annual Catch Limits

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

ACTION: Temporary rule; inseason adjustment of annual catch limits.

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SUMMARY: NMFS announces adjustments to the 2012 fishing year (FY) 
Georges Bank (GB) yellowtail flounder annual catch limits (ACLs) for 
the Atlantic scallop and Northeast (NE) multispecies fisheries. This 
action is based on new projections of the expected catch of GB 
yellowtail flounder by the scallop fishery and is consistent with a 
request for the ACL adjustments from the New England Fishery Management 
Council (Council). The intent is to provide additional harvest 
opportunity to the NE multispecies fishery while ensuring sufficient 
amounts of GB yellowtail flounder are available for the scallop 
fishery.

DATES: Effective July 13, 2012, through April 30, 2013.

FOR FURTHER INFORMATION CONTACT: Brett Alger, Fisheries Management 
Specialist, (978) 675-2153, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The GB yellowtail catch limit for U.S. fisheries, commonly called 
quotas, are set through an agreement process with Canada as part of the 
U.S./Canada Resource Sharing Understanding (Understanding). Scientists 
from both countries conduct a joint assessment of the transboundary 
stock and provide advice on catch level recommendations to a joint U.S. 
and Canadian committee called the Transboundary Management Guidance 
Committee (TMGC). The TMGC establishes an overall quota, called the 
Total Shared Total Allowable Catch (TAC), which is then subdivided to 
the two countries using an agreed-upon allocation formula. For FY 2012, 
the U.S. portion of this quota is 564 mt.
    The Council makes recommendations to NMFS on further partitioning 
the U.S. GB yellowtail quota between the NE multispecies, scallop, and 
other fisheries. The allocation to the scallop fishery, known as the 
sub-ACL, is specified in regulations to be set at an amount equal to 90 
percent of the projected need by that fishery, to maximize scallop 
catch. The groundfish sub-ACL is determined after deducting the sub-ACL 
allocated to the scallop fishery and the sub-ACLs allocated to the 
state-waters fisheries and non-groundfish fisheries. Framework 
Adjustment (FW) 44 to the NE Multispecies Fishery Management Plan 
(FMP), implemented May 1, 2010 (75 FR 18356), established the current 
sub-ACL allocation to the scallop fishery at 307.5 mt. FW 47 to the 
FMP, implemented May 2, 2012 (77 FR 26104), established the 2012 FY GB 
yellowtail flounder sub-ACL for the groundfish fishery at 217.7 mt.
    Scallop fishing vessels, which catch GB yellowtail flounder while 
fishing for scallops, are required to retain all legal-sized yellowtail 
flounder they catch. All yellowtail flounder caught by scallop vessels, 
including those discarded at sea, are counted against the scallop 
fishery's sub-ACL. The majority of groundfish vessels catch GB 
yellowtail flounder in trawl nets, either as incidental catch while 
targeting other groundfish stocks, or while targeting GB yellowtail 
flounder.
    Almost all of the GB yellowtail flounder caught by NE multispecies 
fishing vessels are caught by vessels participating in the sector 
program. Sectors receive an Annual Catch Entitlement (ACE) for each 
regulated groundfish species allocated, including GB yellowtail 
flounder in the GB broad stock area. The amount of ACE varies by 
sector. When a sector has caught its entire available ACE for a given 
stock, vessels in that sector can no longer fish within the applicable 
stock area for that fish stock. The amount of the sub-ACL allocated to 
groundfish vessels, therefore, can be constraining on sector vessels 
that are fishing for other groundfish species, or that are targeting GB 
yellowtail flounder.
    During the April 25, 2012, Council meeting in Mystic, CT, members 
of the NE multispecies fishing industry expressed concern to the 
Council that the 2012 NE multispecies GB yellowtail flounder sub-ACL of 
217.7 mt is too low. Given this concern and indications that the 
scallop fishery sub-ACL for GB yellowtail flounder may be higher than 
needed by the scallop fishery in light of more current catch 
information, the Council requested that NMFS create a GB yellowtail 
flounder working group to explore the possibilities of increasing the 
amount of GB yellowtail sub-ACL allocated to the groundfish fishery. 
The request suggested that the working group include members from the 
TMGC, Council Groundfish and Scallop Committees, and NMFS and Council 
staff. The Council requested that the working group review the 
possibility of revising the sub-ACLs for the scallop and groundfish 
fisheries based on new information suggesting that the projections of 
GB yellowtail flounder catch in the scallop fishery were much higher 
than needed, and to consider modification of the U.S. and Canadian 
shares of GB yellowtail flounder established through the Understanding.
    In response to this request, NMFS formed a working group, which 
also included fishing industry and nongovernmental organization 
representatives. The working group held teleconferences on May 11, 
2012, and

[[Page 41705]]

May 18, 2012, a 1-day workshop in New Bedford, MA, on May 23, 2012, and 
teleconferences on May 31, 2012, and June 15, 2012. During these five 
meetings, the working group discussed a range of short-term and long-
term measures for GB yellowtail flounder management, in addition to the 
Council requests made at its April 2012 meeting. The working group 
recognized that the most effective short-term tool to address the 
Council's request was to utilize existing regulatory authority to 
revise sub-ACLs allocated to the scallop and groundfish fisheries for 
GB yellowtail flounder. To determine the feasibility and magnitude of 
potential revisions of the scallop and groundfish sub-ACLs, the working 
group asked for updated projections NMFS's Northeast Fisheries Science 
Center (NEFSC) of expected catch of GB yellowtail flounder in FY 2012 
by the scallop fishery. As a complementary action to such revisions, 
the working group also discussed the possibility of eliminating or 
adjusting accountability measures (AMs) for the scallop fishery, should 
the sub-ACL for the scallop fishery be reduced substantially.
    In addition to the working group meetings, a joint Groundfish 
Committee and Scallop Committee (Joint Committee) was convened on June 
18, 2012 in Portland, ME, to discuss the Council's original requests 
and review the discussions from the working group. On that same date, 
the NEFSC provided revised projections of possible GB yellowtail 
flounder catch by the scallop fishery ranging from 47.6 mt to 174.3 mt, 
with a median projection of 105.2 mt. Using these new projections, the 
Joint Committee recommended to the Council that they request that NMFS 
use its current regulatory authority to reduce the scallop GB 
yellowtail flounder sub-ACL to 90 percent of 174.3 mt (156.9 mt), and 
increase the groundfish GB yellowtail flounder sub-ACL by the amount of 
this reduction (150.6 mt) to 368.3 mt. In addition, the Joint Committee 
requested emergency action to temporarily relieve the scallop fishery 
from any AM triggered by catch less than 307.5 mt that would otherwise 
be required, based on the reduced sub-ACL. In making this 
recommendation, the Joint Committee emphasized that, if the overall ACL 
for GB yellowtail flounder were exceeded, there would still be an AM in 
place, calling for a pound-for-pound reduction in the amount of the 
overage in the FY 2013 U.S./Canada TAC. At its June 21, 2012, meeting, 
the Council adopted the Joint Committee recommendations, requesting 
that NMFS revise the scallop and groundfish sub-ACLs for GB yellowtail 
flounder and requested an emergency action to temporarily relieve the 
scallop fishery from any AM that would have been triggered by catch of 
GB yellowtail flounder less than 307.5 mt.

Adjustment of Georges Bank Yellowtail Flounder Sub-Annual Catch Limits

    The regulatory authority for revising the scallop and groundfish 
sub-ACLs for GB yellowtail is in 50 CFR part 648, subpart F. Because of 
uncertainty in the initial estimates of yellowtail flounder catch in 
the scallop fishery, FW 47 to the FMP implemented a mechanism (at Sec.  
648.90(a)(4)(iii)(C)) requiring NMFS to re-estimate the expected GB 
yellowtail flounder catch by the scallop fishery by January 15 of each 
fishing year. If the re-estimate of projected GB yellowtail flounder 
indicates that the scallop fishery will catch less than 90 percent of 
its sub-ACL, NMFS may reduce the scallop fishery sub-ACL to the amount 
expected to be caught, and increase the NE multispecies fishery sub-ACL 
for GB yellowtail flounder up to the difference between the original 
estimate and the revised estimate.
    Based on the new projections of GB yellowtail flounder catch by the 
scallop fishery, and this authority, effective July 13, 2012, through 
April 30, 2013 (unless further revised through an additional inseason 
action), NMFS is reducing the scallop fishery sub-ACL of GB yellowtail 
flounder by 150.6 mt (307.5 mt--156.9 mt) and increasing the NE 
multispecies sub-ACL of GB yellowtail flounder by 150.6 mt to 368.3 mt 
(See Table 1). Revising the sub-ACL for the scallop fishery at the high 
end of the projected GB yellowtail flounder catch is intended to avoid 
an underestimation of such catch at a relatively early point in the 
scallop FY, while allowing a meaningful increase in the groundfish sub-
ACL for this stock as soon as possible. This revised allocation of 
368.3 mt GB yellowtail flounder to the NE multispecies fishery is 
allocated between the sector sub-ACL and the common pool sub-ACL in the 
same proportion as the original sub-ACL (See Tables 2 and 3). NMFS will 
continue to monitor both fisheries and, if necessary, make additional 
adjustments prior to January 15, 2013.

                               Table 1--Georges Bank Yellowtail Flounder Sub-ACLs
                                                [In metric tons]
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                                                                           Other; Not fishery
                                          Groundfish        Scallop             specific               Total
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Current Sub-ACL.......................           217.7           307.5  22.6....................           547.8
Adjustment Amount.....................          +150.6          -150.6  None....................             N/A
Revised Sub-ACL.......................           368.3           156.9  22.6....................           547.8
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                                    Table 2--Sector and Common Pool Sub-ACLs
                                                [In metric tons]
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                                                                      Sector        Common pool        Total
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Current Sub-ACL.................................................           215.2             2.5           217.7
Adjustment Amount...............................................          +148.9            +1.7             N/A
Revised Sub-ACL.................................................           364.1             4.2           368.3
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[[Page 41706]]


                              Table 3--Allocations for Sectors and the Common Pool
                                                [In metric tons]
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                            Sector name                                Original         Revised
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Fixed Gear Sector.................................................             0.0             0.0
Maine Permit Bank.................................................             0.0             0.1
New Hampshire Permit Bank.........................................             0.0             0.0
Northeast Coast Communities Sector................................             1.8             3.1
Northeast Fishery Sector II.......................................             4.2             7.0
Northeast Fishery Sector III......................................             0.0             0.0
Northeast Fishery Sector IV.......................................             4.7             8.0
Northeast Fishery Sector V........................................            13.5            22.8
Northeast Fishery Sector VI.......................................             5.9             9.9
Northeast Fishery Sector VII......................................            20.3            34.4
Northeast Fishery Sector VIII.....................................            23.8            40.3
Northeast Fishery Sector IX.......................................            60.8           102.8
Northeast Fishery Sector X........................................             0.0             0.1
Northeast Fishery Sector XI.......................................             0.0             0.0
Northeast Fishery Sector XII......................................             0.0             0.0
Northeast Fishery Sector XIII.....................................            36.2            61.3
Port Clyde Community Groundfish Sector............................             0.0             0.0
Sustainable Harvest Sector 1......................................            27.2            46.0
Sustainable Harvest Sector 3......................................             1.0             1.6
Tri-State Sector..................................................            15.8            26.7
All Sectors Combined..............................................           215.2           364.1
Common Pool.......................................................             2.5             4.2
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Note: All ACE values for sectors outlined in Table 3 assume that each sector permit is valid for FY 2012.

Council Request To Exempt Scallop Fishery From Accountability Measures

    In addition to the request to adjust the GB yellowtail flounder 
sub-ACLs for the scallop and NE multispecies fisheries, the Council 
requested that NMFS use emergency authority granted to the Secretary of 
Commerce by section 305(c) of the Magnuson-Stevens Fishery Conservation 
and Management Act to partially exempt the scallop fishery from AMs 
based on the reduced scallop fishery sub-ACL. This request would exempt 
the scallop fishery from required AMs for any catch above the revised 
sub-ACL, but below the initially allocated sub-ACL of 307.5 mt. Under 
the Council's request, the scallop fishery would be subject to AMs for 
any catch above 307.5 mt, while the existing pound-for-pound payback at 
the overall fishery-level ACL, as specified in the Understanding, would 
remain in place. NMFS is announcing, through this notice, its intent to 
propose a separate rulemaking to exempt the scallop fishery from AMs 
for GB yellowtail flounder for catch below 307.5 mt, consistent with 
the Council's request. A separate rulemaking for the emergency measure 
is necessary because of the need to revise, as soon as possible, the 
sub-ACLs to increase the GB yellowtail flounder available to the 
groundfish fishery. Because the revisions being implemented through 
this action can be taken as an inseason adjustment, and are 
contemplated and required under current regulations, it can be done 
more quickly than the emergency action request. As soon as possible, 
NMFS will publish a proposed rule to revise the scallop fishery AM, as 
requested by the Council; the proposed rule will include an opportunity 
for public comment.

Classification

    This action is authorized by 50 CFR part 648 and is exempt from 
review under Executive Order 12866.
    The Deputy Administrator for Regulatory Programs, performing the 
functions of the Assistant Administrator for Fisheries, NOAA, finds 
good cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive prior notice and 
the opportunity for public comment for this in season sub-ACL 
adjustment because notice and comment would be impracticable and 
contrary to the public interest. The regulations at Sec.  
648.90(a)(4)(iii)(C) grant the NMFS Northeast Regional Administrator 
authority to reduce the scallop fishery sub-ACL to the amount projected 
to be caught, and increase the groundfish fishery sub-ACL up to the 
amount reduced from the scallop fishery in order to maximize the GB 
yellowtail flounder yield. The updated projections of GB yellowtail 
flounder catch in the scallop fishery only recently became available on 
June 18, 2012. Given this fact, the time necessary to provide for prior 
notice and comment would prevent NMFS from implementing the necessary 
sub-ACL adjustments in a timely manner. A resulting delay in the sub-
ACL adjustments could prevent in the short-term NE multispecies vessels 
from harvesting GB yellowtail flounder catch at higher rates and 
potentially prevent the full harvest of the sub-ACLs of other 
groundfish stocks that are caught coincidentally with GB yellowtail 
flounder. Given the significant decreases in catch limits for many 
groundfish stocks in FY 2012, even short-term reductions in such limits 
when no longer needed could have devastating and unnecessary negative 
economic consequences on fishermen. Giving effect to this rule as soon 
as possible will prevent these unnecessary impacts.
    The Deputy Administrator for Regulatory Programs, performing the 
functions of the Assistant Administrator for Fisheries, NOAA, also 
finds good cause pursuant to 5 U.S.C. 553(d)(3) to waive the 30-day 
delay in effectiveness for this action for these same reasons. Further, 
there is no need to allow the industry additional time to adjust to 
this rule because it does not require immediate action on the part of 
individual scallop or groundfish fishermen.

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

    Dated: July 11, 2012.
Lindsay Fullenkamp,
Acting Deputy Director, Office of Sustainable Fisheries, National 
Marine Fisheries Service.
[FR Doc. 2012-17245 Filed 7-13-12; 8:45 am]
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