Daily Rules, Proposed Rules, and Notices of the Federal Government
NMFS published a proposed rule for Framework Adjustment 6 on June 28, 2012 (77 FR 38566). Additional background information and detail on why and how Framework Adjustment 6 was developed are included in the proposed rule, and are not repeated here. The Council established acceptable biological catch (ABC) control rules (implementing regulations at 50 CFR 648.20) and a risk policy (§ 648.21) to guide the Council's Scientific and Statistical Committee (SSC) in its ABC setting process for all Council fishery management plans (FMPs) in the recently implemented Omnibus Amendment for Annual Catch Limits and Accountability Measures (October 31, 2011; 76 FR 60606). The Council's original risk policy did not permit increases to the ABC for stocks that lack an overfishing limit (OFL) derived either from the stock assessment, or through the SSC ABC recommendation process. Framework Adjustment 6 modifies the risk policy regarding stocks without an OFL or OFL proxy to allow the SSC to recommend increases to the ABC for stocks that have stable or increasing trends in abundance, and for which the SSC can point to robust scientific information to suggest that an increased ABC will not lead to overfishing. The adjustment to this policy does not change the Council's approach to stocks without an OFL that have declining biomass, or for which the SSC cannot point to scientific evidence to suggest that the recommended ABC will not result in overfishing.
Though this action only modifies the MSB FMP, the adjusted risk policy applies to all of the Council's managed species, including Atlantic mackerel, butterfish, Atlantic bluefish, spiny dogfish, summer flounder, scup, black sea bass, Atlantic surfclam, ocean quahog, and tilefish. The regulations for the ABC control rules and risk policy reside in the MSB FMP, but are a product of the Omnibus Amendment, which affected all of the FMPs for the above-listed species. The provisions in the Omnibus Amendment, including the risk policy, do not apply to longfin squid or
NMFS received a total of four comments on the proposed rule for Framework Adjustment 6 from: Lund's Fisheries, Inc., a processing facility in Cape May, NJ; the Garden State Seafood Association (GSSA), a New Jersey-based commercial fishing industry group; the Herring Alliance, which represents 52 organizations concerned about the status of the Atlantic Coast's forage fish; and the Natural Resources Defense Council (NRDC).
Neither the Magnuson-Stevens Act nor the National Standard 1 guidelines have language prohibiting increases in ABC in the absence of an OFL. The National Standard 1 guidelines do advise that, when possible, the determination of an ABC should be based on the probability that an actual catch equal to the stock's ABC would result in overfishing (see § 600.310(f)(4)), but make no mention of how a Council should proceed when it is not possible to establish an OFL or OFL proxy. Each Council may determine the acceptable level of risk of overfishing (which overall must be below 50 percent, according to Magnuson-Stevens Act; § 600.310(f)(4)). In this case, the Council is further defining its risk tolerance for certain stocks without an OFL or OFL proxy.
The SSC has noted its preference to have an OFL estimate that is based on the assessment, which takes into account all information about population dynamics that is available at the time (see Framework Adjustment 6 discussion at April 2012 Council meeting). It noted that, rather than deriving an OFL proxy when an OFL is unavailable from the assessment, its preference is to simply set an ABC that it believes would not lead to overfishing based on all other available evidence. NMFS agrees that this approach is valid, provided that sufficient scientific evidence is presented in the SSC's deliberations to suggest that its recommendation will not result in overfishing of the stock in question. As further support for this approach, the National Standard 1 guidelines at § 600.310(f)(3) note that while NMFS expects that in most cases a recommended ABC should be reduced from the OFL to reduce the probability of overfishing, the ABC may be set equal to the OFL. Again, NMFS expect the SSC and the Council to present very strong justification for such cases (§ 600.310(f)(5)).
In contrast, Lund's Fisheries, Inc., and GSSA supported the Council's 2012 butterfish recommendations. They noted that any increases in butterfish catch would be expected to be very small relative to the actual increase in butterfish abundance. They also asserted that the chances of overfishing the butterfish resource under the modest quota increases initially proposed by the Council and NMFS in the proposed rule for 2012 butterfish specifications are, by SSC estimates, extremely low.
NMFS notes that the merits of the SSC's ABC recommendations for the 2012 and 2013 fishing years are not the subject of this rulemaking, but offers some discussion of these issues because of their relevance to Framework 6. With regard to the SSC's 2012 ABC recommendation, the NRDC references NOAA Technical Memorandum NMFS-SEFSC-616 (Calculating Acceptable Biological Catch for Stocks that have Reliable Catch Data Only (Only Reliable Catch Stocks—ORCS; 2011)). The memorandum was developed by a Working Group comprised of representatives from seven of the eight SSCs, five of the six NMFS Science Centers, NMFS Headquarters, academic institutions, a state agency, and a non-governmental organization to offer guidance that can be used to set ABCs for stocks that only have reliable catch data, are lightly fished, and appear to have stable or increasing trends. The SSC noted that the butterfish stock met the criteria outlined for this approach, and relied on the concepts in this guidance document in developing its ABC recommendation. The report recommends doubling catch during a stable period to create an OFL, setting the ABC at 50 to 90 percent of the OFL, and then tracking the stock to see how the adjusted catch levels affect abundance. During its public process, the SSC discussed that, given that butterfish fishing mortality was likely contributing very little to changes in stock abundance, the ABC could be doubled and still yield a fishing mortality rate that would not affect stock size. The SSC also commented during Council deliberations that establishing an OFL or OFL proxy would not have changed its ABC recommendation for 2012. NMFS considered the SSC's rationale for increasing the butterfish ABC and found it to be appropriate and well supported by the best available scientific information. The SSC was guided by NOAA Technical Memorandum NMFS-SEFSC-616, and used its scientific judgment to recommend an ABC that was expected to result in a level of fishing mortality documented in SAW 49, and, as noted by the SSC, was not expected to result in overfishing of the butterfish resource.
NMFS notes that, since the initiation of Framework Adjustment 6, the SSC reaffirmed its original 2012 butterfish ABC recommendation of 3,622 mt (originally recommended in May 2011) at their May 2012 meeting in accordance with the provisions in Framework Adjustment 6, and the Council reaffirmed their original suite of recommended specifications (originally recommended in June 2011) at its June 2012 meeting. As noted in the response to Comment 3, NMFS will publish a rule to finalize butterfish specifications shortly.
Comments on the Council's 2013 specifications recommendations will be addressed in the 2013 specifications process. The SSC recommended a 2013 butterfish ABC to the Council at its May 2012 meeting, and the Council adopted the SSC's recommendation, along with butterfish specifications and management measures, at its June 2012 meeting. The Council is finalizing its recommendation, which will be submitted to NMFS for review and rulemaking. NMFS clarifies that the SSC did not rely on the provisions in Framework Adjustment 6 for its 2013 butterfish ABC recommendation because it was able to develop an OFL proxy during its deliberations.
Framework Adjustment 6 does not change the Council's approach for all Level 4 stocks, and only allows the SSC to recommend ABC increases for Level 4 stocks under very limited circumstances. Stocks without an OFL or OFL proxy that have evidence of biomass declines or for which the SSC cannot point to scientific evidence to suggest that the recommended ABC will not result in overfishing will still be bound by the original risk policy.
Adjustments to the existing Council risk policy can be addressed through the framework process for all Council-managed species (see § 648.25(a)(1) for
The Administrator, Northeast Region, NMFS, determined that this framework adjustment to the Atlantic Mackerel, Squid, and Butterfish; Atlantic Bluefish; Spiny Dogfish; Summer Flounder, Scup, and Black Sea Bass; Surfclam and Ocean Quahog; and Tilefish FMPs is necessary for the conservation and management of the Atlantic mackerel, butterfish, Atlantic bluefish, spiny dogfish, summer flounder, scup, black sea bass, surfclam, ocean quahog, and tilefish fisheries and that it is consistent with the Magnuson-Stevens Act and other applicable laws.
The Assistant Administrator for Fisheries, NOAA, finds good cause under section 553(d) of the Administrative Procedure Act to waive the 30-day delay in effectiveness for this action because delaying the effectiveness of this rule would be contrary to the public interest. Immediate implementation of Framework Adjustment 6 will allow for the increase in the butterfish mortality cap on the longfin squid fishery to 2,445 mt (a 1,009-mt increase from status quo) through the implementation of the final 2012 butterfish specifications. The Council initiated process for Framework Adjustment 6 at its February 2012 meeting, which was the first Council meeting after it realized that its risk policy may need further clarification with respect to stocks without an overfishing limit. The timeline that this action has followed has been the fastest possible given statutory requirements, and happens to coincide with the start of Trimester III for longfin squid. By the time the longfin squid fishery closed on July 10, 2012, in Trimester II, over 100 percent of the status quo annual allocation of the butterfish mortality cap was estimated to have been taken. Because the butterfish mortality cap closes the longfin squid fishery in Trimester III when 90 percent of the annual butterfish cap allocation has been taken, under the status quo allocation, the longfin squid fishery would not be opened at the start of Trimester III on September 1, 2012. The increased butterfish mortality cap implemented through the final 2012 butterfish specifications will allow for the longfin squid fishery to operate during Trimester III. Longfin squid migrate throughout their range and have sporadic availability. The fleet is quick to target longfin squid aggregations when they do appear, and is capable of landing over 550 mt in a single week. Analysis of this year's fishing activity indicates that longfin squid was particularly abundant this spring and summer, and historical availability patterns suggest that longfin squid abundance could still be high in the early fall. Only 7,761 mt of the 22,220 mt longfin squid quota has been harvested this year, meaning that well over half of the quota remains to be harvested during the final 4 months of the fishing year. A 30-day delay in the implementation of this rulemaking, and thus a delay in the implementation of the final 2012 butterfish specifications, may prevent fishermen from accessing longfin squid when it is temporarily available within portions of its range and prevent the harvest of a significant amount of longfin squid quota (up to 2,220 mt of the remaining 14,459 mt of longfin squid quota), negating any benefit of implementing this rule.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(2) The SSC may deviate from paragraph (d)(1) of this section, provided that the following two criteria are met: Biomass-based reference points indicate that the stock is greater than B