Daily Rules, Proposed Rules, and Notices of the Federal Government
Amendment 16 to the Northeast (NE) Multispecies Fishery Management Plan requires that a catch overage of a sub-annual catch limit (sub-ACL) or total ACL, triggers an accountability measure (AM) for common pool vessels in the distinct Differential DAS Area where each stock is predominantly caught. The AM is a differential DAS adjustment to all Category A DAS used by common pool vessels, and is applied to the time spent in the applicable DAS counting area where a vessel fishes. The AMs account for the percentage by which the sub-ACL or total ACL is exceeded, and are meant to prevent overages of future catch levels. For example, an overage of the Atlantic halibut sub-ACL requires a differential DAS rate adjustment to be applied to common pool vessels fishing in the area(s) that past catch information shows the majority of the Atlantic halibut is caught. The AM regulation at 50 CFR 648.82(n) also requires applying an additional differential DAS counting factor in an area for a specific stock if the sub-ACL is exceeded again in a subsequent year, to account for both year's overages. For example, if the sub-ACL for Georges Bank (GB) winter flounder was exceeded in FY 2010 by 60 percent and triggered a differential DAS adjustment (1.6) in FY 2011, and the sub-ACL was exceeded again in FY 2011 by 30 percent (requiring a 1.3 differential), then in FY 2012, a differential DAS rate of 2.1 (1.6 × 1.3) would be applied.
Final FY 2011 sector and common pool catch information became available in June 2012. This information showed that in the commercial groundfish fishery (sector and common pool only), the sub-ACL for Atlantic halibut was exceeded by 29 percent. This requires NMFS to implement a differential DAS rate of 1.3 in the Offshore Gulf of Maine (GOM) and the Inshore GB Differential DAS areas as an AM for Atlantic halibut.
Final FY 2011 sector and common pool catch information shows that the sub-ACL for northern windowpane flounder was exceeded by 42 percent. The northern windowpane flounder overage occurred despite a differential DAS rate of 1.3 applied in FY 2011 due to an overage in FY 2010 of 27 percent. As a result, NMFS is required to implement a differential DAS rate of 1.8 (1.3 × 1.4) in the Offshore GB Differential DAS Area as a result of the consecutive FY 2010 and 2011 overages of northern windowpane flounder.
In addition to the commercial groundfish fishery information, NMFS has preliminary FY 2011 catch estimates for other components of the groundfish fishery, i.e., exempted fisheries, non-groundfish vessels (e.g., scallop vessels), and state-only permitted vessels. Based on these preliminary estimates of the other components of the groundfish fishery and final FY 2011 sector and common pool catch information, the total ACL for southern windowpane flounder was exceeded by 135 percent. This overage also requires a differential DAS adjustment for common pool vessels fishing in the area where the stock is predominantly caught. Therefore, a differential DAS rate of 2.4 will be applied to common pool vessels fishing in the Southern New England (SNE)/Mid-Atlantic (MA) Differential DAS Area as an AM for southern windowpane flounder. Further adjustments to the common pool differential DAS rate are possible based on final 2011 catch information for other components of the groundfish fishery.
The regulations allow each sector to carry over into the following fishing year up to 10 percent of its initial allocation for all but one groundfish stock. ACE for GB yellowtail flounder cannot be carried over because catch levels for this stock are set each year by the U.S./Canada Resource Sharing Understanding. In addition, although the New Hampshire and Maine Permit Banks are allocated ACE for each FY, they are not eligible to carry over any amount of uncaught ACE. The following tables show the carryover for each Sector for FY 2011 based on final catch data.
This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA (AA) finds good cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive prior notice and opportunity for public comment on these in-season DAS Differential and ACE carryover adjustments. Delay in the adjustments' effectiveness is impracticable, unnecessary, and contrary to the public interest and could hamper a fisherman's ability to make business decisions. Plus, the public has already been provided with an opportunity for notice and comment on potential adjustments, including the basis for such adjustments.
Notice and comment are impracticable, unnecessary, and contrary to the public interest. A delay implementing adjustments based on this information would prolong the time period that the fishery would be operating under a less restrictive differential DAS rate and could subject the vessels to FY 2012 overages, which would require even more restrictive AMs next year. Also, ACE carryover amounts may increase fishing opportunities available to each sector for FY 2012 or affect a sector's trading decisions for available ACE.
Common pool fishermen and sectors adjust their fishing plans based on available DAS and ACE. Delaying the effectiveness of the DAS Differential adjustments could hamper a common pool fisherman's ability to make effective business decisions based on the number of DAS available to them. Likewise, a delay in the ACE carryover adjustments for sectors could disrupt sector operations and prevent sectors from planning for the fishing year based on the amount of ACE available to them in FY 2012. FY 2011 ACE carryover may increase fishing opportunities available to each sector in FY 2012, especially if a sector has a small allocation for particular stocks. A delay in this action could result in foregone fishing opportunities during summer months when weather conditions are generally better. Because ACE may be traded between sectors, a delay in this action could also affect the ACE available to the market for trading, to the economic detriment of the fishery.
Lastly, a delay for prior opportunity for public comments is unnecessary and impracticable because the public was provided the opportunity to comment on the possibility of the anticipated adjustments, including the basis for such adjustments. Both the Framework Adjustment 47 final rule and the FY 2012 adjustment rule based on final sector rosters indicated that future adjustments may be made based on updated FY 2011 catch information and final sector rosters. Additionally, the Amendment 16 final rule indicated that differential DAS may be adjusted as an AM for the Common Pool. NMFS is making these adjustments now because FY 2011 catch information and sector final rosters only recently became available.
For the same reasons stated above, the AA finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness so that this final rule may become effective upon filing. Waiving this delay in effectiveness will help fishermen avoid exceeding FY 2012 catch limits. Finally, implementing this exemption as early as possible will provide fishermen and sectors the flexibility to strategize and adjust their plans for the remainder of the fishing year.
16 U.S.C. 1801