[Federal Register Volume 67, Number 127 (Tuesday, July 2, 2002)]
[Rules and Regulations]
[Pages 44392-44395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16584]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 020508113-2151-02; I.D. 090501D]
RIN 0648-AP12


Fisheries of the Northeastern United States; Atlantic Mackerel, 
Squid and Butterfish Fisheries; Framework Adjustment 2

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to implement measures contained in 
Framework Adjustment 2 (Framework 2) to the Atlantic Mackerel, Squid, 
and Butterfish Fishery Management Plan (FMP). This action extends the 
limited entry program for the Illex squid fishery for an additional 
year; allows for the roll-over of the annual specifications for these 
fisheries (with the exception of total allowable landings of foreign 
fishing (TALFF)) in the event annual specifications are not published 
prior to the start of the fishing year; and allows Loligo squid 
specifications to be set for up to 3 years, subject to annual review. 
NMFS has disapproved the proposed framework measures to modify the 
Loligo squid overfishing definition and control rule; and to allow 
Illex squid vessels an exemption from the Loligo squid trip limit 
during an August or September closure of the directed Loligo squid 
fishery. This action is necessary and is intended to further the 
objectives of the FMP and the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act).

DATES: Effective August 1, 2002, except that the amendment to 
Sec. 648.4 is effective on June 27, 2002.

ADDRESSES: Copies of Framework 2, including the Environmental 
Assessment (EA) and Regulatory Impact Review (RIR)/Final Regulatory 
Flexibility Analysis (FRFA), are available on request from Daniel T. 
Furlong, Executive Director, Mid-Atlantic Fishery Management Council, 
300 South New Street, Dover, DE 19904-6790. The EA/RIR/IRFA 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: In 1997, Amendment 5 to the FMP established 
a limited entry program for the Illex squid fishery in response to a 
concern that fishing capacity could otherwise expand to overexploit the 
stock. At the time the program was established, there were concerns 
that the capacity of the limited entry vessels might prove, over time, 
to be insufficient to fully exploit the annual quota. In response to 
this concern, a 5-year sunset provision was placed on the Illex squid 
limited entry program, and it was scheduled to end July 1, 2002. 
However, in recent years the limited entry fleet has demonstrated that 
it has sufficient capacity to harvest the long-term potential yield 
from this fishery. The Mid-Atlantic Fishery Management Council 
(Council) must prepare an amendment to the FMP to evaluate whether or 
not the limited entry program should be extended permanently. In the 
meantime, this action extends the Illex squid moratorium through July 
1, 2003, to prevent overcapitalization while the amendment is being 
prepared and considered by the Council. This extension complies with 
the criteria in section 303(b)(6) of the Magnuson-Stevens Fishery 
Conservation and Management Act. The extension will allow the Council 
additional time to consider long-term management for the Illex squid 
fishery, including the limited entry program. Vessels that took small 
quantities of Illex squid in the past may continue to do so under the 
incidental catch provision of the FMP.

[[Page 44393]]

    This action also authorizes the roll-over of the annual 
specifications for the Atlantic mackerel, squid, and butterfish 
fisheries. In recent years, publication of the annual specifications 
for those fisheries has occurred after the start of the fishing year on 
January 1, resulting in inefficient management and industry 
uncertainty. This action allows the annual Atlantic mackerel, squid, 
and butterfish specifications from the previous fishing year to roll-
over into the next fishing year (excluding TALFF), in the event that 
annual specifications for that year have not been published. The 
rolled-over specifications will be superceded by the publication of the 
current year's annual specifications.
    This action also allows maximum optimum yield (Max OY), allowable 
biological catch (ABC), optimum yield (OY) and domestic annual harvest 
(DAH) for Loligo squid to be specified for up to 3 years. If the annual 
review conducted by the Council through its Monitoring Committee 
indicates that it is necessary, such a multi-year specification will be 
revised in the annual specification process.
    This action also outlines a timeframe to be followed for in-season 
adjustments to the annual specifications for Loligo squid. The 
Council's Monitoring Committee will meet in late spring each year to 
review available Northeast Fisheries Science Center (NEFSC) survey data 
and to develop recommendations for the annual harvest for the following 
year. In addition, at that meeting, the Monitoring Committee will make 
recommendations regarding inseason adjustments to the annual Loligo 
squid specifications for consideration by the Atlantic Mackerel, Squid, 
and Butterfish Committee and the Council. Upon review of the 
recommendations from the Council, the Administrator, Northeast Region, 
NMFS (Regional Administrator) may make inseason adjustments through the 
process specified in the regulations.

Disapproved Measures

    While the primary components of the overfishing definition for 
Loligo squid (the maximum fishing mortality rate threshold and the 
minimum biomass threshold) remained unchanged, Framework 2 proposed to 
modify the control rules that guide the Council in making harvest 
recommendations based upon those definitions. However, in December 
2001, subsequent to the Council's adoption of Framework 2, Loligo squid 
was reassessed by the 34th Stock Assessment Workshop (SAW 34). Based on 
the results of that stock assessment, NEFSC found that the proposed 
overfishing definition did not comply with the 50 CFR part 600 
guidelines because it has insufficient scientific merit and is not 
likely to result in effective management. Therefore, NMFS has 
disapproved the proposed modification to the control rules because they 
are not consistent with the best scientific information available and 
do not comply with National Standard 2 of the Magnuson-Stevens 
Conservation and Management Act.
    SAW 34 noted that the apparent resilience of the stock of the last 
two decades suggested reexamination of the fundamental approach to 
determining Fishing Mortality (F) reference points. SAW 34 suggested 
that a threshold F could be set at the 75\th\ percentile of the 
observed F over the time series and that a reasonable target F might be 
the mean value of the series. Amending the reference points along the 
lines suggested by SAW 34 will require further Council action.
    NMFS noted in the proposed rule that it had disapproved the 
proposed measure to allow Illex squid vessels an exemption from the 
Loligo squid trip limit during an August or September closure of the 
directed Loligo squid fishery. The reasons for the disapproval of the 
measure were discussed fully in the preamble to the proposed rule and 
are not repeated here.

Changes From the Proposed Rule

    As a result of the disapproval of the proposed change to the 
control rule for Loligo squid, the regulatory text at Sec. 648.4 is not 
modified as was indicated in the proposed rule.

Comments and Responses

    The Council developed Framework 2 under the framework abbreviated 
rulemaking procedure codified at 50 CFR part 648, subpart B. This 
procedure provided the public with the opportunity to comment on the 
proposed actions at Council meetings held February, March, and May 
2001. In addition, the proposed rule provided an opportunity for public 
comment. No comments were received in response to the proposed rule, 
but two written comments were received during the Council process and 
are responded to here.
    Comment 1: One commenter opposed allowing an increase of the Loligo 
squid target F from 75 percent of Fmsy up to 90 percent of 
Fmsy until the Council has had an opportunity to evaluate 
the ecological relationships between squid and its major predators, and 
how these relationships might change as rebuilding plans are 
implemented. The commenter advocated that the Council maintain the 
target F of 75 percent of Fmsy, pending the results of such 
an analysis.
    Response: NMFS agrees and has disapproved the proposed framework 
measure to modify the Loligo squid overfishing definition and control 
rule.
    Comment 2: One commenter opposed the provision to allow Illex squid 
vessels an exemption from the Loligo squid trip limit during an August 
or September closure of the directed Loligo squid fishery. The 
commenter believed that the Council's analysis underestimated the total 
amount of Loligo squid bycatch that may be landed under this exemption.
    Response: NMFS agrees and has disapproved the provision that would 
have allowed vessels fishing in the directed Illex squid fishery during 
a closure of the Loligo fishery to land Loligo squid taken seaward of 
the 50-fathom (91-m) curve in an amount not to exceed 10 percent of the 
total weight of Illex squid on board the vessel.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The need to implement these measures in a timely manner in order to 
have management measures for the Illex squid moratorium in place and to 
reduce overfishing at the start of the 2002 mackerel, squid, butterfish 
fishing year, beginning July 1, 2002, constitutes good cause under 
authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in 
effective date. This action extends the current Illex squid moratorium 
through July 1, 2003, to prevent overcapitalization while the Council 
prepares an amendment to the FMP to extend the moratorium indefinitely.
    The current fleet has the capacity to harvest the long term yield 
from this fishery. If the moratorium lapses for 30 days as the result 
of delayed effectiveness, it will create confusion among industry 
participants about their current and future eligibility to fish for 
Illex squid. Those fishermen with incidental catch permits may view the 
lapse of the moratorium as a dissolution of the distinction between a 
moratorium and incidental catch permit and begin harvesting amounts of 
Illex above the incidental catch permit. This would put additional 
pressure on the stock and could result in overfishing.
    Similarly, those without either a moratorium or incidental catch 
permit may view a lapse of the moratorium as the absence of any permit 
requirement and begin fishing for Illex in order to

[[Page 44394]]

qualify for a moratorium permit under Amendment 9 to the FMP. It is 
critical for the moratorium to continue without lapse so that the 
Council can consider whether or not to extend the limited entry program 
permanently through the amendment process without jeopardizing the 
Illex stock. Furthermore, this final rule will result in a continuation 
of the status quo, and imposes no new obligations on persons already 
fishing for Illex squid, or upon those who may wish to fish for Illex 
squid in the future. 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 Illex moratorium.
    This final rule does not contain policies with federalism 
implications, as that term is defined in Executive Order 13132.
    The Council and NMFS prepared a Final Regulatory Flexibility 
Analysis (FRFA) for this action. No comments were submitted that 
pertain to the IRFA, so none of the comments and responses in this 
final rule are considered to be part of the FRFA. The FRFA consists of 
the IRFA and a summary of the analyses done in support of this action. 
A copy of the analyses is available from the Council (see ADDRESSES). 
The preamble to the proposed rule included a detailed summary of the 
analyses contained in the IRFA, and that discussion is not repeated in 
its entirety here. A summary of the FRFA follows:
    The reasons why action by the agency is being taken and the 
objectives of this final rule are explained in the preambles to the 
proposed rule and this final rule and are not repeated here. This 
action does not contain any collection-of-information, reporting, or 
recordkeeping requirements. It does not duplicate, overlap, or conflict 
with any other Federal rules.

Public Comments

    Two comments were received on the measures contained in Framework 
2. The comments were unrelated to the IRFA.

Number of Small Entities

    As of January 2001, there were 2,700 distinct vessels with a 
Federal vessel permit for Atlantic mackerel, Illex squid, Loligo squid, 
and/or butterfish. Of these vessels, 2,007 were issued commercial 
Atlantic mackerel permits, 400 were issued Loligo/butterfish moratorium 
permits, 77 were issued Illex moratorium permits, 1,598 were issued 
incidental catch permits for Illex, Loligo and butterfish, and 522 were 
issued party/charter permits. There were also 352 Federal dealer 
permits allowing the purchase of these species. All of these entities 
are potentially affected by this action.
    Not all vessels issued permits participate in the fishery, so 1999 
landings data was used to estimate the number of vessels that actively 
participate in the fishery. These vessels will likely be more directly 
impacted by this action. Atlantic mackerel was landed by a total of 559 
vessels, Loligo was landed by a total of 523 vessels, Illex was landed 
by a total of 86 vessels, and butterfish was landed by 522 vessels. 
Many vessels landed more than one of the four species, so are reflected 
in more than one of the categories.

Minimizing Significant Economic Impact on Small Entities

    The IRFA analyzed a range of alternatives for each of the 
management measures considered in Framework 2. The preamble to the 
proposed rule described the impacts associated with the proposed change 
to the Loligo overfishing definition control rules. That proposed 
measure was disapproved in this final rule and is not discussed in the 
FRFA. The IRFA analysis demonstrates that the economic impacts of the 
measures being enacted by this final rule are being minimized to the 
extent practicable. The three measures enacted by this rule (the 
extension of the Illex moratorium for one year, the roll-over of annual 
specifications, and the provision to allow Loligo squid specifications 
to be set for up to 3 years) the measures are expected to have no 
direct impact on participants in and of themselves as theyare primarily 
administrative in nature. Any direct impacts, such as those associated 
with setting annual harvest levels, will be evaluated in the annual 
specifications submissions themselves.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 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 rulemaking process, a small entity compliance guide was prepared. 
The guide will be sent to all holders of permits issued for the 
Atlantic mackerel, squid and butterfish fisheries. In addition, copies 
of this final rule and guide (i.e., permit holder letter) are available 
from NMFS (see ADDRESSES) and at the following web site: http://www.nmfs.gov/ro/doc/nero.html.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: June 26, 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 
to read 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. 648.4, paragraph (a)(5)(i), the heading is revised to 
read as follows:


Sec. 648.4  Vessel permits.

    (a) * * *
    (5) * * *
    (i) Loligo squid/butterfish and Illex squid moratorium permits 
(Illex squid moratorium is applicable from July 1, 1997, until July 1, 
2003).* * *
* * * * *

    3. In Sec. 648.21, paragraphs (a)(1) and (d)(1) are revised and 
paragraphs (a)(4) and (a)(5) are added to read as follows:


Sec. 648.21  Procedures for determining initial annual amounts.

    (a) * * *
    (1) Initial OY (IOY), including research quota (RQ), domestic 
annual harvest (DAH), and domestic annual processing (DAP) for Illex 
squid;
* * * * *
    (4) Initial OY (IOY), including research quota (RQ), domestic 
annual harvest (DAH), and domestic annual processing (DAP) for Loligo 
squid, which, subject to annual review, may be specified for a period 
of up to 3 years;
    (5) Inseason adjustment, upward or downward, to the specifications 
for Loligo squid as specified in paragraph (e) of this section.
* * * * *
    (d) * * *
    (1) The Squid, Mackerel, and Butterfish Committee will review the 
recommendations of the Monitoring Committee. Based on these 
recommendations and any public comment received thereon, the Squid, 
Mackerel, and Butterfish Committee must recommend to the MAFMC 
appropriate specifications and any measures necessary to assure that 
the

[[Page 44395]]

specifications will not be exceeded. The MAFMC will review these 
recommendations and, based on the recommendations and any public 
comment received thereon, must recommend to the Regional Administrator 
appropriate specifications and any measures necessary to assure that 
the specifications will not be exceeded. The MAFMC's recommendations 
must include supporting documentation, as appropriate, concerning the 
environmental, economic, and social impacts of the recommendations. The 
Regional Administrator will review the recommendations and, on or about 
November 1 of each year, will publish notification in the Federal 
Register proposing specifications and any measures necessary to assure 
that the specifications will not be exceeded and providing a 30-day 
public comment period. If the proposed specifications differ from those 
recommended by the MAFMC, the reasons for any differences must be 
clearly stated and the revised specifications must satisfy the criteria 
set forth in this section. The MAFMC's recommendations will be 
available for inspection at the office of the Regional Administrator 
during the public comment period. If the annual specifications for 
squid, mackerel, and butterfish are not published in the Federal 
Register prior to the start of the fishing year, the previous year's 
annual specifications, excluding specifications of TALFF, will remain 
in effect. The previous year's specifications will be superceded as of 
the effective date of the final rule implementing the current year's 
annual specifications.
* * * * *
[FR Doc. 02-16584 Filed 6-27-02; 11:10 am]
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