[Federal Register Volume 69, Number 21 (Monday, February 2, 2004)]
[Rules and Regulations]
[Pages 4861-4864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1965]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 031104274-4011-02; I.D. 101603A]
RIN 0648-AQ83


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

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

ACTION: Final rule, 2004 specifications.

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SUMMARY: NMFS announces final specifications for the 2004 fishing year 
for Atlantic mackerel, squid, and butterfish (MSB). This action also 
specifies an increase in the Illex squid catch limit for squid/
butterfish incidental catch permit holders from 5,000 lb (2.27 mt) to 
10,000 lb (4.54 mt). In addition, this action corrects the regulations 
implementing the MSB Fishery Management Plan (FMP) by reinserting 
regulatory text that was incorrectly removed in the final rule that 
implemented measures contained in the Atlantic Herring FMP, which was 
published on December 11, 2000. The intent of this final rule is to 
promote the development and conservation of the MSB resource.

DATES: Effective February 2, 2004.

ADDRESSES: Copies of supporting documents used by the Mid-Atlantic 
Fishery Management Council, including the Environmental Assessment (EA) 
and Regulatory Impact Review (RIR)/ Final Regulatory Flexibility 
Analysis (FRFA), 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 
research set-asides (RSA) to be used for research purposes.
    Proposed 2004 initial specifications were published on November 14, 
2003 (68 FR 64579). Public comments were accepted through December 15, 
2003. The final specifications are unchanged from those that were 
proposed. A complete discussion of the development of the 
specifications appears in the preamble to the proposed rule and is not 
repeated here.

2004 Final Initial Specifications

    The following table contains the final initial specifications and 
RSA for the 2004 MSB fisheries.

[[Page 4862]]



 Table 1. Final Initial Annual Specifications, in Metric Tons (mt), for Atlantic Mackerel, Squid, and Butterfish
                            for the Fishing Year January 1 through December 31, 2004
----------------------------------------------------------------------------------------------------------------
                                                                                          Atlantic
                          Specifications                              Loligo    Illex     Mackerel    Butterfish
----------------------------------------------------------------------------------------------------------------
                  Max OY                                               26,000   24,000       N/A\1\       16,000
                  ABC                                                  17,000   24,000      347,000        7,200
                  IOY                                               16,872.4\   24,000   170,000\2\        5,900
                                                                           4\
                  DAH                                                16,872.4   24,000   170,000\3\        5,900
                  DAP                                                16,872.4   24,000      150,000        5,900
                  JVP                                                       0        0        5,000            0
                  TALFF                                                     0        0            0            0
                  RSA                                                   127.6        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\ Excludes 127.6 mt for RSA.

2004 Final Specifications

Atlantic Mackerel

    The final rule specifies an Atlantic mackerel DAH of 170,000 mt, 
which includes a DAP of 150,000 mt, a JVP of 5,000 mt, and 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 2004 Atlantic mackerel 
fishery, as follows: (1) JVs would be allowed south of 
3730' 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 the total should not 
exceed 347,000 mt; and (4) applications from a particular nation for an 
Atlantic mackerel JV allocation for 2004 may be based on an evaluation 
by the Regional Administrator of that nation's performances relative to 
purchase obligations for previous years.

Loligo Squid

    This final rule specifies a Loligo squid IOY of 16,872.4 mt, which 
is equal to ABC minus the RSA, and subdivides the annual quota into 
four 3-month quarters, as in prior years. The 2004 quarterly 
allocations are as follows:

              Table 2. Loligo Squid Quarterly Allocations.
------------------------------------------------------------------------
                                                      Metric    Research
                Quarter                   Percent    Tons\1\   Set-aside
------------------------------------------------------------------------
                  I (Jan-Mar)                33.23    5,606.7        N/A
                  II(Apr-Jun)                17.61    2,971.2        N/A
                  III(Jul-Sep)                17.3    2,918.9        N/A
                  IV(Oct-Dec)                31.86    5,375.6        N/A
                  Total                        100   16,872.4      127.6
------------------------------------------------------------------------
\1\ Quarterly allocations after 127.6 mt RSA deduction.

    Also unchanged from 2003, the 2004 directed fishery will be closed 
in Quarters I-III when 80 percent of the period allocation is 
harvested, with vessels restricted to a 2,500-lb Loligo squid trip 
limit per day until the end of the respective quarter. The annual 
directed fishery will close when 95 percent of the total annual DAH has 
been harvested, with vessels restricted to a 2,500-lb Loligo squid trip 
limit per day for the remainder of the year. Quota overages from 
Quarter I will be deducted from the allocation in Quarter III, and any 
overages from Quarter II will be deducted from Quarter IV. By default, 
quarterly underages from Quarters II and III carry over into Quarter 
IV, because Quarter IV does not close until 95 percent of the total 
annual quota has been harvested. Additionally, if the Quarter I 
landings for Loligo squid are less than 80 percent of the Quarter I 
allocation, the underage below 80 percent will be applied to Quarter 
III.

3-Year Loligo Specifications

    As noted in the proposed rule, the regulations allow Loligo squid 
specifications to be established for up to 3 years, subject to annual 
review. The Council will evaluate the need for any changes in 2005 and 
2006 during the quota setting procedure for those years. If no changes 
are warranted, then the 2004 quota specifications for Loligo will 
remain in effect in 2005 and 2006.

Illex Squid

Increase in the Illex Squid Incidental Catch Limit
    This final rule specifies an increase from 5,000 lb (2.27 mt) to 
10,000 lb (4.54 mt) per trip to the Illex squid catch limit for squid/
butterfish incidental catch permit holders. This also represents the 
trip limit in effect when the directed fishery is closed.

Correction

    On December 11, 2000, (65 FR 77450) NMFS published a final rule to 
implement management measures contained in the Atlantic Herring FMP. 
However, the final rule inadvertently removed Sec. 648.6(a)(2), because 
the measures were thought to also pertain to Atlantic herring vessels 
and, therefore, were thought to be redundant with the Atlantic herring 
processing permit provisions specified at Sec. 648.4(a)(10)(ii). The 
text previously codified at Sec. 648.6(a)(2) allowed any Atlantic 
mackerel vessel that exceeded the size or horsepower restrictions 
specified at Sec. 648.4(a)(5)(iii) to be issued an at-sea processor 
permit to receive over the side, possess, and process Atlantic mackerel 
harvested in or from the Exclusive Economic Zone. There were no public 
comments received on this provision when it was published in December, 
2000. In addition, no comments were received on this provision during 
the proposed rule comment period to reinsert this measure. This measure 
does not pertain to Atlantic herring vessels and is not redundant with 
the provision that was established under Sec. 648.4(a)(10)(ii). 
Therefore, this rule reinserts Sec. 648.6(a)(2), which was removed on 
December 11, 2000.

[[Page 4863]]

Comments and Responses

    Six commenters commented on two issues in the proposed 
specifications. One other comment was received on the proposed rule, 
although the comment did not specifically address the proposed 
specifications.
    Comment 1: Five commenters supported the proposed zero allocation 
of Atlantic mackerel TALFF.
    Response 1: This final rule implements the proposed zero allocation 
of Atlantic mackerel TALFF.
    Comment 2: Six commenters opposed the proposed Atlantic mackerel 
JVP specification of 5,000 mt. Five commenters believe shore-based 
processors would be negatively affected by joint venture operations and 
recommended JVP be set at zero for 2004. They stated that mackerel 
processed by foreign vessels competes with the U.S. product in foreign 
markets. They also stated that the foreign vessels have a competitive 
advantage in those markets because they have lower operating costs than 
U.S. shoreside plants and are not affected by tariffs imposed by other 
nations on U.S. products. Thus, they favor the elimination of such 
ventures.
    One commenter stated that the proposed specification of 5,000 mt 
JVP reflects the shore-based processor's efforts to thwart potential 
competition in the global market at the expense of the harvesting 
sector. The commenter noted that the allocation would not be sufficient 
to organize an offshore market for U.S. fishermen during 2004, and that 
past JVP's often provided a market for 20,000 mt of mackerel, and 
suggested that an allocation of 20,000 mt should be allocated to a 
Reserve category to be used, ``to respond to foreign proposals 
involving research, introduction of USA fish into non-competitive 
markets, technology transfer and other mutual benefits.''
    Response 2: The JVP specification was reviewed and discussed by the 
Council during the annual specification meeting. The Council relied on 
testimony by industry members who indicated that there was continued 
activity underway to expand of domestic shore-side processing capacity 
for Atlantic mackerel. While domestic processing capacity is 
increasing, maintaining a JVP allocation of 5,000 mt presents an 
additional opportunity for U.S. vessels to sell Atlantic mackerel. The 
allocation of 5,000 mt allows JVP operations to continue at recent 
levels, as JVP landings in recent years have been less than 5,000 mt.
    NMFS notes that there are impediments to the organization of 2004 
JVP operations in addition to the level of the JVP allocation. NMFS has 
not received any submissions from parties interested in conducting 
joint venture activities. Therefore, it would not be possible to 
conduct a JVP during the first quarter of 2004. NMFS also notes that 
there is no FMP provision that would authorize the allocation of 
tonnage into a Reserve Category for the purposes outlined by the 
commenter who advocated such an allocation.
    Comment 3: One commenter expressed general support for marine 
protected areas, objected to RSAs, and requested a reduction of 
commercial quotas in general.
    Response 3: This rule implements measures designed to provide for 
improved utilization of the Federal commercial MSB quotas, and to 
improve efficiency of these fisheries. While NMFS acknowledges the 
importance of the issues raised by the commenter, this rule is not the 
proper mechanism to address these general issues.

Classification

    This final rule has been determined to be not significant for 
purposes of E. O. 12866.
    An FRFA was completed for this action that contains the items 
specified in 5 U.S.C. 604(a). The FRFA consists of the IRFA, the 
comments and responses to the proposed rule, and the discussion in this 
section. A copy of the IRFA is available from NMFS (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. The description of the action, a discussion of why 
it is being considered, and its legal basis are also contained in the 
preamble to the proposed rule and this final rule and those discussions 
are not repeated here. The items specified in 5 U.S.C. 604(a) are 
summarized as follows:
    This action does not contain any collection-of-information, 
reporting, recordkeeping, or other compliance requirements.

Public Comments

    Six comments were submitted on the proposed rule. While none of 
them were specific to the IRFA, several points related to the economic 
impacts of the measures on the fishing industry and responded to in the 
Comments and Responses section of this final rule. No changes were made 
to the final rule as a result of the comments received.

Number of Small Entities

    The number of fishing vessels issued permits to fish in 2003 
represent the small entities potentially affected by these measures: 
381 for the Loligo squid/butterfish directed fishery, 72 for the Illex 
squid directed fishery, 2,407 for the Atlantic mackerel fishery, and 
2,119 vessels with incidental catch permits for the squid/butterfish 
fishery. All of the vessels are considered small entities. Many vessels 
participate in more than one of these fisheries; therefore, the numbers 
are not additive.

Minimizing Significant Economic Impacts on Small Entities

    Alternatives that were considered to lessen the impacts on small 
entities are summarized below. Though alternatives for each species 
that would have set DAH at levels higher than those in this final rule 
were analyzed, these alternatives were not necessary to minimize 
significant economic impacts on small entities, and would violate 
provisions of the FMP that were established to prevent overfishing. 
Landings of these species have been lower than the DAH specified for 
these fisheries in recent years, therefore, the DAH specifications of 
170,000 mt for Atlantic mackerel, 24,000 mt for Illex squid, 5,900 mt 
for butterfish, and 17,000 mt for Loligo squid represent no constraint 
on vessels in these fisheries, and there is no need to implement higher 
allocations to lessen impacts.
    One alternative considered for the Atlantic mackerel fishery would 
have maintained the 2004 JVP specification at the same level as 2003, 
10,000 mt. One comment received on the proposed specifications 
suggested that the 2004 JVP specification be specified at 20,000 mt. 
Preliminary 2003 commercial landings through June 2003, have exceeded 
the total landing for 2002 and are almost three times the average 
commercial landings for 1997-2001. Some or all of the vessel owners, 
crews, dealers, processors or fishing communities associated with the 
Atlantic mackerel fishery could be adversely affected by maintaining 
the 2004 specifications for Atlantic mackerel at the 2003 level or by 
increasing to 20,000 mt. In recent years, JVP operations have landed 
less than 5,000 mt, even when JVP allocations have been specified at 
higher levels. Therefore, these alternatives were not deemed necessary 
to minimize negative impacts. In addition, there was concern that it 
could negatively impact the potential for expansion of the shore-side 
processing sector of this industry.

[[Page 4864]]

Small Entity Compliance Guide

    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 rulemaking process, a small entity compliance guide will 
be sent to all holders of Atlantic mackerel, squid and butterfish 
fishing vessel or dealer permits. 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.nero.noaa.gov/.
    NMFS finds good cause under 5 U.S.C. 553(d)(3) not to delay the 
effective date of this rule for 30 days. This action 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 a delay 
would prevent the agency from implementing this action in a timely 
manner to establish these provisions and effectively manage these 
fishery. This waiver is, therefore, justified under 5 U.S.C. 553(d)(3) 
, because the measures are necessary in order for NMFS to carry out its 
function of conserving and managing these fisheries. The establishment 
of the Loligo squid quota, in particular, requires a waiver under this 
provision because the quota is allocated into quarterly periods, and 
fishing activity will begin on January 1, 2004. Landings data for 
Loligo squid in previous years indicate that landings are highly 
variable and largely dependent on availability. The unpredictable 
nature of the landings could compromise the initial quarterly quota if 
no closure mechanism is in place due to a delay in the effectiveness of 
the specification. Failure to implement timely closures could result in 
quota overages that would have distributional effects on other quota 
periods and might potentially disadvantage some gear sectors. Timely 
harvest closures were required during the early part of the last three 
years. Furthermore, there is no requirement for vessels to modify 
fishing gear or come into compliance with new gear requirements thereby 
lessening the need for the 30-day delayed effectiveness.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: January 23, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
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. 648.4, the first sentence of paragraph (a)(5)(ii) is revised 
to read as follows:


Sec. 648.4  Vessel permits.

    (a) * * *
    (5) * * *
    (ii) Squid/butterfish incidental catch permit. Any vessel of the 
United States may obtain a permit to fish for or retain up to 2,500 lb 
(1.13 mt) of Loligo squid or butterfish, or up to 10,000 lb (4.54 mt) 
of Illex squid, as an incidental catch in another directed fishery. * * 
*
* * * * *

0
3. In Sec. 648.6, paragraph (a)(2) is added to read as follows:


Sec. 648.6  Dealer/processor permits.

    (a) * * *
    (2) At-sea processors. Notwithstanding the provisions of Sec. 
648.4(a)(5), any vessel of the United States must have been issued and 
carry on board a valid at-sea processor permit issued under this 
section to receive over the side, possess and process Atlantic mackerel 
harvested in or from the EEZ by a lawfully permitted vessel of the 
United States.
* * * * *

0
4. In Sec. 648.22, paragraph (c) is revised to read as follows:


Sec. 648.22  Closure of the fishery.

* * * * *
    (c) Incidental catches. During the closure of the directed fishery 
for mackerel, the possession limit for mackerel is 10 percent by weight 
of the total amount of fish on board. During a period of closure of the 
directed fishery for Loligo, Illex, or butterfish, the possession limit 
for Loligo and butterfish is 2,500 lb (1.13 mt) each, and the 
possession limit for Illex is 10,000 lb (4.54 mt). Vessels may not land 
more than these limits during any single calendar day, which is defined 
as the 24-hour period beginning at 0001 hours and ending at 2400 hours.
[FR Doc. 04-1965 Filed 1-28-04; 10:26 am]
BILLING CODE 3510-22-S