2011-23369. Fisheries of the Northeastern United States; Northeast (NE) Multispecies Fishery; Framework Adjustment (FW) 45; Adjustments for Fishing Year (FY) 2011

AGENCY:

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

ACTION:

Interim final rule; request for comments.

SUMMARY:

NMFS adjusts the differential days-at-sea (DAS) rate for common pool vessels for FY 2011 due to overages of FY 2010 catch levels. This measure will help prevent FY 2011 catch levels from being exceeded. NMFS also announces the amount of unused FY 2010 annual catch entitlement (ACE) carryover available to each sector in FY 2011, and adjusts the final number of vessels fishing in a sector in FY 2011.

DATES:

Effective September 8, 2011 through April 30, 2012. Written comments must be received on or before September 28, 2011.

ADDRESSES:

You may submit comments, identified by NOAA-NMFS-2010-0198, by any one of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal: http://www.regulations.gov. To submit comments via the e-Rulemaking Portal, first click the “submit a comment” icon, then enter NOAA-NMFS-2010-0198 in the keyword search. Locate the document you wish to comment on from the resulting list and click on the “Submit a Comment” icon on the right of that line.
• Mail: Submit written comments to Patricia A. Kurkul, Regional Administrator, 55 Great Republic Drive, Gloucester, MA 01930.
• Fax: [phone]; Attn: Sarah Heil.

Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. 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. All comments received are a part of the public record and will generally be posted for public viewing on http://www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. 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 or Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Sarah Heil, Fishery Policy Analyst, [phone].

SUPPLEMENTARY INFORMATION:

FY 2011 Differential DAS Counting for Common Pool Vessels

Based on preliminary FY 2010 common pool catch information available in February 2011, NMFS previously estimated that common pool catch of witch flounder would exceed the common pool sub-annual catch limit (sub-ACL) by 32 percent. Based on this information, the final rule for FW 45 (76 FR 23042, April 25, 2011) implemented a differential DAS rate of 1.3 on May 1, 2011, in the Offshore Gulf of Maine (GOM), the Inshore Georges Bank (GB), and the Offshore GB Differential DAS areas for common pool vessels. These areas are where witch flounder are predominately caught. The differential DAS rate applies to all Category A DAS used by common pool vessels, and is applied to the time spent in the applicable DAS counting area where a vessel fishes. Updated end-of-year 2010 catch estimates show that the common pool sub-ACL for witch flounder was only exceeded by 20 percent, and the total ACL for northern windowpane flounder was exceeded by 27 percent. Therefore, this rule reduces the differential DAS rate to 1.2 in the Offshore GOM and the Inshore GB Differential DAS areas due to the overage of witch flounder. This lower rate will be applied retroactively to all applicable trips taken since the start of FY 2011 on May 1, 2011. The differential DAS rate for the Offshore GB Differential DAS area will remain at 1.3 due to the overage of northern windowpane flounder. Northern windowpane flounder are predominately caught in this area. These accountability measures (AMs) are meant to prevent overages of FY 2011 catch levels. Further adjustments to the common pool differential DAS rate are likely based on final 2010 catch estimates for components of the groundfish fishery that have not yet been fully evaluated, such as the recreational fishery, exempted fisheries, non-groundfish vessels (e.g., scallop vessels), and state-only permitted vessels.

FY 2011 Final Sector Rosters

A final rule was published on June 15, 2011 (76 FR 34903), announcing the FY 2011 sector and common pool sub-ACLs based on final sector rosters as of May 1, 2011. On the same day, a permit issued to a vessel that had previously elected to fish in a sector in FY 2011 was permanently cancelled and was removed from the FY 2011 roster for the particular sector. This rule announces the final number of permits (as tracked by moratorium right identifiers (MRIs)) participating in each sector during FY 2011 (see Table 1). Calculation of potential sector contributions (PSCs) for FY 2012 for each limited access permit will include the re-distribution of any PSC associated with this cancelled permit. This rule does not change the FY 2011 sector or common pool catch limits.

Table 1—Final Sector Membership for FY 2011

Sector name*	Moratorium right identifier count
FGS	96
MPBS	8
NCCS	29
NEFS 2	83
NEFS 3	93
NEFS 4	41
NEFS 5	32
NEFS 6	21
NEFS 7	20
NEFS 8	20
NEFS 9	60
NEFS 10	51
NEFS 11	46
NEFS 12	11
NEFS 13	35
PCCGS	39
SHS 1	108
SHS 3	16
TSS	19
All Sectors Combined	828
*Georges Bank Cod Fixed Gear Sector (FGS), Maine Permit Bank Sector (MPBS), Northeast Coastal Communities Sector (NCCS), Northeast Fishery Sectors (NEFS), Port Clyde Community Groundfish Sector (PCCGS), Sustainable Harvest Sector (SHS), and Tri-State Sector (TSS).

FY 2010 Sector ACE Carryover

The regulations allow each sector to carry over up to 10 percent of its initial allocation for all but one groundfish stock into the following fishing year. Unused ACE for GB yellowtail flounder cannot be carried over because catch levels for this stock are set each year by the U.S./Canada Resource Sharing Understanding. The amount of unused FY 2010 ACE was calculated as the difference of a sector's final FY 2010 ACE for each stock, including all ACE trades, and the sector's FY 2010 catch. FY 2010 ACE carryover information for all sectors combined is presented in Table 2. FY 2010 ACE carryover amounts for each sector are presented in Table 3 and Table 4.

Classification

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

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA finds good cause under 5 U.S.C. 553(b)(B) and (d)(3) to waive prior notice and the delayed effectiveness for this action because notice and a delayed effectiveness would be unnecessary, impracticable, and contrary to the public interest. Both the FW 45 final rule and the FY 2011 adjustment rule based on final sector rosters indicated that future adjustments may be made based on updated FY 2010 catch estimates and final sector rosters; these catch estimates and final rosters only recently became available, and this rule implements the anticipated adjustments. Prior opportunity for public comment is unnecessary and impracticable because the public was provided the opportunity to comment on the possibility of the anticipated adjustments, including the basis for such adjustments. However, NMFS is requesting public comment on this action because the actual adjustments in this rule were not specifically stated.

NMFS also finds good cause pursuant to 5 U.S.C. 553(d)(3) to waive the delay in effectiveness of this action as contrary to the public interest. Any delay in making these adjustments would cause Category A DAS common pool vessels to operate under a more restrictive differential DAS rate than required in certain areas. Fishermen participating in the common pool fishery make business decisions based on the number of DAS available to them. A delay in this action would prolong the time period that the fishery would be operating under an incorrect differential DAS rate, which may prevent a vessel from gaining the maximum benefit from available fishing opportunities during the summer months, which generally have better weather conditions. NMFS is making this adjustment now because FY 2010 catch information supporting the change only recently became available.

A delay in the announcement of the FY 2010 ACE carryover is also contrary to the public interest because a delay could disrupt sector operations and prevent sectors from planning for the fishing year based on the amount of ACE available to them in FY 2011. FY 2010 ACE carryover may increase the fishing opportunities available to each sector in FY 2011, especially if a sector has a small allocation for particular stocks. A delay in this action could result in foregone fishing opportunities during the summer months, when weather conditions are generally better. Because ACE may be traded between sectors, a delay in this action could also affect the ACE available to the market for trading, to the economic detriment of the fishery.

Because prior notice and an opportunity for 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., are inapplicable.

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

Dated: September 7, 2011.

Samuel D. Rauch III,

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