Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Framework Adjustment 6, 51853-51857 [2012-21058]

Download as PDF Vol. 77 Monday, No. 166 August 27, 2012 Part II Department of Commerce pmangrum on DSK3VPTVN1PROD with RULES_2 National Oceanic and Atmospheric Administration 50 CFR Part 648 Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Framework Adjustment 6 and Specifications and Management Measures; Final Rules VerDate Mar<15>2010 15:05 Aug 24, 2012 Jkt 226001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\27AUR2.SGM 27AUR2 51854 Federal Register / Vol. 77, No. 166 / Monday, August 27, 2012 / Rules and Regulations DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 120307159–2329–01] RIN 0648–BB99 Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Framework Adjustment 6 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS is modifying the MidAtlantic Fishery Management Council’s risk policy regarding stocks without an overfishing limit. Framework Adjustment 6 was initiated by the MidAtlantic Fishery Management Council in order to clarify its tolerance for risk for such stocks. The modification will allow increases of the acceptable biological catch for stocks that have stable or increasing trends in abundance, and for which there is robust scientific information to suggest that an increased acceptable biological catch will not lead to overfishing. DATES: Effective on August 24, 2012. ADDRESSES: Copies of supporting documents used by the Mid-Atlantic Fishery Management Council (Council), including the Supplemental Environmental Assessment (EA) and the Regulatory Impact Review (RIR), for Framework Adjustment 6, and the Omnibus Annual Catch Limits and Accountability Measure Amendment EA/RIR, are available from: John K. Bullard, Northeast Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. These documents are also accessible via the Internet at http://www.nero.noaa.gov. FOR FURTHER INFORMATION CONTACT: Aja Szumylo, Fishery Policy Analyst, 978– 281–9195, fax 978–281–9135. SUPPLEMENTARY INFORMATION: pmangrum on DSK3VPTVN1PROD with RULES_2 SUMMARY: Background NMFS published a proposed rule for Framework Adjustment 6 on June 28, 2012 (77 FR 38566). Additional background information and detail on why and how Framework Adjustment 6 was developed are included in the proposed rule, and are not repeated here. The Council established acceptable biological catch (ABC) control rules (implementing regulations VerDate Mar<15>2010 15:05 Aug 24, 2012 Jkt 226001 at 50 CFR 648.20) and a risk policy (§ 648.21) to guide the Council’s Scientific and Statistical Committee (SSC) in its ABC setting process for all Council fishery management plans (FMPs) in the recently implemented Omnibus Amendment for Annual Catch Limits and Accountability Measures (October 31, 2011; 76 FR 60606). The Council’s original risk policy did not permit increases to the ABC for stocks that lack an overfishing limit (OFL) derived either from the stock assessment, or through the SSC ABC recommendation process. Framework Adjustment 6 modifies the risk policy regarding stocks without an OFL or OFL proxy to allow the SSC to recommend increases to the ABC for stocks that have stable or increasing trends in abundance, and for which the SSC can point to robust scientific information to suggest that an increased ABC will not lead to overfishing. The adjustment to this policy does not change the Council’s approach to stocks without an OFL that have declining biomass, or for which the SSC cannot point to scientific evidence to suggest that the recommended ABC will not result in overfishing. Though this action only modifies the MSB FMP, the adjusted risk policy applies to all of the Council’s managed species, including Atlantic mackerel, butterfish, Atlantic bluefish, spiny dogfish, summer flounder, scup, black sea bass, Atlantic surfclam, ocean quahog, and tilefish. The regulations for the ABC control rules and risk policy reside in the MSB FMP, but are a product of the Omnibus Amendment, which affected all of the FMPs for the above-listed species. The provisions in the Omnibus Amendment, including the risk policy, do not apply to longfin squid or Illex squid; these species are exempt from these requirements because they have a life cycle of less than 1 year. It is only necessary to complete this action as a framework adjustment to the MSB FMP because the ABC control rules and risk policy are incorporated by reference into the regulations for all other Council species. Comments and Responses NMFS received a total of four comments on the proposed rule for Framework Adjustment 6 from: Lund’s Fisheries, Inc., a processing facility in Cape May, NJ; the Garden State Seafood Association (GSSA), a New Jersey-based commercial fishing industry group; the Herring Alliance, which represents 52 organizations concerned about the status of the Atlantic Coast’s forage fish; and the Natural Resources Defense Council (NRDC). PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 Comment 1: Lund’s Fisheries, Inc., and GSSA supported Framework Adjustment 6. They noted that this action will clearly define the Council’s risk policy and retain the integrity of the SSC scientific review process, while providing the SSC with the needed flexibility to set ABCs in data-poor situations. GSSA noted that the SSC should be allowed to analyze and use all available scientific data when recommending ABC, and should not be constrained because no OFL can be derived. Lund’s Fisheries, Inc., and GSSA supported the requirement that the SSC must justify its decision by providing a description of why the increase is warranted, how it arrived at the increase, and certify why overfishing will not occur. Lund’s Fisheries, Inc., asserted that, under these strict requirements, any fear that the SSC would greatly inflate the ABC without scientific justification is unwarranted. Response: NMFS agrees that it is the Council’s prerogative to define its risk policy to communicate its tolerance for risk in ABC recommendations to the SSC, provided that its risk policy complies with the Magnuson-Stevens Act. The Council’s revisions to the risk policy do comply with the MagnusonStevens Act because the SSC is still confined to specific criteria in setting an ABC that does not pose the risk of overfishing for a given stock. Further, the Council and NMFS will review SSC ABC recommendations to ensure that the revised risk policy is applied appropriately. Comment 2: The Herring Alliance and NRDC urged NMFS to disapprove Framework Adjustment 6. They noted that the Council is proposing a significant modification to its risk policy that would sanction a more riskprone approach to managing stocks lacking an OFL. Further, the Herring Alliance argued that the proposed changes to the risk policy would nullify the policy for Level 4 stocks (those stocks with the lowest certainty in scientific information), leaving those species vulnerable to overfishing, which is incongruous with the objectives of the Omnibus Amendment, the National Standard 1 guidelines, and the Magnuson-Stevens Act. Response: The adjustment would only allow increases for Level 4 stocks that have had stable or increasing trends in abundance, and stocks for which the SSC could certify that its ABC recommendation is not likely to result in overfishing. NMFS disagrees that the adjustment to this policy would nullify the risk policy for all Level 4 stock. Framework Adjustment 6 does not E:\FR\FM\27AUR2.SGM 27AUR2 pmangrum on DSK3VPTVN1PROD with RULES_2 Federal Register / Vol. 77, No. 166 / Monday, August 27, 2012 / Rules and Regulations change the Council’s approach to stocks without an OFL/OFL proxy that have evidence of biomass declines or for which the SSC cannot point to scientific evidence to suggest that the recommended ABC will not result in overfishing. Neither the Magnuson-Stevens Act nor the National Standard 1 guidelines have language prohibiting increases in ABC in the absence of an OFL. The National Standard 1 guidelines do advise that, when possible, the determination of an ABC should be based on the probability that an actual catch equal to the stock’s ABC would result in overfishing (see § 600.310(f)(4)), but make no mention of how a Council should proceed when it is not possible to establish an OFL or OFL proxy. Each Council may determine the acceptable level of risk of overfishing (which overall must be below 50 percent, according to Magnuson-Stevens Act; § 600.310(f)(4)). In this case, the Council is further defining its risk tolerance for certain stocks without an OFL or OFL proxy. Comment 3: Lund’s Fisheries, Inc., commented that the application of this policy as it pertains to the final 2012 butterfish specifications is urgent. It urged NMFS to immediately publish a final rule implementing Framework 6 and waive the delay in effectiveness so that the final 2012 butterfish specifications can be published prior to the start of the Trimester III longfin squid fishery. It argued that a delay in publication would result in negative economic impacts to the squid fishery, and that a waiver would not pose any threat to overfishing the butterfish resource. Response: NMFS agrees that the approval of Framework 6 has immediate implications for the longfin squid fishery, but clarifies that, regardless of the immediate implications of this action, the revisions to the risk policy will apply to all Council-managed species that may lack an OFL in the future. NMFS published a proposed rule (October 26, 2011; 76 FR 66260) with the Council’s original 2012 butterfish ABC recommendation (3,622 mt) because, in the absence of the risk policy, the SSC’s advice to increase the butterfish ABC (from 1,811 mt in 2011) was otherwise well justified (see response to Comment 6). A comment on the proposed rule pointed out that increases to the butterfish ABC were prohibited by the Council’s risk policy, and we addressed this inconsistency by publishing the status quo specification in an interim final rule (March 21, 2012; 77 FR 16472). In response to our interim final rule for butterfish, the Council VerDate Mar<15>2010 15:05 Aug 24, 2012 Jkt 226001 initiated Framework 6 to revise its risk policy for all Council-managed species. The timing of Framework 6 coincides with the start of Trimester III for longfin squid (September 1–December 31), which, under the existing butterfish specifications, would not open because the total annual butterfish mortality cap on the longfin squid fishery (1,436 mt) has been attained. Framework 6 provides the authority to implement the Council’s original 2012 recommendation for butterfish specifications in a final rule, which could allow the Trimester III longfin squid fishery to open on schedule by increasing the butterfish mortality cap (to 2,445 mt). Comment 4: The Herring Alliance argued that Framework 6 was developed solely as a result of the first application of the risk policy to the 2012 butterfish specifications. It asserted that NMFS should not approve a rushed Council decision solely on a single ABC specification experience. It commented that, rather than bypassing its own policy, the Council should work to develop OFLs for all Level 4 stocks in order to set ABCs that comply with the current risk policy, as the SSC did for butterfish for the 2013 fishing year. It noted that, in order for the SSC to certify that an ABC will not lead to overfishing, it will need to perform an analysis of all relevant scientific information about the status of the stock to determine whether quota increases will lead to overfishing. It argues that this level of analysis is equivalent to the development of an OFL proxy. Response: NMFS reiterates that the adjustment to the risk policy in Framework 6 applies to all of the Council’s managed species. While the process to initiate the change was started in response to the 2012 specifications experience with butterfish, the Council worked to devise a revision to the risk policy that would allow the SSC to use all available information when making ABC recommendations for any situation where a Council-managed species does not have an OFL available from the assessment. The SSC has noted its preference to have an OFL estimate that is based on the assessment, which takes into account all information about population dynamics that is available at the time (see Framework Adjustment 6 discussion at April 2012 Council meeting). It noted that, rather than deriving an OFL proxy when an OFL is unavailable from the assessment, its preference is to simply set an ABC that it believes would not lead to overfishing based on all other available evidence. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 51855 NMFS agrees that this approach is valid, provided that sufficient scientific evidence is presented in the SSC’s deliberations to suggest that its recommendation will not result in overfishing of the stock in question. As further support for this approach, the National Standard 1 guidelines at § 600.310(f)(3) note that while NMFS expects that in most cases a recommended ABC should be reduced from the OFL to reduce the probability of overfishing, the ABC may be set equal to the OFL. Again, NMFS expect the SSC and the Council to present very strong justification for such cases (§ 600.310(f)(5)). Comment 5: The NRDC asserted that ad hoc approaches to developing ABC recommendations that have not been vetted by independent experts lack transparency and rigorous independent evaluation, and thus do not represent the best available scientific information. The NRDC asserted that is especially the case given that more rigorous methods for estimating reference points for datapoor stocks are available. It noted that the SSC’s ABC recommendations for the 2012 and 2013 specifications are prime examples of the dangers of ad hoc decision making. The NRDC commented that the Council and NMFS should adopt a policy with specific criteria and characteristics for which methods are acceptable for determining OFLs or OFL proxies for data-limited stocks. Response: The SSC is expected to conduct its ABC recommendation process in an open, transparent public forum and to provide detailed documentation for the Council and public that provides the information considered, the approaches taken, and why the recommended ABC is consistent with the best available scientific information. Thus, provided that the SSC can demonstrate that the method that it uses for a given stock is defensible and will not result in overfishing for the stock in question, NMFS does not believe that it is necessary to define a list of criteria or characteristics of methods that are acceptable for determining OFLs or OFL proxies for data-limited stocks. Comment 6: The NRDC criticized the SSC’s recommended butterfish ABCs for both the 2012 and 2013 fishing years. It noted that the SSC doubled the 2012 ABC based on a NOAA Technical Memorandum used to set ABCs for stocks that only have reliable catch information, but did not apply the recommended methodology in the memorandum properly, and the SSC’s subsequent reaffirmation of their 2012 ABC recommendation under the provisions in Framework 6. It also E:\FR\FM\27AUR2.SGM 27AUR2 pmangrum on DSK3VPTVN1PROD with RULES_2 51856 Federal Register / Vol. 77, No. 166 / Monday, August 27, 2012 / Rules and Regulations criticized the SSC’s butterfish ABC recommendation for the 2013 fishing year. Further, it noted that the change in the risk policy being proposed in Framework Adjustment 6 would encourage more of this type of rushed decision making, which will in turn increase the risk of overfishing for the stocks with the greatest uncertainty regarding stock status and productivity. In contrast, Lund’s Fisheries, Inc., and GSSA supported the Council’s 2012 butterfish recommendations. They noted that any increases in butterfish catch would be expected to be very small relative to the actual increase in butterfish abundance. They also asserted that the chances of overfishing the butterfish resource under the modest quota increases initially proposed by the Council and NMFS in the proposed rule for 2012 butterfish specifications are, by SSC estimates, extremely low. Response: NMFS does not believe that Framework 6 will lead to rushed decision making. Again, the SSC is still confined to a specific set of criteria in setting an ABC that does not pose the risk of overfishing for a given stock. The final implementation of specifications for Council-managed species is the culmination of a lengthy process that involves input from the SSC, the Council, the Northeast Fisheries Science Center, and NMFS policy staff. The Council may recommend a more conservative ABC than that recommended by the SSC if it feels that the SSC’s recommendation does not adequately safeguard against overfishing. Further, NMFS can implement alternative specifications, should our review determine that the Council’s recommendation is out of compliance with National Standard 1. NMFS notes that the merits of the SSC’s ABC recommendations for the 2012 and 2013 fishing years are not the subject of this rulemaking, but offers some discussion of these issues because of their relevance to Framework 6. With regard to the SSC’s 2012 ABC recommendation, the NRDC references NOAA Technical Memorandum NMFS– SEFSC–616 (Calculating Acceptable Biological Catch for Stocks that have Reliable Catch Data Only (Only Reliable Catch Stocks—ORCS; 2011)). The memorandum was developed by a Working Group comprised of representatives from seven of the eight SSCs, five of the six NMFS Science Centers, NMFS Headquarters, academic institutions, a state agency, and a nongovernmental organization to offer guidance that can be used to set ABCs for stocks that only have reliable catch data, are lightly fished, and appear to have stable or increasing trends. The VerDate Mar<15>2010 15:05 Aug 24, 2012 Jkt 226001 SSC noted that the butterfish stock met the criteria outlined for this approach, and relied on the concepts in this guidance document in developing its ABC recommendation. The report recommends doubling catch during a stable period to create an OFL, setting the ABC at 50 to 90 percent of the OFL, and then tracking the stock to see how the adjusted catch levels affect abundance. During its public process, the SSC discussed that, given that butterfish fishing mortality was likely contributing very little to changes in stock abundance, the ABC could be doubled and still yield a fishing mortality rate that would not affect stock size. The SSC also commented during Council deliberations that establishing an OFL or OFL proxy would not have changed its ABC recommendation for 2012. NMFS considered the SSC’s rationale for increasing the butterfish ABC and found it to be appropriate and well supported by the best available scientific information. The SSC was guided by NOAA Technical Memorandum NMFS– SEFSC–616, and used its scientific judgment to recommend an ABC that was expected to result in a level of fishing mortality documented in SAW 49, and, as noted by the SSC, was not expected to result in overfishing of the butterfish resource. NMFS notes that, since the initiation of Framework Adjustment 6, the SSC reaffirmed its original 2012 butterfish ABC recommendation of 3,622 mt (originally recommended in May 2011) at their May 2012 meeting in accordance with the provisions in Framework Adjustment 6, and the Council reaffirmed their original suite of recommended specifications (originally recommended in June 2011) at its June 2012 meeting. As noted in the response to Comment 3, NMFS will publish a rule to finalize butterfish specifications shortly. Comments on the Council’s 2013 specifications recommendations will be addressed in the 2013 specifications process. The SSC recommended a 2013 butterfish ABC to the Council at its May 2012 meeting, and the Council adopted the SSC’s recommendation, along with butterfish specifications and management measures, at its June 2012 meeting. The Council is finalizing its recommendation, which will be submitted to NMFS for review and rulemaking. NMFS clarifies that the SSC did not rely on the provisions in Framework Adjustment 6 for its 2013 butterfish ABC recommendation because it was able to develop an OFL proxy during its deliberations. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 Comment 7: The Herring Alliance argued that such a regressive change to the risk policy requires full consideration through an FMP amendment, rather than through a framework adjustment. It noted that the Omnibus Amendment clearly specifies that any significant changes are not appropriate under the limited public process of a framework adjustment. The Herring Alliance acknowledged that the Omnibus Amendment does allow for changes to a limited list of its provisions through the framework adjustment process, but claims that changes to the risk policy are not included in that list for any of the Council-managed species. The Herring Alliance argued that the adjustment to the risk policy proposed in Framework Adjustment 6 is an entirely new concept that was not previously contemplated by the Council, and that the proposed deviation to the risk policy is different from the provisions already in place for the Council to deviate from the ABC control rules. It claimed that, since the proposed changes to risk policy are a complete reversal of the Council’s original guidance for Level 4 stocks, it cannot be characterized as a minor adjustment. Response: This action does not introduce a new concept, and is not a significant departure from the Council’s existing risk policy, but rather a clarification of the Council’s intent regarding stocks with increasing trends for which an OFL cannot be established. Similar discussion regarding departure from the Council’s established ABC control rules is included in the NS1 Guidelines (§ 600.310(f)(3)) and in the ABC control rule regulations at § 648.20. The Council felt that the flexibility provided to the SSC in the ABC control rules was in conflict with the lack of flexibility in its existing risk policy. Because the risk policy and ABC control rules are meant to work in concert, the Council initiated Framework Adjustment 6 to perfect and clarify its guidance to the SSC. Framework Adjustment 6 does not change the Council’s approach for all Level 4 stocks, and only allows the SSC to recommend ABC increases for Level 4 stocks under very limited circumstances. Stocks without an OFL or OFL proxy that have evidence of biomass declines or for which the SSC cannot point to scientific evidence to suggest that the recommended ABC will not result in overfishing will still be bound by the original risk policy. Adjustments to the existing Council risk policy can be addressed through the framework process for all Councilmanaged species (see § 648.25(a)(1) for E:\FR\FM\27AUR2.SGM 27AUR2 Federal Register / Vol. 77, No. 166 / Monday, August 27, 2012 / Rules and Regulations pmangrum on DSK3VPTVN1PROD with RULES_2 mackerel and butterfish; § 648.79(a)(1) for surfclam and ocean quahog; § 648.110(a)(1) for summer flounder; § 648.130(a)(1) for scup; § 648.149(a)(1) for black sea bass; § 648.167(a)(1) for bluefish; § 648.239(a)(1) for spiny dogfish; and § 648.299(a)(1)(x) for tilefish). Given that the adjustment will only apply in limited circumstances, and given that no other provisions of the Omnibus Amendment are altered by this action, this change is minor enough to have been addressed in a framework adjustment rather than through a plan amendment. The analytical requirements to complete this action as a framework adjustment or an amendment are the same, and the Council prepared the necessary analytical requirements for this action in the form of a Supplemental Environmental Assessment. The primary difference is the amount of time that it takes to complete an amendment as compared to a framework adjustment. The Council process for this framework adjustment was completed over two Council meetings (February 2012 and April 2012). In contrast, an amendment would take several additional months for completion. The public was provided the required notice for Council meetings for this framework adjustment, and the meetings were open to public participation and offered the public sufficient opportunity to comment on the measures being considered. Finally, this framework adjustment underwent the proposed and final rulemaking processes to allow the public additional opportunity to comment. Classification The Administrator, Northeast Region, NMFS, determined that this framework adjustment to the Atlantic Mackerel, Squid, and Butterfish; Atlantic Bluefish; Spiny Dogfish; Summer Flounder, Scup, and Black Sea Bass; Surfclam and Ocean Quahog; and Tilefish FMPs is necessary for the conservation and management of the Atlantic mackerel, butterfish, Atlantic bluefish, spiny dogfish, summer flounder, scup, black sea bass, surfclam, ocean quahog, and tilefish fisheries and that it is consistent with the Magnuson-Stevens Act and other applicable laws. The Assistant Administrator for Fisheries, NOAA, finds good cause under section 553(d) of the Administrative Procedure Act to waive the 30-day delay in effectiveness for this action because delaying the effectiveness of this rule would be contrary to the public interest. Immediate implementation of Framework Adjustment 6 will allow for the increase in the butterfish mortality VerDate Mar<15>2010 15:05 Aug 24, 2012 Jkt 226001 cap on the longfin squid fishery to 2,445 mt (a 1,009-mt increase from status quo) through the implementation of the final 2012 butterfish specifications. The Council initiated process for Framework Adjustment 6 at its February 2012 meeting, which was the first Council meeting after it realized that its risk policy may need further clarification with respect to stocks without an overfishing limit. The timeline that this action has followed has been the fastest possible given statutory requirements, and happens to coincide with the start of Trimester III for longfin squid. By the time the longfin squid fishery closed on July 10, 2012, in Trimester II, over 100 percent of the status quo annual allocation of the butterfish mortality cap was estimated to have been taken. Because the butterfish mortality cap closes the longfin squid fishery in Trimester III when 90 percent of the annual butterfish cap allocation has been taken, under the status quo allocation, the longfin squid fishery would not be opened at the start of Trimester III on September 1, 2012. The increased butterfish mortality cap implemented through the final 2012 butterfish specifications will allow for the longfin squid fishery to operate during Trimester III. Longfin squid migrate throughout their range and have sporadic availability. The fleet is quick to target longfin squid aggregations when they do appear, and is capable of landing over 550 mt in a single week. Analysis of this year’s fishing activity indicates that longfin squid was particularly abundant this spring and summer, and historical availability patterns suggest that longfin squid abundance could still be high in the early fall. Only 7,761 mt of the 22,220 mt longfin squid quota has been harvested this year, meaning that well over half of the quota remains to be harvested during the final 4 months of the fishing year. A 30-day delay in the implementation of this rulemaking, and thus a delay in the implementation of the final 2012 butterfish specifications, may prevent fishermen from accessing longfin squid when it is temporarily available within portions of its range and prevent the harvest of a significant amount of longfin squid quota (up to 2,220 mt of the remaining 14,459 mt of longfin squid quota), negating any benefit of implementing this rule. This final rule has been determined to be not significant for purposes of Executive Order 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action PO 00000 Frm 00005 Fmt 4701 Sfmt 9990 51857 would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Recordkeeping and reporting requirements. Dated: August 21, 2012. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, Performing the Functions and Duties of the 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 (d) is revised to read as follows: ■ § 648.21 Mid-Atlantic Fishery Management Council risk policy. * * * * * (d) Stock without an OFL or OFL proxy. (1) If an OFL cannot be determined from the stock assessment, or if a proxy is not provided by the SSC during the ABC recommendation process, ABC levels may not be increased until such time that an OFL has been identified. (2) The SSC may deviate from paragraph (d)(1) of this section, provided that the following two criteria are met: Biomass-based reference points indicate that the stock is greater than BMSY and stock biomass is stable or increasing, or if biomass based reference points are not available, best available science indicates that stock biomass is stable or increasing; and the SSC provides a determination that, based on best available science, the recommended increase to the ABC is not expected to result in overfishing. Any such deviation must include a description of why the increase is warranted, description of the methods used to derive the alternative ABC, and a certification that the ABC is not likely to result in overfishing on the stock. [FR Doc. 2012–21058 Filed 8–24–12; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\27AUR2.SGM 27AUR2

Agencies

[Federal Register Volume 77, Number 166 (Monday, August 27, 2012)]
[Rules and Regulations]
[Pages 51853-51857]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21058]



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No. 166

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Part II





Department of Commerce





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50 CFR Part 648





Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, 
and Butterfish Fisheries; Framework Adjustment 6 and Specifications and 
Management Measures; Final Rules

Federal Register / Vol. 77 , No. 166 / Monday, August 27, 2012 / 
Rules and Regulations

[[Page 51854]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120307159-2329-01]
RIN 0648-BB99


Fisheries of the Northeastern United States; Atlantic Mackerel, 
Squid, and Butterfish Fisheries; Framework Adjustment 6

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

ACTION: Final rule.

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SUMMARY: NMFS is modifying the Mid-Atlantic Fishery Management 
Council's risk policy regarding stocks without an overfishing limit. 
Framework Adjustment 6 was initiated by the Mid-Atlantic Fishery 
Management Council in order to clarify its tolerance for risk for such 
stocks. The modification will allow increases of the acceptable 
biological catch for stocks that have stable or increasing trends in 
abundance, and for which there is robust scientific information to 
suggest that an increased acceptable biological catch will not lead to 
overfishing.

DATES: Effective on August 24, 2012.

ADDRESSES: Copies of supporting documents used by the Mid-Atlantic 
Fishery Management Council (Council), including the Supplemental 
Environmental Assessment (EA) and the Regulatory Impact Review (RIR), 
for Framework Adjustment 6, and the Omnibus Annual Catch Limits and 
Accountability Measure Amendment EA/RIR, are available from: John K. 
Bullard, Northeast Regional Administrator, National Marine Fisheries 
Service, 55 Great Republic Drive, Gloucester, MA 01930. These documents 
are also accessible via the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Aja Szumylo, Fishery Policy Analyst, 
978-281-9195, fax 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    NMFS published a proposed rule for Framework Adjustment 6 on June 
28, 2012 (77 FR 38566). Additional background information and detail on 
why and how Framework Adjustment 6 was developed are included in the 
proposed rule, and are not repeated here. The Council established 
acceptable biological catch (ABC) control rules (implementing 
regulations at 50 CFR 648.20) and a risk policy (Sec.  648.21) to guide 
the Council's Scientific and Statistical Committee (SSC) in its ABC 
setting process for all Council fishery management plans (FMPs) in the 
recently implemented Omnibus Amendment for Annual Catch Limits and 
Accountability Measures (October 31, 2011; 76 FR 60606). The Council's 
original risk policy did not permit increases to the ABC for stocks 
that lack an overfishing limit (OFL) derived either from the stock 
assessment, or through the SSC ABC recommendation process. Framework 
Adjustment 6 modifies the risk policy regarding stocks without an OFL 
or OFL proxy to allow the SSC to recommend increases to the ABC for 
stocks that have stable or increasing trends in abundance, and for 
which the SSC can point to robust scientific information to suggest 
that an increased ABC will not lead to overfishing. The adjustment to 
this policy does not change the Council's approach to stocks without an 
OFL that have declining biomass, or for which the SSC cannot point to 
scientific evidence to suggest that the recommended ABC will not result 
in overfishing.
    Though this action only modifies the MSB FMP, the adjusted risk 
policy applies to all of the Council's managed species, including 
Atlantic mackerel, butterfish, Atlantic bluefish, spiny dogfish, summer 
flounder, scup, black sea bass, Atlantic surfclam, ocean quahog, and 
tilefish. The regulations for the ABC control rules and risk policy 
reside in the MSB FMP, but are a product of the Omnibus Amendment, 
which affected all of the FMPs for the above-listed species. The 
provisions in the Omnibus Amendment, including the risk policy, do not 
apply to longfin squid or Illex squid; these species are exempt from 
these requirements because they have a life cycle of less than 1 year. 
It is only necessary to complete this action as a framework adjustment 
to the MSB FMP because the ABC control rules and risk policy are 
incorporated by reference into the regulations for all other Council 
species.

Comments and Responses

    NMFS received a total of four comments on the proposed rule for 
Framework Adjustment 6 from: Lund's Fisheries, Inc., a processing 
facility in Cape May, NJ; the Garden State Seafood Association (GSSA), 
a New Jersey-based commercial fishing industry group; the Herring 
Alliance, which represents 52 organizations concerned about the status 
of the Atlantic Coast's forage fish; and the Natural Resources Defense 
Council (NRDC).
    Comment 1: Lund's Fisheries, Inc., and GSSA supported Framework 
Adjustment 6. They noted that this action will clearly define the 
Council's risk policy and retain the integrity of the SSC scientific 
review process, while providing the SSC with the needed flexibility to 
set ABCs in data-poor situations. GSSA noted that the SSC should be 
allowed to analyze and use all available scientific data when 
recommending ABC, and should not be constrained because no OFL can be 
derived. Lund's Fisheries, Inc., and GSSA supported the requirement 
that the SSC must justify its decision by providing a description of 
why the increase is warranted, how it arrived at the increase, and 
certify why overfishing will not occur. Lund's Fisheries, Inc., 
asserted that, under these strict requirements, any fear that the SSC 
would greatly inflate the ABC without scientific justification is 
unwarranted.
    Response: NMFS agrees that it is the Council's prerogative to 
define its risk policy to communicate its tolerance for risk in ABC 
recommendations to the SSC, provided that its risk policy complies with 
the Magnuson-Stevens Act. The Council's revisions to the risk policy do 
comply with the Magnuson-Stevens Act because the SSC is still confined 
to specific criteria in setting an ABC that does not pose the risk of 
overfishing for a given stock. Further, the Council and NMFS will 
review SSC ABC recommendations to ensure that the revised risk policy 
is applied appropriately.
    Comment 2: The Herring Alliance and NRDC urged NMFS to disapprove 
Framework Adjustment 6. They noted that the Council is proposing a 
significant modification to its risk policy that would sanction a more 
risk-prone approach to managing stocks lacking an OFL. Further, the 
Herring Alliance argued that the proposed changes to the risk policy 
would nullify the policy for Level 4 stocks (those stocks with the 
lowest certainty in scientific information), leaving those species 
vulnerable to overfishing, which is incongruous with the objectives of 
the Omnibus Amendment, the National Standard 1 guidelines, and the 
Magnuson-Stevens Act.
    Response: The adjustment would only allow increases for Level 4 
stocks that have had stable or increasing trends in abundance, and 
stocks for which the SSC could certify that its ABC recommendation is 
not likely to result in overfishing. NMFS disagrees that the adjustment 
to this policy would nullify the risk policy for all Level 4 stock. 
Framework Adjustment 6 does not

[[Page 51855]]

change the Council's approach to stocks without an OFL/OFL proxy that 
have evidence of biomass declines or for which the SSC cannot point to 
scientific evidence to suggest that the recommended ABC will not result 
in overfishing.
    Neither the Magnuson-Stevens Act nor the National Standard 1 
guidelines have language prohibiting increases in ABC in the absence of 
an OFL. The National Standard 1 guidelines do advise that, when 
possible, the determination of an ABC should be based on the 
probability that an actual catch equal to the stock's ABC would result 
in overfishing (see Sec.  600.310(f)(4)), but make no mention of how a 
Council should proceed when it is not possible to establish an OFL or 
OFL proxy. Each Council may determine the acceptable level of risk of 
overfishing (which overall must be below 50 percent, according to 
Magnuson-Stevens Act; Sec.  600.310(f)(4)). In this case, the Council 
is further defining its risk tolerance for certain stocks without an 
OFL or OFL proxy.
    Comment 3: Lund's Fisheries, Inc., commented that the application 
of this policy as it pertains to the final 2012 butterfish 
specifications is urgent. It urged NMFS to immediately publish a final 
rule implementing Framework 6 and waive the delay in effectiveness so 
that the final 2012 butterfish specifications can be published prior to 
the start of the Trimester III longfin squid fishery. It argued that a 
delay in publication would result in negative economic impacts to the 
squid fishery, and that a waiver would not pose any threat to 
overfishing the butterfish resource.
    Response: NMFS agrees that the approval of Framework 6 has 
immediate implications for the longfin squid fishery, but clarifies 
that, regardless of the immediate implications of this action, the 
revisions to the risk policy will apply to all Council-managed species 
that may lack an OFL in the future. NMFS published a proposed rule 
(October 26, 2011; 76 FR 66260) with the Council's original 2012 
butterfish ABC recommendation (3,622 mt) because, in the absence of the 
risk policy, the SSC's advice to increase the butterfish ABC (from 
1,811 mt in 2011) was otherwise well justified (see response to Comment 
6). A comment on the proposed rule pointed out that increases to the 
butterfish ABC were prohibited by the Council's risk policy, and we 
addressed this inconsistency by publishing the status quo specification 
in an interim final rule (March 21, 2012; 77 FR 16472). In response to 
our interim final rule for butterfish, the Council initiated Framework 
6 to revise its risk policy for all Council-managed species. The timing 
of Framework 6 coincides with the start of Trimester III for longfin 
squid (September 1-December 31), which, under the existing butterfish 
specifications, would not open because the total annual butterfish 
mortality cap on the longfin squid fishery (1,436 mt) has been 
attained. Framework 6 provides the authority to implement the Council's 
original 2012 recommendation for butterfish specifications in a final 
rule, which could allow the Trimester III longfin squid fishery to open 
on schedule by increasing the butterfish mortality cap (to 2,445 mt).
    Comment 4: The Herring Alliance argued that Framework 6 was 
developed solely as a result of the first application of the risk 
policy to the 2012 butterfish specifications. It asserted that NMFS 
should not approve a rushed Council decision solely on a single ABC 
specification experience. It commented that, rather than bypassing its 
own policy, the Council should work to develop OFLs for all Level 4 
stocks in order to set ABCs that comply with the current risk policy, 
as the SSC did for butterfish for the 2013 fishing year. It noted that, 
in order for the SSC to certify that an ABC will not lead to 
overfishing, it will need to perform an analysis of all relevant 
scientific information about the status of the stock to determine 
whether quota increases will lead to overfishing. It argues that this 
level of analysis is equivalent to the development of an OFL proxy.
    Response: NMFS reiterates that the adjustment to the risk policy in 
Framework 6 applies to all of the Council's managed species. While the 
process to initiate the change was started in response to the 2012 
specifications experience with butterfish, the Council worked to devise 
a revision to the risk policy that would allow the SSC to use all 
available information when making ABC recommendations for any situation 
where a Council-managed species does not have an OFL available from the 
assessment.
    The SSC has noted its preference to have an OFL estimate that is 
based on the assessment, which takes into account all information about 
population dynamics that is available at the time (see Framework 
Adjustment 6 discussion at April 2012 Council meeting). It noted that, 
rather than deriving an OFL proxy when an OFL is unavailable from the 
assessment, its preference is to simply set an ABC that it believes 
would not lead to overfishing based on all other available evidence. 
NMFS agrees that this approach is valid, provided that sufficient 
scientific evidence is presented in the SSC's deliberations to suggest 
that its recommendation will not result in overfishing of the stock in 
question. As further support for this approach, the National Standard 1 
guidelines at Sec.  600.310(f)(3) note that while NMFS expects that in 
most cases a recommended ABC should be reduced from the OFL to reduce 
the probability of overfishing, the ABC may be set equal to the OFL. 
Again, NMFS expect the SSC and the Council to present very strong 
justification for such cases (Sec.  600.310(f)(5)).
    Comment 5: The NRDC asserted that ad hoc approaches to developing 
ABC recommendations that have not been vetted by independent experts 
lack transparency and rigorous independent evaluation, and thus do not 
represent the best available scientific information. The NRDC asserted 
that is especially the case given that more rigorous methods for 
estimating reference points for data-poor stocks are available. It 
noted that the SSC's ABC recommendations for the 2012 and 2013 
specifications are prime examples of the dangers of ad hoc decision 
making. The NRDC commented that the Council and NMFS should adopt a 
policy with specific criteria and characteristics for which methods are 
acceptable for determining OFLs or OFL proxies for data-limited stocks.
    Response: The SSC is expected to conduct its ABC recommendation 
process in an open, transparent public forum and to provide detailed 
documentation for the Council and public that provides the information 
considered, the approaches taken, and why the recommended ABC is 
consistent with the best available scientific information. Thus, 
provided that the SSC can demonstrate that the method that it uses for 
a given stock is defensible and will not result in overfishing for the 
stock in question, NMFS does not believe that it is necessary to define 
a list of criteria or characteristics of methods that are acceptable 
for determining OFLs or OFL proxies for data-limited stocks.
    Comment 6: The NRDC criticized the SSC's recommended butterfish 
ABCs for both the 2012 and 2013 fishing years. It noted that the SSC 
doubled the 2012 ABC based on a NOAA Technical Memorandum used to set 
ABCs for stocks that only have reliable catch information, but did not 
apply the recommended methodology in the memorandum properly, and the 
SSC's subsequent reaffirmation of their 2012 ABC recommendation under 
the provisions in Framework 6. It also

[[Page 51856]]

criticized the SSC's butterfish ABC recommendation for the 2013 fishing 
year. Further, it noted that the change in the risk policy being 
proposed in Framework Adjustment 6 would encourage more of this type of 
rushed decision making, which will in turn increase the risk of 
overfishing for the stocks with the greatest uncertainty regarding 
stock status and productivity.
    In contrast, Lund's Fisheries, Inc., and GSSA supported the 
Council's 2012 butterfish recommendations. They noted that any 
increases in butterfish catch would be expected to be very small 
relative to the actual increase in butterfish abundance. They also 
asserted that the chances of overfishing the butterfish resource under 
the modest quota increases initially proposed by the Council and NMFS 
in the proposed rule for 2012 butterfish specifications are, by SSC 
estimates, extremely low.
    Response: NMFS does not believe that Framework 6 will lead to 
rushed decision making. Again, the SSC is still confined to a specific 
set of criteria in setting an ABC that does not pose the risk of 
overfishing for a given stock. The final implementation of 
specifications for Council-managed species is the culmination of a 
lengthy process that involves input from the SSC, the Council, the 
Northeast Fisheries Science Center, and NMFS policy staff. The Council 
may recommend a more conservative ABC than that recommended by the SSC 
if it feels that the SSC's recommendation does not adequately safeguard 
against overfishing. Further, NMFS can implement alternative 
specifications, should our review determine that the Council's 
recommendation is out of compliance with National Standard 1.
    NMFS notes that the merits of the SSC's ABC recommendations for the 
2012 and 2013 fishing years are not the subject of this rulemaking, but 
offers some discussion of these issues because of their relevance to 
Framework 6. With regard to the SSC's 2012 ABC recommendation, the NRDC 
references NOAA Technical Memorandum NMFS-SEFSC-616 (Calculating 
Acceptable Biological Catch for Stocks that have Reliable Catch Data 
Only (Only Reliable Catch Stocks--ORCS; 2011)). The memorandum was 
developed by a Working Group comprised of representatives from seven of 
the eight SSCs, five of the six NMFS Science Centers, NMFS 
Headquarters, academic institutions, a state agency, and a non-
governmental organization to offer guidance that can be used to set 
ABCs for stocks that only have reliable catch data, are lightly fished, 
and appear to have stable or increasing trends. The SSC noted that the 
butterfish stock met the criteria outlined for this approach, and 
relied on the concepts in this guidance document in developing its ABC 
recommendation. The report recommends doubling catch during a stable 
period to create an OFL, setting the ABC at 50 to 90 percent of the 
OFL, and then tracking the stock to see how the adjusted catch levels 
affect abundance. During its public process, the SSC discussed that, 
given that butterfish fishing mortality was likely contributing very 
little to changes in stock abundance, the ABC could be doubled and 
still yield a fishing mortality rate that would not affect stock size. 
The SSC also commented during Council deliberations that establishing 
an OFL or OFL proxy would not have changed its ABC recommendation for 
2012. NMFS considered the SSC's rationale for increasing the butterfish 
ABC and found it to be appropriate and well supported by the best 
available scientific information. The SSC was guided by NOAA Technical 
Memorandum NMFS-SEFSC-616, and used its scientific judgment to 
recommend an ABC that was expected to result in a level of fishing 
mortality documented in SAW 49, and, as noted by the SSC, was not 
expected to result in overfishing of the butterfish resource.
    NMFS notes that, since the initiation of Framework Adjustment 6, 
the SSC reaffirmed its original 2012 butterfish ABC recommendation of 
3,622 mt (originally recommended in May 2011) at their May 2012 meeting 
in accordance with the provisions in Framework Adjustment 6, and the 
Council reaffirmed their original suite of recommended specifications 
(originally recommended in June 2011) at its June 2012 meeting. As 
noted in the response to Comment 3, NMFS will publish a rule to 
finalize butterfish specifications shortly.
    Comments on the Council's 2013 specifications recommendations will 
be addressed in the 2013 specifications process. The SSC recommended a 
2013 butterfish ABC to the Council at its May 2012 meeting, and the 
Council adopted the SSC's recommendation, along with butterfish 
specifications and management measures, at its June 2012 meeting. The 
Council is finalizing its recommendation, which will be submitted to 
NMFS for review and rulemaking. NMFS clarifies that the SSC did not 
rely on the provisions in Framework Adjustment 6 for its 2013 
butterfish ABC recommendation because it was able to develop an OFL 
proxy during its deliberations.
    Comment 7: The Herring Alliance argued that such a regressive 
change to the risk policy requires full consideration through an FMP 
amendment, rather than through a framework adjustment. It noted that 
the Omnibus Amendment clearly specifies that any significant changes 
are not appropriate under the limited public process of a framework 
adjustment. The Herring Alliance acknowledged that the Omnibus 
Amendment does allow for changes to a limited list of its provisions 
through the framework adjustment process, but claims that changes to 
the risk policy are not included in that list for any of the Council-
managed species. The Herring Alliance argued that the adjustment to the 
risk policy proposed in Framework Adjustment 6 is an entirely new 
concept that was not previously contemplated by the Council, and that 
the proposed deviation to the risk policy is different from the 
provisions already in place for the Council to deviate from the ABC 
control rules. It claimed that, since the proposed changes to risk 
policy are a complete reversal of the Council's original guidance for 
Level 4 stocks, it cannot be characterized as a minor adjustment.
    Response: This action does not introduce a new concept, and is not 
a significant departure from the Council's existing risk policy, but 
rather a clarification of the Council's intent regarding stocks with 
increasing trends for which an OFL cannot be established. Similar 
discussion regarding departure from the Council's established ABC 
control rules is included in the NS1 Guidelines (Sec.  600.310(f)(3)) 
and in the ABC control rule regulations at Sec.  648.20. The Council 
felt that the flexibility provided to the SSC in the ABC control rules 
was in conflict with the lack of flexibility in its existing risk 
policy. Because the risk policy and ABC control rules are meant to work 
in concert, the Council initiated Framework Adjustment 6 to perfect and 
clarify its guidance to the SSC.
    Framework Adjustment 6 does not change the Council's approach for 
all Level 4 stocks, and only allows the SSC to recommend ABC increases 
for Level 4 stocks under very limited circumstances. Stocks without an 
OFL or OFL proxy that have evidence of biomass declines or for which 
the SSC cannot point to scientific evidence to suggest that the 
recommended ABC will not result in overfishing will still be bound by 
the original risk policy.
    Adjustments to the existing Council risk policy can be addressed 
through the framework process for all Council-managed species (see 
Sec.  648.25(a)(1) for

[[Page 51857]]

mackerel and butterfish; Sec.  648.79(a)(1) for surfclam and ocean 
quahog; Sec.  648.110(a)(1) for summer flounder; Sec.  648.130(a)(1) 
for scup; Sec.  648.149(a)(1) for black sea bass; Sec.  648.167(a)(1) 
for bluefish; Sec.  648.239(a)(1) for spiny dogfish; and Sec.  
648.299(a)(1)(x) for tilefish). Given that the adjustment will only 
apply in limited circumstances, and given that no other provisions of 
the Omnibus Amendment are altered by this action, this change is minor 
enough to have been addressed in a framework adjustment rather than 
through a plan amendment. The analytical requirements to complete this 
action as a framework adjustment or an amendment are the same, and the 
Council prepared the necessary analytical requirements for this action 
in the form of a Supplemental Environmental Assessment. The primary 
difference is the amount of time that it takes to complete an amendment 
as compared to a framework adjustment. The Council process for this 
framework adjustment was completed over two Council meetings (February 
2012 and April 2012). In contrast, an amendment would take several 
additional months for completion. The public was provided the required 
notice for Council meetings for this framework adjustment, and the 
meetings were open to public participation and offered the public 
sufficient opportunity to comment on the measures being considered. 
Finally, this framework adjustment underwent the proposed and final 
rulemaking processes to allow the public additional opportunity to 
comment.

Classification

    The Administrator, Northeast Region, NMFS, determined that this 
framework adjustment to the Atlantic Mackerel, Squid, and Butterfish; 
Atlantic Bluefish; Spiny Dogfish; Summer Flounder, Scup, and Black Sea 
Bass; Surfclam and Ocean Quahog; and Tilefish FMPs is necessary for the 
conservation and management of the Atlantic mackerel, butterfish, 
Atlantic bluefish, spiny dogfish, summer flounder, scup, black sea 
bass, surfclam, ocean quahog, and tilefish fisheries and that it is 
consistent with the Magnuson-Stevens Act and other applicable laws.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under section 553(d) of the Administrative Procedure Act to waive the 
30-day delay in effectiveness for this action because delaying the 
effectiveness of this rule would be contrary to the public interest. 
Immediate implementation of Framework Adjustment 6 will allow for the 
increase in the butterfish mortality cap on the longfin squid fishery 
to 2,445 mt (a 1,009-mt increase from status quo) through the 
implementation of the final 2012 butterfish specifications. The Council 
initiated process for Framework Adjustment 6 at its February 2012 
meeting, which was the first Council meeting after it realized that its 
risk policy may need further clarification with respect to stocks 
without an overfishing limit. The timeline that this action has 
followed has been the fastest possible given statutory requirements, 
and happens to coincide with the start of Trimester III for longfin 
squid. By the time the longfin squid fishery closed on July 10, 2012, 
in Trimester II, over 100 percent of the status quo annual allocation 
of the butterfish mortality cap was estimated to have been taken. 
Because the butterfish mortality cap closes the longfin squid fishery 
in Trimester III when 90 percent of the annual butterfish cap 
allocation has been taken, under the status quo allocation, the longfin 
squid fishery would not be opened at the start of Trimester III on 
September 1, 2012. The increased butterfish mortality cap implemented 
through the final 2012 butterfish specifications will allow for the 
longfin squid fishery to operate during Trimester III. Longfin squid 
migrate throughout their range and have sporadic availability. The 
fleet is quick to target longfin squid aggregations when they do 
appear, and is capable of landing over 550 mt in a single week. 
Analysis of this year's fishing activity indicates that longfin squid 
was particularly abundant this spring and summer, and historical 
availability patterns suggest that longfin squid abundance could still 
be high in the early fall. Only 7,761 mt of the 22,220 mt longfin squid 
quota has been harvested this year, meaning that well over half of the 
quota remains to be harvested during the final 4 months of the fishing 
year. A 30-day delay in the implementation of this rulemaking, and thus 
a delay in the implementation of the final 2012 butterfish 
specifications, may prevent fishermen from accessing longfin squid when 
it is temporarily available within portions of its range and prevent 
the harvest of a significant amount of longfin squid quota (up to 2,220 
mt of the remaining 14,459 mt of longfin squid quota), negating any 
benefit of implementing this rule.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: August 21, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, Performing the Functions and 
Duties of the 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 (d) is revised to read as follows:


Sec.  648.21  Mid-Atlantic Fishery Management Council risk policy.

* * * * *
    (d) Stock without an OFL or OFL proxy. (1) If an OFL cannot be 
determined from the stock assessment, or if a proxy is not provided by 
the SSC during the ABC recommendation process, ABC levels may not be 
increased until such time that an OFL has been identified.
    (2) The SSC may deviate from paragraph (d)(1) of this section, 
provided that the following two criteria are met: Biomass-based 
reference points indicate that the stock is greater than 
BMSY and stock biomass is stable or increasing, or if 
biomass based reference points are not available, best available 
science indicates that stock biomass is stable or increasing; and the 
SSC provides a determination that, based on best available science, the 
recommended increase to the ABC is not expected to result in 
overfishing. Any such deviation must include a description of why the 
increase is warranted, description of the methods used to derive the 
alternative ABC, and a certification that the ABC is not likely to 
result in overfishing on the stock.

[FR Doc. 2012-21058 Filed 8-24-12; 8:45 am]
BILLING CODE 3510-22-P