[Federal Register Volume 66, Number 42 (Friday, March 2, 2001)]
[Rules and Regulations]
[Pages 13024-13028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-5133]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 001127331-1044-02; I.D. 102600B]
RIN 0648-AN69


Fisheries of the Northeastern United States; Atlantic Mackerel, 
Squid, and Butterfish Fisheries; 2001 Specifications and Foreign 
Fishing Restrictions

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

ACTION: Final rule; specifications for 2001.

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SUMMARY: NMFS issues final specifications for the 2001 fishing year for 
Atlantic mackerel, squid, and butterfish (MSB). This action also 
allocates the domestic annual harvest for Loligo squid into quarterly 
periods. The intent of this final rule is to conserve and manage the 
MSB resource in compliance with the Fishery Management Plan for the 
Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP); the 
regulations; and the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act).

DATES: Effective March 2, 2001, except that the quotas for Loligo and 
Illex squid, Atlantic mackerel, and butterfish

[[Page 13025]]

are effective March 2, 2001, through December 31, 2001.

ADDRESSES: Send comments on any ambiguity or unnecessary complexity 
arising from the language used in this final rule to Patricia A. 
Kurkul, Regional Administrator, Northeast Region, National Marine 
Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-2298.
    Copies of supporting documents, including the Environmental 
Assessment(EA), Regulatory Impact Review (RIR), Final Regulatory 
Flexibility Analysis (FRFA) and the Essential Fish Habitat Assessment, 
are available from Patricia A. Kurkul (see previous address). The EA/
RIR/FRFA is accessible via the Internet at http://www.nero.gov/ro/doc/nr.htm.

FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst, 
978-281-9273, fax 978-281-9135, e-mail [email protected].

SUPPLEMENTARY INFORMATION: Regulations implementing the FMP require 
NMFS to publish annual specifications for maximum optimum yield (Max 
OY), allowable biological catch (ABC), initial optimum yield (IOY), 
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.
    Proposed 2001 initial specifications were published on December 5, 
2000 (65 FR 75912). Public comments were requested through January 4, 
2001. The final specifications are unchanged from those that were 
proposed. A complete discussion of the specifications appears in the 
preamble to the proposed rule and is not repeated here.

2001 Final Specifications

    The following table contains the final specifications for the 2001 
MSB fisheries as recommended by the Mid-Atlantic Fishery Management 
Council (Council).

Table 1. Final Annual Specifications for Atlantic Mackerel, Squid, and Butterfish for the Fishing Year January 1
                                   through December 31, 2001. Metric Tons (mt)
----------------------------------------------------------------------------------------------------------------
                                                                        Squid
                       Specifications                        --------------------------   Atlantic    Butterfish
                                                                 Loligo       Illex       Mackerel
----------------------------------------------------------------------------------------------------------------
Max OY                                                             26,000       24,000       N/A\1\       16,000
ABC                                                                17,000       24,000      347,000        7,200
IOY                                                             17,000\6\    24,000\6\  88,000\2,6\     5,900\6\
DAH                                                                17,000       24,000    85,000\3\        5,897
DAP                                                                17,000       24,000       50,000        5,897
JVP                                                                     0            0    20,000\4\            0
TALFF                                                                   0            0        3,000         3\5\
----------------------------------------------------------------------------------------------------------------
\1\ Not applicable.
\2\ OY may be increased during the year, but the total ABC will not exceed 347,000 mt
\3\ Includes 15,000 mt of Atlantic mackerel recreational allocation.
\4\ JVP may be increased up to 30,000 mt at discretion of RA.
\5\ Bycatch TALFF specified at Sec.  648.21(b)(3)(ii).
\6\ If a 2 percent research set-aside is deducted, the total IOY would be as follows: Atlantic mackerel - 86,240
  mt, Loligo-16,660 mt, Illex- 23,520 mt, and butterfish- 5,782 mt.

Atlantic Mackerel

    This final rule specifies an Atlantic mackerel JVP of 20,000 mt for 
the 2001 fishery, with a possible increase of up to 10,000 mt (for a 
total JVP of up to 30,000 mt) later in the fishing year, should 
additional applications for JVP be received. This adjustment would be 
made through publication of a notification in the Federal Register. 
This action also specifies an Atlantic mackerel DAP of 50,000 mt and a 
DAH of 85,000 mt, which includes a 15,000-mt recreational component.
    A TALFF of 3,000 mt is specified for the 2001 Atlantic mackerel 
fishery. Several foreign nations have expressed their interest in JVP, 
with two applications already submitted by Lithuania and the Russian 
Federation. A permit would only authorize a foreign vessel to harvest 
TALFF when U.S. vessels are unable to deliver product to foreign JV 
catcher/processor vessels for a period of time due to events such as 
bad weather.
    When setting TALFF specifications for the 2001 Atlantic mackerel 
fishery, the Council also recommended conditions and restrictions for 
JVs and TALFF allocations. Those recommendations include: (1) Allowing 
JVs south of 37 deg.30' N. lat., but restricting river herring 
incidental catch to no more than 0.25 percent of the over-the-side 
transfers of Atlantic mackerel; (2) prohibiting directed foreign 
fishing for Atlantic mackerel south of 37 deg. 30' N. lat., prohibiting 
directed foreign fishing for Atlantic mackerel landward of a line 20 
nautical miles from shore north of 37 deg. 30' N. lat., and specifying 
no TALFF for river herring; (3) ensuring, through the Administrator, 
Northeast Region, NMFS (Regional Administrator), that impacts on marine 
mammals are reduced in the prosecution of the Atlantic mackerel 
fishery; (4) allowing the mackerel optimum yield (OY) to be increased 
during the year, provided the total does not exceed 347,000 mt; (5) 
allowing the review of applications from a particular nation for a 
Atlantic mackerel JV or TALFF allocation for 2001 to include an 
evaluation by the Regional Administrator of that nation's performances 
relative to purchase obligations for previous years; (6) releasing 50 
percent of the foreign nation's TALFF allotment upon approval of an 
application for TALFF and releasing additional TALFF only when the 
foreign participant has purchased 25 percent of the JVP allotment to 
that nation, while specifying no purchase ratios; (7) requiring foreign 
fishing vessels (FFVs) purchasing JVP-caught fish from contracted U.S. 
vessels to cease directed fishing and take the transfer from the U.S. 
vessel as soon as practicable if a FFV engaged in directed fishing is 
approached by a contracted U.S. vessel; (8) authorizing no in-season 
adjustment in TALFF (i.e., TALFF not to exceed 3,000 mt), unless the 
Regional Administrator, in consultation with the Council, determines 
that it is appropriate to increase IOY to provide additional TALFF, 
provided the TALFF does not exceed a cap of 5,000 mt; and (9) limiting 
directed foreign fishing for Atlantic mackerel to the use of mid-water 
trawl gear. The Council recommended these conditions and restrictions 
to strictly control any

[[Page 13026]]

foreign fishing for TALFF for the benefit of the domestic fishery and 
in conformance with the FMP. NMFS will consider these recommendations 
prior to allocating TALFF.

Distribution of Annual Loligo Squid Quota into Four Quarters

    This final rule specifies a Loligo squid IOY of 17,000 mt, which is 
equal to ABC, and sub-divides the annual quota into quarterly periods. 
The quota is allocated to each period based on the proportion of 
landings occurring in each corresponding 3-month period from 1994-1998. 
The directed Loligo squid fishery will be closed in Quarters I, II, and 
III when 80 percent of any of those periods' allocations are harvested, 
with vessels restricted to a 2,500-lb (1,134 kg) Loligo trip limit 
until the end of the respective quarter. Additionally, when 95 percent 
of the total annual DAH has been harvested, the trip limit will be 
reduced to 2,500 lb (1,134 kg) of Loligo for the remainder of the year. 
When the 2,500-lb (1,134 kg) trip limit has been triggered, vessels 
will be prohibited from possessing or landing more than 2,500 lb in a 
single calendar day. Any quota overages in Quarter I will be deducted 
from the allocation in Quarter III, and any overage in Quarter II will 
be deducted from the allocation in Quarter IV. The quota allocation is 
shown in Table 2.

                                     Table 2. Loligo Quarterly Allocations.
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                 Quarter                                Percent                           Metric Tons
----------------------------------------------------------------------------------------------------------------
I (Jan-Mar)                                                            33.23                               5,649
II(Apr-Jun)                                                            17.61                               2,994
III (Jul-Sep)                                                          17.30                               2,941
IV (Oct-Dec)                                                           31.86                               5,416
Total                                                                 100.00                              17,000
----------------------------------------------------------------------------------------------------------------

Butterfish

    Regulations promulgated under Amendment 5 to the FMP eliminated the 
possibility of JVP or TALFF specifications for butterfish, except for a 
bycatch TALFF specification if TALFF is specified for Atlantic 
mackerel. Because this final rule allows for an Atlantic mackerel TALFF 
allocation, a 3 mt bycatch TALFF for butterfish has been specified. If 
the Regional Administrator, in consultation with of the Council, 
determines that it is appropriate to increase the specified TALFF of 
3,000 mt for Atlantic mackerel, then the specified TALFF of 3 mt for 
butterfish also will be increased. The Regional Administrator may 
increase the TALFF for Atlantic mackerel by up to 2000 mt and may 
increase the TALFF for butterfish by up to 1 mt (A butterfish TALFF of 
4 mt is equal to 0.08 percent of an Atlantic mackerel TALFF of 5000 mt, 
as described at Sec.  648.21(b)(3)(ii).

Comments and Responses

    Fifty-two comments were received on the proposed specifications 
from the public during the comment period that ended on January 4, 
2001. Specific comments related to the proposed annual specifications 
and regulations are discussed and responded to as follows:
    Comment 1: A commenter supported the allocation of Atlantic 
mackerel JVP and TALFF.
    Response: This final rule implements the proposed allocation of 
Atlantic mackerel JVP and TALFF.
    Comment 2: Many commenters did not support the allocation of 
Atlantic mackerel TALFF. One commenter stated that commercial and 
recreational fishers have been unable to harvest even a small 
percentage of the total allowable landings based on the current 
assessment of the mackerel fishery, leading fishers to believe that the 
assessments overestimate the actual stock size by orders of magnitude. 
The commenter concluded that NMFS does not have the data to take such a 
risk of exploiting such a valuable resource. Another commenter stated 
that it is unreasonable to encourage direct foreign harvest of mackerel 
while limiting domestic participation. The commenter further argued 
that foreign U.S. mackerel harvested product would compete with U.S. 
domestic mackerel harvest.
    Response: The most recent stock assessment for Atlantic mackerel 
(the 30th Northeast Regional Stock Assessment Workshop, April 2000 
(SAW-30)) concluded that the stock is at a high level of biomass and is 
underexploited. Current annual landings are considerably below the 
long-term potential yield estimated to be 150,000 mt. The SAW-30 
management advice stated that the forgone yield is in excess of 100,000 
mt and the fishery can be increased substantially. The Council believes 
the capacity of the domestic fleet to harvest mackerel greatly exceeds 
the domestic processors' capacity to process mackerel. The question of 
whether or not to provide an allocation of TALFF, other than zero, was 
reviewed and discussed by the Council at length before it made a final 
recommendation. Allowing a very small level (1 percent of the ABC) of 
foreign fishing to take place, primarily to move incrementally toward 
achieving OY and to provide opportunity to utilize U.S. harvesting 
capacity by stimulating JVP activity, will have a positive impact on 
the development of the U.S. Atlantic mackerel fishery in the world 
market and will not compete with mackerel harvested by U.S. vessels.
    Comment 3: A commenter raised the need for an ecosystem-wide, 
integrated approach to population assessments, and stated that removal 
of mackerel by the foreign fleets could dramatically effect the entire 
ecosystem food chain (whales, cod, haddock, dogfish, and other 
groundfish) along the east coast of the Atlantic. The commenter 
concluded that any surplus of fish not harvested by domestic vessels 
should be reserved for the ecosystem and those species that depend upon 
them for food.
    Response: Ecosystem approaches to fishery assessment and management 
are desirable, and NMFS is working on such approaches that may prove 
useful in the future. However, given the complexity of ecosystem 
interactions, there is no demonstrative link between mackerel abundance 
and the survival and recovery of whales, cod, haddock, and other 
groundfish. The current population assessment is consistent with the 
best available scientific information and scientific practices, 
complies with requirements of applicable law, and is adequate to manage 
effectively the mackerel fishery.
    Comment 4: A commenter argued that foreign vessels intending to 
operate under an allocation of TALFF would greatly exceed the 
restrictions of the law passed by Congress limiting the length, weight, 
and horsepower of vessels participating in the mackerel fishery.
    Response: NMFS disagrees. In the NMFS appropriations bills for 
fiscal years 1998 and 1999, Congress restricted NMFS from using any of 
its funds to

[[Page 13027]]

issue permits or other authorization letters to domestic vessels 
exceeding the established length, weight, and horsepower limit 
restrictions. Current mackerel regulations (Sec.  648.4(a)(5)(iii)) 
allow any domestic vessel to obtain a permit to fish for or retain 
Atlantic mackerel in or from the EEZ, except for vessels that exceed 
either 165 ft (50.3 m) in length overall and 750 gross registered tons, 
or a shaft horsepower of 3000. These restrictions were put into place 
to manage the harvest capacity of the domestic fleet. In the case of 
foreign vessels, the harvest capacity is controlled by the extremely 
small amount of TALFF allocation, rendering the size limit restrictions 
immaterial.
    Comment 5: A commenter stated that the allocation of Atlantic 
mackerel DAP is overestimated, noted that U.S. processors in past years 
have not attained the DAP levels recommended by the Council, and 
recommended reducing DAP.
    Response: NMFS disagrees. Reducing DAP, which could negatively 
affect U.S. processing and exports by infringing on markets currently 
engaged in by domestic processors, goes well beyond any measures 
discussed and analyzed by the Council. In order to be considered by 
NMFS, recommendations to reduce DAP should be made through the Council 
for its consideration and analysis.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a FRFA for this action. A copy of the FRFA is 
available from NMFS (see ADDRESSES). A summary of the FRFA follows:
    A description of the reasons why action by the agency is being 
taken and the objectives of this final rule are explained in the 
preamble to the proposed rule and are not repeated here. This action 
does not contain any collection-of-information, reporting, 
recordkeeping, or other compliance requirements. It does not duplicate, 
overlap, or conflict with any other Federal rules. This action is taken 
under authority of the Magnuson-Stevens Act and regulations at 50 CFR 
part 648.
    Fifty-two comments were submitted on the proposed rule, but none of 
them were specific to the initial regulatory flexibility analysis. 
However, 10 commenters responded to the economic impacts of the 
measures on of fishing industry, and NMFS addressed those comments (1, 
2, and 5) in the Comments and Responses section of the preamble to the 
final rule. No changes were made to the final rule as a result of these 
comments received.
    There are 475 Loligo vessels, 77 Illex vessels, 443 butterfish 
vessels, and 1,980 Atlantic mackerel vessels that reported landings 
during the period 1996-1999 that would likely be impacted by the 2001 
specifications. Many vessels participate in more than one of these 
fisheries; therefore, the numbers are not additive. The final Illex, 
butterfish, and Atlantic mackerel specifications represent no 
constraint on vessels in these fisheries. The levels of these 
specifications have not been achieved by landings for these species in 
recent years. Absent a constraint on the fisheries, no impacts on 
revenues are expected.
    If the final 2001 DAH specification for Loligo squid is not 
exceeded, the result would be a decrease in catch and revenue in the 
Loligo fishery relative to the 1999 landings and an increase from the 
average landings from 1996-1999 (i.e., if the status quo were 
maintained) and the 2000 preliminary landings.
    The first alternative action for Atlantic mackerel would be to set 
the 2001 specifications at the same level as 2000, with DAP at 50,000 
mt and JVP at 10,000 mt. Although it was rejected as inconsistent with 
the FMP because it would not meet the policy objectives of the Council 
relative to further development of the U.S. domestic harvest of 
Atlantic mackerel, this alternative would place no constraints, and 
consequently no revenue impacts, on the fishery.
    The second alternative for mackerel would be to set ABC at the 
long-term potential catch, or 150,000 mt, with DAP at 50,000 mt and JVP 
at 20,000 mt. This alternative was found inconsistent with the FMP 
because it would not allow for variations and contingencies in the 
status of the stock. For example, the current adult stock was recently 
estimated to exceed 2.1 million mt. The specification of ABC at LTPC 
would effectively result in an exploitation rate of only about 6 
percent, well below the optimal level of exploitation. The level of 
foregone yield under this alternative was considered unacceptable and 
would not impact the IOY specifications.
    The third alternative for mackerel would be to lower the 
specification of IOY to 68,000 mt and eliminate JVP, resulting in a DAP 
of 50,000 mt. This alternative would not constrain the fishery and 
would have no impact on revenues of participants in this fishery.
    For Loligo, one alternative would be to set the ABC, DAH, DAP, and 
IOY at 13,000 mt. This was the same level as 2000 until an inseason 
adjustment increased the ABC, DAH, DAP, and IOY to 15,000 mt (65 FR 
60118, October 10, 2000). Under the scenario of a 13,000 mt DAH; if 
that value were not exceeded in 2001, 121 of the 443 impacted vessels 
would experience revenue reductions of greater than 5 percent. This 
would represent a 20.5-percent reduction in 1996-1999 average landings 
of 16,348 mt. The remaining 322 vessels would experience less than a 5-
percent reduction in revenue or an increase in revenue. A second 
alternative would be to set ABC, DAH, DAP, and IOY at 11,700 mt. This 
would represent a 28.4-percent reduction in 1996-1999 average landings. 
Under this scenario, 161 of the 443 impacted vessels would experience 
revenue reductions of greater than 5-percent. The remaining 282 vessels 
would experience less than a 5-percent reduction in revenue, or an 
increase in revenue.
    For Illex, the first alternative would be to set Max OY, ABC, IOY, 
DAH, and DAP at 30,000 mt, and the second alternative would be to set 
Max OY at 24,000 mt and ABC, IOY, DAH, and DAP at 19,000 mt, far 
exceeding recent landings in this fishery. Therefore, there would be no 
constraints, and, thus, no revenue reductions, associated with these 
specifications.
    Alternatives for butterfish would be a DAH, OY, and Max OY of 
16,000 mt, and a DAH and OY of 10,000 mt. These specifications would 
not constrain or impact the industry; however, they would lead to 
overfishing of the stock, and, thus, were rejected by the Council.
    Because this final rule only establishes either year-long or 
seasonal quotas for the managed species 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 regulatory entity must come into 
compliance, it is unnecessary to delay for 30 days the effective date 
of this final rule. Therefore, the Assistant Administrator for 
Fisheries, NOAA, under 5 U.S.C. 553(d)(3), finds good cause not to 
delay the effective date of this final rule.
    NMFS determined that this final rule will be implemented in a 
manner that is consistent, to the maximum extent practicable, with the 
approved coastal management programs of Maine, New Hampshire, 
Massachusetts, Rhode Island, Connecticut, New York, New Jersey, 
Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South 
Carolina, Georgia and Florida. Concurrence in consistency was submitted 
by the responsible state agencies of Massachusetts, Rhode Island, 
Connecticut, New Jersey (Loligo squid, Illex squid, and butterfish), 
Pennsylvania, Delaware, Virginia, North

[[Page 13028]]

Carolina, South Carolina, and Georgia. Because no response was received 
from Maine, New Hampshire, New York, Maryland, and Florida, state 
concurrence in consistency is inferred. New Jersey disagreed with this 
determination and advocated that the specification of Atlantic mackerel 
TALFF is inconsistent with the economic protection provisions of its 
coastal management program relative to employment and financial 
opportunities for commercial, charter, and party vessels. NMFS and the 
Council disagree with New Jersey's determination. Allowing a very small 
level (1 percent of the ABC) of foreign fishing to take place, 
primarily to move incrementally toward achieving OY and to provide 
opportunity to utilize U.S. harvesting capacity by stimulating JV 
activity, will have a positive impact on the development of the U.S. 
Atlantic mackerel fishery and will not compete with mackerel harvested 
by U.S. vessels.
    The President has directed Federal agencies to use plain language 
in their communications with the public including regulations. To 
comply with this directive, we seek public comment on any ambiguity or 
unnecessary complexity arising from the language used in this final 
rule. Such comments should be sent to the Northeast Regional 
Administrator (see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 26, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, 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 Sec.  648.21, paragraph (e) is revised to read as follows:


Sec.  648.21  Procedures for determining initial annual amounts.

    (e) Distribution of annual Loligo squid commercial quota. (1) 
Beginning January 1, 2001, a commercial quota will be allocated 
annually for Loligo squid into quarterly periods, based on the 
following percentages:

------------------------------------------------------------------------
                            Quarter                              Percent
------------------------------------------------------------------------
I-January-March...............................................     33.23
II-April-June.................................................     17.61
III-July-September............................................     17.30
IV-October-December...........................................     31.86
------------------------------------------------------------------------

    (2) Beginning January 1, 2001, any overages of commercial quota 
landed from Quarter I will be subtracted from Quarter III and any 
overages of commercial quota landed from Quarter II will be subtracted 
from Quarter IV.

    3. In Sec.  648.22, paragraph (a) is revised to read as follows:


Sec.  648.22  Closure of the fishery.

    (a) General. NMFS shall close the directed mackerel fishery in the 
EEZ when U.S. fishermen have harvested 80 percent of the DAH of that 
fishery if such closure is necessary to prevent the DAH from being 
exceeded. The closure shall remain in effect for the remainder of the 
fishing year, with incidental catches allowed as specified in paragraph 
(c) of this section, until the entire DAH is attained. When the 
Regional Administrator projects that DAH will be attained for mackerel, 
NMFS will close the mackerel fishery in the EEZ, and the incidental 
catches specified for mackerel in paragraph (c) of this section will be 
prohibited. NMFS will close the directed fishery in the EEZ for Loligo 
when 80 percent is harvested in Quarters I, II and III, and when 95 
percent of the total annual DAH has been harvested. The closure of the 
directed fishery will be in effect for the remainder of the fishing 
year, with incidental catches allowed as specified in paragraph (c) of 
this section. NMFS will close the directed fishery in the EEZ for Illex 
or butterfish when 95 percent of the DAH has been harvested. The 
closure of the directed fishery will be in effect for the remainder of 
the fishing year, with incidental catches allowed as specified in 
paragraph (c) of this section.
[FR Doc. 01-5133 Filed 3-1-01; 8:45 am]
BILLING CODE 3510-22-S