January 24, 2013 — NOAA Fisheries Northeast Regional Administrator John Bullard has responded to Captain Paul Howard, Executive Director of the New England Fishery Management Council, regarding his December 28,2012, letter requesting that the Secretary of Commerce issue an interim action to reduce but not end overfishing on Gulf of Maine (GOM) cod and GOM haddock in fishing year (FY) 2013.
Based on their review of their previous determination that the use of interim measures under Section 304(e)(6) of the Magnuson-Stevens Act (MSA) is limited to one year and that overfishing must be ended for FY 2013, and the advice of NOAA General Counsel, they have determined that there is no legal basis to change last year's determination, meaning that an interim action for GOM cod would not be justified at this time. They have also concluded that reducing rather than ending overfishing on GOM haddock under the same provision in the MSA is not justified.
The following are highlights from the letter:
GULF OF MAINE COD
We are bound by what the law says, not what it does not say and§ 305(c) is clear on its face that interim rules are limited to no more than 366 days. It continues to be our position, therefore, that to be consistent with the plain meaning of relevant provisions in the MSA, and in light of the clear mandate of the MSA to end overfishing, a second year of interim measures in the case of GOM cod is not justified unless a change in circumstances has created a new emergency situation that would permit such action. At this time there are no new circumstances that would give rise to a new set of interim measures.
GULF OF MAINE HADDOCK
GOM haddock is already governed by Annual Catch Limits (ACLs) and an Acceptable Biological Catch (ABC) control rule that the Council implemented through Amendment 16. Moreover, the 2012 ACLs may allow overfishing in light of updated assessment information on this stock which became available too late to be incorporated into Framework 47. So, in effect, GOM haddock has already had one year of interim measures that allow overfishing. Based on this analysis we have determined that an interim action to allow another year of overfishing would not be justified for GOM haddock.
SOUTHERN NEW ENGLAND / MID-ATLANTIC WINTER FLOUNDER
The Council also passed a motion at its December 20, 2012, meeting to request a new ABC for SNE/MA winter flounder from the Council's Scientific and Statistical Committee (SSC) based on a new management strategy for this stock for FY 2013.
The Council established the current SNE/MA winter flounder rebuilding strategy through Amendment 16, when it was determined that SNE/MA winter flounder would not rebuild by 2014, even in absence of all fishing mortality. Through Amendment 16, the Council implemented management measures that would end overfishing and get the fishing mortality rate as close to zero as practicable.
Because the Council's rebuilding strategy to date has been to get the fishing mortality rate as close to zero as practicable, a higher fishing mortality rate would not be consistent with the existing rebuilding program for this stock. If the Council wishes to implement a higher fishing mortality rate for this stock in FY 2013, it must revise the SNE/MA winter flounder rebuilding program to begin in FY 2013 and implement catch limits consistent with the new rebuilding plan.
CARRYOVER
The current groundfish carryover program that allows a sector to carry over up to 10 percent of its allocation on an annual basis, although previously approved, may not be consistent with recently received national policy guidance, the ACL requirements of the National Standard 1 Guidelines, and the MSA. On the other hand, to prohibit carryover completely if it exceeds potential FY 2013 ACLs may undermine the safety and management benefits intended by allowing carryover from year to year. Unless, the Council or NMFS takes some additional action, the full carryover amounts will be automatically added to FY 2013 ACLs, thereby raising concerns about consistency with conservation objectives of the FMP and National Standard 1. In light of this dilemma, we are exploring whether there is a way, including through Secretarial emergency action, to allow some carryover in order to preserve safety and management benefits while still being consistent to the extent practicable with MSA requirements and national standards. Please be aware, however, that we may not be successful in identifying a way to accomplish this result. We are also aware that sectors need ample notice of any change to allowable carryover amounts in order to plan for the end of FY 2012 and for FY 20 13, and that a change so late in the year could create safety issues, as sector vessels could rush to harvest their unused allocations. We therefore intend to announce as soon as possible our decision on whether some carryover may be allowed once we have completed our analysis of this issue and our flexibility under the law. In the long term, the Council must consider revising the sector carryover program through a future Council action that would make it consistent with recent national policy guidance and the National Standard 1 Guidelines.
Read the complete letter from Administrator Bullard to Captain Howard