2015-20303. Revisions to Framework Adjustment 53 to the Northeast Multispecies Fishery Management Plan and Sector Annual Catch Entitlements; Updated Annual Catch Limits for Sectors and the Common Pool for Fishing Year 2015

AGENCY:

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

ACTION:

Temporary final rule; adjustment to specifications.

SUMMARY:

Based on the final Northeast multispecies sector rosters submitted as of May 1, 2015, we are adjusting the fishing year 2015 specification of annual catch limits for commercial groundfish vessels, as well as sector annual catch entitlements and common pool allocations for groundfish stocks. This revision to fishing year 2015 catch levels is necessary to account for changes in the number of participants electing to fish in either sectors or the common pool fishery. This action details unused sector quotas that may be carried over from fishing year 2014 to fishing year 2015. This action also reduces the fishing year 2015 common pool allocation of Eastern Georges Bank cod and adjusts common pool incidental catch limits to account for a common pool fishing year 2014 overage.

DATES:

Effective August 17, 2015, through April 30, 2016.

FOR FURTHER INFORMATION CONTACT:

William Whitmore, Fishery Policy Analyst, [phone].

SUPPLEMENTARY INFORMATION:

The New England Fishery Management Council (Council) developed Amendment 16 to the Northeast (NE) Multispecies Fishery Management Plan (FMP), in part, to establish a process for setting groundfish annual catch limits (also referred to as ACLs or catch limits) and accountability measures. Framework Adjustment (Framework) 53 set annual catch limits for groundfish stocks and three jointly managed U.S./Canada stocks for fishing year 2015. We recently approved Framework 53, which became effective on May 1, 2015 (80 FR 25110).

We also recently approved fishing year 2015 sector operations plans and allocations (80 FR 25143; May 2, 2015; “sector final rule”). A sector receives an allocation of each stock, or annual catch entitlement (referred to as ACE, or allocation), based on its members' catch histories. State-operated permit banks also receive an allocation that can be transferred to qualifying sector vessels. The sum of all sector and state-operated permit bank allocations is referred to as the sector sub-ACL. Whatever groundfish allocations remain after sectors and state-operated permit banks receive their allocations are then allocated to the common pool (i.e., vessels not enrolled in a sector).

This rule adjusts the fishing year 2015 sector and common pool allocations based on final sector membership as of May 1, 2015. Since the final rules are not effective until the beginning of the fishing year (May 1), permits enrolled in a sector and the vessels associated with those permits have until April 30, the last day prior to the beginning of a new fishing year, to withdraw from a sector and fish in the common pool. As a result, the actual sector enrollment for the new fishing year is unknown when the specifications (in this case, Framework 53) and sector final rules publish. To address this issue, each year we publish an adjustment rule modifying sector and common pool allocations based on final sector enrollment. If the sector allocation increases as a result of sector membership changes, the common pool allocation decreases—the opposite is true as well. The Framework 53 and the fishing year 2015 sector proposed and final rules both explained that sector enrollments may change and that there would be a need to adjust the sub-ACLs and ACEs accordingly.

Adjustments to sector ACEs and the sub-ACLs for sectors and the common pool are typically minimal as historically there has been little change in sector enrollment. Tables 1, 2, and 3 explain the revised fishing year 2015. Table 4 compares the allocation changes between the sector final rule and this adjustment rule. Vessels currently enrolled in sectors have accounted for approximately 99 percent of the historical groundfish landings. This year's sector final rule specified sector ACEs based on the 842 permits enrolled in sectors on February 25, 2015. As of May 1, 2015, there are 838 NE multispecies permits enrolled in sectors, which means four permits elected to leave sectors and operate in common pool for fishing year 2015.

We have completed fishing year 2014 data reconciliation with sectors and determined final fishing year 2014 sector catch and the amount of quota that sectors may carry from fishing year 2014 into fishing year 2015. A recent emergency rule (79 FR 36433; June 27, 2014) described changes to carryover and catch accounting in response to litigation by Conservation Law Foundation (Conservation Law Foundation v. Pritzker, et al. (Case No. 1:13-CV-0821-JEB)). This rule ensures that catch does not exceed the allowable biological catch for any stock. Because of this, the maximum carryover for certain stocks may be lower than what a sector expects. Table 5 includes the maximum amount of quota that sectors may carry over from fishing year 2014 into fishing year 2015. Table 6 includes the de minimis amount of quota that sectors may carry over from fishing year 2014 into fishing year 2015. Tables 7 and 8 list the final ACE available to sectors for fishing year 2015, including carryover.

This rule also reduces the Eastern GB cod common pool sub-ACL for fishing year 2015 due to a fishing year 2014 overage (Tables 9 and 10). When the common pool sub-ACL for any stock is exceeded in one fishing year, the accountability measures in the FMP require us to reduce the common pool sub-ACL by the amount of the overage in the next fishing year. The 2.8 mt fishing year 2014 common pool sub-ACL for Eastern GB cod was exceeded by 1.3 mt (48 percent). Therefore, this action reduces the initially allocated 2.7 mt fishing year 2015 Eastern GB cod common pool sub-ACL by 1.3 mt, leaving an adjusted allocation of 1.4 mt for the remainder of the fishing year.

Framework 53 specified incidental catch limits (or incidental total allowable catches, “TACs”) applicable to the common pool and groundfish Special Management Programs for fishing year 2015, including the B day-at-sea (DAS) Program. Because these incidental catch limits are based on the common-pool allocation, they also must be revised to match current common pool enrollment allocation and, in this instance, to account for the Eastern GB cod accountability measure for fishing year 2015. Final common pool trimester quotas (including adjustments for the Eastern GB cod overage) and incidental catch limits are included in Tables 11-15 below.

This is only a temporary final rule. After we finish reconciling differences in fishing year 2014 catch accounting between our data and each sector manager's data, each sector will have 2 weeks to trade its fishing year 2014 ACE to account for any overages. After that 2-week trading window, a sector that still has exceeded its fishing year 2014 allocation will have its fishing year 2015 allocation reduced, pursuant to regulatory requirements. Because data reconciliation and the 2-week trading window take place after the new fishing year beings, we reserve 20 percent of each sector's fishing year 2015 allocation until fishing year 2014 catch data are reconciled. Sectors can carryover up to 10 percent of their fishing year 2014 ACE, or an amount of ACE that does not result in exceeding the allowable biological catch, into fishing year 2015. We will publish a final follow-up rule detailing any carryover of fishing year 2014 sector allocation or reduction in fishing year 2014 allocation resulting from sectors under or overharvesting their allocations.

Table 12—Fishing Year 2015 Common Pool Incidental Catch TACs

Stock	Percentage of common pool sub-ACL	Incidental catch TAC (mt)
GB cod	2	0.75
GOM cod	1	0.06
GB yellowtail flounder	2	0.08
CC/GOM yellowtail flounder	1	0.21
American Plaice	5	1.35
Witch Flounder	5	0.7
SNE/MA winter flounder	1	1.59

Table 13—Distribution of Common Pool Incidental Catch TACs to Each Special Management Program

Stock	Regular B DAS program (%)	Closed Area I hook gear haddock SAP (%)	Eastern U.S./CA haddock SAP (%)	Southern closed Area II haddock SAP
GB cod	50	16	34	NA
GOM cod	100	NA	NA	NA
GB yellowtail flounder	50	NA	50	NA
CC/GOM yellowtail flounder	100	NA	NA	NA
American Plaice	100	NA	NA	NA
Witch Flounder	100	NA	NA	NA
SNE/MA winter flounder	100	NA	NA	NA

Table 14—Fishing Year 2015 Common Pool Incidental Catch TACs for Each Special Management Program

[(mt)]

Stock	Regular B DAS program	Closed Area I hook gear haddock SAP	Eastern U.S./Canada haddock SAP
GB cod	0.38	0.12	0.26
GOM cod	0.06	NA	NA
GB yellowtail flounder	0.04	NA	0.04
CC/GOM yellowtail flounder	0.21	NA	NA
American Plaice	1.35	NA	NA
Witch Flounder	0.70	NA	NA
SNE/MA winter flounder	1.59	NA	NA

Table 15—Fishing Year 2015 Common Pool Regular B DAS Program Quarterly Incidental Catch TACs

[(mt)]

Stock	1st Quarter (13%)	2nd Quarter (29%)	3rd Quarter (29%)	4th Quarter (29%)
GB cod	0.05	0.11	0.11	0.11
GOM cod	0.01	0.02	0.02	0.02
GB yellowtail flounder	0.01	0.01	0.01	0.01
CC/GOM yellowtail flounder	0.03	0.06	0.06	0.06
American Plaice	0.18	0.39	0.39	0.39
Witch Flounder	0.09	0.20	0.20	0.20
SNE/MA winter flounder	0.21	0.46	0.46	0.46

Classification

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

This final rule has been determined to be not significant for purposes of Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(3)(B), we find good cause to waive prior public notice and opportunity for public comment on the catch limit and allocation adjustments because allowing time for notice and comment is impracticable, unnecessary, and contrary to the public interest. We also find good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective upon filing.

There are several reasons that notice and comment are impracticable, unnecessary, and contrary to the public interest. First, the proposed and final rules for fishing year 2015 sector operations plans and contracts explained the need and likelihood for adjustments of sector and common pool allocations based on final sector rosters. No comments were received on the potential for these adjustments, which provide an accurate accounting of a sector's or common pool's allocation at this time. Furthermore, we have followed a similar process since Amendment 16 was implemented in 2010; this annual adjustment action is anticipated by industry. The accountability measure and adjustment process to account for the fishing year 2014 Eastern Georges Bank cod overage was also already subject to notice and comment during Amendment 16 development and implementation. Second, these adjustments are based on either objective sector enrollment data or a pre-determined accountability measure and are not subject to NMFS' discretion, so there would be no benefit to allowing time for prior notice and comment. Third, a delay would potentially impair achievement of the management plan's objectives for the common pool of preventing overfishing and achieving optimum yield by staying within ACLs or allocations. Finally, if this rule is not effective immediately, the sector and common pool vessels will be operating under incorrect information on the catch limits for each stock for sectors and the common pool. This could cause negative economic impacts to the both sectors and the common pool, depending on the size of the allocation, the degree of change in the allocation, and the catch rate of a particular stock.

The catch limit and allocation adjustments are not controversial and the need for them was clearly explained in the proposed and final rules for fishing year 2015 sector operations plans and contracts. Adjustments for overages are also explained in detail in the Amendment 16 proposed and final rules. As a result, NE multispecies permit holders are expecting these adjustments and awaiting their implementation. Fishermen may make both short- and long-term business decisions based on the catch limits in a given sector or the common pool. Any delays in adjusting these limits may cause the affected fishing entities to slow down, or speed up, their fishing activities during the interim period before this rule becomes effective. Both of these reactions could negatively affect the fishery and the businesses and communities that depend on them. Therefore, it is important to implement adjusted catch limits and allocations as soon as possible. For these reasons, we are waiving the public comment period and delay in effectiveness for this rule, pursuant to 5 U.S.C. 553(b)(3)(B) and (d), respectively.

Because advanced notice and the opportunity for public comment are not required under the Administrative Procedure Act, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., do not apply to this rule. Therefore, no final regulatory flexibility analysis is required and none has been prepared.

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

Dated: August 11, 2015.

Eileen Sobeck,

Assistant Administrator for Fisheries, National Marine Fisheries Service.