Daily Rules, Proposed Rules, and Notices of the Federal Government
* Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal
* Mail to NOAA Fisheries, Northeast Regional Office, 55 Great Republic Dr, Gloucester, MA 01930. Mark the outside of the envelope "Comments on 2013 MSB Specifications."
* Fax: (978) 281-9135, Attn: Lindsey Feldman;
This rule proposes specifications, which are the combined suite of commercial and recreational catch levels established for one or more fishing years. The specification process also allows for the modification of a select number of management measures, such as closure thresholds, gear restrictions, and possession limits. The Council's process for establishing specifications relies on provisions within the Atlantic Mackerel, Squid, and Butterfish (MSB) Fishery Management Plan (FMP) and its implementing regulations, as well as requirements established by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Specifically, section 302(g)(1)(B) of the Magnuson-Stevens Act states that the Scientific and Statistical Committee (SSC) for each Regional Fishery Management Council shall provide its Council ongoing scientific advice for fishery management decisions, including recommendations for acceptable biological catch (ABC), preventing overfishing, maximum sustainable yield, and achieving
The MSB FMP's implementing regulations require the involvement of a monitoring committee in the specification process for each species. Since the Magnuson-Stevens Act requirements for the SSC to recommend ABC became effective, the monitoring committees' role has largely been to recommend any reduction in catch limits from the SSC-recommended ABCs to offset management uncertainty, and to recommend other management measures (e.g., gear and/or possession restrictions) needed for the efficient management of the fisheries. The MSB Monitoring Committee met on May 31, 2012, to discuss specification related recommendations for the 2013-2015 mackerel fishery, 2013 butterfish fishery, and changes in management measures for the longfin squid fishery and butterfish mortality cap.
Following the SSC and MSB Monitoring Committee meetings described above, the Council considered the committees' recommendations and public comments at its June 12-14, 2012, meeting in New York, NY, and made their specification recommendations. The Council submitted these recommendations, along with the required analyses, for agency review on July 31, 2012, with final submission on September 30, 2012. NMFS must review the Council's recommendations to ensure that they comply with the FMP and applicable law, and conduct notice-and-comment rulemaking to propose and implement the final recommendations.
The MSB regulations require the specification of annual catch limits (ACL) and accountability measure (AM) provisions for mackerel and butterfish (both squid species are exempt form the ACL/AM requirements because they have a life cycle of less than 1 year). In addition, the regulations require the specification of domestic annual harvest (DAH), domestic annual processing (DAP), and total allowable level of foreign fishing (TALFF), along with joint venture processing for (JVP) and commercial and recreational annual catch totals (ACT) for mackerel, the butterfish mortality cap in the longfin squid fishery, and initial optimum yield (IOY) for both squid species.
The Mid-Atlantic Research Set-Aside (RSA) Program allows research projects to be funded through the sale of fish that has been set aside from the total annual quota. The RSA may vary between 0 and 3 percent of the overall quota for each species. The Council has recommended that up to 3 percent of the total ACL for mackerel, up to 3 percent of the IOY for
These proposed specifications include a brief description of the applicable MSB exemptions that will likely be required to conduct the compensation fishing to harvest set-aside quota. The Magnuson-Stevens Act requires that interested parties be provided an opportunity to comment on all proposed exempted fishing permits (EFPs).
Vessels harvesting RSA quota in support of approved research projects would be issued EFPs authorizing them to exceed Federal possession limits and to fish during Federal quota closures. With respect to the MSB FMP, such regulations include closure regulations at § 648.24 and possession restrictions at § 648.26. These exemptions are necessary to allow project investigators to recover research expenses, as well as adequately compensate fishing industry participants harvesting RSA quota. Vessels harvesting RSA quota would operate within all other regulations that govern the commercial fishery, unless otherwise exempted through a separate EFP. Vessels conducting compensation fishing would harvest RSA quota during the fishing year from January 1-December 31, 2013.
The status of the mackerel stock was assessed by the Transboundary Resources Assessment Committee (TRAC) in March 2010. The 2010 TRAC Status Report indicated reduced productivity in the stock and a lack of older fish in both the survey and catch data. However, the status of the mackerel stock is unknown because biomass reference points could not be determined. Due to uncertainty in the assessment, the TRAC recommended that total annual catches not exceed 80,000 mt (average total U.S. and Canadian landings from 2006-2008) until new information is available. The
Consistent with MSB Amendment 11, the Council recommended a recreational allocation of 2,714 mt (6.2 percent of the U.S. ABC). The proposed Recreational ACT of 2,443 mt (90 percent of 2,714 mt) is reduced to account for low precision and time lag of recreational catch estimates, as well as lack of recreational discard estimates. The Recreational ACT is equal to the Recreational Harvest Limit (RHL), which would be the effective cap on recreational catch.
For the commercial mackerel fishery, the Council recommended a commercial fishery allocation of 41,067 mt (93.8 percent of the U.S. ABC, the portion of the ACL that was not allocated to the recreational fishery). The recommended Commercial ACT of 34,907 mt (85 percent of 41,067) is reduced to address uncertainty in estimated 2013 Canadian landings, uncertainty in discard estimates, and possible misreporting. The Commercial ACT would be further reduced by a discard rate of 3.11 percent (mean plus one standard deviation of discards from 1999-2008), to arrive at the proposed DAH of 33,821 mt. The DAH would be the effective cap on commercial catch, as it has been in past specifications.
Consistent with the Council's recommendation, NMFS proposes mackerel specifications that would set the U.S. ABC/ACL at 43,781 mt, the Commercial ACT at 34,907 mt, the DAH and DAP at 33,821 mt, and the Recreational ACT at 2,443 mt.
Additionally, as recommended by the Council, NMFS proposes to maintain JVP at zero (the most recent allocation was 5,000 mt of JVP in 2004). In the past, the Council recommended a JVP greater than zero because it believed U.S. processors lacked the ability to process the total amount of mackerel that U.S. harvesters could land. However, for the past 9 years, the Council has recommended zero JVP because U.S. shoreside processing capacity for mackerel has expanded. The Council concluded that processing capacity was no longer a limiting factor relative to domestic production of mackerel.
The Magnuson-Stevens Act provides that the specification of TALFF, if any, shall be the portion of the optimum yield (OY) of a fishery that will not be harvested by U.S. vessels. TALFF would allow foreign vessels to harvest U.S. fish and sell their product on the world market, in direct competition with U.S. industry efforts to expand exports. While a surplus existed between ABC and the mackerel fleet's harvesting capacity for many years, that surplus has disappeared due to downward adjustments of the specifications in recent years. Based on analysis and a review of the state of the world mackerel market and possible increases in U.S. production levels, the Council concluded that specifying a DAH/DAP resulting in zero TALFF will yield positive social and economic benefits to both U.S. harvesters and processors, and to the Nation. For these reasons, consistent with the Council's recommendation, NMFS proposes to specify DAH at a level that can be fully harvested by the domestic fleet, thereby precluding the specification of a TALFF, in order to support the U.S. mackerel industry. NMFS concurs that it is reasonable to assume that in 2013 the commercial fishery has the ability to harvest 33,821 mt of mackerel.
The current status of the butterfish stock is unknown because biomass reference points could not be determined in the SAW 49 assessment (February 2010); however, survey trends since the most recent assessment suggest an increase in butterfish abundance. In recommending 2013 specifications, the SSC considered multiple sources of information including a recent analysis of the butterfish stock by Dr. Paul Rago and Dr. Tim Miller from NOAA's Northeast Fisheries Science Center (NEFSC). Because of the uncertainty in the most recent butterfish stock assessment, on April 6, 2012, the Council requested that NEFSC offer additional analysis of the butterfish stock to aid the SSC in the ABC setting process for the 2013 fishing year. The Rago-Miller analysis 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 Rago-Miller analysis also examined a range of fishing mortalities that would result from these biomass estimates. The SSC used the Rago-Miller 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 overfishing limit (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 Rago-Miller 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 and recommended an ABC of 8,400 mt (50 percent of the OFL, and a 232-percent increase from the 2012 ABC). 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:
The Council recommended setting the butterfish ACL equal to the ABC, and establishing a 10-percent buffer between ACL and ACT for management uncertainty, which would result in an ACT of 7,560 mt. Since discards have been roughly
NMFS proposes specifications, consistent with the Council's recommendation, that would set the butterfish ABC/ACL at 8,400 mt, the ACT at 7,560 mt, the DAH and DAP at 2,570 mt, and the butterfish mortality cap on the longfin squid fishery at 4,500 mt. Additionally, consistent with MSB regulations, NMFS is proposing zero TALFF for butterfish in 2013. Consistent with 2012, NMFS proposes that the 2013 butterfish mortality cap be allocated by Trimester as follows:
Due to the increase in the recommended butterfish DAH and butterfish mortality cap, a variety of management measures were recommended by the Council to control fishing effort while allowing the expansion of a profitable directed butterfish fishery. The Council recommended a three-phase management system for the directed butterfish fishery (Table 3) to allow for maximum utilization of the butterfish resource without exceeding the stock-wide ACL. In phase 1, there would be no trip limit for vessels issued longfin squid/butterfish moratorium permits using mesh greater than or equal to 3 inches (7.62 cm), a 2,500-lb (1.13-mt) trip limit for longfin squid/butterfish moratorium permits using mesh less than 3 inches (7.62 cm), and a trip limit of 600 lb (0.27 mt) for vessels issued squid/butterfish incidental catch permits. Once butterfish harvest reaches the trip hold reduction threshold for phase 2, the trip limit for longfin squid/butterfish moratorium permit holders would be reduced to 5,000 lb (2.27 mt) for vessels using greater than or equal to 3-inch (7.62 cm) mesh and 2,500 lb (1.13 mt) for vessels using under 3-inch (7.62 cm) mesh. When butterfish harvest is projected to reach the trip hold reduction thresholds for phase 3, the trip limit for all longfin squid/butterfish moratorium permit holders would be reduced to 500 lb (0.23 mt) to avoid quota overages. For phases 2 and 3, the quota thresholds to reduce the trip limits are proposed to vary bimonthly throughout the year (Tables 4 and 5).
Finally, during phase 3, the NMFS Regional Administrator would have the authority to adjust the phase 3 trip limit for limited access vessels within the range from 250 (0.11 mt) to 750 lb (0.34 mt) so that butterfish harvest does not exceed the annual DAH.
The Council recommended regulatory changes for the longfin squid fishery. Currently, vessels that intend to land 2,500 lb (1.13 mt) or more of longfin squid are required to notify the Northeast Fisheries Observer Program (NEFOP) at least 72 hr in advance of the start of a trip. Longfin squid vessel
NMFS proposes changes to management measures for the butterfish mortality cap in the longfin squid fishery consistent with the Council's recommendations. To avoid closing the directed longfin squid fishery due to the butterfish mortality cap in the last 2 weeks of Trimester 1, NMFS proposes changing the closure threshold on April 15 of each year from 80 to 90 percent. As there is currently no closure mechanism for the butterfish mortality cap in Trimester 2, the entire annual butterfish mortality cap could potentially be harvested in Trimester 2, which would not leave any butterfish mortality cap quota for the Trimester 3 longfin squid fishery. To avoid the entire allocation of the butterfish mortality cap being harvested prior to the start of Trimester 3 on September 1, NMFS proposes to close the directed longfin squid fishery in Trimester 2 if 75 percent of the annual mortality cap is projected to be reached, consistent with the Council's recommendations.
This proposed rule also contains minor corrections to existing regulations. The corrections would not change the intent of any regulations; they would only clarify the existing regulations by correcting minor errors. The current regulations at § 648.24 state that NMFS will implement any changes to the ACL due to overages from the previous year through notification in the
This rule proposes a correction to § 648.22(b)(2) regarding the mackerel ABC. This rule clarifies that the MAFMC's SSC recommends a stock-wide ABC, and that the Domestic ABC or ACL is calculated by deducting Canadian catch from the stock-wide ABC. This rule also proposes a correction to § 648.27(c) to clarify that the pre-trip notification requirement for vessels issued longfin squid/butterfish moratorium permits is for trips with landings greater than 2,500 lb (1.13 mt) and not trips with landings equal to or greater than 2,500 lb (1.13 mt) of longfin squid.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Atlantic Mackerel, Squid, and Butterfish FMP, other provision of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from the Council or NMFS (see
This action proposes 2013-2015 specifications for mackerel and 2013 specifications for butterfish, along with management measures for longfin squid and butterfish. 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 this proposed rule and are not repeated here.
Based on permit data for 2011, 3,405 commercial or charter vessels possessed MSB permits for the 2011 fishing year, and similar numbers of vessels are expected to have MSB permits for 2013. All but a few of these participants can be considered small businesses under the guidelines of the Small Business Administration. 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 $7.0 million, respectively. There are no large entities, as that term is defined in section 601 of the RFA, participating in this fishery. 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.
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 proposed rule.
The mackerel commercial DAH (33,821 mt) and recreational ACT/RHL (2,443 mt) proposed in this action represent no change from status quo. Commercial mackerel landings for 2011 were 1,463 mt, and recreational catch was 932 mt, and in both cases, catch was below the allocation. As of the publication of this rule, mackerel catch is estimated to be 5,266 mt and is not likely to increase significantly for the remainder of the year, which means that 2012 catch will also be below the 2012 DAH. Therefore, this proposed action allows the mackerel fleet the opportunity to harvest more than they have in the previous year. Overall, the proposed action is expected to generate revenue very similar to the 2012 revenue for vessels that participate in the commercial mackerel fisheries.
The butterfish DAH proposed in this action (2,570 mt) represents a 236-percent increase over the 2012 DAH (1,087 mt). Due to market conditions, there has not been a directed butterfish fishery since 2001; therefore, recent landings have been low. The proposed increase in the DAH has the potential to dramatically increase revenue for permitted vessels because it has been an incidental catch fishery for several years.
In addition, the three-phased management system proposed for the directed butterfish fishery, which would allow an unlimited quota until butterfish harvest reaches a particular threshold, would allow vessels to harvest substantially more butterfish
The butterfish mortality cap proposed in this action (4,500 mt) represents a 184-percent increase over the 2012 cap level (2,445 mt). The increase in the butterfish mortality cap will be less restrictive on the longfin squid fishery than in previous years. While longfin squid catch will still be restrained by the longfin squid DAH, there is less of likelihood that the longfin squid fishery will be closed due to the butterfish mortality cap. In addition, the management measures for the longfin squid fishery are proposed to ensure that the directed longfin squid fishery is not closed during the last two weeks a particular trimester, therefore, causing economic harm to the fishing industry when there is still a small amount of catch available to the fleet. Therefore, the implementation of these actions should result in an increase in revenue for the longfin squid fishery for 2013.
The Council analysis evaluated three alternatives to the proposed specifications for mackerel. The first (status quo) alternative differed from the proposed mackerel specifications, only in that the status quo alternative recommends specifications for one year, while the proposed alternative sets mackerel specifications for 3 years (2013-2015). The status quo alternative would set the stock-wide ABC of 80,000 mt, Canadian catch of 36,219 mt, and a U.S. ABC of 43,781 mt. The second alternative (the least restrictive) would set the stock-wide ABC at 100,000 mt, would maintain Canadian catch at 35,219 mt, and would set a U.S. ABC at 63,781 mt. This alternative could generate increased revenue if more mackerel became available to the fishery. The third alternative (the most restrictive) would set the stock-wide ABC at 60,000 mt, would maintain Canadian catch at 36,219 mt, and would set a U.S. ABC at 23,781 mt. This alternative could generate the lowest revenue of all of the alternatives. These two alternatives were not selected because they were all inconsistent with the ABC recommended by the SSC.
There were three alternatives to the preferred action for butterfish that were not selected by the Council. The first (status quo) alternative would have kept the butterfish ABC and ACL at 3,622 mt, the ACT at 3,260 mt, the DAH and DAP at 1,087, and the butterfish mortality cap at 2,445 mt. The second alternative (least restrictive) would have set the ABC and ACL at 10,500 mt, the ACT at 9,450 mt, the DAH and DAP at 3,213 mt, and the butterfish mortality cap at 5,625 mt, and would generate the highest revenues of all of the alternatives. The fourth alternative (most restrictive) would have set the ABC and ACL at 6,300 mt, the ACT at 5,670 mt, the DAH and DAP at 1,928 mt, and the butterfish mortality cap at 3,375 mt, and would generate the lowest revenue of all of the alternatives. These three alternatives were not selected because they were inconsistent with the ABC recommended by the SSC.
The Council recommended the status quo as an alternative to both the proposed action for changing management measures for the longfin squid fishery and for the butterfish mortality cap. For all proposed management measures, the status quo alternative recommended no changes to the longfin squid or butterfish mortality cap management measures. 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 status quo alternatives were considered, but not selected, because the proposed measures have the potential to increase economic opportunity for the fishing fleet while still ensuring the ACL for the longfin squid fishery and the butterfish mortality cap are not exceeded. There were also two alternatives to the proposed three-phase management system for the directed butterfish fishery. The first (status quo and most restrictive) would maintain the 5,000-lb (2.27-mt) trip limit for vessels issued longfin squid/butterfish moratorium permits using over 3-inch (76-mm) mesh, 2,000-lb (0.91-mt) trip limit for vessels issued longfin squid/butterfish moratorium permits using under 3-inch (76-mm) mesh, and the 600-lb (0.27-mt) trip limit for vessels issued squid/butterfish incidental catch permits. Even with the proposed increase in quota, the butterfish fishery may not be able to harvest an increased amount of butterfish with these restrictive trip limits. Therefore, this alternative could generate the lowest amount of revenue out of all of the alternatives. The second alternative would provide a simpler management system for the directed fishery in which the trip limit for vessels issued longfin squid/butterfish moratorium permits would be 20,000 lb (9.07 mt) for vessels issued longfin squid/butterfish moratorium permits using greater than 3-inch (76-mm) mesh, 2,500 lb (1.13 mt) for permits using under 3-inch (76-mm) mesh, and 1,000 lb (4.54 mt) for vessels issued squid/butterfish incidental catch permits. If 80 percent of the DAH is projected to be harvested before October 1, the trip limit for all vessels would be reduced to 250 lb (0.11 mt), and if the DAH is projected to be harvested on or after October 1, the trip limit for all vessels would be 500 lb (0.23 mt). This alternative would provide the butterfish fishery the opportunity to increased revenues over the first alternative, but not as great as the proposed alternative. While these alternatives were considered, they were not selected because the proposed alternative has the potential to increase economic opportunity for vessels participating in the directed butterfish fishery while still ensuring the ACL is not exceeded. The other alternatives would not be as effective for directed butterfish vessels to re-establish a butterfish market.
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble 50 CFR part 648 is proposed to be amended as follows:
1. The authority citation for part 648 continues to read as follows:
16 U.S.C. 1801
2. In § 648.4, paragraph (a)(5)(ii) is revised to read as follows:
(a) * * *
(5) * * *
3. In § 648.14, paragraphs (g)(2)(ii)(E) and (F) are revised to read as follows:
(g) * * *
(2) * * *
(ii) * * *
(E) Possess more than 2,500 lb (1.13 mt) of butterfish, unless the vessel meets the minimum mesh requirements specified in § 648.23(a).
(F) Take, retain, possess, or land mackerel after a total closure specified under § 648.24(b)(1).
4. In § 648.22, revise paragraph (b)(2)(i) and (b)(2)(ii), redesignate paragraphs (b)(3)(v) through (b)(3)(vii) as paragraphs (b)(3)(vi) through (b)(3)(viii), respectively, and add new paragraph (b)(3)(v) to read as follows:
(b) * * *
(3) * * *
(v) The trip limit reduction thresholds for phase 2 and phase 3 of the butterfish three-phase management system will be modified annually through the specifications process. Trip limit reduction thresholds vary bi-monthly and are set to allow the butterfish fishery to continue to operate without exceeding the stock-wide ACL. An example of the phase 2 and 3 trip limit reduction thresholds is shown in the table below:
5. In § 648.23, paragraph (a)(1) is revised to read as follows:
(a) * * *
6. In § 648.24, paragraphs (a)(1), (b)(6), (c)(1), (c)(3), and (c)(4) are revised to read as follows:
(b) * * *
7. In § 648.26, paragraph (d) is revised to read as follows:
8. In § 648.27, paragraphs (a), (c), and (d) are revised to read as follows:
(a) A vessel issued a longfin squid and butterfish moratorium permit, as specified at § 648.4(a)(5)(i), must, for the purposes of observer deployment, have a representative provide notice to NMFS of the vessel name, vessel permit number, contact name for coordination of observer deployment, telephone number or email address for contact; and the date, time, port of departure, and approximate trip duration, at least 48 hr, but no more than 10 days, prior to beginning any fishing trip, unless it complies with the possession restrictions in paragraph (c) of this section.
(c) A vessel issued a longfin squid and butterfish moratorium permit, as specified in § 648.4(a)(5)(i), that does not have a representative provide the trip notification required in paragraph (a) of this section is prohibited from fishing for, possessing, harvesting, or landing greater than 2,500 lb (1.13 mt) of longfin squid per trip at any time, and may only land longfin squid once on any calendar day, which is defined as the 24-hr period beginning at 0001 hours and ending at 2400 hours.
(d) If a vessel issued a longfin squid and butterfish moratorium permit, as specified in § 648.4(a)(5)(i), intends to possess, harvest, or land more than 2,500 lb (1.13 mt) of longfin squid per trip or per calendar day, has a representative notify NMFS of an upcoming trip, is selected by NMFS to carry an observer, and then cancels that trip, the representative is required to provide notice to NMFS of the vessel name, vessel permit number, contact name for coordination of observer deployment, and telephone number or email address for contact, and the intended date, time, and port of departure for the cancelled trip prior to the planned departure time. In addition, if a trip selected for observer coverage is cancelled, then that vessel is required to carry an observer, provided an observer is available, on its next trip.