06-2387. Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Total Allowable Catches for the Northeast Multispecies Fishery for Fishing Year 2006

AGENCY:

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

ACTION:

Proposed rule; request for comments.

SUMMARY:

NMFS proposes three types of 2006 fishing year (FY) Total Allowable Catches (TACs) for the Northeast (NE) Multispecies Fishery Management Plan (FMP). Hard TACs for Eastern Georges Bank (GB) cod, Eastern GB haddock, and GB yellowtail flounder in the U.S./Canada Management Area; target TACs for all NE regulated multispecies; and hard Incidental Catch TACs for groundfish stocks of concern. This action also provides notice that the hard TACs for Eastern GB cod, Eastern GB haddock, and GB yellowtail flounder may be adjusted during FY 2006, if NMFS determines that the harvest of these stocks in FY 2005 exceeded the TACs specified for FY 2005. The intent of this action is to provide for the conservation and management of groundfish management under the FMP.

DATES:

Comments must be received by April 12, 2006.

ADDRESSES:

You may submit written comments by any of the following methods:

• E-mail: [e-mail]. Include in the subject line the following: Comments on the proposed TACs for the U.S./Canada Management Area.
• Federal e-rulemaking Portal: http:/www.regulations.gov.
• Mail: Paper, disk, or CD ROM comments should be sent to Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on the proposed TACs for the U.S./Canada Management Area.”
• Fax: [phone].

Copies of the Transboundary Management Guidance Committee's 2005 Guidance Document and copies of the Environmental Assessment of the 2006 TACs (including the Regulatory Impact Review and Initial Regulatory Flexibility Analysis (IRFA)) may be obtained from NMFS at the mailing address specified above; telephone [phone]. NMFS prepared a summary of the IRFA, which is contained in the Classification section of this proposed rule.

FOR FURTHER INFORMATION CONTACT:

Thomas Warren, Fishery Policy Analyst, [phone], fax [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

The NE Multispecies FMP specifies a procedure for setting three types of TACs: (1) Annual hard (i.e., the fishery or area closes when a TAC is reached) TACs for Eastern GB cod, Eastern GB haddock, and GB yellowtail flounder; (2) target TACs for all regulated groundfish stocks; and (3) hard Incidental Catch TACs for groundfish stocks of concern.

Hard TACs

The regulations governing the annual development of hard TACs for the U.S./Canada Management Area species (§ 648.85(a)(2)) were implemented by Amendment 13 to the FMP (69 FR 22906; April 27, 2004) in order to be consistent with the U.S./Canada Resource Sharing Understanding (Understanding), which is an informal understanding between the U.S. and Canada that outlines a process for the management of the shared GB groundfish resources. The Understanding specifies an allocation of TAC for these three stocks for each country, based on a formula that considers historical catch percentages and current resource distribution.

Annual TACs are determined through a process involving the New England Fishery Management Council (Council), the Transboundary Management Guidance Committee (TMGC), and the U.S./Canada Transboundary Resources Steering Committee (§ 648.85(a)(2)(i)). On September 7 and 8, 2005, the TMGC developed the guidance document for 2006 (Guidance Document 2005/01), and on September 9, 2005, the Steering Committee concurred with the TMGC recommendations. On September 15, 2005, the Council accepted the recommendations of the TMGC for the 2006 TACs for GB cod, GB haddock, and GB yellowtail flounder. The recommended 2006 TACs were based upon the most recent stock assessments (Transboundary Resource Assessment Committee (TRAC) Status Reports for 2005), and the fishing mortality strategy shared by both the U.S. and Canada. The strategy is to maintain a low to neutral risk of exceeding the fishing mortality limit reference (Fref = 0.18, 0.26, and 0.25 for cod, haddock, and yellowtail flounder, respectively). That is, when stock conditions are poor, fishing mortality rates (F) should be further reduced to promote rebuilding.

For GB cod, the TMGC concluded that the most appropriate combined U.S./Canada TAC for FY 2006 is 1,700 mt. This corresponds to an F less than the Fref of 0.18 in 2006 and represents a very low risk, less than 25-percent probability, of exceeding the Fref. At this level of harvest there is also a greater than 75-percent probability that stock biomass will increase by at least 10 percent from 2006 to 2007. The annual allocation shares for FY 2006 between the U.S. and Canada are based on a combination of historical catches (30 percent weighting) and resource distribution based on trawl surveys (70 percent weighting). Combining these factors entitles the U.S. to 22 percent and Canada to 78 percent, resulting in a national quota of 374 mt for the U.S. and 1,326 mt for Canada.

For GB haddock, the TMGC concluded that the most appropriate combined U.S./Canada TAC for FY 2006 is 22,000 mt. This corresponds to an F of 0.26 in 2006 and represents a neutral risk, about 50-percent, of exceeding the Fref. Adult biomass will increase substantially from 2006 to 2007 due to recruitment of the exceptional 2003 year class. The annual allocation shares for 2006 between countries are based on a combination of historical catches (30 percent weighting) and resource distribution based on trawl surveys (70 percent weighting). Combining these factors entitles the U.S. to 34 percent and Canada to 66 percent, resulting in a national quota of 7,480 mt for the U.S. and 14,520 mt for Canada.

For GB yellowtail flounder, the TMGC concluded that the most appropriate combined U.S./Canada TAC for FY 2005 is 3,000 mt. A catch of about 3,000 mt in 2006 corresponds to an F equal to the Fref of 0.25 and represents a neutral risk, about 50 percent of exceeding the Fref of 0.25. Two assessment approaches were used to evaluate stock status. Both indicated that biomass increased since the mid 1990s and recent recruitment has improved, but fishing mortality remained substantially above Fref. The annual allocation shares for 2006 between countries are based on a combination of historical catches (30 percent weighting) and resource distribution based on trawl surveys (70 percent weighting). Combining these factors entitles the U.S. to 69 percent and Canada to 31 percent, resulting in a national quota of 2,070 mt for the U.S. and 930 mt for Canada.

The Council approved the following U.S. TACs recommended by the TMGC: 374 mt of GB cod, 7,480 mt of GB haddock, and 2,070 mt of GB yellowtail flounder. The 2006 haddock and yellowtail flounder TACs represent decreases from 2005 TAC levels (by 1 percent and 51 percent, respectively), and the 2006 cod TAC represents a 44 percent increase from the 2005 TAC (Tables 1 and 2).

Table 1: Proposed 2006 U.S./Canada TACs (mt) and percentage shares (in parentheses)

	GB Cod	GB Haddock	GB Yellowtail flounder
Total Shared TAC	1,700	22,000	3,000
U.S. TAC	374 (22)	7,480 (34)	2,070 (69)
Canada TAC	1,326 (78)	14,520 (66)	930 (31)

Table 2: 2005 U.S./Canada TACs (mt) and percentage shares (in parentheses)

	GB Cod	GB Haddock	GB Yellowtail flounder
Total Shared TAC	1,000	23,000	6,000
U.S. TAC	260 (26)	7,590 (33)	4,260 (71)
Canada TAC	740 (74)	15,410 (67)	1,740 (29)

The proposed TACs are consistent with the results of the TRAC and the TMGC's harvest strategy.

The regulations implemented by Amendment 13, at § 648.85(a)(2)(ii), state the following: “Any overages of the [U.S./Canada] GB cod, haddock, or yellowtail flounder TACs that occur in a given fishing year will be subtracted from the respective TAC in the following fishing year.” Therefore, should an analysis of the catch of the shared stocks by U.S. vessels indicate that an overage occurred during FY 2005, the pertinent TACs will be adjusted downward in order to be consistent with the FMP and the Understanding. Although it is very unlikely, it is possible that a very large overage could result in an adjusted TAC of zero. If an adjustment to one of the 2006 TACs for Eastern GB cod, Eastern GB haddock, or GB yellowtail flounder is necessary, the public will be notified through proposed rulemaking and through a letter to permit holders.

Target TACs

Target TACs for regulated groundfish species are proposed pursuant to the regulations at § 648.90(a)(2), which require the Council to develop target TACs as part of the process that periodically adjusts management measures as necessary, and develops new target TACs based upon the most recent scientific information. Although target TACs for 2006 were specified by Amendment 13, it is necessary to revise the values of the 2006 TACs, based upon more recent scientific information (Assessment of 19 Northeast Groundfish Stocks through 2004; Northeast Fisheries Science Center Reference Document 05-13 (GARM II, completed in August 2005)). The Council recently adopted a management action that would make necessary management measure adjustments (Framework Adjustment (FW) 42) to the FMP, including proposed target TACs for regulated species for 2006, 2007, and 2008 (with the exception of U.S./CA TACs). However, because the Council could not develop FW 42 in time to implement the management measures by May 1, 2006, the proposed target TACs for the 2006 fishing year, if approved, would not be implemented in time for the start of the fishing year. Although many of the target TACs are used only as an informal means of evaluating the effectiveness of the management measures of the FMP, a delay in the specification of target TACs would impact two aspects of the FMP in a substantive manner. The annual allocation of GB cod to the GB Cod Hook Sector (provided the Sector is approved for the 2006 fishing year) is calculated as a percentage of the GB cod target TAC. If specification of the GB cod target TAC were delayed past May 1, it would not be possible to specify a GB cod allocation for the Sector in a timely manner. Reliance upon the current 2005 fishing year GB cod target TAC to calculate the Sector's allocation would not be utilizing the best available information. The GB cod Hook Sector is dependent upon the timely and accurate specification of the GB cod target TAC in order for the Sector to operate and generate revenue. In addition, a delay in the specification of target TACs would impact the specification of hard Incidental Catch TACs because Incidental Catch TACs are calculated as a percentage of the target TAC for 10 groundfish stocks of concern (A “hard” TAC means that when the TAC is reached, the fishery is closed or severely restricted).

Although the FMP does not address the circumstance where no TACs are specified, there would be no basis for the Sector and the special management programs that include Incidental Catch TACs to function consistent with the intent of the FMP and best scientific information available. As a result, the Sector program, if it could be authorized at all, would be allowed to fish at levels inconsistent with best scientific information available. More significantly, if incidental TACs cannot be established according to best scientific information available, special management programs that are dependent on these incidental TACs would operate, if they could be authorized at all, without adequate restrictions on the catch of stocks of concern. Several of the TACs would be smaller than appropriate, resulting in excessive harvest of stocks of concern under special management programs. The only way to avoid this management void is to implement a secretarial emergency measure as permitted under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act. As discussed above, this need for this emergency measure meets the requirements of the Federal Register notice specifying emergency criteria (62 FR 44421; August 21, 1997). This Emergency action arises from “unforeseen events or recently discovered circumstances” that would present “serious conservation or management problems” if the emergency action is not implemented. Specifically, as more fully discussed above, this emergency action is justified on ecological grounds in that fishing under TACs inconsistent with the best scientific information available would result in harvests that would likely jeopardize meeting conservation objectives of the FMP.

The proposed target TACs were developed by the Council's Groundfish Plan Development Team (PDT) and are consistent with those proposed in the FW 42 document. The target TACs (see Table 3) are calculated from projections of future catches, using recent assessment data, and the Amendment 13 target fishing mortality rates.

Table 3: Proposed Target TACs (mt) for 2006

Species	Stock	2006 Proposed Target TACs	TAC Composition
Cod	GB	7,458	E *
	GOM	4,987	C *
Haddock	GB	49,829	E
	GOM	1,279	A
Yellowtail flounder	GB	2,070	D *
	SNE/MA	146	B *
	CC/GOM	650	B *
American plaice		3,666	B*
Witch flounder		5,511	A *
Winter flounder	GB	1,424	A*
	GOM	**	C
	SNE/MA	2,481	C*
Redfish		1,946	A
White hake		2,056	A*
Pollock		12,005	A
Windowpane flounder	North	389	A
	South	173	A
Ocean pout		38	A
Atlantic halibut		NA	NA
A Commercial Landings
B Commercial Landings and Discards
C Commercial Landings, Discards, and Recreational Harvest
D Commercial Landings and Discards (U.S. portion of U.S./Canada TAC)
E Commercial Landings (U.S. and Canada)
* Stock of Concern for Which an Incidental Catch TAC as a Subset of the Target TAC is also proposed (Table 4).
** GARM II did not develop a TAC for GOM winter flounder because of uncertainties in the assessment.
Note: Proposed TACs for GB cod and GB haddock include Canadian landings.

Incidental Catch TACs

Incidental Catch TACs are proposed pursuant to the regulations at § 648.85(b)(5). The regulations require that Incidental Catch TACs be developed as part of the process that periodically adjusts management measures based upon the most recent scientific information. FW 40-A (69 FR 67780; November 19, 2004) implemented Incidental Catch TACs in order to strictly limit the potential for the use of Category B DAS to cause excessive fishing mortality on groundfish stocks of concern. For the NE multispecies fishery, a stock of concern is defined as “a stock that is in an overfished condition, or that is subject to overfishing.” FW 40-A implemented Incidental Catch TACs for the following 8 stocks, based upon the stock status data that was used in the development of Amendment 13: Gulf of Maine (GOM) cod, GB cod, Cape Cod (CC)/GOM yellowtail flounder, American plaice, white hake, Southern New England (SNE)/Mid-Atlantic (MA) yellowtail flounder, SNE/MA winter flounder, and witch flounder. FW 40-A also implemented percentage allocations of the Incidental Catch TACs among special programs (for the Regular B DAS Pilot Program; Closed Area I Hook Gear Haddock Special Access Program (SAP); and the Eastern U.S./Canada Haddock SAP Pilot Program) and specified values for those Incidental Catch TACs for portions of the 2004 fishing year. FW 40-B (70 FR 31323; June 1, 2005) and FW 41 (70 FR 54302; September 14, 2005), further modified the percentage allocation of the Incidental Catch TACs among Category B DAS programs.

In addition to the proposed 2006 target TACs adopted in FW 42, the Council also adopted 2006 Incidental Catch TACs under this same action. However, as with the target TACs for all regulated species, because the Council could not develop FW 42 in time to implement the management measures by May 1, 2006, the proposed Incidental Catch TACs for the 2006 fishing year, if approved, would not be implemented in time for the start of the fishing year. Implementation of Incidental Catch TACs in a timely manner is necessary to enable Category B DAS programs to operate based upon the best available science. NMFS proposes specifying the Incidental Catch TACs, as proposed in FW 42, under Secretarial emergency authority, consistent with the Emergency Criteria and Justification defined in 62 FR 44421 (August 21, 1997) due to recent, unforseen events, and the need to allow the Category B DAS programs to operate in a timely fashion according to best scientific information available.

In addition to specifying Incidental Catch TACs for the 8 stocks noted above (as implemented by FW 40-A), this action also proposes implementing additional Incidental Catch TACs for GB yellowtail flounder and GB winter flounder, based on new information from the GARM II report that overfishing is occurring on these stocks, and consistent with the Council's recommendations in FW 42. All 10 Incidental Catch TACs were developed by the PDT and are consistent with those proposed in the FW 42 document. These Incidental Catch TACs are derived from the target TACs, and are based upon percentages proposed by the Council in FW 42.

Table 4: Proposed Incidental Catch TACs (mt) for 2006

Stock	Percentage of Total Target TAC	2006 Incidental Catch TAC
GB Cod	Two	122.6
GOM cod	One	49.9
GB yellowtail flounder	Two	41.4
CC/GOM yellowtail flounder	One	6.5
SNE/MA yellowtail flounder	One	1.5
American plaice	Five	183.3
Witch flounder	Five	275.6
SNE/MA winter flounder	One	24.8
GB winter flounder	Two	28.5
White hake	Two	41.1

Classification

This proposed rule is exempt from review under Executive Order 12866.

NMFS prepared an IRFA that describes the economic impact that this proposed rule, if adopted, would have on small entities.

The specification of hard TACs for the U.S./Canada shared stocks of Eastern GB cod, Eastern GB haddock, and GB yellowtail flounder is necessary in order to ensure that the agreed upon U.S./Canada fishing mortality levels for these shared stocks are achieved in the U.S./Canada Management Area (the geographic area on GB defined to facilitate management of stocks of cod, haddock, and yellowtail flounder that are shared with Canada). A description of the objectives and legal basis for these proposed hard TACs is contained in the SUMMARY of this proposed rule.

Under the Small Business Administration (SBA) size standards for small fishing entities ($3.5 million), all permitted and participating vessels in the groundfish fishery are considered to be small entities. Gross sales by any one entity (vessel) do not exceed this threshold. Therefore, this proposed rule does not have a disproportionate impact between large and small entities. The maximum number of small entities that could be affected by the proposed TACs are approximately 1,000 vessels, i.e., those with limited access NE multispecies DAS permits, that have an allocation of Category A or B DAS. Realistically, however, the number of vessels that choose to fish in the U.S./Canada Management Area, and that therefore would be subject to the associated restrictions, including hard TACs, would be substantially less.

For the 2004 fishing year (May 2004 through April 2005), 155 individual vessels fished in the U.S./Canada Management Area. From May 2005 through February 9, 2006, 156 vessels fished in the U.S./Canada Area. Although it is difficult to predict the number that would fish in the U.S./Canada Area in 2006, the number of vessels is not likely to exceed the number of vessels that fished in the area during the 2004 or 2005 fishing years. Furthermore, additional fishing effort controls are proposed for the 2006 fishing year that are likely to decrease fishing effort.

The economic impacts of the proposed TACs are difficult to predict due to several factors that affect the amount of catch, as well as the price of the fish. Furthermore, the economic impacts are difficult to predict due to the newness of these regulations (May 2004; Amendment 13 to the FMP). Therefore, there is relatively little historic data, and limited information about the specific fishing patterns or market impacts that may be caused by this hard TAC management system. In general, the rate at which yellowtail flounder is caught in the Eastern and Western U.S./Canada Area and the rate at which cod is caught in the Eastern U.S./Canada Area will determine the length of time the Eastern U.S./Canada Area will remain open. The length of time the Eastern U.S./Canada Area is open will determine the amount of haddock that is caught.

The amount of GB cod, haddock, and yellowtail flounder landed and sold will not be equal to the sum of the TACs, but will be reduced as a result of discards (discards are counted against the hard TAC), and may be further reduced by limitations on access to stocks that may result from the associated rules. Fishing derby behavior may result in a reduction to the market value of fish. The overall economic impact of the proposed 2006 U.S./Canada TACs will likely be different from the economic impacts of the 2005 TACs due to the reduced yellowtail flounder TAC, and may result in reduced revenue. Although the 2006 cod TAC represents an increase from 2005, the 2006 haddock and yellowtail TACs represent decreases from 2005. For yellowtail flounder, the decrease is substantial. Based on the estimates in the Environmental Assessment, revenue from cod and haddock caught in the Eastern U.S./Canada Area may increase from 2005 to 2006 (up to 43 percent and 74 percent, respectively), and revenue from yellowtail flounder in the U.S./Canada Area may decline by 51 percent. According to the analysis, the overall change in revenue from 2005 to 2006 for the 3 species combined could amount to a 36 percent decline (or approximately $ 3.8 million ), although it is difficult to predict future fishing patterns, and there are factors which may mitigate the decline in overall revenue. For example, there could be an increase in yellowtail flounder price, as well as the potential for increased opportunity to harvest haddock from the Eastern U.S./Canada Area. If the larger GB cod TAC results in a longer period of time that the Eastern U.S./Canada Area is open, and if vessels attempt to, and are successful in avoidance of cod, the Eastern Area may be opened for a longer period of time in fishing year 2006 than it was in 2005, resulting in additional revenue from haddock.

Although unlikely, a downward adjustment to the hard TACs specified for FY 2006 could occur after the start of the fishing year, if it is determined that the U.S. catch of one or more of the shared stocks during the 2005 fishing year exceeded the relevant TACs specified for FY 2005.

Three alternatives for hard TACs were considered for FY 2006: The proposed TACs, the status quo TACs, and the no action alternative. No other TAC alternatives were considered. The process for establishing TACs is based on the best scientific information available designed to yield only one proposed set of TACs. The proposed TACs would have a similar economic impact as the status quo TACs. Adoption of the status quo TACs, however, would not be consistent with the FMP because the status quo TACs do not represent the best available scientific information. Although the no action alternative (no TACs) would not constrain catch in the U.S./Canada Management Area, and therefore would likely provide some additional fishing opportunity, the no action alternative is not a reasonable alternative because it is inconsistent with the FMP in both the short and long term. The FMP requires specification of hard TACs in order to limit catch of shared stocks to the appropriate level (i.e., consistent with the Understanding and the FMP). As such, the no action alternative would likely provide less economic benefits to the industry in the long term than the proposed alternative.

The proposed hard TACs do not modify any collection of information, reporting, or recordkeeping requirements. The proposed hard TACs do not duplicate, overlap, or conflict with any other Federal rules.

Three alternatives were considered for the target TACs for FY 2006: The proposed TACs, the status quo TACs, and the no action alternative (previously specified TACs, based on previous scientific information). No other target TAC alternatives were considered for the same reason that no other TAC alternatives were considered for the 2006 U.S./Canada Management Area TACs described above. The economic impacts of the target TACs are minimal. The most substantive impact on potential fishing effort would be to allow the possibility of a larger TAC allocated to the GB Cod Hook Sector than under the Status Quo Alternative. The amount of cod allocated to the GB Cod Hook Sector is directly affected by the size of the GB cod target TAC, and therefore has the potential for an economic impact on the Sector. Based on the amount of GB cod TAC caught by the Sector in 2004 and 2005 (less than the TAC), an increase in the amount of cod allocated to the Sector is not likely to impact the amount of cod landed by the Sector. Factors other than the size of the Sector's cod allocation appear to be limiting the amount of catch and revenue. In 2004, the Sector caught approximately 20 percent of their allocation. During the 2005 fishing year, through December, the Sector caught 25 percent of their allocation.

The economic impacts of the Incidental Catch TACs are more notable than the impact of the target TACs because the Incidental Catch TACs may cause the closure of a SAP or prohibition on the use of Regular B DAS in particular stock areas in the Regular B DAS Program. The harvest of Incidental Catch TACs curtail the opportunities to use Category B DAS. Six of the ten Incidental Catch TACs will decrease in 2006, compared to the 2005, Status Quo TACs. The small size of some of the Incidental Catch TACs may have a negative economic impact. Most of the Incidental Catch TACs under the Status Quo and No Action Alternatives would have less of a negative economic impact because they are larger and would be less constraining to the fishery. Based on the proposed 2006 Incidental Catch TACs and the 2004 catch (Quarter 1) in the Regular B DAS Pilot Program, it is likely that five of the quarterly Incidental Catch TACs will be reached, causing a closure of the program prior to the end of the quarter. During 2005, the catch under the Regular B DAS Pilot Program represented substantial percentages of the amount of cod, haddock, and yellowtail flounder caught in the U.S./Canada Area. It is difficult to determine whether the changes in Incidental Catch TACs will result in reduced revenue or whether vessels will be able to compensate for such changes by modifying their fishing strategies. It is possible that the proposed 2006 Incidental Catch TACs may result in a decline in revenue by reducing fishing opportunity. However, it is possible that vessels that participate in the Regular B DAS Pilot Program would make up for any losses in fishing opportunity in the Regular B DAS Pilot Program by instead fishing under a Category A DAS. Vessels that historically do not use their full allocation of Category A DAS could increase the relative percentage of DAS used, or lease additional DAS.

Dated: March 7, 2006.

James W. Balsiger,

Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.