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 Department of Commerce National Oceanic and Atmospheric Administration 50 CFR Part 648
[Docket No. 0910051338-0403-04]
RIN 0648-AY29
 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
 ACTION: Temporary final rule; adjustment to specifications.
 SUMMARY: Final catch data for the 2009 fishing year (FY) (May 1, 2009-April 30, 2010) indicate that the total catch of Georges Bank (GB) yellowtail flounder was 1,770 mt, exceeding the 1,617 mt FY 2009 Total Allowable Catch (TAC) by 153 mt. The regulations require that any overage of the GB yellowtail flounder TAC specified for the common pool, individual sectors, or the scallop fishery in one FY be subtracted from the respective TACs in the following FY. Therefore, NMFS hereby announces deductions to the FY 2010 GB yellowtail flounder TAC, including how the deduction will be divided between the annual catch limit (ACL) for common pool vessels (common pool sub-ACL), and the ACL for sector vessels (sector sub-ACL).
 DATES: Effective September 7, 2010 through April 30, 2011.
 FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Policy Analyst, (978) 281-9341.


SUPPLEMENTARY INFORMATION: The TACs for Eastern GB cod, Eastern GB haddock, and GB yellowtail flounder in the U.S./Canada Management Area were published in the 
                    **Federal Register**
                     on April 9, 2010 (75 FR 18356) as part of the Framework Adjustment 44 (FW 44) final rule. That action established the FY 2010 U.S. TACs of GB cod, haddock, and yellowtail flounder at 338 mt, 11,988 mt, and 1,200 mt, respectively, and specified that, should an analysis of the catch by U.S. vessels indicate that an overage occurred during FY 2009, the pertinent TAC would be adjusted downward in order to be consistent with the FMP and the U.S./Canada Resource Sharing Understanding (Understanding). The regulations at § 648.85(a)(2)(ii) require that “any overages of the GB cod and GB haddock TACs specified for either the common pool or individual  sectors, or any overages of the GB yellowtail flounder TAC specified for the common pool, individual sectors, or the scallop fishery * * * that occur in a given fishing year will be subtracted from the respective TAC in the following fishing year.” The final annual catch analysis cannot be completed until about 1 month into the following FY because of the need to include any late reports from vessels and dealers. Therefore, any required TAC adjustment must be made during the FY following the FY in which the overage occurred. Based upon vessel reports, dealer reports, and other information available as of June 8, 2010, the total estimated catch of GB yellowtail flounder in the U.S./Canada Management Area during FY 2009 was 1,770 mt. This exceeds the overall FY 2009 GB yellowtail flounder TAC of 1,617 mt by 153 mt. Therefore, an overage of 153 mt of GB yellowtail flounder must be subtracted from the overall FY 2010 U.S./Canada GB yellowtail flounder TAC through this action. This results in an adjusted overall TAC of 1,047 mt for FY 2010 for GB yellowtail flounder. The Eastern GB cod and haddock TACs were not exceeded in FY 2009. Therefore, these two TACs are not adjusted.
                    ( print page 55287) The current regulatory provision requires that the reduction in the GB yellowtail flounder TAC be applied to the common pool, individual sectors, and scallop TACs, based on any overages in the previous year's TACs for each of these three components of the fishery. In FY 2009, however, with the exception of a bycatch TAC allocation to the scallop fishery, there was only an overall TAC allocated to the groundfish fishery, with no specific allocation to the common pool or individual sectors. Therefore, although there is a requirement to reduce this year's GB yellowtail flounder TAC by last year's overall overage, there is no specific regulatory provision describing how to allocate the reduction among these three components in this FY. (This is relevant to this FY only.) This action implements the required reduction and, pursuant to the agency's general regulatory authority under section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1855), creates an ad hoc method to prorate this reduction between the common pool and individual sectors based on the percentages of TAC allocated to the common pool and individual sectors for FY 2010. The FW 44 final rule set the FY 2010 GB yellowtail flounder ACL subcomponent for the scallop fishery to account for 100 percent of the anticipated GB yellowtail flounder bycatch in that fishery. Therefore, there is no rational basis to reduce scallop bycatch allocation this year. Implementing this method for allocating the reduction in TAC between the common pool and individual sectors is necessary to ensure consistency with the intent of Amendment 16 and FW 44. To understand how the reduction is to be prorated it is necessary to describe how the allocation of TACs among the various components of the fishery is done. For transboundary managed stocks, the Acceptable Biological Catch (ABC) is equivalent to the U.S. portion of the TAC negotiated under the Understanding. The total ACL (or TAC) is set lower than the ABC to account for management uncertainty. For yellowtail flounder, the total ACL (or TAC) is subdivided into sub-ACLs (or TACs) for the groundfish fishery (sectors and common pool) and other ACL subcomponents, including an allocation to account for bycatch in the scallop fishery, and bycatch in other fisheries. The sector sub-ACL is further divided into Annual Catch Entitlement (ACE) values (or TACs) for each of the 17 NE multispecies sectors. The 17 sector ACEs that constitute the sector sub-ACL for FY 2010 were initially published on April 9, 2010 (75 FR 18113), in the sector final rule. These common pool and sector allocations were subsequently modified by a rule published on May 26, 2010 (75 FR 29459), to adjust for final sector membership rosters. The percentage allocations of TACs to these sub-ACLs and ACEs form the basis for prorating the reduction dictated by the 2009 FY's overage. Table 1 contains the new values for the ABC, ACL, sub-ACLs, and ACL subcomponents for GB yellowtail flounder implemented by this action. Table 2 contains details of the adjustments to each of the 17 sector's ACEs for GB yellowtail flounder as a result of this action. Table 1—GB Yellowtail Flounder ABC, ACL, sub-ACL, and ACL Subcomponents for FY 2010 (mt)
Previous
                             value
New
                             valueABC
1,200
1,047Total ACL
1,170
1,021Scallop Fishery ACL Subcomponent
146
146Other ACL Subcomponents
60
52Groundfish Total ACL
964
823Sector Sub-ACL*
941
803Common Pool Sub-ACL
23
20*All sub-ACL values for sectors assume that each sector MRI has a valid permit for FY 2010.
 Table 2—GB Yellowtail Flounder ACE for Each Sector for FY 2010 (mt)*
Sector name
Previous ACE 
                             (mt)
New ACE
                             (mt)FGS
0
0NCCS
8
7NEFS 2
16
14NEFS 3
0
0NEFS 4
21
18NEFS 5
92
79NEFS 6
13
11NEFS 7
156
133NEFS 8
154
131NEFS 9
183
156NEFS 10
0
0NEFS 11
0
0NEFS 12
0
0NEFS 13
149
127PCCGS
0
0SHS
79
68TSS
70
60* All ACE values for sectors outlined in Table 1 assume that each sector MRI has a valid permit for FY 2010.George Bank Cod Fixed Gear Sector (FGS), Northeast Coastal Communities Sector (NCCS), Northeast Fishery Sectors (NEFS), Port Clyde Community Groundfish Sector (PCCGS), Sustainable Harvest Sector (SHS), and Tri-State Sector (TSS).
 FW 44 specified an incidental catch TAC for the Regular B Days-at Sea (DAS) Program, equivalent to 2 percent of the GB yellowtail flounder common pool sub-ACL. As a result of the adjustment to the common pool sub-ACL, this incidental catch TAC is reduced from 0.47 mt to 0.40 mt. Classification This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866. Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), the Assistant Administrator finds 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 unnecessary, impractical, and contrary to the public interest. Any delay in this action to allow for prior public comment could result in overharvest of the new GB yellowtail flounder allocation by a sector or the common pool. Such an overage would result in closure of the Eastern U.S./Canada Area, and zero possession of GB yellowtail flounder for the affected group and, therefore, loss of opportunities to fish for other stocks. Further, the regulations at § 648.85(a)(2)(ii), which were subject to prior public comment, require that any overage of the TAC for GB yellowtail flounder be deducted from the TAC in the following FY. Accordingly, the action being taken by this temporary rule is non-discretionary. Since this is a non-discretionary action, based on numerous records solely in the possession of NMFS, public comment would not serve to inform the agency calculation of the overage and its deduction from the appropriate TAC. The rate of harvest of GB yellowtail flounder by groundfish vessels and scallop vessels fishing in the Scallop Access Areas in the U.S./Canada Management Area, as reported from Vessel Monitoring Systems, is updated weekly on the Internet at 
                    *http://www.nero.noaa.gov*. Accordingly, the public is able to obtain information that would provide at least some advance notice of a potential action as a result of a GB yellowtail flounder TAC being exceeded during FY 2009. Further, the potential that one or more of the FY 2009 TACs for the U.S./Canada stocks could be exceeded, and therefore reduce the FY 2010 TAC, was considered and 
                    ( print page 55288)
                    open to public comment during the proposed rule stage of FW44. Authority:
                    16 U.S.C. 1801 
                        *et seq.* Dated: September 3, 2010. Eric C. Schwaab, Assistant Administrator for Fisheries, National Marine Fisheries Service.


[FR Doc. 2010-22634 Filed 9-7-10; 4:15 pm] BILLING CODE 3510-22-P