2015-16891. 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.

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: [phone]; email: [e-mail].

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 (F_rebuild), 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 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 F_rebuild), 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 (F_rebuild). 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 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 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.