Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Specifications and Management Measures, 8306-8313 [2011-3245]
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Federal Register / Vol. 76, No. 30 / Monday, February 14, 2011 / Rules and Regulations
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 100804323–0569–02]
RIN 0648–BA03
Fisheries of the Northeastern United
States; Atlantic Mackerel, Squid, and
Butterfish Fisheries; Specifications
and Management Measures
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
This final rule implements
2011 specifications and management
measures for the Atlantic mackerel,
squid, and butterfish (MSB) fisheries.
Specifically, this action sets quotas for
the MSB fisheries, modifies the measure
that transfers Loligo squid (Loligo) quota
underages from Trimester I to
Trimesters II and III by limiting the
Trimester II quota increase to no more
than 50 percent, and revises the 72-hr
pre-trip observer notification
requirement for the Loligo fishery to
accommodate vessels departing for
multiple day trips in a week. These
specifications and management
measures promote the utilization and
conservation of the MSB resource.
DATES: Effective February 14, 2011.
ADDRESSES: Copies of supporting
documents used by the Mid-Atlantic
Fishery Management Council (Council),
including the Environmental
Assessment (EA) and Regulatory Impact
Review (RIR)/Initial Regulatory
Flexibility Analysis (IRFA), are
available from: Dr. Christopher M.
Moore, Executive Director, Mid-Atlantic
Fishery Management Council, Suite 201,
800 N. State Street, Dover, DE 19901.
SUMMARY:
The EA/RIR/IRFA is accessible via the
Internet at https://www.nero.noaa.gov.
NMFS prepared a Final Regulatory
Flexibility Analysis (FRFA), which is
contained in the Classification section
of this rule. Copies of the FRFA and the
Small Entity Compliance Guide are
available from: Patricia Kurkul, Regional
Administrator, National Marine
Fisheries Service, Northeast Region, 55
Great Republic Drive, Gloucester, MA
01930–2276, or via the Internet at
https://www.nero.noaa.gov.
Written comments regarding the
burden-hour estimates or other aspects
of the collection-of-information
requirements contained in this rule may
be submitted to NMFS, Northeast
Regional Office, and by e-mail to
OIRA_Submission@omb.eop.gov, or fax
to 202–395–7285.
FOR FURTHER INFORMATION CONTACT: Aja
Peters-Mason, Fishery Policy Analyst,
978–281–9195, fax 978–281–9135.
SUPPLEMENTARY INFORMATION:
Background
Regulations implementing the MSB
Fishery Management Plan (FMP) appear
at 50 CFR part 648, subpart B.
Regulations governing foreign fishing
appear at 50 CFR part 600, subpart F.
The regulations at §§ 648.21 and
600.516(c) require that NMFS, based on
the maximum optimum yield (Max OY)
of each fishery, as established by the
regulations, annually publish a rule
specifying the amounts of the initial
optimum yield (IOY), allowable
biological catch (ABC), domestic annual
harvest (DAH), and domestic annual
processing (DAP), as well as, where
applicable, the amounts for total
allowable level of foreign fishing
(TALFF) and joint venture processing
(JVP) for the affected species managed
under the FMP. In addition, these
regulations allow specifications to be
specified for up to 3 years, subject to
annual review. The regulations at
§ 648.21 also specify that IOY for Illex
and Loligo squid is equal to the
combination of Research Set-Aside
(RSA) and DAH, with no TALFF
specified for squid. For butterfish, the
regulations specify that a butterfish
bycatch TALFF will be specified only if
TALFF is specified for mackerel.
At its June 8–10, 2010, meeting in
New York, NY, the Council
recommended MSB specifications for
the 2011 fishing year. The Council
considered the recommendations made
by its Monitoring Committee and
Scientific and Statistical Committee
(SSC). The SSC recommends ABC. SSC
advice accounts for scientific
uncertainty regarding stock status and
biological reference points in
recommending the ABC, and the
Council relies on that ABC
recommendation to set other
specifications. In addition to 2011
specifications for each of the MSB
species, the Council recommended a
modification to the provision that
transfers Trimester I quota underages to
Trimesters II and III for the Loligo
fishery. The Council submitted these
recommendations, along with the
required analyses, for agency review on
July 19, 2010, with final submission on
September 23, 2010. A proposed rule for
the 2011 MSB specifications and
management measures was published
on November 17, 2010 (75 FR 70187),
and the public comment period for the
proposed rule ended on December 17,
2010. Details concerning the Council’s
development of these measures were
presented in the preamble of the
proposed rule and are not repeated here.
Final MSB Specifications and
Management Measures for the 2011
Fishing Year
This action implements the following
MSB specifications and management
measures for the 2011 fishing year,
which are described in detail below.
TABLE 1—FINAL SPECIFICATIONS, IN METRIC TONS (MT), FOR ATLANTIC MACKEREL, SQUID, AND BUTTERFISH FOR 2011
FISHING YEAR
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Specifications
Loligo
Max OY ....................................................................................................................................
ABC ..........................................................................................................................................
IOY ...........................................................................................................................................
DAH .........................................................................................................................................
DAP ..........................................................................................................................................
JVP ..........................................................................................................................................
TALFF ......................................................................................................................................
32,000
24,000
20,000
1 19,906
19,906
N/A
N/A
Illex
Unknown
24,000
23,328
23,328
23,328
N/A
N/A
1 Excludes
94 mt for RSA.
a 15,000-mt catch of Atlantic mackerel by the recreational fishery.
3 Excludes 5 mt for RSA.
2 Includes
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Mackerel
Unknown
47,395
46,779
2 46,779
31,779
0
0
Butterfish
Unknown
1,500
500
3 495
495
0
0
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Atlantic Mackerel
This action specifies the mackerel
ABC at 47,395 mt, based on the formula
ABC = T¥C. T, or total annual catch, is
the yield associated with a fishing
mortality rate that is equal to the target
fishing mortality rate (F). The
Transboundary Resources Advisory
Committee (TRAC) could not establish
biomass reference points or target F at
its March 2010 mackerel stock status
assessment, and recommended that total
annual catches not exceed the average
total landings (80,000 mt) over the last
3 years (2006–2008) until new
information is available. C is the
estimated catch of mackerel in Canadian
waters (32,605 mt) for the upcoming
fishing year. Thus 80,000 mt minus
32,605 mt results in the 2011 mackerel
ABC of 47,395 mt. The 2010 TRAC
assessment estimated that U.S. mackerel
discards from 2004–2008 (the most
recent years for which complete data are
available) accounted for 1.3 percent of
total catch. Thus NMFS is specifying the
mackerel IOY and DAH at 46,779 m
(ABC minus 616 mt for discards). The
DAH includes commercial harvest plus
the 15,000 mt available for the
recreational fishery.
While a surplus existed between ABC
and DAH for many years, that surplus
has disappeared due to downward
adjustments of the specifications in
recent years. Analysis of the state of the
world mackerel market and possible
increases in U.S. production levels
concluded that specifying an IOY
resulting in zero TALFF will yield
positive social and economic benefits to
both U.S. harvesters and processors, and
to the Nation. For these reasons NMFS
is specifying IOY at level that can be
fully harvested by the domestic fleet
(46,779 mt), thereby precluding the
specification of a TALFF, in order to
support the U.S. mackerel industry.
This action maintains JVP at zero. In
the past, the Council recommended a
JVP greater than zero because it believed
U.S. processors lacked the ability to
process the total amount of mackerel
that U.S. harvesters could land.
However, for the past 7 years, the
Council has recommended zero JVP
because U.S. shoreside processing
capacity for mackerel has expanded.
The Council concluded that processing
capacity was no longer a limiting factor
relative to domestic production of
mackerel, even at the higher DAP of
100,000 mt; this is even more true with
the specified DAP of 31,779 mt. The
differential between the DAH and the
DAP reflects a projection that the
recreational mackerel fishery will land
15,000 mt.
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Atlantic Squids
Loligo
This action specifies a Loligo Max OY
of 32,000 mt, an ABC of 24,000 mt, an
IOY of 20,000 mt, an RSA of 94 mt, and
a DAH and DAP of 19,906 mt. The FMP
does not authorize the specification of
JVP and TALFF for the Loligo fishery
because of the domestic industry’s
capacity to harvest and process the OY
for this fishery; therefore, there will be
no JVP or TALFF in 2011.
Distribution of the Loligo DAH
As was done in fishing years 2007
through 2010, this action allocates the
2011 Loligo DAH into trimesters,
according to percentages specified in
the FMP, as follows:
TABLE 2—TRIMESTER ALLOCATION OF
LOLIGO QUOTA IN 2011
Trimester
Percent
Metric
tons 1
8307
moratorium permit. Such vessels
intending to land more than 2,500 lb
(1.13 mt) of Loligo are now required to
notify the NMFS Northeast Fishery
Observer Program (NEFOP) at least 72
hr, but not more than 10 days before
embarking on a Loligo trip. This
adjustment is intended to reduce the
burden of this requirement for vessels
that embark on multiple trips that last
less than 24 hr during a single week by
allowing them to notify for several
upcoming trips at one time.
Illex
This action specifies the Illex ABC as
24,000 mt, and specifies IOY, DAH, and
DAP as 23,328 mt to account for
discards, which were estimated as 2.8
percent of total catch in the last
assessment. The FMP does not authorize
the specification of JVP and TALFF for
the Illex fishery because of the domestic
fishing industry’s capacity to harvest
and to process the IOY from this fishery.
Butterfish
This action specifies the butterfish
ABC at 1,500 mt, and the IOY at 500 mt,
and DAH and DAP at 495 mt.
Total ...................
100
19,906 Additionally, consistent with MSB
regulations, the Council recommended,
1 Trimester
allocation after 94-mt RQ
and this action is specifying, zero
deduction.
TALFF for butterfish because zero
For the 2010 fishing year, Trimester I
TALFF is specified for mackerel.
Loligo underages greater than 25 percent
Amendment 10 created a butterfish
of the Trimester I quota were distributed mortality cap for the Loligo fishery,
evenly between Trimesters II and III.
which is equal to 75 percent of the
The Council expressed concern that the butterfish ABC. Thus, this action sets
butterfish mortality cap on the Loligo
the butterfish mortality cap at 1,125 mt.
fishery, established in 2010 by
If the portion of the butterfish mortality
Amendment 10 to the FMP
cap allocated to Trimester I (January–
(Amendment 10) (75 FR 11441, March
April) or Trimester III (September–
11, 2010), could result in a substantial
December) is harvested, the directed
Trimester I underage if the Loligo
Loligo fishery will close for the
fishery is closed because the Trimester
remainder of that trimester.
I butterfish catch cap is reached. Under
Comments and Responses
the 2010 underage distribution scheme,
NMFS received seven comments from
this could result in a large roll-over of
industry entities: Three from the Garden
Loligo quota to Trimester II, when the
State Seafood Association (GSSA),
butterfish catch cap cannot close the
fishery. Therefore, this action limits the submitted on behalf of several fishery
organizations; one from Lund’s
roll-over of quota from Trimester I to
Fisheries, Incorporated; one submitted
Trimester II to no more than 50 percent
on behalf of Seafreeze, Ltd.; one from
of the Trimester II allocation. This
Top Catch, Inc.; and one from
adjustment will continue to prevent an
TrawlWorks, Inc. In addition, there was
underharvest of the annual quota by
one form letter submitted with
distributing the quota across the
signatures from 73 individuals. Some
remaining trimesters, while reducing
commenters identified issues that are
management uncertainty related to the
not related to this action; only
implementation of the butterfish
comments related to the proposed
mortality cap for the Loligo fishery.
specifications are responded to below.
Adjustment to the Loligo Pre-trip Trip
Comment 1: All of the industry
Notification Requirement
groups and the 73 individuals who
The action changes the 72-hr pre-trip
commented through the form letter
observer notification requirement
stated their opposition to the proposed
established through Amendment 10 for
specifications for butterfish, due to the
vessels issued a Loligo and butterfish
butterfish mortality cap specified for the
I (Jan–Apr) ................
II (May–Aug) .............
III (Sep–Dec) ............
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17
40
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8,560
3,384
7,962
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Federal Register / Vol. 76, No. 30 / Monday, February 14, 2011 / Rules and Regulations
Loligo fishery. Most of these
commenters noted that the butterfish
stock assessment results produced by
the Northeast Fisheries Science Center’s
49th Stock Assessment Workshop (SAW
49) did not include a finding that
overfishing was occurring, and did not
attribute the butterfish stock decline to
fishing mortality. All of the commenters
expressed concern about the restrictive
butterfish mortality cap, given the
uncertainty in the butterfish stock
assessment results produced by SAW
49, arguing that the uncertainty means
the level specified for the cap cannot be
justified.
All of the commenters expressed
concern that the butterfish mortality cap
will be attained, and that participants in
the Loligo fishery will be precluded
from fully harvesting the Loligo quota,
causing unnecessary economic harm to
participants in the Loligo fishery. GSSA
and Lunds both requested that NMFS
consider the potential loss of income
that will occur in Mid-Atlantic
communities. GSSA, Lunds, Top Catch,
Inc., and the form letter stated the view
that measures to regulate butterfish, a
bycatch species with a 3-year lifespan,
should not control the $50-million
Loligo fishery. TrawlWorks stated that
Loligo harvesters will be particularly
impacted if the butterfish mortality cap
is attained in the fall, and the Loligo
fishery is closed when Loligo is usually
abundant. GSSA noted that the decline
in butterfish stock abundance is
unrelated to the recent rate of Loligo
fishing, and that the economic losses
that would result from closure of the
Loligo fishery would be much greater
than any potential benefit to the
butterfish resource.
GSSA, Lunds, Top Catch, Inc., and
the form letter specifically requested
NMFS to specify the butterfish ABC at
4,445 mt, a level the commenters
claimed is justified based on the best
available science. GSSA, Lunds, and
Top Catch stated their view that this
level was identified by the SSC as a safe,
scientifically justified harvest level. The
form letter also stated that it is
unjustified to use a precautionary
approach when specifying butterfish
ABC in light of the uncertainty in the
recent assessment. The commenters
expressed the view that guesswork was
used to quantify butterfish predation
mortality. GSSA and Lunds stated their
view that the range of ABCs considered
valid by the SSC included a 25,000-mt
option that was risk-neutral; therefore,
they concluded that the ABC of 1,500
mt seems excessively precautionary.
GSSA and Lund’s pointed out that the
butterfish ABC was set at 4,545 mt in
2007, and that the reduction of ABC to
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1,500 mt in 2008 was made at a time
when no new assessment data were
available, in an effort to discourage a
directed butterfish fishery. GSSA stated
the view that SAW 49 determined that
butterfish were not overfished, nor were
they overfished in the past; therefore,
the 1,500-mt ABC is based on erroneous
information. They argued that setting
the ABC at 4,445 mt is more
scientifically sound, and appropriately
risk averse.
Seafreeze stated that the 2011
butterfish specifications violate National
Standard 1 because the butterfish quota
prevents a directed butterfish fishery
from occurring, and the butterfish
mortality cap would result in the
premature closure of the Loligo fishery.
Thus, they concluded that the butterfish
specifications will prevent the Loligo
fishery from achieving optimum yield,
in violation of National Standard 1.
Seafreeze also stated that the
specifications violate National Standard
2 because they ignore the best available
science, namely the most recent NEFSC
bottom trawl survey results. Seafreeze
claimed that the Autumn 2009 and
Spring 2010 bottom trawl surveys both
showed butterfish catches comparable
to the period from 1980–1990 when
butterfish biomass was estimated at
125,000–150,000 mt, therefore
indicating that the butterfish stock can
sustain an ABC of 20,000 mt. They
stated that, because the life span of
butterfish is about 3 years, it is
imperative to use this recent trawl
survey data. Seafreeze suggested that
NMFS should reject the proposed
specifications, reassess the butterfish
stock based on trawl survey data, and
establish a butterfish ABC that will
allow for a directed butterfish fishery.
GSSA noted that the 2004 SARC only
had abundance estimates based on
survey data from the R/V Albatross, and
that calibration exercises since that
time, that compare R/V Albatross data
with new data from the R/V Bigelow,
shows that that butterfish catch data
from the R/V Albatross were biased low.
They stated that, in their view, the SAW
49 estimated 2008 butterfish biomass of
88,800 mt would indicate that setting
the butterfish ABC at 20,000 mt will
result in no risk to the stock.
GSSA further asserted that the lack of
reference points for the butterfish stock,
the fact that butterfish predation
mortality far surpasses fisheries
mortality, and the fact that the Autumn
2010 bottom trawl survey results have
yet to be compiled, all indicate that
there is no information to inform
abundance projections for butterfish for
2011, making any management action
arbitrary and unsupported by science.
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GSSA also stated that recent
downward trends in the butterfish stock
may be due to increased predation.
They believe that, because predation
mortality is high and because Loligo
squid is a major butterfish predator,
management measures that promote the
utilization of the Loligo resource may
actually be beneficial to the butterfish
stock.
Response 1: The MSB FMP and its
implementing regulations require the
specification of the butterfish ABC, and
the resulting butterfish mortality cap.
NMFS acknowledges that SAW 49 did
not produce approved biological
reference points, and thus did not make
a formal determination that the
butterfish stock is currently overfished.
The stock assessment concluded that
fishing mortality has been declining
over time, and has been very low in
recent years. However, SAW 49 also
recommended that point estimates of
both biomass and fishing mortality
should be interpreted with caution, and
noted that the biological reference
points could not be estimated because
the stock does not appear to be at
equilibrium. It also concluded that the
stock assessment appropriately reflected
stock trends, demonstrating a
convincing long-term decreasing trend
in spawning stock biomass (SSB), with
recent biomass estimates among the
lowest in the time series.
While butterfish fishing mortality is
low, and overfishing appears not to be
occurring, the butterfish mortality cap
was designed by the Council in
Amendment 10 to minimize butterfish
bycatch in the Loligo fishery, not to
address overfishing. In addition to the
butterfish mortality cap, Amendment 10
enacted a rebuilding program for
butterfish. At the time Amendment 10
was being developed, the 2004
butterfish assessment (SAW 38)
indicated that a reduction in fishing
mortality may lead to improvements in
the butterfish stock. The analysis in
Amendment 10 noted that the butterfish
mortality cap could be a tool to limit the
portion of butterfish fishing mortality
attributable to the Loligo fishery and,
accordingly, may provide rebuilding
benefits to the stock. Though more
recent information provided in SAW 49
indicates that fishing mortality is low
compared to natural mortality, and is
likely not the driver of long-term
declines in SSB, both SAW 38 and SAW
49 did determine that butterfish
discards were equal to twice the annual
landings. Amendment 10 identified the
Loligo fishery as the predominate source
of butterfish discards. Thus,
Amendment 10 enacted the butterfish
mortality cap as a permanent measure to
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limit butterfish bycatch in the Loligo
fishery.
Though there was considerable
uncertainty in the recent assessment,
including limited information about the
causes of the butterfish stock decline,
NMFS determined that there was no
evidence presented that suggests that
the status of the butterfish stock has
improved since the 2004 SAW 38
assessment concluded that the stock
was overfished. SAW 49 reviewers
agreed that the status of the butterfish
stock could not be determined based on
the assessment. Several commenters
argued that, in their view, the cap is
overly precautionary, and that the
uncertainty in the stock assessment
results means it is inappropriate to be
precautionary. NMFS disagrees that this
is necessarily the case, and notes that
this alone is insufficient basis for an
increase to the butterfish ABC (and the
resulting butterfish mortality cap).
NMFS notes that the SSC utilized the
results of SAW 49 in making the
recommendation for the ABC specified
in this action. The alternate suggested
values for ABC were not validated or
endorsed by the SSC, as some
commenters indicated. Because of
uncertainty about butterfish stock size,
and uncertainty about the potential
response of the butterfish stock to
fishing pressure, the Council staff
generated a range of potential ABCs for
consideration by the SSC. These ranged
from 1,362 mt to 25,000 mt, and were
developed using several different
approaches. The 4,445-mt ABC (average
catch from 1996–2008) and the 25,000mt ABC (an F of 0.39 applied to a
45,000-mt stock) cited by the
commenters were included in this
range. While the SSC used this
information from Council staff, in
conjunction with SAW 49, to inform its
final ABC recommendation, the range
generated by Council staff was in no
way binding for the SSC, nor was it
endorsed by the SSC as appropriate or
scientifically justified. There is no basis
for the commenters’ contention that
these higher values are risk-averse or
risk-neutral; there is no SSC conclusion
to that effect. The SSC ultimately
recommended 1,500 mt as the 2011
butterfish ABC because available
information suggested that, provided
improved environmental conditions
affecting recruitment, the butterfish
stock size could increase in the future
if the 2011 ABC was maintained at this
level. The SSC used the best scientific
information available to it at the time it
made its recommendation.
The commenters are correct that the
butterfish ABC was set at 4,545 mt until
2007, but did not fully describe the
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reason for the reduction of the ABC to
1,500 mt for subsequent years. Though
no new stock assessment data were
available leading up to implementation
of the 2008 specifications (the action
that first set the butterfish ABC at 1,500
mt, and IOY/DAH at 500 mt), the ABC
and IOY were reduced to cap the fishery
at recent levels (500 mt) to prevent any
expansion of the directed fishery of
butterfish while the stock is being
rebuilt. At that time, the Council was
developing measures for Amendment 10
to reduce butterfish discards and
rebuild the stock.
NMFS disagrees that the butterfish
specifications violate either National
Standard 1 or National Standard 2.
National Standard 1 does not require
NMFS to specify a quota that will
support a directed fishery if it is
inappropriate to the stock condition. In
fact, since 2008, the Council has
recommended, and NMFS has specified,
the butterfish quota at 500 mt to
maintain butterfish landings at low
levels due to concerns about the stock.
In addition, courts have recognized that
optimum yield is a level to be achieved
on a continuing basis and not in a single
year (see North Carolina Fisheries
Association v. Daley). The commenters
concluded that National Standard 2 is
violated because the specifications were
developed before the most recent
NEFSC bottom trawl survey results were
available. They believe that these survey
results, which obtained more butterfish
samples than in previous years, must be
incorporated into the 2011 butterfish
specifications. NMFS disagrees.
National Standard 2 requires the use of
the best available science at the point in
time that an action is being developed.
The Council’s process for developing
annual specifications for the butterfish
fishery begins in June each year, and the
Council utilized the best science
available to it at that time to develop
this action. If, in the future, new
information indicates that the butterfish
stock condition has changed, the
Council can consider that information
in the 2012 specifications process.
The results of the Autumn 2009,
Spring 2010, and Autumn 2010 NEFSC
surveys were not included in the data
used for the SAW 49 stock assessment.
NMFS notes that survey indices do not
provide a point estimate of stock size or
amount to a status determination. The
calibration-adjusted butterfish catch
rates from the Autumn 2009 and
Autumn 2010 bottom trawl surveys
were 6.4 kg/tow and 5.59 kg/tow,
respectively. Though these numbers are
about twice the average from Autumn
surveys from 1999–2008 (3.4 kg/tow), it
is not possible to determine if this
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8309
upturn constitutes a trend. NMFS notes
that the butterfish stock assessment is
not based solely on survey biomass
indices, but incorporates data sets
within a stock assessment model.
NMFS acknowledges that, if the cap is
attained before the Loligo fishery has
fully harvested the annual Loligo quota,
there could be revenue losses for some
Loligo harvesters. This possibility was
discussed in the Council’s Initial
Regulatory Flexibility Analysis (IRFA),
which assessed impacts of the proposed
measures on small businesses. That
analysis noted that, in 2009, the Loligo
fishery ex-vessel value was
approximately $18 million. It is not
possible to estimate when the Loligo
fishery might reach the cap, because
environmental conditions and fleet
behavior are likely to strongly influence
how much butterfish the Loligo fishery
encounters. If high rates of butterfish
catch occur, Amendment 10 estimated
that up to 64 percent of 2006 Loligo
revenue levels could be lost. The
analysis noted that 2007–2009 landings
were lower than in 2006, so a closure of
the Loligo fishery would likely have a
smaller impact, but concluded that a
closure related to the butterfish
mortality cap could substantially restrict
Loligo landings. The economic impacts
of the cap are further detailed in
Amendment 10. NMFS notes that the
preliminary data for Loligo in 2010
indicate that landings appear to have
decreased from 9,306 mt in 2009 to
approximately 6,714 mt in 2010. NMFS
also notes that, during the debate over
Amendment 10, some industry members
often stated they could avoid butterfish
voluntarily, and thus minimize
interactions.
Comment 2: GSSA and Lund’s both
supported setting aside 3 percent of the
mackerel IOY as RSA, but thought that
the proposed rule should have included
information about the 14 bilateral
research priorities that emerged from
the recent TRAC.
Response 2: NMFS solicited research
proposals under the 2011 Mid-Atlantic
RSA Program through the Federal
Register (75 FR 3092, January 19, 2010),
and reviewed them in an application
process that is separate from the setting
of annual specifications. The
solicitation document is the appropriate
vehicle to identify research priorities.
The distribution of RSA quota to fund
research depends both on Council
specified research priorities and on the
desire and capacity for the research
community to compete for mackerel
RSA. For the 2011 RSA Program, no
proposals requesting mackerel RSA
were approved, and thus no mackerel
RSA will be allocated through this
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action. The identification and
development of joint U.S./Canada
research priorities for mackerel is the
subject of U.S./Canada Bilateral
Fisheries Consultations and is not the
subject of this rulemaking.
Comment 3: GSSA and Lund’s
expressed concern that the proposed
mackerel specifications, which reflect
the TRAC’s recommendation that U.S.
and Canadian catch not exceed 80,000
mt, are overly conservative and will
unnecessarily reduce U.S. access to the
mackerel resource. Both organizations
are supportive of the proposed 2011
U.S. ABC of 47,395 mt as an interim
quota, given the current uncertainty in
stock status, and the method used to
derive expected Canadian catch;
however, they expressed concern that
the Canadian mackerel quota for 2011
has been specified at 60,000 mt, a value
higher than the Council expected.
Lund’s expressed concern that scientific
uncertainty has recently led to
dramatically reduced catch levels for
otherwise apparently healthy resources
like mackerel, which, until the 2010
assessment, was described as not
overfished, with overfishing not
occurring.
Both organizations supported the
Agency’s determination that both JVP
and TALFF be set at zero because there
is sufficient demand for mackerel in
world markets to create opportunities
for U.S. harvesters and shoreside
processors to utilize all of the U.S. ABC.
Response 3: Although the TRAC was
unable to establish reference points for
stock biomass and fishing mortality, the
assessment indicated reduced stock
productivity and a lack of older fish in
the survey and catch, and suggested
limiting total catch of mackerel to
80,000 mt (average U.S./Canadian
landings from 2006–2008) until new
information suggests that a different
amount is appropriate. The SSC’s advice
to the Council was consistent with this
recommendation, and NMFS has
determined that the approach reflected
in the specifications is based on the best
scientific information available.
The U.S. quota is derived from ABC
by estimating Canadian catch in 2011 at
32,605 mt. NMFS acknowledges the
commenters’ concern that the Canadian
Government has set the mackerel quota
at 60,000 mt, but does not believe it is
necessary to adjust the Canadian catch
estimate in response. While the
Canadian quota provides the
opportunity for the Canadian fishery to
increase landings substantially, NMFS
believes that the Council’s derivation
method, which is based on recent
fishery performance, provides the most
reliable estimate of 2011 Canadian
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catch. Despite the progress made in the
recent joint assessment of the mackerel
stock, there is no joint process for the
allocation of the mackerel resource, and
the United States and Canada set their
catch levels for mackerel independently.
NMFS notes that, despite the fact that
the mackerel quota allocation for 2011
(46,779 mt) is lower than the 2010
allocation of 115,000 mt, it is still
almost double the average U.S. mackerel
landings of 25,000 mt during the past
3 years (2007–2009). NMFS notes that
mackerel apparently continues to be
unavailable to the U.S. fleet, as
preliminary 2010 landings of mackerel
are approximately 10,000 mt. As a
result, the 2011 mackerel quota appears
unlikely to constrain the fishery.
Comment 4: GSSA and Lund’s both
support the proposed specifications for
Illex and Loligo squid.
Response 4: NMFS is implementing
the proposed specifications through this
final rule.
Classification
The Administrator, Northeast Region,
NMFS, determined that these
specifications are necessary for the
conservation and management of the
Atlantic mackerel, squid, and butterfish
fisheries and that it is consistent with
the Magnuson-Stevens Fishery
Conservation and Management Act and
other applicable laws.
The Assistant Administrator for
Fisheries finds good cause under 5
U.S.C. 553(d)(3), to waive the 30-day
delay in effectiveness otherwise
required by the Administrative
Procedure Act. If there is a delay in
implementing this action, NMFS will
lack the regulatory authority to issue a
closure for the Loligo fishery if the
butterfish mortality cap is attained. The
Loligo squid fishery is particularly
active during the first Trimester of the
fishing year. Given the timing of Loligo
fleet activity, and history of fishery
interactions between Loligo and
butterfish, a delay in the effectiveness of
this action is likely to result in a
situation where the Trimester I
butterfish mortality cap is exceeded.
The regulations state that any overages
of the butterfish mortality cap during
Trimester I and II will be applied to
Trimester III of the same year. If the
2011 mortality for Trimester I is
exceeded prior to the effectiveness of
this rule, this overage must be deducted
from Trimester III, and the Loligo fishery
would be closed even more prematurely
during Trimester III. This outcome
would severely limit the activity of
Loligo fishermen who participate in the
fishery during the latter portion of the
year, which would negatively impact
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these fishermen. The overall
conservation objectives of the butterfish
mortality cap will be undermined if the
mortality cap is exceeded in Trimester
I prior to the implementation of this
action.
The Council prepared an EA for the
2011 specifications, and the NOAA
Assistant Administrator for Fisheries
concluded that there will be no
significant impact on the human
environment as a result of this rule. A
copy of the EA is available upon request
(see ADDRESSES).
This action is authorized by 50 CFR
part 648 and has been determined to be
not significant for purposes of Executive
Order 12866 (E.O. 12866).
NMFS, pursuant to section 604 of the
Regulatory Flexibility Act, has prepared
a FRFA, included in the preamble of
this final rule, in support of the 2011
MSB specifications and management
measures. The FRFA describes the
economic impact that this final rule,
along with other non-preferred
alternatives, will have on small entities.
The FRFA incorporates the economic
impacts and analysis summarized in the
IRFA, a summary of the significant
issues raised by the public in response
to the IRFA, and NMFS responses to
those comments. A copy of the IRFA,
the RIR, and the EA are available upon
request (see ADDRESSES).
Statement of Need for This Action
This action proposes 2011
specifications and management
measures for MSB fisheries and
modifies existing management measures
to improve the management of MSB
fisheries. A complete description of the
reasons why this action is being
considered, and the objectives of and
legal basis for this action, is contained
in the preamble to the proposed and
final rules and is not repeated here.
A Summary of the Significant Issues
Raised by the Public Comments in
Response to the IRFA, a Summary of the
Assessment of the Agency of Such
Issues, and a Statement of Any Changes
Made in the Final Rule as a Result of
Such Comments
Eight unique comment letters were
received during the comment period on
the proposed specifications. The
comments were not specifically directed
to the IRFA, but each of the comments
expressed concern about negative
economic impacts of the proposed ABCs
for butterfish and mackerel, on small
entities. All public comments on issues
relative to the IRFA, in which
commenters expressed concern directly
and indirectly about the economic
impacts of the 2011 specifications, are
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described in the ‘‘Comments and
Responses’’ section of the preamble to
this final rule and, therefore, are not
repeated here. NMFS’s response to the
concerns about the economic impacts
associated with the butterfish mortality
cap for the Loligo fishery is provided in
Response 1; and Response 3 addresses
concerns about mackerel.
Description and Estimate of Number of
Small Entities To Which the Rule Will
Apply
Based on permit data for 2010, the
numbers of potential fishing vessels in
the 2011 fisheries are as follows: 360
Loligo/butterfish moratorium permits,
76 Illex moratorium permits, 2,156
mackerel permits, 1,844 incidental
squid/butterfish permits, and 1,844
MSB party/charter permits. There are no
large entities participating in this
fishery, as defined in section 601 of the
RFA. Therefore, there are no
disproportionate economic impacts on
small entities. Many vessels participate
in more than one of these fisheries;
therefore, permit numbers are not
additive.
Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
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This action contains a change to an
information collection previously
approved by the Office of Management
and Budget (OMB) under OMB Control
Number 0648–0601: Atlantic Mackerel,
Squid, and Butterfish Amendment 10
Data Collection. This action requires
that vessels intending to embark on
Loligo trips notify NEFOP at least 72 hr,
but no more than 10 days before their
intended departure dates. The
adjustment will also allow vessels to
submit an email address for contact.
This change did not increase the
reporting burden for these entities, and
has been approved by OMB. This action
does not duplicate, overlap, or conflict
with any other Federal rules.
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Description of the Steps the Agency Has
Taken To Minimize the Significant
Economic Impacts on Small Entities
Consistent With the Stated Objectives of
Applicable Statutes, Including a
Statement of the Factual, Policy, and
Legal Reasons for Selecting the
Alternative Adopted in the Final Rule
and Why Each One of the Other
Significant Alternatives to the Rule
Considered by the Agency Which Affect
the Impact on Small Entities Was
Rejected
Actions Implemented With the Final
Rule
The mackerel IOY specified in this
action (46,779 mt, with 15,000 mt
allocated to recreational catch)
represents a reduction from status quo
(115,000 mt). Despite the reduction, the
specified IOY is above recent U.S.
landings; mackerel landings for 2007–
2009 averaged 23,310 mt; and
preliminary landings in 2010 are
approximately 10,000 mt. Thus, the
reduction does not pose a constraint to
vessels relative to the landings in recent
years. Accordingly, no reductions in
revenues for the mackerel fishery are
expected as a result of this action.
The Loligo IOY (20,000 mt) represents
a slight increase from the status quo
(19,000 mt). Loligo landings for 2007–
2009 averaged 11,019 mt. This provides
an opportunity to increase landings,
though if recent trends continue, there
may be no increase in landings, despite
the increase in the allocation. No
reductions in revenues for the Loligo
fishery are expected as a result of this
action.
The accounting methods for Loligo
trimester underages implemented in this
action will distribute any substantial
underage in Trimester I (greater than
25 percent of the Trimester I quota)
between Trimester II and III, but will
limit the transfer of quota such that the
Trimester II quota could increase by
50 percent, at most. This method of
transferring quota may provide some
economic benefit to the fishery during
Trimesters II and III, because it will
allow access to underutilized Trimester
I quota later in the fishing year.
The change to the pre-trip observer
notification requirement implemented
in this action, which would allow
vessels to notify at least 72 hr, but no
more than 10 days prior to fishing trips,
is an administrative measure to facilitate
the placement of observers aboard the
Loligo fleet, and is intended to reduce
the burden of the notification
requirement for vessels that depart on
multiple trips in a short period by
allowing for advance notification. The
economic burden on fishery participants
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8311
associated with this measure is expected
to be minimal.
The Illex IOY (23,328 mt) specified in
this action represents a slight decrease
compared to status quo (24,000 mt).
Though annual Illex landings have been
increasing over the past 3 years (9,002
mt for 2007, 15,900 mt for 2008, and
18,419 mt for 2009), the landings were
lower than the specified level. Thus,
implementation of this action should
not result in a reduction in revenue or
a constraint on expansion of the fishery
in 2011.
The butterfish IOY specified in this
action (500 mt) represents status quo, as
compared to 2010, and represents only
a minimal constraint to vessels relative
to the landings in recent years. Due to
market conditions, there has not been a
directed butterfish fishery in recent
years; therefore, recent landings have
been low. Given the lack of a directed
butterfish fishery and low butterfish
landings, this action is not expected to
reduce revenues in this fishery more
than minimally.
As discussed in the FRFA for MSB
Amendment 10, the butterfish mortality
cap has a potential for economic impact
on fishery participants. The Loligo
fishery will close during Trimesters I
and III, if the butterfish mortality cap is
reached. If the Loligo fishery is closed in
response to butterfish catch before the
entire Loligo quota is harvested, then a
loss in revenue is possible. The
potential for Loligo revenue loss is
dependent upon the size of the
butterfish mortality cap, which is based
on the level of butterfish abundance. As
the butterfish stock rebuilds, the
mortality cap will increase, and the
potential for lost Loligo revenue should
decrease. When the butterfish stock
rebuilds, a directed butterfish fishery
could resume, provided discards are
kept low, and would have economic
benefits for fishery participants.
Alternatives to the Actions in the Final
Rule
The Council analysis evaluated two
alternatives to this action for mackerel.
Based on recent harvest levels, neither
of the ABC and IOY alternatives would
represent a constraint on vessels in this
fishery. The first alternative (status quo;
least restrictive), which would have set
the ABC at 156,000 mt and IOY at
115,000 mt, was not selected because
the ABC would have exceeded the SSC’s
recommendation.
As in the selected action
(intermediately restrictive), the second
alternative (most restrictive) started
from the SSC recommended stockwide
ABC of 80,000 mt, but instead
subtracted an estimated 41,556 mt for
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Canadian landings. This would have
resulted in a U.S. ABC of 38,444 mt, and
an IOY and DAH of 37,944 mt (U.S.
ABC minus 1.3 percent for discards).
For this alternative, expected Canadian
catch (41,556 mt) was derived by
examining the relationship between
Canadian landings in one year (e.g.,
1994) and the Canadian landings 2 years
later (e.g., 1996); this analysis was
chosen so that 2009 Canadian landings
could be used to determine expected
Canadian landings for 2011. The years
examined included 1962–2009. Though
the two landings series were found to be
strongly correlated (correlation
coefficient = 0.71), this method of
deriving expected Canadian catch (and
the resulting specifications alternative)
was not determined to be the best
approach. The landings series compared
in the method used to derive 2011
Canadian catch in the selected
alternative (U.S. landings in one year
and Canadian landings in the next year)
were found to have a stronger
correlation (correlation coefficient =
0.86) than the landings series compared
in this alternative. Thus, using the
Canadian catch derivation method in
the selected alternative provides a more
reliable estimate of 2011 Canadian
catch.
There were two alternatives to the
selected action evaluated for Loligo.
Both alternatives set the Max OY at
32,000 mt, the same level as the selected
action. The first alternative (status quo)
would have set the ABC and IOY at
19,000 mt; this alternative was not
chosen, because it was not consistent
with the ABC recommended by the SSC.
The second alternative (least restrictive)
would have set the ABC at the level
recommended by the SSC (24,000 mt),
but would have set the IOY at 22,560 mt
(ABC reduced by 6 percent to account
for discards). This alternative was not
adopted by the Council because two
sources of uncertainty, namely the
uncertainty regarding the discard
estimate and the management
uncertainty regarding the operation of
the Loligo fishery in 2011, given the
impending implementation of the
butterfish mortality cap, warranted
setting the IOY at the more
precautionary level specified in this
action (intermediately restrictive).
The alternatives also differed in how
Trimester I underages and overages
would be applied to the Loligo quotas in
the following Trimesters. The first
alternative (status quo) would maintain
the current measure to distribute an
underage in Trimester I greater than 25
percent of the Trimester I quota evenly
between Trimesters II and III. The
current measure was not considered to
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Jkt 223001
be sufficient to address management
uncertainty related to the
implementation of the butterfish
mortality cap in 2011.
Two non-selected alternatives were
considered for Illex; both would have
set the ABC at 24,000 mt. The first
alternative would have set IOY, DAH,
and DAP at 24,000 mt (status quo; least
restrictive) rather than the 23,328 mt
specified in this action (intermediately
restrictive). This alternative was not
selected because the higher
specifications were inconsistent with
the results of the most recent stock
assessment. The second alternative
(most restrictive) would have set IOY,
DAH, and DAP at 22,656 mt (ABC
reduced by 5.6 percent, based on double
the discard ratio estimate). The Council
considered this alternative
unnecessarily restrictive.
One non-selected alternative was
considered for butterfish that would
maintain the status quo, which only
differs from the selected alternative in
that it would have set Max OY at 12,175
mt. The selected alternative removes the
specification of Max OY, because it is
no longer supported by best available
science. All other specifications are
identical to the status quo alternative.
Small Entity Compliance Guide
Section 212 of the Small Business
Regulatory Enforcement Fairness Act of
1996 states that, for each rule or group
of related rules for which an agency is
required to prepare a FRFA, the agency
shall publish one or more guides to
assist small entities in complying with
the rule, and shall designate such
publications as ‘‘small entity compliance
guides.’’ The agency shall explain the
actions a small entity is required to take
to comply with a rule or group of rules.
As part of this rulemaking process, a
letter to permit holders that also serves
as small entity compliance guide was
prepared. The guide will be sent to all
holders of permits issued for the MSB
fisheries. In addition, copies of this final
rule and guide (i.e., permit holder letter)
are available from the Regional
Administrator and are also available
from NMFS, Northeast Region (see
ADDRESSES).
This action contains a collection-ofinformation requirement subject to the
Paperwork Reduction Act (PRA), which
was previously approved by OMB under
OMB Control Number 0648–0601. The
public reporting burden for the phone
call to declare a Loligo fishing trip is
estimated to average 2 min per call per
trip. Public burden for the phone call to
cancel a Loligo trip is estimated to
average 1 min. Send comments
regarding these burden estimates or any
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Sfmt 4700
other aspect of this data collection,
including suggestions for reducing the
burden, to NMFS (see ADDRESSES) and
by e-mail to
OIRA_Submission@omb.eop.gov, or fax
to 202–395–7285.
Notwithstanding any other provision
of the law, no person is required to
respond to, and no person shall be
subject to penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB Control Number.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and
reporting requirements.
Dated: February 8, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR part 648 is amended
as follows:
PART 648—FISHERIES OF THE
NORTHEASTERN UNITED STATES
1. The authority citation for part 648
continues to read as follows:
■
Authority: 16 U.S.C. 1801 et seq.
2. In § 648.21, paragraph (f)(2) is
revised to read as follows:
■
§ 648.21 Procedures for determining initial
annual amounts.
*
*
*
*
*
(f) * * *
(2) Any underages of commercial
period quota for Trimester I that are
greater than 25 percent of the Trimester
I quota will be reallocated to Trimesters
II and III of the same year. The
reallocation of quota from Trimester I to
Trimester II is limited, such that the
Trimester II quota may only be
increased by 50 percent; the remaining
portion of the underage will be
reallocated to Trimester III. Any
underages of commercial period quota
for Trimester I that are less than 25
percent of the Trimester I quota will be
applied to Trimester III of the same year.
Any overages of commercial quota for
Trimesters I and II will be subtracted
from Trimester III of the same year.
*
*
*
*
*
■ 3. In § 648.22, paragraph (a)(2)(i) is
revised to read as follows:
§ 648.22
Closure of the fishery.
(a) * * *
(2) * * *
(i) If the Regional Administrator
determines that the Trimester I closure
threshold has been underharvested by
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25 percent or more, then the amount of
the underharvest shall be reallocated to
Trimesters II and III, as specified at
§ 648.21(f)(2), through notice in the
Federal Register.
*
*
*
*
*
■ 4. Section 648.26 is amended by
revising paragraphs (a) and (d) to read
as follows:
§ 648.26 Observer requirements for the
Loligo fishery.
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(a) A vessel issued a Loligo and
butterfish moratorium permit, as
specified at § 648.4(a)(5)(i), must, for the
purposes of observer deployment, have
a representative provide notice to NMFS
of the vessel name, vessel permit
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number, contact name for coordination
of observer deployment, telephone
number or e-mail address for contact;
and the date, time, port of departure,
and approximate trip duration, at least
72 hr, but no more than 10 days prior
to beginning any fishing trip, unless it
complies with the possession
restrictions in paragraph (c) of this
section.
*
*
*
*
*
(d) If a vessel issued a Loligo and
butterfish moratorium permit, as
specified at § 648.4(a)(5)(i), intends to
possess, harvest, or land 2,500 lb (1.13
mt) or more of Loligo per trip or per
calendar day, has a representative notify
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8313
NMFS of an upcoming trip, is selected
by NMFS to carry an observer, and then
cancels that trip, then the representative
is required to provide notice to NMFS
of the vessel name, vessel permit
number, contact name for coordination
of observer deployment, and telephone
number or e-mail for contact, and the
intended date, time, and port of
departure for the cancelled trip prior to
the planned departure time. In addition,
if a trip selected for observer coverage
is canceled, then that vessel is required
to carry an observer, provided an
observer is available, on its next trip.
[FR Doc. 2011–3245 Filed 2–11–11; 8:45 am]
BILLING CODE 3510–22–P
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]]>Agencies
[Federal Register Volume 76, Number 30 (Monday, February 14, 2011)]
[Rules and Regulations]
[Pages 8306-8313]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-3245]
[[Page 8306]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 100804323-0569-02]
RIN 0648-BA03
Fisheries of the Northeastern United States; Atlantic Mackerel,
Squid, and Butterfish Fisheries; Specifications and Management Measures
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule implements 2011 specifications and management
measures for the Atlantic mackerel, squid, and butterfish (MSB)
fisheries. Specifically, this action sets quotas for the MSB fisheries,
modifies the measure that transfers Loligo squid (Loligo) quota
underages from Trimester I to Trimesters II and III by limiting the
Trimester II quota increase to no more than 50 percent, and revises the
72-hr pre-trip observer notification requirement for the Loligo fishery
to accommodate vessels departing for multiple day trips in a week.
These specifications and management measures promote the utilization
and conservation of the MSB resource.
DATES: Effective February 14, 2011.
ADDRESSES: Copies of supporting documents used by the Mid-Atlantic
Fishery Management Council (Council), including the Environmental
Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory
Flexibility Analysis (IRFA), are available from: Dr. Christopher M.
Moore, Executive Director, Mid-Atlantic Fishery Management Council,
Suite 201, 800 N. State Street, Dover, DE 19901. The EA/RIR/IRFA is
accessible via the Internet at https://www.nero.noaa.gov. NMFS prepared
a Final Regulatory Flexibility Analysis (FRFA), which is contained in
the Classification section of this rule. Copies of the FRFA and the
Small Entity Compliance Guide are available from: Patricia Kurkul,
Regional Administrator, National Marine Fisheries Service, Northeast
Region, 55 Great Republic Drive, Gloucester, MA 01930-2276, or via the
Internet at https://www.nero.noaa.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
rule may be submitted to NMFS, Northeast Regional Office, and by e-mail
to OIRA_Submission@omb.eop.gov, or fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Aja Peters-Mason, Fishery Policy
Analyst, 978-281-9195, fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
Regulations implementing the MSB Fishery Management Plan (FMP)
appear at 50 CFR part 648, subpart B. Regulations governing foreign
fishing appear at 50 CFR part 600, subpart F. The regulations at
Sec. Sec. 648.21 and 600.516(c) require that NMFS, based on the
maximum optimum yield (Max OY) of each fishery, as established by the
regulations, annually publish a rule specifying the amounts of the
initial optimum yield (IOY), allowable biological catch (ABC), domestic
annual harvest (DAH), and domestic annual processing (DAP), as well as,
where applicable, the amounts for total allowable level of foreign
fishing (TALFF) and joint venture processing (JVP) for the affected
species managed under the FMP. In addition, these regulations allow
specifications to be specified for up to 3 years, subject to annual
review. The regulations at Sec. 648.21 also specify that IOY for Illex
and Loligo squid is equal to the combination of Research Set-Aside
(RSA) and DAH, with no TALFF specified for squid. For butterfish, the
regulations specify that a butterfish bycatch TALFF will be specified
only if TALFF is specified for mackerel.
At its June 8-10, 2010, meeting in New York, NY, the Council
recommended MSB specifications for the 2011 fishing year. The Council
considered the recommendations made by its Monitoring Committee and
Scientific and Statistical Committee (SSC). The SSC recommends ABC. SSC
advice accounts for scientific uncertainty regarding stock status and
biological reference points in recommending the ABC, and the Council
relies on that ABC recommendation to set other specifications. In
addition to 2011 specifications for each of the MSB species, the
Council recommended a modification to the provision that transfers
Trimester I quota underages to Trimesters II and III for the Loligo
fishery. The Council submitted these recommendations, along with the
required analyses, for agency review on July 19, 2010, with final
submission on September 23, 2010. A proposed rule for the 2011 MSB
specifications and management measures was published on November 17,
2010 (75 FR 70187), and the public comment period for the proposed rule
ended on December 17, 2010. Details concerning the Council's
development of these measures were presented in the preamble of the
proposed rule and are not repeated here.
Final MSB Specifications and Management Measures for the 2011 Fishing
Year
This action implements the following MSB specifications and
management measures for the 2011 fishing year, which are described in
detail below.
Table 1--Final Specifications, in Metric Tons (mt), for Atlantic Mackerel, Squid, and Butterfish for 2011
Fishing Year
----------------------------------------------------------------------------------------------------------------
Specifications Loligo Illex Mackerel Butterfish
----------------------------------------------------------------------------------------------------------------
Max OY.......................................................... 32,000 Unknown Unknown Unknown
ABC............................................................. 24,000 24,000 47,395 1,500
IOY............................................................. 20,000 23,328 46,779 500
DAH............................................................. \1\ 19,906 23,328 \2\ 46,779 \3\ 495
DAP............................................................. 19,906 23,328 31,779 495
JVP............................................................. N/A N/A 0 0
TALFF........................................................... N/A N/A 0 0
----------------------------------------------------------------------------------------------------------------
\1\ Excludes 94 mt for RSA.
\2\ Includes a 15,000-mt catch of Atlantic mackerel by the recreational fishery.
\3\ Excludes 5 mt for RSA.
[[Page 8307]]
Atlantic Mackerel
This action specifies the mackerel ABC at 47,395 mt, based on the
formula ABC = T-C. T, or total annual catch, is the yield associated
with a fishing mortality rate that is equal to the target fishing
mortality rate (F). The Transboundary Resources Advisory Committee
(TRAC) could not establish biomass reference points or target F at its
March 2010 mackerel stock status assessment, and recommended that total
annual catches not exceed the average total landings (80,000 mt) over
the last 3 years (2006-2008) until new information is available. C is
the estimated catch of mackerel in Canadian waters (32,605 mt) for the
upcoming fishing year. Thus 80,000 mt minus 32,605 mt results in the
2011 mackerel ABC of 47,395 mt. The 2010 TRAC assessment estimated that
U.S. mackerel discards from 2004-2008 (the most recent years for which
complete data are available) accounted for 1.3 percent of total catch.
Thus NMFS is specifying the mackerel IOY and DAH at 46,779 m (ABC minus
616 mt for discards). The DAH includes commercial harvest plus the
15,000 mt available for the recreational fishery.
While a surplus existed between ABC and DAH for many years, that
surplus has disappeared due to downward adjustments of the
specifications in recent years. Analysis of the state of the world
mackerel market and possible increases in U.S. production levels
concluded that specifying an IOY resulting in zero TALFF will yield
positive social and economic benefits to both U.S. harvesters and
processors, and to the Nation. For these reasons NMFS is specifying IOY
at level that can be fully harvested by the domestic fleet (46,779 mt),
thereby precluding the specification of a TALFF, in order to support
the U.S. mackerel industry.
This action maintains JVP at zero. In the past, the Council
recommended a JVP greater than zero because it believed U.S. processors
lacked the ability to process the total amount of mackerel that U.S.
harvesters could land. However, for the past 7 years, the Council has
recommended zero JVP because U.S. shoreside processing capacity for
mackerel has expanded. The Council concluded that processing capacity
was no longer a limiting factor relative to domestic production of
mackerel, even at the higher DAP of 100,000 mt; this is even more true
with the specified DAP of 31,779 mt. The differential between the DAH
and the DAP reflects a projection that the recreational mackerel
fishery will land 15,000 mt.
Atlantic Squids
Loligo
This action specifies a Loligo Max OY of 32,000 mt, an ABC of
24,000 mt, an IOY of 20,000 mt, an RSA of 94 mt, and a DAH and DAP of
19,906 mt. The FMP does not authorize the specification of JVP and
TALFF for the Loligo fishery because of the domestic industry's
capacity to harvest and process the OY for this fishery; therefore,
there will be no JVP or TALFF in 2011.
Distribution of the Loligo DAH
As was done in fishing years 2007 through 2010, this action
allocates the 2011 Loligo DAH into trimesters, according to percentages
specified in the FMP, as follows:
Table 2--Trimester Allocation of Loligo Quota in 2011
------------------------------------------------------------------------
Metric
Trimester Percent tons \1\
------------------------------------------------------------------------
I (Jan-Apr)....................................... 43 8,560
II (May-Aug)...................................... 17 3,384
III (Sep-Dec)..................................... 40 7,962
---------------------
Total......................................... 100 19,906
------------------------------------------------------------------------
\1\ Trimester allocation after 94-mt RQ deduction.
For the 2010 fishing year, Trimester I Loligo underages greater
than 25 percent of the Trimester I quota were distributed evenly
between Trimesters II and III. The Council expressed concern that the
butterfish mortality cap on the Loligo fishery, established in 2010 by
Amendment 10 to the FMP (Amendment 10) (75 FR 11441, March 11, 2010),
could result in a substantial Trimester I underage if the Loligo
fishery is closed because the Trimester I butterfish catch cap is
reached. Under the 2010 underage distribution scheme, this could result
in a large roll-over of Loligo quota to Trimester II, when the
butterfish catch cap cannot close the fishery. Therefore, this action
limits the roll-over of quota from Trimester I to Trimester II to no
more than 50 percent of the Trimester II allocation. This adjustment
will continue to prevent an underharvest of the annual quota by
distributing the quota across the remaining trimesters, while reducing
management uncertainty related to the implementation of the butterfish
mortality cap for the Loligo fishery.
Adjustment to the Loligo Pre-trip Trip Notification Requirement
The action changes the 72-hr pre-trip observer notification
requirement established through Amendment 10 for vessels issued a
Loligo and butterfish moratorium permit. Such vessels intending to land
more than 2,500 lb (1.13 mt) of Loligo are now required to notify the
NMFS Northeast Fishery Observer Program (NEFOP) at least 72 hr, but not
more than 10 days before embarking on a Loligo trip. This adjustment is
intended to reduce the burden of this requirement for vessels that
embark on multiple trips that last less than 24 hr during a single week
by allowing them to notify for several upcoming trips at one time.
Illex
This action specifies the Illex ABC as 24,000 mt, and specifies
IOY, DAH, and DAP as 23,328 mt to account for discards, which were
estimated as 2.8 percent of total catch in the last assessment. The FMP
does not authorize the specification of JVP and TALFF for the Illex
fishery because of the domestic fishing industry's capacity to harvest
and to process the IOY from this fishery.
Butterfish
This action specifies the butterfish ABC at 1,500 mt, and the IOY
at 500 mt, and DAH and DAP at 495 mt. Additionally, consistent with MSB
regulations, the Council recommended, and this action is specifying,
zero TALFF for butterfish because zero TALFF is specified for mackerel.
Amendment 10 created a butterfish mortality cap for the Loligo
fishery, which is equal to 75 percent of the butterfish ABC. Thus, this
action sets the butterfish mortality cap at 1,125 mt. If the portion of
the butterfish mortality cap allocated to Trimester I (January-April)
or Trimester III (September-December) is harvested, the directed Loligo
fishery will close for the remainder of that trimester.
Comments and Responses
NMFS received seven comments from industry entities: Three from the
Garden State Seafood Association (GSSA), submitted on behalf of several
fishery organizations; one from Lund's Fisheries, Incorporated; one
submitted on behalf of Seafreeze, Ltd.; one from Top Catch, Inc.; and
one from TrawlWorks, Inc. In addition, there was one form letter
submitted with signatures from 73 individuals. Some commenters
identified issues that are not related to this action; only comments
related to the proposed specifications are responded to below.
Comment 1: All of the industry groups and the 73 individuals who
commented through the form letter stated their opposition to the
proposed specifications for butterfish, due to the butterfish mortality
cap specified for the
[[Page 8308]]
Loligo fishery. Most of these commenters noted that the butterfish
stock assessment results produced by the Northeast Fisheries Science
Center's 49th Stock Assessment Workshop (SAW 49) did not include a
finding that overfishing was occurring, and did not attribute the
butterfish stock decline to fishing mortality. All of the commenters
expressed concern about the restrictive butterfish mortality cap, given
the uncertainty in the butterfish stock assessment results produced by
SAW 49, arguing that the uncertainty means the level specified for the
cap cannot be justified.
All of the commenters expressed concern that the butterfish
mortality cap will be attained, and that participants in the Loligo
fishery will be precluded from fully harvesting the Loligo quota,
causing unnecessary economic harm to participants in the Loligo
fishery. GSSA and Lunds both requested that NMFS consider the potential
loss of income that will occur in Mid-Atlantic communities. GSSA,
Lunds, Top Catch, Inc., and the form letter stated the view that
measures to regulate butterfish, a bycatch species with a 3-year
lifespan, should not control the $50-million Loligo fishery. TrawlWorks
stated that Loligo harvesters will be particularly impacted if the
butterfish mortality cap is attained in the fall, and the Loligo
fishery is closed when Loligo is usually abundant. GSSA noted that the
decline in butterfish stock abundance is unrelated to the recent rate
of Loligo fishing, and that the economic losses that would result from
closure of the Loligo fishery would be much greater than any potential
benefit to the butterfish resource.
GSSA, Lunds, Top Catch, Inc., and the form letter specifically
requested NMFS to specify the butterfish ABC at 4,445 mt, a level the
commenters claimed is justified based on the best available science.
GSSA, Lunds, and Top Catch stated their view that this level was
identified by the SSC as a safe, scientifically justified harvest
level. The form letter also stated that it is unjustified to use a
precautionary approach when specifying butterfish ABC in light of the
uncertainty in the recent assessment. The commenters expressed the view
that guesswork was used to quantify butterfish predation mortality.
GSSA and Lunds stated their view that the range of ABCs considered
valid by the SSC included a 25,000-mt option that was risk-neutral;
therefore, they concluded that the ABC of 1,500 mt seems excessively
precautionary. GSSA and Lund's pointed out that the butterfish ABC was
set at 4,545 mt in 2007, and that the reduction of ABC to 1,500 mt in
2008 was made at a time when no new assessment data were available, in
an effort to discourage a directed butterfish fishery. GSSA stated the
view that SAW 49 determined that butterfish were not overfished, nor
were they overfished in the past; therefore, the 1,500-mt ABC is based
on erroneous information. They argued that setting the ABC at 4,445 mt
is more scientifically sound, and appropriately risk averse.
Seafreeze stated that the 2011 butterfish specifications violate
National Standard 1 because the butterfish quota prevents a directed
butterfish fishery from occurring, and the butterfish mortality cap
would result in the premature closure of the Loligo fishery. Thus, they
concluded that the butterfish specifications will prevent the Loligo
fishery from achieving optimum yield, in violation of National Standard
1. Seafreeze also stated that the specifications violate National
Standard 2 because they ignore the best available science, namely the
most recent NEFSC bottom trawl survey results. Seafreeze claimed that
the Autumn 2009 and Spring 2010 bottom trawl surveys both showed
butterfish catches comparable to the period from 1980-1990 when
butterfish biomass was estimated at 125,000-150,000 mt, therefore
indicating that the butterfish stock can sustain an ABC of 20,000 mt.
They stated that, because the life span of butterfish is about 3 years,
it is imperative to use this recent trawl survey data. Seafreeze
suggested that NMFS should reject the proposed specifications, reassess
the butterfish stock based on trawl survey data, and establish a
butterfish ABC that will allow for a directed butterfish fishery.
GSSA noted that the 2004 SARC only had abundance estimates based on
survey data from the R/V Albatross, and that calibration exercises
since that time, that compare R/V Albatross data with new data from the
R/V Bigelow, shows that that butterfish catch data from the R/V
Albatross were biased low. They stated that, in their view, the SAW 49
estimated 2008 butterfish biomass of 88,800 mt would indicate that
setting the butterfish ABC at 20,000 mt will result in no risk to the
stock.
GSSA further asserted that the lack of reference points for the
butterfish stock, the fact that butterfish predation mortality far
surpasses fisheries mortality, and the fact that the Autumn 2010 bottom
trawl survey results have yet to be compiled, all indicate that there
is no information to inform abundance projections for butterfish for
2011, making any management action arbitrary and unsupported by
science.
GSSA also stated that recent downward trends in the butterfish
stock may be due to increased predation. They believe that, because
predation mortality is high and because Loligo squid is a major
butterfish predator, management measures that promote the utilization
of the Loligo resource may actually be beneficial to the butterfish
stock.
Response 1: The MSB FMP and its implementing regulations require
the specification of the butterfish ABC, and the resulting butterfish
mortality cap. NMFS acknowledges that SAW 49 did not produce approved
biological reference points, and thus did not make a formal
determination that the butterfish stock is currently overfished. The
stock assessment concluded that fishing mortality has been declining
over time, and has been very low in recent years. However, SAW 49 also
recommended that point estimates of both biomass and fishing mortality
should be interpreted with caution, and noted that the biological
reference points could not be estimated because the stock does not
appear to be at equilibrium. It also concluded that the stock
assessment appropriately reflected stock trends, demonstrating a
convincing long-term decreasing trend in spawning stock biomass (SSB),
with recent biomass estimates among the lowest in the time series.
While butterfish fishing mortality is low, and overfishing appears
not to be occurring, the butterfish mortality cap was designed by the
Council in Amendment 10 to minimize butterfish bycatch in the Loligo
fishery, not to address overfishing. In addition to the butterfish
mortality cap, Amendment 10 enacted a rebuilding program for
butterfish. At the time Amendment 10 was being developed, the 2004
butterfish assessment (SAW 38) indicated that a reduction in fishing
mortality may lead to improvements in the butterfish stock. The
analysis in Amendment 10 noted that the butterfish mortality cap could
be a tool to limit the portion of butterfish fishing mortality
attributable to the Loligo fishery and, accordingly, may provide
rebuilding benefits to the stock. Though more recent information
provided in SAW 49 indicates that fishing mortality is low compared to
natural mortality, and is likely not the driver of long-term declines
in SSB, both SAW 38 and SAW 49 did determine that butterfish discards
were equal to twice the annual landings. Amendment 10 identified the
Loligo fishery as the predominate source of butterfish discards. Thus,
Amendment 10 enacted the butterfish mortality cap as a permanent
measure to
[[Page 8309]]
limit butterfish bycatch in the Loligo fishery.
Though there was considerable uncertainty in the recent assessment,
including limited information about the causes of the butterfish stock
decline, NMFS determined that there was no evidence presented that
suggests that the status of the butterfish stock has improved since the
2004 SAW 38 assessment concluded that the stock was overfished. SAW 49
reviewers agreed that the status of the butterfish stock could not be
determined based on the assessment. Several commenters argued that, in
their view, the cap is overly precautionary, and that the uncertainty
in the stock assessment results means it is inappropriate to be
precautionary. NMFS disagrees that this is necessarily the case, and
notes that this alone is insufficient basis for an increase to the
butterfish ABC (and the resulting butterfish mortality cap).
NMFS notes that the SSC utilized the results of SAW 49 in making
the recommendation for the ABC specified in this action. The alternate
suggested values for ABC were not validated or endorsed by the SSC, as
some commenters indicated. Because of uncertainty about butterfish
stock size, and uncertainty about the potential response of the
butterfish stock to fishing pressure, the Council staff generated a
range of potential ABCs for consideration by the SSC. These ranged from
1,362 mt to 25,000 mt, and were developed using several different
approaches. The 4,445-mt ABC (average catch from 1996-2008) and the
25,000-mt ABC (an F of 0.39 applied to a 45,000-mt stock) cited by the
commenters were included in this range. While the SSC used this
information from Council staff, in conjunction with SAW 49, to inform
its final ABC recommendation, the range generated by Council staff was
in no way binding for the SSC, nor was it endorsed by the SSC as
appropriate or scientifically justified. There is no basis for the
commenters' contention that these higher values are risk-averse or
risk-neutral; there is no SSC conclusion to that effect. The SSC
ultimately recommended 1,500 mt as the 2011 butterfish ABC because
available information suggested that, provided improved environmental
conditions affecting recruitment, the butterfish stock size could
increase in the future if the 2011 ABC was maintained at this level.
The SSC used the best scientific information available to it at the
time it made its recommendation.
The commenters are correct that the butterfish ABC was set at 4,545
mt until 2007, but did not fully describe the reason for the reduction
of the ABC to 1,500 mt for subsequent years. Though no new stock
assessment data were available leading up to implementation of the 2008
specifications (the action that first set the butterfish ABC at 1,500
mt, and IOY/DAH at 500 mt), the ABC and IOY were reduced to cap the
fishery at recent levels (500 mt) to prevent any expansion of the
directed fishery of butterfish while the stock is being rebuilt. At
that time, the Council was developing measures for Amendment 10 to
reduce butterfish discards and rebuild the stock.
NMFS disagrees that the butterfish specifications violate either
National Standard 1 or National Standard 2. National Standard 1 does
not require NMFS to specify a quota that will support a directed
fishery if it is inappropriate to the stock condition. In fact, since
2008, the Council has recommended, and NMFS has specified, the
butterfish quota at 500 mt to maintain butterfish landings at low
levels due to concerns about the stock. In addition, courts have
recognized that optimum yield is a level to be achieved on a continuing
basis and not in a single year (see North Carolina Fisheries
Association v. Daley). The commenters concluded that National Standard
2 is violated because the specifications were developed before the most
recent NEFSC bottom trawl survey results were available. They believe
that these survey results, which obtained more butterfish samples than
in previous years, must be incorporated into the 2011 butterfish
specifications. NMFS disagrees. National Standard 2 requires the use of
the best available science at the point in time that an action is being
developed. The Council's process for developing annual specifications
for the butterfish fishery begins in June each year, and the Council
utilized the best science available to it at that time to develop this
action. If, in the future, new information indicates that the
butterfish stock condition has changed, the Council can consider that
information in the 2012 specifications process.
The results of the Autumn 2009, Spring 2010, and Autumn 2010 NEFSC
surveys were not included in the data used for the SAW 49 stock
assessment. NMFS notes that survey indices do not provide a point
estimate of stock size or amount to a status determination. The
calibration-adjusted butterfish catch rates from the Autumn 2009 and
Autumn 2010 bottom trawl surveys were 6.4 kg/tow and 5.59 kg/tow,
respectively. Though these numbers are about twice the average from
Autumn surveys from 1999-2008 (3.4 kg/tow), it is not possible to
determine if this upturn constitutes a trend. NMFS notes that the
butterfish stock assessment is not based solely on survey biomass
indices, but incorporates data sets within a stock assessment model.
NMFS acknowledges that, if the cap is attained before the Loligo
fishery has fully harvested the annual Loligo quota, there could be
revenue losses for some Loligo harvesters. This possibility was
discussed in the Council's Initial Regulatory Flexibility Analysis
(IRFA), which assessed impacts of the proposed measures on small
businesses. That analysis noted that, in 2009, the Loligo fishery ex-
vessel value was approximately $18 million. It is not possible to
estimate when the Loligo fishery might reach the cap, because
environmental conditions and fleet behavior are likely to strongly
influence how much butterfish the Loligo fishery encounters. If high
rates of butterfish catch occur, Amendment 10 estimated that up to 64
percent of 2006 Loligo revenue levels could be lost. The analysis noted
that 2007-2009 landings were lower than in 2006, so a closure of the
Loligo fishery would likely have a smaller impact, but concluded that a
closure related to the butterfish mortality cap could substantially
restrict Loligo landings. The economic impacts of the cap are further
detailed in Amendment 10. NMFS notes that the preliminary data for
Loligo in 2010 indicate that landings appear to have decreased from
9,306 mt in 2009 to approximately 6,714 mt in 2010. NMFS also notes
that, during the debate over Amendment 10, some industry members often
stated they could avoid butterfish voluntarily, and thus minimize
interactions.
Comment 2: GSSA and Lund's both supported setting aside 3 percent
of the mackerel IOY as RSA, but thought that the proposed rule should
have included information about the 14 bilateral research priorities
that emerged from the recent TRAC.
Response 2: NMFS solicited research proposals under the 2011 Mid-
Atlantic RSA Program through the Federal Register (75 FR 3092, January
19, 2010), and reviewed them in an application process that is separate
from the setting of annual specifications. The solicitation document is
the appropriate vehicle to identify research priorities. The
distribution of RSA quota to fund research depends both on Council
specified research priorities and on the desire and capacity for the
research community to compete for mackerel RSA. For the 2011 RSA
Program, no proposals requesting mackerel RSA were approved, and thus
no mackerel RSA will be allocated through this
[[Page 8310]]
action. The identification and development of joint U.S./Canada
research priorities for mackerel is the subject of U.S./Canada
Bilateral Fisheries Consultations and is not the subject of this
rulemaking.
Comment 3: GSSA and Lund's expressed concern that the proposed
mackerel specifications, which reflect the TRAC's recommendation that
U.S. and Canadian catch not exceed 80,000 mt, are overly conservative
and will unnecessarily reduce U.S. access to the mackerel resource.
Both organizations are supportive of the proposed 2011 U.S. ABC of
47,395 mt as an interim quota, given the current uncertainty in stock
status, and the method used to derive expected Canadian catch; however,
they expressed concern that the Canadian mackerel quota for 2011 has
been specified at 60,000 mt, a value higher than the Council expected.
Lund's expressed concern that scientific uncertainty has recently led
to dramatically reduced catch levels for otherwise apparently healthy
resources like mackerel, which, until the 2010 assessment, was
described as not overfished, with overfishing not occurring.
Both organizations supported the Agency's determination that both
JVP and TALFF be set at zero because there is sufficient demand for
mackerel in world markets to create opportunities for U.S. harvesters
and shoreside processors to utilize all of the U.S. ABC.
Response 3: Although the TRAC was unable to establish reference
points for stock biomass and fishing mortality, the assessment
indicated reduced stock productivity and a lack of older fish in the
survey and catch, and suggested limiting total catch of mackerel to
80,000 mt (average U.S./Canadian landings from 2006-2008) until new
information suggests that a different amount is appropriate. The SSC's
advice to the Council was consistent with this recommendation, and NMFS
has determined that the approach reflected in the specifications is
based on the best scientific information available.
The U.S. quota is derived from ABC by estimating Canadian catch in
2011 at 32,605 mt. NMFS acknowledges the commenters' concern that the
Canadian Government has set the mackerel quota at 60,000 mt, but does
not believe it is necessary to adjust the Canadian catch estimate in
response. While the Canadian quota provides the opportunity for the
Canadian fishery to increase landings substantially, NMFS believes that
the Council's derivation method, which is based on recent fishery
performance, provides the most reliable estimate of 2011 Canadian
catch. Despite the progress made in the recent joint assessment of the
mackerel stock, there is no joint process for the allocation of the
mackerel resource, and the United States and Canada set their catch
levels for mackerel independently. NMFS notes that, despite the fact
that the mackerel quota allocation for 2011 (46,779 mt) is lower than
the 2010 allocation of 115,000 mt, it is still almost double the
average U.S. mackerel landings of 25,000 mt during the past 3 years
(2007-2009). NMFS notes that mackerel apparently continues to be
unavailable to the U.S. fleet, as preliminary 2010 landings of mackerel
are approximately 10,000 mt. As a result, the 2011 mackerel quota
appears unlikely to constrain the fishery.
Comment 4: GSSA and Lund's both support the proposed specifications
for Illex and Loligo squid.
Response 4: NMFS is implementing the proposed specifications
through this final rule.
Classification
The Administrator, Northeast Region, NMFS, determined that these
specifications are necessary for the conservation and management of the
Atlantic mackerel, squid, and butterfish fisheries and that it is
consistent with the Magnuson-Stevens Fishery Conservation and
Management Act and other applicable laws.
The Assistant Administrator for Fisheries finds good cause under 5
U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness otherwise
required by the Administrative Procedure Act. If there is a delay in
implementing this action, NMFS will lack the regulatory authority to
issue a closure for the Loligo fishery if the butterfish mortality cap
is attained. The Loligo squid fishery is particularly active during the
first Trimester of the fishing year. Given the timing of Loligo fleet
activity, and history of fishery interactions between Loligo and
butterfish, a delay in the effectiveness of this action is likely to
result in a situation where the Trimester I butterfish mortality cap is
exceeded. The regulations state that any overages of the butterfish
mortality cap during Trimester I and II will be applied to Trimester
III of the same year. If the 2011 mortality for Trimester I is exceeded
prior to the effectiveness of this rule, this overage must be deducted
from Trimester III, and the Loligo fishery would be closed even more
prematurely during Trimester III. This outcome would severely limit the
activity of Loligo fishermen who participate in the fishery during the
latter portion of the year, which would negatively impact these
fishermen. The overall conservation objectives of the butterfish
mortality cap will be undermined if the mortality cap is exceeded in
Trimester I prior to the implementation of this action.
The Council prepared an EA for the 2011 specifications, and the
NOAA Assistant Administrator for Fisheries concluded that there will be
no significant impact on the human environment as a result of this
rule. A copy of the EA is available upon request (see ADDRESSES).
This action is authorized by 50 CFR part 648 and has been
determined to be not significant for purposes of Executive Order 12866
(E.O. 12866).
NMFS, pursuant to section 604 of the Regulatory Flexibility Act,
has prepared a FRFA, included in the preamble of this final rule, in
support of the 2011 MSB specifications and management measures. The
FRFA describes the economic impact that this final rule, along with
other non-preferred alternatives, will have on small entities.
The FRFA incorporates the economic impacts and analysis summarized
in the IRFA, a summary of the significant issues raised by the public
in response to the IRFA, and NMFS responses to those comments. A copy
of the IRFA, the RIR, and the EA are available upon request (see
ADDRESSES).
Statement of Need for This Action
This action proposes 2011 specifications and management measures
for MSB fisheries and modifies existing management measures to improve
the management of MSB fisheries. A complete description of the reasons
why this action is being considered, and the objectives of and legal
basis for this action, is contained in the preamble to the proposed and
final rules and is not repeated here.
A Summary of the Significant Issues Raised by the Public Comments in
Response to the IRFA, a Summary of the Assessment of the Agency of Such
Issues, and a Statement of Any Changes Made in the Final Rule as a
Result of Such Comments
Eight unique comment letters were received during the comment
period on the proposed specifications. The comments were not
specifically directed to the IRFA, but each of the comments expressed
concern about negative economic impacts of the proposed ABCs for
butterfish and mackerel, on small entities. All public comments on
issues relative to the IRFA, in which commenters expressed concern
directly and indirectly about the economic impacts of the 2011
specifications, are
[[Page 8311]]
described in the ``Comments and Responses'' section of the preamble to
this final rule and, therefore, are not repeated here. NMFS's response
to the concerns about the economic impacts associated with the
butterfish mortality cap for the Loligo fishery is provided in Response
1; and Response 3 addresses concerns about mackerel.
Description and Estimate of Number of Small Entities To Which the Rule
Will Apply
Based on permit data for 2010, the numbers of potential fishing
vessels in the 2011 fisheries are as follows: 360 Loligo/butterfish
moratorium permits, 76 Illex moratorium permits, 2,156 mackerel
permits, 1,844 incidental squid/butterfish permits, and 1,844 MSB
party/charter permits. There are no large entities participating in
this fishery, as defined in section 601 of the RFA. Therefore, there
are no disproportionate economic impacts on small entities. Many
vessels participate in more than one of these fisheries; therefore,
permit numbers are not additive.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This action contains a change to an information collection
previously approved by the Office of Management and Budget (OMB) under
OMB Control Number 0648-0601: Atlantic Mackerel, Squid, and Butterfish
Amendment 10 Data Collection. This action requires that vessels
intending to embark on Loligo trips notify NEFOP at least 72 hr, but no
more than 10 days before their intended departure dates. The adjustment
will also allow vessels to submit an email address for contact. This
change did not increase the reporting burden for these entities, and
has been approved by OMB. This action does not duplicate, overlap, or
conflict with any other Federal rules.
Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impacts on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities Was Rejected
Actions Implemented With the Final Rule
The mackerel IOY specified in this action (46,779 mt, with 15,000
mt allocated to recreational catch) represents a reduction from status
quo (115,000 mt). Despite the reduction, the specified IOY is above
recent U.S. landings; mackerel landings for 2007-2009 averaged 23,310
mt; and preliminary landings in 2010 are approximately 10,000 mt. Thus,
the reduction does not pose a constraint to vessels relative to the
landings in recent years. Accordingly, no reductions in revenues for
the mackerel fishery are expected as a result of this action.
The Loligo IOY (20,000 mt) represents a slight increase from the
status quo (19,000 mt). Loligo landings for 2007-2009 averaged 11,019
mt. This provides an opportunity to increase landings, though if recent
trends continue, there may be no increase in landings, despite the
increase in the allocation. No reductions in revenues for the Loligo
fishery are expected as a result of this action.
The accounting methods for Loligo trimester underages implemented
in this action will distribute any substantial underage in Trimester I
(greater than 25 percent of the Trimester I quota) between Trimester II
and III, but will limit the transfer of quota such that the Trimester
II quota could increase by 50 percent, at most. This method of
transferring quota may provide some economic benefit to the fishery
during Trimesters II and III, because it will allow access to
underutilized Trimester I quota later in the fishing year.
The change to the pre-trip observer notification requirement
implemented in this action, which would allow vessels to notify at
least 72 hr, but no more than 10 days prior to fishing trips, is an
administrative measure to facilitate the placement of observers aboard
the Loligo fleet, and is intended to reduce the burden of the
notification requirement for vessels that depart on multiple trips in a
short period by allowing for advance notification. The economic burden
on fishery participants associated with this measure is expected to be
minimal.
The Illex IOY (23,328 mt) specified in this action represents a
slight decrease compared to status quo (24,000 mt). Though annual Illex
landings have been increasing over the past 3 years (9,002 mt for 2007,
15,900 mt for 2008, and 18,419 mt for 2009), the landings were lower
than the specified level. Thus, implementation of this action should
not result in a reduction in revenue or a constraint on expansion of
the fishery in 2011.
The butterfish IOY specified in this action (500 mt) represents
status quo, as compared to 2010, and represents only a minimal
constraint to vessels relative to the landings in recent years. Due to
market conditions, there has not been a directed butterfish fishery in
recent years; therefore, recent landings have been low. Given the lack
of a directed butterfish fishery and low butterfish landings, this
action is not expected to reduce revenues in this fishery more than
minimally.
As discussed in the FRFA for MSB Amendment 10, the butterfish
mortality cap has a potential for economic impact on fishery
participants. The Loligo fishery will close during Trimesters I and
III, if the butterfish mortality cap is reached. If the Loligo fishery
is closed in response to butterfish catch before the entire Loligo
quota is harvested, then a loss in revenue is possible. The potential
for Loligo revenue loss is dependent upon the size of the butterfish
mortality cap, which is based on the level of butterfish abundance. As
the butterfish stock rebuilds, the mortality cap will increase, and the
potential for lost Loligo revenue should decrease. When the butterfish
stock rebuilds, a directed butterfish fishery could resume, provided
discards are kept low, and would have economic benefits for fishery
participants.
Alternatives to the Actions in the Final Rule
The Council analysis evaluated two alternatives to this action for
mackerel. Based on recent harvest levels, neither of the ABC and IOY
alternatives would represent a constraint on vessels in this fishery.
The first alternative (status quo; least restrictive), which would have
set the ABC at 156,000 mt and IOY at 115,000 mt, was not selected
because the ABC would have exceeded the SSC's recommendation.
As in the selected action (intermediately restrictive), the second
alternative (most restrictive) started from the SSC recommended
stockwide ABC of 80,000 mt, but instead subtracted an estimated 41,556
mt for
[[Page 8312]]
Canadian landings. This would have resulted in a U.S. ABC of 38,444 mt,
and an IOY and DAH of 37,944 mt (U.S. ABC minus 1.3 percent for
discards). For this alternative, expected Canadian catch (41,556 mt)
was derived by examining the relationship between Canadian landings in
one year (e.g., 1994) and the Canadian landings 2 years later (e.g.,
1996); this analysis was chosen so that 2009 Canadian landings could be
used to determine expected Canadian landings for 2011. The years
examined included 1962-2009. Though the two landings series were found
to be strongly correlated (correlation coefficient = 0.71), this method
of deriving expected Canadian catch (and the resulting specifications
alternative) was not determined to be the best approach. The landings
series compared in the method used to derive 2011 Canadian catch in the
selected alternative (U.S. landings in one year and Canadian landings
in the next year) were found to have a stronger correlation
(correlation coefficient = 0.86) than the landings series compared in
this alternative. Thus, using the Canadian catch derivation method in
the selected alternative provides a more reliable estimate of 2011
Canadian catch.
There were two alternatives to the selected action evaluated for
Loligo. Both alternatives set the Max OY at 32,000 mt, the same level
as the selected action. The first alternative (status quo) would have
set the ABC and IOY at 19,000 mt; this alternative was not chosen,
because it was not consistent with the ABC recommended by the SSC. The
second alternative (least restrictive) would have set the ABC at the
level recommended by the SSC (24,000 mt), but would have set the IOY at
22,560 mt (ABC reduced by 6 percent to account for discards). This
alternative was not adopted by the Council because two sources of
uncertainty, namely the uncertainty regarding the discard estimate and
the management uncertainty regarding the operation of the Loligo
fishery in 2011, given the impending implementation of the butterfish
mortality cap, warranted setting the IOY at the more precautionary
level specified in this action (intermediately restrictive).
The alternatives also differed in how Trimester I underages and
overages would be applied to the Loligo quotas in the following
Trimesters. The first alternative (status quo) would maintain the
current measure to distribute an underage in Trimester I greater than
25 percent of the Trimester I quota evenly between Trimesters II and
III. The current measure was not considered to be sufficient to address
management uncertainty related to the implementation of the butterfish
mortality cap in 2011.
Two non-selected alternatives were considered for Illex; both would
have set the ABC at 24,000 mt. The first alternative would have set
IOY, DAH, and DAP at 24,000 mt (status quo; least restrictive) rather
than the 23,328 mt specified in this action (intermediately
restrictive). This alternative was not selected because the higher
specifications were inconsistent with the results of the most recent
stock assessment. The second alternative (most restrictive) would have
set IOY, DAH, and DAP at 22,656 mt (ABC reduced by 5.6 percent, based
on double the discard ratio estimate). The Council considered this
alternative unnecessarily restrictive.
One non-selected alternative was considered for butterfish that
would maintain the status quo, which only differs from the selected
alternative in that it would have set Max OY at 12,175 mt. The selected
alternative removes the specification of Max OY, because it is no
longer supported by best available science. All other specifications
are identical to the status quo alternative.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, a letter to permit holders that also serves as
small entity compliance guide was prepared. The guide will be sent to
all holders of permits issued for the MSB fisheries. In addition,
copies of this final rule and guide (i.e., permit holder letter) are
available from the Regional Administrator and are also available from
NMFS, Northeast Region (see ADDRESSES).
This action contains a collection-of-information requirement
subject to the Paperwork Reduction Act (PRA), which was previously
approved by OMB under OMB Control Number 0648-0601. The public
reporting burden for the phone call to declare a Loligo fishing trip is
estimated to average 2 min per call per trip. Public burden for the
phone call to cancel a Loligo trip is estimated to average 1 min. Send
comments regarding these burden estimates or any other aspect of this
data collection, including suggestions for reducing the burden, to NMFS
(see ADDRESSES) and by e-mail to OIRA_Submission@omb.eop.gov, or fax
to 202-395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Recordkeeping and reporting requirements.
Dated: February 8, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
1. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 648.21, paragraph (f)(2) is revised to read as follows:
Sec. 648.21 Procedures for determining initial annual amounts.
* * * * *
(f) * * *
(2) Any underages of commercial period quota for Trimester I that
are greater than 25 percent of the Trimester I quota will be
reallocated to Trimesters II and III of the same year. The reallocation
of quota from Trimester I to Trimester II is limited, such that the
Trimester II quota may only be increased by 50 percent; the remaining
portion of the underage will be reallocated to Trimester III. Any
underages of commercial period quota for Trimester I that are less than
25 percent of the Trimester I quota will be applied to Trimester III of
the same year. Any overages of commercial quota for Trimesters I and II
will be subtracted from Trimester III of the same year.
* * * * *
0
3. In Sec. 648.22, paragraph (a)(2)(i) is revised to read as follows:
Sec. 648.22 Closure of the fishery.
(a) * * *
(2) * * *
(i) If the Regional Administrator determines that the Trimester I
closure threshold has been underharvested by
[[Page 8313]]
25 percent or more, then the amount of the underharvest shall be
reallocated to Trimesters II and III, as specified at Sec.
648.21(f)(2), through notice in the Federal Register.
* * * * *
0
4. Section 648.26 is amended by revising paragraphs (a) and (d) to read
as follows:
Sec. 648.26 Observer requirements for the Loligo fishery.
(a) A vessel issued a Loligo and butterfish moratorium permit, as
specified at Sec. 648.4(a)(5)(i), must, for the purposes of observer
deployment, have a representative provide notice to NMFS of the vessel
name, vessel permit number, contact name for coordination of observer
deployment, telephone number or e-mail address for contact; and the
date, time, port of departure, and approximate trip duration, at least
72 hr, but no more than 10 days prior to beginning any fishing trip,
unless it complies with the possession restrictions in paragraph (c) of
this section.
* * * * *
(d) If a vessel issued a Loligo and butterfish moratorium permit,
as specified at Sec. 648.4(a)(5)(i), intends to possess, harvest, or
land 2,500 lb (1.13 mt) or more of Loligo per trip or per calendar day,
has a representative notify NMFS of an upcoming trip, is selected by
NMFS to carry an observer, and then cancels that trip, then the
representative is required to provide notice to NMFS of the vessel
name, vessel permit number, contact name for coordination of observer
deployment, and telephone number or e-mail for contact, and the
intended date, time, and port of departure for the cancelled trip prior
to the planned departure time. In addition, if a trip selected for
observer coverage is canceled, then that vessel is required to carry an
observer, provided an observer is available, on its next trip.
[FR Doc. 2011-3245 Filed 2-11-11; 8:45 am]
BILLING CODE 3510-22-P
