2014-09875. Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northern Red Hake Accountability Measure

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This action reduces the in-season possession limit adjustment trigger for northern red hake beginning in fishing year 2014 due to an annual catch limit overage in 2012. This action also makes some minor corrections and clarifications to the accountability measure regulations. These corrections and clarifications are administrative in nature and will not affect the small-mesh multispecies fishery, possession limits, or how the accountability measures function. This action is required under the provisions of the Northeast Multispecies Fishery Management Plan.

DATES:

This action is effective May 1, 2014.

FOR FURTHER INFORMATION CONTACT:

Jason Berthiaume, Fishery Management Specialist, phone: [phone], or [e-mail].

SUPPLEMENTARY INFORMATION:

Background

The small-mesh multispecies fishery is managed as a component of the Northeast Multispecies Fishery Management Plan (FMP), using a series of exemptions from the minimum mesh size requirements of the groundfish fishery. There are three species in the small-mesh multispecies fishery, managed as five stocks under the regulations at 50 CFR 648.80 (northern and southern silver hake, northern and southern red hake, and offshore hake). The northern stock areas are generally in the Gulf of Maine and Georges Bank, and the southern stock areas are in Southern New England and the Mid-Atlantic regions. Silver hake, also known as “whiting,” is generally the primary target species of the fishery. Red hake is caught concurrently with whiting and typically sold as bait.

Under the current regulations, once 90 percent of a small-mesh multispecies stock's total allowable landings (TAL) is reached in a given fishing year, NMFS is required to reduce the possession limit for that stock to the prescribed incidental level for the remainder of the fishing year. Further, for accountability measure purposes, if the full annual catch limit (ACL) for that stock is exceeded, NMFS is required to reduce the in-season possession limit adjustment trigger (i.e., the percentage of the TAL of each small-mesh multispecies stock that triggers the reduction in the possession limit) in a subsequent fishing year by 1 percent for each 1 percent by which the ACL was exceeded. In fishing year 2012, the northern red hake ACL was 266 mt and the commercial catch was 386 mt. This equates to an ACL overage of 120 mt; 45 percent above the ACL. Therefore, pursuant to current regulations, this action reduces the trigger from 90 percent to 45 percent of the TAL for this stock. This results in an in-season adjustment trigger equal to 41 mt. Thus, for fishing year 2014, if 45 percent, or 41 mt, of the northern red hake TAL is projected to be reached or exceeded, the possession limit for northern red hake would be reduced from 5,000 lb (2,270 kg) to 400 lb (181.44 kg). The reduced trigger would remain in effect until the New England Fishery Management Council changes it through specifications or a framework action, or unless the ACL is again exceeded, in which case NMFS must further reduce the percentage of the in-season adjustment trigger. None of the catch of other small-mesh multispecies stocks exceeded their respective ACLs in 2012.

This is the first year in which this accountability measure has been triggered. In developing this action, NMFS has discovered that some parts of the Amendment 19 implementing regulations regarding the accountability measures for small-mesh multispecies need to be clarified to better reflect the intent of the Amendment 19. Accordingly, this action clarifies the small-mesh multispecies accountability measure regulations at 648.86 and 648.90. Specifically, this action specifies more clearly the possession limit adjustment trigger for each individual stock of the small-mesh multispecies fishery and how the trigger works. Since this is the first time the possession limit adjustment trigger has had to be reduced, the current regulations only broadly specify the trigger for all small-mesh multispecies stocks. As such, the regulations need to be clarified to specify the triggers for each individual stock since they are being reduced for one stock (northern red hake), but not the other stocks. In addition, since a new section is needed to specify the different possession limit adjustment triggers for each stock, the in-season adjustment accountability measure regulations that cite the possession limit adjustment triggers also need to be adjusted to cite the correct regulations. These clarifications are administrative in nature and do not affect the small-mesh multispecies fishery, possession limits, or how the accountability measures function, outside of what was originally intended in the implementing action and the accountability measures.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this rule is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA, finds good cause to waive prior notice and opportunity for additional public comment for this action because this would be impracticable, and contrary to the public interest. Allowing for prior notice and public comment is impracticable because this is a non-discretionary action required by provisions of Amendment 19 to the Northeast Multispecies FMP, which was subject to public comment, and it must be in place on or before May 1, 2014. The proposed rule to implement Amendment 19 requested public comment on these measures including the specific accountability measure implemented by this rule, with the understanding that possession limit trigger adjustments would be required if an ACL overage occurred. Based on latest landings data received by NMFS, we have determined that the accountability measure was triggered because the TAL was exceeded, thus it is necessary to publish this rule to reduce the possession limit adjustment trigger for red hake. We received no significant comments on Amendment 19 in opposition to the accountability measures and their implementing procedures. Providing for additional public comment at this time, therefore, would not serve any additional purpose because the public has already had the opportunity to comment on the measures being implemented with this action.

Providing public comment at this time would also be contrary to the public interest because it is imperative to implement the accountability measures at the beginning of the second year following an ACL overage, which is May 1, 2014. Given that the fishery has surpassed its quota in the past, if the AM is not implemented by May 1, there is the potential that the fishery could incur an additional quota overage because fishermen would be unaware of the new reduced trigger level, thereby resulting in curtailed fishing opportunities leading to unnecessary adverse economic consequences for fishermen that participate in this fishery.

Regarding the changes to the implementing regulations regarding the accountability measures for small-mesh multispecies, NMFS makes clarifications to the regulations that do not substantively impact regulated entities. These corrections and clarifications more clearly delineate the different possession limit adjustment triggers for each stock, and revise the in-season adjustment accountability measure regulations to correctly cite the different possession limit adjustment triggers. As such, these corrections and clarifications are administrative in nature and will not affect the small-mesh multispecies fishery, possession limits, or how the accountability measures function.

For these same reasons, there is good cause to waive the 30-day delay in effectiveness requirement pursuant to 5 U.S.C. 553(d). NMFS was unable to prepare this rule in time to allow public comment and implement a final rule before it has to be in place on or before May 1, 2014. Moreover, providing for additional public comment would be impracticable because this is a non-discretionary action required by provisions of Amendment 19 to the Northeast Multispecies FMP, which was subject to public comment. Providing public comment at this time would also be contrary to the public interest because it is imperative to implement the accountability measures at the beginning of the second year following an ACL overage, which is May 1, 2014. Given that the fishery has surpassed its quota in the past, if the AM is not implemented by May 1, there is the potential that the fishery could incur an additional quota overage because fishermen would be unaware of the new reduced trigger level, thereby resulting in curtailed fishing opportunities leading to unnecessary adverse economic consequences for fishermen that participate in this fishery.

The changes to the implementing regulations regarding the accountability measures for small-mesh multispecies are clarifications and do not substantively impact regulated entities. These corrections and clarifications more clearly delineate the different possession limit adjustment triggers for each stock, and revise the in-season adjustment accountability measure regulations to correctly cite the different possession limit adjustment triggers. As such, these corrections and clarifications are administrative in nature and will not affect the small-mesh multispecies fishery, possession limits, or how the accountability measures function.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., do not apply.

This rule is not significant for the purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

Dated: April 24, 2014.

Eileen Sobeck,

Assistant Administrator for Fisheries, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 648 is amended to read as follows:

PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

1. The authority citation for part 648 continues to read as follows:

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

2. In § 648.86, paragraph (d)(4) introductory text is revised to read as follows:

§ 648.86

NE Multispecies possession restrictions.

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(d) * * *

(4) In-season adjustment of small-mesh multispecies possession limits. If the Regional Administrator projects that an in-season adjustment TAL trigger level for any small-mesh multispecies stock, as specified in § 648.90(b)(5)(iii), has been reached or exceeded, the Regional Administrator shall reduce the possession limit of that stock to the incidental level for that stock, as specified in this paragraph (d)(4), for the remainder of the fishing year through notice consistent with the Administrative Procedure Act, unless such a reduction in the possession limit would be expected to prevent the TAL from being reached.

* * * * *

3. In § 648.90, paragraph (b)(5) is revised to read as follows:

§ 648.90

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

* * *

(b) * * *

(5) Accountability measures for the small-mesh multispecies fishery—(i) In-season adjustment of possession limits. In-season adjustment accountability measures for the small-mesh multispecies fishery are specified in accordance with the procedures in § 648.86(d)(4).

(ii) Post-season adjustment for an overage. If NMFS determines that a small-mesh multispecies ACL was exceeded in a given fishing year, the in-season accountability measure adjustment trigger, as specified in paragraph (b)(5)(iii) of this section, shall be reduced in a subsequent fishing year by 1 percent for each 1 percent by which the ACL was exceeded through notification consistent with the Administrative Procedure Act. For example, if the in-season adjustment trigger is 90 percent, and an ACL is exceeded by 5 percent, the adjustment trigger for the stock whose ACL was exceeded would be reduced to 85 percent for subsequent fishing years.

(iii) Small-mesh multispecies in-season adjustment triggers. The small-mesh multispecies in-season accountability measure adjustment triggers are as follow:

Species	In-season adjustment trigger (percent)
Northern Red Hake	45
Northern Silver Hake	90
Southern Red Hake	90
Southern Whiting	90

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