[Federal Register Volume 76, Number 50 (Tuesday, March 15, 2011)]
[Rules and Regulations]
[Pages 13887-13889]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5995]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110218149-1182-01]
RIN 0648-BA86


Fisheries of the Northeastern United States; Atlantic Mackerel, 
Squid, and Butterfish (MSB) Fishery; Revision of 2011 Butterfish 
Specifications

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

ACTION: Temporary rule; request for comments.

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SUMMARY: NMFS issues this temporary rule pursuant to its authority to 
issue emergency measures under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). This emergency 
action increases the butterfish allowable biological catch (ABC) for 
the 2011 fishing year from 1,500 mt to 1,811 mt, and applies the 
increase to the butterfish mortality cap in the Loligo squid fishery, 
based on the most recent and best available scientific information.

DATES: Effective March 15, 2011, through September 12, 2011. Comments 
must be received by April 14, 2011.

ADDRESSES: The supplemental EA is available by request from: Patricia 
Kurkul, Regional Administrator,

[[Page 13888]]

National Marine Fisheries Service, Northeast Region, 55 Great Republic 
Drive, Gloucester, MA 01930-2276, or via the Internet at http://www.nero.noaa.gov.
    You may submit comments, identified by RIN 0648-BA86, by any one of 
the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking portal http://www.regulations.gov;
    <bullet> Fax: (978) 281-9135, Attn: Aja Peters-Mason;
    <bullet> Mail to NMFS, Northeast Regional Office, 55 Great Republic 
Dr, Gloucester, MA 01930. Mark the outside of the envelope ``Comments 
on Emergency Rule to Revise the Butterfish Specifications.''
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.

FOR FURTHER INFORMATION CONTACT: Aja Peters-Mason, Fishery Policy 
Analyst, (978) 281-9195, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    This temporary rule implements emergency measures, authorized by 
section 305(c) of the Magnuson-Stevens Act, to increase the butterfish 
ABC for the 2011 fishing year (FY) from 1,500 mt to 1,811 mt, and 
applies the increase to the butterfish mortality cap in the Loligo 
squid fishery immediately. This action revises the butterfish ABC in 
the Final 2011 Specifications for the MSB Fishery Management Plan (FMP) 
(76 FR 8306; February 14, 2011).
    Butterfish catches have been constrained to low levels since the 
ABC was reduced to 4,545 mt in 2005, and then to 1,500 mt in 2008. ABC 
reductions were in response to the results of the 38th Stock Assessment 
Workshop (SAW 38) in 2004, which determined the butterfish stock was 
overfished. The Mid-Atlantic Fishery Management Council (Council) 
developed Amendment 10 to the FMP in response to SAW 38; Amendment 10 
enacted a rebuilding program for butterfish, as well as measures to 
reduce butterfish bycatch in the Loligo squid fishery. The most notable 
bycatch reduction measure in Amendment 10 is the butterfish mortality 
cap on the Loligo squid fishery, which went into effect on January 1, 
2011. The cap is 75 percent of the butterfish ABC, and closes the 
directed Loligo squid fishery once it is attained.
    The most recent butterfish assessment, SAW 49 (January 2010), 
determined that the status of the butterfish stock is unknown. Though 
the assessment was inconclusive, it did verify that long-term declines 
in the butterfish stock persisted even in the absence of fishing 
pressure, which suggests that fishing mortality may not be a major 
factor impacting the stock. The estimates of butterfish fishing 
mortality and total biomass resulting from SAW 49 were highly 
uncertain, and the final assessment report stated that it would be 
inappropriate to compare the previous status determination criteria 
from SAW 38 with the current assessment estimates of spawning stock 
biomass and fishing mortality, because measures of population abundance 
in the current assessment were scaled much higher than those in the 
previous assessment. In May 2010, the Council's Scientific and 
Statistical Committee (SSC) reviewed the SAW 49 results and other 
available information, including the Northeast Fisheries Science 
Center's (NEFSC) Autumn 2009 trawl survey indices for butterfish and, 
due to uncertainty in the assessment, recommended setting the 
butterfish ABC at the status quo level of 1,500 mt for FY 2011.
    The Council used the SSC's recommended butterfish ABC as the basis 
for 2011 specifications, and submitted their recommendations and 
supporting analysis to NMFS in July 2010. NMFS went on to recommend the 
1,500-mt butterfish ABC in the proposed rule for 2011 MSB 
Specifications in November 2010. During public comment on the proposed 
specifications, industry members expressed concern that the low 
butterfish ABC would cause the directed Loligo squid fishery to be 
closed before the fleet was able to access much of the Loligo squid 
quota. Commenters also pointed to recent information from the NEFSC 
Autumn 2009 and 2010 trawl survey that showed butterfish catches almost 
twice the average for the last decade (6.41 kg/tow for 2009; 5.59 kg/
tow for 2010; average 3.4 kg/tow from 1999-2008). However, based on the 
SSC's recommended ABC, which was adopted by the Council, NMFS 
implemented the 1,500-mt ABC for butterfish in the final MSB 
specifications in February 2011.
    Because the NEFSC Autumn 2010 trawl survey information was not 
available during the SSC's initial deliberations in May 2010, the SSC 
met on February 7, 2011, to consider whether the new information 
warranted an adjustment to their previous recommended butterfish ABC 
for 2011. The SSC reviewed inshore butterfish survey data from the 
Northeast Area Monitoring and Assessment Program (NEAMAP), as well as 
landings information for butterfish through 2010. The SSC also reviewed 
the past justification for the establishment of the 1,500-mt ABC.
    The SSC noted the high uncertainty about the scale of the current 
stock biomass, which made it difficult to assess the risk of the lower 
range of ABC values for 2011 that were previously considered in its May 
2010 deliberations. It stated that, while establishing an ABC based on 
average landings over a given time period is justifiable in some 
situations where stock size is uncertain, it would be inappropriate to 
continue to use this method in the case of butterfish, given the long-
term declining trend in stock abundance. However, the SSC went on to 
recommend that the Council adjust the 2011 butterfish ABC to 1,811 mt, 
based on a revised method that considers realized landings and discards 
from 2002-2008, a time period during which butterfish catch history was 
dominated principally by discards. This is in contrast to the method 
that was initially used to set the ABC at 1,500 mt in 2008, which 
relied on an estimated level of discards associated with average 
landings over a slightly different timeframe. The SSC also noted that 
butterfish catches in NEFSC Autumn trawl surveys from 2002-2008 
appeared relatively stable.
    Based on the SSC's recommendation, the Council requested at its 
February 2011 meeting that NMFS take an emergency action to adjust the 
butterfish ABC to 1,811 mt and apply the increase to the mortality cap 
for the Loligo squid fishery. The duration of this action is limited by 
the Magnuson-Stevens Act to 180 days; however, NMFS will re-evaluate 
the status of the fishery at the end of 180 days and may extend this 
action in order to make the catch limits effective for the duration of 
the FY (through December 31, 2011), consistent with the authority in 
the Magnuson-Stevens Act to extend emergency actions for up to an 
additional 186 days.

[[Page 13889]]

    NMFS policy guidelines for the use of emergency rules (62 FR 44421; 
August 21, 1997) specify the following three criteria that define what 
an emergency situation is, and justification for final rulemaking: (1) 
The emergency results from recent, unforeseen events or recently 
discovered circumstances; (2) the emergency presents serious 
conservation or management problems in the fishery; and (3) the 
emergency can be addressed through emergency regulations for which the 
immediate benefits outweigh the value of advance notice, public 
comment, and deliberative consideration of the impacts on participants 
to the same extent as would be expected under the normal rulemaking 
process. NMFS policy guidelines further provide that emergency action 
is justified for certain situations where emergency action would 
prevent significant direct economic loss, or to preserve a significant 
economic opportunity that otherwise might be foregone.
    The new information from the Autumn 2010 survey and the more recent 
NEAMAP survey results are recently discovered circumstance and 
represent the best available science. To not take into account the new 
scientific advice in a timely manner has the potential to present 
serious management problems in the Loligo fishery. The Loligo squid 
fishery is particularly active during the first Trimester of the 
fishing year (January-April). Swift implementation of the modified ABC, 
consistent with the new SSC recommendation, is critical to the Loligo 
fleet due to the timing of fleet activity, and the history of 
interactions between Loligo squid and butterfish. It is intended to 
provide the Loligo squid fleet additional access to Loligo squid quota 
during the FY. It would also enable the Loligo squid fleet to optimize 
Loligo squid harvest with reduced concern that that fishery could be 
closed due to the butterfish mortality cap. Therefore, this emergency 
action will reduce the likelihood of disruption to the Loligo squid 
fishery that would be caused by the existing butterfish cap. Addressing 
this through Council action, rather than through Secretarial emergency 
authority, would take most of the year, and would likely result in 
implementing measures well after the existing butterfish cap could have 
closed the Loligo squid fishery. The benefit of increasing the 
butterfish ABC and applying the increase to the butterfish mortality 
cap through this emergency action will be immediate to the Loligo 
fleet, and therefore outweighs the value of going through the normal 
rulemaking process.
    This emergency action increases the butterfish ABC previously 
implemented for the FY 2011 from 1,500 mt to 1,811 mt. Other 
specifications for butterfish, specifically, initial optimum yield 
(IOY), domestic annual harvest (DAH), domestic annual processing (DAP), 
joint venture processing (JVP), total allowable level of foreign 
fishing (TALFF), and research set-aside (RSA) are unchanged from those 
set in the final 2011 specifications. Specifications for Atlantic 
mackerel, Loligo squid, and Illex squid also remain unchanged.
    Amendment 10 specified that the butterfish mortality cap is to be 
set equal to 75 percent of the butterfish ABC, with the remaining 25 
percent of the butterfish ABC allocated to account for butterfish catch 
in other fisheries, but noted that this apportionment may be revised as 
necessary to accommodate the Loligo squid fishery. The additional 311-
mt ABC allotment implemented through this action is entirely allocated 
to the mortality cap. Under the current 2011 specifications, the 
butterfish mortality cap is 1,125 mt (75 percent of 1,500 mt); this 
emergency action increases the butterfish mortality cap to 1,436 mt.

Classification

    NMFS has determined that this rule is necessary to respond to an 
emergency situation and is consistent with the Magnuson-Stevens Act and 
other applicable law.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under section 553(b)(B) of the Administrative Procedure Act that it is 
impracticable and contrary to the public interest to provide for prior 
notice and opportunity for the public to comment. As more fully 
explained above, the reasons justifying promulgation of this rule on an 
emergency basis make solicitation of public comment contrary to the 
public interest. This action provides the benefit of allowing the 
Loligo fleet to optimize its harvest, with less concern that the 
fishery could be closed due to the butterfish mortality cap. This 
action did not allow for prior public comment because the scientific 
review process and determination could not have been completed any 
earlier, due to the inherent time constraints associated with the 
process and the fact that the information on which this action is based 
became available very recently.
    If this rulemaking were delayed to allow for notice and comment, 
the current butterfish mortality cap could be reached, which would have 
the effect of shutting down the directed Loligo fishery for the 
remainder of Trimester 1 (January-April). The time necessary to provide 
for prior notice, opportunity for public comment, and delayed 
effectiveness for this action could have resulted in closing the Loligo 
fishery due to the low limit of the current butterfish mortality cap. 
In the interest of receiving public input on this action, the revised 
assessment upon which this action was based is made available to the 
public, and this action requests public comments on that document and 
the provisions in this rule.
    For the reason above, the Assistant Administrator for Fisheries 
finds good cause under section 553(d) of the Administrative Procedure 
Act to waive the 30-day delay in effectiveness.
    This emergency rule has been determined to be not significant for 
purposes of E.O. 12866.
    This rule is exempt from the procedures of the Regulatory 
Flexibility Act to prepare a regulatory flexibility analysis because 
the rule is issued without opportunity for prior public comment.

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

    Dated: March 10, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-5995 Filed 3-14-11; 8:45 am]
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