E9-2581. 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.

SUMMARY:

This action implements 2009 specifications and management measures for Atlantic mackerel, squid, and butterfish (MSB), and modifies existing management measures. Specifically, this action maintains quotas for Atlantic mackerel (mackerel), Illex squid (Illex), and butterfish at the same levels as 2008, while increasing the quota for Loligo squid (Loligo). Additionally, this action increases the incidental possession limit for mackerel and allows for the possibility of an inseason adjustment to increase the mackerel quota, if landings approach harvest limits. These specifications and management measures promote the utilization and conservation of the MSB resource.

DATES:

Effective March 9, 2009.

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.nmfs.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 the Regional Administrator, Northeast Regional Office, NMFS, 55 Great Republic Drive, Gloucester, MA 01930-2276, and are also available via the internet at http://www.nero.nmfs.gov.

FOR FURTHER INFORMATION CONTACT:

Carrie Nordeen, Fishery Policy Analyst, 978-281-9272, fax [phone].

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. The regulations at §§ 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 found in § 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.

The Council adopted 2009 MSB specifications and management measures at its June 2008 meeting and submitted them to NMFS for review and approval. Initial submission was on August 1, 2008, and final submission was on September 18, 2008. A proposed rule for the 2009 MSB specifications and management measures was published on November 17, 2008 (73 FR 67829), and the public comment period for the proposed rule ended on December 17, 2008. 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 2009 Fishing Year

This action implements the following MSB specifications and management measures for the 2009 fishing year, which are described in detail below.

Table 1. Final Specifications, in Metric Tons (mt), for Atlantic Mackerel, Squid, and Butterfish for 2009 Fishing Year.

Specifications	Loligo	Illex	Mackerel	Butterfish
Max OY	32,000	24,000	N/A	12,175
ABC	19,000	24,000	156,000	1,500
IOY	18,8741	24,000	115,0002	500
DAH	18,874	24,000	115,0003	500
DAP	18,874	24,000	100,000	500
JVP	0	0	0	0
TALFF	0	0	0	0
1 Excludes 125.6 mt for RQ.
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.

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 2009 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. The Council heard from the industry that the availability of mackerel to the fishery, not the industry's ability to harvest mackerel, has curtailed catch in recent years. If mackerel are available to the fishery in 2009, NMFS believes that it is reasonable to assume that the commercial fishery will be able to 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.

As recommended by the Council, this action specifies the mackerel DAP at 100,000 mt and the mackerel JVP at zero. In previous years, the Council recommended a JVP greater than zero because it believed U.S. processors lacked the capacity to process the total amount of mackerel that U.S. harvesters could land. However, for the past several years, the Council has recommended zero JVP because the surplus between DAH and DAP has been declining as U.S. shore-based processing capacity for mackerel has expanded. Again, the Council heard from the industry that the availability 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, should the IOY be adjusted upward, U.S. processors have the capacity and intent to process it.

Mackerel Incidental Possession Limit

Regulations at § 648.25(a) specify that, during closures of the directed mackerel fishery, the incidental possession limit for mackerel is 20,000 lb (9.08 mt). In response to a request from the industry, the Council recommended increasing the incidental mackerel possession limit to minimize the potential for regulatory discarding of mackerel by the Atlantic herring fleet when mackerel and Atlantic herring co-occur in the Gulf of Maine during summer months. When considering an incidental possession limit increase, NMFS recognized that, relative to the quota, few mackerel are landed after June 1, because they move offshore and are largely unavailable to U.S. pelagic fishing fleets. NMFS also concluded that a moderate incidental possession limit increase is not anticipated to result in a quota overage because it is unlikely that the buffer between the threshold at which the directed mackerel fishery closes (103,500 mt) and the IOY (115,000 mt) would be landed between June 1 and December 31. Therefore, this action modifies the incidental possession limit for mackerel to minimize the potential for regulatory discarding by the Atlantic herring fleet in the Gulf of Maine, without creating directed fishing for mackerel during a closure of the mackerel fishery. Consistent with the Council's recommendation, this action specifies the mackerel incidental possession limit at 20,000 lb (9.08 mt) if the directed mackerel fishery closes prior to June 1, and at 50,000 lb (22.7 mt) if the directed mackerel fishery closes on or after June 1.

Inseason Adjustment of the Mackerel IOY

Regulations at § 648.21(e) provide that specifications may be adjusted inseason during the fishing year by the Regional Administrator, in consultation with the Council, by publishing a notice in the Federal Register and providing a 30-day public comment period. At the June 2008 Council meeting, both the mackerel industry and the Council reiterated interest in increasing the mackerel IOY if landings approach the IOY during the most active part of the fishing year (January-April). However, the mackerel fishing season is short and it would be difficult to implement a separate inseason action during the fishing season. To facilitate a timely inseason adjustment to the mackerel IOY, if necessary, public comment was solicited as part of the 2009 MSB specifications. In conjunction with this action, NMFS is adopting the same protocol used in 2008 to guide the exercise of its discretion to make in-season adjustments to annual specifications provided for in § 648.21(e). This protocol specifies that, 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 2009 fishing year, the Regional Administrator will make available additional quota for a total IOY of 156,000 mt of Atlantic mackerel for harvest during 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 website (http://www.nero.noaa.gov/​). NMFS staff will closely monitor these landings and industry trends to determine if an inseason adjustment is necessary. 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

Consistent with the revised biological reference points and the analytical advice provided by the most recent Loligo stock assessment review committee (SARC 34), this action specifies the Loligo Max OY at 32,000 mt and the ABC at 19,000 mt. One scientific research project proposal requesting 125.6 mt of Loligo RQ was recommended for approval and will be forwarded to the NOAA Grants Office for award. Therefore, this action adjusts the Loligo IOY, DAH, and DAP to reflect the RQ, and specifies 2009 Loligo IOY, DAH, and DAP at 18,874 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 2009.

Distribution of the Loligo DAH

As was done in 2007 and 2008, this action allocates the 2009 Loligo DAH into trimesters, consistent with the Council's recommendation. The 2009 trimester allocations are as follows:

Table 2. Trimester Allocation of Loligo Quota in 2009

Trimester	Percent	Metric Tons1
I (Jan-Apr)	43	8,116
II (May-Aug)	17	3,208
III (Sep-Dec)	40	7,550
Total	100	18,874
1 Trimester allocations after 125.6 mt RQ deduction.

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 and 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), and the Council developed a proposed rebuilding plan for the butterfish stock in Amendment 10 to the FMP (Amendment 10). While the rebuilding program was being developed in Amendment 10, the Council recommended restricting butterfish landings to recent landings levels to prevent an expansion of the fishery and to protect the stock. Therefore, for 2009, as in 2008, 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 2009. Additionally, consistent with MSB regulations, the Council recommended, and this action is specifying, zero TALFF for butterfish in 2009 because zero TALFF is specified for mackerel.

Comments and Responses

NMFS received one comment letter on the proposed 2009 MSB specifications and management measures, and the commenter indicated support for all proposed MSB specifications and management measures.

Changes From the Proposed Rule

The proposed rule contained an arithmetic error in the calculation of Loligo IOY, DAH, and DAP that must be corrected for the record. The Council recommended that 3 percent of the 2009 Loligo, Illex, butterfish, and mackerel quotas be set aside to fund projects selected under the 2009 Mid-Atlantic RSA Program. At the time of the proposed rule, the project selection and award process for the 2009 Mid-Atlantic RSA Program had not concluded. The proposed rule specified that 3 percent of the Loligo ABC was 5,700 mt, when it should have been 570 mt, and reduced the Loligo IOY, DAH, and DAP to 13,300 mt, rather than 18,430 mt.

Since the proposed rule was published, the selection process for the 2009 Mid-Atlantic RSA Program has progressed, and one project requesting 125.6 mt of Loligo RQ has been forwarded to the NOAA Grants Office for award. Therefore, this action reduces the 2009 Loligo ABC of 19,000 mt by 125.6 mt, resulting in a 2009 Loligo IOY, DAH, and DAP of 18,874 mt. If any portion of the RQ is not awarded, NMFS will return any un-awarded RQ to the commercial fishery through the publication of a separate notice in the Federal Register.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Acting 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 2009 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 Proposed Rule as a Result of Such Comments

NMFS received one comment letter in support of all proposed 2009 MSB specifications and management measures; therefore, there are no changes from the proposed rule as a result of that comment letter. No comments were received about the IRFA or the general economic effects of the proposed rule.

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

Based on permit data for 2007, the number of potential fishing vessels in the 2009 fisheries are as follows: 383 for Loligo/butterfish, 78 for Illex, 2,462 for mackerel, and 2,108 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 2008, and is no constraint to vessels relative to the landings in recent years. Landings were 55,528 mt in 2004, 43,246 mt in 2005, 58,279 mt in 2006, and 24,446 mt in 2007. This action allows for an inseason adjustment, if landings approach the IOY early in the fishing year, to increase the IOY up to the ABC (156,000 mt). Therefore, no reductions in revenues for the mackerel fishery are expected as a result of this action; in fact, an increase in revenues as a result of this action is possible. Based on 2007 data, the mackerel fishery could increase its landings by 90,554 mt in 2009, if it takes the entire IOY. In 2007, the last year for which complete financial data are available, the average value for mackerel was $258 per mt. Using this value, the mackerel fishery could see an increase in revenues of $23,362,932 as a result of the 2009 IOY (115,000 mt), and an additional increase in revenues of $10,578,000 as a result of the adjustment to increase the IOY up to the ABC (156,000 mt).

The Loligo ABC (19,000 mt) specified in this action represents a potential for increased landings when compared to the 2008 ABC (17,000 mt). Landings were 15,447 in 2004, 16,984 mt in 2005, 15,880 mt in 2006, and 12,342 mt in 2007. No reductions in revenues for the Loligo fishery are expected as a result of this action; in fact, an increase in revenues as a result of this action is possible. Based on 2007 data, the Loligo fishery could increase its landings by 6,658 mt in 2009, if it takes the entire ABC. Using the average value for Loligo from 2007 ($1,883 per mt), the Loligo fishery could see an increase in revenues of $12,537,014 as a result of the 2009 ABC (19,000 mt).

The Illex IOY (24,000 mt) specified in this action represents status quo as compared to 2008. Landings were 26,098 mt in 2004, 12,032 mt in 2005, 13,944 mt in 2006, and 9,022 mt in 2007. Implementation of this action will not result in a reduction in revenue or a constraint on the fishery in 2009. Based on 2007 data, the Illex fishery could increase its landings by 14,978 mt in 2009, if it takes the entire IOY. Using the average value for Illex from 2007 ($428 per mt), the Illex fishery could see an increase in revenues of $6,410,584 as a result of the 2009 IOY (24,000 mt).

The butterfish IOY specified in this action (500 mt) represents status quo, as compared to 2008, and represents only a minimal constraint to vessels relative to the landings in recent years. Due to market conditions, there has been not been a directed butterfish fishery in recent years; therefore, recent landings have been low. Landings were 537 mt in 2004, 437 mt in 2005, 554 mt in 2006, and 673 mt in 2007. 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. Based on 2007 data, the value of butterfish was $1,602 per mt, so a reduction from 2007 would represent a fishery- wide loss of only $277,146.

Alternatives to the Actions in the Final Rule

The Council analysis evaluated three alternatives for mackerel, and all of them would have set the ABC at 156,000 mt, IOY at 115,000 mt, and maintained the status quo trigger for closing the directed fishery. This ABC and IOY do not represent a constraint on vessels in this fishery, so no negative impacts on revenues in this fishery are expected as a result of these alternatives. These alternatives only differed from this action with respect to incidental possession limits. This action specifies the incidental mackerel possession limit at 20,000 lb (9.08 mt) if the directed mackerel fishery closes prior to June 1, and at 50,000 lb (22.7 mt) if the directed mackerel fishery closes on or after June 1. The alternatives to this action would have specified incidental mackerel possession limits at 20,000 lb (9.08 mt)(status quo) and at 50,000 lb (22.7 mt)(least restrictive). These alternatives were not adopted by the Council because the status quo incidental possession limit could have resulted in the regulatory discarding of mackerel by the Atlantic herring fishery in the Gulf of Maine and, if mackerel are available to the fishery in 2009, the least restrictive incidental possession limit may have encouraged targeting on mackerel during a fishery closure early in the year (January-April). Differences in incidental possession limits may affect behavior and effort during closures of the directed fishery; however, all alternatives are expected to result in the same total landings for 2009.

For Loligo, alternatives to this action would have set the Max OY at 26,000 mt and ABC, IOY, DAH, and DAP at 17,000 mt (status quo) or Max OY at 32,000 mt and ABC, IOY, DAH, and DAP at 23,000 mt (least restrictive). These alternatives were not adopted by the Council because they were either not consistent with the revised reference points from SARC 34 (status quo) or not consistent with the management recommendations from SARC 34 and did not consider the uncertainty associated with the Loligo stock assessment model (least restrictive).

For Illex, one alternative considered would have set Max OY, ABC, IOY, DAH, and DAP at 30,000 mt. This alternative would allow harvest far in excess of recent landings in this fishery. Therefore, there would be no constraints and, thus, no revenue reductions, associated with this alternative. However, the Council considered this alternative unacceptable because an ABC specification of 30,000 mt may not prevent overfishing in years of moderate to low abundance of Illex. Another alternative considered would have set MAX OY at 24,000 mt and ABC, IOY, DAH, and DAP at 19,000 mt. The Council considered this alternative unacceptable because it was unnecessarily restrictive.

For butterfish, one alternative considered would have set the ABC at 4,525 mt, and IOY, DAH, and DAP at 1,861 mt; while another would have set ABC at 12,175 mt, and IOY, DAH, and DAP 9,131 mt. These amounts exceed the landings of this species in recent years. Therefore, neither alternative represents a constraint on vessels in this fishery or would reduce revenues in the fishery. However, neither of these alternatives were adopted by the Council because they would likely result in overfishing and the additional depletion of the spawning stock biomass of an overfished species.

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: February 2, 2009.

James W. Balsiger,

Acting Assistant Administrator For Fisheries, 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

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

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

2. In § 648.25, paragraph (a) is revised to read as follows:

§ 648.25

Possession restrictions.

(a) Atlantic mackerel. During a closure of the directed Atlantic mackerel fishery that occurs prior to June 1, vessels may not fish for, possess, or land more than 20,000 lb (9.08 mt) of Atlantic mackerel per trip at any time, and may only land Atlantic mackerel once on any calendar day, which is defined as the 24-hr period beginning at 0001 hours and ending at 2400 hours. During a closure of the directed fishery for butterfish that occurs on or after June 1, vessels may not fish for, possess, or land more than 50,000 lb (22.7 mt) of Atlantic mackerel per trip at any time, and may only land Atlantic mackerel once on any calendar day.