00-7514. Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; 2000 Specifications

AGENCY:

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

ACTION:

Final rule; specifications for 2000.

SUMMARY:

NMFS issues final specifications for the 2000 fishing year for Atlantic mackerel, squid, and butterfish (MSB). This rule also allocates the domestic annual harvest for Loligo squid into three 4-month periods, and prohibits the use of any combination of mesh or liners that effectively decreases the mesh size below the minimum mesh size of 17/8 in (48 mm). The intent of this rule is to comply with the regulations for MSB that require NMFS to publish specifications for each fishing year to conserve and manage the resource in compliance with the regulations, fishery management plan, and Magnuson-Stevens Fishery Conservation and Management Act.

DATES:

The quotas for Loligo and Illex squid, Atlantic mackerel, and butterfish are effective March 22, 2000, through December 31, 2000. Sections 648.21(e) and 648.22(a) are effective March 22, 2000. Section 648.23(c) is effective April 27, 2000.

ADDRESSES:

Copies of the Environmental Assessment/Regulatory Impact Review/Initial and Final Regulatory Flexibility Analyses (EA/RIR/IRFA), are available from Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA 01930-2298. The EA/RIR/IRFA is accessible via the Internet at http://www.nero.gov/​ro/​doc/​nr.htm.

FOR FURTHER INFORMATION CONTACT:

Paul H. Jones, Fishery Policy Analyst, 978-281-9273, fax [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Regulations implementing the Fishery Management Plan for Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP) require NMFS to publish annual specifications for initial optimum yield (IOY), allowable biological catch (ABC), domestic annual harvest (DAH), domestic annual processing (DAP), joint venture processing (JVP), and total allowable levels of foreign fishing (TALFF) for the species managed under the FMP.

Proposed 2000 initial specifications were published on January 5, 2000 (65 FR 431). Public comments were requested through February 4, 2000. The final specifications are unchanged from those that were proposed. A complete discussion of the specifications appears in the preamble to the proposed rule and is not repeated here.

2000 Final Specifications

The following table contains the final specifications for the 2000 MSB fisheries as recommended by the Mid-Atlantic Fishery Management Council (Council).

Table 1.—Final Annual Specifications for Atlantic Mackerel, Squid, and Butterfish for the Fishing Year January 1 through December 31, 2000

[Metric Tons (mt)]

Specifications	Squid		Atlantic mackerel	Butterfish
	Loligo	Illex
Max OY	26,000	24,000	1 (1)	6,000
ABC	13,000	24,000	347,000	7,200
IOY	13,000	24,000	2 75,000	5,900
DAH	13,000	24,000	3 75,000	5,900
DAP	13,000	24,000	50,000	0
JVP	0	0	4 10,000	0
TALFF	0	0	0	0
1 Not applicable.
2 OY may be increased during the year, but the total ABC will not exceed 347,000 mt.
3 Includes 15,000 mt of Atlantic mackerel recreational allocation.
4 JVP may be increased up to 15,000 mt at discretion of the Regional Administrator.

Joint Ventures

This rule also specifies an Atlantic mackerel JVP of 10,000 mt for the 2000 fishery, with a possible increase of up to 5,000 mt for a total JVP of up to 15,000 mt later in the fishing year. If applications received for JVP account for more than 10,000 mt in a fishing year, NMFS may increase this allocation up to 15,000 mt by publishing a final rule in the Federal Register. NMFS believes that increasing the JVP in this way could provide additional opportunities for U.S. vessels to participate in joint venture (JV) fisheries. This action also specifies an Atlantic mackerel DAP of 50,000 mt and a DAH of 75,000 mt, which includes a 15,000-mt recreational component.

Four special conditions recommended by the Council and imposed by NMFS in previous years continue to apply to the 2000 Atlantic mackerel fishery as follows: (1) River herring bycatch may not exceed 0.25 percent of the over-the-side transfers of Atlantic mackerel in JVs south of 37°30′ N. lat.; (2) The Regional Administrator (RA) must ensure that impacts on marine mammals are reduced in the prosecution of the Atlantic mackerel fishery; (3) If the Atlantic mackerel IOY is increased during the year, the total may not exceed 347,000 mt; and (4) Applications for a JV with a particular Nation's vessels for 2000 cannot be considered until the RA determines, based on an evaluation of performances, that the Nation's purchase obligations for previous years have been fulfilled.

Atlantic Squids

Loligo Gear Requirements

In addition to the quota specifications, this rule establishes additional gear requirements for the Loligo fishery as follows: “The inside webbing of the codend shall be the same circumference or less than the outside webbing (strengthener). In addition, the inside webbing shall not be more than 2 ft (61 cm) longer than the outside webbing.” This is intended to help improve enforcement of the minimum mesh size requirements in the Loligo fishery while preserving the intended selective properties of the regulated mesh size (17/8 in (48 mm)).

Distribution of Annual Loligo Quota by Three 4-Month Periods

This rule specifies a Loligo squid IOY of 13,000 mt, which is equal to ABC, and sub-divides the annual quota into three 4-month quota periods (Period I (Jan-Apr), Period II (May-Aug), and Period III (Sep-Dec)). The quota is allocated to each period based on the average proportion of landings that occurred in each 4-month period during the years 1994-1998. The directed Loligo fishery during Periods I and II will be closed when 90 percent of the amount allocated to the respective period is landed. The directed Loligo fishery will be closed in Period III when 95 percent of the annual quota has been taken. Once the directed squid fishery closes for a given period, a 2,500-lb (1,134-kg) Loligo trip limit would remain in place until the end of the respective period. The quota, allocated by 4-month periods, is shown in Table 2.

Table 2.—Loligo 4-Month Period Allocations

4-month period	Percent	Metric tons
I (Jan-Apr)	42	5,460
II (May-Aug)	18	2,340
III (Sep-Dec)	40	5,200
Total	100	13,000

Changes From the Proposed Rule

The Council recommended that any Period I or II quota underage be applied to the next trimester and that quota overages from Periods I and II be deducted from Period III. NMFS, in the preamble to the proposed rule, tried to clarify the Council's intent and proposed that any Period I and II quota underages be applied to Period III and any Period I and II quota overages be subtracted from Period III. However, that proposal would not provide the time needed to assess landings before the start of Period III. Each of the three trimester periods follow a monthly schedule, and not reporting weeks, therefore, the weekly reports using the data gathered by NMFS” interactive voice response (IVR) will need to be adjusted to account for reporting weeks in which a period ends in the middle of that week. This adjustment is accomplished by either adding or subtracting landings from one period or the other. Final landings are determined by using all sources of data available to NMFS, including detailed trip level dealer and vessel reports, to validate the weekly IVR data. This process normally takes 60 to 90 days, depending on the availability of the data. By revising § 648.21(e)(2) to apply any Period I and II quota underages or overages to Period III after November 15 of the same year, NMFS will have 75 days to validate the quota monitoring data and to make changes to the Period III commercial quota.

Editorial simplification and clarifications were made to § 648.23(c) to clarify further the mesh obstruction or constriction prohibition.

Comments and Responses

Eight comments were received on the proposed annual specifications and regulations. Summaries of the comments and responses on them are provided below.

Comment 1: In the proposed rule, DAH for Atlantic mackerel is composed of 15,000 mt for the recreational fishery, 50,000 mt for DAP, and 10,000 mt for JVP. A commenter proposed instead to specify 65,000 mt for DAH (15,000 mt for the recreational fishery), 35,000 mt for DAP, and 15,000 mt for JVP. The commenter noted that processors in past years have not attained the DAP levels recommended by the Council. The commenter also proposed allocation of 45,000 mt of TALFF to provide directed fishing as an incentive to foreign vessels considering JVs.

Response 1: These proposals, which could negatively affect U.S. processing and exports by infringing on markets currently engaged in by domestic processors, go well beyond any measures discussed and analyzed by the Council. In order to be considered by NMFS, all recommendations should be made through the Council for its consideration and analysis. Since passage of the American Fisheries Act of 1995, TALFF for mackerel may not be specified unless recommended by the appropriate Regional Fishery Management Council. However, NMFS may adjust JVP up to 15,000 mt, the level preferred by the commenter, provided certain conditions are met.

Comment 2: One commenter observed that the Atlantic mackerel specifications should be set for 2 fishing years, rather than 1.

Response 2: Setting the specifications for more than 1 year is not allowed under the FMP.

Comment 3: One commenter argued that there was not ample time to comment on proposed 2000 specifications. The draft EA/RIR/IRFA document was posted on the Internet in November 1999 and the comment period was only January 20, 2000, through February 4, 2000.

Response 3: The draft EA/RIR/IRFA document was posted on the Internet January 6, 2000, and the comment period was January 5, 2000 through February 4, 2000, allowing 30 days for written comments. NMFS believes that this is an adequate amount of time to solicit comments and notes that a 30-day comment period has been used for all Mid-Atlantic Council annual specifications for the past 10 years.

Comment 4: One commenter stated that very few vessels actually direct effort on both Loligo and Illex in a given year. If the first part of the year is closed to Loligo fishing when the proposed trimester quota is harvested, squid fishermen will have few, if any, other fisheries in which to participate.

Response 4: The commercial fishery for Loligo is primarily prosecuted with otter trawls and often harvests a mix of species, including Loligo, scup, black sea bass, summer flounder, Atlantic mackerel, and silver hake. Although the DAH for Loligo is less in 2000 than in 1999, the establishment of seasonal quotas for each of the trimesters preserves the percent of harvest for each of those 3 periods, based on 1994-1998 landings patterns. Loligo matures in a year or less from birth, therefore it is hoped that stock recovery will be rapid and higher DAHs will be possible within the next few years.

Comment 5: One commenter asked where in the draft EA/RIR/IRFA document are figures and information regarding the profile of the recreational squid fishery?

Response 5: In Section 8.4, on page 43 of the EA/RIR/IRFA document there is a discussion of the recreational squid fishery. The primary use of squid in the recreation sector is for bait.

Comment 6: Several commenters disagree with the 38 percent reduction in Loligo quota from 1999 and requested that the Loligo 2000 ABC be set at the 1999 ABC level of 21,000 mt.

Response 6: Because Loligo has been designated as overfished, the Council is required under the Magnuson-Stevens Act to implement a stock rebuilding strategy that will allow the Loligo stock to rebuild to levels that will produce the maximum sustainable yield (B_MSY) in as short a time period as possible, not to exceed 10 years. Stock projections from Stock Assessment Workshop (SAW)-29 indicated that the stock would rebuild to the B_MSY level in 3 to 5 years if the fishing mortality rate is reduced below the level that would allow the stocks to produce MSY (F_MSY). As a result, the Council recommended, and NMFS implements by this action, an ABC specification for 2000 consistent with landings that would result from a fishing mortality rate of 90 percent of F_MSY, or 13,000 mt. This specification represents an 8,000 mt reduction from the 21,000-mt ABC specified in 1999. However, the specification represents only an 18-percent reduction in landings relative to the average landings for the past 3 years (1996-1998). Specifying the Loligo 2000 ABC at the 1999 ABC level of 21,000 mt would conflict with the requirements of the Magnuson-Stevens Act to end overfishing and rebuild the resource.

Comment 7: Because of the small 2000 Loligo specification, one commenter stated that factory vessels will have the capacity to control the entire trimester quota allocation.

Response 7: Management advice from SAW-29 made special note that yield from the Loligo fishery should be distributed throughout the fishing year. Given that the current permitted fleet historically has demonstrated the ability to land Loligo in excess of the quota specified for 2000, the Council recommended, and NMFS has approved, a management action to sub-divide the annual quota into three quota periods (trimesters). The quota, which is allocated to each period based on the proportion of historical landings occurring in each trimester from 1994-1998, is divided as follows: Period I (January-April) is 5,460 mt (42 percent of the total); Period II (May-August) is 2,340 mt (18 percent of the total); and Period III (September-December) is 5,200 mt (40 percent of the total). NMFS believes that allocation of seasonal quotas allows all vessels to utilize the entire trimester quota allocations, and notes there is no information available to indicate that factory vessels will have more disproportionate access to Loligo than they had under the annual quota system.

Comment 8: One commenter stated that the proposed rule does not set forth or project the 1999 Loligo landings.

Response 8: On page 5 of the EA/RIR/IRFA, supporting documents for the annual specifications, Table 2, lists the preliminary Loligo landings through September 11, 1999, as 11,004 mt.

Comment 9: One commenter believed that NMFS disregarded the best available scientific information and failed to provide updated estimates to reconcile the impacts of predators on the Loligo stock. The commenter also asked what are the agency's updated marine mammal consumption estimates (for Loligo), based on the updated mammal stock assessments as required by the Marine Mammal Protection Act, how has the agency taken these energetic requirements into consideration, and how have these large removal levels impacted Loligo stock survey and biomass estimates. The commenter believed that the proposed rule did not appear to address this important issue about total Loligo squid mortality and ,therefore, did not use the best available scientific information.

Response 9: Loligo squid is an important forage species consumed in quantity by many fish, bird, and marine mammal predators. Unfortunately, there is currently no way to estimate the amount of Loligo taken by marine mammals because there are too many variables to consider. Natural mortality (e.g., primarily predation) and human predation (fishing mortality) are “additive” as rates. As human predation increases, the resulting total mortality increases. The only element in the total mortality that can be controlled at this time is human predation. NMFS believes that the final Loligo specifications are based on the best scientific information available.

Comment 10: One commenter asked since real-time monitoring is critical but not a component of the current plan, how can NMFS accurately monitor the Loligo specifications and determine the status of the stock?

Response 10: NMFS currently collects landings for Loligo every week via the IVR dealer reporting system. These electronic reports are then followed by detailed dealer and vessel reports that are submitted monthly. The IVR system allows NMFS to monitor accurately the Loligo specifications and determine the status of the stock.

Classification

This action is authorized by 50 CFR part 648 and complies with the National Environmental Policy Act.

This final rule has been determined to be not significant for purposes of E.O. 12866.

NMFS completed a final regulatory flexibility analysis (FRFA) that contains the items specified in 5 U.S.C. sec. 604(a). The FRFA is as follows:

Final Regulatory Flexibility Analysis for Atlantic Mackerel, Squid, and Butterfish 2000 Specifications

Need for, and Objectives of, the Rule

This rule is needed to establish annual specifications for the Atlantic mackerel, squid and butterfish (MSB) fisheries and to prevent circumvention of a mesh restriction. The intent of this rule is to comply with the regulations for MSB that require the National Marine Fisheries Service (NMFS) to publish specifications for each fishing year to conserve and manage the resource in compliance with the regulations, fishery management plan (FMP), and Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

Public Comments

Three comments were submitted on the initial regulatory flexibility analysis (IRFA). These comments are addressed in the Comments and Responses section of the preamble to the final rule. No significant issues were raised by these comments, and no changes were made to the rule as a result of these comments.

Number of Small Entities

There are 443 vessels fishing for Loligo, 77 for Illex, 443 for butterfish, and 1,980 for Atlantic mackerel in 1997 that would likely be impacted by the 2000 specifications. Many vessels participate in more than one of these fisheries; therefore, the numbers are not additive. The final Illex, butterfish, and Atlantic mackerel specifications represent no constraint on vessels in these fisheries as there exists a surplus between the proposed specifications and the actual landings for these species in recent years. The final specifications for Loligo represent an 18-percent reduction in landings compared to the average last 3 years' (1996-1998) landings. This reduction may result in a 5 to 10 percent revenue reduction (all species combined) for 121 of 443 vessels that reported landing Loligo in 1997. The remaining vessels (322) are expected to experience a reduction in revenues of less than 5 percent.

Cost of Compliance

No additional costs of compliance, including those associated with recordkeeping and reporting, would result from the implementation of the quotas. There are no recordkeeping or reporting requirements associated with this rule. The prohibition on the use of any combination of mesh or liners in the Loligo fishery that effectively decreases the mesh size below the minimum mesh size of 17/8 in (48 mm) will not adversely impact any small entity that is not circumventing the mesh size regulations by using a larger codend. No additional gear is needed to comply with this restriction.

Minimizing Significant Impacts

Alternatives considered and rejected for these four species were detailed in the IRFA. A review of the impacts of the final specifications, including alternatives to the final specifications, indicates that the impacts associated with the selected measures for Atlantic mackerel, Illex, and butterfish will not create significant economic impacts on small entities. As for Loligo, of the 443 vessels that reported landing Loligo in 1997, 121 vessels would be expected to experience a reduction in total gross revenues (all species combined) between 5 and 10 percent as a result of the 18 percent reduction in the Loligo quota in 2000. This represents 27.3 percent of the vessels that landed Loligo in 1997. The remaining vessels (322, or 72.7 percent) are expected to experience a reduction in total gross revenues (all species combined) of less than 5 percent as a result of the 18 percent reduction in the Loligo quota in 2000.

While all other considered alternatives for Atlantic mackerel would result in similar impacts on small entities, two of the three alternatives were found inconsistent with the FMP. The third alternative eliminated joint venture processing (JVP). NMFS believes JVP is necessary at this time to provide another opportunity for U.S. vessels to participate in joint venture fisheries. The selected Loligo alternative represented the alternative most consistent with the stated objectives of applicable statutes and the FMP. The rejected alternative resulted in 161 of 443 vessels being impacted (compared to 121 of 443 under the adopted alternative). Specifying the Loligo 2000 ABC at the 1999 ABC level of 21,000 mt was not analyzed by the Council because it would conflict with the requirements of the Magnuson-Stevens Act to end overfishing and rebuild the resource. The selected Illex alterative represented the alternative most consistent with the stated objectives of applicable statutes and the FMP. Alternatives considered and rejected for butterfish would have been detrimental to the stock and were not consistent with the FMP. The selected alternative was consistent with stated objectives of the applicable statutes and the FMP.

The final rule minimizes the economic impact on small entities by establishing a mechanism (the trimester quota system) of spreading the total quota throughout the year. The effect of this is to enable fishermen to fish for Loligo on a more consistent basis and to ensure that there is some quota available for harvest during the winter period when prices are higher. It also minimizes impacts on small entities by not establishing more restrictive quotas that were considered.

A copy of the IRFA can be obtained from the NMFS Northeast Regional Office (see ADDRESSES).

The Assistant Administrator for Fisheries, NOAA (AA), finds that it would be contrary to the public interest to delay for 30 days the effectiveness of the quotas, § 648.21(e) (distribution of the Loligo quota among three periods and the overage deduction provision), and § 648.22 (fishery closures), because the quota for Period I will most likely be reached shortly, and a delay in the effectiveness of these regulations will prevent NMFS from closing the Loligo fishery for Period I in a timely manner. If the Period I fishery is not closed in a timely manner and the quota is exceeded, NMFS will be required to deduct the Period I quota overage from the quota allocated to Period III. However, Period III occurs at a time of year when fishermen receive higher prices for Loligo. As a result, the inability to restrict Loligo landings to the quota for Period I would cause fewer higher priced fish to be available for harvest in Period III, thereby reducing fishermen's profits. For these reasons, the AA finds good cause under 5 U.S.C. sec. 553(d)(3) not to delay for 30 days the effectiveness of the quotas and §§ 648.21(e) and 648.22.

List of Subjects 50 in CFR Part 648

• Fisheries
• Fishing
• Reporting and recordkeeping requirements

Dated: March 22, 2000.

Penelope D. Dalton,

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 § 648.21, paragraph (e) is added to read as follows:

§ 648.21

Procedures for determining initial annual amounts.

* * * * *

(e) Distribution of annual commercial quota. (1) Beginning January 1, 2000, a commercial quota will be allocated annually into three periods, based on the following percentages:

Period	Percent
I—January-April	42
II—May-August	18
III—September-December	40

(2) Beginning January 1, 2000, any underages of commercial period quota for Periods I and II will be applied to Period III after November 15 of the same year and any overages of commercial quota for Periods I and II will be subtracted from Period III after November 15 of the same year.

3. In § 648.22, paragraph (a) is revised to read as follows:

§ 648.22

Closure of the fishery.

(a) General. NMFS shall close the directed mackerel fishery in the EEZ when U.S. fishermen have harvested 80 percent of the DAH of that fishery if such closure is necessary to prevent the DAH from being exceeded. The closure shall remain in effect for the remainder of the fishing year, with incidental catches allowed as specified in paragraph (c) of this section, until the entire DAH is attained. When the Regional Administrator projects that DAH will be attained for mackerel, NMFS shall close the mackerel fishery in the EEZ, and the incidental catches specified for mackerel in paragraph (c) of this section will be prohibited. NMFS shall close the directed fishery in the EEZ for Loligo when 90 percent is harvested in Periods I and II, and when 95 percent of DAH has been harvested in Period III. The closure of the directed fishery shall be in effect for the remainder of the fishing period with incidental catches allowed as specified in paragraph (c) of this section. NMFS shall close the directed fishery in the EEZ for Illex or butterfish when 95 percent of DAH has been harvested. The closure of the directed fishery shall be in effect for the remainder of the fishing year with incidental catches allowed as specified in paragraph (c) of this section.

* * * * *

4. In § 648.23, paragraph (c) is revised to read as follows:

§ 648.23

Gear restrictions.

* * * * *

(c) Mesh obstruction or constriction. The owner or operator of a fishing vessel shall not use any mesh construction, mesh configuration or other means that effectively decreases the mesh size below the minimum mesh size, except that a liner may be used to close the opening created by the rings in the aftermost portion of the net, provided the liner extends no more than 10 meshes forward of the aftermost portion of the net. The inside webbing of the codend shall be the same circumference or less than the outside webbing (strengthener). In addition, the inside webbing shall not be more than 2 ft (61 cm) longer than the outside webbing.

* * * * *