[Federal Register Volume 78, Number 86 (Friday, May 3, 2013)]
[Rules and Regulations]
[Pages 26172-26209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10460]



[[Page 26171]]

Vol. 78

Friday,

No. 86

May 3, 2013

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 648





Magnuson-Stevens Fishery Conservation and Management Act Provisions; 
Fisheries of the Northeastern United States; Northeast Multispecies 
Fishery; Framework Adjustment 50; Interim Final Rule

  Federal Register / Vol. 78, No. 86 / Friday, May 3, 2013 / Rules and 
Regulations  

[[Page 26172]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 130219149-3397-02]
RIN 0648-BC97


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Framework Adjustment 50

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

ACTION: Interim final rule; emergency action; request for comments.

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SUMMARY: NMFS partially approves Framework Adjustment 50 (Framework 50) 
to the Northeast (NE) Multispecies Fishery Management Plan (FMP), and 
implements the approved measures. NMFS also implements three parallel 
emergency actions to set fishing year (FY) 2013 catch limits for 
Georges Bank (GB) yellowtail flounder and white hake, and to modify the 
maximum Gulf of Maine (GOM) cod carryover available to sectors from FY 
2012 to FY 2013. Framework 50 sets specifications for FYs 2013-2015, 
including 2013 total allowable catches (TACs) for U.S./Canada stocks, 
and revises the rebuilding program and management measures for Southern 
New England/Mid-Atlantic (SNE/MA) winter flounder. This final rule also 
implements FY 2013 management measures for the recreational and common 
pool fisheries and clarifies how to account for sector carryover for FY 
2013 and for FY 2014 and beyond. These actions are necessary to prevent 
overfishing, rebuild overfished stocks, achieve optimum yield (OY), and 
ensure that management measures are based on the best available 
scientific information.

DATES: Effective May 1, 2013, except for:
    The amendment to Sec.  648.87 (b)(1)(i)(C) is effective May 3, 
2013, through October 30, 2013.
    The amendment to Sec.  648.90 is effective May 2, 2013.
    The specification of the white hake and GB yellowtail flounder 
catch limits under ``Annual Catch Limit Specifications'' in the 
preamble are effective May 3, 2013, through October 30, 2013.
    Comments on the carryover measures for FY 2014 and beyond, and the 
re-estimation of the SNE/MA yellowtail flounder catch by scallop 
vessels, must be received by June 17, 2013.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2013-0053, 
by any of the following methods:
     Electronic submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0053, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Paper, disk, or CD-ROM comments should be sent to 
John K. Bullard, Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the 
outside of the envelope, ``Interim Final Measures for NE Multispecies 
Sector Carryover.''
     Fax: (978) 281-9135, Attn: Sarah Heil.
    Instructions: 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 by NMFS. 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.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. 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, Excel, or Adobe PDF file formats only.
    Copies of Framework 50, associated emergency rules, and other 
measures, the environmental assessment (EA), its Regulatory Impact 
Review (RIR), and the Final Regulatory Flexibility Act (FRFA) analysis 
prepared by the Council and NMFS are available from John K. Bullard, 
Regional Administrator, NMFS Northeast Regional Office (NERO), 55 Great 
Republic Drive, Gloucester, MA 01930. The FRFA analysis consists of the 
FRFA, public comments and responses, and the summary of impacts and 
alternatives contained in this final rule and Framework 50, Associated 
Emergency Rules, and Other Measures. The EA/RIR/FRFA is also accessible 
via the Internet at: http://www.nero.noaa.gov/sfd/sfdmulti.html.

FOR FURTHER INFORMATION CONTACT: Sarah Heil, Fishery Policy Analyst, 
phone: 978-281-9257, fax: 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    The FMP specifies management measures for 16 species in Federal 
waters off the New England and Mid-Atlantic coasts, including both 
large-mesh and small-mesh species. Small-mesh species include silver 
hake (whiting), red hake, offshore hake, and ocean pout; and large-mesh 
species include Atlantic cod, haddock, yellowtail flounder, pollock, 
American plaice, witch flounder, white hake, windowpane flounder, 
Atlantic halibut, winter flounder, Acadian redfish, and Atlantic 
wolffish. Large-mesh species, which are referred to as ``regulated 
species,'' are divided into 19 fish stocks, and along with ocean pout, 
make up the groundfish complex.
    The New England Fishery Management Council (Council) developed and 
adopted Framework 50, in conjunction with Framework 48 to the FMP 
(Framework 48), based on the biennial review process established in the 
FMP to set annual catch limits (ACLs) and to revise management measures 
necessary to rebuild overfished groundfish stocks and achieve the goals 
and objectives of the FMP. The Council initially intended to set the 
specifications for FYs 2013-2015, including adoption of FY 2013 TACs 
for U.S./Canada stocks, through Framework 48. Framework 48 also 
includes measures to establish allocations of SNE/MA windowpane 
flounder and GB yellowtail flounder for some non-groundfish fisheries, 
modify sector management and groundfish fishery accountability measures 
(AMs), and help mitigate anticipated impacts of the FY 2013 catch 
limits. At its December 2012 meeting, the Council voted to remove the 
specifications from Framework 48 and initiate a separate specifications 
package (Framework 50) for final action at its January 2013 meeting. 
Due to the reductions in catch limits anticipated for FY 2013, the 
Council needed additional time to explore any flexibility that may be 
available for setting specifications, and to complete the necessary 
analyses for the proposed measures. The Council also needed additional 
time to develop new management measures for SNE/MA winter flounder that 
were expected to help mitigate the anticipated impacts of the FY 2013 
catch limits. In addition, the results of the December 2012 benchmark 
assessments for GOM and GB cod were not yet available when the Council 
took final action on Framework 48, but became available prior to the 
Council's January 2013 meeting.

[[Page 26173]]

Disapproved Measures

FY 2013 GB Yellowtail Flounder Catch Limits

    NMFS disapproves the FY 2013 Acceptable Biological Catch (ABC) of 
1,150 mt (U.S. quota 495 mt) for GB yellowtail flounder that the 
Council proposed in Framework 50, on grounds that it is inconsistent 
with the necessary provisions of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), particularly 
the National Standard 1 requirement to prevent overfishing, and the 
National Standard 2 requirement to use the best scientific information 
available. During the development of Framework 50, and in the proposed 
rule for this action, NMFS expressed concern about this ABC and 
cautioned that it may not be approvable, as it did not appear to be 
based on the best scientific information available and could lead to 
overfishing.
    The 2012 Transboundary Resources Assessment Committee (TRAC) 
assessment for GB yellowtail flounder was completed in June 2012. A 
detailed summary of the 2012 TRAC assessment can be found at: http://www2.mar.dfo-mpo.gc.ca/science/trac/tsr.html. The 2012 TRAC noted that, 
in recent years, catches based on the approved assessment model (Split 
Series model) have not reduced fishing mortality below the fishing 
mortality limit reference (Fref),\1\ or increased spawning 
stock biomass (SSB) as expected. There was also a significant 
retrospective pattern in the 2012 assessment, which causes SSB to be 
overestimated and fishing mortality (F) to be underestimated. As a 
result, the TRAC recommended that 2013 catches should not be based on 
the assessment results without adjusting for the retrospective bias. 
The 2013 unadjusted catch from the Split Series model would be 
approximately 882 mt. This is the catch that would result from F that, 
if applied over the long term, would result in maximum sustainable 
yield (FMSY). Based on the assessment results, 2013 catches 
should not be above 882 mt, and in order to account for scientific 
uncertainty in the assessment, should be considerably below this level 
to help ensure that overfishing does not occur.
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    \1\ The fishing mortality limit reference (Fref) for 
GB yellowtail flounder (0.25) was negotiated as part of the U.S./
Canada Resource Sharing Understanding. The Transboundary Management 
Guidance Committee's harvest strategy is to maintain a low to 
neutral risk of exceeding Fref. The Fref for 
GB yellowtail flounder is equal to FMSY (0.25) that is 
applied in the U.S. to calculate overfishing limits consistent with 
the Magnuson-Stevens Act. See Item 3 for more information on the 
joint (U.S./Canada) management of transboundary GB groundfish 
stocks.
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    The 2012 TRAC performed five sensitivity analyses to attempt to 
minimize the retrospective bias and evaluate a few potential factors 
(i.e., missing catch, an increased natural mortality rate (M), a 
combination of missing catch and increased M) that might explain the 
retrospective pattern in the assessment. The results from the 
sensitivity analyses help characterize the scientific uncertainty and 
risk in the 2013 catch advice, and were used by the TRAC as the basis 
of the 2013 catch advice. Based on the sensitivity analyses, a 2013 
quota of 200 mt would have a high probability that F would be less than 
Fref, and that SSB would increase. A 2013 quota between 400-
500 mt would result in an F that is below Fref (in one of 
the five sensitivity runs), or that SSB would increase (in the other 
four sensitivity runs). The 2012 TRAC results indicate that the lower 
end of the 2013 quota range would have a greater probability that F 
would be less than Fref, and that the adult biomass would 
increase, than the higher end of the range.
    The Council's Scientific and Statistical Committee (SSC) 
recommended a FY 2013 ABC for GB yellowtail flounder of 200-1,150 mt 
and determined that the overfishing limit (OFL) is unknown. The SSC 
noted that a 2013 catch limit of 200 mt would have a low probability of 
overfishing and would be expected to allow the stock to increase, and 
that a 2013 catch limit of 400-500 mt would have a greater probability 
of overfishing than 200 mt, but would likely allow some rebuilding. The 
SSC also noted that the rationale for a FY 2013 ABC of 400-500 mt is 
similar to the rationale of its ABC recommendation for FY 2012. The SSC 
recommended an ABC of 1,150 mt as a backstop measure only, and noted 
that unintentional bycatch may exceed 500 mt, but total removals should 
be less than the FY 2012 ABC of 1,150 mt. The SSC noted in its November 
2012 report that its recommendation for 1,150 mt was qualitative and 
not based on the 2012 TRAC assessment, and concluded that this ABC 
represented a status quo catch limit relative to the FY 2012 ABC.
    The SSC also recommended that there should be no directed fishery 
for GB yellowtail flounder, and that measures should be taken to reduce 
bycatch as much as possible. In its September 2012 report, the SSC 
noted that an ABC of 1,150 mt would only be appropriate when management 
measures have a high probability of resulting in low Fs. The SSC did 
not provide any detail on what it intended by its recommendation for 
reducing bycatch, or what management measures it expected the Council 
to modify to meet this recommendation. Nonetheless, the Council did not 
adopt or modify any management measures that would necessarily prevent 
targeting of GB yellowtail flounder, or result in a high probability of 
low Fs under this ABC alternative. The SSC did not endorse an FY 2013 
ABC of 1,150 mt as an appropriate catch level for any directed fishing, 
and as a result, the Council's proposed ABC of 1,150 mt is not 
consistent with the SSC's recommendation.
    Moreover, NMFS has determined that the 2012 TRAC assessment for GB 
yellowtail flounder represents the best scientific information 
available, and notes that the SSC did not reject the 2012 TRAC 
assessment. The recommendation for a FY 2013 ABC of 1,150 mt is higher 
than the catch levels suggested by the unadjusted Split Series model 
results (882 mt). The TRAC indicated that 2013 catches based on the 
unadjusted model would likely fail to achieve management objectives, 
and would not appropriately account for the retrospective bias in the 
assessment. Therefore, based on the 2012 assessment, a FY 2013 ABC of 
1,150 mt would almost certainly fail to prevent overfishing. As a 
result, NMFS has determined that a 2013 catch of 1,150 mt is 
inconsistent with National Standards 1 and 2 of the Magnuson-Stevens 
Act, which requires that management measures must prevent overfishing 
and be based on the best scientific information available. Thus, NMFS 
disapproves the FY 2013 ABC of 1,150 mt adopted by the Council in 
Framework 50.

Approved Measures

    The Framework 50 measures that are approved are described below. 
All of the measures in Framework 50 are approved except for the FY 2013 
ABC for GB yellowtail flounder that was described in the previous 
section. This final rule also implements FY 2013 management measures 
for the common pool and recreational fisheries. These measures are not 
part of Framework 50, and are being implemented under Regional 
Administrator (RA) authority provided by the FMP.
    In addition, this final rule implements three parallel emergency 
actions under authority provided in section 305(c) of the Magnuson-
Stevens Act. The Magnuson-Stevens Act authorizes the Secretary of 
Commerce (Secretary) to implement emergency rules or interim measures 
if the Secretary finds that an emergency involving a fishery exists, or

[[Page 26174]]

that interim measures are needed to reduce overfishing. The Secretary 
can also implement emergency rules or interim measures if the Council 
finds that one of these factors exists and requests that the Secretary 
act. NMFS issued guidance defining when an emergency involving a 
fishery exists (62 FR 44421; August 21, 1997). This guidance defines an 
emergency as a situation that: (1) Arose from recent, unforeseen 
events; (2) presents a serious conservation or management problem in 
the fishery; and (3) can be addressed through interim emergency 
regulations for which the immediate benefits outweigh the value of 
advance notice, public comment, and the deliberative consideration of 
the impacts on participants to the same extent as would be expected 
under the formal rulemaking process (if the emergency rule is being 
implemented without the opportunity for prior public comment). NMFS 
policy guidelines also state that an emergency action is justified for 
certain situations where emergency action would prevent significant 
direct economic loss, or preserve a significant economic opportunity 
that otherwise might be lost.
    NMFS, on behalf of the Secretary, is using section 305(c) emergency 
rulemaking authority to:
     Implement FY 2013 GB yellowtail flounder catch limits that 
differ from the Council's recommended levels;
     Increase the FY 2013 white hake catch limits from those 
proposed in Framework 50; and
     Modify the maximum allowable carryover for GOM cod that is 
available to sectors from FY 2012 to FY 2013.
    Rationale for how each of these actions satisfies the criteria for 
emergency rulemaking is provided within their respective sections later 
in this preamble.
    An additional set of measures to modify sector carryover provisions 
for FY 2014 and beyond are being implemented under authority of section 
305(d) of the Magnuson-Stevens Act, which says that the Secretary may 
independently promulgate regulations necessary to ensure that fishery 
management plans or amendments are carried out, and implemented, in 
accordance with the Magnuson-Stevens Act. These measures are necessary 
to reconcile conflicts between the sector carryover program and the 
conservation objectives of the FMP as well as to clarify how to account 
for carryover catch in a manner consistent with the National Standards 
of the Magnuson-Stevens Act.

1. SNE/MA Winter Flounder Rebuilding Program

    The current rebuilding strategy for SNE/MA winter flounder was 
implemented in 2004 with a targeted rebuilding end date of 2014 with a 
median probability of success. In 2008, data showed that the stock 
would not rebuild by 2014, even in the absence of all fishing 
mortality, but would likely rebuild between 2015 and 2016. As a result, 
Amendment 16 to the FMP (Amendment 16) adopted management measures that 
would result in Fs as close to zero as practicable. The stock is not 
currently allocated to sectors, and possession is prohibited by 
commercial and recreational vessels.
    A benchmark assessment was completed in June 2011 for SNE/MA winter 
flounder and concluded that there was less than a 1-percent chance that 
SNE/MA winter flounder would rebuild by 2014, even if no fishing 
mortality were allowed from 2012 to 2014. Based on the assessment 
results, NMFS determined that SNE/MA winter flounder was not making 
adequate rebuilding progress. Section 304(e)(7) of the Magnuson-Stevens 
Act says that, if the Secretary finds that an FMP has not resulted in 
adequate progress toward ending overfishing and rebuilding, the 
Secretary must immediately notify the Council and recommend 
conservation and management measures that would achieve adequate 
progress. Therefore, on behalf of the Secretary, NMFS notified the 
Council in May 2012 that the SNE/MA winter flounder rebuilding program 
was not making adequate progress. As a result, NMFS also notified the 
Council that it must implement a revised rebuilding plan for the stock 
within 2 years, or by May 1, 2014, consistent with the rebuilding 
requirements of the Magnuson-Stevens Act. In December 2012, the Council 
developed a proposal to re-specify the ABC for SNE/MA winter flounder 
to achieve an ACL of at least 1,400 mt while continuing to prevent 
overfishing. The Council also proposed to allocate this stock to 
sectors beginning in FY 2013. To allow the Council's proposed revisions 
to the management approach for SNE/MA winter flounder (see Item 2 of 
this preamble for more information), NMFS notified the Council that it 
must revise the rebuilding program for this stock.
    Therefore, this action revises the rebuilding strategy for SNE/MA 
winter flounder to rebuild the stock by 2023 with a median probability 
of success. During the rebuilding program, catch limits will be set 
based on the F that would rebuild the stock within its rebuilding 
timeframe (Frebuild). However, groundfish stock projections 
have recently demonstrated a tendency to overestimate stock growth. 
Therefore, short-term catch advice for SNE/MA winter flounder could 
reduce catches from Frebuild in order to account for the 
scientific uncertainty in the projections. If SNE/MA winter flounder 
stock size increases more rapidly than originally projected, 
Frebuild will be recalculated, which could allow increased 
catch limits in the future.
    The minimum rebuilding time (Tmin) is the amount of time 
a stock is expected to take to rebuild to its MSY biomass level in the 
absence of any fishing mortality. For SNE/MA winter flounder, 
Tmin is 6 years (from 2013), or 2019. Because the stock can 
rebuild in less than 10 years in the absence of all fishing mortality, 
the maximum rebuilding period for SNE/MA winter flounder is 10 years. A 
rebuilding end date of 2023 rebuilds the stock as quickly as possible 
taking into account the needs of fishing communities. This rebuilding 
strategy would return greater net benefits than a rebuilding strategy 
that targets an end date between 2019 and 2023.

2. SNE/MA Winter Flounder Management Measures

Landing Restrictions
    As described in Item 1 of this preamble, the prohibition on 
retention for SNE/MA winter flounder was adopted by Amendment 16 to 
keep Fs as close to zero as practicable in order to rebuild this stock. 
This measure has effectively reduced fishing mortality and overfishing 
is not occurring for this stock. At its December 2012 meeting, the 
Council developed measures to modify the management program for SNE/MA 
winter flounder as one way to help mitigate the anticipated impacts of 
the reductions in the FY 2013 catch limits.
    This action allocates SNE/MA winter flounder to sectors, and as 
described below, subjects the stock to an inseason AM that closes the 
stock area to sectors once their Annual Catch Entitlement is caught. As 
adopted by Amendment 16, each vessel's potential sector contribution 
(PSC) for SNE/MA winter flounder will be calculated using dealer 
landings during FYs 1996 through 2006. In addition, this action allows 
commercial and recreational vessels to land SNE/MA winter flounder. 
Sector vessels are required to land all legal-sized SNE/MA winter 
flounder, and common pool vessels may land legal-sized fish within the 
trip limit, or any other inseason restrictions, specified by

[[Page 26175]]

the RA. The minimum fish size for SNE/MA winter flounder for both 
commercial and recreational vessels is 12 inches (30.5 cm). Initial FY 
2013 trip limits for common pool vessels are provided in Item 8 of this 
preamble.
    Allowing landings of SNE/MA winter flounder is expected to provide 
additional fishing opportunities for groundfish vessels in FY 2013 that 
will help offset low quotas for some groundfish stocks, and promote OY 
in the fishery. Landings of the stock will also provide the opportunity 
to collect biological samples from landed fish after possession has 
been prohibited in recent years.
Commercial Fishery AMs
    Since Amendment 16, the AM for SNE/MA winter flounder has been zero 
possession, and there was no reactive AM for the stock. In December 
2011, a Court order in Oceana v. Locke required that reactive AMs be 
developed for all of the stocks not allocated to sectors. As a result, 
Framework 48 proposed an area-based AM for commercial groundfish 
vessels that would implement gear restrictions for common pool and 
sector vessels in certain areas if the total ACL for SNE/MA winter 
flounder was exceeded. This action replaces this area-based AM for 
sector vessels with the standard inseason sector AM, since the stock is 
being allocated to sectors. All catch (landings and discards) of SNE/MA 
winter flounder will be attributed to a sector's ACE. Sector vessels 
will be required to stop fishing inseason in the SNE/MA winter flounder 
stock area once the entire sector's ACE is caught, unless the sector 
leases additional ACE. If a sector exceeds its ACE for the fishing 
year, it will be subject to an additional AM that will reduce the 
sector's ACE in the following fishing year by the amount of the 
overage.
    This action also implements an area-based AM for common pool 
vessels. The AM will be triggered if the common pool sub-ACL is 
exceeded by more than the management uncertainty buffer. Currently, the 
management uncertainty buffer for the common pool fishery is 5 percent 
for SNE/MA winter flounder. The management uncertainty buffers can be 
revised each time the specifications are set, so the buffer used for 
the common pool fishery could change in future actions. The common pool 
fishery makes up only about 2 percent of the total catch of SNE/MA 
winter flounder, and other components of the fishery typically 
underharvest their portions of the ABC. As a result, triggering the 
common pool AM for this stock by an overage of the sub-ACL that exceeds 
the management uncertainty buffer is not expected to increase the 
likelihood that the total ACL would be exceeded, or that overfishing 
would occur, and will help achieve OY in the fishery.
    The AM for common pool vessels requires that trawl vessels fishing 
on a NE multispecies day-at-sea (DAS) must use approved selective trawl 
gear in the SNE/MA Winter Flounder AM Areas. Approved gears include the 
separator trawl, the Ruhle trawl, the mini-Ruhle trawl, rope trawl, and 
any other gear authorized by the Council in a management action, or 
approved for use consistent with the process defined in Sec.  
648.85(b)(6). This area-based AM does not restrict common pool vessels 
fishing with longline or gillnet gear. If triggered, the AM will be 
implemented in the fishing year following the overage, and would be 
effective for the entire fishing year. The AM would account for an 
overage of the common pool sub-ACL of up to 20 percent. If the common 
pool fishery exceeds its sub-ACL by 20 percent or more, the AM will be 
implemented, and this measure will be reconsidered by the Council in a 
future action.
    As adopted by Amendment 16, if the total ACL is exceeded, and the 
overage is caused by a sub-component of the fishery that is not 
allocated a sub-ACL, and does not have an AM, the overage will be 
distributed among the components of the fishery that do have a sub-ACL, 
and if necessary, the pertinent AM will be triggered. If sub-ACLs are 
allocated to additional fisheries in the future, and AMs developed for 
those fisheries, the AM for any fishery would only be implemented if it 
exceeds its sub-ACL, or if the total ACL for the stock is exceeded. If 
only one fishery exceeds it sub-ACL, only the AM for that fishery will 
be implemented.

3. U.S./Canada TACs

    Eastern GB cod, eastern GB haddock, and GB yellowtail flounder are 
managed jointly with Canada through the U.S./Canada Resource Sharing 
Understanding (Understanding). Each year the Transboundary Management 
Guidance Committee (TMGC), a government-industry committee made up of 
representatives from the United States and Canada, recommends a shared 
TAC for each stock based on the most recent stock information and the 
TMGC harvest strategy. The TMGC's harvest strategy for setting catch 
levels is to maintain a low to neutral risk (less than 50 percent) of 
exceeding the fishing mortality limit reference for each stock 
(Fref = 0.18, 0.26, and 0.25 for cod, haddock, and 
yellowtail flounder, respectively). The TMGC's harvest strategy also 
specifies that when stock conditions are poor, fishing mortality should 
be further reduced to promote rebuilding. The shared TACs are allocated 
between the United States and Canada based on a formula that considers 
historical catch percentages (10-percent weighting) and the current 
resource distribution based on trawl surveys (90-percent weighting). 
The U.S./Canada Management Area comprises the entire stock area for GB 
yellowtail flounder; therefore, the U.S. TAC for this stock is also the 
U.S. ABC. Eastern GB cod and haddock are sub-units of the total GB cod 
and haddock stocks. The U.S./Canada TACs for these stocks are a portion 
of the total ABC.
    Assessments for the three transboundary stocks were completed in 
June 2012 by the TRAC. A detailed summary of the 2012 TRAC assessment 
can be found at: http://www2.mar.dfo-mpo.gc.ca/science/trac/tsr.html. 
The TMGC met in September 2012 to recommend shared TACs for FY 2013. 
Based on the results of the 2012 TRAC assessment, the TMGC recommended 
a shared TAC of 600 mt for eastern GB cod, 10,400 mt for eastern GB 
haddock, and 500 mt for GB yellowtail flounder. At its November 14, 
2012, meeting, the Council recommended the TMGC's guidance for eastern 
GB cod and haddock for FY 2013, but it did not recommend the TMGC's 
guidance for GB yellowtail flounder. The Council selected a preferred-
alternative for GB yellowtail flounder of 1,150 mt for FY 2013, which 
is more than double the TMGC's recommendation of 500 mt.
    The 2013 U.S./Canada TACs and the percentage share for each country 
are listed in Table 1. This action approves the eastern GB cod and 
haddock TACs adopted in Framework 50. However, as described previously 
in this preamble, NMFS disapproves the FY 2013 GB yellowtail flounder 
ABC (1,150 mt) adopted by the Council in Framework 50. Because the 
Council typically sets specifications for multiple years at a time, 
Framework 47 to the FMP (Framework 47) (77 FR 26104; May 2, 2012) 
specified an ABC of 1,150 mt for GB yellowtail flounder for FYs 2012-
2013. The FY 2013 ABC was based on the 2011 TRAC assessment, which was 
the best scientific information available, and the SSC and the Council 
fully intended to replace this ABC in a future management action based 
on the 2012 TRAC assessment. The FY 2013 ABC that was previously 
specified in Framework 47 (1,150 mt) is identical to the ABC proposed 
by the Council in Framework 50 that NMFS is

[[Page 26176]]

disapproving because it is would likely result in overfishing and would 
not be based on the best scientific information available. Thus, NMFS's 
disapproval of the FY 2013 ABC proposed in Framework 50 leaves the 
fishery with the same catch limit for this stock, as adopted by, and 
approved in, Framework 47. Due to serious conservation concerns, and 
the potential for this catch limit to cause harm to the resource, NMFS 
is instead implementing a FY 2013 ABC of 500 mt (U.S. TAC 215 mt) 
through emergency rulemaking, as more fully discussed later in this 
preamble (see Item 4).
    The Understanding requires that any overages of the U.S. TACs for 
eastern GB cod, eastern GB haddock, or GB yellowtail flounder be 
deducted from the U.S. TAC in the following fishing year. If FY 2012 
catch information indicates that the U.S. fishery exceeded its TAC for 
any of the shared stocks, NMFS is required to reduce the FY 2013 U.S. 
TAC for that stock. If an overage occurs, NMFS will announce the 
necessary overage deduction as soon as possible in FY 2013. As adopted 
in Framework 48, if any fishery that is allocated a portion of the U.S. 
TAC exceeds its allocation, which causes an overage of the U.S. TAC, 
the overage deduction will be applied to this fishery's sub-ACL in the 
following fishing year.

                    Table 1--FY 2013 U.S./Canada TACS (Mt, Live Weight) and Percentage Shares
----------------------------------------------------------------------------------------------------------------
                                                                                          GB yellowtail flounder
                 TAC                       Eastern  GB cod        Eastern  GB haddock       emergency  action
----------------------------------------------------------------------------------------------------------------
Total Shared TAC....................  600                       10,400                   500
U.S. TAC............................  96 (16%)                  3,952 (38%)              215 (43%)
Canada TAC..........................  504 (84%)                 6,448 (62%)              285 (57%)
----------------------------------------------------------------------------------------------------------------

4. OFLs and ABCs

    The OFL for each stock in the FMP is calculated using the estimated 
stock size and FMSY. The SSC recommends ABCs for each stock 
that are lower than the OFLs to account for scientific uncertainty. In 
most cases, the ABCs are calculated using the estimated stock size for 
a particular year, and are based on the catch associated with 75 
percent of FMSY, or Frebuild, whichever is lower. 
This is the Council's default ABC control rule that was adopted by 
Amendment 16. However, in recent years, catch projections for 
groundfish stocks have been overly optimistic. Catch projections often 
overestimate stock growth and underestimate fishing mortality. As a 
result, even catches that were substantially lower than the projected 
catch resulted in overfishing for some stocks. So, in many cases, the 
SSC has recommended ABCs that are lower than the catch associated with 
75 percent of FMSY or Frebuild, or constant 
catches for FYs 2013-2015, in order to further account for scientific 
uncertainty. Appendix III to the Framework 50 EA provides additional 
detail on the OFLs and ABCs adopted by the Council for each stock (see 
ADDRESSES for information on how to get this document).
    As part of the biennial review process for the FMP, the Council 
adopts OFLs and ABCs for 3 years at a time. Although it is expected 
that the Council will adopt new catch limits every 2 years, specifying 
catch levels for a third year ensures there are default catch limits in 
place in the event that a management action is delayed. This action 
adopts OFLs and ABCs for FYs 2013-2015 for most groundfish stocks, 
which are presented in Table 2, with a few exceptions that are 
described below. For GB cod, haddock, and yellowtail flounder, the 
Canadian share is deducted from the total ABC (see Table 1 for the 
Canadian share of these stocks). The U.S. ABC is the amount available 
to the U.S. fishery after accounting for Canadian catch.
    FYs 2013-2014 catch limits for GB and GOM winter flounder and 
pollock were adopted in Framework 47 and are restated here. Also, as 
mentioned above, GB yellowtail flounder is managed jointly with Canada, 
and a TRAC assessment is conducted each year for the stock. As a 
result, catch limits are set annually for this stock, and this action 
only adopts catch limits for FY 2013. As described earlier in this 
rule, NMFS is disapproving the FY 2013 ABC for GB yellowtail flounder 
adopted by the Council in Framework 50 (1,150 mt). This action instead 
implements an OFL of 882 mt and an ABC of 500 mt through emergency 
rulemaking, based on the most recent assessment information, as more 
fully discussed later in this section.
    Framework 50 adopted an FY 2013 ABC for white hake based on the 
2008 benchmark assessment for this stock, which was the best scientific 
information available to the Council when it developed and took final 
action on Framework 50. National Standard 2 guidelines (50 CFR 600.315) 
require that each FMP (and by extension amendment and framework) must 
take into account the best scientific information available at the 
time, or preparation, of an action. The guidelines recognize that new 
information often becomes available between the initial drafting of an 
action and its submission to NMFS for final review. As a result, and 
based on established policy, this action approves the FY 2013 ABC for 
white hake that was adopted by the Council in Framework. However, a new 
stock assessment for white hake was completed in February 2013, and the 
final results of this assessment became available in April 2013. The 
assessment results support a higher FY 2013 ABC than what was adopted 
by the Council in Framework 50. Therefore, although this action 
technically approves the FY 2013 ABC for white hake specified in 
Framework 50, NMFS is simultaneously implementing an emergency rule, as 
requested by the Council at its April 2013 meeting, to increase the FY 
2013 ABC for white hake based on the recent assessment. This emergency 
rule is described in detail later in this section.

[[Page 26177]]



                                    Table 2--FYs 2013-2015 OFLs and U.S. ABCs
                                                [Live weight, mt]
----------------------------------------------------------------------------------------------------------------
                                                        2013                  2014                  2015
                     Stock                     -----------------------------------------------------------------
                                                   OFL      U.S. ABC     OFL      U.S. ABC     OFL      U.S. ABC
----------------------------------------------------------------------------------------------------------------
GB Cod........................................      3,279      2,002      3,570      2,002      4,191      2,002
GOM Cod.......................................      1,635      1,550      1,917      1,550      2,639      1,550
GB Haddock....................................     46,185     29,335     46,268     35,699     56,293     43,606
GOM Haddock...................................        371        290        440        341        561        435
GB Yellowtail Flounder Emergency Action.......        882        215  .........  .........  .........  .........
SNE/MA Yellowtail Flounder....................      1,021        700      1,042        700      1,056        700
Cape Cod (CC)/GOM Yellowtail Flounder.........        713        548        936        548      1,194        548
American Plaice...............................      2,035      1,557      1,981      1,515      2,021      1,544
Witch Flounder................................      1,196        783      1,512        783      1,846        783
GB Winter Flounder............................      4,819      3,750      4,626      3,598  .........  .........
GOM Winter Flounder...........................      1,458      1,078      1,458      1,078  .........  .........
SNE/MA Winter Flounder........................      2,732      1,676      3,372      1,676      4,439      1,676
Redfish.......................................     15,468     10,995     16,130     11,465     16,845     11,974
White Hake Emergency Action...................      5,462      4,177  .........  .........  .........  .........
White Hake Proposed in Framework 50...........      5,306      3,638  .........  .........  .........  .........
Pollock.......................................     20,060     15,600     20,554     16,000  .........  .........
Northern Windowpane Flounder..................        202        151        202        151        202        151
Southern Windowpane Flounder..................        730        548        730        548        730        548
Ocean Pout....................................        313        235        313        235        313        235
Atlantic Halibut..............................        164         99        180        109        198        119
Atlantic Wolffish.............................         94         70         94         70         94         70
----------------------------------------------------------------------------------------------------------------
Note: An empty cell indicates that no catch limit is adopted for these years. These catch limits will be
  specified in a future action.

FYs 2013-2015 Catch Limits for GOM Cod
    A benchmark assessment was completed for GOM cod in December 2012, 
and the 55th Stock Assessment Review Committee (SARC 55) approved two 
different assessment models. One assessment model (base case model) 
assumes M = 0.2. The second assessment model (Mramp model) 
assumes that M has increased from 0.2 to 0.4 in recent years, though 
the SARC did not conclude that M would remain 0.4 indefinitely. As a 
result, fishing mortality targets used in the catch projections from 
both models are based on biological reference points that assume M = 
0.2. A detailed summary of the benchmark assessment is available from 
the Northeast Fisheries Science Center (NEFSC) at: http://www.nefsc.noaa.gov/saw/saw55/crd1301.pdf.
    As more fully explained below, the SSC recommended two GOM cod 
constant catch ABC alternatives for FYs 2013-2015: 1,249 and 1,550 mt. 
The SSC noted that it preferred an ABC of 1,249 mt because it would 
help conserve the stock and increase the likelihood of rebuilding. 
Based on the two recommendations from the SSC, the Council selected a 
preferred alternative for a constant catch of 1,550 mt for FYs 2013-
2015. Under the base case model, a constant ABC of 1,550 mt will have 
at least a 50-percent probability of avoiding overfishing. An ABC of 
1,550 mt will be higher than 75% FMSY until FY 2015, which 
is the Council's ABC control rule adopted in Amendment 16. Under the 
Mramp model, the ABC implemented in this action is the 
FMSY catch level in FY 2015, and is above FMSY in 
FY 2013 and FY 2014. An ABC of 1,550 mt is expected to result in a 
dramatic reduction from current fishing mortality estimates and would 
also allow stock growth, but is a departure from the ABC control rule 
adopted by the Council in Amendment 16.
    Amendment 16 specified that the ABC control rule should be used in 
the absence of information that allows a more explicit determination of 
scientific uncertainty for a stock. Amendment 16 also stated that, if 
information was available to more accurately characterize scientific 
uncertainty, it could be used by the SSC to set the ABC. Furthermore, 
National Standard 1 gives deference to SSCs to recommend ABCs to 
Fishery Management Councils that are departures from established 
control rules. In such situations, SSCs are expected to make use of the 
best scientific information available, and to provide ample 
justification on why the control rule is not the best approach for the 
particular circumstances.
    The SSC determined that having two assessment models for GOM cod 
allowed for a better understanding of the nature and extent of the 
scientific uncertainty. As a result, the SSC concluded that both ABC 
alternatives appropriately use the assessment outcomes and account for 
scientific uncertainty. In addition, although multiple catch 
projections are available for GOM cod, the assessment did not evaluate 
an averaged output and did not recommend using an average of the two 
assessment models. Thus, in this case, NMFS has determined it is not 
appropriate to average the catch projections for GOM cod, and that all 
of the information must be considered. Lower catch limits will always 
increase the likelihood that stock growth will occur, and under this 
rationale, an ABC of 1,249 mt would have greater, and more immediate, 
increases in biomass than an ABC of 1,550 mt. However, in considering 
the assessment results and catch projections for both ABC alternatives, 
a constant catch ABC of 1,550 mt for FYs 2013-2015 will likely end 
overfishing and result in some stock rebuilding. This constant catch 
scenario also accounts for the uncertainty in the assessment and the 
SARC's conclusion that although M may have increased in recent years, 
it will likely return to 0.2 in the future.
Emergency Rule To Set FY 2013 GB Yellowtail Flounder Catch Limits
    As noted earlier in this preamble, NMFS is disapproving the FY 2013 
ABC for GB yellowtail flounder that the Council adopted in Framework 50 
(1,150 mt), and is instead implementing a FY 2013 OFL of 882 mt and an 
ABC of 500 mt through emergency rulemaking. This situation meets the 
criteria for emergency action because it is necessary to address 
serious

[[Page 26178]]

conservation and management concerns resulting from recent, unexpected 
events. As noted earlier, the Council typically sets specifications for 
groundfish stocks for multiple years at a time. Although catch limits 
are set annually for GB yellowtail flounder because the stock is 
managed jointly with Canada, Framework 47 adopted ABCs for FYs 2012-
2013 for the stock. The SSC recommended, and the Council adopted, a FY 
2013 ABC of 1,150 mt in Framework 47 as a default catch limit with the 
intention that this ABC would be updated in a future management action 
based on the 2012 TRAC assessment. The ABCs adopted for GB yellowtail 
flounder in Framework 47 were based on the 2011 TRAC assessments and 
were consistent with the best scientific information available to the 
Council when it developed and took final action on Framework 47.
    The proposed rule for this emergency action incorrectly described 
that if NMFS disapproved the ABC for GB yellowtail flounder proposed by 
the Council in Framework 50, there would be no catch limit specified 
for the fishery. Rather, since NMFS is disapproving the FY 2013 ABC for 
GB yellowtail flounder in Framework 50, the FY 2013 ABC previously 
specified in Framework 47 would go into effect on May 1, 2013. This ABC 
is identical to the ABC that NMFS is disapproving in Framework 50. As a 
result, based on the 2012 TRAC assessment, the default ABC would likely 
result in overfishing, which poses a serious conservation concern for 
the stock, and has the potential to cause harm to the resource. This 
would undermine the joint management of this stock with Canada under 
the Understanding, fail to end overfishing for the stock, and may not 
allow for any stock rebuilding.
    In addition, this issue was controversial during the development of 
Framework 50, and both an ABC of 500 and 1,150 mt were considered by 
the Council based on the SSC's recommendations. The Council selected an 
FY 2013 ABC of 1,150 mt as the preferred alternative in Framework 50 at 
its November meeting. However, the Council delayed final action on 
Framework 50 until its January 2013 meeting. Due to the controversial 
nature of this issue, until the Council took final action on Framework 
50, it was unclear whether the Council would select a different 
preferred alternative for GB yellowtail flounder. Although initial 
review by NMFS suggested that the Council's preferred alternative of 
1,150 mt did not appear to be consistent with the best scientific 
information available, the SSC's recommendation was difficult to 
interpret, and NMFS requested specific public comment on this 
determination, and other factors that should be considered in setting 
the FY 2013 ABC for GB yellowtail flounder. NMFS proactively proposed 
an emergency rulemaking for concern that, in the event the FY 2013 ABC 
of 1,150 mt was disapproved, the Council would not have sufficient time 
to complete a management action and adopt a FY 2013 ABC for GB 
yellowtail flounder by May 1, 2013. Normally, the Council takes final 
action on a framework in November, and the action is submitted to NMFS 
in December for approval for the upcoming fishing year beginning on May 
1. However, the Council did not take final action on Framework 50 until 
January 2013, and did not submit the document to NMFS for review and 
approval until March 22, 2013, which is nearly 3 months after NMFS 
typically receives the document. Thus, the lateness of the Council's 
decision, and the difficulty in interpreting the SSC's recommendation 
for GB yellowtail flounder, resulted in unforeseen events.
    As a result of the default FY 2013ABC adopted in Framework 47 that 
would pose serious conservation concerns, and the unforeseen events 
described above, NMFS, on behalf of the Secretary, finds that a 
fishery-related emergency exists, and has determined that this 
situation meets the emergency criteria set forth by NMFS for emergency 
rulemaking (62 FR 44421; August 21, 1997).
    This final rule implements a FY 2013 OFL of 882 mt and ABC of 500 
mt. This ABC results in a U.S. quota of 215 mt after accounting for the 
Canadian share (see Table 1). The SSC determined that the OFL was 
unknown. However, the SSC's recommendation for FY 2013 was not based on 
the 2012 TRAC assessment, and the SSC noted that its ABC recommendation 
was qualitative. Based on the 2012 TRAC results, which NMFS has 
determined is the best scientific information available, and using the 
approved benchmark model that is used to determine stock status, NMFS 
has calculated the OFL using the standard methodology as defined by 
Amendment 16. As noted earlier in this section, and defined in 
Amendment 16, the OFL is calculated by applying FMSY to a 
biomass estimate. The current assessment for GB yellowtail flounder 
uses the Split Series model to estimate current stock size and fishing 
mortality, and this model was approved at the last benchmark assessment 
for the stock. Using the split series model, the FY 2013 catches at 
FMSY are 882 mt. Thus, NMFS is implementing a FY 2013 OFL of 
882 mt through this final rule. However, as noted earlier in the 
summary of the 2012 assessment results, the 2012 TRAC recommended that 
2013 catches should be considerably below this level to help ensure 
that overfishing does not occur.
    A FY 2013 ABC of 500 mt is consistent with both the TMGC and SSC's 
recommendations, and is within the range of 2013 catch levels suggested 
by the sensitivity analyses conducted at the 2012 TRAC assessment. A 
2013 catch level of 500 mt would allow some stock rebuilding, and is 
less than the 2013 catch level based on the unadjusted model results 
(882 mt) that the TRAC recommended should not be used as the basis for 
2013 catch advice. The lower quota of 200 mt included in the 2012 TRAC 
results has a higher probability of not exceeding Fref. But, 
a 2013 catch of 500 mt would have only a 4-percent chance of exceeding 
Fref (0.25) in one of the sensitivity analyses performed by 
the TRAC. This catch level would also result in some stock rebuilding 
in the other four sensitivity analyses. The 2012 TRAC assessment did 
not calculate an average output for the models presented, and did not 
recommend averaging the sensitivity analyses as a basis for catch 
advice. Thus, NMFS has determined that it is not appropriate to average 
the five sensitivity analyses, and that all of the analyses should be 
considered in setting the 2013 ABC. A catch limit of 500 mt would 
balance the need to account for the retrospective bias in the 
assessment and allow some stock rebuilding, and would be substantially 
below the OFL for the stock.
    The total ACL and the sub-ACLs for each component of the fishery 
that are implemented in this final rule under emergency authority based 
on a FY 2013 ABC of 500 mt are presented in Table 3 (Item 5 of this 
preamble). The common pool's sub-ACL is further divided into Trimester 
TACs (Table 7) and Incidental Catch TACs for the special management 
programs (Tables 6 and 8). The resultant ACLs implemented under 
Secretarial emergency authority are consistent with the Council's ACL 
derivation process adopted in Framework 50, and allocations of GB 
yellowtail flounder to the scallop and small-mesh fisheries adopted in 
Framework 48, and are based on the best scientific information 
available.
Emergency Rule To Set FY 2013 White Hake Catch Limits
    A white hake benchmark stock assessment (SARC 56) was completed in 
February 2013. The results of the assessment just recently became 
available and were published in April

[[Page 26179]]

2013. The results of the assessment can be found on the NEFSC's Web 
site at: http://www.nefsc.noaa.gov/publications/crd/crd1304/. This new 
assessment indicates the white hake stock is no longer overfished and 
not subject to overfishing. The current projection indicates the stock 
should achieve its rebuilding target in 2014. In addition, the results 
of the assessment indicate that the FY 2013 ABC can be increased to 
4,177 mt from the ABC that was proposed by the Council in Framework 50 
(3,638 mt).
    During the development of Framework 50, the Council and NMFS were 
aware that the new assessment could result in different status 
determination criteria, status, and catch advice for white hake. 
However, it was expected that a final report from the 56th SARC would 
not be available until late spring 2013. This is well after the Council 
took final action on Framework 50 in January 2013. Thus, as previously 
discussed, based on National Standard 2 guidelines and established 
policy, the Council proposed a FY 2013 ABC for white hake based on the 
2008 benchmark assessment, which was the best scientific information 
available to the Council during the development of Framework 50.
    The recently completed assessment for white hake is new information 
that was previously unavailable to either the Council, when it 
developed and took final action on Framework 50, or NMFS. Although the 
Council and NMFS anticipated the new assessment would be completed in 
February 2013, the final results of the assessment could not be 
predicted. In addition, because the final results of the assessment 
just recently became available in April 2013, there was no way for the 
Council to incorporate this new information and submit a management 
action to NMFS for consideration and implementation by the start of FY 
2013 on May 1, 2013. The stock status change and higher catch available 
for FY 2013 are recently discovered and unforeseen circumstances and 
events.
    NMFS has determined that the current situation is justified as an 
emergency action resulting from recent, unforeseen events because, by 
quickly implementing a quota increase for white hake based on the new 
assessment, economic opportunity that might otherwise be foregone can 
be avoided. An emergency action to increase the FY 2013 quota for white 
hake addresses a serious management concern regarding the severe 
negative impacts caused by low catch limits for many groundfish stocks, 
and, as explained in this section, the benefits of providing prior 
public comment on this action are outweighed by the immediate benefits 
accruing to fishermen. If the normal regulatory process were undertaken 
to implement the higher white hake catch limit, the increase would not 
be available until well after the start of FY 2013. White hake is a 
ubiquitous species in NE waters and, in recent fishing years, the 
utilization of the white hake catch limit has been high. The FMP 
requires that fishing effort be reduced, or stopped, if catch of a 
single stock is projected to reach an ACL, and that AMs be implemented 
if an ACL is exceeded, to payback an overage and to prevent the ACL 
from being exceeded again. In addition, some sectors have very small 
white hake ACE. By ensuring timely implementation of the higher catch 
limit, the likelihood that fishing operations will be constrained in 
some way by available white hake quota is reduced. Furthermore, the 
catch limit reductions for many key groundfish stocks will have 
substantial economic impacts on fishing operations in FY 2013. Thus, 
the timely implementation of the higher white hake quota may provide 
much needed and immediate economic benefits both as directed catch and 
on the sector lease market. At the request of the Council, NMFS is 
taking emergency action under section 305(c) of the Magnuson-Stevens 
Act to increase the FY 2013 catch limit from levels proposed in 
Framework 50 (78 FR 19368; March 29, 2013).
    This final rule implements a FY 2013 ABC of 4,177 mt, in place of 
the FY 2013 ABC of 3,638 mt that was adopted by the Council in 
Framework 50, based on the recent assessment completed in February 
2013. This ABC is based on 75 percent of FMSY, which is the 
Council's ABC control rule. The FY 2013 ABC for white hake implemented 
through this emergency rule is 539 mt higher than the ABC proposed in 
Framework 50, which is a 15-percent increase. The ABC is further 
divided among the various components of the fishery based on the ACL 
derivation adopted by the Council in Framework 50. The total ACL and 
the sub-ACLs for each component of the fishery that are implemented 
through this emergency rule are presented in Table 3 (see Item 5). The 
common pool fishery's sub-ACL for white hake is further divided into 
Trimester TACs, which are presented in Table 7 (see Item 6).
    The ABC and resultant ACLs implemented under Secretarial emergency 
authority are consistent with the Council's ABC control rule and ACL 
derivation process, and are based on the best scientific information 
available. In anticipation of potential changes to the status 
determination criteria (SDC) for white hake as a result of the new 
assessment, the Council included a preferred alternative in Framework 
48 that would allow NMFS to implement updated white hake SDC for FY 
2013 if the results were available prior to final rulemaking. As a 
result, and based on the final assessment report, NMFS published new 
white hake SDC in the final rule for Framework 48.

5. Annual Catch Limits

    Unless otherwise noted below, the U.S. ABC for each stock (for each 
fishing year) is divided into the following fishery components to 
account for all sources of fishing mortality: State waters (portion of 
ABC expected to be caught from state waters by vessels that are not 
subject to the FMP); other sub-components (expected catch by non-
groundfish fisheries); Atlantic sea scallop fishery; mid-water trawl 
fishery; small-mesh fisheries; commercial groundfish fishery; and 
recreational groundfish fishery. Expected catch from state waters and 
other sub-components is deducted from the ABC first, and the remaining 
portion of the ABC is the amount available to the fishery components 
that receive an allocation for the stock and that are subject to AMs. 
The scallop fishery receives an allocation for GB and SNE/MA yellowtail 
flounder and SNE/MA windowpane flounder. The mid-water trawl fishery 
receives an allocation for GB and GOM haddock, the recreational 
groundfish fishery receives an allocation for GOM cod and haddock, and 
the small-mesh fisheries receive an allocation for GB yellowtail 
flounder.
    Once the ABC is divided, sub-annual catch limits (sub-ACLs) are set 
by reducing the amount of the ABC distributed to each component of the 
fishery to account for management uncertainty. Management uncertainty 
is the likelihood that management measures will result in a level of 
catch greater than expected. For each stock, management uncertainty is 
estimated using the following criteria: Enforceability, monitoring 
adequacy, precision of management tools, latent effort, and catch of 
groundfish in non-groundfish fisheries. Appendix III of the Framework 
50 EA provides a detailed description of the process used to estimate 
management uncertainty and calculate ACLs for this action (see 
ADDRESSES for information on how to get this document).
    The total ACL is the sum of all of the sub-ACLs and ACL sub-
components, and is the catch limit for a particular year after 
accounting for both scientific and management uncertainty. Landings

[[Page 26180]]

and discards from all fisheries (commercial and recreational groundfish 
fishery, state waters, and non-groundfish fisheries) are counted 
against the catch limit for each stock. Components of the fishery that 
are allocated a sub-ACL for a particular stock are subject to AMs if 
the catch limit is exceeded. The state waters and other sub-components 
are not considered ACLs, and represent the expected catch by components 
of the fishery outside of the FMP that are not subject to AMs.
    This action implements ACLs for each groundfish stock based on the 
ABCs implemented in Item 4 of this preamble. The ACLs for FYs 2013-2015 
are listed in Tables 3 through 5. For stocks allocated to sectors, the 
commercial groundfish sub-ACL is further divided into the non-sector 
(common pool) sub-ACL and the sector sub-ACL, based on the total vessel 
enrollment in all sectors and the cumulative PSCs associated with those 
sectors. The distribution of the groundfish sub-ACL between the common 
pool and sectors shown in Tables 3 through 5 are based on FY 2013 PSCs 
and FY 2012 sector rosters. FY 2013 sector rosters will not be 
finalized until May 1, 2013, because owners of individual permits 
signed up to participate in sectors have until the end of FY 2012, or 
April 30, 2013, to drop out of a sector and fish in the common pool for 
FY 2013. Therefore, it is possible that the sector and common pool sub-
ACLs listed in the tables below may change due to changes in the sector 
rosters. Updated sub-ACLs will be published in early May, if necessary, 
to reflect the final FY 2013 sector rosters as of May 1, 2013.
    This action also adds SNE/MA yellowtail flounder to the annual 
process that re-estimates the expected scallop fishery catch in the 
fishing year. This process was originally adopted by the Council for GB 
yellowtail flounder in Framework 47. In Framework 50, as part of the 
specifications for the scallop fishery, the Council expanded this 
annual process to include SNE/MA yellowtail flounder. This measure was 
inadvertently omitted from the proposed rule, and as a result, is 
implemented in this action as an interim final rule. NMFS is accepting 
public comments on this measure for 45 days. The regulations 
implementing this measure have been deemed by the Council to be 
necessary and appropriate. A description of the method, consistent with 
the measure adopted in Framework 47, is below.
    By January 15 of each fishing year, NMFS will re-estimate the 
scallop fishery's catch of SNE/MA yellowtail flounder. If projected 
catch by the scallop fishery is less than 90 percent of the scallop 
fishery's sub-ACL for SNE/MA yellowtail flounder, NMFS may reduce the 
scallop fishery sub-ACL to the amount expected to be caught, and 
increase the groundfish fishery sub-ACL for SNE/MA yellowtail flounder 
up to the difference between the original and revised estimates of the 
scallop fishery's catch. Any increase to the groundfish fishery sub-ACL 
will be distributed to sectors and the common pool. NMFS will not make 
any changes to the SNE/MA yellowtail flounder sub-ACL for the scallop 
fishery if the revised estimate indicates that the scallop fishery will 
catch 90 percent or more of its sub-ACL. Consistent with the 
Administrative Procedure Act (APA), NMFS will notify the public of any 
changes to the SNE/MA yellowtail flounder sub-ACLs. This measure is 
expected to prevent any loss of SNE/MA yellowtail flounder yield that 
may occur if the initial catch estimate of this stock by the scallop 
fishery is too high. Re-estimating the expected SNE/MA yellowtail 
flounder catch by the scallop fishery mid-season could allow additional 
SNE/MA yellowtail flounder yield by the commercial groundfish fishery, 
and will help achieve OY for this stock.
BILLING CODE 3510-22-P

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[[Page 26184]]



6. Common Pool Trimester Total Allowable Catches

    The common pool sub-ACL for each stock (except for SNE/MA winter 
flounder, windowpane flounder, ocean pout, Atlantic wolffish, and 
Atlantic halibut) is divided into trimester TACs. Table 6 shows the 
percentage of the common pool sub-ACL that is allocated to each 
trimester for each stock. The distribution of the common pool sub-ACLs 
into trimesters was adopted by Amendment 16 and is based on recent 
landing patterns. Once NMFS projects that 90 percent of the trimester 
TAC is caught for a stock, the trimester TAC area for that stock is 
closed for the remainder of the trimester. The area closure applies to 
all common pool vessels fishing with gear capable of catching the 
pertinent stock. The trimester TAC areas for each stock, as well as the 
applicable gear types, are defined at Sec.  648.82(n)(2). This 
information can also be obtained from NERO (see FOR FURTHER INFORMATION 
CONTACT). Any uncaught portion of the trimester TAC in Trimester 1 or 
Trimester 2 will be carried forward to the next trimester (e.g., any 
remaining portion of the Trimester 1 TAC will be added to the Trimester 
2 TAC). Overages of the trimester TAC in Trimester 1 or Trimester 2 
will be deducted from the Trimester 3 TAC. Any overages of the total 
sub-ACL will be deducted from the following fishing year's common pool 
sub-ACL for that stock. Uncaught portions of the Trimester 3 TAC will 
not be carried over into the following fishing year.
    The FYs 2013-2015 common pool trimester TACs are listed in Table 7 
based on the ACLs and sub-ACLs implemented in this action (see Item 5 
of this preamble). As described earlier, vessels have until April 30, 
2013, to drop out of a sector, and common pool vessels may join a 
sector through April 30, 2013. If the sub-ACLs included in this rule 
change as a result of changes to FY 2013 sector rosters, the trimester 
TACs will also change. Based on the final sector rosters, NMFS will 
publish a rule in early May 2013, if necessary, to update the common 
pool trimester TACs, and notify the public of these changes.

                    Table 6--Percentage of Common Pool Sub-ACL Distributed to Each Trimester
----------------------------------------------------------------------------------------------------------------
                                                                         Percentage of common pool sub-ACL
                              Stock                              -----------------------------------------------
                                                                    Trimester 1     Trimester 2     Trimester 3
----------------------------------------------------------------------------------------------------------------
GB Cod..........................................................              25              37              38
GOM Cod.........................................................              27              36              37
GB Haddock......................................................              27              33              40
GOM Haddock.....................................................              27              26              47
GB Yellowtail Flounder..........................................              19              30              52
SNE/MA Yellowtail Flounder......................................              21              37              42
CC/GOM Yellowtail Flounder......................................              35              35              30
American Plaice.................................................              24              36              40
Witch Flounder..................................................              27              31              42
GB Winter Flounder..............................................               8              24              69
GOM Winter Flounder.............................................              37              38              25
Redfish.........................................................              25              31              44
White Hake......................................................              38              31              31
Pollock.........................................................              28              35              37
----------------------------------------------------------------------------------------------------------------


[[Page 26185]]

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[[Page 26186]]

7. Common Pool Incidental Catch Total Allowable Catches and Allocations 
to Special Management Programs

    Incidental catch TACs are specified for certain stocks of concern 
(i.e., stocks that are overfished or subject to overfishing) for common 
pool vessels fishing in the special management programs (i.e., special 
access programs (SAPs) and the Regular B DAS Program), in order to 
limit the catch of these stocks under each program. Table 8 shows the 
percentage of the common pool sub-ACL allocated to the special 
management programs and the FYs 2013-2015 Incidental Catch TACs for 
each stock. Beginning in FY 2013, GB winter flounder and SNE/MA 
yellowtail flounder are removed from the list of stocks of concern 
because the stocks are no longer overfished and overfishing is not 
occurring. In addition, the emergency rulemaking to increase the FY 
2013 ABC for white hake removes white hake from the list of stocks of 
concern because the stock is no longer overfished and overfishing is 
not occurring. GB winter flounder and white hake are projected to be 
rebuilt by 2014, and SNE/MA yellowtail flounder was declared rebuilt in 
November 2012. Any catch on a trip that ends on a Category B DAS 
(either Regular or Reserve B DAS) is attributed to the Incidental Catch 
TAC for the pertinent stock. Catch on a trip that starts under a 
Category B DAS and then flips to a Category A DAS is not counted 
against the Incidental Catch TACs. Any catch from these trips would be 
counted against the common pool sub-ACL.
    The Incidental Catch TAC is further divided among each special 
management program based on the percentages listed in Table 9. The FYs 
2013-2015 Incidental Catch TACs for each special management program are 
listed in Table 10. The FY 2013 sector rosters will not be finalized 
until May 1, 2013, for the reasons mentioned earlier in this preamble. 
Therefore, the common pool sub-ACL may change due to changes to the FY 
2013 sector rosters. Updated incidental catch TACs will be published in 
a future adjustment rule, if necessary, based on the final sector 
rosters as of May 1, 2013.

                            Table 8--FYs 2013-2015 Common Pool Incidental Catch TACs
                                                [Mt, live weight]
----------------------------------------------------------------------------------------------------------------
                                                   Percentage of
                      Stock                         common pool        2013            2014            2015
                                                      sub-ACL
----------------------------------------------------------------------------------------------------------------
GB Cod..........................................               2            0.6             0.6             0.6
GOM Cod.........................................               1            0.2             0.2             0.2
GB Yellowtail Flounder Emergency Action.........               2            0.03
CC/GOM Yellowtail Flounder......................               1            0.1             0.1             0.1
American Plaice.................................               5            1.2             1.2             1.2
Witch Flounder..................................               5            0.5             0.5             0.5
SNE/MA Winter Flounder..........................               1            1.4             1.4             1.4
----------------------------------------------------------------------------------------------------------------


           Table 9--Percentage of Incidental Catch TACs Distributed to Each Special Management Program
----------------------------------------------------------------------------------------------------------------
                                                                                   Closed area I
                                                                  Regular  B DAS     hook gear    Eastern  US/CA
                              Stock                                   program       haddock SAP     haddock SAP
                                                                     (percent)       (percent)       (percent)
----------------------------------------------------------------------------------------------------------------
GB Cod..........................................................              50              16              34
GOM Cod.........................................................             100
GB Yellowtail Flounder..........................................              50              50
CC/GOM Yellowtail Flounder......................................             100
American Plaice.................................................             100
Witch Flounder..................................................             100
SNE/MA Winter Flounder..........................................             100
----------------------------------------------------------------------------------------------------------------


                Table 10--FYs 2013-2015 Incidental Catch TACs for Each Special Management Program
                                                [Mt, live weight]
----------------------------------------------------------------------------------------------------------------
                                 Regular B DAS  program     Closed area I hook gear       Eastern U.S./Canada
                              ----------------------------        haddock SAP                 haddock SAP
            Stock                                         ------------------------------------------------------
                                 2013      2014     2015     2013     2014     2015     2013      2014     2015
----------------------------------------------------------------------------------------------------------------
GB Cod.......................      0.3       0.3      0.3      0.1      0.1      0.1      0.2       0.2      0.2
GOM Cod......................      0.2       0.2      0.2  .......  .......  .......  ........  .......  .......
GB Yellowtail Flounder             0.01  .......  .......  .......  .......  .......      0.01  .......  .......
 Emergency Action............
CC/GOM Yellowtail Flounder...      0.1       0.1      0.1  .......  .......  .......  ........  .......  .......
American Plaice..............      1.2       1.2      1.2  .......  .......  .......  ........  .......  .......
Witch Flounder...............      0.5       0.5      0.5  .......  .......  .......  ........  .......  .......
SNE/MA Winter Flounder.......      1.4       1.4      1.4  .......  .......  .......  ........  .......  .......
----------------------------------------------------------------------------------------------------------------


[[Page 26187]]

8. Annual Measures for FY 2013 Under RA Authority

    The FMP provides authority for the RA to implement certain types of 
management measures for the common pool fishery, the U.S./Canada 
Management Area, and Special Management Programs on an annual basis, or 
as needed. These measures are not part of Framework 50, and were not 
specifically proposed by the Council, but are implemented in 
conjunction with Framework 50 for expediency purposes and because they 
relate to the specifications adopted in Framework 50. The RA can modify 
these measures if current information indicates changes are necessary. 
Any inseason adjustments to these measures will be implemented through 
an inseason action consistent with the APA.
    The RA has the authority to modify common pool trip limits in order 
to prevent exceeding the common pool sub-ACLs and facilitate harvest so 
total catch approaches the common pool sub-ACLs. Table 11 provides the 
initial FY 2013 trip limits for common pool vessels. Table 12 provides 
the initial FY 2013 cod trip limits for vessels fishing with a Handgear 
A, Handgear B, or Small Vessel Category permit. These FY 2013 trip 
limits were developed after considering changes to the FY 2013 common 
pool sub-ACLs and sector rosters, trimester TACs for FY 2013, catch 
rates of each stock during FY 2012, public comments received, and other 
available information. NMFS will monitor common pool catch using 
dealer-reported landings, VMS catch reports, and other available 
information, and if necessary, will adjust the common pool management 
measures to help ensure the common pool fishery catches, but does not 
exceeds its sub-ACLs.
    The default cod trip limit is 300 lb (136.1 kg) per trip for 
Handgear A vessels, unless either the GOM or GB cod trip limit 
applicable to vessels fishing under a NE multispecies DAS is adjusted 
below 300 lb (136.1 kg). If the trip limit for NE multispecies DAS 
vessels drops below 300 lb (136.1 kg), the Handgear A trip limit must 
be adjusted to be the same. The regulations also require that the 
Handgear B vessel trip limit for GOM and GB cod be adjusted 
proportionally (rounded up to the nearest 25 lb (11.3 kg)) to the 
default cod trip limits applicable to NE multispecies DAS vessels. The 
default cod trip limit for NE multispecies common pool vessels fishing 
under a Category A DAS is 800 lb (362.9 kg) per DAS for GOM cod and 
2,000 lb (907.2 kg) per DAS for GB cod. For vessels fishing under a 
Category A DAS, the initial FY 2013 trip limit for GOM cod is 88 
percent lower than the default limit specified in the regulations. 
Therefore, the initial FY 2013 GOM cod trip limits for Handgear A and B 
vessels are adjusted downwards, as required, from the default cod trip 
limit for these vessels. The default cod trip limits for GB cod for 
Handgear A and B vessels are implemented for FY 2013.
    Vessels with a Small Vessel category permit can possess up to 300 
lb (136.1 kg) of cod, haddock, and yellowtail flounder combined per 
trip. For FY 2013, the maximum amount of cod and haddock (within the 
300-lb (136.1-kg) trip limit) is adjusted proportionally to the trip 
limits applicable to NE multispecies DAS vessels (see Table 12). 
Vessels with a Small Vessel category permit can possess a maximum of 
100 lb (45.4 kg) of GOM cod and 100 lb (45.4 kg) of GOM haddock within 
their 300-lb (136.1-kg) trip limit of cod, haddock, and yellowtail 
flounder, combined.

            Table 11--Initial FY 2013 Common Pool Trip Limits
------------------------------------------------------------------------
                 Stock                      Initial FY 2013 trip limit
------------------------------------------------------------------------
GOM cod................................  100 lb (45.4 kg) per DAS, up to
                                          300 lb (136.1 kg) per trip.
GB cod.................................  2,000 lb (907.2 kg) per DAS, up
                                          to 20,000 lb (9,072 kg) per
                                          trip.
GOM haddock............................  100 lb (45.4 kg) per trip.
GB haddock.............................  10,000 lb (4,536 kg) per trip.
GOM winter flounder....................  500 lb (226.8 kg) per trip.
SNE/MA winter flounder.................  5,000 lb (2,268 kg) per DAS up
                                          to 15,000 lb (6,804 kg) per
                                          trip.
GB winter flounder.....................  1,000 lb (453.6 kg) per trip.
CC/GOM yellowtail flounder.............  500 lb (226.8 kg) per DAS, up
                                          to 2,000 lb (907.2 kg) per
                                          trip.
GB yellowtail flounder.................  100 lb (45.4 kg) per trip.
SNE/MA yellowtail flounder.............  2,000 lb (907.2 kg) per DAS, up
                                          to 6,000 lb (2,722 kg) per
                                          trip.
American plaice........................  unrestricted.
Pollock................................  10,000 lb (4,536 kg) per trip.
Witch flounder.........................  500 lb (226.8 kg) per trip.
White hake.............................  500 lb (226.8 kg) per trip.
Redfish................................  unrestricted.
------------------------------------------------------------------------


 Table 12--Initial FY 2013 Cod Trips Limits for Handgear A, Handgear B,
                    and Small Vessel Category Permits
------------------------------------------------------------------------
                                    FY 2013 GOM cod     FY 2013 GB cod
             Permit                   trip limit          trip limit
------------------------------------------------------------------------
Handgear A......................  100 lb (45.4 kg)    300 lb (136.1 kg)
                                   per trip.           per trip.
Handgear B......................  25 lb (11.3 kg)     75 lb (34.0 kg)
                                   per trip.           per trip.
                                 ---------------------------------------
Small Vessel Category...........  300 lb (136.1 kg) of cod, haddock, and
                                   yellowtail flounder combined; Maximum
                                     of 100 lb (45.4 kg) of GOM cod and
                                      100 lb (45.4 kg) of GOM haddock
                                      within the 300-lb combined trip
                                                   limit.
------------------------------------------------------------------------

    The RA has the authority to determine the allocation of the total 
number of trips into the Closed Area II Yellowtail Flounder/Haddock SAP 
based on several criteria, including the GB yellowtail flounder TAC and 
the amount of GB yellowtail flounder caught outside of the SAP. In 
2005, Framework 40B to the FMP (70 FR 31323; June 1, 2005) implemented 
a provision that no trips should be allocated to the Closed Area II

[[Page 26188]]

Yellowtail Flounder/Haddock SAP if the available GB yellowtail flounder 
catch is insufficient to support at least 150 trips with a 15,000-lb 
(6,804-kg) trip limit (i.e., 150 trips of 15,000 lb (6,804 kg)/trip, or 
2,250,000 lb (1,020,583 kg). This calculation accounts for the 
projected catch from the area outside of the SAP. Based on the GB 
yellowtail flounder sub-ACL implemented in this action through 
emergency rulemaking (257,500 lb (116,800 kg)), there is insufficient 
GB yellowtail flounder to allocate any trips to the SAP, even if the 
projected catch from outside the SAP area is zero. Therefore, this 
action allocates zero trips to the Closed Area II Yellowtail Flounder/
Haddock SAP for FY 2013. Vessels could still fish in this SAP in FY 
2013 using a haddock separator trawl, a Ruhle trawl, or hook gear. 
Vessels may not fish in this SAP using flounder nets.

9. FY 2013 Recreational Fishing Measures

    Framework 48 modified the recreational fishery AM and gave the RA 
authority to adjust recreational management measures for the upcoming 
fishing year to ensure the recreational fishery catches, but does not 
exceed, its sub-ACL. These measures are not part of Framework 50, but 
are implemented in conjunction with Framework 50 for expediency 
purposes and because they relate to the specifications adopted in 
Framework 50. The Council convened its Recreational Advisory Panel 
(RAP) on February 15, 2013, in order to provide NMFS guidance on FY 
2013 management measures. For GOM cod, the RAP recommended a 9-fish 
possession limit and a minimum fish size of 19 in (48.3 cm). These are 
status quo management measures from FY 2012. For GOM haddock, the RAP 
recommended an unlimited possession limit (status quo from FY 2012) and 
an increase to the minimum fish size from 18 in (45.7 cm) to 21 in 
(53.3 cm).
    Consistent with the RAP's recommendation, this action implements a 
9-fish possession limit and a minimum fish size of 19 in (48.3 cm) for 
GOM cod in FY 2013. For GOM haddock, this action implements an 
unlimited possession limit and a minimum fish size of 21 in (53.3 cm) 
for FY 2013. The FY 2013 recreational management measures are presented 
in Table 13. These measures were developed using the Bio-economic 
Length-Structured Angler Simulation Tool, which was developed by the 
NEFSC. This model was peer-reviewed by a panel that consisted of 
members of the New England Fishery Management Council and Mid-Atlantic 
Fishery Management Council's SSCs, as well as an outside expert in 
recreational fisheries economics.
    Analysis shows that recreational removals would likely decline in 
FY 2013, primarily due to changing stock conditions. As a result, FY 
2013 recreational measures are not drastically different than the FY 
2012 measures, even though the reductions in the FY 2013 catch limits 
are relatively large. This action increases the minimum fish size from 
18 in (45.7 cm) to 21 in (53.3 cm), for GOM haddock, with no bag limit. 
The bag limit for GOM haddock does not affect recreational haddock 
mortality very much because analysis shows that there would be fewer 
trips encountering legal-sized haddock in FY 2013. This translates into 
lower expected fishing effort and landings. The minimum fish size for 
GOM haddock has a greater impact on recreational haddock and cod catch, 
as well as the total number of recreational trips. Analysis shows that 
the FY 2013 recreational measures in this action would have more than a 
50-percent probability of preventing overages of the recreational sub-
ACLs for GOM cod and haddock.

   Table 13--FY 2013 Recreational Management Measures for GOM Cod and
                                 Haddock
------------------------------------------------------------------------
              Stock                    Bag limit         Minimum size
------------------------------------------------------------------------
GOM Cod.........................  9.................  19 in (48.3 cm).
GOM Haddock.....................  Unlimited.........  21 in (53.3 cm).
------------------------------------------------------------------------

10. Carryover of Unused Sector Annual Catch Entitlement

    Overview of measures for FY 2013. NMFS is taking the carryover-
related actions described in the Framework 50 proposed rule (78 FR 
19368; March 29, 2013). Specifically, NMFS is using emergency 
rulemaking authority to reduce the amount of unused FY 2012 GOM cod 
sector ACE that may be carried over for use in FY 2013. This is 
necessary to ensure the total potential catch (i.e., ACL + potential 
carryover catch) does not exceed the stock's overfishing limit. 
Consistent with the approach outlined in the proposed rule, NMFS is not 
modifying the status quo carryover amounts specified at Sec.  
648.87(a)(1)(i)(C) for all other carryover-eligible stocks. In 
addition, under its rulemaking authority at section 305(d) of the 
Magnuson-Stevens Act, NMFS clarifies that it will account for any 
carryover used by sectors in FY 2013 consistent with the past two 
fishing years (2011 and 2012) by not attributing the 2012 carryover to 
the sector sub-ACL in determining if an overage has occurred and AMs 
triggered. NMFS also clarifies how it will account for carryover catch 
for FY 2014 and beyond.
    The emergency action and carryover accounting practice for FY 2013, 
as more fully explained in the proposed rule and Comments and 
Responses, are a 1-year bridge to FY 2014 accounting practices to 
ensure stability and predictability for sectors in transitioning from 
FY 2012 to FY 2013. As explained below, NMFS is using its 305(d) 
authority to ensure that carryover provisions are fully consistent with 
National Standard 1 guidance, other National Standards and the 
Magnuson-Stevens Act in the context of the unusual circumstances 
presented this fishing year.
    GOM cod emergency measures. Pursuant to NMFS emergency rulemaking 
authority at section 305(c) of the Magnuson-Stevens Act, this action 
reduces the 10-percent maximum carryover allowance from FY 2012 to FY 
2013. The carryover provided under Sec.  648.87(a)(1)(i)(C) for GOM cod 
ACE is reduced from 10 percent to 1.85 percent. This action is 
necessary to better ensure that the GOM cod stock is no longer subject 
to overfishing in FY 2013.
    To utilize Magnuson-Stevens Act section 305(c) emergency 
rulemaking, NMFS, on behalf of the Secretary, must make determinations 
that a situation satisfies the emergency criteria set forth in statute 
and NMFS policy guidance. NMFS guidance (62 FR 44421; August 21, 1997) 
for defining an emergency establishes than an emergency situation 
exists as situations that result from recent, unforeseen event(s), 
poses a serious conservation or management problem in the fishery in 
question, and can be addressed through emergency rulemaking whose 
benefits outweigh the value of the normal Administrative Procedure Act 
(APA) notice-and-comment rulemaking process if the emergency is 
implemented without prior public comment. Because this emergency is 
being implemented after the opportunity for public comment, it is not 
necessary to show the benefits of the emergency action outweigh the 
value of the normal APA process.
    Analysis indicates that providing up to 10 percent of the FY 2012 
GOM cod sector ACE as carryover in FY 2013 would result in a total 
potential catch that is 12 percent above the OFL of 1,635 mt. Though 
the potential catch may not be fully caught in FY 2013, NMFS considers 
that allowing a potential catch in excess of OFL poses

[[Page 26189]]

a serious conservation and management threat to the GOM cod fishery 
that results from recent, unforeseen events. The updated stock status 
and catch advice resulting from the December 2012 SARC 55 GOM cod stock 
assessment was not finalized and presented until January 2013 just 
before the January 29-31 Council meeting. Consequently, the potential 
impact of a full 10-percent carryover was not fully evaluated until 
March 22, 2013, when the Council formally submitted Framework 50. The 
submitted analysis contained the critical examination of the potential 
impact of not only the Council's recommended catch limits, but also the 
potential impact of allowing up to 10 percent carryover for all stocks. 
By this time it was clearly too late for the Council to act before the 
beginning of FY 2013 and the only recourse to address the very real 
potential of overfishing of GOM cod due to the carryover provision was 
this emergency action. Accordingly, NMFS finds that all the necessary 
criteria set forth in statute and guidance concerning emergency actions 
under section 305(c) have been met. Therefore, to prevent potential 
overfishing the GOM cod stock in FY 2013, NMFS is compelled, and 
authorized, to take action to reduce GOM cod maximum carryover to 1.85 
percent.
    Carryover for other stocks in FY 2013. Current regulatory 
provisions based on Amendment 16, allow up to 10 percent of unused FY 
2012 ACE for all stocks except GB yellowtail flounder to be carried 
over for use in FY 2013. GB yellowtail flounder ACE is not eligible to 
be carried over because no such provision exists in the Understanding, 
under which the stock is jointly managed. Neither Amendment 16, nor the 
implementing regulations, however, clarified how allowed carryover was 
to be accounted for in light of ACEs and ACLs and AMs. Without such 
clarification, as NMFS has recently advised on several occasions, 
carryover may result in sectors exceeding their ACEs and ACLs without 
triggering AMs thus potentially jeopardizing conservation objectives. 
Further, if all catch, including carryover is attributed to ACLs the 
potential catch would often exceed ACLs and in some circumstances like 
FY 2013 exceed ABC. NMFS has determined that allowing a carryover 
system that provides a potential catch level greater than ACL or ABC is 
not consistent with National Standard 1. More extensive discussion of 
why the Amendment 16 carryover program is inconsistent with National 
Standard 1 can be found in the preamble of the proposed rule and in the 
Comments and Responses section of this rule.
    This action provides clarification for 2013 on a transitional 
basis, and for 2014 and beyond if the Council fails to take action to 
address carryover concerns to address the apparent conflict between the 
implementation of the carryover provision and the National Standard 1 
Guidelines.
    As more fully explained and justified in the proposed rule, and 
taking into account comments on the proposed rule, NMFS will continue 
in FY 2013 to account for any carryover catch used independent of the 
sector sub-ACL as it has in the last 2 years. This means that for 
carryover amounts for FY 2013 only, up to 1.85 percent for GOM cod and 
up to 10 percent of the FY 2012 sector ACE for all other carryover-
eligible stocks, NMFS will first attribute FY 2013 catches to the 
available carryover for each stock but not against the FY 2013 ACEs and 
ACLs for accountability purposes. For example, if a sector harvests 97 
percent of a carryover-eligible stock other than GOM cod, the sector 
would be permitted to use 3 percent of its FY 2012 ACE in FY 2013. NMFS 
would count this 3 percent first and, once the 3 percent is fully 
utilized, begin counting any catch thereafter against the sector's FY 
2013 ACE. AMs would not be triggered using catches attributed to 
carryover amounts in FY 2013.
    This approach has not been problematic for the last two years as 
the total catch, inclusive of carryover utilized, has not caused any 
fishery-level ACLs to be exceeded. The use of carryover caused the 
total sector catch of white hake to exceed the sector sub-ACL in 2011; 
however, given NMFS' carryover accounting practice and that the total 
white hake ACL was not exceeded, no AM was required. Additional 
information and discussion on the FYs 2010 and 2011 carryover 
accounting is provided in the proposed rule preamble and Appendix V to 
the Framework 50 EA and is not repeated here.
    As more fully explained and justified in the proposed rule and the 
responses to comments, NMFS found the timing complications previously 
outlined in this section, at-sea safety concerns, and the need to 
provide a reasonable and fair transition from the current carryover 
accounting method to that for 2014 and beyond compelling reasons to not 
change for FY 2013 how carryover has been accounted for in FYs 2011 and 
2012.
    NMFS is confident that continuing the past carryover accounting 
practice on a transitional 1-year basis only will not result in 
overfishing in FY 2013 and will not undermine longer term conservation 
objectives. More extensive discussion and rationale for this conclusion 
is provided in Appendix V to the Framework 50 EA, and is not repeated 
here. NMFS acknowledges that this approach for FY 2013 does not 
precisely meet all provisions of the National Standard 1 guidelines or 
previously provided NMFS guidance. National Standard 1 guidelines 
specify at 50 CFR 600.310(h)(3) that there are limited circumstances 
that may not fit standard approaches to management measures set forth 
in the guidelines, and, that alternative approaches may be used if they 
are consistent with the Magnuson-Stevens Act. Although NMFS recognizes 
that varying from the standard approach to management measures 
specified in National Standard 1 Guidelines is not favored and should 
be undertaken very sparingly, the unusual and intractable circumstances 
presented for FY 2013 clearly qualify as the limited circumstances 
contemplated by the guidelines for flexibility in complying with the 
standard approach. NMFS finds, therefore, that it has authority and 
justification for accounting for carryover catch in FY 2013 as proposed 
and that this approach is consistent with the Magnuson-Stevens Act.

Carryover From FY 2013 to FY 2014 and Beyond

    NMFS proposed new regulatory text under its Magnuson-Stevens Act 
section 305(d) authority to clarify how to account for carryover for 
purposes or ACE and ACLs beginning in FY 2014 and beyond in the March 
29, 2013, proposed rule (62 FR 44421). Neither Amendment 16, nor its 
implementing regulations, provided any type of implementation 
provisions with respect to carryover, leaving it to NMFS to fill in the 
regulatory gaps. As more fully explained in the proposed rule and in 
response to comments, NMFS concludes that the application of the 
current carryover provision, without this clarification, could lead to 
inconsistencies with overarching provisions of the Magnuson-Stevens Act 
and National Standard 1 concerning overfishing and appropriate catch 
limits. The clarification provided by this action, therefore, is not 
only justified, but compelled, by section 305(d) of the Magnuson-
Stevens Act, which authorizes NMFS, by delegation from the Secretary, 
to promulgate regulations to ensure that carrying out Council 
recommended measures are consistent with the Magnuson-Stevens Act and 
other applicable law.

[[Page 26190]]

    To be clear, the new regulatory text does not change the allowance 
of up to 10 percent carryover of uncaught allocations from the previous 
year as contended by the Council and others in comments on the proposed 
rule. Rather, the regulatory text specifies how carryover accounting is 
to be approached for purposes of ACE and ACL. The new text specifies 
that an automatic de minimus amount of carryover will not be counted 
against ACE or ACL in order to provide some incentive for vessels not 
to risk safety at sea in the last part of the fishing year. The de 
minimus amount has not yet been determined and NMFS is seeking 
additional comment on this before deciding the amount. The final rule 
specifies that changes to the de minimus amount shall be specified and 
announced at least 6 months before the end of a FY consistent with the 
APA.
    For carryover used above this de minimus amount, NMFS would count 
any used carryover catch against the sector sub-ACL for the purposes of 
determining the appropriate AMs, but not against the sector's ACE. If 
the overall ACL for a stock is not exceeded, carryover would not be 
counted toward the AM determination even if a particular sub-ACL was 
exceeded. In a change from the proposed rule, to ensure that this new 
text is a clarification and not a change to existing carryover 
provisions, it provides that the amount of permissible carryover could 
be reduced, on an annual basis, if requested by the Council. Such a 
reduction may be warranted, for example, in years where the catch limit 
is substantially reduced from one year to the next (e.g., FY 2012 to FY 
2013 catch reductions).
    Based on the public comments received and in acknowledgement that 
there is sufficient time for carryover to be further discussed and 
revised through the Council process, NMFS is implementing the proposed 
measures as an interim final rule to become effective at the start of 
FY 2014 on May 1, 2014. Additional public comment will be solicited on 
NMFS's proposed measures for an additional 45 days. NMFS views this as 
an appropriate approach to foster additional public discussion and 
allow for possible Council development of carryover provisions that are 
consistent with applicable legal requirements while ensuring approvable 
carryover provisions act as a backstop should the Council elect not to 
develop a new carryover approach for FY 2014 and beyond.
    NMFS views the proposed post hoc clarification text as an 
appropriate balance between the intent of the Council-developed 
Amendment 16 program and the need to have in place compliant measures. 
It preserves some amount of year-to-year carryover that can be counted 
on by industry to promote at-sea safety and to better plan end-of-year 
fishing operations, while ensuring that carryover does not interfere 
with the ACL-ACE-AM system designed by Amendment 16. Specifically, NMFS 
believes the proposed approach satisfies the requirements to attribute 
all sources of fishing mortality to an annual catch component with 
associated AMs, as outlined by the Magnuson-Stevens Act. The approach 
allows for potential carryover but ensures that, if ACL overages occur 
as a result of its use, accountability is maintained.
    Because the measures are being implemented as an interim final rule 
and have a 1-year delay in effectiveness, NMFS may conduct additional 
rulemaking to make final these measures or to propose alternate NMFS or 
Council-recommended measures before the start of FY 2014. NMFS will 
further consider the comments received on Framework 50 as well as any 
submitted on the interim final rule when either making final the 
section 305(d) clarification or implementing Council-recommended 
measures for FY 2014.

Comments and Responses on Measures Proposed in the Framework 50 
Proposed Rule

    NMFS received 486 comments during the comment period on the 
Framework 50 proposed rule. Public comments were submitted by the 
Council, two state marine fishery agencies, three non-governmental 
organization (NGOs), six industry groups, 28 recreational fishermen, 
including one charter boat organization, and 446 individuals. NMFS 
requested specific comment on the FY 2013 ABC for GB yellowtail 
flounder, including the economic impacts of the FY 2013 catch limit, 
NMFS's proposed carryover accounting approach for FY 2014 and beyond, 
and the proposed common pool trip limits for FY 2013. Responses to 
these comments are below, and when possible, responses to similar 
comments on the proposed measures have been consolidated. Only comments 
that directly addressed the proposed measures, or the analyses used to 
support these measures, are addressed.

SNE/MA Winter Flounder Rebuilding Program

    Comment 1: Two industry groups supported the revised rebuilding 
program for SNE/MA winter flounder.
    Response: NMFS agrees with these commenters. In May 2012, NMFS 
notified the Council that SNE/MA winter flounder was not making 
adequate rebuilding progress, and as a result, the Council was required 
to revise the rebuilding program for this stock within 2 years, or by 
May 1, 2014. The revised rebuilding program implemented in this action 
is consistent with the Council's mandate to devise a new rebuilding 
strategy for the stock while continuing to prevent overfishing. As 
stated in Item 1 of this preamble, projections indicate that SNE/MA 
winter flounder can rebuild by 2019 in the absence of all fishing 
mortality. As a result, the maximum rebuilding period is 10 years. 
Taking into account the needs of fishing communities, as provided in 
section 304(e)(4) of the Magnuson-Stevens Act, the rebuilding strategy 
adopted in this action would rebuild the stock by 2023 with a median 
probability of success. In addition, the revised rebuilding program 
appropriately accounts for scientific uncertainty associated with long-
term projections by providing that short-term catch advice can be 
reduced from Frebuild.
    Comment 2: One industry group commented that the biological 
reference points for SNE/MA winter flounder are based on long-term 
projections that are highly uncertain. The commenter stated that, as a 
result, fishing mortality targets have been set below 
Frebuild to account for this uncertainty, which will result 
in forfeiting near-term yields.
    Response: The revised rebuilding strategy implemented in this 
action is based on the best scientific information available. NMFS 
agrees that the long-term projections are uncertain. Considerable 
evidence has demonstrated that many groundfish stock projections in 
recent years have overestimated stock growth. Given the relative 
infrequency of groundfish stock assessments, there is often a 
considerable lag between the terminal year on an assessment and the 
year of the catch advice. As a result, when catches are based on only 
Frebuild, they are often based on assumptions used in the 
projection, rather than any real evidence that the stock biomass has 
increased. The rebuilding strategy implemented in this action 
explicitly acknowledges this issue and allows short-term catch advice 
to be less than Frebuild in order to account for 
uncertainty. If an assessment indicates the stock is rebuilding more 
rapidly than originally predicted, Frebuild will be 
recalculated, and catches could be increased. An assessment update is 
preliminarily scheduled for 2014,

[[Page 26191]]

although this schedule may change depending on assessment needs and 
priorities. This action implements ABCs for FYs 2013-2015, so 
presumably, if any update is completed in 2014, Frebuild 
would be recalculated, and if the stock is rebuilding faster than 
predicted, catches could be increased.
    The SSC noted in its ABC recommendation for this stock that a 
constant catch of 1,676 mt for FYs 2013-2015 is based on the long-term 
yield expected if recruitment of the stock follows more recent trends, 
as opposed to the longer term trend used in the assessment. The SSC 
also stated that recent recruitment has been consistently below the 
recruitment predicted in the assessment, which could be indicative of 
an environmental change, or a poor model fit. Due to the uncertainty in 
the projections, and recruitment that is consistently less than 
expected, NMFS thinks it is appropriate to reduce catches below 
Frebuild to account for these uncertainties even though this 
may result in forfeiting near-term yields. This will help ensure that 
the stock rebuilds on time, and will also help ensure that overfishing 
does not occur.
    Comment 3: One NGO stated that increasing fishing mortality on a 
stock that is not making adequate rebuilding progress is inappropriate.
    Response: Amendment 16 adopted a rebuilding strategy for SNE/MA 
winter flounder that would keep fishing mortality as close to zero as 
possible and rebuild the stock by 2014. NMFS notified the Council in 
May 2012 that SNE/MA winter flounder was not making adequate rebuilding 
progress, and as a result, was required to revise the rebuilding 
program for this stock within 2 years, or by May 1, 2014. Framework 50 
responds to this requirement consistent with Magnuson-Stevens Act and 
National Standards. The Council calculated the maximum rebuilding time 
period for this stock appropriately. Further, a rebuilding end date of 
2023 has a median probability of success, which is consistent with the 
relevant case law. Fishing mortality may increase compared to recent 
years because the rebuilding strategy no longer aims to keep fishing 
morality as close to zero as possible. However, the FYs 2013-2015 ABCs 
are consistent with the revised rebuilding program, and are actually 
lower than Frebuild in order to account for scientific 
uncertainty in the projections. Reducing catches from 
Frebuild will help increase the chances that rebuilding will 
occur on schedule because the realized recruitment, which is less than 
the recruitment predicated in the assessment, was used to inform catch 
advice.

Southern New England/Mid-Atlantic Winter Flounder Management Measures

    Comment 4: One NGO opposed reopening a directed fishery on SNE/MA 
winter flounder to mitigate economic impacts of catch limit reductions 
for other groundfish stocks. The commenter proposed that, if economic 
mitigation was critical, the groundfish fleet could have been allowed 
to land its bycatch of SNE/MA winter flounder that is caught while 
prosecuting other fisheries.
    Response: The new rebuilding plan and management strategy for SNE/
MA winter flounder is not being done only to mitigate economic impacts, 
but rather to implement a new rebuilding strategy as allowed by the 
Magnuson-Stevens Act when a management plan is not making adequate 
progress. The revised management plan takes into account all National 
Standards, including the requirement to mitigate negative impacts on 
the fishing community, to the extent practicable, in light of 
conservation requirements. The Groundfish Plan Development Team 
presented the idea to the Council's Groundfish Committee that, if the 
catches under the revised rebuilding strategy were too low to allocate 
the stock to sectors, a trip limit could be used for sector and common 
pool vessels. This trip limit would have allowed vessels to land a 
small amount of SNE/MA winter flounder, which may have provided a small 
economic benefit to the fishery. In this case, the reactive area-based 
AM that was initially proposed in Framework 48 would have been 
implemented. If vessels are allowed to land the stock, regardless of 
whether trip limits were implemented, or the stock was allocated to 
sectors, the FYs 2013-2015 ABCs were developed first, consistent with 
the revised rebuilding program. Allocating the stock to sectors 
provides a greater amount of catch accountability in the fishery, and 
if a sector catches its entire ACE, it must stop fishing in the SNE/MA 
winter flounder stock area, unless it leases additional ACE for this 
stock. This helps prevent overages of the ACLs, and better ensures that 
overfishing will not occur. Allocating the stock to sectors also 
provides the greatest amount of flexibility for groundfish vessels.
    Comment 5: One individual, one state, and two industry groups 
supported the allocation of SNE/MA winter flounder to sectors and 
stated that this will ensure accountability and would provide a small 
amount of economic relief for groundfish vessels.
    Response: NMFS agrees that allocating the stock to sectors ensures 
the greatest amount of catch accountability. As noted earlier, because 
sectors are prohibited from fishing in a stock area if they do not have 
any ACE for the pertinent stock, this helps ensure that ACLs are not 
exceeded, and helps ensure that overfishing does not occur. Based on 
analysis completed by the Council for Framework 50, although other 
stocks will still be limiting for groundfish vessels, it appears that 
this measure could provide additional fishing opportunities, and 
potentially provide an additional $5.4 million in ex-vessel revenues in 
FY 2013.

FY 2013 GB Yellowtail Flounder Catch Limits

    Comment 6: Two industry groups and one state marine fisheries 
agency supported the Council's preferred alternative for GB yellowtail 
flounder (a FY 2013 ABC of 1,150 mt), and stated that this ABC proposed 
by the Council in Framework 50 was based on the SSC's recommendation. 
Two of these commenters were disappointed that a stronger effort was 
not made to reconvene the TMGC in order to renegotiate the 2013 quota 
for GB yellowtail flounder after the Council adopted a higher quota 
than what was recommended by the TMGC, and that the industry should not 
suffer because the Council did not reconcile the higher quota with the 
TMGC. The state also noted that the TRAC assessment for GB yellowtail 
flounder was at odds with a yellowtail flounder tagging study completed 
by the University of Massachusetts Dartmouth School for Marine Science 
and Technology (SMAST).
    Response: This final rule disapproves the FY 2013 ABC for GB 
yellowtail flounder that the Council proposed in Framework 50 because 
it would likely not end overfishing for the stock and would not be 
based on the best scientific information available, not because the ABC 
recommended by the Council is inconsistent with the TMGC's 
recommendation. These reasons are more fully discussed earlier in this 
preamble, and are not repeated here (see Disapproved Measures and Item 
4 of this preamble).
    With respect to the comment regarding reconvening the TMGC, the 
Council did not pass any motion to reconvene the TMGC and renegotiate 
the TMGC's recommendation for 2013 catches of GB yellowtail flounder. 
But, in addition, based on preliminary information during the 
development of

[[Page 26192]]

Framework 50, the Council's ABC recommendation of 1,150 mt did not 
appear to be based on the 2012 TRAC assessment, which Canada had 
supported as the best scientific information available. Moreover, 
Canada expressed concern for the SSC's recommendation of 1,150 mt in 
that it appeared to be arbitrary, and not based on the 2012 assessment. 
For all of these reasons, NMFS does not believe it would have been 
appropriate, or warranted, to request that the TMGC re-negotiate the 
2013 quota for GB yellowtail flounder.
    There have been multiple instances in recent years where the TMGC 
has reconvened, at the request of the Council and NMFS, in order to re-
negotiate the TMGC's recommendations. In one of these cases, for FY 
2011, reconvening the TMGC resulted in the TMGC recommending a higher 
GB yellowtail flounder quota than initially agreed upon in order to 
respond to new U.S. law that had recently been enacted (the 
International Fisheries Agreement Clarification Act). In this case, the 
renegotiated quota was consistent with the best scientific information 
available and other applicable law. NMFS agrees that, under special 
circumstances, the TMGC should be reconvened if the respective U.S. or 
Canadian management bodies have quota recommendations that differ from 
the TMGC. However, the TMGC provides catch recommendations based on the 
annual TRAC assessments that are conducted annually for each stock. 
Therefore, special circumstances that would warrant reconvening the 
TMGC would likely be the result of new, recently discovered information 
that becomes available after the TMGC meets, or if the TMGC's 
recommendations are determined to be inconsistent with the conservation 
objectives of the FMP or Magnuson-Stevens Act requirements. Moreover, 
as discussed in more detail earlier in this preamble, NMFS has made a 
final determination that a 2013 ABC of 1,150 mt is not consistent with 
the best scientific information available, would likely fail to end 
overfishing for the stock, and would undermine the conservation 
objectives of the FMP. NMFS voiced these concerns during the 
development of Framework 50, and does not agree with the commenter that 
NMFS did not provide guidance and advice on how best to approach the 
ABC recommendation of 1,150 mt with Canada. For all of these reasons 
mentioned above, NMFS does not agree that the TMGC should have been 
reconvened given the results of the 2012 TRAC assessment, and the 
inconsistencies in the SSC's recommendation with these assessment 
results.
    The SMAST yellowtail flounder tagging study was not submitted, or 
presented, at the 2012 TRAC meeting, and as a result, was not able to 
be considered as part of the 2012 assessment. However, since this issue 
has been raised, the NEFSC has met with SMAST scientists to discuss the 
results of the tagging study. NEFSC and SMAST scientists identified 
additional analyses that should be conducted to address some concerns 
with the initial results of the tagging study. These additional 
analyses are scheduled to be presented at the June 2013 TRAC assessment 
for GB yellowtail flounder. NMFS supports the continued discussions of 
this tagging study in order to incorporate these results into the next 
assessment, and agrees that additional information like this could 
better inform the assessment.
    Comment 7: Two industry groups and one state marine fisheries 
agency opposed the proposed emergency rulemaking to implement a FY 2013 
ABC of 500 mt for GB yellowtail flounder and stated that NMFS does not 
have the authority to do this. The state marine fishery agency also 
commented that the proposed emergency rulemaking is not consistent with 
the SSC's recommendation.
    Response: NMFS disagrees that it does not have the authority to 
disapprove the Council's recommended ABC of 1,150 mt, and instead, 
implement an ABC of 500 mt. As specified in the Magnuson-Stevens Act, 
NMFS, on behalf of the Secretary, must ensure that any FMP (and by 
extension framework and amendment) be carried out in accordance with 
provisions in the Magnuson-Stevens Act. Thus, once a plan is submitted 
to NMFS for review and approval, NMFS must make the final determination 
that the plan, along with its corresponding measures, is consistent 
with the Magnuson-Stevens Act and the National Standards. As discussed 
at length earlier in this preamble (see Disapproved Measures), NMFS is 
disapproving the ABC of 1,150 mt that was adopted by the Council in 
Framework 50 because it would likely fail to prevent overfishing, and 
is not based on the best scientific information available, which 
violates National Standards 1 and 2 of the Magnuson-Stevens Act. 
Through emergency authority, this final rule implements a FY 2013 ABC 
of 500 mt that is consistent with the best scientific information 
available and the SSC and TMGC's recommendation, as well as NMFS 
guidance on emergency rules. This action is discussed at length in a 
previous section of this preamble, and so is not repeated here (see 
Item 4 of this preamble).
    NMFS disagrees with the comment that a FY 2013 ABC of 500 mt is not 
consistent with the SSC's recommendation. The SSC's final report on 
2013 catch limits for GB yellowtail flounder recommended a range of 
ABCs from 200-1,150 mt. The Council selected the highest possible ABC 
from this range, which NMFS has determined would likely not end 
overfishing for this stock and is not consistent with the best 
scientific information. The details of the SSC's recommendations have 
been discussed in detail in previous sections of this preamble, and are 
not repeated here. However, the SSC recommended a FY 2013 ABC of 1,150 
mt as a backstop measure only for a bycatch-only fishery, and also 
recommended a range of FY 2013 ABCs consistent with the range of catch 
advice provided by the 2012 TRAC assessment (200-500 mt). Thus, 
although the statutory requirement to abide by the SSC's recommendation 
only applies to the Council, the emergency rulemaking is consistent 
with the SSC's recommendations. Moreover, even if 1,150 mt was not 
determined to violate Magnuson-Stevens Act requirements, selecting an 
ABC that is below the highest catch level recommended by the SSC does 
not make an ABC inconsistent with the SSC's recommendations. The SSC's 
ABC recommendation is a limit, which the Council cannot go above. 
However, this does not, and should not, preclude the Council from 
selecting an ABC that is lower than the SSC's catch advice.
    Comment 8: Two industry groups and one state marine fishery agency 
commented that a FY 2013 ABC of 500 mt will result in economic disaster 
and fishery closures.
    Response: Available analysis does show that a FY 2013 ABC of 500 mt 
(U.S. quota 215 mt) will have economic impacts on groundfish and 
scallop vessels, and coupled with reductions in catch limits for other 
key groundfish stocks, this action could have severe, negative impacts 
on the fishery. These reductions are necessary in order to meet 
conservation objectives and satisfy applicable Magnuson-Stevens Act 
requirements that require conservation measures even if it results in 
severe negative economic impacts. Nevertheless, there are numerous 
mitigation measures that are already in place, or are being implemented 
in connection with this action, to help mitigate negative impacts of 
low catch limits in FY 2013. In addition, NMFS is

[[Page 26193]]

seeking other ways to reduce these impacts. Most directly related to 
the availability of GB yellowtail flounder quota, the TMGC began 
developing a quota trading mechanism to be used to trade quota between 
the U.S. and Canada. In February 2013, the TMGC drafted a series of 
guiding principles that should be used by both countries in developing 
and implementing trades. In April 2013, the TMGC recommended these 
guiding principles to the U.S./Canada Steering Committee, and also 
recommended that a pilot project be developed with candidate stocks (GB 
yellowtail flounder and eastern GB haddock). The U.S./Canada Steering 
Committee agreed to move forward with development of a trading 
mechanism. The next step for the Council and NMFS will be to outline 
how a trading mechanism would be implemented in U.S., and what 
modifications would be required to the FMP. NMFS is committed to 
developing a trading mechanism that can provide for additional fishing 
opportunities for U.S. vessels, and will support the Council in moving 
this issue forward. Trading quota with Canada would provide additional 
fishing opportunities for U.S. vessels faced with a dramatic reduction 
in the GB yellowtail flounder quota, and if possible, NMFS supports any 
potential trade that could occur in FY 2013.
    This final rule provides additional fishing opportunities by 
allocating SNE/MA winter flounder to sectors and allowing commercial 
and recreational vessels to land this stock. This is expected to 
provide additional fishing opportunities and has the potential to 
provide an additional $5.4 million in ex-vessel revenue than if 
possession of the stock continued to be prohibited in FY 2013. This 
final rule also implements an emergency rulemaking to increase the FY 
2013 ABC for white hake based on the new assessment that was completed 
in February 2013. Additional white hake quota may provide additional 
fishing opportunities as it reduces the likelihood that groundfish 
vessels would be constrained by available white hake quota. In 
addition, Framework 48 reduces the minimum fish size for yellowtail 
flounder, cod, haddock, and other groundfish stocks. This measure is 
expected to reduce regulatory discards for these stocks, which analysis 
shows may increase trip revenues and help achieve the economic benefits 
of OY. Framework 48 also adopts a measure that allows sector vessels to 
request access to the year-round groundfish closed areas in order to 
provide additional opportunity for vessels to target healthy stocks 
that may be more abundant in these areas. NMFS is considering and 
analyzing sector requests through a separate rulemaking in FY 2013 as a 
potential way to increase the likelihood of achieving OY and mitigating 
economic impacts of the FY 2013 catch limits. NMFS has also approved 23 
regulatory exemptions requested by sectors in the final rule for FY 
2013 Sector Operations Plans and Contracts, and Allocation of ACE. 
These exemptions are meant to provide sector vessels the greatest 
amount of flexibility possible to make business plans and harvest 
available ACE in FY 2013.
    More importantly, NMFS intends to pay for at-sea monitoring costs 
for the groundfish fishery in FY 2013 to help provide some economic 
relief to vessels. NMFS has also implemented emergency measures to 
temporarily suspend monkfish trip limits for some groundfish vessels 
and provide additional fishing opportunities that could increase 
landings and revenues. Cumulatively, all of these measures are expected 
to help mitigate the anticipated impacts of the catch limit reductions 
for many key groundfish stocks in FY 2013. The Council, and NMFS, will 
continue to develop measures that can provide some economic relief to 
the fishery and help vessels target healthy groundfish stocks.
    Comment 9: Three NGOs supported disapproval of the FY 2013 ABC of 
1,150 for GB yellowtail flounder that was proposed by the Council in 
Framework 50. Two of these organizations support the proposed emergency 
rule to implement a FY 2013 ABC of 500 mt; however one NGO opposed this 
action, and stated that this situation does not meet the required 
emergency criteria.
    Response: NMFS agrees with the comments that the FY 2013 ABC of 
1,150 mt for GB yellowtail flounder should be disapproved. NMFS is 
disapproving this ABC in Framework 50, and through this final rule, is 
implementing a FY 2013 ABC of 500 mt through an emergency rule. This 
issue is discussed in detail earlier in this preamble (see Disapproved 
Measures and Item 4 of this preamble), and is not repeated here.
    NMFS disagrees that this situation does not meet the required 
emergency criteria. The commenter stated that the FY 2013 ABC of 1,150 
mt proposed in Framework 50 should be disapproved and the issue be 
remanded back to the Council for action. NMFS finds this suggestion 
irresponsible and impractical, as it would pose harm to the resource, 
cause severe disruption to the fishery, and undermine the joint 
management of this stock with Canada under the Understanding. As 
described at length in Item 4 of this preamble, setting an ABC of 500 
mt for this stock meets emergency rule guidance provided by the NMFS. 
The need for this emergency is based on recent, unforeseen events given 
that the Council did not take final action on Framework 50 until 
January 2013. This is nearly 2 months after the Council typically takes 
final action on groundfish management actions in order to submit the 
action to NMFS for review and implementation by the start of the 
groundfish fishing year on May 1. As previously outlined in this rule, 
there were a number of factors that contributed to the recent, and 
unforeseen, events that justified an emergency action in this 
situation. The commenter did not provide any realistic alternative to 
the emergency rule to implement a FY 2013 ABC of 500 mt for GB 
yellowtail flounder. In addition, the proposal to remand the issue back 
to the Council for action ignores the negative biological, social, and 
economic impacts that no action would have on the resource and the 
fishery. As outlined here, and previously in the preamble of this rule, 
this situation does meet the necessary emergency rulemaking criteria 
and is consistent with the applicable Magnuson-Stevens Act 
requirements, as well as the policy guidelines for the use of emergency 
rules previously published by NMFS (62 FR 44421; August 21, 1997).
    Comment 10: One industry group commented that the scallop fishery's 
allocation of GB yellowtail flounder under a FY 2013 ABC of 1,150 mt 
would probably prevent overages, but does not provide 100 percent of 
the scallop fishery's need.
    Response: Framework 48 adopts a fixed allocation of the U.S. ABC 
for GB yellowtail flounder. In FY 2013, Framework 48 implements an 
allocation of 40 percent of the U.S. ABC, and in FY 2014 and beyond, 
the scallop fishery will receive 16 percent of the U.S. ABC. The 
emergency rule implemented in this action implements a FY 2013 ABC of 
500 mt for GB yellowtail flounder, which results in a scallop fishery 
sub-ACL of 83.4 mt (40 percent of the U.S. ABC of 215 mt). Framework 24 
to the Atlantic Sea Scallop FMP (Framework 24) adopted management 
measures for the scallop fishery for FY 2013. The amount of GB 
yellowtail flounder expected to be caught by the scallop fishery under 
the preferred alternative in Framework 24 was estimated between 40.7 mt 
at the low end, to 152.8 mt at the high end. The medium

[[Page 26194]]

estimate of GB yellowtail flounder expected to be caught by scallop 
vessels in FY 2013 is 83.4 mt. These estimates do have some 
uncertainty. If the realized catch of the scallop fishery is between 
the low and medium estimates, then it is unlikely that the FY 2013 sub-
ACL will be constraining for the scallop fishery, and that the scallop 
fishery's AM would be triggered. If scallop fishery catches of GB 
yellowtail flounder in FY 2013 are closer to the high end, the FY 2013 
allocation could be constraining, and may trigger the scallop fishery's 
AM. However, there are some measures that may help mitigate this, and a 
bycatch avoidance program that will help ensure scallop vessels avoid 
GB yellowtail flounder hotspots. These measures are discussed in more 
detail below.
    Due to the declining status of GB yellowtail flounder, and the low 
U.S. ABC for the stock in FY 2013, it is possible that scallop vessels 
could be constrained by their allocation. However, Framework 47 adopted 
a measure that provides flexibility for the scallop fishery, and can 
help mitigate low GB yellowtail flounder quotas. This measure specifies 
that the scallop fishery's AM for GB yellowtail flounder is only 
triggered if the scallop fishery exceeds its sub-ACL by 50 percent or 
more, or if the scallop fishery exceeds its sub-ACL and the total ACL 
is also exceeded. This measure functions as a ``pseudo'' quota transfer 
from the groundfish fishery to the scallop fishery in order to balance 
the need to achieve OY in the fishery, prevent loss of scallop yield, 
and prevent overfishing for the stock.
    In addition, the scallop fishery has used a bycatch avoidance 
program developed by the SMAST. This program has been successful in 
recent years to help scallop vessels target areas with high scallop 
yield, while avoiding hotspots of yellowtail flounder. SMAST has 
announced that it is expanding this program for the 2013 fishing year 
to help mitigate the low quotas for GB yellowtail flounder. NMFS 
expects that this program will continue to reduce the bycatch of GB 
yellowtail flounder in the scallop fishery, and supports the expansion 
of this program to maximize benefits to the scallop fishery.

FYs 2013-2015 GOM Cod Catch Limits

    Comment 11: One industry group and one state marine fishery agency 
opposed the GOM cod catch limits proposed in Framework 50 and stated 
that these catch limits are too low. These commenters supported the 
Council's request to NMFS to implement interim measures in FY 2013 to 
further reduce but not end overfishing for GOM cod.
    Response: NMFS disagrees that the FYs 2013-2015 catch limits for 
GOM cod are too low in light of best available scientific information. 
The catch limits adopted in Framework 50 are necessary to end 
overfishing for GOM cod and allow some stock rebuilding. These catch 
limits are based on the December 2012 benchmark assessment, which was 
completed at the request of the Council and industry to address 
outstanding issues from the December 2011 benchmark assessment for this 
stock (i.e., discard mortality rates, fishery selectivity, etc.).
    In May 2012, NMFS notified the Council that based on the results 
from the December 2011 assessment for GOM cod, the stock was overfished 
and overfishing was occurring. In addition, the results of the 
assessment indicated that the stock was not making adequate rebuilding 
progress. These assessment results resulted in a significantly revised 
scientific understanding of the status of this stock. As a result, NMFS 
notified the Council that it must implement a revised rebuilding 
program for GOM cod within 2 years, or by May 1, 2014, and that it must 
end overfishing within 1 year, or by May 1, 2013. For FY 2012, NMFS 
implemented interim measures to reduce but not end overfishing for GOM 
cod while the Council responded to the new assessment information and 
developed appropriate management measures to end overfishing for the 
stock.
    The interim measures implemented by NMFS were only a 1-year 
temporary exception to the Magnuson-Stevens Act requirement to end 
overfishing immediately. Section 304(e)(6) of the Magnuson-Stevens Act 
allows a temporary exception to the requirement to end overfishing 
immediately in certain narrow circumstances during the development or 
revision of a rebuilding plan. When NMFS implemented the interim 
measures for FY 2012, it determined that the application of this 
exception was limited to 1 year, as constrained by the limited 
authority provided in 305(c). The Council and others have argued that 
the Secretary may issue back-to-back interim actions to span the full 2 
years the Council may take to revise the rebuilding program for GOM 
cod. To be consistent with relevant provisions of the Magnuson-Stevens 
Act, and in light of its clear mandate to end overfishing, a second 
year of interim measures for GOM cod is not justified unless a change 
in circumstances has created a new emergency situation that would 
permit such action. There are no new circumstances that would give rise 
to a new set of interim measures for FY 2013. Also, as noted by one of 
the commenters, GOM cod abundance is low. NMFS has repeatedly said, 
because of the status of the stock, allowing overfishing for another 
year on this stock would not be prudent. Framework 50 adopts FYs 2013-
2015 specifications consistent with the best scientific information 
available that will end overfishing for the stock. Thus, this final 
rule appropriately responds to the Council's requirement that it must 
end overfishing for GOM cod by May 1, 2013.
    Comment 12: Three NGOs opposed the FYs 2013-2015 catch limits for 
GOM cod and stated that these specifications are too high, and deviate 
from the Council's ABC control rule. These comments also noted that the 
preferred alternative for GOM cod is not consistent with the SSC's 
recommendation.
    Response: NMFS disagrees. The FYs 2013-2015 catch limits for GOM 
cod are not too high because they are consistent with best scientific 
information available. The GOM cod specifications implemented in this 
action were developed using the results of the December 2012 benchmark 
assessment for the stock and are consistent with the SSC's 
recommendation. As discussed in detail in Item 4 of this preamble, the 
SSC recommended two constant ABCs for FYs 2013-2015: 1,249 and 1,550 
mt. Although the SSC preferred a constant catch ABC of 1,249 mt because 
it increases the likelihood of stock rebuilding, the SSC also 
recommended a constant catch ABC of 1,550 mt for reasons that are 
summarized below and discussed more fully in Item 4 of this preamble.
    The December 2012 benchmark assessment for GOM cod provided a 
unique situation because two assessment models were approved. NMFS 
discussed the details of these two models, which resulted in the two 
ABC alternatives recommended by the SSC, as well as the SSC's rationale 
for recommending an ABC for GOM cod that deviates from the Council's 
ABC control rule, in Item 4 of this preamble. This discussion is not 
repeated here. However, NMFS has determined that the SSC's 
recommendation for a FY 2013-2015 ABC of 1,550 mt is consistent with 
the relevant sections of the Magnuson-Stevens Act and Amendment 16, and 
that the SSC adequately justified why the available information 
provided a better understanding of the scientific uncertainty in the 
assessment.

[[Page 26195]]

    Moreover, both ABC alternatives are substantially lower than the FY 
2012 catch limits, and will result in significant reductions in 
commercial catches compared to FY 2012. Both ABCs would also result in 
similar projected stock increases. Because both ABC alternatives are 
consistent with the relevant provisions of Magnuson-Stevens Act and 
would likely end overfishing in FY 2013, it is important to consider 
the needs of fishing communities. Although the differences in revenue 
between a FY 2013 ABC of 1,249 and 1,550 mt are relatively small, these 
differences are not insignificant given the dramatic reductions the 
groundfish fishery is facing in FY 2013. To ignore an alternative that 
meets the conservation objectives of the FMP and the Magnuson-Stevens 
Act and that could help mitigate some of the economic impacts of this 
action would not be consistent with National Standard 8.

FYs 2013-2015 Catch Limits

    Comment 13: A NGO commented that the FYs 2013-2015 specifications 
are not precautionary enough given the uncertainties in the 
assessments. One individual opposed the catch limits stating that they 
are too high, but did not provide any specific rationale. The NGO, in 
addition to 438 individuals, commented that there should be no directed 
fishing for cod.
    Response: NMFS disagrees that the FYs 2013-2015 specifications are 
not precautionary enough in light of best scientific information 
available. As discussed in detail in Item 4 of this preamble, and 
Appendix I of the EA (see ADDRESSES), there are a number of stocks for 
which constant catch ABCs are adopted for FYs 2013-2015 specifically to 
account for the scientific uncertainty in the assessments and catch 
projections. In these cases, ABC is set at 75% FMSY for FY 
2013, consistent with the ABC control rule, but is held constant for FY 
2014 and 2015. This results in a larger buffer between the OFL and ABC 
in FYs 2014-2015 than the ABC control rule would, if applied, and as a 
result is actually more precautionary to address uncertainties in the 
assessments. A full description of the analyses completed to develop 
the ABC recommendations is not repeated here.
    Moreover, the commenter took an excerpt of the proposed rule to 
this action out of context. The commenter cited language from the 
proposed rule that explained the Council recommended the ABCs provided 
by the SSC, which are the highest allowed, for all stocks except GB 
yellowtail flounder as evidence that the specifications are not 
sufficiently precautionary. However, this rationale in the proposed 
rule was provided to explain why, under the Initial Regulatory 
Flexibility Act (IRFA), there were no other alternatives to the FYs 
2013-2015 ABCs proposed in Framework 50 that would mitigate the 
economic impacts of this action. This comment was taken out of context, 
and is not indicative that the catch limits in this action are not 
precautionary enough. As already noted, the specifications implemented 
in this action are based on the best scientific information available, 
and are consistent with conservation objectives of the FMP and 
applicable law. Also, as discussed in Items 1 and 4, for many stocks, 
specific action has been taken to attempt to account for uncertainty in 
catch projections (e.g., constant catch ABCs, catches lower than 
Frebuild, etc.). NMFS believes that this increases the 
likelihood that overfishing will not occur, and that stock rebuilding 
occurs on schedule.
    NMFS disagrees with the commenters' proposal that the fishery 
should be closed to directed fishing for cod. Given the low quotas for 
both cod stocks beginning in FY 2013, it is unlikely that cod will be a 
primary directed species. Rather, most groundfish vessels will likely 
use their available cod quota to prosecute other fisheries. The initial 
FY 2013 cod trip limits for common pool vessels are so low that they 
will likely preempt these vessels from any directed fishing on cod. 
However, it is unclear whether the commenter intended that trip limits 
should be extended for sector vessels in order to prevent directed 
fishing, or whether possession of the stock should be prohibited. 
Regardless, both the commercial and recreational groundfish fisheries 
receive allocations of cod, which, in addition to other management 
measures and AMs, help prevent catches from exceeding these sub-ACLs. 
In addition, sector vessels have the flexibility to make business plans 
and fish as efficiently as possible in order to maximize revenues with 
available allocations. NMFS disagrees that trip limits would be 
appropriate for sector vessels, and believes this is contrary to the 
intent of Amendment 16 and the sector management program. The Council 
is required to revise the rebuilding program for GOM cod by May 1, 
2014, and the Council could consider a rebuilding strategy that would 
keep fishing mortality as close to zero as possible, or that would 
necessarily prevent directed fishing on GOM cod. Similarly, the Council 
could adopt management measures in its next action that would 
necessarily prevent directed fishing for GB cod.
    Comment 14: One industry group opposed the FYs 2013-2015 catch 
limits for GOM haddock that were adopted in Framework 50 and stated 
that the management of GOM and GB haddock ignores known spillover of GB 
haddock into the GOM.
    Response: The FYs 2013-2015 ABCs for GOM haddock are based on the 
best scientific information available, and are necessary to end 
overfishing for the stock. The issue of GB haddock spillover into the 
GOM was recently raised in early 2013. As a result, the Council tasked 
the Groundfish Plan Development Team (PDT) and the SSC to examine the 
potential spillover. The Groundfish PDT continues to analyze the 
potential mixing of these two stocks. However, to date, no analysis is 
conclusive, and it appears than even if mixing can be demonstrated, it 
would be difficult to quantify mixing rates sufficient to adjust catch 
advice. At its April 16, 2013, meeting, the Council's Groundfish 
Committee passed a motion requesting that NMFS implement an emergency 
action to allow 10 percent of the GB and GOM haddock catch limits to be 
used interchangeably to address potential stock mixing.
    Currently, there is no conclusive analysis on potential mixing of 
GB and GOM haddock, and as a result, it does not appear that there is 
any peer-reviewed scientific information available that would support 
any management action at this time. NMFS supports the ongoing analysis 
of this issue by the Groundfish PDT and SSC. Once the analysis is 
complete, NMFS will continue to work with the Council on this issue.
    Comment 15: One NGO generally supported the proposed catch limits, 
with the exception of GOM cod and GB yellowtail flounder, but noted 
concerns for the methods used to evaluate management uncertainty. The 
NGO requested that NMFS and the Council should develop a more rigorous 
analysis of the various components of management uncertainty.
    Response: Appendix II to Framework 44 to the FMP (Framework 44) 
discusses the elements of management uncertainty that are taken into 
account to reduce the ABC to the ACL. This appendix can be accessed 
here: http://www.nefmc.org/nemulti/index.html. Framework 44 set the 
default management uncertainty buffer for the groundfish fishery at 5 
percent for most stocks. For stocks with less management uncertainty, 
the ACL is set at 97 percent of the ABC (e.g., stocks with no state 
waters catch), for

[[Page 26196]]

stocks with more management uncertainty (e.g., zero possession stocks), 
the ACL is set at 93 percent of the ACL. These buffers are more fully 
discussed in Appendix II to Framework 44 and Appendix II to Framework 
50, and are not repeated here. However, the management uncertainty 
buffers are revisited each time the Council sets specifications. Since 
the adoption of the ``default'' management uncertainty buffers in 
Framework 44, the Council has reviewed and modified the management 
uncertainty buffers multiple times.
    During the development of Framework 50, the Groundfish PDT reviewed 
the management uncertainty buffers and recommended a number of changes 
to the Council, which the Council adopted in this action. The Council 
did discuss increasing the management uncertainty buffer for all stocks 
because of evidence that fishing behavior may differ on observed and 
unobserved trips, which could underestimate discards. However, the 
Groundfish PDT was unable to estimate the amount of suspected bias of 
observed trips in order to establish the correct buffer, and the 
management uncertainty buffer was not increased. Because total catches 
of most allocated stocks has been below 90 percent of the total ACL in 
recent years, it was determined that this would likely reduce the risk 
that actual catches would exceed the ACL if there was any potential 
bias in discard estimates.
    NMFS agrees that it would be beneficial to complete additional 
analysis to attempt to quantify various components of management 
uncertainty. However, it is often difficult to quantify these 
components, or make definitive conclusions on these types of analyses, 
since data must be used to infer activity that may not be observed or 
documented. NMFS supports the continued improvement of available 
analyses, and expects that as additional data become available, these 
types of analyses will improve. NMFS will continue to urge the Council 
to routinely review the management uncertainty buffers for their 
appropriateness.
    Comment 16: One state marine fisheries agency commented that the 
amount of the ABC set aside for state waters catch is guesswork, and 
does not reflect past history of what was caught from state waters by 
state-only vessels.
    Response: NMFS disagrees. The amount of the ABC set aside for 
states waters is not ``guesswork.'' The Groundfish PDT provides 
analysis to the Council that looks at recent years' catch of groundfish 
stocks in state waters. This review is done each time specifications 
are set for groundfish stocks. As additional years of catch data become 
available, NMFS expects that the amount estimated for state waters 
catch will become increasingly more accurate. However, it is often 
difficult to anticipate how catch in state waters will change in 
response to a Federal management action, state waters trip limits, or 
variability in the catch limits for groundfish stocks. As the commenter 
accurately points out, the amount of the ABC set aside for state waters 
is not an allocation, and is not considered an ACL, because there is no 
associated AM should state waters catch exceed the allotted amount. 
NMFS also notes that the Council can adopt different percentages for 
the amount of ABC set aside for state waters. The ABC distribution 
implemented in this final rule is consistent with the Council's 
preferred alternative for FYs 2013-2015 catch limits.

FY 2013 Common Pool Management Measures

    Comment 17: One industry group supported the concept of the GOM cod 
trip limit for Handgear A vessels to be no lower than 100 lb (45.4 kg), 
and up to the maximum 300 lb (136.2 kg) allowed, and stated that trip 
limits should be charged in 100-lb (45.4-kg) increments to make it 
easier to quantify when the trip limit is increased. The commenter also 
noted that the GOM cod trip limit should be low enough to prevent 
shutting down the common pool fishery before the end of the first 
trimester.
    Response: NMFS agrees. This final rule implements an initial FY 
2013 GOM cod trip limit of 100 lb (45.4 kg) for Handgear A vessels. The 
initial GOM cod trip limit is reduced from the 300 lb (136.2 kg) 
maximum, as required, to be the same as the trip limit applicable to 
common pool vessels fishing under a Category A DAS. This low initial 
trip limit is to ensure that the common pool fishery does not exceed 
its Trimester TACs, or its sub-ACL. In addition, if catch information 
indicates that the common pool fishery will prematurely catch its 
trimester TAC for any stock, NMFS does have the ability to adjust the 
applicable trip limits for common pool vessels and will do so to help 
ensure that the trimester TAC is not exceeded. NMFS agrees that trip 
limits, and any other applicable management measures, should be aimed 
to allow the common pool fishery to approach, but not exceed its TAC 
each trimester.
    Comment 18: One individual commented that the trip limit for SNE/MA 
winter flounder should be 500 lb (226.8 kg) per DAS, though it was not 
clear whether the commenter supported this trip limit for common pool 
vessels or the entire commercial groundfish fishery (sector and common 
pool vessels). This individual commented that there should be no 
differential DAS counting in SNE.
    Response: Available information and analysis based on recent common 
pool effort, indicates that the common pool fishery will likely only 
catch approximately 18 to 65 percent of its sub-ACL for SNE/MA winter 
flounder even with a possession limit of 5,000 lb (2,268 kg) per DAS up 
to 15,000 lb (6,803.9 kg) per trip. As a result, NMFS implements this 
initial trip limit for FY 2013 for common pool vessels. The RA may 
adjust the trip limit inseason, so if available catch information shows 
that the common pool fishery will exceed its sub-ACL, the RA would 
reduce the trip limit for common pool vessels to prevent an overage.
    The RA is not implementing any differential DAS counting in any 
area for FY 2013 for common pool vessels.
    Comment 19: One industry group opposes the Trimester TAC management 
system for the common pool fishery especially given the extremely low 
quotas for the common pool fishery. The commenter suggested eliminating 
this regulation in the next framework or amendment to the FMP.
    Response: The Trimester TAC AM provision was adopted in Amendment 
16 in 2010. Indeed, this AM is only one type of reactive AM that the 
Council may use, and the Council could develop a different AM for the 
common pool fishery if it chooses. As the commenter correctly stated, 
any changes to the Trimester TAC provision would have to be developed 
through the Council process in a future management action. However, if 
trip limits continue to be an effective proactive AM that keeps common 
pool catch within allowable levels, the Trimester TAC AM will likely 
not be triggered.

FY 2013 Recreational Management Measures

    Comment 20: Twenty eight commenters (27 individuals and the one 
charter boat organization) supported the FY 2013 recreational 
management measures for FY 2013. The commenters stated that the bag 
limits are reasonable and allow charter/party and recreational vessels 
to make a worthwhile trip.
    Response: NMFS agrees. The FY 2013 recreational measures 
implemented in this final rule will balance the need for a reasonable 
bag limit, and help ensure that the recreational fishery does not 
exceed its sub-ACL for GOM cod or

[[Page 26197]]

haddock. Item 9 of this preamble more fully discusses these measures, 
and detailed analysis is provided in the EA prepared for this action 
(see ADDRESSES). These discussions are not repeated here.
    Comment 21: One industry group and two individuals opposed the 
proposed FY 2013 recreational management measures and stated that the 
bag limits for GOM cod and haddock should be lower.
    Response: NMFS disagrees. Analysis shows that the FY 2013 
recreational measures implemented in this action would have more than a 
50-percent probability of preventing overages of the recreational sub-
ACLs for GOM cod and haddock. As the preamble to this rule discusses 
(Item 9 of this preamble), given the large reductions in the GOM cod 
and haddock quotas, it would seem that the recreational measures should 
be drastically different than the FY 2012 measures. The minimum size 
for GOM haddock for recreational vessels will increase from 18 in (45.7 
cm) to 21 in (53.3 cm). Due to changing stock conditions, the analysis 
shows that recreational angler encounters of haddock that are 18 in 
(45.7 cm) or larger will decline in FY 2013. For GOM cod, though 
recreational anglers can keep up to nine fish that are 19 in (48.3 cm), 
FY 2012 data shows that only a small fraction of trips encountered 9 or 
more fish. Less than 15 percent of party/charter trips encountered 9 or 
more fish in FY 2012, and only 25 percent of private boat anglers 
encountered 5 or more fish. These low encounter rates of legal-sized 
fish are based on the current assessment. In addition, FY 2012 
recreational catch is expected to be well below the GOM cod sub-ACL, 
and the relatively low effort is expected to continue in FY 2013. This 
expected low effort is based on available analysis of what drives 
people to fish, how much they are willing to pay for specific bag 
limits, etc.
    The commenter stated that considering the discard mortality 
estimates for haddock, there must be a GOM haddock bag limit for 
recreational vessels to prevent increased mortality by recreational 
vessels. However, a key factor in the model results is that all haddock 
discards are assumed to survive, consistent with the most recent GOM 
haddock assessment. Thus, because fewer trips will encounter legal-
sized haddock, recreational landings for GOM haddock are expected to 
decline, and therefore, only an increase in the minimum fish size was 
required to ensure the recreational fishery does not exceed its sub-ACL 
in FY 2013. In addition, there was no data to suggest that a bag limit 
for GOM haddock would be effective. With respect to the bag limit for 
GOM cod, as mentioned above, analysis shows that recreational removals 
of this stock will also decline, primarily due to changing stock 
conditions.

Economic Analysis

    Comment 22: One individual commented that the socio-economic 
impacts of the proposed measures lack clarity. The commenter also 
requested that the socio-economic assessments need to be part of the 
main document because they may not always be technologically available 
to the public.
    Response: NMFS disagrees. The analysis prepared for this action 
meets all of the requirements of the relevant law and guidelines 
available, and was actually expanded to provide a more meaningful and 
informative analysis. There were only two alternatives for the FYs 
2013-2015 specifications (No Action and the preferred alternative). 
Under the No Action alternative, no catch limits would be specified, 
and as a result, sector vessels would be unable to fish with ACE for 
most groundfish stocks. Thus, comparing the impacts of the preferred 
alternative to No Action (i.e., no fishing) would not provide a 
meaningful or informative analysis for the public. This analysis would 
have made it difficult for the public to understand the impacts of the 
catch limit reductions in FY 2013. Therefore, in order to provide a 
more meaningful analysis, the impacts of the proposed measures were 
also compared to FY 2011. This comparison provides a more clear 
understanding of the anticipated impacts of FY 2013 relative to the 
most recent fishing year in which complete data are available.
    NMFS assumes that the commenter meant that the socio-economic 
assessments should be published as part of the proposed rule. NMFS 
disagrees. The socio-economic impacts of the proposed measures are 
contained in the EA/RIR/IRFA for this action. Publishing this analysis 
as part of the proposed rule would result in an unwieldy document that 
would likely be difficult and confusing for the public to read. 
Further, in the proposed rule, the public was provided with multiple 
options for accessing the EA/RIR/IRFA. The document is available on 
both the Council and NERO Web site and http://www.regulations.gov/, 
which is the same rulemaking portal that the public could use to submit 
comments on the proposed measures. Further, the public was provided 
with instructions on how to obtain a hard copy of the analysis 
completed for this rulemaking. The proposed rule also provided the 
public with a NERO staff contact, in the event that any assistance was 
needed in: (1) Understanding the proposed measures and the associated 
analyses; (2) accessing the proposed rule or associated analyses; and 
(3) submitting public comments.

Sector Carryover

    Comment 23: Three commercial fishery organizations, one state 
marine fisheries agency, and the Council commented that NMFS cannot 
adjust the Amendment 16-provided carryover of up to 10 percent of 
previous fishing year unused ACE. These commenters assert that only a 
Council action and/or Council recommendation to NMFS can modify the 
previously implemented Amendment 16 carryover program. They object to 
NMFS's use of Magnuson-Stevens Act 305(c) emergency rulemaking 
authority to reduce the GOM cod FY 2012 to FY 2013 carryover from a 
maximum of 10 to 1.85 percent.
    Response: NMFS disagrees that it cannot modify carryover measures 
through emergency rulemaking. One of the key objectives of the 
Magnuson-Stevens Act, and mandates to NMFS, is the prevention of 
overfishing. National Standard 1, as stated in section 301 of the 
Magnuson-Stevens Act states:

    Conservation and management measures shall prevent overfishing 
while, achieving, on a continuing basis, the optimum yield from each 
fishery for the United States fishing industry.

    Additionally, section 304(e)(3)(A) requires that management 
measures for overfished fisheries ``end overfishing immediately.''
    NMFS's use of the emergency GOM cod measures implemented by this 
rule pursuant to 305(c) are necessary to ensure that the total 
potential GOM cod catch in FY 2013 does not exceed the overfishing 
limit. Analysis of the total potential catch (i.e., the fishery level 
ACL + available carried over catch), if the full 10 percent of FY 2012 
ACE provided under the Amendment 16 implemented regulations is carried 
over, would exceed the overfishing limit by 12 percent. NMFS has 
reduced by emergency measures the available GOM cod carryover to ensure 
the total potential catch is approximately 6 percent below the 
overfishing limit.
    Amendment 16 briefly contemplated the potential for carryover to 
increase the overfishing risk in situations where large reductions in 
available catch occurred from one year to the next. However, the 
amendment was silent on how to account for carryover catch as it

[[Page 26198]]

relates to National Standard 1 regarding preventing overfishing and how 
to adjust carryover where carryover would result in potential catch 
higher than the overfishing limit in clear violation of statutory 
provisions of the Magnuson-Stevens Act.
    As stated in the preamble, because the Council did not recommend 
measures to address the GOM cod carryover issue in Framework 50, NMFS 
is obligated to take action to reduce the total potential catch to a 
level below the overfishing limit, to ensure that overfishing of GOM 
cod does not occur. The only available option for so in a timely 
fashion before the beginning of the 2013 FY is through use of emergency 
rulemaking under section 305(c) of Magnuson-Stevens Act. As explained 
in response to the next comment and elsewhere in this rule and the 
proposed rule, emergency rulemaking to reduce the amount of carryover 
of GOM cod is consistent with NMFS guidelines.
    Comment 24: Some NGOs stated that the Magnuson-Stevens Act and NMFS 
criteria for emergency rulemaking have not been met with respect to 
carryover of GOM cod. The commenters indicate that the substantial 
reduction in GOM cod catch and the potential for carryover when paired 
with the long-anticipated low FY 2013 catch limit does not meet the 
necessary emergency rulemaking criteria as the situation was not 
unforeseen. These commenters cite in support of their argument several 
letters between the Council and NMFS with respect to carryover 
concerns. They also state that there is no evidence in the record that 
the reduced carryover amount is needed to meet a serious conservation 
or management problem. The commenters assert that the emergency action 
should not be taken and the carryover issue addressed through the 
deliberative and participatory Council process.
    Response: NMFS disagrees that it is inappropriate to use Magnuson-
Stevens Act section 305(c) emergency regulation authority to reduce the 
amount of available GOM cod ACE carried over from FY 2012. As stated in 
the NMFS guidelines for emergency rulemaking (62 FR 44421; August 21, 
1997), and as explained in the preamble, NMFS is authorized to 
implement emergency measure to address serious conservation and 
management concerns resulting from recent, unforeseen events. Analysis 
indicates that providing up to 10 percent of the FY 2012 GOM cod sector 
ACE as carryover in FY 2013 would result in a total potential catch 
that is 12 percent above the OFL of 1,635 mt. Though the potential 
catch may not be fully caught in FY 2013, NMFS considers that allowing 
a potential catch in excess of OFL poses a serious conservation and 
management threat to the GOM cod fishery that results from recent, 
unforeseen events. Overfishing, therefore, could occur for GOM cod 
without the measures contained in NMFS's emergency rulemaking.
    Regarding the criterion for the need for the emergency to be based 
on recent, unforeseen events, the commenters mischaracterize the nature 
and timing of events which NMFS considers both recent and unforeseen 
for both emergency actions. The updated stock status and catch advice 
resulting from the December 2012 GOM cod stock assessment, which the 
Council relied on, in part, to make its ABC recommendation, was not 
finalized and presented until January 2013, just before the January 29-
31 Council meeting. It was not until March 22, 2013, that the Council 
formally submitted Framework 50 which contained the critical 
examination of the potential impact of not only the Council's 
recommended catch limits, but also the potential impact of allowing up 
to 10 percent carryover for all stocks. By this time it was clearly too 
late for the Council to act before the beginning of FY 2013 and the 
only recourse to address the very real potential of overfishing of GOM 
cod due to the carryover provision was this emergency action.
    The commenters assert that the GOM cod situation was predictable 
and, therefore, foreseen based on the assumption that the stock 
assessment for GOM cod conducted in December 2012 would produce stock 
status and catch advice similar to the assessment conducted in December 
2011. It would have been inappropriate to presuppose the results of the 
2012 updated assessment and how the Council's SSC and ultimately the 
Council would use the 2012 GOM cod assessment stock information to 
recommend catch advice to NMFS at the Council's January 29-31 meeting. 
In any event, because the Council did not address the carryover 
concern--which NMFS did bring to their attention on several occasions--
without NMFS action, the full 10 percent carryover for GOM cod would be 
allowed, thereby risking overfishing on this stock. Appendix V to the 
Framework 50 EA has a detailed timeline and description of events in 
the post-Amendment 16 carryover discussion spanning from late 2011 
through the development of Framework 50 over 2012 and early 2013. This 
includes description of two guidance letters sent by NMFS to the 
Council on May 25, 2012, and July 26, 2012. To send this issue again 
back to the Council, without any assurance that the Council would 
reduce the carryover amount in a timely way, would leave the potential 
that the full carryover for GOM cod could be fished in the meantime, in 
excess of the overfishing limit.
    With no possibility of the Council addressing the GOM cod carryover 
concern in a timely way, NMFS's only available mechanism for so doing 
is emergency rulemaking as provided for by section 305(c) of the 
Magnuson-Stevens Act. For these reasons, NMFS contends there is a clear 
fulfillment of the emergency rulemaking criteria.
    Comment 25: One comment stated the emergency rule implemented GOM 
cod unused ACE carryover amount should not be touted as ``mitigating 
adverse impacts to the extent possible,'' stating that such statements 
were disingenuous because the carryover amount would provide 
approximately $50,000 to the groundfish fleet. The commenter seemed to 
infer that the reduced carryover does not sufficiently mitigate the 
universe of negative impacts resulting from reduced catch limits across 
the board.
    Response: The comment pertains to information conveyed in the 
Framework 50 proposed rule classification section IRFA summary 
pertaining to carryover (78 FR 19389; March 29, 2013). The commenter 
did not accurately cite the information. NMFS believes the commenter 
misinterpreted the statement to suggest that the relatively minor 
carryover and economic contribution in the context of the entire 
groundfish fishery would somehow provide mitigation for the suite of 
reduced catch limits for FY 2013. This is not the statement's intent. 
To clarify, the IRFA summary conclusion in the specific carryover 
discussion section states,

    The proposed carryover amounts mitigate adverse economic impact 
to the maximum extent possible while ensuring NMFS meets its 
statutory obligation to propose catch limits, in this case FY 2013 
ACLs plus the potential carryover that do not result in overfishing 
stocks.

    This statement refers to the NMFS clarification that allowing full 
carryovers, except for GOM cod, help mitigate reduced catch limits 
across the board. The reduced carryover amount for GOM cod, while 
mitigating negative impacts to a lesser degree, is still the maximum 
possible mitigation in light of legal requirement of the Magnuson-
Stevens Act. The Regulatory Flexibility Act (RFA) analysis is required 
to evaluate the impact of Federal proposed and final rules on small 
business entities. Federal agencies are required in this analysis to 
identify reasonable

[[Page 26199]]

alternatives that may mitigate impacts on small business entities. The 
RFA does not compel specific regulatory outcomes. Moreover, the RFA 
does not require agencies to consider or adopt alternatives that are 
inconsistent with law or outside the scope and purpose of the 
regulations.
    With respect to the carryover analysis quoted here, the 
alternatives under consideration were status quo wherein 10 percent of 
the unused FY 2012 GOM cod ACE could be carried over or the NMFS 
emergency action 1.85 percent of the unused FY 2012 ACE. An alternative 
of no carryover was considered, and rejected by the agency. Because the 
status quo would permit catches that exceed the overfishing limit, it 
is inconsistent with NMFS's statutory obligation to prevent overfishing 
and cannot be adopted by NMFS. The only remaining alternative, the 1.85 
percent GOM carryover alternative, is the only alternative that best 
meets the statutory requirements in light of conservation requirements 
and mitigation of negative impacts. As such, it is the alternative 
selected by NMFS and is the alternative that mitigates impacts to small 
business entities to the extent possible, with respect to that 
particular carryover measures, under law and within the scope and 
purpose of this action. The IRFA and FRFA statements convey this. 
Overall impacts of the suite of alternatives proposed by NMFS were also 
analyzed in the IRFA summary contained in the proposed rule and are not 
repeated here. In addition, as referred to in the IRFA and FRFA, 
numerous other alternatives for mitigating negative impacts are already 
included in the FMP, and in the recently announced emergency monkfish 
action, Framework 48, and other measures included in Framework 50. See 
response to comments 5 and 8 for a description of measures expected to 
provide some level of small business impact mitigation in FY 2013.
    Comment 26: One commenter objected to carryover of up to 10 percent 
unused FY 2012 GB cod ACE because it increases the risk that 
overfishing will occur. The commenter stated the stock is in bad shape, 
in need of extreme protection, and the FY 2012 quota will go uncaught 
because the assessment indicates fish available for harvest that simply 
don't exist.
    Response: NMFS agrees that that overfishing should be avoided on GB 
cod. NMFS asserts that the Amendment 16 carryover amount of 10 percent 
maintains a low risk of overfishing, even if fully utilized in FY 2013. 
Analysis conducted in support of the continuation of 10 percent 
carryover of unused ACE from FY 2012 to FY 2013 indicates that the 
total potential catch (i.e., total ACL + maximum carryover) if realized 
would be roughly 72 percent of the overall overfishing limit. Analysis 
of projected FY 2013, performed as part of the Framework 50 impact 
analysis, indicates projected GB cod utilization inclusive of carryover 
would be 85 percent of the available sector sub-ACL. These data suggest 
the likelihood of overfishing remains low in FY 2013, particularly as a 
1-year transitional measure. NMFS is cognizant of the accuracy of past 
stock projections and the propensity for fishing mortality to be 
greater and stock size smaller than indicated by the most recent 
assessment. However, even in considering this possibility, NMFS 
concludes that the projected catch for FY 2013 presents a low risk of 
overfishing even with 10 percent of unused catch carried over from FY 
2012.
    NMFS also notes a logical flaw in the commenter's arguments: They 
state that ``. . .the fish are not there and they can't be caught. . 
.'' when explaining why the FY 2012 GB cod quota will be substantially 
underutilized. Current catch through early April was roughly 33 percent 
of the FY 2012 sector sub-ACL and 15 percent below the FY 2013 sector 
sub-ACL implemented by this rule. If the fish are not there and cannot 
be caught, it is unlikely that catch will meet or exceed the potential 
catch level in FY 2013 which, in turn, would mean the likelihood of 
overfishing would be low.
    Comment 27: Three NGOs submitted the most substantive carryover-
related comments. All three provided extensive comments, legal opinion, 
and supporting documentation in opposition to carryover, both the 
emergency action to reduce the GOM cod carryover amount and the 
continuation of the Amendment 16 provision that provides up to 10 
percent of unused FY 2012 ACE to be used in FY 2013.
    The overarching general points raised in the comments in opposition 
to NMFS's approach are: NMFS may not establish an ACL that exceeds the 
SSC-recommended ABCs; it is not appropriate to use the overfishing 
limit as the level total ACL may not exceed; permitting carryover 
threatens the recovery of recovering groundfish stocks; and the NMFS 
approach is inconsistent with the Magnuson-Stevens Act, National 
Standard 1, and carryover-related advice provide to the Council by 
NMFS.
    Response: As discussed in the preamble, NMFS acknowledges that 
permitting carryover in FY 2013 such that ACLs and ABCs could be 
exceeded by the total catch deviates from the standard guidance. NMFS 
finds that the alternative approach for dealing with carryovers for 
2013 as a 1-year transitional measure is consistent with the Magnuson-
Stevens Act and authorized under the flexibility provision of the 
National Standard 1 guidelines at 50 CFR 600.310 (h)(3). This response 
elaborates on the rationale justifying this alternative approach.
    As more fully explained and justified in the proposed and final 
rule preambles, the continuation of accounting for carryover consistent 
with the prior 2 years is intended as a 1-year transitional approach 
resulting from the exceptional and intractable circumstances of the 
2012 and 2013 FYs. This approach is intended to balance the need to 
preserving consistency with the overarching statutory requirement to 
prevent overfishing with the expectations concerning the specific 
carryover intentions between FY 2012 and 2013 which have safety and 
management consequences. NMFS believes it could not sufficiently 
overcome reliance on carryover for the groundfish fleet to provide end-
of-year safety and business planning by taking a course of action late 
in the fishing year that was completely different than the first two 
years of sector ACE carryover.
    As stated in the proposed rule, to do so would have raised conflict 
with National Standard 10 by potentially compelling fishermen to make 
additional trips before the end of the year to more fully harvest 
available ACE on short notice. Neither the Council nor NMFS took a 
positive action or alerted industry with sufficient advanced notice 
that carryover might be modified or prohibited in FY 2013 in light of 
the precipitous drops in 2012 catch limits. Indeed, none of the 
commenters raised concerns about the potential for allowing full 
carryover from year to year with respect to either Amendment 16 or last 
year's specifications of catch limits in Framework 47. Faced with these 
unusual circumstances, NMFS finds that it has the authority under the 
National Standard 1 guidelines to propose this alternative approach for 
carryover of 1-year only provided it is consistent with statutory 
requirements to prevent overfishing.
    In addition, through this action, NMFS is taking the proactive step 
of clarifying the carryover accounting by proposing a system of 
carryover accounting that is consistent with the standard provisions of 
the National Standard 1 guidelines for FY 2014 and

[[Page 26200]]

into the future (see responses to Comment 24 for additional information 
on FY 2014 carryover). As discussed in the preamble, NMFS will continue 
to solicit and consider additional public comment on the proposed 
clarification in order to foster additional public discussion and 
possible Council development of legally consistent carryover provisions 
prior to the start of FY 2014.
    To be clear, the actions of this rule do not change Amendment 16's 
carryover provision nor do they increase ABCs or ACLs above ABCs as 
specified by the SSC. Commenters incorrectly equate NMFS's 
characterization of the total potential catch (total ACL + available 
carryover catch) as a new ``ACL.'' NMFS has made no such distinction 
and taken no such action. This action merely adjusts how, for the 
purposes of AMs, to account for carryover amounts. The difference is 
important. NMFS has provided rationale and analysis indicating that 
despite the total potential catch exceeding the ACL and ABC, it can be 
reasonably demonstrated that stocks will not be subject to overfishing. 
Appendix V to the Framework 50 EA outlines these analyses and is not 
repeated here. NMFS finds that in light of the flexibility afforded 
under National Standard 1 guidelines, the limited temporal scope of 
these actions, and the aforementioned overfishing analysis, the 
allowance of carryover in the manner described in this final rule is 
consistent with the Magnuson-Stevens Act.
    Comment 28: Many of the same commenters mentioned in the previous 
Comment made very specific points about the carryover approach of this 
action, which are enumerated and responded to point by point as 
follows:
    1. The approach NMFS is using is illegal and violates both the 
Magnuson-Stevens Act and National Standard 1 because ACL cannot exceed 
ABC.
    Response: As explained in the previous response, NMFS concedes that 
continuing to allow carryover following the approach undertaken in FY 
2011 and FY 2012, including the emergency rule modified GOM cod amount, 
is not wholly consistent with the standard approach specified in the 
National Standard 1 guidelines; but, the alternative approach is 
authorized by the National Standard 1 flexibility provision at 50 CFR 
600.310(h)(3). Moreover, it is consistent with the statutory 
requirement to prevent overfishing because the approach is designed to 
prevent overfishing while maintaining consistency with other provisions 
of the Magnuson-Stevens Act.
    2. The commenters object to NMFS's FY 2013 carryover approach 
stating that risk of overfishing should be tightly limited consistent 
with National Standard 1 and the approach taken does not minimize such 
risk.
    Response: As outlined in NMFS's analysis, the risk of overfishing, 
given the buffers between allowed mortality and overfishing levels and 
the 1-year duration of this carryover approach, is low based on both 
recent historic catch utilization information and model-predicted FY 
2013 catch. NMFS believes the level of risk is acceptable for FY 2013 
only as a clearly identified transition year to a revised, consistent 
carryover system to be implemented in FY 2014.
    3. The commenters state it is inappropriate to identify the OFL as 
the level ACL cannot exceed, as NMFS has done in attempting to justify 
the FY 2013 carryover approach.
    Response: NMFS believes the 1-off reduction in the full scientific 
and management uncertainty buffers is an acceptable risk for the FY 
2013 transitional period. Although reduced, the remaining buffers 
between the overfishing level and the catch level at which AMs will be 
triggered are adequate for this 1-year transitional period and 
consistent with the flexibility provision in National Standard 1 
guidelines. This approach ultimately satisfies the statutory 
requirement to prevent overfishing.
    4. The commenters state that the requirement to set catch that does 
not exceed the SSC-recommended ABC found at section 302(h)(6) of the 
Magnuson-Stevens Act outlines the specific functions applicable to 
Regional Fishery Management Councils.
    Response: NMFS has specifically not modified or increased ACLs for 
FY 2013 such that they are established above the SSC-recommended ABCs. 
As previously explained, the total potential catch (i.e., ACL + 
available carryover catch) is greater than the ABC for all stocks. NMFS 
has outlined in this section why it believes this to be an acceptable 
approach and risk for FY 2013.
    5. The commenters state that the impact of allowing carryover was 
never analyzed by the SSC. Carryover will hamper recovery of stocks.
    Response: The FY 2012 catch projections for some stocks did 
consider the expected utilization for the fishing year. For FY 2013 
projections, the catch assumption is typically the ABC. The additional 
fishing mortality above ABC but below OFL that would result if the 
amount of carryover catch exceeds the ABC level would not have been 
considered by the SSC. However, Council staff conducted analyses of the 
potential biological impact of carryover utilization in FY 2013 (EA, pp 
188-192). These analyses concluded that full utilization of carryover 
(i.e., 10 percent of FY 2012 ACE) in FY 2013 is projected to have minor 
and small impacts on fishing mortality (i.e., increased) and spawning 
stock size (i.e., decreased) in comparison to the baseline catch 
evaluation that did not consider carryover. This analysis indicted that 
the 10 percent carryover for GOM cod would result in overfishing. This 
is why NMFS has reduced the GOM carryover from 10 to 1.85 percent of 
the FY 2012 ACE. Overfishing is not projected to occur at this reduced 
level.
    Carryover cannot be said to have absolutely no impact on stocks, 
particularly those in rebuilding plans. However, from a biological 
impact perspective, carryover can be demonstrated through analysis like 
that contained in Framework 50 to have only minor impact to stocks, 
particularly considering the carryover accounting approach is for 1-
year only. These impacts could be easily accounted for in catch 
projections and stock analyses to ensure that rebuilding objectives are 
not compromised. The more substantive issue with carryover is not the 
biological impact but rather the regulatory requirements established 
for annual catch limits through the National Standard 1 guidelines. As 
outlined by the commenters and NMFS, going forward, carryover should be 
accounted for in setting annual catch limits such that its use does not 
cause catch in excess of ACLs or ABCs.
    6. The commenters cite and provide correspondence from NMFS to the 
Council that contradicts the carryover approach being permitted in FY 
2013.
    Response: NMFS acknowledges that previously provided guidance on 
carryover contradicts the approach being used in FY 2013. However, NMFS 
believes there is sufficient justification for this approach as a 
limited, 1-year transitional approach.
    7. Several objections were raised pertaining to the analysis and 
rationale use by NMFS to support the determination that up to 10 
percent of unused FY 2012 ACE can be carried over to FY 2013 for all 
eligible stocks except GOM cod, which is reduced by emergency measures 
to no more than 1.85 percent of the FY 2012 ACE.
    Response: NMFS is relying heavily on the analysis as an important 
component justifying the FY 2013 transitional approach. As outlined in 
the Framework 50 Appendix V analysis, there is sufficient reason to 
believe based on recent past catch limit utilization and

[[Page 26201]]

model predicted FY 2013 catches, that the OFLs will not be exceeded. 
This analysis was necessarily conducted post hoc because the Council 
took no carryover-related action in either Framework 48 or Framework 
50.
    In summary, NMFS asserts that the culmination of events leading 
into FY 2013--Inaction by the Council to address carryover; protracted 
discussions on carryover guidance that were not fully resolved until 
late in the development cycle; late arriving stock assessment results; 
later than usual catch limit recommendations from the Council; and 
potential late season notice of a change to an already approved and 
implemented program that would have potential safety and business 
impacts--all coincided to create a challenging situation with no clear 
solution.
    Comment 29: The Council and some NGOs raised concerns with NMFS's 
proposed Magnuson-Stevens Act section 305(d) clarification for 
carryover accounting beginning in FY 2014. The Council specifically 
objected to the use of section 305(d), stating that by doing so, NMFS 
was subjectively evaluating the Council's Amendment 16 intent with 
respect to carryover. The NGOs had specific objections with some 
components of the proposed measures and offered various suggestions on 
other ways carryover could be approached. These suggestions ranged from 
ensuring that carryovers are counted against ACLs for AM determinations 
to constraining carryover use only for stocks that are not overfished, 
have recently been assessed, and have similar year-to-year ABCs.
    Response: NMFS is not interpreting Council intent as to allowing 
for carryover because this action does not change that provision. 
Except for the emergency action reducing temporarily the amount of 
carryover allowed for GOM cod, all of the carryover provisions remain 
intact in the groundfish FMP. As explained several times, NMFS is 
merely clarifying how carryover will be accounted for purposes of AMs 
in order to ensure that NMFS can discharge its responsibility to 
implement the carryover provisions in a manner consistent with the 
Magnuson-Stevens Act, particularly provisions requiring the prevention 
of overfishing.
    NMFS believes that the proposed approach for FY 2013, as a 
transitional measure, and a long-term approach for 2014 and beyond best 
balances the Council's intent to allow for carryover and its benefits 
and the need to prevent overfishing. The 2014 approach still allows 
fishermen to rely on some guarantee of a de minimus amount of carryover 
without consequences so as to promote safety at sea and management 
predictability. In addition, this approach allows fishermen to manage 
their carryover accountability measures by deciding whether to fish 
their carryover on top of their ACE and defer accountability measure 
until the next fishing year or to preserve their carryover from year to 
year so as to maximize their catch level in any given year.
    NMFS believes that it is in the public interest to allow for 
additional public comment on the carryover provisions for 2014 and 
beyond. As a result, to ensure sufficient dialog, NMFS will implement 
the 305(d) clarification as an interim final rule and accept additional 
public comment for 45 days. This will also allow additional time for 
discussion and potentially the development of alternative carryover 
approaches through the Council process. As a result, NMFS will respond 
in full to the comments submitted on Framework 50 regarding the FY 2014 
interim final carryover approach as well as additional comments 
submitted during the interim final comment period.
    NMFS believes this is the best possible approach to take at this 
time. This approach provides, and encourages, more thorough public 
review and comment, opportunity for Council review and deliberation, as 
well as a default provision for FY 2014 in case the Council does not 
develop additional measures to address the accounting for carryover 
from year to year consistent with other Magnuson-Stevens Act 
provisions. Allowing additional public comment will also better allow 
NMFS to modify and refine the interim final measures based on 
additional public comment, should the Council not take independent 
action.

Other Comments

    Comment 30: One NGO commented that Framework 48, Framework 50, and 
the FY 2013 Sector Operations Plans and Contracts and Allocation of ACE 
constitute segmentation of the environmental review process. The NGO 
also commented that the management actions are a patchwork and burden 
the public with multiple, overlapping public comment periods, which is 
confusing to the public.
    Response: The NGO's comment in this regard is based on the 
presumption that the various actions at issue are either interdependent 
or interrelated, connected actions, such that NEPA compels their 
consideration and evaluation within the scope of a single NEPA document 
prior to approval of the initial action. This is not the case. The 
actions identified by the NGO are neither components of a larger single 
action or connected. While they relate to similar issues and may have 
synergistic impacts, Framework 48 and Framework 50 and sector operating 
plans are discrete actions with independent utility, each supported by 
an independent rationale. One action does not compel the other or 
irretrievably commit resources as NMFS, through the Magnuson-Stevens 
Act review and approval process, retains discretion at each decision-
making stage to choose to take action or not take action. While NMFS 
has discretion to include similar actions in a single EA or 
Environmental Impact Statement (EIS) in appropriate circumstances, it 
is not compelled to do so. Here, given the complexities and timing 
challenges of the fishery management scenario with which it was 
presented, NMFS chose to prepare the level of NEPA analysis appropriate 
to the decisions being made. The EA for Framework 50 takes a hard look 
at the direct, indirect, and cumulative impacts of this action, and 
properly supports a Finding of No Significant Impact. Importantly, the 
EA includes a robust cumulative effects analysis which identifies 
Framework 50 as a reasonably foreseeable future action and predicts its 
synergistic effects. NMFS has prepared a separate NEPA analysis for 
Framework 48, which takes into account the pre-existing effects of 
Framework 50, as it evaluates the direct, indirect, and cumulative 
effects of Framework 48. Using this approach, NMFS will avoid the 
perils of segmentation by ensuring that all effects of the related 
actions are evaluated at the appropriate time and holding open the 
option of preparing an EIS should any environmental impact prove to be 
significant.
    NMFS understands that there are multiple management actions under 
review for implementation by the start of the 2013 fishing year on May 
1, 2013. However, this year has presented a number of unusual 
circumstances that has led to three separate management actions. NMFS 
completes an annual rulemaking to implement sector operations plans and 
allocate ACE to sectors. In addition, the Council typically completes a 
framework action to respond to updated or new stock information and 
implement the necessary specifications or management measures. However, 
as described more fully in the background section of this preamble, 
Framework 48 and 50 are parallel actions, and the specifications 
adopted in Framework 50 were initially proposed in Framework 48. Due to 
the drastic reductions in catch limits for FY

[[Page 26202]]

2013, the Council needed additional time to complete the specifications 
portion of the action, and as a result, the specifications were removed 
from Framework 48.
    Although there were three ongoing rulemakings, and three public 
comments periods with some overlap, NMFS does not believe this impeded 
the opportunity for individuals to comment on the proposed rules. Many 
individuals submitted one letter with comments that spanned multiple 
actions. In addition, opportunity for public participation has extended 
over 1 year, as development of Framework 48 began in spring 2012. There 
were extensive public comment periods at the various Groundfish 
Committee and Council meetings associated with the development of these 
actions. Also, because of the unusual circumstances, the Council did 
not take final action on Framework 50 until January 2013, which 
provided additional opportunities for public comment and participation 
on the development of this action. NMFS is also publishing the 
carryover measures for FY 2014 and beyond as interim final measures and 
is also implementing multiple emergency rules in this action, which 
allow for additional public comment on these measures.
    Comment 31: The Council and one state marine fisheries agency 
opposed NMFS's modification of the Council's formally submitted 
management action, and that this action confounds the statutory roles 
of the Council and NMFS.
    Response: To clarify, the alternatives, analyses, and 
recommendations that support the Council recommendations were not, and 
have not been, modified in analytical documents that the Council 
provided to NMFS. NMFS clearly delineates measures, or additional 
analyses, that were added by NMFS. NEPA is a process that requires 
Federal agencies to consider the effects of their actions on the 
quality of the human environment prior to making decisions. The current 
NMFS guidance for NEPA compliance acknowledges that due to the close 
relationship between NMFS and the regional fishery management councils, 
compliance with NEPA is most effective if NMFS and the councils 
coordinate. However, NMFS is responsible for the scope, objectivity, 
and content of the NEPA document, and for ensuring overall NEPA 
compliance. Although the Council prepares relevant sections of the NEPA 
document, upon submission by the Council, NMFS adopts this document and 
retains legal responsibility for NEPA compliance. Therefore, if NMFS 
determines that additional analysis or supplementary information is 
necessary to bring the document into full NEPA compliance, it is the 
agency's responsibility to incorporate this information into the NEPA 
document.
    NMFS understands that, for multiple reasons, FY 2013 presented a 
series of unusual circumstances. The Council did not take final action 
on Frameworks 48 and 50 until December 20, 2012, and January 30, 2013, 
respectively. This is well after the time that the Council typically 
completes, and submits, management actions to NMFS for review and 
implementation by May 1. Framework 48 also includes a measure that 
gives the RA authority to adjust recreational management measures prior 
to the fishing year, and NMFS was required to adjust these measures for 
FY 2013 to ensure the recreational fishery does not exceed its sub-ACLs 
in FY 2013. In support of this measure, the Council convened its RAP in 
February 2013. All of this leaves an inordinately short amount of time 
for NMFS to analyze and review the Council's recommendations and 
complete the rulemaking process consistent with APA. Also, with no 
possibility of the Council addressing the GOM cod carryover concern, or 
the FY 2013 ABC for GB yellowtail flounder if it was disapproved, in a 
timely way, NMFS' only available mechanism for addressing these 
concerns was through emergency rulemaking, as provided for by section 
305(c) of the Magnuson-Stevens Act.
    Thus, for all of these reasons, and due to the unforeseen events, 
adding additional analysis to the Framework 50 document was the only 
way to ensure necessary management measures were in place by May 1, 
2013. Incorporating the necessary analyses into the Framework 50 
document also provides ease of public review due to the relatedness to 
the specifications adopted by the Council in Framework 50. NMFS is 
committed to working with the Council to avoid the issue raised by the 
Council. This issue has been added to the Northeast Region Coordination 
Council (NRCC) agenda to with the intent of resolving differences 
between the Council and NFMS concerning document timing and preparation 
The NRCC is an executive level committee of the New England and Mid-
Atlantic Councils, the Atlantic States Marine Fisheries Commission, 
NERO, and NEFSC.
    NMFS realizes there was some confusion on the availability of 
Appendix V, which was prepared by NMFS to analyze carryover provisions. 
This Appendix was not provided to the Council for posting on the 
Council Web site until well into the public comment period. However, 
this appendix was posted on the NERO Web site and http://www.regulations.gov, and links to both of these Web sites were provided 
in the proposed rule. Further, a NERO staff contact was provided in the 
proposed rule, and members of the public could have contacted this 
staff member for assistance in accessing the document, or any of the 
analyses supporting the proposed measures. As a result, the lateness in 
which the Appendix was posted to the Council's Web site likely did not 
impede access to the document.

Changes From the Proposed Rule

    NMFS has made four changes to the proposed rule. First, this final 
rule disapproves the Council preferred FY 2013 ABC for GB yellowtail 
flounder, and implements an emergency rule to set a FY 2013 ABC of 500 
mt. In the proposed rule, NMFS highlighted concerns with the ABC of 
1,150 mt proposed in Framework 50, and requested specific comment on 
this measure, and its consistency with the Magnuson-Stevens Act and 
National Standards. In the event this ABC was disapproved, NMFS 
proposed an emergency rule to implement an ABC of 500 mt. Based on 
public comments received, and additional review, NMFS has determined 
that a FY 2013 ABC of 1,150 mt for GB yellowtail flounder is not 
consistent with the necessary provisions of the Magnuson-Stevens Act, 
and is disapproved this measure in Framework 50. This rule implements a 
FY 2013 ABC of 500 mt instead under emergency authority as further 
discussed in Item 4 of this preamble.
    Second, although NMFS is approving the FY 2013 ABC of white hake 
that was proposed (3,638 mt), new information became available after 
the Council took final action on Framework 50, and after the proposed 
rule for this action published, that justifies a higher ABC for FY 
2013. As discussed in more detail in Item 4 of this preamble, the FY 
2013 ABC that was proposed in this action was based on the 2008 stock 
assessment for white hake, which was the best scientific information 
available to the Council when it developed and took final action on 
Framework 50. A new benchmark assessment for white hake was completed 
in February 2013, and the final results of this assessment became 
available in April 2013. In the proposed rule for this action, NMFS 
indicated that new assessment results were expected to become available 
soon, and that, should this new information indicate a change to the FY 
2013 catch

[[Page 26203]]

limit for white hake, the Council or NMFS could consider a separate 
action to change the white hake catch limit for FY 2013. Thus, through 
emergency authority, and based on the best scientific information 
available, this final rule implements an increased FY 2013 ABC for 
white hake (4,177 mt) in place of the ABC proposed in this action 
(3,638 mt). This is a 15-percent increase.
    In Sec.  648.85, white hake is removed from the list of stocks of 
concern. The recent stock assessment for white hake indicates the stock 
is not overfishing, overfishing is not occurring, and the stock is 
projected to be rebuilt in 2014.
    In Sec.  648.90(a)(1)(4), SNE/MA yellowtail flounder is added to 
the re-estimation of expected scallop catch of yellowtail flounder for 
the purposes of adjusting the scallop and groundfish fisheries sub-ACL 
should expected scallop catch be less than 90 percent of the scallop 
fishery sub-ACL. Currently, the regulations state that the re-
estimation will be completed for GB yellowtail flounder. This rule adds 
SNE/MA yellowtail flounder to the re-estimation process as adopted by 
the Council in Framework 50. As explained in Item 5 of this preamble, 
this revision was inadvertently omitted from the proposed rule. As a 
result, this measure is implemented in this action through an interim 
final rule, and NMFS is accepting public comment on this measure for 45 
days (see DATES).

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that the management 
measures implemented in this final rule are necessary for the 
conservation and management of the NE multispecies fishery and 
consistent with the Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be significant for purposes 
of Executive Order (E.O.) 12866.
    This 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.
    Under 5 U.S.C. 553(d)(1), the Assistant Administrator for Fisheries 
finds good cause to waive the 30-day delayed effectiveness of this 
action. Further, under 5 U.S.C. 553(b)(B), the Assistant Administrator 
for Fisheries finds good cause to waive the general notice of proposed 
rulemaking for the emergency action to implement a higher FY 2013 ABC 
for white hake. As described more fully earlier in this preamble, and 
below, 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. The effective date of this action 
affects a parallel rulemaking approving sector operations plans for the 
start of FY 2013 on May 1, 2013. In addition, this action sets FY 2013 
catch limits, allocates SNE/MA winter flounder to sectors, and 
implements three parallel emergency actions. Therefore, these actions 
must be in effect at the beginning of FY 2013 to fully capture the 
conservation and economic benefits of Framework 50 measures, emergency 
rulemakings, and the FY 2013 sector operations plans. Due to unforeseen 
circumstances related to FY 2013 catch levels, and the drastic quota 
reductions necessary for many key groundfish stocks, the Council did 
not take final action on Framework 50 until January 2013, and the 
Council's submission of Framework 50 to NMFS was delayed until March 
2013. Due to this time constraint, this rulemaking could not be 
completed further in advance of May 1, 2013. Therefore, in order to 
have this action effective at the beginning of FY 2013, it is necessary 
to waive the 30-day delayed effectiveness of this rule.
    Failure to waive the 30-day delayed effectiveness would result in 
no catch limits being specified for FY 2013 for many groundfish stocks. 
Without ACE for most groundfish stocks, sector vessels would be unable 
to fish beginning on May 1, 2013. This would severely disrupt the 
fishery, and could result in foregone yield and revenue reductions. The 
groundfish fishery is already facing drastic cuts in the catch limits 
for many key groundfish stocks. A delay in implementation of this 
action would prevent groundfish vessels from fishing, which could 
worsen the severe economic impacts groundfish vessels, and associated 
fishing communities are facing in FY 2013. This action also allocates 
SNE/MA winter flounder to sectors and allows commercial and 
recreational vessels to land the stock. So, a delay in this action 
could prevent vessels from maximizing the benefit of this measure. 
Further, because recreational vessels would not be prevented from 
fishing on May 1, 2013, if this action is delayed, there could be 
significant confusion for recreational vessels and enforcement on 
whether it is legal to land SNE/MA winter flounder. Thus, a delay in 
this action could severely disrupt the fishery. Further, this action 
implements FY 2013 recreational measures to help ensure the 
recreational fishery does not exceed its GOM cod and haddock sub-ACLs. 
If this action is delayed, recreational vessels could fish under the 
old, less restrictive measures, which increases the likelihood that the 
recreational fishery would exceed its sub-ACLs and trigger an AM. Also, 
because the ACLs for GOM cod and haddock are so small in FY 2013, a 
delay in implementing revised recreational measures could increase the 
likelihood that overfishing would occur. For all of these reasons, a 
30-day delay in the effectiveness of this rule is impracticable and 
contrary to the public interest.
    A FRFA was prepared for this action, as required by section 604 of 
the Regulatory Flexibility Act, 5 U.S.C. 604. The FRFA includes the 
summary and responses to comments in this rule, the analyses contained 
in Framework 50 and its accompanying EA/RIR/IRFA, and the IRFA summary 
in the proposed rule. The FRFA describes the economic impact of this 
action on small entities. A description of the action, why it is being 
considered, and the legal basis for this action are contained in 
Framework 50 and in the preamble to the proposed rule, as well as this 
final rule, and are not repeated here. A copy of the full analysis is 
available from the NMFS (see ADDRESSES).
    NMFS's response to all comments received on the proposed rule, 
including those that raised significant issues with the proposed 
action, or commented on the economic analyses summarized in the IRFA, 
can be found in the Comments and Responses section of this rule. As 
outlined in that section, significant issues were raised by the public 
with respect to:
     The revised SNE/MA winter flounder rebuilding program;
     FYs 2013-2015 ABCs for GOM cod;
     the FY 2013 ABC for GB yellowtail flounder;
     FY 2013 GOM cod carryover;
     the FY 2014 and beyond carryover measures; and
     the FY 2013 recreational management measures.
    Comments 4, 5, 8, 10, and 25 discussed the economic impacts of this 
action, or the IRFA prepared for the proposed rule. In addition, public 
comments received on alternatives to the proposed ABCs that would 
result in higher catch limits (e.g., 2013 interim action for GOM cod) 
were considered to be indirectly related to the IRFA with respect to 
alternatives to the proposed action that would help mitigate economic 
impacts. Detailed responses are provided to the specific significant 
issues raised by public comment, and are not repeated here.
    As a result of the public comment received, the proposed FY 2013 
ABC of

[[Page 26204]]

1,150 mt for GB yellowtail flounder was disapproved, and NMFS is 
instead implementing an ABC of 500 mt, No other changes to the proposed 
rule measures were required to be made as a result of public comments.

Description and Estimate of the Number of Small Entities to Which the 
Final Rule Would Apply

    The Small Business Administration (SBA) defines a small business as 
one that:
    (1) Is independently-owned and operated;
    (2) Is not dominant in its field of operation; and
    (3) Has annual gross revenues that do not exceed--
    [cir] $4.0 million in the case of commercial harvesting entities, 
or
    [cir] $7.0 million in the case of for-hire fishing entities; or
    (4) Has fewer than--
    [cir] 500 employees in the case of fish processors, or
    [cir] 100 employees in the case of fish dealers.
    This action would mainly impact commercial harvesting entities 
engaged in the limited access groundfish fishery, as well as both the 
limited access general category and limited access scallop fisheries. 
The limited-access groundfish fishery is further classified as vessels 
enrolled in the sector program and those in the common pool. In 
general, sector-enrolled businesses rely more heavily on sales of 
groundfish species than common pool-enrolled vessels. At the beginning 
of the 2012 groundfish fishing year on May 1, 2012, there were 1,382 
individual limited access permits. Each of these permits was eligible 
to join a sector or enroll in the common pool. Alternatively, they 
could allow their permit to expire by failing to renew it. There were 
827 permits enrolled in the sector program and 584 enrolled in the 
common pool. The limited access (LA) scallop fisheries can be further 
classified as limited access and limited access general category (LAGC) 
scallop permits. At the beginning of the 2012 scallop fishing year on 
March 1, 2012, there were 342 active LA scallop and 603 active LGC 
permits.
    Individually permitted vessels may hold permits for several 
fisheries, and may harvest species of fish that are regulated by 
several different fishery management plans, even beyond those impacted 
by this action. In addition, multiple permitted-vessels, and/or 
permits, may be owned by entities affiliated by stock ownership, common 
management, identity of interest, contractual relationships, or 
economic dependency. For the purposes of this analysis, ownership 
entities are defined by those entities with common ownership personnel 
as listed on permit application documentation. Only permits with 
identical ownership personnel are categorized as an ownership entity. 
For example, if five permits have the same seven personnel listed as 
co-owners on their application paperwork, those seven personnel form 
one ownership entity, covering those five permits. If one or several of 
the seven owners also own additional vessels, with sub-sets of the 
original seven personnel or with new co-owners, those ownership 
arrangements are deemed to be separate ownership entities for the 
purpose of this analysis.
    Ownership data are available from 2010 onward for the four primary 
sub-fisheries potentially impacted by this action. These are the sector 
and common pool segments in the groundfish fishery, and the LA and LAGC 
scallop fisheries. Due to data limitations, only 1 year's gross 
receipts are reported, and calendar year 2011 serves as the baseline 
year for this analysis. Calendar year 2012 data are not yet available 
in a fully audited form.
    In 2011, there were 1,370 distinct ownership entities identified. 
Of these, 1,312 are categorized as small entities, and 58 are large 
entities, based on SBA guidelines. These totals may mask some diversity 
among the entities. Many, if not most, of these ownership entities 
maintain diversified harvest portfolios and obtain gross sales from 
many fisheries, and are not dependent on any one fishery. However, not 
all are equally diversified. The entities that depend most heavily on 
sales from harvesting species that are impacted by this action are most 
likely to be affected. So, for this analysis, we identified ownership 
groups that are most likely to be impacted by the measures implemented 
in this action. We identified these groups as those that derive greater 
than 50 percent of their gross sales from sales of either regulated 
groundfish or scallops. Using this threshold, 135 entities are 
groundfish-dependent, of which 131 are small entities, and four are 
large entities. There are 47 entities that are scallop-dependent, of 
which 39 are small entities, and 8 are large entities.
    This action also regulates the Atlantic herring fishery. The 
herring fishery receives an allocation of GB and GOM haddock as a 
result of bycatch of these stocks that occurs in the fishery. In 2012, 
there were 3 large entities and 86 small entities that had limited 
access herring permits. There were 1,984 small entities that had an 
open access herring permit. Open access permits make up a very small 
proportion of the landings in the herring fishery, and derive little 
revenue from this fishery. Some entities that hold a limited access 
herring permit have gross revenues greater than $4 million. However, 
none of these entities reported any herring revenues during 2010-2012, 
and as a result, these entities are unlikely to be affected by this 
action. In addition, analysis predicts that it is unlikely that the 
midwater trawl herring fleet would exceed its sub-ACLs for GOM or GB 
haddock. As a result, the small regulated entities that derive revenues 
from the herring fishery are not expected to be impacted by this 
action.
    In addition to the commercial harvesting entities, this action 
would also impact the recreational harvesting entities that participate 
in the groundfish fishery. Party/charter permits for the groundfish 
fishery are open access. All party/charter fishing businesses that 
catch cod or haddock may be affected by this action. During FY 2010, 
762 party/charter permits were issued. Of these 762 permits, 332 permit 
holders reported taking and retaining any species on at least one for-
hire trip. In FY 2010, 285 of these permit holders reported catching at 
least one cod or haddock. Of the 285 permit holders that reported 
catching at least one cod or haddock in FY 2010, 148 reported fishing 
in the GOM stock area (the recreational fishery only has a quota for 
GOM cod and haddock). In 2011, 170 party/charter vessels reported 
landings of GOM cod or haddock. All regulated party/charter operators 
are small entities. The median value of gross revenues from passengers 
was just over $9,000, and did not exceed $500,000 in any year from 2001 
to 2010.

Economic Impacts of the Approved Measures and Steps Taken To Mitigate 
Adverse Economic Impacts of the Action

    The economic impacts of the measures implemented in this action are 
summarized below and are discussed in more detail in sections 7.4 and 
8.11 of the Framework 50 EA. All of the measures are expected to have 
impacts on a substantial number of small entities. The economic impacts 
of this action on the groundfish fishery are expected to be severe and 
negative. This action may also place small entities at a significant 
competitive disadvantage relative to large entities, particularly those 
small entities engaged in the commercial groundfish fishery. Analysis 
shows that smaller entities, those generating less than $500K in annual 
gross sales, will likely be the most

[[Page 26205]]

impacted. Total gross sales losses for these entities are estimated to 
be approximately 20-25 percent. Gross sales losses from groundfish are 
estimated to be 50-80 percent. Profitability of many small entities 
will also likely be significantly reduced under the groundfish catch 
limits.

Southern New England/Mid-Atlantic Winter Flounder Management Measures

    The revision to the SNE/MA winter flounder rebuilding strategy is 
expected avoid a loss of an estimated $40.2 million in net present 
value compared to the no action. Five rebuilding scenarios were 
analyzed in addition to the no action alternative. Two of these 
scenarios failed to rebuild the stock within 10 years, and thus, would 
violate rebuilding requirements of the Magnuson-Stevens Act. The other 
rebuilding strategies would meet Magnuson-Stevens Act requirements, but 
would rebuild in a shorter timeframe than 10 years, and as a result 
would have lower net economic benefits than the revised rebuilding 
program implemented in this action. As a result, the revised rebuilding 
program implemented in this action help mitigate the economic impacts 
of this action to the maximum extent practicable compared to the other 
rebuilding scenarios analyzed, and results in the largest net economic 
benefit.
    In FY 2013, landings of SNE/MA winter flounder are estimated to be 
worth $5.4 million in ex-vessel gross revenues. Approximately $4.3 
million of these estimated revenues will likely accrue to sector 
vessels, and the rest to common pool vessels. Landing of this stock has 
been prohibited since FY 2009. As a result, it is difficult to 
anticipate the economic impacts of the revised ABC/ACL for this stock 
because there are not enough trips to help characterize future fishing 
activity. If the Council did not take any action, possession of SNE/MA 
winter flounder would be prohibited, and fishing vessel revenues would 
have been lower than those expected from this action. In addition, if 
possession of the stock remained prohibited, revenues of other 
groundfish stocks would have also been reduced since there would have 
been fewer groundfish trips as a result of the inability to land SNE/MA 
winter flounder.
    This action also modifies the commercial fishery AM for SNE/MA 
winter flounder in conjunction with allocating the stock to sectors. 
There is a risk that sectors could catch their ACE prematurely within 
the fishing year and no longer be able to fish in the SNE/MA winter 
flounder stock area. This would be expected to have negative economic 
impacts due to lost revenue from the catch of other species, or 
increased costs as a result of having to fish outside of the area. 
However, analysis shows that it is unlikely that sector vessels will 
catch their entire allocation of SNE/MA winter flounder. As a result, 
this action provides sector vessels greater flexibility and will likely 
result in higher revenues and lower costs, which is expected to help 
mitigate some of the negative impacts anticipated in FY 2013.

Annual Catch Limit Specifications

    This action also sets specifications for FYs 2013-2015 for most 
groundfish stocks. The new ABCs are based on the latest benchmark stock 
assessment information, which is considered the best scientific 
information available and consistent with the Magnuson-Stevens Act 
requirements, and other applicable law. Because NFMS can only approve 
or disapprove measures recommended in Framework 50, the only other 
possible alternatives to the ABCs implemented in this action that would 
mitigate negative impacts would be higher catch limits. Alternative 
higher catch limits are not viable or permissible under the law because 
they would not be consistent with the goals, objectives, and 
requirements of the Magnuson-Stevens Act and the FMP, particularly the 
requirement to end overfishing immediately. The Magnuson-Stevens Act 
and case law prevent implementation of measures that conflict with 
conservation requirements even if it means negative impacts are not 
mitigated. For all stocks, except GB yellowtail flounder, the Council 
recommended the highest ABCs allowed given the best available science, 
the SSC's recommendations, and Magnuson-Stevens Act and FMP 
requirements to end overfishing and rebuild fish stocks. The only other 
legally available alternatives to the catch limits in this action would 
be lower limits, which would not mitigate the economic impacts of this 
action to the fishery. Further information on the GOM cod 
specifications adopted in this action, and why higher ABCs for this 
stock would not be consistent with the Magnuson-Stevens Act, is 
provided in the response to Comment 11. Also, this action disapproves 
the Council's recommendation for GB yellowtail flounder because it is 
not consistent with the Magnuson-Stevens Act, and this is described in 
more detail in the response to Comment 6. The ABC implemented in this 
action through emergency rulemaking is the highest ABC possible to 
avoid overfishing based on the best scientific information available.
    For the reasons mentioned above, the specifications implemented in 
this action are the only reasonable and legal alternatives for catch 
limits that would mitigate the economic impacts of this action to the 
extent possible. Although there are no other viable alternatives to 
mitigate negative impacts in the narrow scope and context of Framework 
50 regarding catch limits per se, there are numerous mitigation 
measures that have been extensively discussed, considered, and 
implemented in Amendment 16, and parallel measures that are being 
implemented for implementation in FY 2013. All of these mitigating 
measures are discussed previously in this preamble, and are not 
repeated here. All of these existing and new measures can be found at: 
http://www.nero.noaa.gov/sfd/sfdmulti.html.
    The analysis to estimate the economic impacts of this action 
considered three different scenarios using a low (Scenario 1) and high 
(Scenario 2) ACL for both GOM cod and GB yellowtail flounder, as well 
as the increased ACL for white hake implemented in this action through 
emergency rulemaking (Scenario 3). All of these scenarios have similar 
estimated groundfish gross revenues for FY 2013. Compared to FY 2011, 
groundfish gross revenues are expected to be approximately 28-30 
percent lower. Gross groundfish revenues are expected to be 18 to 20 
percent lower than those predicated for FY 2012. Under this action, 
gross revenues for all species on groundfish trips are expected to be 
23 to 25 percent less in FY 2013 when compared to FY 2011, and 11 to 13 
percent lower compared to the predicated FY 2012 revenues. However, the 
emergency action to increase the FY 2013 white hake quota is expected 
to increase gross revenues by approximately $400K compared to the lower 
white hake quota that was proposed in Framework 50. This is expected to 
help mitigate some of the economic impacts of this action.
    Net revenues are expected to decline much less substantially than 
gross revenues. Gross revenues on sector trips in FY 2013 are expected 
to decline by approximately $26 million to $27 million from FY 2011, 
which is a 23 to 25-percent decrease. Net revenues are expected to 
decline by a range of only $2 to $3 million, or approximately 4 to 6 
percent, from FY 2011. This is due in part to limitations of the 
analysis, which underestimates actual trip costs, and in part to 
efficiency gains that are predicted to occur. Maintaining net revenues 
would most likely occur at the

[[Page 26206]]

expense of smaller vessels operating at a low profit margin that would 
be forced to lease their quota, or sell their permits. Crew-days, days 
absent, and total sector trips are also be expected to decline 
substantially compared to FY 2011, since only the most efficient trips 
are expected to occur under such highly restrictive quota allocations. 
Fewer operating vessels and days absent would translate into a 
reduction in earning opportunities for crew members.
    The home port states of Connecticut, New Hampshire, and New Jersey 
are expected to have the largest percentage declines in landings value 
compared to FY 2011. Massachusetts would likely see the largest overall 
decline in gross revenue since FY 2011, with an expected decrease of 
approximately $21 million. All ports are expected to be negatively 
affected by this action. Chatham, MA, is expected to have the largest 
percentage decline in landings value since FY 2011.
    The impacts of this action are expected to be non-uniformly 
distributed across vessel length classes. The economic impact is 
expected to fall heaviest on the smallest vessel length class (less 
than 30 feet (9.1 m)), and is expected to taper off as vessel length 
increases up to the largest vessel length class (greater than 75 feet 
(22.9 m)). This result is not surprising; relative to larger vessels, 
small vessels have less scalability in terms of landings, and have a 
smaller geographic range.
    This ABCs implemented in this action will reduce the scallop 
fishery allocation for GB and SNE/MA yellowtail flounder by 47 and 52 
percent, respectively, compared to FY 2012. If the scallop fishery 
exceeds its GB yellowtail flounder allocation by more than 56 percent 
in FY 2013, scallop vessels would not have access to Closed Area II the 
following fishing year, and revenues would decline by $16.2 million. If 
an overage occurs, and is less than 56 percent, the AM areas for the 
scallop fishery would be open to fishing part of the year, and fishing 
effort could likely be moved to other months. Shorter scallop fishing 
windows could increase operating costs and have potential negative 
price impacts from short-term supply increases. If effort was shifted 
to other seasons when the meat weights are highest, there could be some 
positive impacts on the long-term revenues, which could offset some 
negative economic effects. The response to comment 10 discusses some 
mitigating measures available to the scallop fishery.

Carryover

    This action continues to allow up to 10 percent of unused FY 2012 
sector ACE to be used in FY 2013 in conjunction with the catch limits 
implemented by this action, except for GOM cod. This action reduces the 
allowable GOM cod unused ACE from a maximum of 10 percent down to a 
maximum of 1.85 percent to better ensure overfishing does not occur. 
The actual amount of carryover to FY 2013 depends on the amount of ACE 
not harvested in FY 2012.
    The economic impact analysis conducted for Framework 50 assumed 
that the full 10-percent carryover amount, including GOM cod, was 
available and utilized for all carryover-eligible stocks. As such, 
carryover contributes to the projected $64.3 million gross groundfish 
revenues expected from the catch limits in this action. The analysis 
also evaluated if no carryover of GOM cod was permitted in FY 2013. 
This reduced projected gross groundfish revenue by $2.6-61.7 million. 
NMFS estimates that the 1.85-percent GOM cod carryover will likely 
contribute approximately $50,000 to the FY 2013 gross groundfish 
revenue (i.e., roughly 1.85 percent of the $2.6 million value of GOM 
cod carryover). Consistent with the overall findings on FY 2013 catch 
limit economic impacts, the reduction in GOM cod carryover implemented 
in this action through emergency authority is expected to have the 
largest impact on vessels under 30 feet (9.1 m) in length. The 
carryover amounts are expected to help mitigate adverse economic 
impacts in FY 2013 to the maximum extent possible while ensuring NMFS 
meets its statutory obligation to implement catch limits, in this case 
FY 2013 ACLs plus the potential carryover from FY 2012), that will not 
result in overfishing.

FY 2013 Recreational Management Measures

    This action increases the minimum fish size for GOM haddock in the 
recreational fishery. Total potential losses in gross revenues for 
party/charter vessels operating in the GOM as a result are estimated to 
be approximately $974 thousand. Total potential losses in gross 
revenues were estimated by multiplying the projected FY 2013 decline in 
fishing trips (7,109 trips) by the estimated average access fee paid by 
party/charter anglers ($137). Assuming the number of actively 
participating party/charter vessels in FY 2013 is the same as in FY 
2011, this action is expected to result in an average gross revenue 
loss of $5,729 per vessel ($974 thousand divided by 170 vessels). 
Actual losses may be lower than estimated, since some anglers may 
switch to other species besides haddock and cod (striped bass, 
bluefish, black sea bass, scup, etc.) not considered in this analysis. 
For-hire businesses that are able to offer more non-groundfish fishing 
trips specifically marketed towards alternative species may be able 
offset some of the estimated losses.

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    This action contains no new collection-of-information, reporting, 
or recordkeeping requirements. This action does not duplicate, overlap, 
or conflict with any other Federal law.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide will be sent 
to all holders of Federal permits issued for the NE multispecies 
fisheries, as well as the scallop and herring fisheries that receive an 
allocation of some groundfish stocks. In addition, copies of this final 
rule and guides (i.e., information bulletins) are available from NMFS 
(see ADDRESSES) and at the following Web site: http://www.nero.noaa.gov/.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: April 29, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    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.


[[Page 26207]]



0
2. Section 648.82 is amended by adding paragraph (n)(2)(vii) to read as 
follows:


Sec.  648.82  Effort-control program for NE multispecies limited access 
vessels.

* * * * *
    (n) * * *
    (2) * * *
    (vii) SNE/MA winter flounder AM. If the common pool fishery sub-ACL 
for SNE/MA winter flounder is exceeded, including the common pool's 
share of any overage of the total ACL, as specified at Sec.  
648.90(a)(5), by an amount that exceeds the management uncertainty 
buffer, the AM described in this paragraph would be implemented in the 
following fishing year. The AM would be effective for the entire 
fishing year. Common pool vessels fishing on a NE Multispecies DAS with 
trawl gear may only use a haddock separator trawl, as specified in 
Sec.  648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in Sec.  
648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in Sec.  
648.84(e); or any other gear approved consistent with the process 
defined in Sec.  648.85(b)(6) in the SNE/MA Winter Flounder Trawl Gear 
AM Areas. The AM areas are defined below, and are bounded by the 
following coordinates, connected in the order listed by straight lines, 
unless otherwise noted.

               SNE/MA Winter Flounder Trawl Gear AM Area 1
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  41[deg]10'            71[deg]40' \1\
2...........................  41[deg]10'            71[deg]20'
3...........................  41[deg]00'            71[deg]20'
4...........................  41[deg]00'            71[deg]40'
------------------------------------------------------------------------
\1\ Point 1 connects to Point 2 along 41[deg]10' N or the southern
  coastline of Block Island, RI, whichever is farther south.


               SNE/MA Winter Flounder Trawl Gear AM Area 2
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  41[deg]20'            70[deg]30'
2...........................  41[deg]20'            70[deg]20'
3...........................  41[deg]00'            70[deg]20'
4...........................  41[deg]00'            70[deg]30'
------------------------------------------------------------------------


               SNE/MA Winter Flounder Trawl Gear AM Area 3
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  41[deg]20'            69[deg]20'
2...........................  41[deg]20'            69[deg]10'
3...........................  41[deg]10'            69[deg]10'
4...........................  41[deg]10'            69[deg]20'
------------------------------------------------------------------------


               SNE/MA Winter Flounder Trawl Gear AM Area 4
------------------------------------------------------------------------
            Point                  N. Latitude          W. Longitude
------------------------------------------------------------------------
1...........................  41[deg]20'            69[deg]20'
2...........................  41[deg]20'            (\1\)
3...........................  (\1\)                 69[deg]00'
4...........................  41[deg]00'            69[deg]00'
5...........................  41[deg]00'            69[deg]10'
6...........................  41[deg]10'            69[deg]10'
7...........................  41[deg]10'            69[deg]20'
------------------------------------------------------------------------
(\1\) The southwest-facing boundary of Closed Area I.

* * * * *
0
3. Section 648.85 is amended by:

0
a. Revising paragraphs (b)(5) introductory text, (b)(5)(i), 
(b)(6)(iv)(D), (b)(8)(v)(F), and (b)(8)(v)(H), and
0
b. Adding paragraph (b)(5)(iii).
    The added and revised text reads as follows:


Sec.  648.85.  Special management programs.

* * * * *
    (b) * * *
    (5) Incidental Catch TACs. Unless otherwise specified in this 
paragraph (b)(5), Incidental Catch TACs shall be based upon the portion 
of the ACL for a stock specified for the common pool vessels pursuant 
to Sec.  648.90(a)(4), and allocated as described in this paragraph 
(b)(5), for each of the following stocks: GOM cod, GB cod, GB 
yellowtail flounder, CC/GOM yellowtail flounder, American plaice, SNE/
MA winter flounder, and witch flounder. Because GB yellowtail flounder 
and GB cod are transboundary stocks, the incidental catch TACs for 
these stocks shall be based upon the common pool portion of the ACL 
available to U.S. vessels. NMFS shall send letters to limited access NE 
multispecies permit holders notifying them of such TACs.
    (i) Stocks other than GB cod and GB yellowtail flounder. With the 
exception of GB cod and GB yellowtail flounder, 100 percent of the 
Incidental Catch TACs specified in this paragraph (b)(5) shall be 
allocated to the Regular B DAS Program described in paragraph (b)(6) of 
this section.
* * * * *
    (iii) GB yellowtail flounder. The Incidental Catch TAC for GB 
yellowtail flounder specified in this paragraph (b)(5) shall be 
subdivided as follows: 50 percent to the Regular B DAS Program 
described in paragraph (b)(6) of this section and 50 percent to the 
Eastern U.S./Canada Haddock SAP described in paragraph (b)(8) of this 
section.
* * * * *
    (6) * * *
    (iv) * * *
    (D) Landing limits. Unless otherwise specified in this paragraph 
(b)(6)(iv)(D), or restricted pursuant to Sec.  648.86, a NE 
multispecies vessel fishing in the Regular B DAS Program described in 
this paragraph (b)(6), and fishing under a Regular B DAS, may not land 
more than 100 lb (45.5 kg) per DAS, or any part of a DAS, up to a 
maximum of 1,000 lb (454 kg) per trip, of any of the following species/
stocks from the areas specified in paragraph (b)(6)(v) of this section: 
Cod (both GOM and GB), American plaice, witch flounder, SNE/MA winter 
flounder, and GB yellowtail flounder; and may not land more than 25 lb 
(11.3 kg) per DAS, or any part of a DAS, up to a maximum of 250 lb (113 
kg) per trip of CC/GOM yellowtail flounder. In addition, trawl vessels, 
which are required to fish with a haddock separator trawl, as specified 
in paragraph (a)(3)(iii)(A) of this section, or a Ruhle trawl, as 
specified in paragraph (b)(6)(iv)(J) of this section, and other gear 
that may be required in order to reduce catches of stocks of concern as 
described in paragraph (b)(6)(iv)(J) of this section, are restricted to 
the trip limits specified in paragraph (e) of this section.
* * * * *
    (8) * * *
    (v) * * *
    (F) Landing limits. Unless otherwise restricted under this part, a 
vessel fishing any portion of a trip in the Eastern U.S./Canada Haddock 
SAP under a NE multispecies DAS may not fish for, possess, or land more 
than 1,000 lb (453.6 kg) of cod, per trip, regardless of trip length. A 
common pool vessel fishing in the Eastern U.S./Canada Haddock SAP under 
a NE multispecies DAS is subject to the haddock requirements described 
in Sec.  648.86(a), unless further restricted under paragraph 
(a)(3)(iv) of this section. A common pool vessel fishing in the Eastern 
U.S./Canada Haddock SAP may not land more than 100 lb (45.5 kg) per 
DAS, or any part of a DAS, of GB yellowtail flounder, up to a maximum 
of 500 lb (227 kg) of all flatfish species, combined. Possession of 
monkfish (whole weight) and skates (whole weight) is limited to 500 lb 
(227 kg) each, unless otherwise restricted by Sec.  648.94(b)(3), and 
possession of lobsters is prohibited. Possession limits for all other 
stocks are as specified in Sec.  648.86.
* * * * *
    (H) Incidental TACs. The maximum amount of GB cod and GB yellowtail 
flounder, both landings and discards, that may be caught when fishing 
in the Eastern U.S./Canada Haddock SAP Program in a fishing year by 
vessels fishing under a Category B DAS, as

[[Page 26208]]

authorized in paragraph (b)(8)(v)(A) of this section, is the amount 
specified in paragraphs (b)(5)(ii) and (iii) of this section. All 
regulated species and ocean pout caught by a vessel on a sector trip 
will be applied against the ACE for each stock that is specified for 
the sector in which the vessel participates.
* * * * *

0
4. Section 648.86 is amended by revising paragraph (l) to read as 
follows:


Sec.  648.86  NE Multispecies possession restrictions.

* * * * *
    (l) Ocean pout, windowpane flounder, and Atlantic wolffish. A 
vessel issued a limited access NE multispecies permit, an open access 
NE multispecies Handgear B permit, or a limited access monkfish permit 
and fishing under the monkfish Category C or D permit provisions may 
not fish for, possess, or land ocean pout, windowpane flounder, or 
Atlantic wolffish.
* * * * *

0
5. Section 648.87 is amended as follows:
0
a. Revise paragraphs (b)(1)(i)(A) and (c)(2)(ii)(A);
0
b. Suspend paragraph (b)(1)(i)(C); and
0
c. Add paragraphs (b)(1)(i)(F) and (b)(1)(i)(G).
    The added and revised text reads as follows:


Sec.  648.87  Sector allocation.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (A) Allocated stocks. Each sector shall be allocated a TAC in the 
form of an ACE for each NE multispecies stock, with the exception of 
Atlantic halibut, ocean pout, windowpane flounder (both the GOM/GB and 
the SNE/MA stocks), and Atlantic wolffish based upon the cumulative 
PSCs of vessels/permits participating in each sector during a 
particular fishing year, as described in paragraph (b)(1)(i)(E) of this 
section.
* * * * *
    (F) (1) Carry-over. For FY 2013, with the exception of GB 
yellowtail flounder, a sector may carry over an amount of ACE equal to 
up to 10 percent of its original ACE allocation for each stock that is 
unused at the end of one fishing year into the following fishing year; 
except that for GOM cod, for a period of 180 days after publication of 
this rule, a sector may only carry over an amount of ACE equal to up to 
1.85 percent of its original GOM cod ACE.
    (2) Eastern GB cod and haddock carryover. Any unused ACE allocated 
for Eastern GB stocks pursuant to paragraph (b)(1)(i)(B) of this 
section will contribute to the 10-percent carry-over allowance for each 
stock, as specified in paragraph (b)(1)(i)(F)(1) of this section, but 
will not increase an individual sector's allocation of Eastern GB 
stocks during the following year.
    (3) Carry-over when vessels leave or change sectors. Carry-over ACE 
remains effective during the subsequent fishing year even if vessels 
that contributed to the sector allocation during the previous fishing 
year are no longer participating in the same sector for the subsequent 
fishing year.
    (G) Carryover accounting. (1) For FY 2013, carryover of a 
particular stock attributed to a sector shall not be counted against a 
sector's ACE or the overall ACL for groundfish stocks.
    (2) Beginning in FY 2014, carryover of a particular stock 
attributed to a sector, other than the NMFS-specified de minimus 
amount, shall be counted against the sector's ACE only for purposes of 
determining an overage subject to the AM in paragraph (b)(4)(iii) of 
this section in circumstances when the overall stock-level ACL has been 
exceeded.
    (3) NMFS shall determine and announce the de minimus amount for FY 
2014 and may modify each subsequent year. De minimus announcements 
shall be made consistent with the APA on or about 6 months before the 
end of the fishing year.
    (4) In instances where the overall stock-level ACL has been 
exceeded and sectors have utilized available carryover in excess of the 
NMFS specified de minimus amount, the sector will be subject to the AM 
provision, inclusive of the carryover amount in excess of the stock-
level ACL, as outlined in paragraph (b)(4)(iii) of this section.
    (5) The Council may request, on an annual basis, for NMFS to reduce 
the amount of the available eligible carryover amount to ensure the 
total potential catch, the stock-level ACL plus the carryover amount, 
does not exceed the stock overfishing limit. Any such reduction of 
carryover amount shall be done consistent with the APA.
* * * * *
    (c) * * *
    (2) * * *
    (ii) * * *
    (A) Trip limits on NE multispecies stocks for which a sector 
receives an allocation of ACE pursuant to paragraph (b)(1)(i) of this 
section (i.e., all stocks except Atlantic halibut, ocean pout, 
windowpane flounder, and Atlantic wolffish);
* * * * *


Sec.  648.89  [Amended]

0
6. Section 648.89 is amended as follows:
0
a. Remove paragraph (c)(7); and
0
b. Redesignate paragraph (c)(6) as paragraph (c)(5); paragraph (c)(8) 
as paragraph (c)(6) and paragraph (c)(9) as paragraph (c)(7).

0
7. Section 648.90 is amended to read as follows:
0
a. Revise paragraphs (a)(4)(iii)(C) and (a)(5)(i)(A); and
0
b. Remove paragraph (a)(5)(i)(D)(4).


Sec.  648.90  NE multispecies assessment, framework procedures and 
specifications, and flexible area action system.

* * * * *
    (a) * * *
    (4) * * *
    (iii) * * *
    (C) Yellowtail flounder catch by the Atlantic sea scallop fishery. 
Yellowtail flounder catch in the Atlantic sea scallop fishery, as 
defined in subpart D of this part, shall be deducted from the ABC/ACL 
for each yellowtail flounder stock pursuant to the restrictions 
specified in subpart D of this part and the process to specify ABCs and 
ACLs, as described in paragraph (a)(4) of this section. Unless 
otherwise specified in this paragraph (a)(4)(iii)(C), or subpart D of 
this part, the specific value of the sub-components of the ABC/ACL for 
each stock of yellowtail flounder distributed to the Atlantic sea 
scallop fishery shall be specified pursuant to the biennial adjustment 
process specified in paragraph (a)(2) of this section. The Atlantic sea 
scallop fishery shall be allocated 40 percent of the GB yellowtail 
flounder ABC (U.S. share only) in fishing year 2013, and 16 percent in 
fishing year 2014 and each fishing year thereafter, pursuant to the 
process for specifying ABCs and ACLs described in this paragraph 
(a)(4). An ACL based on this ABC shall be determined using the process 
described in paragraph (a)(4)(i) of this section. Based on information 
available, NMFS shall project the expected scallop fishery catch of GB 
and SNE/MA yellowtail flounder for the current fishing year by January 
15. If NMFS determines that the scallop fishery will catch less than 90 
percent of its GB or SNE/MA yellowtail flounder sub-ACL, the Regional 
Administrator may reduce the pertinent scallop fishery sub-ACL to the 
amount projected to be caught, and increase the groundfish fishery sub-
ACL by any amount up to the amount reduced from the scallop fishery 
sub-ACL. The revised GB or SNE/MA yellowtail flounder groundfish 
fishery sub-ACL shall be distributed to the common pool and sectors 
based on the

[[Page 26209]]

process specified in paragraph (a)(4)(iii)(H)(1) of this section.
* * * * *
    (5) * * *
    (i) * * *
    (A) Excessive catch by common pool vessels. If the catch of 
regulated species and ocean pout by common pool vessels exceeds the 
amount of the ACL specified for common pool vessels pursuant to 
paragraph (a)(4)(iii)(H)(2) of this section, then the AMs described in 
Sec.  648.82(n) shall take effect. Pursuant to the distribution of 
ABCs/ACLs specified in paragraph (a)(4)(iii)(H)(2) of this section, for 
the purposes of this paragraph (a)(5)(i)(A), the catch of each 
regulated species or ocean pout stock not allocated to sectors pursuant 
to Sec.  648.87(b)(1)(i)(E) (i.e., Atlantic halibut, ocean pout, 
windowpane flounder, and Atlantic wolffish) during fishing years 2010 
and 2011 shall be added to the catch of such stocks by common pool 
vessels to determine whether the differential DAS counting AM described 
in Sec.  648.82(n)(1) shall take effect. If such catch does not exceed 
the portion of the ACL specified for common pool vessels pursuant to 
paragraph (a)(4)(iii)(H)(2) of this section, then no AMs shall take 
effect for common pool vessels.
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[FR Doc. 2013-10460 Filed 4-30-13; 4:15 pm]
BILLING CODE 3510-22-P