E6-18188. Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; Correction

AGENCY:

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

ACTION:

Final rule; correction.

SUMMARY:

NMFS implements this final rule to clarify the expiration date of the limited entry program for Illex squid, reestablish a minimum mesh requirement for the butterfish fishery, and remove a regulatory requirement for annual specifications to be published by a specific date. These measures were initially implemented by the final rule implementing the specifications for the 2005 fishing year for Atlantic mackerel, squid, and butterfish (MSB). These regulatory measures were intended to be of a permanent nature, unlike the 2005 specifications themselves, which were effective through December 31, 2005. An error in the final rule caused these three measures to expire; this rule restores the regulatory requirements. This action is being taken by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

DATES:

Effective November 29, 2006.

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), for the 2005 specifications 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.

FOR FURTHER INFORMATION CONTACT:

Don Frei, Fishery Management Specialist, 978-281-9221, fax [phone].

SUPPLEMENTARY INFORMATION:

Background

NMFS published final specifications for the 2005 fishing year for MSB in the Federal Register on March 21, 2005 (70 FR 13406), and the measures became effective on April 20, 2005. The final rule included regulatory changes that were meant to be permanent, as well as the MSB specifications, which were intended to be effective through December 31,2005. However, in the dates section of the final rule, the distinction between the effective dates of the 2005 annual specifications and the permanent regulations was not defined and, as a result, all of the measures of the final rule expired on January 1, 2006. This action permanently reestablishes the regulatory measures as intended.

On August 2, 2006, a proposed rule was published in the Federal Register (71 FR 43707) soliciting public comment. This final rule addresses the public comment that was received during the comment period which ended on August 17, 2006. No changes were made to the rule.

Comments and Responses

One comment was received in response to the proposed rule. It identified issues about fisheries management that were not relevant to the proposed measures. Therefore, the comment is not responded to in this final rule.

Final Measures

Illex Moratorium Permits

Framework 4 to the MSB Fishery Management Plan (FMP) became effective July 1, 2004(69 FR 30839, June 1, 2004), and extended the limited entry program for the Illex squid fishery through July 1, 2009. In a subsequent regulatory action (March 21, 2005, 70 FR 13406), the text reflecting the extension was not identified as a permanent regulation and, therefore, expired on January 1, 2006. This final rule specifies the July 1, 2009, expiration date in the regulatory text, as was intended.

Gear Specifications For Otter Trawl Butterfish Trips

The final rule implementing the 2005 MSB specifications included a 3.0-inch (7.62-cm) minimum codend mesh size requirement for butterfish otter trawl trips of greater than 5,000 lb (2,268 kg). The measure was described in detail in the proposed rule for the 2005 MSB specifications (70 FR 1686, January 10, 2005) and is only summarized here. The purpose of this minimum mesh size requirement is to allow for escapement of unmarketable butterfish and butterfish below the size at which 50 percent are sexually mature. This minimum mesh size requirement reduces discards in the directed fishery, especially of small, sexually immature butterfish, which will increase the chance of successful recruitment and aid in stock rebuilding. This final rule re-establishes the minimum mesh size requirements in the regulations.

Annual Specifications

The final rule implementing the 2005 MSB specifications included a clarification to the regulations in § 648.21, removing 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 those dates in regulatory text. This rule re-instates that clarification by removing the unnecessary dates.

Classification

This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866.

The final rule contains the FRFA prepared pursuant to 5 U.S.C. 604(a) for these measures, as analyzed in the 2005 MSB specifications. The FRFA consists of the IRFA and the summary of impacts and alternatives contained in this final rule. No comments were received on the IRFA or economic impacts of the rule. A copy of the IRFA can be obtained from the Council or NMFS (see ADDRESSES) or via the Internet at http:/www.nero.noaa.gov.

Summary 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 this final rule and the proposed rule for the 2005 MSB specifications and is not repeated here.

Summary of Significant Issues Raised by Public Comment

One comment was received in response to the proposed rule. It identified issues about fisheries management that were not relevant to the proposed measures. Therefore, the comment is not responded to in this final 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 were 72 for Illex squid, and 2,119 vessels with incidental catch permits for squid/butterfish, based on vessel permit issuance. There are no large entities participating in this fishery, as defined in section 601 of the Regulatory Flexibility Act. Therefore, there are no disproportionate economic impacts. Many vessels participate in more than one of these fisheries; therefore, the 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.

Minimizing Significant Economic Impacts on Small Entities

The re-establishment of the regulation to specify the expiration date of the limited entry program for Illex squid and the removal of the regulatory text that specified dates by which annual specifications must be published have no economic impacts.

The economic impacts of the re-establishment of the measure to require the use of a 3.0-inch (7.62 cm) minimum codend mesh size for otter trawl trips landing more than 5,000 lb (2,278 kg) of butterfish were analyzed. During the period 2001-2003, 16,854 trips landed butterfish, based on unpublished NMFS Vessel Trip Report (VTR) data. More than half (57 percent) of the landings of butterfish during 2001-2003 were taken with mesh sizes less than 3.0 inches (7.62 cm). Within this mesh size range, most were taken with mesh sizes between 2.5 inches (6.35 cm) and 3.0 inches (7.62 cm). The trips using this mesh size range (i.e., less than 3.0 inches (7.62 cm))could potentially be affected by the proposed mesh size. However, the 3.0-inch (7.62-cm) mesh requirement only applies to otter trawl trips landing 5,000 lb (2,278 kg) or more of butterfish. In terms of numerical frequency of trips, the vast majority of trips during 2001-2003 landed less than 5,000 lb (2,278 kg) of butterfish, based on NMFS VTR data. While 57 percent of the landings by weight were taken on trips of greater than 5,000 lb (2,278 kg) during the period, fewer than 1 percent of the trips landing butterfish landed more than 5,000 lb (2,278 kg). Only 26 vessels had trips that included landings of butterfish of 5,000 lb (2,278 kg) or more, and also reported using mesh sizes less than 3.0 inches (7.62 cm) on those trips. Therefore, it is expected that the economic impact of this measure will be negligible, because the vast majority of trips and vessels will not be affected. The costs for those vessels that do land butterfish on trips of more than 5,000 lb (2,278 kg) of butterfish should also be negligible because virtually all of those vessels already possess codends with 3.0-inch (7.62-cm) mesh or greater (because they are fishing for butterfish or in another fishery that uses nets of that size, e.g., whiting). Therefore, they should not incur any additional costs due to the 3.0 inch (7.62 cm) minimum mesh size requirement. This mesh size was selected to allow for escapement of unmarketable butterfish and butterfish below the size at which 50 percent are sexually mature. Based on inspection of the size composition of discarded butterfish from unpublished sea sampling data, the minimum marketable size for butterfish is approximately 5.5 inches (14.0 cm). Based on a scientifically supported selection factor of 1.8, the mesh size corresponding to an L50 of 14 cm is 7.78 cm, or about 3.0 inches. When the Council considered implementing a mesh size requirement for butterfish landings, the only alternative to the proposed action considered was not implementing any mesh size requirement. This alternative was rejected because of the need to reduce discards of juvenile butterfish.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

Dated: October 24, 2006.

William T. Hogarth,

Assistant Administrator for Fisheries, National Marine Fisheries Service.

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

PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

1. The authority citation for part 648 continues to read as follows:

Authority: 16 U.S.C. 1801 et seq.

2. In § 648.4, the introductory text of paragraph (a)(5)(i) is added to read as follows:

§ 684.4

Vessel permits.

(a) * * *

(5) * * *

(i) Loligo squid/butterfish and Illex squid moratorium permits Illex squid moratorium is in effect until July 1, 2009).

* * * * *

3. In § 648.14, paragraphs (a)(74), (p)(5), and (p)(11) are added to read as follows:

§ 648.14

Prohibitions.

(a) * * *

(74) Possess nets or netting with mesh not meeting the minimum size requirements of § 648.23, and not stowed in accordance with the requirements of § 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 § 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 § 648.23(b) or the vessel is fishing under an exemption specified in § 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 § 648.23(a)(2).

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4. In § 648.21, paragraph (d) is added to read as follows:

§ 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.

* * * * *

5. In § 648.23, paragraph (a) is added to read as follows:

§ 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 headrope.

(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 17/8 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 headrope, 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°58.0′	67°22.0′
M2	43°50.0′	68°35.0′
M3	43°30.0′	69°40.0′
M4	43°20.0′	70°00.0′
M5	42°45.0′	70°10.0′
M6	42°13.0′	69°55.0′
M7	41°00.0′	69°00.0′
M8	41°45.0′	68°15.0′
M9	42°10.0′	67°10.0′
M10	41°18.6′	66°24.8′
M11	40°55.5′	66°38.0′
M12	40°45.5′	68°00.0′
M13	40°37.0′	68°00.0′
M14	40°30.0′	69°00.0′
M15	40°22.7′	69°00.0′
M16	40°18.7′	69°40.0′
M17	40°21.0′	71°03.0′
M18	39°41.0′	72°32.0′
M19	38°47.0′	73°11.0′
M20	38°04.0′	74°06.0′
M21	37°08.0′	74°46.0′
M22	36°00.0′	74°52.0′
M23	35°45.0′	74°53.0′
M24	35°28.0′	74°52.0′

(4) 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 17/8 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 paragraphs (c) and (d) of this section, when the vessel is landward of the specified coordinates.

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