[Federal Register Volume 76, Number 30 (Monday, February 14, 2011)]
[Rules and Regulations]
[Pages 8306-8313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3245]



[[Page 8306]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 100804323-0569-02]
RIN 0648-BA03


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 final rule implements 2011 specifications and management 
measures for the Atlantic mackerel, squid, and butterfish (MSB) 
fisheries. Specifically, this action sets quotas for the MSB fisheries, 
modifies the measure that transfers Loligo squid (Loligo) quota 
underages from Trimester I to Trimesters II and III by limiting the 
Trimester II quota increase to no more than 50 percent, and revises the 
72-hr pre-trip observer notification requirement for the Loligo fishery 
to accommodate vessels departing for multiple day trips in a week. 
These specifications and management measures promote the utilization 
and conservation of the MSB resource.

DATES: Effective February 14, 2011.

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: Dr. Christopher M. 
Moore, Executive Director, Mid-Atlantic Fishery Management Council, 
Suite 201, 800 N. State Street, Dover, DE 19901. 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 this 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.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
rule may be submitted to NMFS, Northeast Regional Office, and by e-mail 
to [email protected], or fax to 202-395-7285.

FOR FURTHER INFORMATION CONTACT: Aja Peters-Mason, Fishery Policy 
Analyst, 978-281-9195, fax 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    Regulations implementing the MSB Fishery Management Plan (FMP) 
appear at 50 CFR part 648, subpart B. Regulations governing foreign 
fishing appear at 50 CFR part 600, subpart F. The regulations at 
Sec. Sec.  648.21 and 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 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 Illex 
and Loligo squid is equal to the combination of Research Set-Aside 
(RSA) 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 8-10, 2010, meeting in New York, NY, the Council 
recommended MSB specifications for the 2011 fishing year. The Council 
considered the recommendations made by its Monitoring Committee and 
Scientific and Statistical Committee (SSC). The SSC recommends ABC. SSC 
advice accounts for scientific uncertainty regarding stock status and 
biological reference points in recommending the ABC, and the Council 
relies on that ABC recommendation to set other specifications. In 
addition to 2011 specifications for each of the MSB species, the 
Council recommended a modification to the provision that transfers 
Trimester I quota underages to Trimesters II and III for the Loligo 
fishery. The Council submitted these recommendations, along with the 
required analyses, for agency review on July 19, 2010, with final 
submission on September 23, 2010. A proposed rule for the 2011 MSB 
specifications and management measures was published on November 17, 
2010 (75 FR 70187), and the public comment period for the proposed rule 
ended on December 17, 2010. 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 2011 Fishing 
Year

    This action implements the following MSB specifications and 
management measures for the 2011 fishing year, which are described in 
detail below.

    Table 1--Final Specifications, in Metric Tons (mt), for Atlantic Mackerel, Squid, and Butterfish for 2011
                                                  Fishing Year
----------------------------------------------------------------------------------------------------------------
                         Specifications                             Loligo       Illex     Mackerel   Butterfish
----------------------------------------------------------------------------------------------------------------
Max OY..........................................................      32,000     Unknown     Unknown     Unknown
ABC.............................................................      24,000      24,000      47,395       1,500
IOY.............................................................      20,000      23,328      46,779         500
DAH.............................................................  \1\ 19,906      23,328  \2\ 46,779     \3\ 495
DAP.............................................................      19,906      23,328      31,779         495
JVP.............................................................         N/A         N/A           0           0
TALFF...........................................................         N/A         N/A           0           0
----------------------------------------------------------------------------------------------------------------
\1\ Excludes 94 mt for RSA.
\2\ Includes a 15,000-mt catch of Atlantic mackerel by the recreational fishery.
\3\ Excludes 5 mt for RSA.


[[Page 8307]]

Atlantic Mackerel

    This action specifies the mackerel ABC at 47,395 mt, based on the 
formula ABC = T-C. T, or total annual catch, is the yield associated 
with a fishing mortality rate that is equal to the target fishing 
mortality rate (F). The Transboundary Resources Advisory Committee 
(TRAC) could not establish biomass reference points or target F at its 
March 2010 mackerel stock status assessment, and recommended that total 
annual catches not exceed the average total landings (80,000 mt) over 
the last 3 years (2006-2008) until new information is available. C is 
the estimated catch of mackerel in Canadian waters (32,605 mt) for the 
upcoming fishing year. Thus 80,000 mt minus 32,605 mt results in the 
2011 mackerel ABC of 47,395 mt. The 2010 TRAC assessment estimated that 
U.S. mackerel discards from 2004-2008 (the most recent years for which 
complete data are available) accounted for 1.3 percent of total catch. 
Thus NMFS is specifying the mackerel IOY and DAH at 46,779 m (ABC minus 
616 mt for discards). The DAH includes commercial harvest plus the 
15,000 mt available for the recreational fishery.
    While a surplus existed between ABC and DAH for many years, that 
surplus has disappeared due to downward adjustments of the 
specifications in recent years. Analysis of the state of the world 
mackerel market and possible increases in U.S. production levels 
concluded that specifying an IOY resulting in zero TALFF will yield 
positive social and economic benefits to both U.S. harvesters and 
processors, and to the Nation. For these reasons NMFS is specifying IOY 
at level that can be fully harvested by the domestic fleet (46,779 mt), 
thereby precluding the specification of a TALFF, in order to support 
the U.S. mackerel industry.
    This action maintains JVP at zero. In the past, the Council 
recommended a JVP greater than zero because it believed U.S. processors 
lacked the ability to process the total amount of mackerel that U.S. 
harvesters could land. However, for the past 7 years, the Council has 
recommended zero JVP because U.S. shoreside processing capacity for 
mackerel has expanded. The Council concluded that processing capacity 
was no longer a limiting factor relative to domestic production of 
mackerel, even at the higher DAP of 100,000 mt; this is even more true 
with the specified DAP of 31,779 mt. The differential between the DAH 
and the DAP reflects a projection that the recreational mackerel 
fishery will land 15,000 mt.

Atlantic Squids

Loligo

    This action specifies a Loligo Max OY of 32,000 mt, an ABC of 
24,000 mt, an IOY of 20,000 mt, an RSA of 94 mt, and a DAH and DAP of 
19,906 mt. 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 2011.

Distribution of the Loligo DAH

    As was done in fishing years 2007 through 2010, this action 
allocates the 2011 Loligo DAH into trimesters, according to percentages 
specified in the FMP, as follows:

          Table 2--Trimester Allocation of Loligo Quota in 2011
------------------------------------------------------------------------
                                                                 Metric
                     Trimester                       Percent    tons \1\
------------------------------------------------------------------------
I (Jan-Apr).......................................         43      8,560
II (May-Aug)......................................         17      3,384
III (Sep-Dec).....................................         40      7,962
                                                   ---------------------
    Total.........................................        100     19,906
------------------------------------------------------------------------
\1\ Trimester allocation after 94-mt RQ deduction.

    For the 2010 fishing year, Trimester I Loligo underages greater 
than 25 percent of the Trimester I quota were distributed evenly 
between Trimesters II and III. The Council expressed concern that the 
butterfish mortality cap on the Loligo fishery, established in 2010 by 
Amendment 10 to the FMP (Amendment 10) (75 FR 11441, March 11, 2010), 
could result in a substantial Trimester I underage if the Loligo 
fishery is closed because the Trimester I butterfish catch cap is 
reached. Under the 2010 underage distribution scheme, this could result 
in a large roll-over of Loligo quota to Trimester II, when the 
butterfish catch cap cannot close the fishery. Therefore, this action 
limits the roll-over of quota from Trimester I to Trimester II to no 
more than 50 percent of the Trimester II allocation. This adjustment 
will continue to prevent an underharvest of the annual quota by 
distributing the quota across the remaining trimesters, while reducing 
management uncertainty related to the implementation of the butterfish 
mortality cap for the Loligo fishery.

Adjustment to the Loligo Pre-trip Trip Notification Requirement

    The action changes the 72-hr pre-trip observer notification 
requirement established through Amendment 10 for vessels issued a 
Loligo and butterfish moratorium permit. Such vessels intending to land 
more than 2,500 lb (1.13 mt) of Loligo are now required to notify the 
NMFS Northeast Fishery Observer Program (NEFOP) at least 72 hr, but not 
more than 10 days before embarking on a Loligo trip. This adjustment is 
intended to reduce the burden of this requirement for vessels that 
embark on multiple trips that last less than 24 hr during a single week 
by allowing them to notify for several upcoming trips at one time.

Illex

    This action specifies the Illex ABC as 24,000 mt, and specifies 
IOY, DAH, and DAP as 23,328 mt to account for discards, which were 
estimated as 2.8 percent of total catch in the last assessment. The FMP 
does not authorize the specification of JVP and TALFF for the Illex 
fishery because of the domestic fishing industry's capacity to harvest 
and to process the IOY from this fishery.

Butterfish

    This action specifies the butterfish ABC at 1,500 mt, and the IOY 
at 500 mt, and DAH and DAP at 495 mt. Additionally, consistent with MSB 
regulations, the Council recommended, and this action is specifying, 
zero TALFF for butterfish because zero TALFF is specified for mackerel.
    Amendment 10 created a butterfish mortality cap for the Loligo 
fishery, which is equal to 75 percent of the butterfish ABC. Thus, this 
action sets the butterfish mortality cap at 1,125 mt. If the portion of 
the butterfish mortality cap allocated to Trimester I (January-April) 
or Trimester III (September-December) is harvested, the directed Loligo 
fishery will close for the remainder of that trimester.

Comments and Responses

    NMFS received seven comments from industry entities: Three from the 
Garden State Seafood Association (GSSA), submitted on behalf of several 
fishery organizations; one from Lund's Fisheries, Incorporated; one 
submitted on behalf of Seafreeze, Ltd.; one from Top Catch, Inc.; and 
one from TrawlWorks, Inc. In addition, there was one form letter 
submitted with signatures from 73 individuals. Some commenters 
identified issues that are not related to this action; only comments 
related to the proposed specifications are responded to below.
    Comment 1: All of the industry groups and the 73 individuals who 
commented through the form letter stated their opposition to the 
proposed specifications for butterfish, due to the butterfish mortality 
cap specified for the

[[Page 8308]]

Loligo fishery. Most of these commenters noted that the butterfish 
stock assessment results produced by the Northeast Fisheries Science 
Center's 49th Stock Assessment Workshop (SAW 49) did not include a 
finding that overfishing was occurring, and did not attribute the 
butterfish stock decline to fishing mortality. All of the commenters 
expressed concern about the restrictive butterfish mortality cap, given 
the uncertainty in the butterfish stock assessment results produced by 
SAW 49, arguing that the uncertainty means the level specified for the 
cap cannot be justified.
    All of the commenters expressed concern that the butterfish 
mortality cap will be attained, and that participants in the Loligo 
fishery will be precluded from fully harvesting the Loligo quota, 
causing unnecessary economic harm to participants in the Loligo 
fishery. GSSA and Lunds both requested that NMFS consider the potential 
loss of income that will occur in Mid-Atlantic communities. GSSA, 
Lunds, Top Catch, Inc., and the form letter stated the view that 
measures to regulate butterfish, a bycatch species with a 3-year 
lifespan, should not control the $50-million Loligo fishery. TrawlWorks 
stated that Loligo harvesters will be particularly impacted if the 
butterfish mortality cap is attained in the fall, and the Loligo 
fishery is closed when Loligo is usually abundant. GSSA noted that the 
decline in butterfish stock abundance is unrelated to the recent rate 
of Loligo fishing, and that the economic losses that would result from 
closure of the Loligo fishery would be much greater than any potential 
benefit to the butterfish resource.
    GSSA, Lunds, Top Catch, Inc., and the form letter specifically 
requested NMFS to specify the butterfish ABC at 4,445 mt, a level the 
commenters claimed is justified based on the best available science. 
GSSA, Lunds, and Top Catch stated their view that this level was 
identified by the SSC as a safe, scientifically justified harvest 
level. The form letter also stated that it is unjustified to use a 
precautionary approach when specifying butterfish ABC in light of the 
uncertainty in the recent assessment. The commenters expressed the view 
that guesswork was used to quantify butterfish predation mortality. 
GSSA and Lunds stated their view that the range of ABCs considered 
valid by the SSC included a 25,000-mt option that was risk-neutral; 
therefore, they concluded that the ABC of 1,500 mt seems excessively 
precautionary. GSSA and Lund's pointed out that the butterfish ABC was 
set at 4,545 mt in 2007, and that the reduction of ABC to 1,500 mt in 
2008 was made at a time when no new assessment data were available, in 
an effort to discourage a directed butterfish fishery. GSSA stated the 
view that SAW 49 determined that butterfish were not overfished, nor 
were they overfished in the past; therefore, the 1,500-mt ABC is based 
on erroneous information. They argued that setting the ABC at 4,445 mt 
is more scientifically sound, and appropriately risk averse.
    Seafreeze stated that the 2011 butterfish specifications violate 
National Standard 1 because the butterfish quota prevents a directed 
butterfish fishery from occurring, and the butterfish mortality cap 
would result in the premature closure of the Loligo fishery. Thus, they 
concluded that the butterfish specifications will prevent the Loligo 
fishery from achieving optimum yield, in violation of National Standard 
1. Seafreeze also stated that the specifications violate National 
Standard 2 because they ignore the best available science, namely the 
most recent NEFSC bottom trawl survey results. Seafreeze claimed that 
the Autumn 2009 and Spring 2010 bottom trawl surveys both showed 
butterfish catches comparable to the period from 1980-1990 when 
butterfish biomass was estimated at 125,000-150,000 mt, therefore 
indicating that the butterfish stock can sustain an ABC of 20,000 mt. 
They stated that, because the life span of butterfish is about 3 years, 
it is imperative to use this recent trawl survey data. Seafreeze 
suggested that NMFS should reject the proposed specifications, reassess 
the butterfish stock based on trawl survey data, and establish a 
butterfish ABC that will allow for a directed butterfish fishery.
    GSSA noted that the 2004 SARC only had abundance estimates based on 
survey data from the R/V Albatross, and that calibration exercises 
since that time, that compare R/V Albatross data with new data from the 
R/V Bigelow, shows that that butterfish catch data from the R/V 
Albatross were biased low. They stated that, in their view, the SAW 49 
estimated 2008 butterfish biomass of 88,800 mt would indicate that 
setting the butterfish ABC at 20,000 mt will result in no risk to the 
stock.
    GSSA further asserted that the lack of reference points for the 
butterfish stock, the fact that butterfish predation mortality far 
surpasses fisheries mortality, and the fact that the Autumn 2010 bottom 
trawl survey results have yet to be compiled, all indicate that there 
is no information to inform abundance projections for butterfish for 
2011, making any management action arbitrary and unsupported by 
science.
    GSSA also stated that recent downward trends in the butterfish 
stock may be due to increased predation. They believe that, because 
predation mortality is high and because Loligo squid is a major 
butterfish predator, management measures that promote the utilization 
of the Loligo resource may actually be beneficial to the butterfish 
stock.
    Response 1: The MSB FMP and its implementing regulations require 
the specification of the butterfish ABC, and the resulting butterfish 
mortality cap. NMFS acknowledges that SAW 49 did not produce approved 
biological reference points, and thus did not make a formal 
determination that the butterfish stock is currently overfished. The 
stock assessment concluded that fishing mortality has been declining 
over time, and has been very low in recent years. However, SAW 49 also 
recommended that point estimates of both biomass and fishing mortality 
should be interpreted with caution, and noted that the biological 
reference points could not be estimated because the stock does not 
appear to be at equilibrium. It also concluded that the stock 
assessment appropriately reflected stock trends, demonstrating a 
convincing long-term decreasing trend in spawning stock biomass (SSB), 
with recent biomass estimates among the lowest in the time series.
    While butterfish fishing mortality is low, and overfishing appears 
not to be occurring, the butterfish mortality cap was designed by the 
Council in Amendment 10 to minimize butterfish bycatch in the Loligo 
fishery, not to address overfishing. In addition to the butterfish 
mortality cap, Amendment 10 enacted a rebuilding program for 
butterfish. At the time Amendment 10 was being developed, the 2004 
butterfish assessment (SAW 38) indicated that a reduction in fishing 
mortality may lead to improvements in the butterfish stock. The 
analysis in Amendment 10 noted that the butterfish mortality cap could 
be a tool to limit the portion of butterfish fishing mortality 
attributable to the Loligo fishery and, accordingly, may provide 
rebuilding benefits to the stock. Though more recent information 
provided in SAW 49 indicates that fishing mortality is low compared to 
natural mortality, and is likely not the driver of long-term declines 
in SSB, both SAW 38 and SAW 49 did determine that butterfish discards 
were equal to twice the annual landings. Amendment 10 identified the 
Loligo fishery as the predominate source of butterfish discards. Thus, 
Amendment 10 enacted the butterfish mortality cap as a permanent 
measure to

[[Page 8309]]

limit butterfish bycatch in the Loligo fishery.
    Though there was considerable uncertainty in the recent assessment, 
including limited information about the causes of the butterfish stock 
decline, NMFS determined that there was no evidence presented that 
suggests that the status of the butterfish stock has improved since the 
2004 SAW 38 assessment concluded that the stock was overfished. SAW 49 
reviewers agreed that the status of the butterfish stock could not be 
determined based on the assessment. Several commenters argued that, in 
their view, the cap is overly precautionary, and that the uncertainty 
in the stock assessment results means it is inappropriate to be 
precautionary. NMFS disagrees that this is necessarily the case, and 
notes that this alone is insufficient basis for an increase to the 
butterfish ABC (and the resulting butterfish mortality cap).
    NMFS notes that the SSC utilized the results of SAW 49 in making 
the recommendation for the ABC specified in this action. The alternate 
suggested values for ABC were not validated or endorsed by the SSC, as 
some commenters indicated. Because of uncertainty about butterfish 
stock size, and uncertainty about the potential response of the 
butterfish stock to fishing pressure, the Council staff generated a 
range of potential ABCs for consideration by the SSC. These ranged from 
1,362 mt to 25,000 mt, and were developed using several different 
approaches. The 4,445-mt ABC (average catch from 1996-2008) and the 
25,000-mt ABC (an F of 0.39 applied to a 45,000-mt stock) cited by the 
commenters were included in this range. While the SSC used this 
information from Council staff, in conjunction with SAW 49, to inform 
its final ABC recommendation, the range generated by Council staff was 
in no way binding for the SSC, nor was it endorsed by the SSC as 
appropriate or scientifically justified. There is no basis for the 
commenters' contention that these higher values are risk-averse or 
risk-neutral; there is no SSC conclusion to that effect. The SSC 
ultimately recommended 1,500 mt as the 2011 butterfish ABC because 
available information suggested that, provided improved environmental 
conditions affecting recruitment, the butterfish stock size could 
increase in the future if the 2011 ABC was maintained at this level. 
The SSC used the best scientific information available to it at the 
time it made its recommendation.
    The commenters are correct that the butterfish ABC was set at 4,545 
mt until 2007, but did not fully describe the reason for the reduction 
of the ABC to 1,500 mt for subsequent years. Though no new stock 
assessment data were available leading up to implementation of the 2008 
specifications (the action that first set the butterfish ABC at 1,500 
mt, and IOY/DAH at 500 mt), the ABC and IOY were reduced to cap the 
fishery at recent levels (500 mt) to prevent any expansion of the 
directed fishery of butterfish while the stock is being rebuilt. At 
that time, the Council was developing measures for Amendment 10 to 
reduce butterfish discards and rebuild the stock.
    NMFS disagrees that the butterfish specifications violate either 
National Standard 1 or National Standard 2. National Standard 1 does 
not require NMFS to specify a quota that will support a directed 
fishery if it is inappropriate to the stock condition. In fact, since 
2008, the Council has recommended, and NMFS has specified, the 
butterfish quota at 500 mt to maintain butterfish landings at low 
levels due to concerns about the stock. In addition, courts have 
recognized that optimum yield is a level to be achieved on a continuing 
basis and not in a single year (see North Carolina Fisheries 
Association v. Daley). The commenters concluded that National Standard 
2 is violated because the specifications were developed before the most 
recent NEFSC bottom trawl survey results were available. They believe 
that these survey results, which obtained more butterfish samples than 
in previous years, must be incorporated into the 2011 butterfish 
specifications. NMFS disagrees. National Standard 2 requires the use of 
the best available science at the point in time that an action is being 
developed. The Council's process for developing annual specifications 
for the butterfish fishery begins in June each year, and the Council 
utilized the best science available to it at that time to develop this 
action. If, in the future, new information indicates that the 
butterfish stock condition has changed, the Council can consider that 
information in the 2012 specifications process.
    The results of the Autumn 2009, Spring 2010, and Autumn 2010 NEFSC 
surveys were not included in the data used for the SAW 49 stock 
assessment. NMFS notes that survey indices do not provide a point 
estimate of stock size or amount to a status determination. The 
calibration-adjusted butterfish catch rates from the Autumn 2009 and 
Autumn 2010 bottom trawl surveys were 6.4 kg/tow and 5.59 kg/tow, 
respectively. Though these numbers are about twice the average from 
Autumn surveys from 1999-2008 (3.4 kg/tow), it is not possible to 
determine if this upturn constitutes a trend. NMFS notes that the 
butterfish stock assessment is not based solely on survey biomass 
indices, but incorporates data sets within a stock assessment model.
    NMFS acknowledges that, if the cap is attained before the Loligo 
fishery has fully harvested the annual Loligo quota, there could be 
revenue losses for some Loligo harvesters. This possibility was 
discussed in the Council's Initial Regulatory Flexibility Analysis 
(IRFA), which assessed impacts of the proposed measures on small 
businesses. That analysis noted that, in 2009, the Loligo fishery ex-
vessel value was approximately $18 million. It is not possible to 
estimate when the Loligo fishery might reach the cap, because 
environmental conditions and fleet behavior are likely to strongly 
influence how much butterfish the Loligo fishery encounters. If high 
rates of butterfish catch occur, Amendment 10 estimated that up to 64 
percent of 2006 Loligo revenue levels could be lost. The analysis noted 
that 2007-2009 landings were lower than in 2006, so a closure of the 
Loligo fishery would likely have a smaller impact, but concluded that a 
closure related to the butterfish mortality cap could substantially 
restrict Loligo landings. The economic impacts of the cap are further 
detailed in Amendment 10. NMFS notes that the preliminary data for 
Loligo in 2010 indicate that landings appear to have decreased from 
9,306 mt in 2009 to approximately 6,714 mt in 2010. NMFS also notes 
that, during the debate over Amendment 10, some industry members often 
stated they could avoid butterfish voluntarily, and thus minimize 
interactions.
    Comment 2: GSSA and Lund's both supported setting aside 3 percent 
of the mackerel IOY as RSA, but thought that the proposed rule should 
have included information about the 14 bilateral research priorities 
that emerged from the recent TRAC.
    Response 2: NMFS solicited research proposals under the 2011 Mid-
Atlantic RSA Program through the Federal Register (75 FR 3092, January 
19, 2010), and reviewed them in an application process that is separate 
from the setting of annual specifications. The solicitation document is 
the appropriate vehicle to identify research priorities. The 
distribution of RSA quota to fund research depends both on Council 
specified research priorities and on the desire and capacity for the 
research community to compete for mackerel RSA. For the 2011 RSA 
Program, no proposals requesting mackerel RSA were approved, and thus 
no mackerel RSA will be allocated through this

[[Page 8310]]

action. The identification and development of joint U.S./Canada 
research priorities for mackerel is the subject of U.S./Canada 
Bilateral Fisheries Consultations and is not the subject of this 
rulemaking.
    Comment 3: GSSA and Lund's expressed concern that the proposed 
mackerel specifications, which reflect the TRAC's recommendation that 
U.S. and Canadian catch not exceed 80,000 mt, are overly conservative 
and will unnecessarily reduce U.S. access to the mackerel resource. 
Both organizations are supportive of the proposed 2011 U.S. ABC of 
47,395 mt as an interim quota, given the current uncertainty in stock 
status, and the method used to derive expected Canadian catch; however, 
they expressed concern that the Canadian mackerel quota for 2011 has 
been specified at 60,000 mt, a value higher than the Council expected. 
Lund's expressed concern that scientific uncertainty has recently led 
to dramatically reduced catch levels for otherwise apparently healthy 
resources like mackerel, which, until the 2010 assessment, was 
described as not overfished, with overfishing not occurring.
    Both organizations supported the Agency's determination that both 
JVP and TALFF be set at zero because there is sufficient demand for 
mackerel in world markets to create opportunities for U.S. harvesters 
and shoreside processors to utilize all of the U.S. ABC.
    Response 3: Although the TRAC was unable to establish reference 
points for stock biomass and fishing mortality, the assessment 
indicated reduced stock productivity and a lack of older fish in the 
survey and catch, and suggested limiting total catch of mackerel to 
80,000 mt (average U.S./Canadian landings from 2006-2008) until new 
information suggests that a different amount is appropriate. The SSC's 
advice to the Council was consistent with this recommendation, and NMFS 
has determined that the approach reflected in the specifications is 
based on the best scientific information available.
    The U.S. quota is derived from ABC by estimating Canadian catch in 
2011 at 32,605 mt. NMFS acknowledges the commenters' concern that the 
Canadian Government has set the mackerel quota at 60,000 mt, but does 
not believe it is necessary to adjust the Canadian catch estimate in 
response. While the Canadian quota provides the opportunity for the 
Canadian fishery to increase landings substantially, NMFS believes that 
the Council's derivation method, which is based on recent fishery 
performance, provides the most reliable estimate of 2011 Canadian 
catch. Despite the progress made in the recent joint assessment of the 
mackerel stock, there is no joint process for the allocation of the 
mackerel resource, and the United States and Canada set their catch 
levels for mackerel independently. NMFS notes that, despite the fact 
that the mackerel quota allocation for 2011 (46,779 mt) is lower than 
the 2010 allocation of 115,000 mt, it is still almost double the 
average U.S. mackerel landings of 25,000 mt during the past 3 years 
(2007-2009). NMFS notes that mackerel apparently continues to be 
unavailable to the U.S. fleet, as preliminary 2010 landings of mackerel 
are approximately 10,000 mt. As a result, the 2011 mackerel quota 
appears unlikely to constrain the fishery.
    Comment 4: GSSA and Lund's both support the proposed specifications 
for Illex and Loligo squid.
    Response 4: NMFS is implementing the proposed specifications 
through this final rule.
Classification
    The Administrator, Northeast Region, NMFS, determined that these 
specifications are necessary for the conservation and management of the 
Atlantic mackerel, squid, and butterfish fisheries and that it is 
consistent with the Magnuson-Stevens Fishery Conservation and 
Management Act and other applicable laws.
    The Assistant Administrator for Fisheries finds good cause under 5 
U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness otherwise 
required by the Administrative Procedure Act. If there is a delay in 
implementing this action, NMFS will lack the regulatory authority to 
issue a closure for the Loligo fishery if the butterfish mortality cap 
is attained. The Loligo squid fishery is particularly active during the 
first Trimester of the fishing year. Given the timing of Loligo fleet 
activity, and history of fishery interactions between Loligo and 
butterfish, a delay in the effectiveness of this action is likely to 
result in a situation where the Trimester I butterfish mortality cap is 
exceeded. The regulations state that any overages of the butterfish 
mortality cap during Trimester I and II will be applied to Trimester 
III of the same year. If the 2011 mortality for Trimester I is exceeded 
prior to the effectiveness of this rule, this overage must be deducted 
from Trimester III, and the Loligo fishery would be closed even more 
prematurely during Trimester III. This outcome would severely limit the 
activity of Loligo fishermen who participate in the fishery during the 
latter portion of the year, which would negatively impact these 
fishermen. The overall conservation objectives of the butterfish 
mortality cap will be undermined if the mortality cap is exceeded in 
Trimester I prior to the implementation of this action.
    The Council prepared an EA for the 2011 specifications, and the 
NOAA Assistant Administrator for Fisheries concluded that there will be 
no significant impact on the human environment as a result of this 
rule. A copy of the EA is available upon request (see ADDRESSES).
    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 FRFA, included in the preamble of this final rule, in 
support of the 2011 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 
in response to the IRFA, and NMFS responses to those comments. A copy 
of the IRFA, the RIR, and the EA are available upon request (see 
ADDRESSES).

Statement of Need for This Action

    This action proposes 2011 specifications and management measures 
for MSB fisheries and modifies existing management measures to improve 
the management of MSB fisheries. 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.

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

    Eight unique comment letters were received during the comment 
period on the proposed specifications. The comments were not 
specifically directed to the IRFA, but each of the comments expressed 
concern about negative economic impacts of the proposed ABCs for 
butterfish and mackerel, on small entities. All public comments on 
issues relative to the IRFA, in which commenters expressed concern 
directly and indirectly about the economic impacts of the 2011 
specifications, are

[[Page 8311]]

described in the ``Comments and Responses'' section of the preamble to 
this final rule and, therefore, are not repeated here. NMFS's response 
to the concerns about the economic impacts associated with the 
butterfish mortality cap for the Loligo fishery is provided in Response 
1; and Response 3 addresses concerns about mackerel.

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

    Based on permit data for 2010, the numbers of potential fishing 
vessels in the 2011 fisheries are as follows: 360 Loligo/butterfish 
moratorium permits, 76 Illex moratorium permits, 2,156 mackerel 
permits, 1,844 incidental squid/butterfish permits, and 1,844 MSB 
party/charter permits. 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 contains a change to an information collection 
previously approved by the Office of Management and Budget (OMB) under 
OMB Control Number 0648-0601: Atlantic Mackerel, Squid, and Butterfish 
Amendment 10 Data Collection. This action requires that vessels 
intending to embark on Loligo trips notify NEFOP at least 72 hr, but no 
more than 10 days before their intended departure dates. The adjustment 
will also allow vessels to submit an email address for contact. This 
change did not increase the reporting burden for these entities, and 
has been approved by OMB. This action does not duplicate, overlap, or 
conflict with any other Federal rules.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic Impacts 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 (46,779 mt, with 15,000 
mt allocated to recreational catch) represents a reduction from status 
quo (115,000 mt). Despite the reduction, the specified IOY is above 
recent U.S. landings; mackerel landings for 2007-2009 averaged 23,310 
mt; and preliminary landings in 2010 are approximately 10,000 mt. Thus, 
the reduction does not pose a constraint to vessels relative to the 
landings in recent years. Accordingly, no reductions in revenues for 
the mackerel fishery are expected as a result of this action.
    The Loligo IOY (20,000 mt) represents a slight increase from the 
status quo (19,000 mt). Loligo landings for 2007-2009 averaged 11,019 
mt. This provides an opportunity to increase landings, though if recent 
trends continue, there may be no increase in landings, despite the 
increase in the allocation. 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) between Trimester II 
and III, but will limit the transfer of quota such that the Trimester 
II quota could increase by 50 percent, at most. This method of 
transferring quota may provide some economic benefit to the fishery 
during Trimesters II and III, because it will allow access to 
underutilized Trimester I quota later in the fishing year.
    The change to the pre-trip observer notification requirement 
implemented in this action, which would allow vessels to notify at 
least 72 hr, but no more than 10 days prior to fishing trips, is an 
administrative measure to facilitate the placement of observers aboard 
the Loligo fleet, and is intended to reduce the burden of the 
notification requirement for vessels that depart on multiple trips in a 
short period by allowing for advance notification. The economic burden 
on fishery participants associated with this measure is expected to be 
minimal.
    The Illex IOY (23,328 mt) specified in this action represents a 
slight decrease compared to status quo (24,000 mt). Though annual Illex 
landings have been increasing over the past 3 years (9,002 mt for 2007, 
15,900 mt for 2008, and 18,419 mt for 2009), the landings were lower 
than the specified level. Thus, implementation of this action should 
not result in a reduction in revenue or a constraint on expansion of 
the fishery in 2011.
    The butterfish IOY specified in this action (500 mt) represents 
status quo, as compared to 2010, 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.
    As discussed in the FRFA for MSB Amendment 10, the butterfish 
mortality cap has a potential for economic impact on fishery 
participants. The Loligo fishery will close during Trimesters I and 
III, if the butterfish mortality cap is reached. If the Loligo fishery 
is closed in response to butterfish catch before the entire Loligo 
quota is harvested, then a loss in revenue is possible. The potential 
for Loligo revenue loss is dependent upon the size of the butterfish 
mortality cap, which is based on the level of butterfish abundance. As 
the butterfish stock rebuilds, the mortality cap will increase, and the 
potential for lost Loligo revenue should decrease. When the butterfish 
stock rebuilds, a directed butterfish fishery could resume, provided 
discards are kept low, and would have economic benefits for fishery 
participants.

Alternatives to the Actions in the Final Rule

    The Council analysis evaluated two alternatives to this action for 
mackerel. Based on recent harvest levels, neither of the ABC and IOY 
alternatives would represent a constraint on vessels in this fishery. 
The first alternative (status quo; least restrictive), which would have 
set the ABC at 156,000 mt and IOY at 115,000 mt, was not selected 
because the ABC would have exceeded the SSC's recommendation.
    As in the selected action (intermediately restrictive), the second 
alternative (most restrictive) started from the SSC recommended 
stockwide ABC of 80,000 mt, but instead subtracted an estimated 41,556 
mt for

[[Page 8312]]

Canadian landings. This would have resulted in a U.S. ABC of 38,444 mt, 
and an IOY and DAH of 37,944 mt (U.S. ABC minus 1.3 percent for 
discards). For this alternative, expected Canadian catch (41,556 mt) 
was derived by examining the relationship between Canadian landings in 
one year (e.g., 1994) and the Canadian landings 2 years later (e.g., 
1996); this analysis was chosen so that 2009 Canadian landings could be 
used to determine expected Canadian landings for 2011. The years 
examined included 1962-2009. Though the two landings series were found 
to be strongly correlated (correlation coefficient = 0.71), this method 
of deriving expected Canadian catch (and the resulting specifications 
alternative) was not determined to be the best approach. The landings 
series compared in the method used to derive 2011 Canadian catch in the 
selected alternative (U.S. landings in one year and Canadian landings 
in the next year) were found to have a stronger correlation 
(correlation coefficient = 0.86) than the landings series compared in 
this alternative. Thus, using the Canadian catch derivation method in 
the selected alternative provides a more reliable estimate of 2011 
Canadian catch.
    There were two alternatives to the selected action evaluated for 
Loligo. Both alternatives set the Max OY at 32,000 mt, the same level 
as the selected action. The first alternative (status quo) would have 
set the ABC and IOY at 19,000 mt; this alternative was not chosen, 
because it was not consistent with the ABC recommended by the SSC. The 
second alternative (least restrictive) would have set the ABC at the 
level recommended by the SSC (24,000 mt), but would have set the IOY at 
22,560 mt (ABC reduced by 6 percent to account for discards). This 
alternative was not adopted by the Council because two sources of 
uncertainty, namely the uncertainty regarding the discard estimate and 
the management uncertainty regarding the operation of the Loligo 
fishery in 2011, given the impending implementation of the butterfish 
mortality cap, warranted setting the IOY at the more precautionary 
level specified in this action (intermediately restrictive).
    The alternatives also differed in how Trimester I underages and 
overages would be applied to the Loligo quotas in the following 
Trimesters. The first alternative (status quo) would maintain the 
current measure to distribute an underage in Trimester I greater than 
25 percent of the Trimester I quota evenly between Trimesters II and 
III. The current measure was not considered to be sufficient to address 
management uncertainty related to the implementation of the butterfish 
mortality cap in 2011.
    Two non-selected alternatives were considered for Illex; both would 
have set the ABC at 24,000 mt. The first alternative would have set 
IOY, DAH, and DAP at 24,000 mt (status quo; least restrictive) rather 
than the 23,328 mt specified in this action (intermediately 
restrictive). This alternative was not selected because the higher 
specifications were inconsistent with the results of the most recent 
stock assessment. The second alternative (most restrictive) would have 
set IOY, DAH, and DAP at 22,656 mt (ABC reduced by 5.6 percent, based 
on double the discard ratio estimate). The Council considered this 
alternative unnecessarily restrictive.
    One non-selected alternative was considered for butterfish that 
would maintain the status quo, which only differs from the selected 
alternative in that it would have set Max OY at 12,175 mt. The selected 
alternative removes the specification of Max OY, because it is no 
longer supported by best available science. All other specifications 
are identical to the status quo alternative.

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 letter to permit holders that also serves as 
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).
    This action contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA), which was previously 
approved by OMB under OMB Control Number 0648-0601. The public 
reporting burden for the phone call to declare a Loligo fishing trip is 
estimated to average 2 min per call per trip. Public burden for the 
phone call to cancel a Loligo trip is estimated to average 1 min. Send 
comments regarding these burden estimates or any other aspect of this 
data collection, including suggestions for reducing the burden, to NMFS 
(see ADDRESSES) and by e-mail to [email protected], or fax 
to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: February 8, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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 
reallocated to Trimesters II and III of the same year. The reallocation 
of quota from Trimester I to Trimester II is limited, such that the 
Trimester II quota may only be increased by 50 percent; the remaining 
portion of the underage will be reallocated to Trimester III. 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 revised 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

[[Page 8313]]

25 percent or more, then the amount of the underharvest shall be 
reallocated to Trimesters II and III, as specified at Sec.  
648.21(f)(2), through notice in the Federal Register.
* * * * *

0
4. Section 648.26 is amended by revising paragraphs (a) and (d) to read 
as follows:


Sec.  648.26  Observer requirements for the Loligo fishery.

    (a) A vessel issued a Loligo and butterfish moratorium permit, as 
specified at Sec.  648.4(a)(5)(i), must, for the purposes of observer 
deployment, have a representative provide notice to NMFS of the vessel 
name, vessel permit number, contact name for coordination of observer 
deployment, telephone number or e-mail address for contact; and the 
date, time, port of departure, and approximate trip duration, at least 
72 hr, but no more than 10 days prior to beginning any fishing trip, 
unless it complies with the possession restrictions in paragraph (c) of 
this section.
* * * * *
    (d) If a vessel issued a Loligo and butterfish moratorium permit, 
as specified at Sec.  648.4(a)(5)(i), intends to possess, harvest, or 
land 2,500 lb (1.13 mt) or more of Loligo per trip or per calendar day, 
has a representative notify NMFS of an upcoming trip, is selected by 
NMFS to carry an observer, and then cancels that trip, then the 
representative is required to provide notice to NMFS of the vessel 
name, vessel permit number, contact name for coordination of observer 
deployment, and telephone number or e-mail for contact, and the 
intended date, time, and port of departure for the cancelled trip prior 
to the planned departure time. In addition, if a trip selected for 
observer coverage is canceled, then that vessel is required to carry an 
observer, provided an observer is available, on its next trip.

[FR Doc. 2011-3245 Filed 2-11-11; 8:45 am]
BILLING CODE 3510-22-P