[Federal Register Volume 75, Number 170 (Thursday, September 2, 2010)]
[Rules and Regulations]
[Pages 53871-53873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21986]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0910051338-0151-02]
RIN 0648-XY20


Fisheries of the Northeastern United States; Northeast 
Multispecies Fishery; Modification of the Common Pool Day-at-Sea 
Accounting and Possession Prohibition for Witch Flounder

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

ACTION: Temporary rule; request for comments.

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SUMMARY: This action implements a differential Days-at-Sea (DAS) 
counting

[[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 
(Sec. Sec.  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.

[[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 Sec.  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 Sec. Sec.  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]
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