[Federal Register Volume 67, Number 17 (Friday, January 25, 2002)]
[Rules and Regulations]
[Pages 3623-3627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1997]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 011005244-2011-02; I.D. No. 092401D]
RIN 0648-AP08


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Foreign Fishing and Fisheries of the Northeastern United 
States; Atlantic Mackerel, Squid, and Butterfish Fisheries; 2002 
Specifications and Foreign Fishing Restrictions

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

ACTION: Final rule; specifications for 2002.

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SUMMARY: NMFS announces final initial specifications for the 2002 
fishing year for Atlantic mackerel, squid, and butterfish (MSB); 
including an in-season adjustment provision for the 2002 mackerel joint 
venture processing (JVP) annual specification. This action also 
specifies a method for carrying over Loligo squid Quarter I underages 
into Quarter III. The intent of this final rule is to promote the 
development and conservation of the MSB resource.

DATES: This rule is effective January 25, 2002. The quotas in Tables 1 
and 2 for Loligo and Illex squid, Atlantic mackerel, and butterfish are 
effective January 25, 2002, through December 31, 2002.

ADDRESSES: 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, Regional Administrator, 
Northeast Regional Office, NMFS, One Blackburn Drive, Gloucester, MA 
01930-2298. The EA/RIR/FRFA is accessible via the Internet at http://www.nero.nmfs.gov.

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 Atlantic 
Mackerel, Squid, and Butterfish Fishery Management Plan (FMP) require 
NMFS to publish annual initial specifications for maximum optimum yield 
(Max OY), allowable biological catch (ABC), initial optimum yield 
(IOY), domestic annual harvest (DAH), domestic annual processing (DAP), 
JVP, and total allowable level of foreign fishing (TALFF) for the 
species managed under the FMP. In addition, regulations implemented 
under Framework Adjustment 1 to the FMP allow the specification of 
quota set-asides to be used for research purposes.
    Proposed 2002 initial specifications were published on October 23, 
2001 (66 FR 53575). Public comments were accepted through November 23, 
2001. The final specifications are unchanged from those that were 
proposed except that they reflect the research set-aside (RSA) 
allocations that have been recommended to the NOAA Grants Office for 
funding. A complete discussion of the development of the specifications 
appears in the preamble to the proposed rule and is not repeated here.

2002 Final Initial Specifications

    The following table contains the final initial specifications and 
RSA for the 2002 MSB fisheries as recommended by the Mid-Atlantic 
Fishery Management Council (Council).

  Table 1. Final Initial Annual Specifications and RSA, in Metric Tons (mt), for Atlantic Mackerel, Squid, and
                       Butterfish for the Fishing Year January 1 through December 31, 2002
----------------------------------------------------------------------------------------------------------------
                                                                        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                                                             16,898\5\       24,000    85,000\2\        5,900
DAH                                                             16,898\5\       24,000    85,000\3\        5,900

[[Page 3624]]

 
DAP                                                             16,898\5\       24,000       50,000        5,900
JVP                                                                     0            0    20,000\4\            0
TALFF                                                                   0            0            0            0
RSA                                                                   102            0            0            0
----------------------------------------------------------------------------------------------------------------
\1\ Not applicable.
\2\ IOY 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 Regional Administrator.
\5\ Excludes 102 mt for RSA.

Atlantic Mackerel

    This final rule specifies an Atlantic mackerel JVP of 20,000 mt for 
the 2002 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 by NMFS, through publication of notification in the Federal 
Register, following consultation with the Council. The 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.
    Four special conditions recommended by the Council and imposed by 
NMFS in previous years continue to apply to the 2002 Atlantic mackerel 
fishery, as follows: (1) JVPs would be allowed south of 37 deg.30' N. 
lat., but river herring bycatch may not exceed 0.25 percent of the 
over-the-side transfers of Atlantic mackerel; (2) the Administrator, 
Northeast Region, NMFS (Regional Administrator) should ensure that 
impacts on marine mammals are reduced in the prosecution of the 
Atlantic mackerel fishery; (3) the mackerel optimum yield (OY) may be 
increased during the year, but it should not exceed 347,000 mt; and (4) 
applications from a particular nation for an Atlantic mackerel JVP 
allocation for 2002 may be based on an evaluation by the Regional 
Administrator of that nation's performances relative to purchase 
obligations for previous years.

Atlantic Squids

Research Set-Asides
    Framework Adjustment 1 to the FMP allows the specification of quota 
set-asides to be used for research purposes. The Council recommended 
that up to 2 percent of the 2002 IOY be set aside for scientific 
research purposes for each of the species in the FMP. A Request for 
Proposals was published to solicit proposals for 2002 based on research 
priorities identified by the Council (66 FR 38636, July 25, 2001, and 
66 FR 45668, August 29, 2001). The deadline for submission was 
September 14, 2001. On November 8, 2001, NMFS convened a Review Panel 
to review the comments submitted by technical reviewers. Based on 
discussions between NMFS staff, technical review comments, and Review 
Panelist comments, two Loligo squid project proposals were recommended 
for approval and forwarded to the NOAA Grants Office for award. 
Consistent with the recommendations, the quotas in this final rule have 
been adjusted to reflect the projects recommended for approval. If the 
awards are not made by the NOAA Grants Office for any reason, NMFS will 
publish an additional rule to restore the unused set-aside amount to 
the annual quota.
Distribution of the Annual Loligo Squid Quota
    Due to the recommendation of two research projects that would 
utilize Loligo squid RSA, this final rule adjusts the quarterly 
allocations from those that were proposed, based on formulas specified 
in the FMP. The 2002 quarterly allocations are as follows:

               Table 2. Loligo Squid Quarterly Allocations
------------------------------------------------------------------------
                                                               Research
             Quarter                 Percent    Metric Tons   Set-aside
                                                    (mt)         (mt)
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I (Jan--Mar)                             33.23        5,615          N/A
II (Apr--Jun)                            17.61        2,976          N/A
III (Jul--Sep)                            17.3        2,923          N/A
IV (Oct--Dec)                            31.86        5,384          N/A
Total                                      100       16,898          102
------------------------------------------------------------------------

Carry-over of Loligo Squid Quarterly Quota Underages
    For the 2001 fishing year, by default, quarterly underages carry 
over into Quarter IV because the directed fishery in Quarter IV does 
not close until 95 percent of the total annual quota has been 
harvested. This final rule modifies the method for carrying over Loligo 
squid quarterly underages for 2002 and subsequent fishing years by 
adding a provision stating that, in the event that the Quarter I 
landings for Loligo squid are less than 70 percent of the Quarter I 
allocation, the underage below 70 percent would be applied to Quarter 
III. Underages from Quarters II and III would continue to be added to 
Quarter IV by default, based on the 95-percent closure rule mentioned 
above.

Comments and Responses

    Three commenters made five comments on the proposed specifications.
    Comment 1: One commenter supported the proposed allocation of 
Atlantic mackerel JVP.
    Response 1: This final rule implements the proposed allocation of 
Atlantic mackerel JVP.

[[Page 3625]]

    Comment 2: One commenter supported the proposed zero allocation of 
Atlantic mackerel TALFF.
    Response 2: This final rule implements the proposed zero allocation 
of Atlantic mackerel TALFF.
    Comment 3: Two commenters instead proposed specifying TALFF at 
5,000 mt and a possible JVP increase of up to 20,000 mt (for a total 
JVP of up to 40,000 mt) later in the fishing year.
    Response 3: The question of whether or not to recommend a level of 
optimum yield that provided for an allocation of TALFF, other than 
zero, was reviewed and discussed by the Council at length before it 
made its final recommendation to the National Marine Fisheries Service. 
After extended debate, the Council recommended a level of OY that was a 
reduction of the maximum sustainable yield based upon all relevant 
social, economic, and ecological factors. The Council firmly believed 
that the specification of the OY at a level that resulted in a zero 
TALFF would provide the greatest overall benefit to the Nation, because 
it would enhance development of the U.S. domestic mackerel fishery, 
which is one of the principal objectives of the Magnuson-Stevens 
Fishery Conservation and Management Act. Even though a zero TALFF would 
result in an economic loss to the Nation from the loss of any poundage 
fees collected from foreign fishing vessel owners for allocations of 
TALFF, the Council was concerned that allocations of TALFF would 
compete directly with mackerel produced by United States processors for 
foreign markets. Such competition would impede the expansion of 
domestic mackerel processing facilities. The expansion of domestic 
mackerel processing facilities would enable the domestic fleet to use 
more of their harvesting capacity to land mackerel at shoreside 
facilities.
    Comment 4: One commenter opposed the Atlantic mackerel JVP 
specification of 20,000 mt for the 2002 fishery because he believes 
shore-based processors would be negatively affected by foreign joint 
ventures. The commenter believes the foreign at-sea processors can 
operate at lower cost than U.S. shoreside plants in part due to U.S. 
legal requirements such as Hazard Analysis Critical Control Point 
standards.
    Response 4: The Council's annual processor survey indicates that 
the capacity of the domestic fleet to harvest mackerel greatly exceeds 
the domestic processors' capacity to process mackerel. As a result, the 
Council recommended, and NMFS is implementing, the 20,000-mt JVP 
allocation to provide additional opportunity for U.S. vessels to sell 
mackerel.
    Comment 5: One commenter stated that NMFS was utilizing outdated 
data to set the 2002 Loligo squid quota specification. The commenter 
recommended a Loligo quota increase, either in this rule or through an 
in-season adjustment to the annual specifications.
    Response 5: The commenter is correct that the most recent stock 
assessment for Loligo squid (29th Northeast Regional Stock Assessment 
Workshop (SAW-29)) was completed some time ago, in August 1999. 
However, the Council and NMFS did not rely solely on that information 
in recommending the 2002 quota. The Council and NMFS also utilized the 
most recent survey data for Loligo squid, which indicates that 
abundance of this species has increased significantly since SAW-29 was 
conducted. Estimates of biomass based on NMFS' Northeast Fisheries 
Science Center fall 1999, spring 2000, and fall 2000 survey indices for 
Loligo squid indicate that the stock is currently at or near the 
biomass level that would produce maximum sustainable yield 
(Bmsy). Based on the assumption that the stock would be at 
or near Bmsy in 2001, the Council recommended, and NMFS 
implemented, an ABC specification for 2001 that is the yield associated 
with 75 percent of Fmsy at Bmsy, or 17,000 mt. 
Given the high survey index observed in the fall 2000 survey, the quota 
is being maintained at that level in 2002. The Council and NMFS may 
adjust the specifications through an in-season adjustment during the 
2002 fishing year should the results of the 34th Northeast Regional 
Stock Assessment Workshop warrant that change.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS prepared a FRFA for this action. The FRFA includes comments on 
the IRFA, responses contained herein, and a summary of the analyses 
done in support of these specifications. A copy of the FRFA is 
available from NMFS (see ADDRESSES). A summary of the FRFA follows:
    The reasons why action is being taken by the agency, 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.
    Three comments were submitted on the proposed rule, but none of 
them were specific to the initial regulatory flexibility analysis. 
However, two individuals commented on the economic impacts of the 
measures on the fishing industry; NMFS has responded to those comments 
(3 and 4) in the Comments and Responses section of the preamble to this 
final rule. No changes were made to the final rule as a result of the 
comments received.
    The numbers of potential fishing vessels in the 2002 fisheries are 
395 for Loligo squid/butterfish, 77 for Illex squid, and 2,098 for 
Atlantic mackerel. All of the vessels are considered small entities. 
Many vessels participate in more than one of these fisheries; 
therefore, the numbers are not additive. The proposed ABC 
specifications of 347,000 mt and DAH of 95,000 mt for Atlantic 
mackerel, the DAH specifications of 24,000 mt for Illex squid, and the 
DAH specifications of 5,900 mt for butterfish represent no constraint 
on vessels in these fisheries. The levels of landings allowed under the 
specifications for 2002 have not been achieved by vessels in these 
fisheries in recent years. Absent such a constraint, no impacts on 
revenues are expected as a result of this action.
    From 1996-2000, Loligo squid landings averaged 16,548 mt. If the 
2002 DAH specification of 16,898 mt for Loligo squid is achieved, there 
would be a slight increase in catch and revenue in the Loligo squid 
fishery relative to the average landings from 1996-2000.
    This action modifies the provision for carrying over Quarter I 
Loligo squid underages. Under the new measure, Loligo squid Quarter I 
underages less than 70 percent of the Quarter I allocation would be 
applied to Quarter III. Previously, all underages from Quarter I were 
applied to Quarter IV because the directed Loligo fishery in Quarter IV 
does not close until 95 percent of the total annual quota is harvested. 
However, by making the underage available during Quarter III, Loligo 
squid permit holders will be able to fish during a time when the 
quarter may have otherwise been closed. This could potentially provide 
an added economic benefit to fishers during Quarter III. This provision 
will only shift a limited amount of quota from one period to another 
and does not modify the Loligo squid annual quota, so no overall change 
in revenue is expected.
    Three non-selected alternatives were considered for the Atlantic 
mackerel fishery. The first was to set the 2002

[[Page 3626]]

specifications at the same level as 2001. The specifications under this 
alternative are the same as those established by this action, with the 
exception of IOY and TALFF. Under this alternative, the IOY 
specification would be slightly higher than the specification in the 
preferred alternative (88,000 mt) because TALFF would be specified at 
3,000 mt. However, specifying TALFF at 3,000 mt would be inconsistent 
with the goal of further developing the U.S. domestic fishery for 
Atlantic mackerel. This alternative would have had no constraints and 
consequently no revenue impacts on the fishery because the proposed 
levels of harvest for Atlantic mackerel under this alternative have not 
been attained in recent years.
    The second alternative for Atlantic mackerel was to set ABC at the 
long-term potential catch, or 134,000 mt. This alternative was found 
inconsistent with the FMP because it did not consider the variations in 
the status of the stock. The current adult stock was recently estimated 
to exceed 2.1 million mt. The specification of ABC at 134,000 mt would 
effectively result in an exploitation rate of only about 6 percent, 
well below the optimal level of exploitation. The potential level of 
foregone yield under this alternative was considered unacceptable.
    The third alternative considered for mackerel eliminated the JVP 
allocation for 2002, which would lower the specification of IOY to 
68,000 mt, also far in excess of recent landings. This alternative was 
rejected because JVPs allow U.S. harvesters to take Atlantic mackerel 
at levels in excess of current U.S. processing capacity. None of these 
alternatives were expected to constrain the mackerel fishery and they 
all were determined to have no impact on the revenues of participants 
in this fishery.
    Two non-selected alternatives were considered for Loligo squid. The 
first would have set the ABC, DAH, DAP, and IOY at 13,000 mt, a 23.3-
percent reduction from the 2001 level. This was the same level 
initially specified for the 2000 fishing year (an in-season adjustment 
increased the ABC, DAH, DAP, and IOY to 15,000 mt (65 FR 60118, October 
10, 2000). If the 13,000-mt alternative were adopted for the 2002 
fishing year, 132 of the 497 impacted vessels would experience a total 
gross revenue reduction of greater than 6 percent (all species 
combined). The remaining 365 vessels would experience a 4-percent or 
less reduction in revenue or an increase in revenue. The second 
alternative would have set ABC, DAH, DAP, and IOY at 11,700 mt. This 
would represent a 31-percent reduction in landings relative to 2000. 
Under this scenario, 170 of the 497 impacted vessels would experience a 
gross revenue reduction of greater than 6 percent (all species 
combined). The remaining 327 vessels would experience a 4-percent or 
less reduction in revenue, or an increase in revenue.
    Two non-selected alternatives were considered for Illex squid. The 
first would have set Max OY, ABC, IOY, DAH, and DAP at 30,000 mt and 
the second alternative would have set Max OY at 24,000 mt and ABC, IOY, 
DAH, and DAP at 19,000 mt. These specifications would be far in excess 
of recent landings in this fishery. Therefore, there would be no 
constraints and, thus, no revenue reductions, associated with these 
non-selected specifications.
    Two non-selected alternatives were considered for butterfish. The 
first would have set a Max OY of 16,000 mt and an ABC, IOY, DAH, and 
DAP of 7,200 mt, and the second alternative set a Max OY of 16,000 mt 
and an ABC, IOY, DAH, and DAP at 10,000 mt. These specifications far 
exceed the specifications implemented by this final rule. Recent 
harvests in the butterfish fishery have been well below the level 
allowed by this final rule, so none of the alternatives would constrain 
or impact the industry. However, the non-selected alternatives could 
lead to overfishing of the stock and, thus, were rejected.
    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA) states that for each rule or group of related 
rules for which an agency is required to prepare a FRFA, the agency 
shall publish one or more guides to assist small entities in complying 
with the rule, and shall designate such publications as ``small entity 
compliance guides''. The agency shall explain the actions a small 
entity is required to take to comply with a rule or group of rules. As 
part of this rule making process, a letter to permit holders that also 
serves as the small entity compliance guide (the guide) was prepared. 
Copies of this final rule are available from the Northeast Regional 
Office, and the guide, i.e., permit holder letter, will be sent to all 
holders of permits issued for the mackerel, squid, and butterfish 
fisheries. The guide and this final rule will be available upon request 
(see ADDRESSES).
    This final rule establishes annual and seasonal quotas for the 
managed species, which are used for the purpose of closing the fishery 
when the quotas are reached and which serve as the basis for issuing 
joint venture permits. The mackerel specifications have a foreign 
fishing component. Until the specifications are final, no foreign 
fishing permits to authorize joint ventures may be issued. A number of 
foreign fishing vessels operated in the EEZ in 2001. Some of these 
foreign vessels have remained in U.S. waters in anticipation of 
receiving foreign fishing permits authorizing joint ventures for 
Atlantic mackerel in 2002. Until the mackerel specification are 
finalized and these foreign vessels are permitted, domestic fishermen 
cannot deliver mackerel to these foreign vessels. This will have a 
negative economic impact on domestic fishermen. Therefore, with respect 
to the mackerel fishery, this final rule relieves a restriction and 
pursuant to 5 U.S.C. 553(d)(1) the 30-day delay in effectiveness does 
not apply.
    In addition, if implementation of the quota provisions and other 
management measures is delayed, NMFS will be prevented from carrying 
out its function of preventing overfishing of the loligo squid fishery. 
The loligo squid fishery covered by this action is already underway. 
Landings data for loligo squid in previous years reflect that landings 
are highly variable and largely dependent on availability. Since the 
loligo squid fishery is now managed on a quarterly quota basis, the 
unpredictable nature of loligo squid landing could compromise the 
initial quarterly quota if no closure mechanism is in place due to a 
delay in the effectiveness of the loligo squid specification. Failure 
to implement timely closures could result in large overages that would 
have distributional effects on other quota periods and might 
potentially disadvantage some gear sectors. Therefore, the Assistant 
Administrator for Fisheries, NOAA, finds good cause under 5 U.S.C. 
553(d)(3) to waive the 30-day delayed effectiveness period for the 
mackerel and loligo squid specifications and other management measures.
    This final rule does not contain policies with federalism 
implications under Executive Order 13132.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: January 22, 2002.
William T. Hogarth,
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:


[[Page 3627]]


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

    2. In Sec. 648.21, paragraph (f)(3) is added to read as follows:


Sec. 648.21  Procedures for determining initial annual amounts.

* * * * *
    (f) * * *
    (3) Beginning January 1, 2002, if commercial landings in Quarter I 
are determined to be less than 70 percent of the Quarter I quota 
allocation, any remaining Quarter I quota that is less than 70 percent 
will be reallocated to Quarter III (e.g., if the Quarter I quota was 
100,000 lb (220,462 kg) and 50,000 lb (110,231 kg) was landed, then the 
remaining Quarter I quota, up to 70 percent, or 20,000 lb (44,092 kg), 
would be reallocated to Quarter III. A balance of 30 percent, or 30,000 
lb (66,139 kg), would remain in Quarter I).
* * * * *
[FR Doc. 02-1997 Filed 1-23-02; 1:26 pm]
BILLING CODE 3510-22-S