Daily Rules, Proposed Rules, and Notices of the Federal Government
On October 26, 2011, NMFS published a proposed rule (76 FR 66260) that included the Mid-Atlantic Fishery Management Council's (Council) preferred butterfish specifications. Though an overfishing limit (OFL) was not able to be established for butterfish based on the most recent butterfish assessment, the Council's preferred specifications would have doubled the butterfish acceptable biological catch (ABC) for fishing year 2012 over the status quo level (to 3,622 mt). A public comment on the proposed rule submitted by the Herring Alliance, an environmental group that represents 52 organizations concerned about the status of the Atlantic coast's forage fish, accurately stated that the proposed increase to the butterfish ABC is prohibited by the Council's former risk policy. That policy, at 50 CFR 648.21(d), states: “If an OFL cannot be determined from the stock assessment, or if a proxy is not provided by the Scientific and Statistical Committee (SSC) during the ABC recommendation process, ABC levels may not be increased until such time that an OFL has been identified.” To remedy this situation, NMFS published an interim final rule for butterfish specifications (March 21, 2012; 77 FR 16472) that temporarily reinstated the status quo butterfish specifications (1,811 mt ABC; 1,630 mt ACT; 500 mt domestic annual harvest (DAH) and domestic annual processing (DAP); 1,436 mt butterfish mortality cap) and allowed for public comment.
The interim final rule was published to address the procedural impediment to finalizing the original proposed butterfish specification identified in the comment noted above. This action finalizes the interim rule. Because NMFS already proposed the specifications and management measures contained in this final rule at the initial proposed rule stage, and the public already had an opportunity to comment on the proposed specifications (October 26, 2011; 76 FR 66260), there is no need to re-propose these final specifications. NMFS used the interim final rule to accept comments on the lower specification, but also responded to comments on the higher proposed specification in the interim final rule (March 21, 2012; 77 FR 16472). Comments on the interim final rule are addressed in the Comments and Responses section of this rule.
Since the publication of the interim final rule for butterfish specifications, the Council recommended, and NMFS has approved, Framework Adjustment 6 (Framework 6) to the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. Framework 6 adjusts the Council's risk policy to allow the SSC to propose ABC increases for stocks that have stable or increasing trends in abundance, and for which there is robust scientific information to suggest that an increased ABC will not lead to overfishing. In accordance with the adjustments in Framework 6, the SSC reaffirmed its original 2012 butterfish ABC recommendation of 3,622 mt (initially recommended at the SSC's May 2011 meeting to recommend 2012 butterfish specifications) at its May 2012 meeting.
Following the SSC's reaffirmation of the 2012 butterfish specifications, the Council reaffirmed its original suite of recommended specifications at its June 2012 meeting. Therefore, this action now sets butterfish specifications in accordance with the Council's original recommendation for the remainder of the 2012 fishing year (until December 31, 2012). The butterfish ABC and ACL are specified at 3,622 mt, and the ACL is specified at 3,260 mt (reduced 10 percent from ACL). This action allocates
The butterfish mortality cap in the longfin squid fishery is specified at 2,445 mt (75 percent of 3,260 mt). If the butterfish mortality cap is harvested during Trimester I (January-April) or Trimester III (September-December), the directed longfin squid fishery will close for the remainder of that trimester.
The 2012 butterfish mortality cap is allocated by Trimester as follows:
Finally, this action implements a 3-inch (76-mm) minimum codend mesh size requirement for vessels possessing 2,000 lb (0.9 mt) or more of butterfish (up from 1,000 lb (0.45 mt) in 2011), in order to allow more butterfish that otherwise would have been discarded to be landed.
In its reaffirmation of its recommended 2012 butterfish ABC of 3,622 mt, the SSC also noted that the rationale for the 2013 butterfish ABC recommendation provides additional support for its 2012 butterfish ABC recommendation. The SSC's final butterfish ABC recommendation for 2013 is 8,400 mt, based on an OFL proxy of 16,800 mt. A detailed summary of the SSC's rationale for its 2013 butterfish ABC recommendation is available in its May 2012 Report (available, along with other materials from the SSC discussion, at:
Because of the uncertainty in the most recent butterfish stock assessment, on April 6, 2012, the Council requested that NMFS Northeast Fisheries Science Center (NEFSC) offer additional analysis of the butterfish stock to aid the SSC in the ABC setting process for the 2013 fishing year. The NEFSC analysis (May 2, 2012, also available with the SSC meeting report) applied ranges of a number of different factors (such as natural mortality and survey catchability) to develop a range of likely stock biomasses that would be consistent with recent survey results and observed butterfish catch. The NEFSC also examined a range of fishing mortalities that would result from these biomass estimates. The SSC used the NEFSC analysis, along with guidance (Patterson, 1992) that suggests maintaining a natural mortality/fishing mortality ratio of 67 percent for small pelagic species, to develop a proxy OFL for butterfish. Consistent with the 2010 butterfish assessment, the SSC assumed a high level of natural morality (M = 0.8) and applied the 67-percent ratio to result in a fishing mortality of F = 0.536, which the SSC used as a proxy maximum fishing mortality rate threshold for butterfish. In the NEFSC analysis, a catch of 16,800 mt would only lead to fishing mortality rates higher than F = 0.536 (i.e., rates consistent with overfishing based on the maximum fishing mortality rate threshold proxy) under very extreme assumptions. The SSC therefore adopted 16,800 mt as a proxy OFL.
The SSC buffered the proxy OFL by 50 percent to reach the butterfish ABC of 8,400 mt. Its justification for this buffer noted that the short life history of butterfish gives limited time for management to respond to adverse patterns, that recruitment of butterfish is highly variable and uncertain, that the stock status of butterfish is unknown, and that butterfish are susceptible to environmental and ecosystem variability, in particular inter-annual variability in natural mortality.
Five comments were submitted on the interim final butterfish specifications from: Seafreeze, Ltd. (Seafreeze), a frozen seafood producer based in Rhode Island; Dr. Joel Jay Sohn, a research associate at Harvard University; the Garden State Seafood Association (GSSA), an industry group representing members of the commercial fishing industry in New Jersey; the Herring Alliance, which represents 52 organizations concerned about the status of the Atlantic Coast's forage fish; and one member of the public.
The Herring Alliance referenced 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 which 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, because 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 rational for increasing the butterfish ABC and found it to be appropriate and well supported by the best available scientific information. Though the SSC used the guidance in NOAA Technical Memorandum NMFS-SEFSC-616, it used its scientific judgment to recommend an ABC that was expected to result in a level of fishing mortality documented in SAW 49, and, at the time of NMFS's initial proposed rule, was not expected to result in overfishing of the butterfish resource.
The observation that natural mortality is much higher than fishing mortality is not used as a justification for increasing catch levels; it is offered in SAW 49 as part of the determination that fishing mortality does not appear to be the major driving factor determining butterfish stock size, and that other environmental factors are the primary drivers of butterfish abundance levels. The relative contribution of fishing mortality compared to natural mortality is well documented in SAW 49. The anecdotal observations of increased butterfish abundance provided by the fishing industry were not noted as a basis for the decision, but were offered as part of the fishery performance reports generated during the Council's specification process. Observations from the fishing industry are often used to contextualize the scientific information being considered by SSC members.
NMFS still supports the rationale that the SSC put forward in recommending the 3,622-mt ABC for butterfish during
As noted by the commenter, National Standard 1 of the Magnuson-Stevens Act discusses the specification of OY, and requires that an FMP or amendment prevent overfishing while achieving, on a continuing basis, the OY from each fishery for the United States fishing industry (16 U.S.C. 1851(a)(1)). The Magnuson-Stevens Act defines “optimum” with respect to yield from a fishery, as being prescribed on the basis of maximum sustainable yield from the fishery, as reduced by relevant economic, social or ecological factors (16 U.S.C. 1802(33)). The Council's FMPs all contain a process for assessing, specifying, identifying, and adjusting OY, as needed, based on relevant economic, social, and ecological factors for each species. The guidelines state that achieving OY on a continuing basis means producing a long-term series of catches such that the average catch is equal to OY and other conservation objectives of the Magnuson-Stevens Act are met (§ 600.310(e)(3)(i)(B)). The guidelines further state that an FMP must contain measures, including ACLs and AMs, to achieve OY on a continuing basis. However, the Magnuson-Stevens Act and guidelines do not require that OY considerations be addressed when developing ACLs. The implementing regulations for the Council's Omnibus Amendment require that the ACL be set equal to the ABC for all Council-managed species, but the Council may take these additional factors into account when establishing ACTs (see final NS1 guidelines, 74 FR 3178, 3189 (explaining OY, ABC, ACT, ACL relationships in response 33)).
In addition to comments on the regulatory content of this rulemaking, Seafreeze, and Dr. Sohn commented extensively on the butterfish stock assessment. NMFS does not typically respond in detail to comments on the merits of the assessment in the response to comments in rulemaking. This is because assessments are conducted and finalized prior to and separate from rulemakings, and feature their own process for public participation procedures. Comments on the merits of an assessment, and the information used in the assessment, can therefore not be addressed during the rulemaking process, but rather need to be addressed in the assessment process. Given the nature of the comments on the interim final rule for butterfish specifications, NMFS recognizes that commenters are making a direct link between the merits of the butterfish assessment and our approval of the Council's recommended
There will be a series of public meetings to determine the data and model used in the benchmark butterfish assessment, and commenters are welcome to attend. Also underway are projects to determine ways in which measures of habitat association by butterfish might be incorporated into the next assessment model. Zoogeographical ecosystem-based models would be ideal for all species but, to the best of our knowledge, there are no stocks anywhere that are assessed using such a spatially-detailed model. The absence of such models reflects the real data limitations and our inability to parameterize such a complex model, rather than a naïve understanding of the species biology. While an enormous amount of information on the demography of butterfish is considered in the assessment, the rapid growth and short lifespan of butterfish, as well as other limitations, such as poor discard estimate precision, contribute to the poor precision of butterfish spawning biomass estimates. We are confident that the new comprehensive study will improve our knowledge of the butterfish population, and help NMFS and the Council in future population estimates.
The Administrator, Northeast Region, NMFS, determined that these specifications are necessary for the conservation and management of the butterfish fishery and that they are consistent with the Magnuson-Stevens Fishery Conservation and Management 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.
Immediately implementing the final 2012 butterfish specifications will not only benefit the butterfish fishery directly, it will also aid the longfin squid fishery because the rule will increase the butterfish mortality cap in that fishery to 2,445 mt (a 1,009-mt increase from status quo). 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, 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.
Moreover, the fishing entities affected by this rule need not change their practice or gear, or make any other modifications to come into compliance with this action. They can continue to fish as they do now without any change after this rule goes into effect. Accordingly, the 30-day delay in effectiveness is not necessary here, where there is no need for the affected entities to modify their behavior, purchase new gear, or otherwise adjust their activities to come into compliance with the rule.
The Council prepared an EA for the 2012 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
This final rule has been determined to be not significant for purposes of Executive Order 12866.
NMFS, pursuant to section 604 of the Regulatory Flexibility Act, has prepared a FRFA in support of the 2012 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 summaries in the IRFA, a summary of the significant issues raised by the public in response to the IRFA, and NMFS's responses to those comments. A copy of the IRFA, the RIR, and the EA are available upon request (see
This action implements 2012 specifications for butterfish and adjusts the gear requirements for the butterfish fishery. A complete description of the reasons why this action is being considered, and the objectives of and legal basis for this action, are contained in the preamble to the proposed and final rules and are not repeated here.
Comment 13 was not specifically directed to the IRFA, but expressed concern about negative economic impacts of the specifications for butterfish on small entities. The comment is fully described in the “Comments and Responses” section of the preamble to this final rule and, therefore, is not repeated here.
Based on permit data for 2011, the numbers of potential fishing vessels in the 2012 MSB fisheries are as follows: 351 longfin squid/butterfish moratorium permits; 1,904 incidental squid/butterfish permits; and 831 MSB party/charter permits. Many vessels participate in more than one of these fisheries; therefore, permit numbers are not additive. Small businesses operating in commercial and recreational (i.e., party and charter vessel operations) fisheries have been defined by the Small Business Administration as firms with gross revenues of up to $4.0 and $6.5 million, respectively. There are no large entities participating in this fishery, as that term is defined in section 601 of the RFA. Therefore, there are no disproportionate economic impacts on small entities.
There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action. In addition, there are no Federal rules that duplicate, overlap, or conflict with this final rule.
The butterfish DAH specified in this action (1,072 mt) represents a 114-percent increase over the 2011 DAH (500 mt). Though there has not been a directed butterfish fishery in recent years due to market conditions, the butterfish DAH was exceeded during the 2010 and 2011 fishing years. The increase in the DAH has the potential to increase revenue for permitted vessels.
The adjustment to the gear requirement for the butterfish fishery, which requires vessels possessing 2,000 lb (0.9 mt) or more of butterfish to fish with a 3-inch (76-mm) minimum codend mesh, is expected to result in a modest increase in revenue for fishery participants. This adjustment will enable additional retention of butterfish by vessels using small-mesh fishing gear. Previously, the mesh size requirement applied to vessels possessing 1,000 lb (0.45 mt) or more of butterfish.
As discussed in the FRFA for MSB Amendment 10 (75 FR 11441; March 11, 2010), the butterfish mortality cap may potentially economically impact fishery participants. The longfin squid fishery closes during Trimesters I and III if the butterfish mortality cap is reached. If the longfin squid fishery is closed in response to butterfish catch before the entire longfin squid quota is harvested, then the fishery may lose revenue. The potential for longfin squid revenue loss depends upon the size of the butterfish mortality cap. The 2012 butterfish mortality cap of 2,445 mt specified in this action represents a 70-percent increase over status quo (1,436 mt). The 2011 butterfish mortality cap did not result in a closure of the longfin squid fishery in Trimester I. At the start of Trimester III, over 55 percent of the butterfish mortality cap (compared to 31.7 percent allocated at the start of the fishing year) was available for the longfin squid fishery for the duration of the fishing year. The status quo butterfish mortality cap was implemented in the interim final butterfish specifications during Trimester I of the 2012 fishing year, and did result in a closure of the longfin squid fishery. In addition, at the time of publication of this action, the butterfish cap has already exceeded the Trimester III closure threshold, meaning that the lower status quo cap would not allow the longfin squid fishery to reopen during Trimester III. Given that the lower cap constrained the longfin squid fishery in 2012, it is reasonable to expect that the proposed increase to the cap may provide for additional fishing opportunities for the longfin squid fishery between the implementation of this rule and the end of the 2012 fishing year on December 31, 2012. For that reason, additional revenue losses are not expected as a result of this proposed action.
There were six alternatives to the preferred action for butterfish that were not selected. The first (status quo) and second non-selected alternatives were based on the specifications structure that existed prior to the implementation of the Omnibus Amendment, and were not selected because they no longer comply with the MSB FMP. The third alternative (least restrictive) would have set the ABC and ACL at 4,528 mt, the ACT at 4,075 mt, the DAH and DAP at 1,358 mt, and the butterfish mortality cap at 3,056 mt. The fourth alternative would have set the ABC and ACL at 2,717 mt, the ACT at 2,445 mt, the DAH and DAP at 815 mt, and the butterfish mortality cap at 1,834 mt. These two alternatives were not selected because they were all inconsistent with the ABC recommended by the SSC. The fifth non-selected alternative would have set ABC and ACL at 1,811 mt, the ACT at 1,630 mt, the DAH and DAP at 543 mt, and the butterfish mortality cap at 1,222 mt. This alternative was not selected because it is inconsistent with status quo. The sixth alternative was the modified status quo alternative that was implemented in the interim final butterfish specifications.
There were two alternatives regarding the adjustment to the butterfish gear requirement. The status quo alternative requires vessels possessing 1,000 lb (0.45 mt) or more of butterfish to fish with a 3-inch (76-mm) minimum codend mesh. The selected alternative (3-inch (76-mm) mesh to possess 2,000 lb (0.9 mt)) could create some additional revenue in the form of butterfish landings for vessels using mesh sizes smaller than 3 inches (76 mm).
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
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