[Federal Register Volume 75, Number 22 (Wednesday, February 3, 2010)]
[Rules and Regulations]
[Pages 5537-5541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2282]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0907301206-0032-02]
RIN 0648-AY13


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

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

ACTION: Final rule.

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SUMMARY: This action implements 2010 specifications and management 
measures for Atlantic mackerel, squid, and butterfish (MSB). 
Specifically, this action maintains quotas for Atlantic mackerel 
(mackerel), Illex squid (Illex), Loligo squid (Loligo), and butterfish 
at the same levels as 2009. This action also modifies accounting 
procedures for underages of Trimester 1 quotas in the Loligo fishery so 
that Trimester 1 quota underages that are greater than 25 percent of 
the Trimester 1 quota will be allocated equally to Trimesters 2 and 3, 
and underages that are less than 25 percent of the Trimester 1 quota 
will be allocated to Trimester 3. Additionally, this action will 
increase the minimum mesh size requirement for codend covers in the 
Loligo fishery from 4.5 inches (11.43 cm) to 5 inches (12.7 cm). These 
specifications and management measures promote the utilization and 
conservation of the MSB resource.

DATES: Effective March 5, 2010, except for the amendment to Sec.  
648.23(a)(3)(i), which is effective August 3, 2010.

ADDRESSES: Copies of supporting documents used by the Mid-Atlantic 
Fishery Management Council (Council), including the Environmental 
Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory 
Flexibility Analysis (IRFA), are available from: Daniel Furlong, 
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, 
Federal Building, 300 South New Street, Dover, DE 19904-6790. The EA/
RIR/IRFA is accessible via the Internet at http://www.nero.noaa.gov. 
NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), which is 
contained in the classification section of the rule. Copies of the FRFA 
and the Small Entity Compliance Guide are available from: Patricia 
Kurkul, Regional Administrator, National Marine Fisheries Service, 
Northeast Region, 55 Great Republic Drive, Gloucester, MA 01930-2276, 
or via the Internet at http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy 
Analyst, 978-281-9272, fax 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    Regulations implementing the Fishery Management Plan for the 
Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP) appear at 50 
CFR part 648, subpart B. Regulations governing foreign fishing appear 
at 50 CFR part 600, subpart F. These regulations at Sec.  648.21 and 
Sec.  600.516(c), require that NMFS, based on the maximum optimum yield 
(Max OY) of each fishery as established by the regulations, annually 
publish a proposed rule specifying the amounts of the initial optimum 
yield (IOY), allowable biological catch (ABC), domestic annual harvest 
(DAH), and domestic annual processing (DAP), as well as, where 
applicable, the amounts for total allowable level of foreign fishing 
(TALFF) and joint venture processing (JVP) for the affected species 
managed under the FMP. In addition, these regulations allow 
specifications to be specified for up to 3 years, subject to annual 
review. The regulations at Sec.  648.21 also specify that IOY for squid 
is equal to the combination of research quota (RQ) and DAH, with no 
TALFF specified for squid. For butterfish, the regulations specify that 
a butterfish bycatch TALFF will be specified only if TALFF is specified 
for mackerel.
    At its June 9-11, 2009, meeting in New York, NY, the Mid-Atlantic 
Fishery Management Council (Council) recommended 2010 MSB 
specifications. The recommended specifications for mackerel, Illex, 
Loligo, and butterfish are the same as those implemented in 2009. For 
Loligo, the Council recommended a modification in accounting Trimester 
1 quota underages. The Council also recommended increasing the minimum 
mesh size requirement for codend covers in the Loligo fishery. The 
Council submitted these recommendations, along with the required 
analyses, for agency review on August 10, 2009. A proposed rule for the 
2010 MSB specifications and management measures was published on 
November 12, 2009 (74 FR 58234), and the public comment period for the 
proposed rule ended on December 14, 2009. Details concerning the 
Council's development of these measures were presented in the preamble 
of the proposed rule and are not repeated here.

Final MSB Specifications and Management Measures for the 2010 Fishing 
Year

    This action implements the following MSB specifications and 
management measures for the 2010 fishing year, which are described in 
detail below.

    Table 1--Final Specifications, in Metric Tons (mt), for Atlantic Mackerel, Squid, and Butterfish for 2010
                                                  Fishing Year
----------------------------------------------------------------------------------------------------------------
                 Specifications                       Loligo           Illex         Mackerel       Butterfish
----------------------------------------------------------------------------------------------------------------
Max OY..........................................          32,000          24,000             N/A          12,175

[[Page 5538]]

 
ABC.............................................          19,000          24,000         156,000           1,500
IOY \3\.........................................      \1\ 18,667          24,000     \2\ 115,000         \3\ 485
DAH.............................................          18,667          24,000     \4\ 115,000             485
DAP.............................................          18,667          24,000         100,000             485
JVP.............................................               0               0               0               0
TALFF...........................................               0               0               0               0
----------------------------------------------------------------------------------------------------------------
\1\ Excludes 333 mt for Research Set-Aside (RSA).
\2\ IOY may be increased during the year, but the total ABC will not exceed 156,000 mt.
\3\ Includes a 15,000 mt catch of Atlantic mackerel by the recreational fishery.
\4\ Excludes 15 mt for RSA.

Atlantic Mackerel

    This action specifies the mackerel ABC at 156,000 mt, based on the 
formula ABC = T - C. T is the yield (211,000 mt) associated with a 
fishing mortality rate (F) that is equal to the target F (F = 0.12); C 
is the estimated catch of mackerel in Canadian waters (55,000 mt) for 
the upcoming fishing year. Thus, 211,000 mt minus 55,000 mt results in 
the 2010 mackerel ABC of 156,000 mt. This action also specifies the 
mackerel IOY at 115,000 mt, a level that can be fully harvested by the 
domestic fleet, thereby precluding the specification of TALFF while 
allowing the U.S. mackerel industry to expand.
    Because the harvesting ability and processing capacity exists, it 
is reasonable to assume that the commercial fishery will harvest 
100,000 mt of mackerel. Therefore, this action specifies the mackerel 
DAH at 115,000 mt, which is the commercial harvest plus the 15,000 mt 
anticipated to be harvested by the recreational fishery. Because IOY = 
DAH, this specification is consistent with the Council's recommendation 
that the level of IOY should not provide for TALFF.
    This action specifies the mackerel DAP at 100,000 mt and the 
mackerel JVP at zero. For the past 6 years, the Council has recommended 
zero JVP because the surplus between DAH and DAP has been declining as 
U.S. shoreside processing capacity for mackerel has expanded. The 
Council also heard from the industry that the availability (i.e., size, 
distribution, and abundance) of mackerel to the fishery, rather than 
processing capacity, has curtailed catch in recent years. Based on this 
information, the Council concluded, and NMFS concurs, that processing 
capacity is no longer a limiting factor relative to domestic production 
of mackerel. Consequently, if U.S. harvesters land mackerel in excess 
of 100,000 mt, and should the IOY be adjusted upward, U.S. processors 
have the capacity and intent to process it.

Inseason Adjustment of the Mackerel IOY

    Regulations at Sec.  648.21(e) provide that specifications may be 
adjusted inseason during the fishing year by the NMFS Northeast 
Regional Administrator (Regional Administrator), in consultation with 
the Council, by publishing a notice in the Federal Register and 
providing a 30-day public comment period. In 2010, as in 2009, NMFS's 
Northeast Fishery Statistic Office will summarize mackerel landings 
from dealer reports on a weekly basis and post this information on the 
Northeast Regional Office Web site (http://www.nero.noaa.gov/). NMFS 
staff will closely monitor these landings and industry trends to 
determine if an inseason adjustment is necessary. If, using landings 
projections and all other available information, the Regional 
Administrator determines that 70 percent of the Atlantic mackerel IOY 
will be landed during the 2010 fishing year, the Regional Administrator 
will make available additional quota for a total IOY of 156,000 mt of 
Atlantic mackerel for harvest during 2010. Additionally, if an inseason 
adjustment of the IOY is warranted, the Regional Administrator will 
notify the Council and the inseason adjustment will be published in the 
Federal Register.

Atlantic Squids

Loligo

    This action specifies the Loligo Max OY at 32,000 mt and the ABC, 
IOY, DAH, DAP at 19,000 mt. This is consistent with proxies for Loligo 
target and threshold fishing mortality rates, FTarget and 
FThreshold, which were revised through Amendment 9 to the 
FMP (Amendment 9) (73 FR 37382, July 1, 2008) to reflect the analytical 
advice provided by the most recent Loligo stock assessment review 
committee (SARC 34). The FMP does not authorize the specification of 
JVP and TALFF for the Loligo fishery because of the domestic industry's 
capacity to harvest and process the OY for this fishery; therefore, 
there will be no JVP or TALFF in 2010.
Distribution of the Loligo DAH
    As was done in 2007 to 2009, this action allocates the 2010 Loligo 
DAH into trimesters, consistent with the Council's recommendation. The 
trimester allocations for 2010 are as follows:

          Table 2--Trimester Allocation of Loligo Quota in 2010
------------------------------------------------------------------------
                                                                 Metric
                     Trimester                       Percent    tons \1\
------------------------------------------------------------------------
I (Jan-Apr).......................................         43      8,027
II (May-Aug)......................................         17      3,173
III (Sep-Dec).....................................         40      7,467
                                                   ---------------------
    Total.........................................        100     18,667
------------------------------------------------------------------------
\1\ Trimester allocations after 333 mt RQ deduction.

    This action will split the distribution of Trimester I underages 
evenly between Trimester II and III if the underage is greater than 25 
percent of the Trimester I quota. All other underages or overages will 
be applied to Trimester III. This method of underage distribution will 
prevent an underharvest of the annual quota, and distribute unharvested 
quota evenly throughout the year. Announcements of quota adjustments 
may be delayed up to 2 months after Trimester I ends due to inherent 
data processing time lag and late dealer reporting in the dealer 
reporting program.
Changes to Loligo Codend Mesh Size Requirements
    This action will increase the ``net strengthener''/''codend cover'' 
minimum mesh requirement from 4.5 inches (11.3 cm) to 5 inches (12.7 
cm) (inside stretch measurement), consistent with the codend mesh size 
requirement currently

[[Page 5539]]

required in another Mid-Atlantic fishery (scup). This increase should 
reduce bycatch of small squid and finfish in the Loligo fishery.

Illex

    This action specifies the Illex Max OY, IOY, ABC, and DAH at 24,000 
mt. The FMP does not authorize the specification of JVP or TALFF for 
the Illex fishery because of the domestic fishing industry's capacity 
to harvest and to process the IOY from this fishery.

Butterfish

    The status of the butterfish stock was most recently assessed in 
late 2004. That assessment concluded that, while overfishing of the 
stock is not occurring, the stock is overfished. Based on this 
information, the Council was notified by NMFS on February 11, 2005, 
that the butterfish stock was designated as overfished, pursuant to the 
requirements of section 304(e) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). The Council 
developed a rebuilding plan for the butterfish stock in Amendment 10 to 
the FMP (Amendment 10), which was approved October 7, 2009. A stock 
assessment was conducted in late 2009, but the results are not yet 
available. The Council recommended that the quota be restricted to 
recent landings levels to prevent an expansion of the fishery and to 
protect the rebuilding stocks. Therefore, in 2010, as implemented in 
2009, this action sets the Max OY at 12,175 mt; the ABC at 1,500 mt; 
and the IOY, DAH, and DAP at 500 mt. Harvest at these levels should 
prevent overfishing of the butterfish stock in 2010. Additionally, 
consistent with MSB regulations, the Council recommended, and this 
action is specifying, zero TALFF for butterfish in 2010 because zero 
TALFF is specified for mackerel.

Comments and Responses

    Comment: One comment letter was received that indicated that quotas 
for all four species should be cut in half, and that overfishing is 
occurring.
    Response: The most recent stock assessments for these species 
indicate that overfishing is not occurring for any of them, and that 
butterfish is the only species managed under the MSB Fishery Management 
Plan (FMP) that is overfished. This action specifies that the 
butterfish quota will remain at the reduced level of 500 mt in 2010 in 
order to curtail a directed butterfish fishery consistent with the 
rebuilding program for butterfish established by Amendment 10 to the 
MSB FMP.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Assistant Administrator has determined that this rule is 
consistent with the Atlantic Mackerel, Squid, and Butterfish FMP, other 
provisions of the Magnuson-Stevens Act, and other applicable law.
    This action is authorized by 50 CFR part 648 and has been 
determined to be not significant for purposes of Executive Order 12866 
(E.O. 12866).
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act, 
has prepared a final regulatory flexibility analysis (FRFA), included 
in this final rule, in support of the 2009 MSB specifications and 
management measures. The FRFA describes the economic impact that this 
final rule, along with other non-preferred alternatives, will have on 
small entities.
    The FRFA incorporates the economic impacts and analysis summarized 
in the IRFA, a summary of the significant issues raised by the public, 
and a summary of analyses prepared to support the action (i.e., the EA 
and the RIR). The contents of these documents are not repeated in 
detail here. A copy of the IRFA, the RIR, and the EA are available upon 
request (see ADDRESSES). A complete 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 and final 
rules and is not repeated here.

Statement of Need for This Action

    This action specifies 2010 specifications and management measures 
for MSB fisheries and modifies existing management measures to improve 
the management of MSB fisheries.

A Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA, a Summary of the Assessment of the Agency of Such 
Issues, and a Statement of Any Changes Made in the Final Rule as a 
Result of Such Comments

    NMFS received one comment letter, but it was not related to the 
IRFA or the general economic effects of the proposed action.

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

    Based on permit data for 2008, the numbers of potential fishing 
vessels in the 2010 fisheries are as follows: 371 for Loligo/
butterfish, 77 for Illex, 2,342 for mackerel, and 2,193 vessels with 
incidental catch permits for squid/butterfish. There are no large 
entities participating in this fishery, as defined in section 601 of 
the RFA. Therefore, there are no disproportionate economic impacts on 
small entities. Many vessels participate in more than one of these 
fisheries; therefore, permit numbers are not additive.

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.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each One of the Other Significant 
Alternatives to the Rule Considered by the Agency Which Affect the 
Impact on Small Entities Was Rejected

Actions Implemented With the Final Rule
    The mackerel IOY specified in this action (115,000 mt, with 15,000 
mt allocated to recreational catch) represents status quo, as compared 
to 2009, and is no constraint to vessels relative to the landings in 
recent years. Mackerel landings for 2004-2006 averaged 51,836 mt. 
Landings in 2007 were 25,547 mt, and landings in 2008 were 21,749 mt. 
This action also allows for an inseason adjustment, which would 
increase the IOY up to the ABC (156,000 mt), if landings approach the 
IOY early in the fishing year. Therefore, no reductions in revenues for 
the mackerel fishery are expected as a result of this action.
    The Loligo IOY (19,000 mt) specified in this action represents the 
status quo compared to the 2009. No reductions in revenues for the 
Loligo fishery are expected as a result of this action.
    The accounting methods for Loligo trimester underages implemented 
in this action will distribute any substantial underage in Trimester I 
(greater than 25 percent of the Trimester I quota) evenly over the rest 
of the year. This method of transferring quota over to Trimester II 
from Trimester I may provide some economic benefits to this fishery 
compared to how the fishery was prosecuted under the 2008 and 2009 
specifications.

[[Page 5540]]

    This action also increases the required minimum codend cover mesh 
size from 4.5 inches (11.3 cm) to 5.0 inches (12.7 cm) in the Loligo 
fishery. This mesh size increase is not expected to have a significant 
impact on landings since most of the selectivity occurs in the codend 
liner. Most vessels are equipped with nets meeting or exceeding the 
proposed codend minimum mesh size, so no negative impacts on revenues 
in this fishery are expected as a result of this action.
    The Illex IOY (24,000 mt) specified in this action represents 
status quo as compared to 2009. Implementation of this action would not 
result in a reduction in revenue or a constraint on expansion of the 
fishery in 2010.
    The butterfish IOY specified in this action (500 mt) represents 
status quo, as compared to 2009, and represents only a minimal 
constraint to vessels relative to the landings in recent years. Due to 
market conditions, there has not been a directed butterfish fishery in 
recent years; therefore, recent landings have been low. Given the lack 
of a directed butterfish fishery and low butterfish landings, this 
action is not expected to reduce revenues in this fishery more than 
minimally.
Alternatives to the Actions in the Final Rule
    The Council analysis evaluated two alternatives for mackerel. The 
first alternative would have set the ABC at 56,000 mt, IOY at 56,000 
mt, and the second alternative would have set the ABC at 186,000 mt, 
IOY at 115,000 mt. Based on recent harvest levels, neither of the ABC 
and IOY alternatives represents a constraint on vessels in this 
fishery. However, the ABC of 56,000 mt in the first alternative could 
result in foregone revenue if mackerel is available to the fishery.
    For Loligo, alternatives to this action would have set the Max OY 
at 32,000 mt and ABC, IOY, DAH, and DAP at 19,000 mt. The alternatives 
differed from this action in how Trimester underages and overages were 
applied to the following Trimester quotas. The first alternative is the 
status quo, and would have continued to transfer Trimester I and II 
overages or underages to Trimester III. The second alternative would 
make the full amount of a Trimester I underage available to Trimester 
II. This action distributes any substantial underage in Trimester I 
(greater than 25 percent of the Trimester I quota) evenly over the rest 
of the year, which may positively impact Loligo stocks, and prevent an 
underharvest of the annual quota.
    For Illex, one alternative was considered, which would have set the 
ABC, IOY, DAH, and DAP at 19,000 mt rather than 24,000 mt. This quota 
was used between 1997 and 1999, and was associated with the SAW 21 
stock assessment from 1996. However, this alternative would still allow 
harvest in excess of recent landings in this fishery.
    For butterfish, two alternatives were considered. The first would 
have set Max OY at 12,175 mt; ABC at 4,525 mt; and IOY, DAH, and DAP 
1,861 mt; which is equivalent to the 2005-2007 specifications. The 
second alternative would have set Max OY at 12,175 mt; ABC at 9,131 mt; 
and IOY, DAH, and DAP at 3,044 mt. The amounts in this alternative 
represent the specifications that would result from the application of 
the F target control rule if the butterfish stock was declared rebuilt, 
and was included due to the potential for rapid rebuilding in the 
butterfish stock. However, this alternative would likely result in 
overfishing and the additional depletion of the spawning stock biomass 
of an overfished species. None of these alternatives represent a 
constraint on vessels in this fishery or would reduce revenues in the 
fishery.

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 MSB 
fisheries. In addition, copies of this final rule and guide (i.e., 
permit holder letter) are available from the Regional Administrator and 
are also available from NMFS, Northeast Region (see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: January 28, 2010.
Samuel D. Rauch III,
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.  648.21, paragraph (f)(2) is revised to read as follows:


Sec.  648.21  Procedures for determining initial annual amounts.

* * * * *
    (f) * * *
    (2) Any underages of commercial period quota for Trimester I that 
are greater than 25 percent of the Trimester I quota will be divided in 
half, with one portion applied to Trimester II, and one portion applied 
to Trimester III of the same year. Any underages of commercial period 
quota for Trimester I that are less than 25 percent of the Trimester I 
quota will be applied to Trimester III of the same year. Any overages 
of commercial quota for Trimesters I and II will be subtracted from 
Trimester III of the same year.
* * * * *

0
3. In Sec.  648.22, paragraph (a)(2)(i) is added, and paragraph 
(a)(2)(ii) is added and reserved to read as follows:


Sec.  648.22  Closure of the fishery.

    (a) * * *
    (2) * * *
    (i) If the Regional Administrator determines that the Trimester I 
closure threshold has been underharvested by 25 percent or more, then 
the amount of the underharvest shall be reallocated to Trimester II and 
Trimester III in equal amounts, through notice in the Federal Register.
    (ii) [Reserved]
* * * * *

0
4. In Sec.  648.23, paragraph (a)(3)(i) is revised to read as follows:


Sec.  648.23  Gear restrictions.

    (a) * * *
    (3) * * *
    (i) Net obstruction or constriction. Owners or operators of otter 
trawl vessels fishing for and/or possessing Loligo shall not use any 
device, gear, or material, including, but not limited to, nets, net 
strengtheners, ropes, lines, or chafing gear, on the top of the 
regulated portion of a trawl net that results in an effective mesh 
opening of less than 17/8 inches (48 mm) diamond mesh, inside stretch 
measure. ``Top of the regulated portion of the net'' means the 50 
percent of the entire regulated portion of the net that would not be in 
contact with the ocean bottom if, during a tow, the regulated portion 
of the net were laid flat on the ocean floor. However, owners

[[Page 5541]]

or operators of otter trawl vessels fishing for and/or possessing 
Loligo may use net strengtheners (covers), splitting straps, and/or 
bull ropes or wire around the entire circumference of the codend, 
provided they do not have a mesh opening of less than 5 inches (12.7 
cm) diamond mesh, inside stretch measure. For the purpose of this 
requirement, head ropes are not to be considered part of the top of the 
regulated portion of a trawl net.
* * * * *

[FR Doc. 2010-2282 Filed 2-2-10; 8:45 am]
BILLING CODE 3510-22-P