Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Framework Adjustment 6, 51853-51857 [2012-21058]
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Vol. 77
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August 27, 2012
Part II
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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
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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:
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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
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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).
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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]
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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]
[[Page 51853]]
Vol. 77
Monday,
No. 166
August 27, 2012
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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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]
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