[Federal Register Volume 75, Number 138 (Tuesday, July 20, 2010)]
[Rules and Regulations]
[Pages 41996-41998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17693]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 100427197-0207-01]
RIN 0648-AY86
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Pollock Catch Limit Revisions
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Emergency rule; request for comments.
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SUMMARY: NMFS issues this final rule pursuant to its authority to issue
emergency measures under the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act). This emergency action implements
new stock status determination criteria for pollock and associated
increases in pollock catch limits under the Northeast (NE) Multispecies
Fishery Management Plan (FMP), based on the most recent and best
available scientific information. Specifically, this emergency action
increases fishing year (FY) 2010 pollock catch levels specified by
Framework Adjustment (FW) 44, including Overfishing Levels (OFLs),
Acceptable Biological Catches (ABCs), Annual Catch Limits (ACLs), ACL
components, incidental Total Allowable Catches (TACs) for special
management programs, and sector Annual Catch Entitlements (ACEs). The
ACL components include sub-ACLs for the common pool and sectors. This
action is intended to provide additional fishing opportunities,
consistent with the FMP and the Magnuson-Stevens Act.
DATES: Effective July 15, 2010, through January 11, 2011. Comments must
be received by August 19, 2010.
FOR FURTHER INFORMATION CONTACT: Thomas A. Warren, Fishery Policy
Analyst, (978) 281-9347, fax (978) 281-9135.
SUPPLEMENTARY INFORMATION:
Background
This final rule implements emergency measures, authorized by
section 305(c) of the Magnuson-Stevens Act, to revise current pollock
catch limits immediately. On May 1, 2010, NMFS implemented catch limits
developed by the New England Fishery Management Council (Council) under
FW 44 (75 FR 18356; April 9, 2010) for all groundfish stocks, including
pollock, for FY 2010 through 2012. The catch levels specified by FW 44
included OFLs, ABCs, ACLs, ACL components, and incidental TACs for
special management programs. The ACL components included sub-ACLs for
the common pool and sectors. On May 26, 2010, NMFS published (75 FR
29459) adjusted ACL subcomponents and adjusted sector ACEs in order to
reflect changes to the sector rosters just prior to the start of FY
2010.
The FW 44 catch levels for all stocks, including pollock, were
based upon the most recent scientific information available at that
time, i.e., the stock assessments conducted by the Groundfish
Assessment Review Meeting (GARM III) in 2008, as well as subsequent
pertinent information for pollock, as explained below. GARM III
originally characterized pollock as overfished and subject to
overfishing and, in accordance with required procedures, NMFS notified
the Council of the status of the stock on September 2, 2008. Subsequent
correspondence resulted in two modifications to the characterization of
the status of the pollock biomass. A September 16, 2008,
[[Page 41997]]
letter from the Council to NMFS noted that these determinations
regarding stock status were based upon erroneous methods. NMFS noted
this error and subsequently made corrections[t3] to the methods and
revised the characterization of the pollock stock status as approaching
an overfished condition, but still likely subject to overfishing
(October 3, 2008, NMFS letter to the Council). The stock status
determination was revised a third time in order to incorporate the most
recent scientific information (fall 2008 trawl survey data), which
again characterized the pollock stock as overfished and subject to
overfishing (February 6, 2009, NMFS letter to the Council).
Due to the high uncertainty of the determination of pollock stock
status (as noted in the GARM III stock assessment conclusions), the
NMFS Northeast Fisheries Science Center, in conjunction with the
Northeast Region Coordinating Council, which provides advice on the
scheduling and prioritization of stock assessments, agreed to schedule
another pollock stock assessment in 2010. In addition, the Council's
Scientific and Statistical Committee (SSC) recommended that pollock
should be reassessed as soon as possible so that they may have a more
reliable basis for any projections and catch advice. The 2010 pollock
benchmark stock assessment was scheduled as soon as practicable, after
considering the availability date of pertinent data, and other
constraints.
The pollock peer reviewed benchmark stock assessment review (SAW
50) was completed during the first week of June 2010, and the final
summary report was completed on July 14, 2010. The conclusions in this
report indicate that overfishing is not occurring, the stock is not
overfished, and the stock is rebuilt. Based on this information, the
estimates for spawning stock biomass size and fishing mortality in 2009
are 196,000 mt (2.2 times Bmsy proxy) and 0.07 (28 percent
of Fmsy), respectively.
NMFS policy guidelines for the use of emergency rules (62 FR 44421;
August 21, 1997) specify the following three criteria that define what
an emergency situation is, and justification for final rulemaking: (1)
The emergency results from recent, unforeseen events or recently
discovered circumstances; (2) the emergency presents serious
conservation or management problems in the fishery; and (3) the
emergency can be addressed through emergency regulations for which the
immediate benefits outweigh the value of advance notice, public
comment, and deliberative consideration of the impacts on participants
to the same extent as would be expected under the normal rulemaking
process. NMFS policy guidelines further provide that emergency action
is justified for certain situations where emergency action would
prevent significant direct economic loss, or to preserve a significant
economic opportunity that otherwise might be foregone.
The new information from the pollock benchmark stock assessment
considered to be a ``recently discovered circumstance,'' which, in the
context of the current FMP and low pollock catch limits specified for
FY 2010, has been determined by NMFS to represent an emergency
situation. This circumstance is the results of the recently conducted
assessment of pollock, which significantly revises the status of this
stock. Although the new assessment has been ongoing for a number of
weeks, it was not possible to have predicted its final outcome; nor
could the results have been expedited due to the need to convene the
necessary scientists, several of whom are not affiliated with NOAA, to
complete the assessment and its peer review.
The emergency presents serious conservation and management problems
because the low catch limits for pollock could result in substantially
reduced fishing effort and decreased catch and revenue especially in
light of the multiple species included in the fishery. When the
projected catch of the ACL for a single stock such as pollock triggers
a reduction or cessation of fishing effort (as required by the FMP for
common pool and sector vessels, respectively), numerous other stocks
that are caught concurrently with pollock may also be reduced.
NMFS has determined that the current situation meets the criteria
for emergency action. Because this is a Secretarial emergency action,
not a Council action, the involvement of the SSC in the specification
of ABC is not specifically required, although the emergency rule must
still be consistent with the best scientific information available.
Although NMFS could wait for the SSC to consider the new assessment,
the time necessary to complete such a process would unduly delay the
possibility of meeting the emergency exigencies of this matter. Due to
the urgency of this issue, NMFS has relied upon the Amendment 16
control rule for ABC established by the SSC to ensure consistency with
the SSC's most recent advice concerning the appropriate level of ABC.
Specifically, the control rule states that for most stocks, including
pollock, the ABC should be determined as the catch associated with 75
percent of Fmsy, or the catch associated with fishing
mortality that meets the rebuilding requirements (whichever is lower).
The duration of this action is limited by the Magnuson-Stevens Act to
180 days, however NMFS will re-evaluate the status of the fishery at
the end of the 180 days and may extend this action in order to make the
catch limits effective for the duration of the fishing year (through
April 30, 2011), consistent with the authority in the Magnuson-Stevens
Act to extend emergency actions for up to an additional 186 days.
Based upon the stock assessment results, NMFS is revising the stock
Status Determination Criteria for pollock. The revised biomass target
parameter (Bmsy proxy) is SSB msy (40 percent Maximum
Spawning Potential (MSP)) (91,000 mt); and the maximum fishing
mortality threshold is the Fmsy proxy (F 40 percent MSP) (0.25).
The revised pollock catch limits are contained in Tables 1 and 2
below. Consistent with the FMP, the incidental catch TAC is divided
between the Regular B DAS Program (84 percent) and the Closed Area I
Hook Gear Haddock Special Access Program (14 percent).
Table 1. Revised Pollock Catch Levels for FY 2010
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Current Revised
Pollock Catch Limit Specification (mt) Specification
FW 44 Adjustment (mt)
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OFL of Catch 5,084 25,200
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ABC 3,293 19,800
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State Waters ACL subcomponent 200 1,188
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Other ACL subcomponent 200 1,188
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Groundfish sub-ACL 2,748 16,553
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Sector sub-ACL 2,686 16,178
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Common Pool sub-ACL 62 375
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Incidental Catch TAC 1.24 7.5
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Table 2. Pollock ACE by Sector (mt)
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Current ACE (mt) FW Revised
Sector 44 Adjustment ACE (mt)
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Fixed Gear 214 1,290
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[[Page 41998]]
NCCS 12 73
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NEFS 2 338 2,034
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NEFS 3 202 1,218
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NEFS 4 155 934
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NEFS 5 11 68
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NEFS 6 88 529
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NEFS 7 21 124
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NEFS 8 18 106
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NEFS 9 105 632
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NEFS 10 40 239
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NEFS 11 255 1, 533
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NEFS 12 1 9
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NEFS 13 61 364
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Port Clyde Community 117 707
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Sustainable Harvest 1,047 6,309
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Tri-State 2 9
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Total 2,686 16,178
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All ACE values for sectors assume that each sector member has a valid
permit for FY 2010.
NCCS: Northeast Coastal Communities Sector; NEFS: Northeast Fishery
Sectors
An environmental assessment (EA) was prepared that analyzes the
impact of the revised pollock catch limits for the duration of a year,
and compares the impact to the current catch limits specified for FY
2010 (i.e., the No Action Alternative). The revised level of pollock
catch is consistent with sustaining the pollock biomass over the long-
term at the level associated with maximum sustainable yield
(Bmsy) and fishing at a sustainable level of mortality
(Fmsy). Both scientific and management uncertainty are
accounted for in this catch level, so the risks of negative biological
impacts have been minimized. The revision to the FY 2010 pollock catch
limits contained in this rule may result in the catch of a
substantially greater amount of pollock than under the No Action
Alternative. The larger catch limit for pollock may result in greater
fishing effort and greater catch of other stocks in addition to
pollock, as compared to the current pollock catch limits, because it is
not likely that pollock will serve as a constraining stock. The
increased pollock catch limit is specified in the context of the FMP,
which currently authorizes the NMFS NE Regional Administrator to adjust
trip limits in-season to prevent the ACL from being exceeded or to
facilitate additional catch.
Due to the increased amount of pollock catch allowed under this
emergency action, the increased pollock ACL represents an increase of
potential revenue of $15 million, assuming recent average prices for
pollock, and assuming that the full ACL for pollock will be harvested.
This estimate of pollock revenue is likely high, given the level of
recent pollock landings. The primary economic benefit of the revised
ACL is expected to be associated with reducing the likelihood that an
accountability measure would be triggered for the common pool and for
sectors. The triggering of accountability measures would have reduced
or precluded access to other stocks and the associated revenue.
Even with a total increase in the revised sector specifications of
13,492 mt of pollock, two sectors, NEFS 2 and NEFS 11, will still be
left with less pollock ACE than the amount landed by the collective
sector membership during FY 2008. That is, even though the revised
aggregate pollock ACE is higher than the FY 2008 landings, the ACE for
these ectors is still lower than the sector members' FY 2008 combined
pollock landings. However, the deficit for the NEFS 2 sector may be
readily overcome, since the operations plan for NEFS 4, which would
receive an ACE of over 2 million lb (934 mt), states that NEFS 4 will
be a lease-only sector in order to provide additional ACE to NEFS 2 and
NEFS 3. The regulations would also allow NEFS 11 to lease additional
ACE. With[t9] respect to the impact of the revised pollock catch limit
on individual members of sectors, approximately 16 percent of permits
that joined a sector and that had a non-zero pollock Potential Sector
Contribution, will still have less pollock than they landed during FY
2008.
The Council is considering revising pollock catch limits for FY
2011 and 2012 through a future rulemaking.
Classification
NMFS has determined that this rule is necessary to respond to an
emergency situation and is consistent with the Magnuson-Stevens Act and
other applicable law.
The Assistant Administrator for Fisheries, NOAA, finds it
impracticable and contrary to the public interest to provide for prior
notice and opportunity for the public to comment, or to delay for 30
days the effective date of this emergency regulation, under the
provisions of section 553(b) and (d) of the Administrative Procedure
Act. As more fully explained above, the reasons justifying promulgation
of this rule on an emergency basis make solicitation of public comment
or a delay in effectiveness contrary to the public interest. This
action would result in the benefit of the revenues associated with
larger pollock catch limits. This action could not allow for prior
public comment because the scientific review process and determination
could not have been completed any earlier due to the inherent time
constraints associated with such process.
If this rulemaking was delayed to allow for notice and comment and
a 30-day delay in effectiveness, the current quota for some sectors
could be exceeded, which could result in triggering restrictive and
economically harmful management actions that otherwise could have been
avoided. The time necessary to provide for prior notice, opportunity
for public comment, and delayed effectiveness for this action may
prevent some vessels from targeting pollock, or could severely curtail
fishing operations if the current ACL is reached prior to
implementation of the increased catch limit. In the interest of
receiving public input on this action, the revised assessment upon
which this action was based is made available to the public, and this
action requests public comments on that document and the provisions in
this rule.
This emergency rule has been determined to be not significant for
purposes of E.O. 12866.
This rule is exempt from the procedures of the Regulatory
Flexibility Act to prepare a regulatory flexibility analysis because
the rule is issued without opportunity for prior public comment.
Authority: 16 U.S.C. 1801 et seq.
Dated: July 14, 2010
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
[FR Doc. 2010-17693 Filed 7-15-10; 4:15 pm]
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