[Federal Register Volume 80, Number 132 (Friday, July 10, 2015)]
[Proposed Rules]
[Pages 39731-39734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16891]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

RIN 0648-XE008


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Fisheries of the Northeastern United States; Northeast 
Groundfish Fishery; Denial of Petition for Rulemaking for Gulf of Maine 
Cod

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

ACTION: Notice of agency decision.

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SUMMARY: In response to the most recent stock assessment for Gulf of 
Maine cod, which indicated that the stock is at historically low 
abundance levels, a group of environmental organizations have requested 
that NMFS initiate rulemaking to make the following changes: prohibit 
commercial and recreational fishing for Gulf of Maine cod until the 
incidental fishing mortality does not exceed the acceptable biological 
catch limit; and limit catch, including discards, to the level that 
achieves the fishing mortality that meets rebuilding requirements, in 
accordance with Amendment 16 to the Northeast Multispecies Fishery 
Management Plan. After reviewing the petition and considering recent 
management measures we have implemented to prevent overfishing of Gulf 
of Maine cod and promote Gulf of Maine cod rebuilding efforts, we are 
denying the Petition for Rulemaking request.

DATES: The petition for rulemaking was denied on June 4, 2015.

FOR FURTHER INFORMATION CONTACT: William Whitmore, Fishery Policy 
Analyst, phone: 978-281-9182; email: [email protected].

SUPPLEMENTARY INFORMATION: A group of environmental organizations, 
including The Center for Biological Diversity, Greenpeace, SandyHook 
Life Foundation, and The Turtle Island Restoration Network, have 
requested that NMFS initiate rulemaking under the Administrative 
Procedure Act. The petitioners request that, because the most recent 
stock assessment for Gulf of Maine (GOM) cod indicates that the stock 
is at historically low abundance levels, NMFS initiate rulemaking to 
make the following changes: (1) Prohibit commercial and recreational 
fishing for GOM cod until the incidental fishing mortality does not 
exceed the acceptable biological catch (ABC) limit; and (2) limit 
catch, including discards, to the level that achieves the fishing 
mortality that meets rebuilding requirements (Frebuild), in 
accordance with Amendment 16 to the Northeast Multispecies Fishery 
Management Plan (FMP).
    We are denying the Petition for Rulemaking. The measures in 
Framework Adjustment 53 to the FMP (80 FR 25110; May 1, 2015), combined 
with other conservation and management measures we implemented for the 
recreational fishery (80 FR 25160; May 1, 2015), are expected to 
prevent catch from exceeding the ABC, prevent overfishing, and rebuild 
the GOM cod stock within the rebuilding period. Further, we intend to 
carefully monitor updated stock assessment information, which will be 
available later this year, and will adjust measures, if necessary, to 
address any changes to stock condition. We carefully considered the 
available information and determined that all of the management 
measures implemented in the Framework 53 final rule, along with 
corresponding recreational measures, and our continued close monitoring 
of the stock's condition, will provide sufficient protection for GOM 
cod to prevent overfishing and contribute to rebuilding consistent with 
the requirements of the Magnuson-Stevens Fishery Conservation and 
Management Act. These measures balance Magnuson-Stevens Act objectives, 
including achieving optimum yield and taking into account the needs of 
fishing communities, without compromising conservation objectives to 
prevent overfishing and rebuild the stock. In effect, therefore, 
Framework 53, combined with the other recreational measures, achieves 
exactly what the petition for rulemaking seeks. Moreover, Framework 53 
was developed and implemented through the preferred Regional Fishery 
Management Council process as intended by the Magnuson-Stevens Act. 
Accordingly, as described in more detail below, neither a Secretarial 
amendment nor an emergency action is necessary or warranted to further 
limit GOM cod mortality at this time.

Background

Petition Request

    In August 2014, the Northeast Fisheries Science Center updated the 
2012 benchmark GOM cod stock assessment. The assessment found that the 
GOM cod stock is overfished, subject to overfishing, and that the 
condition of the stock had declined

[[Page 39732]]

further from the 2012 assessment that was used as a basis for the 
revised rebuilding plan established in Framework 51. The 2014 
assessment showed historically low abundance and estimated that GOM cod 
was at only 3 percent of its rebuilding target. In response, on 
November 13, 2014, we issued interim measures (79 FR 67362) to limit 
cod mortality for the duration of the 2014 fishing year (which ended on 
April 30, 2015).
    We received a petition for rulemaking on March 3, 2015, largely in 
response to the results of the most recent GOM cod stock assessment, 
the interim measures to reduce GOM cod mortality, and the Council's 
recommended measures for long-term GOM cod protection in Framework 53. 
The petitioners requested that NMFS initiate rulemaking to limit GOM 
fishing mortality consistent with the specifications of the default ABC 
control rule implemented in Amendment 16. In support of their request, 
the petitioners contend that historic overfishing and mismanagement of 
the GOM cod stock have led to declines in landings and stock abundance, 
and resulted in changes to the stock's age structure (i.e., reduced the 
number of big, old, fat, fertile female fish), spawning locations, 
migratory behavior, and prey. They assert that because past GOM cod 
assessments have consistently overestimated cod spawning stock biomass 
and underestimated fishing mortality, managers should consider larger 
uncertainty buffers.
    The petitioners claim that the ongoing management regime for GOM 
cod has not successfully ended overfishing or promoted rebuilding of 
the GOM cod stock, and that the management measures proposed in 
Framework 53 will not support rebuilding by the end of the revised 
rebuilding plan deadline in 2024. Specifically, they claimed:
     The 2004 GOM cod rebuilding plan failed because the 
Council set catch limits to maximize fishing opportunity rather than 
promote stock conservation, and because the Council prolonged 
overfishing by choosing the maximum rebuilding timeline possible.
     The 2014 GOM cod interim measures did not temporarily 
address overfishing or allow for stock rebuilding, and were only 
projected to result in a 33-percent reduction in fishing mortality in 
spite of advice from the Council's Scientific and Statistical Committee 
(SSC) that a 75-percent reduction in fishing limits was necessary.
     The 386-mt GOM cod ABC recommended by the Council in 
Framework 53 is above the legal limit (i.e., 200 mt, the level of catch 
necessary to achieve a fishing mortality equal to Frebuild), 
and is unlikely to allow the stock to rebuild by 2024.
    To remedy the situation, the petitioners request that we prohibit 
commercial and recreational fishing for GOM cod until incidental 
fishing mortality does not exceed the ABC, and limit catch, including 
discards, to the level that achieves a fishing mortality rate that 
meets rebuilding requirements (Frebuild). In addition, the 
petitioners suggest that because proper accounting for dead discards 
may be one reason that cod failed to rebuild from 2004-2014, NMFS 
should increase observer coverage for the commercial fleet to 100 
percent to ensure that mortality of GOM cod is monitored and counted 
toward catch limits.

Framework 53

    While we were developing the GOM cod interim measures, the New 
England Fishery Management Council developed measures to end 
overfishing in the 2015 fishing year (beginning May 1, 2015) and for 
long-term measures to rebuild the GOM cod stock, consistent with the 
revised rebuilding program, as part of Framework 53. Framework 53, 
which was implemented May 1, 2015, includes a 75-percent reduction to 
the GOM cod catch limit compared to 2014, a prohibition on recreational 
possession of GOM cod, and seasonal area closures intended to protect 
spawning and reduce fishing mortality on GOM cod.
    Framework 53 also includes measures consistent with the goals of a 
revised 10-year rebuilding plan for GOM cod that was established in 
Framework 51 (79 FR 22421; April 22, 2014). The 10-year rebuilding 
program is intended to account for past performance of groundfish 
rebuilding programs and uncertainties in long-term catch projections by 
setting conservative catch levels in the early years of the program. 
This timeframe also provides flexibility to better address the needs of 
fishing communities compared to rebuilding programs that target an 
earlier end date.

Basis for Denial

    Section 304 of the Magnuson-Stevens Act provides the Secretary of 
Commerce with the authority to prepare and implement a fishery 
management plan if the Council fails to develop and submit a plan or 
amendment after a reasonable period of time that meets necessary 
conservation and management objectives. Or, the agency may put in place 
emergency regulations or interim measures to address an emergency or 
overfishing. An emergency rulemaking allows actions to prevent 
overfishing or economic loss or to preserve economic opportunity when 
the emergency results from recent, unforeseen events or recently 
discovered circumstances. An interim rule allows for measures that 
reduce overfishing for a limited time. The benefits of using the 
abbreviated rulemaking procedures associated with emergency rulemaking 
and interim measures must outweigh the value of advance notice, public 
comment, and deliberative consideration of the impacts on participants 
to the same extent as expected under the normal Council and full 
notice-and-comment rulemaking process.
    Rulemaking is not appropriate in this instance because it would 
unnecessarily replace the measures established in Framework 53 and the 
recreational measures put in place through the Council process. These 
measures achieve what the petition for rulemaking seeks. These measures 
balance Magnuson-Stevens Act objectives, including achieving optimum 
yield and taking into account the needs of fishing communities, without 
compromising conservation objectives to prevent overfishing and rebuild 
the stock. Therefore, neither a Secretarial amendment nor an emergency 
action is necessary or warranted at this time to further limit GOM cod 
mortality.

2004 Rebuilding Plan

    We do not agree with the petitioner's statements that the Council-
recommended catch levels for GOM cod during the 2004 rebuilding program 
were intended to maximize economic gain at the expense of the health of 
the stock. A 2008 stock assessment reviewed progress under the plan and 
concluded that the stock was not overfished but overfishing was 
occurring, and, based in part on a strong 2005 year class, the stock 
was expected to rebuild by 2014.
    We notified the Council about the lack of progress under the 2004 
rebuilding plan following the 2012 GOM cod benchmark assessment. We 
determined that inadequate progress under the 2004 rebuilding plan was 
due to a revised understanding of the condition of the stock since the 
2008 GOM cod assessment. In response to the new understanding of the 
status of the GOM cod stock, we worked with the Council to implement 
measures to reduce overfishing and revise the rebuilding plan as 
swiftly as possible though a 2012 interim action, and Frameworks 50 and 
51. These actions incorporated new information and lessons from past 
management approaches. Our review of the Council's

[[Page 39733]]

revised 2014 GOM cod rebuilding plan adopted in Framework 51 indicated 
that the Council addressed past rebuilding performance and accelerated 
the rebuilding timeline by setting more conservative catch limits in 
the early portion of the rebuilding program.

2014 Interim Action

    We reject the petitioners claim that the 2014 interim action 
insufficiently addressed the information provided in the updated 
assessment. One of our primary objectives of the interim action was to 
reduce overfishing by reducing GOM cod commercial and recreational 
catch. Given the mixed nature of the groundfish fishery and its 
interaction with other fisheries, this objective was analyzed in the 
context of not closing down the entire GOM, but to allow some 
harvesting of other groundfish stocks. We wanted to reduce GOM cod 
mortality while the Council developed more permanent measures in 
Framework 53. We determined it was unnecessary to try to prevent all 
fishing mortality for the remainder of the 2014 fishing year as the 
stock can rebuild even if subject to overfishing in 2014 as long as 
measures would be in place to prevent overfishing beginning in 2015. 
Achieving zero fishing mortality would have required closing all GOM 
fisheries, including those that do not target groundfish. The impacts 
of such measures would be substantial and impracticable. Such a closure 
was unwarranted to ensure effective cod conservation.

Framework 53 GOM Cod ABC

    Most recently, we considered public comment on and supporting 
analysis for Framework 53 and the 2015 recreational measures, and the 
best scientific information available in making the determination that 
an ABC of 386 mt was appropriate and consistent with the requirements 
of the Magnuson-Stevens Act and its National Standards. In light of 
current stock conditions, the 386 mt ABC is a 75-percent catch limit 
reduction compared to 2014, which is in addition to the 80-percent 
reduction implemented for the 2013-2014 fishing years. In total, the 
GOM cod catch limit has been reduced by 95 percent over the last 5 
years. Further, new recreational measures prohibit recreational 
fishermen from retaining any GOM cod. This is the first zero-retention 
prohibition on GOM cod for recreational fishermen. Detailed information 
that addresses the petitioners concerns about the GOM cod ABC and 
further justifies our decision to approve an ABC of 386 mt can be found 
in the Framework 53 final rule (see pages 25125-25127).
    We will continue to carefully consider management measures to 
promote timely rebuilding of the GOM cod stock. In an effort to closely 
monitor stock indicators, we reviewed the recent fall 2014 NEFSC bottom 
trawl survey indices. The fall survey indicated a small increase 
compared to 2012 and 2013; however, the general trend of survey 
indices, as well as recruitment, remains very low. While the updated 
survey information may provide an initial, and potentially positive, 
indication of improvement, it is difficult to anticipate the results of 
the full 2015 assessment. In any event, we plan to make necessary 
adjustments for the 2016 fishing year based on the upcoming 2015 stock 
assessment.

Incidental Fishing Mortality

    The petitioners request prohibiting fishing mortality until 
incidental mortality does not exceed the ABC. An ABC of 386 mt is 
expected to have substantial adverse economic impacts on groundfish 
vessels, and is below the estimate of incidental catch of GOM cod that 
occurred in the 2013 fishing year. In the 2013 fishing year, when the 
ACL was reduced by 80 percent, incidental catch was estimated to be 
approximately 500-600 mt. Beginning in the 2013 fishing year, sectors 
primarily used their GOM cod allocation to access other groundfish 
stocks. Multiple sources of information indicate a marked decline in 
directed fishing for GOM cod. With an additional 75-percent reduction 
beginning in the 2015 fishing year, the incentive to target GOM cod is 
virtually eliminated, and the fishery will be, in effect, a ``bycatch-
only'' fishery. Incidental catch is largely a function of the overall 
ACLs on other stocks. At such a low GOM cod catch limit, fishery 
operations will be greatly restricted, and in some cases eliminated. In 
addition, the recreational fishery will be prohibited from possessing 
any GOM cod. Under this incidental catch scenario, the GOM cod ABC is 
expected to severely restrict catch of other groundfish stocks, 
particularly GOM haddock, pollock, redfish, and some flatfish. Based on 
this information, the 386-mt ABC balances Magnuson-Stevens Act 
requirements of conservation and achieving optimum yield.

Monitoring and Catch Accounting

    The petitioners raised a concern that inaccurate accounting for 
catch could undermine conservation objectives for GOM cod. We share 
their concern, and available analyses suggest that an extremely low 
catch limit for GOM cod may create an economic incentive to misreport 
catch. If misreporting occurs, it could reduce the accuracy of catch 
apportionment. Information indicates that this incentive increases as 
the GOM cod catch limit is further reduced. To help ensure correct 
catch apportionment and compliance with the GOM cod ACL adopted in 
Framework 53, we also implemented an additional daily reporting 
requirement for common pool and sector vessels fishing in multiple 
broad stock areas on the same trip. This requirement is intended to 
help ensure accurate catch attribution and reduce the incentive for 
vessels to misreport.
    We do not share the petitioners' view that 100-percent observer 
coverage is necessary to monitor GOM cod fishing mortality. Rather, we 
apply at-sea monitoring coverage levels that we determine are necessary 
to monitor and enforce catch levels, or increase buffers to account for 
uncertainty in catch as part of the biennial quota-setting process. We 
have received similar comments on prior groundfish rulemakings 
requesting high levels of observer coverage for the commercial fishery 
since the implementation of Amendment 16. For the most part, commenters 
have generally asserted that the levels of monitoring we have 
implemented are inadequate without providing any specific justification 
or information to support their assertion.
    For sector trips, we have determined that 24-percent observer 
coverage is sufficient this fishing year, to the extent practicable in 
light of Magnuson-Stevens Act requirements, to reliably estimate catch 
for purposes of monitoring ACLs for groundfish stocks. This level of 
coverage is achieved through a combination of groundfish at-sea 
monitoring coverage and observer coverage furnished by the Northeast 
Fisheries Observer Program. Amendment 16 specified that at-sea 
monitoring coverage levels should be less than 100 percent, which 
requires estimations of the discard portion of catch and thus total 
catch. Amendment 16 also specified that the at-sea monitoring coverage 
levels should achieve a 30-percent coefficient of variation (CV). The 
level of observer coverage, ultimately, should provide confidence that 
the overall catch estimate is sufficiently accurate to ensure that 
sector fishing activities are consistent with National Standard 1 
requirements to prevent overfishing while achieving optimum yield. To 
that end, significant additional uncertainty buffers are established 
when setting ACLs that mitigate any lack of absolute precision and 
accuracy in estimating overall catch by sector vessels. Collectively, 
the current level of sector

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observer coverage is providing more data for quota management and 
assessment science than was available to NMFS prior to implementation 
of Amendment 16.
    On February 18, 2014, in Oceana, Inc. v. Pritzker, 1:13-cv-00770 
(D.D.C. 2014), the Court upheld our use of a 30-percent CV standard to 
set sector observer coverage levels. In addition to upholding our 
determination of sufficient coverage levels, the Court noted that the 
current sector observer coverage is not the sole method of monitoring 
compliance with ACLs, there are many reporting requirements that 
vessels adhere to, and there are strong incentives for vessels to 
report accurately because each sector is held jointly and severally 
liable for overages and misreporting of catch and bycatch.

Conclusion

    We remain concerned about the status of GOM cod, but have 
determined that the current FMP, as adjusted by Framework 53, along 
with recreational measures and planned future Council and agency 
actions, provide the appropriate regulatory mechanisms for addressing 
the concerns regarding this stock that were raised in the petition for 
rulemaking. We will continue to carefully monitor stock indicators 
leading into the 2015 assessment to fully inform our re-evaluation of 
the GOM cod catch limit, and the need to balance conservation and 
management objectives. Therefore, we are denying this petition; no 
other rulemaking is necessary in response to the petition for 
rulemaking.

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

    Dated: July 6, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2015-16891 Filed 7-9-15; 8:45 am]
 BILLING CODE 3510-22-P