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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 648
          - [Docket No. 0910051338-0151-02]
          - RIN 0648-XY20

# AGENCY:

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

# ACTION:

Temporary rule; request for comments.

# SUMMARY:

                        This action implements a differential Days-at-Sea (DAS) counting                               ( print page 53872)                            factor of 2.0 to Category A DAS for Northeast (NE) multispecies vessels fishing under common pool regulations for the 2010 fishing year (FY) when fishing in the Inshore Gulf of Maine (GOM) Differential DAS Area, the Offshore GOM Differential DAS Area, the Inshore Georges Bank (GB) Differential Area, and the Offshore GB Differential Area. Vessels may transit the GOM and GB Differential DAS Areas without being charged the differential DAS rate, provided their gear is properly stowed according to the regulations. This action also implements a zero possession limit for witch flounder. The purpose is to decrease the likelihood that catch (landings and discards) of white hake and GOM cod will exceed the subcomponent of the annual catch limit (ACL) allocated to the common pool during FY 2010 (May 1, 2010 through April 30, 2011). Because witch flounder has already exceeded its sub-ACL, this action attempts to minimize additional overharvest by reducing the possession limit to zero. This action is taken under the authority of the regulations implementing Amendment 16 and Framework Adjustment 44 (FW 44) to the NE Multispecies Fishery Management Plan (FMP) and authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA).                    

# DATES:

Effective September 2, 2010, through April 30, 2011. Comments must be received no later than October 4, 2010.

# FOR FURTHER INFORMATION CONTACT:

Tom Warren, Fishery Policy Analyst, (978) 281-9347, fax (978) 281-9135.

# SUPPLEMENTARY INFORMATION:

The NE Multispecies FMP regulations governing the fishing effort control program for NE multispecies limited access vessels and the possession limits for all NE multispecies vessels include measures designed to prevent the ACLs specified for the common pool fishery from being exceeded (or under-harvested). Such measures authorize the Administrator of the Northeast Region NMFS (Regional Administrator) to make inseason adjustments to trip limits and/or inseason adjustments to differential DAS counting (§§ 648.86(o) and 648.82(o), respectively). Specifically, the Regional Administrator must project the catch of regulated species and ocean pout and determine whether the catch will exceed any of the sub-ACLs specified for common pool vessels. Based on such projections, if the catch will exceed or underharvest the common pool sub-ACLs, the Regional Administrator may, at any time during the FY, implement a differential DAS counting factor to all Category A DAS within the pertinent stock area(s), and/or adjust trip limits.

For FY 2010, the common pool sub-ACLs for all stocks, including witch flounder, and GOM cod, were specified by the final rule implementing Framework Adjustment (FW) 44 (75 FR 18356, April 9, 2010) to the FMP, and modified by a subsequent rule (75 FR 29459, May 26, 2010).

Since the start of FY 2010 (May 1, 2010), NMFS has monitored the common pool catch closely, and the Regional Administrator authority has been utilized several times to make inseason adjustments as necessary to reduce catch rates in order to prevent catch from exceeding sub-ACLs. Specifically, NMFS reduced the trip limits applicable to the common pool for GOM winter flounder, GOM haddock, GB haddock, GB winter flounder, and GB yellowtail flounder on May 27, 2010 (75 FR 29678; May 27, 2010). On July 30, 2010, a reduction in trip limits for GOM cod and a gear restriction for vessels fishing in the U.S./Canada Management Area were implemented in order to prevent the catch of GOM cod and GB yellowtail flounder by common pool vessels from exceeding their sub-ACLs (75 FR 44924; July 30, 2010). On August 6, 2010 (75 FR 48613; August 11, 2010), NMFS implemented a trip limit for witch flounder, removed the trip limit for pollock, and corrected the GOM cod trip limit applicable to vessels with a Handgear A permit in order to optimize catch for those stocks.

On August 19, 2010, NMFS determined that the catch of witch flounder, GOM cod, and white hake were 101 percent, 87 percent, and 47 percent of their respective sub-ACLs. Prior to this most recent catch report, NMFS conducted catch projections completed on August 11, 2010. These projections indicated that, by the end of FY 2010 (April 30, 2011), the catch of witch flounder, GOM cod, and white hake will be approximately 177 percent, 196 percent, and 205 percent of their respective sub-ACLs, if no action is taken to slow catch rates.

Because the catches of multiple stocks are projected to exceed their sub-ACLs, and inseason trip limits for GOM cod, GOM winter flounder, and witch flounder have already been implemented, this action implements DAS adjustments to further reduce catch rates so that sub-ACLs will not be exceeded. Additionally, because witch flounder has already exceeded its sub-ACL, this action implements a zero possession limit for the remainder of the FY for that stock.

Current catch estimates indicate that a relatively high percentage of the sub-ACLs have been caught during the first quarter of the fishing year, with only a fraction of the available DAS allocations used (approximately 30 percent). Considerable additional fishing effort is possible during the remainder of the FY which could result in exceeding the sub-ACLs, without these actions being taken.

The Magnuson-Stevens Act and the NE Multispecies FMP require that catch levels not be exceeded. Given the high catches early in the FY, as well as the difficulty in predicting future fishing behavior under Amendment 16 measures, effort reductions are necessary in specific areas at this time to ensure the sub-ACLs are not exceeded. Furthermore, overharvest of a sub-ACL would result in the implementation of accountability measures at the start of FY 2011. NMFS will continue to closely monitor the fishery and further adjust (increase or decrease) trip limits and DAS counting rates if available data and projections indicate that the sub-ACLs will be underharvested or overharvested. 

This action implements a differential DAS counting rate of 2.0 to the Inshore GOM Differential DAS Area, Offshore GOM Differential DAS Area, Inshore GB Differential DAS Area, and Offshore GB Differential DAS Area. These areas were selected from among the five possible Differential DAS Areas defined in Amendment 16, to reflect both the location of the catch of the stocks targeted by this action, as defined in the regulations, as well as the location of the recent catches. The regulations implementing Amendment 16 state that the Offshore GOM, Inshore GB, and Offshore GB Differential DAS Areas are the pertinent areas with respect to DAS adjustments designed to affect witch flounder. The Inshore GOM Differential DAS Area is the pertinent area for GOM cod; the Inshore and Offshore GOM Differential Areas, and the Inshore GB Differential DAS Area, are pertinent for white hake.

With respect to the differential DAS counting factor necessary to reduce catch, the regulations state that it will be based on the projected portion of the sub-ACL caught, rounded to the nearest tenth. Further, if it is projected that catch will simultaneously exceed the sub-ACLs for several regulated species stocks within a particular area, the Regional Administrator may implement the most restrictive differential DAS counting factor derived for the sub-ACLs exceeded within that area.
      ( print page 53873)    
The projections conducted for witch flounder, GOM cod, and white hake indicate 177 percent, 196 percent, and 205 percent of their respective sub-ACLs will be caught by the end of the fishing year without action being taken to slow catch rates. Based upon the regulations that prescribe the accounting methodology, the defined differential DAS areas, and the recent location of catch, a differential DAS counting factor of 2.0 applies to all Category A DAS used by common pool vessels within the Inshore and Offshore GOM Differential DAS Areas and the Inshore and Offshore GB Differential DAS Areas. This 2:1 DAS counting ratio is calculated to be sufficient to ensure that sub-ACLSs for white hake and GOM cod will not be exceeded. Because vessels are currently charged a full 24 hr for any day that is less than 24 hr, time fished will be first rounded up to account for a 24 hr day, to ensure the differential rate is effective in reducing effort sufficiently. For example, if a vessel fished for 13 hr in the GOM, the vessel would be charged 48 hr (i.e., 13 hr is rounded up to 24 hr, and multiplied by 2.0). If a vessel fished for 25 hr in the GOM, the vessel would be charged 96 hr (i.e., 25 hr is rounded up to 48 hr, and multiplied by 2.0). This differential DAS counting will be applied when fishing in the Inshore and Offshore GOM Differential DAS Areas and the Inshore and Offshore GM Differential Areas, based upon the first VMS position into the area, and the first VMS position outside of the area. For trips that fish both inside and outside of the areas covered by the differential DAS rate (i.e., within one of the differential DAS areas covered by the increased rate as described above, and also in the Southern New England (SNE) Differential DAS Area), the time spent fishing outside the differential areas will be counted as real time fished (time will not be rounded up to 24 hr nor will differential DAS accrue). For example, a vessel that fished for 20 hr in the GOM and 5 hr in SNE would be charged 53 hr (i.e., 20 hr (GOM) rounded up to 24 hr X 2.0 = 48; plus 5 hr (SNE) = 53 hr).

This action also allows for an exemption to the 2.0 differential DAS rate for vessels that merely transit the differential DAS areas. Thus, vessels may transit the GOM and GB Differential DAS Areas without being charged the 2.0 differential DAS rate, provided their gear is properly stowed according to the regulations at § 648.23(b). For example, if a vessel transits through the Inshore GB Differential DAS Area without fishing, and only fishes in the Offshore GB Differential DAS Area, the differential rate of 2:1 will only apply to time spent in the Offshore GB Differential DAS Area. Transiting time to and from Offshore GB Differential DAS Area would only be charged 1:1, provided all gear is stowed properly. However, should the vessel decide to fish in the Inshore GB Differential DAS Area, all time spent in the area would then be charged the 2:1 rate. This transiting provision avoids unnecessary restrictions on vessels that cannot reach fishing grounds to fish for stocks not affected by this action. Vessels must still declare all broad stocks areas (BSA) it intends to fish in prior to leaving port.

## Classification

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

Pursuant to 5 U.S.C. 553(b)(3)(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 impracticable and contrary to the public interest. The regulations at §§ 648.82(o) and 648.86(o) grant the Regional Administrator the authority to implement adjustments to NE multispecies differential DAS counting and modifications to trip limits respectively, to prevent over-harvesting or under-harvesting the common pool sub-ACLs. This action will implement a more restrictive DAS counting rate in the GOM and GB in order to ensure that the common pool sub-ACLs for GOM cod and white hake are not overharvested, and the biological and economic objectives of the FMP are met. Differential DAS, as well as a zero possession limit for witch flounder, help to prevent the sub-ACL for this stock from being further exceeded.

It is important to take this action immediately because, based on current data and projections, continuation of the status quo will result in exceeding at least some of the common pool sub-ACLs prior to the end of the fishing year. Attainment of any of the common pool sub-ACLs in FY 2010 would trigger accountability measures for the common pool in FY 2011. These future restrictions could result in the loss of yield of other valuable species caught by vessels in the common pool.

The updated catch information that is the basis for this action only recently became available. The time necessary to provide for prior notice and comment, and delayed effectiveness for this action, would prevent NMFS from implementing necessary restrictions in a timely manner. A resulting delay in the curtailment of catch rate of these stocks could result in less revenue for the fishing industry and be counter to the objective of achieving optimum yield. 

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

Dated: August 30, 2010.

Carrie Selberg,

Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

[FR Doc. 2010-21986 Filed 8-30-10; 4:15 pm]

BILLING CODE 3510-22-S