[Federal Register Volume 70, Number 53 (Monday, March 21, 2005)]
[Rules and Regulations]
[Pages 13406-13410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5543]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 041221358-5065-02; I.D. 121504A]
RIN 0648-AR56


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, 2005 initial specifications.

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SUMMARY: NMFS announces final specifications for the 2005 fishing year 
for the Atlantic mackerel, squid, and butterfish (MSB) fisheries. This 
action also implements a 3.0-inch (7.62-cm) minimum codend mesh size 
requirement for butterfish otter trawl trips greater than 5,000 lb 
(2,268 kg). In addition, this action includes three regulatory language 
changes that reflect previously approved measures in the FMP. The 
intent of this final rule is to promote the development and 
conservation of the MSB resource.

DATES: Effective April 20, 2005, through December 31, 2005.

ADDRESSES: Copies of supporting documents used by the Mid-Atlantic 
Fishery Management Council (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/IRFA is accessible via the 
Internet at http:/www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Eric Jay Dolin, Fishery Policy 
Analyst, 978-281-9259, fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    Proposed 2005 initial specifications were published on January 10, 
2005 (70 FR 1686). Public comments were accepted through February 9, 
2005. 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.
    2005 Final Initial Specifications
    The following table contains the final initial specifications and 
research set aside (RSA) for the 2005 MSB fisheries. For 2005, two 
project proposals requesting Loligo squid set-aside landings were 
recommended for approval and will be forwarded to the NOAA Grants 
Office for award, for a total RSA of 255.1 mt. 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

[[Page 13407]]

Grants Office for any reason, NMFS will give notice of an adjustment to 
the annual quota to return the unawarded set-aside amount to the 
fishery.

 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, 2005.
 
        Specifications           Loligo     Illex   Mackerel  Butterfish
 
Max OY                         26,000     24,000    N/A\1\    12,175
ABC                            17,000     24,000    335,000   4,545
IOY                            16,744.9\  24,000    115,000\  1,681
                                4\                   2\
DAH                            16,744.9   24,000    115,000\  1,681
                                                     3\
DAP                            16,744.9   24,000    100,000   1,681
JVP                            0          0         0         0
TALFF                          0          0         0         0
 
\1\Not applicable.
\2\IOY may be increased during the year, but the total ABC will not
  exceed 335,000 mt.
\3\Includes 15,000 mt of Atlantic mackerel recreational allocation.
\4\Excludes 255.1 mt for Research Set-Aside.
OY is optimum yield; ABC is allowable biological catch; IOY is initial
  optimum yield; DAH is domestic annual harvest; DAP is domestic annual
  processing; JVP is joint venture processing; and TALFF is total
  allowable level of foreign fishing.

    NMFS also implements three clarifications to the Atlantic mackerel, 
squid, and butterfish regulations. The first, in Sec.  648.21, removes 
references to the dates on which the proposed and final rules for the 
annual specifications must be published by the Administrator, Northeast 
Region, NMFS (Regional Administrator), because it is not necessary to 
specify these dates in regulatory text. The second clarification, in 
Sec.  648.23, revises a confusing sentence to make it clearer. The 
third clarification, in Sec.  648.4(a)(5)(i), clarifies that the Illex 
permit moratorium is in effect until July 1, 2009.

2005 Final Specifications

Atlantic Mackerel

    The final rule specifies an Atlantic mackerel IOY of 115,000 mt, as 
well as a DAH of 115,000 mt (which includes 15,000 mt for the 
recreational fishery), a JVP of zero, and a TALFF of zero.

Loligo Squid

    In 2004, the Council specified the annual quota and other measures 
for Loligo squid for a period of up to 3 years (i.e., 2004 - 2007). 
After a review of available information, the Council recommended no 
change to the Loligo quota or other measures in 2005, and NMFS concurs 
with this recommendation. Based on research projects approved for 2005, 
the Council recommended that the RSA for scientific research for Loligo 
squid not exceed 255.1 mt. This final rule specifies a 2005 Max OY for 
Loligo squid of 26,000 mt, an ABC of 17,000 mt, and an IOY is 16,744.9, 
which takes into account the 255.1-mt RSA. The 2005 quarterly 
allocations for Loligo are as follows:

               Table 2. Loligo Squid Quarterly Allocations
 
                                                  Metric    Research Set-
             Quarter                Percent      Tons\1\        aside
 
I (Jan-Mar)                       33.23        5,564.3      N/A
II (Apr-Jun)                      17.61        2,948.8      N/A
III (Jul-Sep)                     17.3         2,896.9      N/A
IV (Oct-Dec)                      31.86        5,334.9      N/A
Total                             100          16,744.9     255.1
 
\1\Quarterly allocations after 255.1-mt RSA deduction.

    Also unchanged from 2004, the 2005 directed fishery will be closed 
in Quarters I-III when 80 percent of the periods' allocation are 
harvested, with vessels restricted to a 2,500-lb (1,134-kg) Loligo 
squid trip limit per single calender day until the end of the 
respective quarter. The directed fishery will close when 95 percent of 
the total annual DAH has been harvested, with vessels restricted to a 
2,500-lb (1,134-kg) Loligo squid trip limit per single calender 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 will 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.

Illex Squid

    This final rule specifies that Max OY, IOY, ABC and DAH will be 
24,000 mt, which maintains the status quo. The Illex directed fishery 
will be closed when 95 percent of the quota (22,800 mt) is harvested. 
The catch limit for squid/butterfish incidental catch permit holders 
will be 10,000 lb (4,536 kg). This also represents the trip limit in 
effect when the directed fishery is closed.

Butterfish

    This final rule specifies that the IOY will be 1,681 mt, which will 
achieve the target fishing mortality rate (75 percent of Fmsy) 
specified in the FMP based on the most recent stock assessment for the 
species (Stock Assessment Review Committee (SARC) 38). This final rule 
also implements a 3.0-inch (7.62-cm) minimum codend mesh size 
requirement for butterfish otter trawl trips greater than 5,000 lb 
(2,268 kg), the level that would qualify as a directed butterfish trip.

Comments and Responses

    Comment 1: Five comments from industry members and associations and 
one comment from the Council supported the proposed specifications for 
an IOY/DAH of 115,000 mt, though they believed the industry could 
potentially harvest the 165,000 mt recommended by the Council. All six 
commenters raised the same concern about the timeliness of an in-season 
adjustment for the mackerel OY and DAH, should one become necessary. 
They requested that the final 2005 specifications include a clear and 
specific contingency provision that would enable NMFS to implement a 
timely in-season adjustment. They suggested that NMFS use vessel trip 
report data and dealer reports, in conjunction with catch-trend 
analysis from previous years, to track mackerel harvest with a minimum 
amount of lag time. They also suggested that NMFS initiate the in-
season adjustment process when a trigger amount of mackerel is caught; 
for example, when the 2005 projected catch is equal to the

[[Page 13408]]

previous year's catch (roughly 54,000 mt) or some reasonable percentage 
(e.g., 70 percent of the IOY) of the total available DAH of 100,000 mt.
    Response 1: NMFS agrees that it is important to keep close watch on 
the mackerel catch throughout 2005 so that, should an in-season 
adjustment become necessary, it can be implemented as quickly as 
possible. NMFS will take advantage of all data sources and projection 
techniques to ensure that it can achieve that goal. NMFS sees no need 
to specify the contingency provision that the commenters requested, 
e.g., a pre-established trigger for increasing OY and DAH. NMFS will 
closely monitor landings in order to take any necessary action on an 
in-season adjustment as noted in the proposed rule.
    Comment 2: One private citizen stated that all quotas should be cut 
by 50 percent this year and by 10 percent each succeeding year. The 
commenter added that the maximum sustainable yield (MSY) estimates are 
too high, but provided no justification for these claims.
    Response 2: The quotas, as well as the MSY calculations that form 
the basis of this final rule, are all based on the best available 
science, as required by National Standard 2 of the Magnuson-Stevens 
Fishery Conservation and Management Act.

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Included in this final rule is the FRFA prepared pursuant to 5 
U.S.C. 604(a). The FRFA incorporates the discussion that follows, the 
comments and responses to the proposed rule, and the initial regulatory 
flexibility analysis (IRFA) and other analyses completed in support of 
this action. A copy of the IRFA is available from the Regional 
Administrator (see ADDRESSES).

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being considered, 
and the objectives of and legal basis for this action, is contained in 
the preamble to the proposed rule and is not repeated here.

Summary of Significant Issues Raised in Public Comments

    Seven sets of comments were submitted on the proposed rule, but 
none were specific to the IRFA or the economic impacts of the rule.

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    The number of potential fishing vessels in the 2005 fisheries are 
381 for Loligo squid/butterfish, 72 for Illex squid, 2,407 for Atlantic 
mackerel, and 2,119 vessels with incidental catch permits for squid/
butterfish, based on vessel permit issuance. Many vessels participate 
in more than one of these fisheries; therefore, the numbers are not 
additive. There are no large entities participating in this fishery, as 
defined in section 601 of the Regulatory Flexibility Act (RFA). 
Therefore, there are no disproportionate economic impacts on small 
entities.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action does not contain any new collection-of-information, 
reporting, recordkeeping, or other compliance requirements. It does not 
duplicate, overlap, or conflict with any other Federal rules.

Minimizing Significant Economic Impacts on Small Entities

    The annual setting of the specifications focuses on the allocation 
of mackerel, squid, and butterfish to various groups and for various 
purposes. Alternatives that were considered to lessen the impacts on 
small entities are summarized below.
    Three alternatives for mackerel were evaluated. One would have set 
IOY at 175,000 mt. The two other alternatives would have set IOY at 
165,000 mt. Neither of these IOYs would constrain vessels in these 
fisheries. Absent such a constraint, no impacts on revenues in this 
fishery would be expected as a result of any of these alternatives. Two 
of these alternatives one setting IOY at 165,000 mt and the other 
setting it at 175,000 mt would have set the ABC at 347,000 mt. These 
two alternatives were rejected on biological grounds because that level 
of ABC would not be consistent with the overfishing rule adopted in 
Amendment 8 to the Fishery Management Plan (F=0.25 yield estimate of 
369,000 mt minus the estimated Canadian catch of 34,000 mt). 
Furthermore, the Atlantic mackerel alternative that would have set IOY 
at 175,000 mt was rejected because it would have been too high in light 
of social and economic concerns relating to TALFF. The Atlantic 
mackerel alternative that would set IOY at 175,000 mt would also 
allocate 5,000 mt for JVP. This allocation of JVP was rejected because 
it was concluded that U.S. processing capacity is sufficient to process 
the entire DAH. The third alternative for mackerel considered was one 
that would have set IOY at 165,000 mt, and ABC at 335,000 mt. Although 
this ABC is the same as in the proposed action, this IOY was rejected 
because it would have been too high in light of social and economic 
concerns relating to TALFF. The specification of TALFF would have 
limited the opportunities for the domestic fishery to expand, and 
therefore would have resulted in negative social and economic impacts 
to both U.S. harvesters and processors, as explained in detail in the 
proposed rule.
    For Illex, one alternative considered would have set Max OY, ABC, 
IOY, DAH, and DAP at a level higher than the 24,000 mt established in 
this rule--30,000 mt. This alternative would allow harvest far in 
excess of recent landings in this fishery. Therefore, there would be no 
constraints and, thus, no revenue reductions, associated with these 
specifications. However, the Council considered this alternative 
unacceptable because an ABC specification of 30,000 mt may not prevent 
overfishing in years of moderate to low abundance of Illex squid.
    For butterfish, one alternative considered would have set IOY at 
5,900 mt, while another would have set it at 9,131 mt. These amounts 
exceed the landings of this species in recent years. Therefore, neither 
alternative would constrain vessels in this fishery. In the absence of 
such a constraint, neither of these alternatives would reduce revenues 
in the fishery. However, both of these alternatives were rejected 
because they would likely result in overfishing and additional 
depletion of the spawning stock biomass.

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 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 the Regional 
Administrator (see ADDRESSES) and may

[[Page 13409]]

be found 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: March 15, 2005
Rebecca Lent
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out above 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 introductory heading of paragraph (a)(5)(i) 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 in effect until July 1, 2009)--
* * * * *

0
3. In Sec.  648.14, paragraphs (a)(74) and (p)(5) are revised and new 
paragraph (p)(11) is added to read as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (74) Possess nets or netting with mesh not meeting the minimum size 
requirements of Sec.  648.23, and not stowed in accordance with the 
requirements of Sec.  648.23, if in possession of Loligo or butterfish 
harvested in or from the EEZ.
* * * * *
    (p) * * *
    (5) Fish with or possess nets or netting that do not meet the 
minimum mesh requirements for Loligo or butterfish specified in Sec.  
648.23(a), or that are modified, obstructed, or constricted, if subject 
to the minimum mesh requirements, unless the nets or netting are stowed 
in accordance with Sec.  648.23(b) or the vessel is fishing under an 
exemption specified in Sec.  648.23(a).
* * * * *
    (11) Possess 5,000 lb (2.27 mt) or more of butterfish unless the 
vessel meets the minimum mesh size requirement specified in Sec.  
648.23(a)(2).
* * * * *

0
4. In Sec.  648.21, paragraph (d) is revised to read as follows:


Sec.  648.21  Procedures for determining initial annual amounts.

* * * * *
    (d) Annual fishing measures. (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 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 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.
    (2) The Assistant Administrator will make a final determination 
concerning the specifications for each species and any measures 
necessary to assure that the specifications contained in the Federal 
Register notification will not be exceeded. After the Assistant 
Administrator considers all relevant data and any public comments, 
notification of the final specifications and any measures necessary to 
assure that the specifications will not be exceeded and responses to 
the public comments will be published in the Federal Register. If the 
final specification amounts differ from those recommended by the MAFMC, 
the reason(s) for the difference(s) must be clearly stated and the 
revised specifications must be consistent with the criteria set forth 
in paragraph (b) of this section.
* * * * *

0
5. In Sec.  648.23, paragraph (a) is revised to read as follows:


Sec.  648.23  Gear restrictions.

    (a) Mesh restrictions and exemptions. (1) Vessels subject to the 
mesh restrictions outlined in this paragraph (a) may not have available 
for immediate use any net, or any piece of net, with a mesh size 
smaller than that required.
    (2) Owners or operators of otter trawl vessels possessing 5,000 lb 
(2.27 mt) or more of butterfish harvested in or from the EEZ may only 
fish with nets having a minimum codend mesh of 3 inches (76 mm) diamond 
mesh, inside stretch measure, applied throughout the codend for at 
least 100 continuous meshes forward of the terminus of the net, or for 
codends with less than 100 meshes, the minimum mesh size codend shall 
be a minimum of one-third of the net measured from the terminus of the 
codend to the head rope.
    (3) Owners or operators of otter trawl vessels possessing Loligo 
harvested in or from the EEZ may only fish with nets having a minimum 
mesh size of 1 7/8 inches (48 mm) diamond mesh, inside stretch measure, 
applied throughout the codend for at least 150 continuous meshes 
forward of the terminus of the net, or for codends with less than 150 
meshes, the minimum mesh size codend shall be a minimum of one-third of 
the net measured from the terminus of the codend to the head rope, 
unless they are fishing during the months of June, July, August, and 
September for Illex seaward of the following coordinates (copies of a 
map depicting this area are available from the Regional Administrator 
upon request):

------------------------------------------------------------------------
                 Point                       N. Lat.         W. Long.
------------------------------------------------------------------------
M1                                       43[deg]58.0'    67[deg]22.0'
M2                                       43[deg]50.0'    68[deg]35.0'
M3                                       43[deg]30.0'    69[deg]40.0'
M4                                       43[deg]20.0'    70[deg]00.0'
M5                                       42[deg]45.0'    70[deg]10.0'
M6                                       42[deg]13.0'    69[deg]55.0'
M7                                       41[deg]00.0'    69[deg]00.0'
M8                                       41[deg]45.0'    68[deg]15.0'
M9                                       42[deg]10.0'    67[deg]10.0'
M10                                      41[deg]18.6'    66[deg]24.8'
M11                                      40[deg]55.5'    66[deg]38.0'
M12                                      40[deg]45.5'    68[deg]00.0'
M13                                      40[deg]37.0'    68[deg]00.0'
M14                                      40[deg]30.0'    69[deg]00.0'
M15                                      40[deg]22.7'    69[deg]00.0'

[[Page 13410]]

 
M16                                      40[deg]18.7'    69[deg]40.0'
M17                                      40[deg]21.0'    71[deg]03.0'
M18                                      39[deg]41.0'    72[deg]32.0'
M19                                      38[deg]47.0'    73[deg]11.0'
M20                                      38[deg]04.0'    74[deg]06.0'
M21                                      37[deg]08.0'    74[deg]46.0'
M22                                      36[deg]00.0'    74[deg]52.0'
M23                                      35[deg]45.0'    74[deg]53.0'
M24                                      35[deg]28.0'    74[deg]52.0'
------------------------------------------------------------------------


Vessels fishing under this exemption may not have available for 
immediate use, as defined in paragraph (b) of this section, any net, or 
any piece of net, with a mesh size less than 1 7/8 inches (48 mm) 
diamond mesh or any net, or any piece of net, with mesh that is rigged 
in a manner that is prohibited by paragraph (c) and (d) of this 
section, when the vessel is landward of the specified coordinates.
* * * * *
[FR Doc. 05-5543 Filed 3-18-05; 8:45 am]
BILLING CODE 3510-22-S