2011-14853. Revisions to Framework Adjustment 45 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 2011

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 multispecies sector rosters submitted as of May 1, 2011, NMFS announces adjustments to the Northeast (NE) multispecies fishing year (FY) 2011 specification of annual catch limits (ACLs) for common pool vessels (common pool sub-ACLs), ACLs for sector vessels (sector sub-ACLs), and sector Annual Catch Entitlements (ACEs) for groundfish stocks managed under the NE Multispecies Fishery Management Plan (FMP). This revision to FY 2011 catch levels is necessary to account for changes to the number of participants electing to fish in either sectors or the common pool fishery in FY 2011.

DATES:

Effective June 14, 2011, through April 30, 2012.

FOR FURTHER INFORMATION CONTACT:

William Whitmore, Fishery Policy Analyst, [phone].

SUPPLEMENTARY INFORMATION:

Pursuant to the Magnuson-Stevens Fishery Conservation and Management Act and Amendment 16 to the FMP (75 FR 18262; April 9, 2010), Framework Adjustment (FW) 44 to the FMP, which was published in the Federal Register on April 9, 2010 (75 FR 18356), specified catch levels for 20 NE groundfish stocks for FY 2010-2012. In addition, FW 45 (April 25, 2011; 76 FR 23042) modified the 2011 ACLs for five stocks (Georges Bank (GB) haddock, GB cod, GB yellowtail flounder, white hake, and pollock). FW 45 also specified catch levels for various components of the groundfish fishery, including sub-ACLs for the common pool and sectors. These sub-ACLs were based on the catch history of the vessels enrolled in sectors, as of December 1, 2010.

On April 25, 2011, NMFS published an interim final rule approving FY 2011 sector operations plans and allocating ACE to sectors for FY 2011 (76 FR 23076; “sector rule”). The sector rule included FY 2011 sector sub-ACL information also reflected in FW 45, where the sum of the ACEs for each sector equals the sector sub-ACL. Unlike FW 45, though, the sector ACEs in the sector rule were derived from February 1, 2011, sector rosters. To provide increased flexibility to the fishing industry, vessels initially enrolled in sectors for FY 2011 were allowed to drop out and join the common pool fishery through April 30, 2011. Additional flexibility was also provided to allow NE multispecies permitted vessels purchased after the sector enrollment deadline of December 1, 2010, to enroll in a sector up through April 30, 2011. Because the sector ACEs, as well as the sector sub-ACLs (sum of ACEs for all sectors) and the common pool sub-ACL (groundfish sub-ACL minus sector sub-ACL), are based upon the specific membership of sectors, any changes in membership since FW 45 and the sector rule were implemented requires that NMFS revise the sector ACEs and sub-ACLs for the common pool and sectors. This rule adjusts the FY 2011 sector ACEs and sub-ACLs for the common pool and sectors based on the members of each sector roster as of May 1, 2011 (“final sector rosters”).

The preamble of the final rule implementing FW 45 informed the public that “NMFS intends to publish a rule in early May 2011 to modify these [common pool and sector] sub-ACLs and notify the public if these numbers change.” Through this temporary final rule, NMFS is revising FY 2011 ACEs for all approved sectors and for FY 2011 sub-ACLs for common pool and sector vessels, based on the final sector rosters. The final number of vessels electing to fish in sectors for FY 2011 is 829 (reduced by 7 vessels since the February 2011, rosters). All ACE and sub-ACL values for sectors assume that each NE multispecies vessel enrolled in a sector has a valid permit for FY 2011.

Additionally, this rule implements a revised definition of “unmarketable fish” for the purposes of a sector exemption first introduced in the interim final rule approving FY 2011 sector operations plans. NMFS requested comments on this definition (76 FR 23076), as well as comments on the final sector rosters. However, NMFS received no comments to the notice of final sector rosters, or to the definition of “unmarketable” fish, as included in the interim final rule. Therefore, the definition will remain as stated in the interim final rule.

Tables 1, 2, and 3 (below) explain the allocation of the FY 2011 ACE for each sector and stock, as a percentage and absolute amount (in metric tons and pounds), based on the final sector rosters. The regulations provide sectors two weeks following the completion of catch data reconciliation by NMFS to trade FY 2010 ACE in order to account for any overharvesting during that period. After the completion of two week trading window, accountability measures, specifically the reduction in FY 2011 ACE for sectors that exceeded their FY 2010 ACE, will be implemented. In addition, sectors that did not harvest their entire ACE of any particular stock are allowed to carry over up to 10 percent of their initial allocation to the next year. To discourage overfishing of the NE groundfish species, current regulations also require NMFS to reserve 20 percent of each sector's FY 2011 ACE until FY 2010 landings data are reconciled. Once the reconciliation of FY 2010 sector catch is complete, the remaining 20 percent of ACE withheld from sectors will be allocated, and any sector that still exceeded its FY 2010 after reconciliation will have its share of the withheld ACE reduced accordingly. NMFS will publish a follow-up rule detailing any FY 2011 sector ACE reductions resulting from FY 2010 ACE overages, or FY 2011 ACE increases from FY 2010 ACE carryover.

Table 4 compares the preliminary FY 2011 sub-ACLs for common pool and sector vessels published in the final rule implementing FW 45, with the current revised sub-ACLs based on the final sector rosters as of May 1, 2011.

Changes in the sub-ACLs for stocks in sectors range from a decrease of 1.22 percent of SNE/MA yellowtail flounder, to an increase of 0.73 percent of GOM winter flounder. Adjustments of the sub-ACLs for stocks in the common pool range between a 37.93 percent decrease in GOM haddock, to a 46.51 percent increase in GB haddock. The changes in the common-pool ACLs are greater because the common-pool has a significantly lower sub-ACL for all stocks, so even small changes appear large when viewed as a percent increase or decrease. There is also a large increase in both the common pool and sector sub-ACLs for GB yellowtail flounder because of a change in the U.S./Canada resource sharing agreement from the International Fisheries Agreement Clarification Act (2011) that dramatically increased the U.S. TAC of GB yellowtail flounder.

FW 45 specifies incidental catch TACs applicable to the NE multispecies Special Management Programs for FY 2011-2012, based on the ACLs, the FMP, and advice from the Council. Incidental catch TACs are specified for certain stocks of concern for common pool vessels fishing in the Special Management Programs, in order to limit the amount of catch of stocks of concern that can be caught under such programs. Since these incidental catch TACs are also based on the sub-ACLs for the common pool, they have changed based on the revised sub-ACLs. The incidental catch TACs for most stocks were based upon the Council's FW 44 Environmental Assessment (EA), while the incidental catch TACs for GB haddock, GB cod, GB yellowtail flounder, white hake, and pollock were based upon the Council's FW 45 EA.

Table 5—Incidental Catch TACs by Stock for FY 2011 (mt)

Stock	Percentage of sub-ACL	Final rule 2011 incidental catch TAC	Revised 2011 incidental catch TAC
GB cod	2	2	1.86
GOM cod	1	1.3	1.04
GB yellowtail flounder	2	0.3	0.4
CC/GOM yellowtail flounder	1	0.3	0.27
SNE/MA yellowtail flounder	1	1.1	1.2
American plaice	5	3.9	3.5
Witch flounder	5	1.2	1.25
SNE/MA winter flounder	1	7.3	7.3
GB winter flounder	2	0.3	0.28
White hake	2	0.7	0.56

Table 6—Incidental Catch TACs for Special Management Programs by Stock for FY 2011 (mt)

Stock	Regular B DAS program		Closed area I hook gear haddock SAP		Eastern U.S./Canada haddock SAP
	Final rule 2011	Revised 2011	Final rule 2011	Revised 2011	Final rule 2011	Revised 2011
GB cod	1.0	0.93	0.3	0.3	.7	0.63
GOM cod	1.3	1.04
GB yellowtail flounder	0.15	0.2			.1	0.2
CC/GOM yellowtail flounder	0.30	0.27
SNE/MA yellowtail flounder	1.1	1.2
American plaice	3.9	3.5
Witch flounder	1.2	1.25
SNE/MA winter flounder	7.3	7.3
GB winter flounder	0.1	0.14			.1	0.14
White hake	0.7	0.56

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 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 Orders 12866.

Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), there is good cause to waive prior notice and opportunity for public comment, as well as the delayed effectiveness for this action, because notice, comment, and a delayed effectiveness would be impractical and contrary to the public interest. Vessel owners that enroll in sectors could drop out of sectors through April 30 (the day before the beginning of the fishing year and sector enrollment period), and because NMFS allowed NE multispecies permitted vessels purchased after the sector enrollment deadline of December 1, 2010, to enroll in a sector until April 30, 2011, it is necessary to adjust sector ACEs and ACLs for sectors and the common pool to account for membership changes. This action makes those adjustments to the sector and common pool ACEs and ACLs. NMFS discussed and requested public comments on the need to and procedure for adjusting the sector and common pool ACEs and ACLs in FW 45 and the sector rule. The public offered no comments on these matters, and this rule simply implements the procedures previously set forth to adjust the ACEs and ACLs to account for changes in sector membership. Therefore, it is unnecessary at this point to provide a third opportunity to the public to comment on this adjustment. This issue was discussed in both the FY 2011 sector and FW 45 proposed and final rules.

Moreover, allowing public comment on these rules is contrary to the public interest. If the sector ACEs and sub-ACLs are not adjusted immediately, they will operate under incorrect specifications until the adjustments are implemented. The implications of delaying the date on which the specifications are corrected depends upon the size of the ACE and sub-ACL, the size of the change in specification relative to the ACE and sub-ACL, and the rate of catch of the particular stock. If, for example, a sector were currently catching a particular stock for which they have a small ACE at a high rate, and that sector's ACE for that stock is adjusted downward in this rule, then a significant fraction of that sector's ultimate FY 2011 ACE could be harvested and the sector's fishing season shortened upon implementation of this rule. In the worst case scenario, excessive catch by sectors could lead to a sector catching more than its ACE for the applicable FY, and having to forego any additional fishing this year. Thus, delaying this rule's effectiveness and allowing for another round of public comment could cause negative economic impacts to the common pool and to the sectors.

Additionally, any delays for an additional public comment period or to the effectiveness of the rule would create uncertainty for the affected entities that would have negative economic implications, which are contrary to the public interest. Until the stock allocations are finally adjusted, the affected fishing entities will not know how many fish of a particular stock they can catch without going over their ultimate limits. Fishermen may make both short- and long-term business decisions based on the ACLs in a given sector or the common pool; thus, it is important to implement adjusted ACEs and sub-ACLs as soon as possible. Any delays in adjusting the ACLs and ACEs may cause the affected fishing entities to curtail, or speed up, their fishing activities during the interim period before the rule's effectiveness. Both of these reactions could negatively affect the fishery and the businesses and communities that depend on them; the former by delaying profits and potentially reducing harvests, the latter by increasing the potential for exceeding the ultimate fishing limits. Thus, a delay in this rule's effectiveness creates uncertainty in the fishing market that is contrary to the public's interest.

For these reasons, NMFS is waiving the public comment period and delay in effectiveness for this rule, pursuant to 5 U.S.C. 553(c) and (d).

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

Dated: June 9, 2011.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.