[Federal Register Volume 64, Number 5 (Friday, January 8, 1999)]
[Rules and Regulations]
[Pages 1139-1141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-331]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 981106278-8336-02; I.D. 101598B]
RIN 0648-AL76


Fisheries of the Northeastern United States; Atlantic Mackerel, 
Squid, and Butterfish Fisheries; 1999 Specifications

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

ACTION: Final 1999 initial specifications.

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SUMMARY: NMFS issues final initial specifications for the 1999 fishing 
year for Atlantic mackerel, squid, and butterfish (MSB). Regulations 
governing these fisheries require NMFS to publish specifications for 
the upcoming fishing year that will prevent overfishing of these 
fisheries.

DATES: Effective January 1, 1999 through December 31, 1999.

ADDRESSES: Copies of the Environmental Assessment/Regulatory Impact 
Review (RIR)/Final Regulatory Flexibility Analysis (FRFA), are 
available from: Jon C. Rittgers, Acting Regional Administrator, 
Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298.

FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst, 
978-281-9273.

SUPPLEMENTARY INFORMATION: Regulations implementing the Fishery 
Management Plan for Atlantic Mackerel, Squid, and Butterfish Fisheries 
(FMP) prepared by the Mid-Atlantic Fishery Management Council (Council) 
appear at 50 CFR part 648. These regulations require NMFS to publish 
specifications for initial annual amounts of the initial optimum yield 
(IOY), as well as the amounts for allowable biological catch (ABC), 
domestic annual harvest (DAH), domestic annual processing (DAP), joint 
venture processing (JVP), and total allowable levels of foreign fishing 
(TALFF) for the species managed under the FMP. In addition to 
commercial quotas, the Council, in consultation with its Squid, 
Mackerel, and Butterfish Technical Monitoring Committee, may recommend 
revisions to the amount of squid and butterfish that may be retained, 
possessed, and landed by vessels issued the incidental catch permit, 
commercial minimum fish sizes, commercial trip limits, commercial 
seasonal quotas/closures for Loligo or Illex squid, minimum mesh sizes, 
commercial gear restrictions, recreational harvest limit, recreational 
minimum fish size, and recreational possession limits.
    Proposed 1999 initial specifications, requesting public comment, 
were published on November 17, 1998 (63 FR 63819). With the exception 
of the proposed mechanism for closure of the incidental fishery, the 
final initial specifications are unchanged from those that were 
published as proposed. A complete discussion appears in the proposed 
specifications and are not repeated here.

1999 Final Specifications

    The following table contains the final initial specifications for 
the 1999 Atlantic mackerel, Loligo and Illex squids, and butterfish 
fisheries as recommended by the Council.

 Final Initial Annual Specifications for Atlantic Mackerel, Squid, and Butterfish for the Fishing Year January 1
                                            Through December 31, 1999
                                                      [mt]
----------------------------------------------------------------------------------------------------------------
                                                               Squid
                 Specifications                  --------------------------------    Atlantic       Butterfish
                                                      Loligo           Illex         Mackerel
----------------------------------------------------------------------------------------------------------------
Max OY..........................................          26,000          24,000         \1\ N/A          16,000
ABC.............................................          21,000          19,000         383,000           7,200
IOY.............................................          21,000          19,000      \2\ 75,000           5,900
DAH.............................................          21,000          19,000      \3\ 75,000           5,900
DAP.............................................          21,000          19,000          50,000           5,900
JVP.............................................               0               0          10,000               0

[[Page 1140]]

 
TALFF...........................................               0               0               0               0
----------------------------------------------------------------------------------------------------------------
\1\ Not applicable.
\2\  OY may be increased during the year, but the total will not exceed 383,000 mt.
\3\ Includes 15,000 mt of Atlantic mackerel recreational allocation.

Joint Ventures

    Current MSB regulations allow for in-season adjustments of the 
annual specifications. These regulations authorize the Administrator, 
Northeast Region, NMFS (Regional Administrator), in consultation with 
the Council, to make adjustments during the fishing year by publication 
in the Federal Register stating the reasons for such an action and 
providing a 30-day public comment period. In conjunction with the 
proposed 1999 initial annual specifications action, the Regional 
Administrator sought Council input and public comment on a proposed in-
season adjustment of the 1999 Atlantic mackerel JVP up to a total of 
15,000 mt (this could result in an increase of as much as 5,000 mt in 
IOY and DAH), in the event additional JV applications are submitted. 
NMFS believed that by announcing this in-season adjustment during the 
proposed rule process, it would facilitate more timely use of the 
existing regulatory provision, allowing in-season increases to 
specifications including JVP. NMFS believes this action could provide 
another opportunity for U.S. vessels to participate in JV fisheries 
without any negative impacts on the Council's long-term goal to 
Americanize the fishery.
    Three special conditions imposed in previous years continue to be 
imposed on the 1999 Atlantic mackerel fishery as follows: (1) JVs are 
allowed south of 37 deg.30' N. latitude, but river herring bycatch may 
not exceed 0.25 percent of the over-the-side transfers of Atlantic 
mackerel; (2) the Regional Administrator must ensure that impacts on 
marine mammals are reduced in the prosecution of the Atlantic mackerel 
fishery; and (3) the mackerel OY may be increased during the year, but 
the total should not exceed ABC.

Changes From Proposed Rule

Closure of the Incidental Fishery

    Current MSB regulations authorize closure of the directed fishery 
in the EEZ for Loligo squid, Illex squid, or butterfish when 95 percent 
of DAH has been harvested. The closure would remain in effect for the 
remainder of the fishing year, with incidental catches allowed. On 
August 25, 1998, NMFS determined that 95 percent of the DAH for Illex 
squid had been harvested and closed the directed fishery for Illex 
squid (63 FR 45763, August 27, 1998). An incidental catch trip limit of 
5,000 lb (2.27 mt) was then instituted for all vessels issued Federal 
permits for Illex squid. Since the closure, the landings of Illex squid 
have exceeded 100 percent of the DAH for Illex squid. Therefore, a 
closure mechanism was included in the proposed rule. However, at the 
December 1998 Council meeting, members expressed concern about 
implementing an incidental closure mechanism with the annual 
specifications. The Council strongly urged NMFS to allow an incidental 
level of landings throughout the year because these species are 
commonly caught in the prosecution of other fisheries. It noted 
specifically that Illex is frequently caught incidental to the fall 
Loligo fishery. NMFS has subsequently eliminated the proposed closure 
from the final rule. NMFS believes that, if necessary, in future years 
the fishery can be constrained to the allowed harvest level by 
adjusting the percentage level that triggers the closure of the 
directed fishery (currently 95 percent).

Comments and Responses

    Three comments were received on the proposed specifications from 
the Council and from two industry participants:
    Comment 1: Both industry participants suggested a revision to the 
components of Atlantic mackerel DAH that would reduce DAH from 75,000 
mt to 70,000 mt. In the proposed rule, DAH is composed of 15,000 mt for 
the recreational fishery, 50,000 mt for DAP, and 10,000 mt for JVP. The 
commentors proposed instead to specify 70,000 mt DAH consisting of 
15,000 mt for the recreational fishery, 30,000 mt for DAP and 25,000 mt 
for JVP. The commentors noted that processors in past years have not 
attained the DAP levels estimated by the Council. They also proposed 
allocation of 10,000 mt of TALFF to provide a directed fishing 
incentive to foreign vessels considering joint ventures.
    Response: These proposals go beyond any measures discussed by the 
Council. This suggestion could negatively affect U.S. processing and 
exports by infringing on markets currently engaged by domestic 
processors. NMFS believes adjusting JVP by in-season action could 
provide another opportunity for U.S. vessels to participate in joint 
ventures without any negative impacts on the Council's long-term goal 
to Americanize the fishery. Section 802 of the Fisheries Act of 1995 
(16 U.S.C. 1821n.) prohibits the Secretary of Commerce from specifying 
a TALFF unless the Council recommends a TALFF. The Council did not 
recommend a TALFF.
    Comment 2: The Council commented in opposition to the proposal to 
authorize the Regional Administrator to close the incidental fisheries 
for the squids and butterfish when the DAH is attained. The Council 
members noted that the Council intended to allow the incidental 
fisheries to remain open after closure of the directed fisheries to 
allow for landings of squid or butterfish caught in other fisheries. 
The members also noted that closure of the incidental fisheries would 
pose a compliance problem for vessels that harvested small quantities 
of species incidental to other operations.
    Response: NMFS has eliminated the proposed measure to close the 
incidental fisheries from this final rule in response to the Council 
concerns. As noted in the preamble of this rule and discussed by the 
Council at its December 1998 meeting, these fisheries can be 
constrained to specified harvest levels by adjusting the percentage 
level that triggers the closure of the directed fishery (currently 95 
percent).
    Comment 3: The Council commented in opposition to the provision to 
expedite the in-season adjustment of the specification for JVP.
    Response: In its comment, the Council provided no additional 
rationale for its

[[Page 1141]]

opposition to this measure. NMFS has included the measure in the final 
specifications package because it sees no compelling reason not to do 
so. The in-season adjustment could provide another timely opportunity 
for U.S. vessels to participate in the fishery without any negative 
impacts on the Council's long-term goal to Americanize the fishery.

Classification

    These final specifications are authorized by 50 CFR part 648 and 
comply with the National Environmental Policy Act.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601 et seq.), the Director, Office of Sustainable Fisheries, NMFS, 
notified the Chief Counsel for Advocacy of the Small Business 
Administration when this rule was proposed that it could have a 
significant economic impact on a substantial number of small entities. 
Therefore, an initial regulatory flexibility analysis (IRFA) was 
prepared, as required by 603(a) of the RFA. Even though no comments 
were received on the IRFA, an FRFA was completed for this final rule 
because a thorough understanding of the economic impacts of this rule 
are important. A copy of the complete FRFA can be obtained from the 
Northeast Regional Office of NMFS (see ADDRESSES).

Summary of FRFA Conclusions

    The FRFA assumes that all vessels prosecuting these fisheries would 
be impacted by these quota specifications. Therefore, the substantial 
number (greater than 20 percent) criteria would be met. For Loligo 
squid, butterfish, and Atlantic mackerel, gross revenues are not 
expected to decrease as a consequence of this action. In 1997, Loligo 
squid landings were 16,203 mt. The final IOY specification for Loligo 
squid in 1999 is 21,000 mt. In 1997, butterfish landings were 2,797 mt. 
The final IOY specification for butterfish in 1999 is 5,900 mt. In the 
case of Atlantic mackerel, the 1999 IOY was reduced from 80,000 mt in 
1998 to the final level of 75,000 mt in 1999. Both specifications for 
mackerel exceed recent harvest in the 1997 fishery of 15,406 mt. In 
addition, the reduction in IOY in 1999 is due to a reduction in the JV 
specification by 5,000 mt. The only JV activity in recent years was in 
1998, when the joint venture operation was not able to harvest the 
entire venture allocation of 10,000 mt. Therefore, the FRFA concluded 
that the proposed reduction in the initial JV specification should not 
affect revenues in the fishery. In addition, the measure to allow an 
in-season increase in the specification would moderate any 
unanticipated affects.
    The final ABC specification for Illex squid in 1999 is 19,000 mt. 
In past years, a surplus existed between the 1998 ABC specification and 
what has been landed. However, due to over-harvesting in 1998, 22,585 
mt of Illex squid have been harvested as of September 1998. This means 
that the 1999 proposal equates to a decrease of 7.9 million lb (3,585 
mt) from 1998, valued at $1.975 million. The Council's Amendment 5 
document indicates that the directed fishery accounts for 99.7 percent 
of the total landings, meaning that $1,969,000 of the revenue 
associated with the quota overage would be attributed to moratorium 
vessels and only $6,000 to incidental catch vessels. According to 1998 
NMFS permit records, 75 vessels hold Illex squid moratorium permits and 
64 had Illex squid landings in 1998; 1,504 hold incidental catch 
permits. This would mean that each moratorium vessel could have revenue 
losses of $31,000 and each incidental catch vessel would have 
negligible revenue losses.
    This raises the question of the level of impact on the moratorium 
vessels. When dividing the 1998 overage value of $1.975 million by the 
64 moratorium vessels, this leads to an ex-vessel price of $551 per mt. 
Multiplying that value by the total harvest in 1998 of 22,585 mt of 
Illex leads to revenues of $12,444,335. When divided by the 64 
moratorium vessels this leads to $195,000. Dividing the revenue losses 
of $31,000 of each moratorium vessel by this value equates to a 16-
percent loss in average gross revenues. The RFA requires alternatives 
to be considered to moderate the impact on small entities. As noted, 
the specifications for all species except Illex allow for an increase 
in landings by affected small entities. However, the Illex 
specification represents a decrease in landings from the 1998 level. 
Any alternative to moderate this impact would result in overfishing of 
the Illex stock. This may sacrifice long-term returns from the resource 
for short term economic benefits. Concomitantly, such action conflicts 
with the requirements of the Magnuson-Stevens Fishery Conservation and 
Management Act. Therefore, over-harvest cannot be allowed to continue 
despite the obvious benefits of higher landings.
    Because this rule only establishes year-long quotas to be used for 
the sole purpose of closing the fishery when the quotas are reached and 
does not establish any requirements for which a regulated entity must 
come into compliance, the Assistant Administrator for Fisheries, NOAA, 
under 5 U.S.C. 553(d)(3), finds for good cause that a delay in the 
effective date of the final initial specifications for the 1999 fishing 
year for Atlantic mackerel, squid, and butterfish is unnecessary.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: January 4, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-331 Filed 1-4-99; 5:11 pm]
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