[Federal Register Volume 76, Number 62 (Thursday, March 31, 2011)]
[Rules and Regulations]
[Pages 17789-17793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7630]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 101228634-1149-02]
RIN 0648-BA26


Fisheries of the Northeastern United States; Atlantic Bluefish 
Fishery; 2011 Atlantic Bluefish Specifications; Regulatory Amendment

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

ACTION: Final rule; final specifications for the 2011 Atlantic bluefish 
fishery.

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SUMMARY: NMFS issues final specifications for the 2011 Atlantic 
bluefish fishery, including total allowable landings (TAL), a 
commercial quota and recreational harvest limit (RHL), and a 
recreational possession limit. The intent of this action is to 
establish the allowable 2011 harvest levels and other management 
measures to achieve the target fishing mortality rate (F), consistent 
with the Atlantic Bluefish Fishery Management Plan (FMP). The final 
rule also amends the bluefish regulations that specify the process for 
setting the annual TAL and target F to more clearly reflect the intent 
of the FMP.

DATES: This rule is effective May 2, 2011. The final specifications for 
the 2011 Atlantic bluefish fishery are effective May 2, 2011, through 
December 31, 2011.

ADDRESSES: Copies of the specifications document, including the 
Environmental Assessment and Initial Regulatory Flexibility Analysis 
(EA/IRFA) and other supporting documents for the specifications, are 
available from Dr. Christopher M. Moore, Executive Director, Mid-
Atlantic Fishery Management Council, Suite 201, 800 N. State Street, 
Dover, DE 19901. The specifications document is also accessible via the 
Internet at: http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Jason Berthiaume, Fishery Management 
Specialist, (978) 281-9177.

SUPPLEMENTARY INFORMATION: 

Background

    The Atlantic bluefish fishery is managed cooperatively by the Mid-
Atlantic Fishery Management Council (Council) and the Atlantic States 
Marine Fisheries Commission (Commission). The management unit for 
bluefish specified in the FMP is U.S. waters of the western Atlantic 
Ocean. Regulations implementing the FMP appear at 50 CFR part 648, 
subparts A and J. The regulations requiring annual specifications are 
found at Sec.  648.16.
    The FMP requires the Council to recommend, on an annual basis, a 
total allowable catch (TAC) and a TAL that will control fishing 
mortality. An estimate of annual discards is deducted from the TAC to 
calculate the TAL that can be made during the year by the commercial 
and recreational fishing sectors combined. The FMP requires that 17 
percent of the TAL be allocated to the commercial fishery, as a quota 
(further allocated to the States from Maine to Florida in specified 
shares), with the remaining 83 percent of the TAL allocated as an RHL. 
The Council may also recommend a research set-aside (RSA) quota, which 
is deducted from the bluefish TAL (after any applicable transfer) in an 
amount proportional to the percentage of the overall TAL as allocated 
to the commercial and recreational sectors.
    Pursuant to Sec.  648.162, the annual review process for bluefish 
requires that the Council's Bluefish Monitoring Committee (Monitoring 
Committee) and Scientific and Statistical Committee (SSC) review and 
make recommendations based on the best available data, including, but 
not limited to, commercial and recreational catch/landing statistics, 
current estimates of fishing mortality, stock abundance, discards for 
the recreational fishery, and juvenile recruitment. Based on the 
recommendations of the Monitoring Committee and SSC, the Council makes 
a recommendation to the NMFS Northeast Regional

[[Page 17790]]

Administrator. Because this FMP is a joint plan, the Commission also 
meets during the annual specification process to adopt complementary 
measures.
    The Council's recommendations must include supporting documentation 
concerning the environmental, economic, and social impacts of the 
recommendations. NMFS is responsible for reviewing these 
recommendations to assure they achieve the FMP objectives, and may 
modify them if they do not. NMFS then publishes proposed specifications 
in the Federal Register, and after considering public comment, NMFS 
will publish final specifications in the Federal Register. The proposed 
specifications were published in the Federal Register on January 14, 
2011 (76 FR 2640), with a 15-day comment period which ended on January 
31, 2011.

Final Specifications

Updated Model Estimates

    According to Amendment 1 to the FMP (Amendment 1), overfishing for 
bluefish occurs when F exceeds the fishing mortality rate that allows 
maximum sustainable yield (F<INF>MSY</INF>), or the maximum F threshold 
to be achieved. The stock is considered overfished if the biomass (B) 
falls below the minimum biomass threshold, which is defined as \1/2\ 
B<INF>MSY</INF>. Amendment 1 also established that the long-term target 
F is 90 percent of F<INF>MSY</INF> (F<INF>MSY</INF> = 0.19, therefore 
F<INF>target</INF> = 90 percent of F<INF>MSY</INF>, or 0.17), and the 
long-term target B is B<INF>MSY</INF> = 324 million lb (146,964 mt).
    An age-structured assessment program (ASAP) model for bluefish was 
approved by the 41st Stock Assessment Review Committee (SARC 41) in 
2005 to estimate F and annual biomass. In June 2010, the ASAP model was 
updated in order to estimate the current status of the bluefish stock 
(i.e., 2009 biomass and F estimates) and enable the Monitoring 
Committee and SSC to recommend 2011 specifications using landings 
information and survey indices through the 2009 fishing year. The 
results of the assessment update were as follows: (1) An estimated 
stock biomass for 2009, B<INF>2009</INF> = 343.901 million lb (155,991 
mt); and (2) an estimated fishing mortality rate for 2009, 
F<INF>2009</INF> = 0.10. Based on the updated 2009 estimate of bluefish 
stock biomass, the bluefish stock is not considered overfished: 
B<INF>2009</INF> is greater than the minimum biomass threshold, \1/2\ 
B<INF>MSY</INF> = 162 million lb (73,526 mt), and is above 
B<INF>MSY</INF>. Biomass has been above the target since 2007, and the 
stock was declared rebuilt in October 2009, satisfying the rebuilding 
program requirement to achieve rebuilding by 2010 that was established 
in Amendment 1. Estimates of F have declined from 0.41 in 1991 to 0.10 
in 2009. The updated model results also conclude that the Atlantic 
bluefish stock is not experiencing overfishing; i.e., the most recent F 
(F<INF>2009</INF> = 0.10) is less than the maximum F overfishing 
threshold specified by SARC 41 (F<INF>MSY</INF> = 0.19).

2011 TAL

    The Council's SSC met in July 2010 to review updated stock status 
and other fishery independent and dependent data to recommend an 
acceptable biological catch (ABC) for the 2011 bluefish fishing year. 
Based on the updated bluefish assessment, the SSC recommended an ABC of 
31.744 million lb (14,399 mt), which corresponds to an F of 0.15. 
Following the SSC meeting, the Monitoring Committee met to review the 
SSC's ABC determination and recommend bluefish management measures for 
2011. The MC recommended an F<INF>target</INF> of 0.15 and a 
corresponding TAC of 31.744 million lb (14,399 mt). After subtracting 
an estimate of discards of 4.451 million lb (2,019 mt) (the average 
annual discard level from 2007-2009) from the TAC, the Monitoring 
Committee recommended a 2011 TAL of 27.293 million lb (12,380 mt). At 
its August 2010 meeting, the Council concurred with the recommendation 
of the Monitoring Committee for a TAC of 31.744 million lb (14,299 mt) 
and a TAL of 27.293 million lb (12,380 mt). The proposed TAL is a 7-
percent decrease from the 2010 TAL of 29.264 million lb (13,274 mt) due 
to a slight decrease in the 2009 estimate of bluefish stock biomass. 
The discussion below describes the recommended allocation of TAL 
between the commercial and recreational sectors, and the proportional 
adjustments to account for the recommended bluefish RSA quota.

Final Commercial Quota and RHL

    Based strictly on the percentages specified in the FMP (17 percent 
commercial, 83 percent recreational), the commercial quota for 2011 
would be 4.640 million lb (2,105 mt) and the RHL would be 22.653 
million lb (10,275 mt) in 2011. However, the FMP stipulates that, in 
any year in which 17 percent of the TAL is less than 10.500 million lb 
(4,763 mt), and the recreational fishery is not projected to land its 
harvest limit for the upcoming year, the commercial quota may be 
increased up to 10.500 million lb (4,763 mt), provided that the 
combined projected recreational landings and commercial quota would not 
exceed the TAL. The RHL would then be adjusted downward so that the TAL 
would be unchanged.
    The Council postponed projections of estimated recreational harvest 
for 2011 until Marine Recreational Fisheries Statistics Survey (MRFSS) 
harvest data through Wave 5 of 2010 became available (six ``Waves'' of 
data are released each year by MRFSS). In the meantime, the 3-year 
average of annual recreational harvest from 2007 through 2009 (17.882 
million lb (8,111 mt)) was applied as the estimated recreational 
harvest for 2011. As such, it was expected that a transfer of up to 
4.772 million lb (2,164 mt) from the recreational sector to the 
commercial sector could be approved. This option represents the 
preferred alternative recommended by the Council in its specifications 
document.
    Northeast Regional Office staff recently updated the recreational 
harvest projection using 2010 MRFSS data through Wave 6. The inclusion 
of Wave 6 data did not result in any quota overages for the fishing 
year and would, therefore, not impact the final quotas. Using the best 
available data, the 2011 recreational harvest was estimated to be 
16.581 million lb (7,456 mt), or approximately 61 percent of the TAL. 
Consistent with the Council's recommendation, this allows for a 
transfer of 4.772 million lb (2,164 mt) from the recreational sector to 
the commercial sector. This results in an adjusted commercial quota of 
9.411 million lb (4,269 mt) and an RHL of 17.882 million lb (8,111 mt).

RSA

    Two research projects that would utilize bluefish RSA quota have 
been preliminarily approved and forwarded to NOAA's Grants Management 
Division. A 105,000-lb (48-mt) RSA quota is preliminarily approved for 
use by these projects during 2011. Proportional adjustments of this 
amount to the commercial and recreational allocations results in a 
final commercial quota of 9.375 million lb (4,253 mt) and a final RHL 
of 17.813 million lb (8,080 mt).

Final Recreational Possession Limit

    The current recreational possession limit of up to 15 fish per 
person is maintained to achieve the RHL.

Final State Commercial Allocations

    The final State commercial allocations of the 2011 commercial quota 
are shown in Table 1, based on the percentages specified in the FMP.

[[Page 17791]]



        Table 1--Final Bluefish Commercial State-by-State Allocations for 2011 (Including RSA Deductions)
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                                                                   2011 Council-final       2011 Council-final
                State                       Percent share        commercial quota (lb)    commercial quota (kg)
----------------------------------------------------------------------------------------------------------------
ME...................................                   0.6685                   62,673                   28,428
NH...................................                   0.4145                   38,860                   17,627
MA...................................                   6.7167                  629,704                  285,629
RI...................................                   6.8081                  638,273                  289,516
CT...................................                   1.2663                  118,718                   53,850
NY...................................                  10.3851                  973,624                  441,629
NJ...................................                  14.8162                1,389,049                  630,062
DE...................................                   1.8782                  176,085                   79,871
MD...................................                   3.0018                  281,425                  127,652
VA...................................                  11.8795                1,113,727                  505,178
NC...................................                  32.0608                3,005,765                1,363,392
SC...................................                   0.0352                    3,300                    1,497
GA...................................                   0.0095                      891                      404
FL...................................                  10.0597                  943,117                  427,791
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    Total............................                 100.0001                9,375,204                4,252,521
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Final Regulatory Amendment

    Amendment 1, implemented in 2000, established a rebuilding schedule 
to rebuild the bluefish stock biomass to its biomass target using a 
graduated step reduction in F over a 9-yr period. Amendment 1 specified 
a target F of 90 percent of F<INF>MSY</INF>, to become effective after 
the rebuilding period. The regulations at Sec.  648.160(a) state that 
the Council must set the TAL to ``achieve the target fishing mortality 
rate (F) specified in the Fishery Management Plan for Atlantic Bluefish 
for the upcoming fishing year or the estimated F for the fishing year 
preceding the Council submission of the recommended specifications, 
whichever F is lower.'' These regulations reflect the annual 
specification process during the rebuilding period; however, the 
regulations do not reflect the intent of the FMP for specification of 
the TAL after the rebuilding period. The ``whichever F is lower'' 
provision was only intended to apply to annual specifications during 
the rebuilding period. Therefore, this rule eliminates the ``whichever 
F is lower'' provision to more clearly reflect the intent of the FMP.

Comments and Responses

    The public comment period for the proposed rule ended on January 
31, 2011. Four comments were received. A summary and response to the 
concerns raised by the commenters are included below.
    Comment 1: A member of the charter/party Atlantic bluefish fishery 
in New Jersey was supportive of the quotas, but feels the recreational 
bag limit of 15 fish per person per day is too high. The commenter 
stated that the combined pressure of recreational and party/charter, as 
well as a commercial presence in the Atlantic bluefish fishery, has 
caused significant reductions in catch levels. The commenter suggested 
a recreational bag limit of 5 fish per person per day.
    Response: From 2000-2009, the recreational fishery overharvested 
its RHL in only 2 years, 2006 and 2007, with recreational landings of 
16.752 and 21.163 million lb, respectively, or about 7 percent higher 
than the combined recreational harvest limit implemented those years. 
With the majority of the years from 2000-2009 having recreational 
landings well under the RHL for those years, and minimal overages 
occurring in 2006 and 2007, a reduction to the recreational bag limit 
from 15 fish per day to 5 fish would not allow the recreational fishery 
to achieve the RHL. The 15 fish per day limit is consistent with the 
conservation objectives in the Atlantic Bluefish FMP while allowing the 
recreational sector to achieve optimum yield.
    Comment 2: Two comments suggested that the quotas were too high to 
be sustainable, and criticized the Council in general, but offered no 
scientific basis for this suggestion.
    Response: Atlantic bluefish are not overfished, nor are they 
subject to overfishing; therefore, there is no scientific basis for 
reducing the quotas as suggested by these commenters.
    Comment 3: One comment was in support of the quotas, but raised 
concerns regarding the IRFA. Specifically, the comment states that the 
IRFA should have used data through 2010 for all alternatives, rather 
than just for alternative 3. The comment also suggested that NMFS 
should conduct the analyses beyond Atlantic bluefish to include a 
comprehensive analysis of an entire suite of permits. The commenter 
stated that this could be performed by looking at the closure status of 
additionally permitted fisheries other than bluefish to quantify the 
fisheries a permit holder is able to participate in.
    Response: Alternative 3 is the no action alternative and does not 
utilize 2010 data. If alternative 3 were to be the selected 
alternative, the 2011 specifications would remain the same as the 2010 
Atlantic bluefish specifications. The no action alternative is 
considered to be synonymous with ``status quo'' management measures for 
2010 since the alternative interpretation (failure to specify 
management measures) would be in violation of the Magnuson-Stevens 
Fishery Conservation and Management Act. Therefore, alternative 3 would 
not necessitate additional analysis and would maintain the 2010 quotas 
which rely upon the analysis used for setting the 2010 specifications. 
The analysis performed for alternatives 1 and 2 utilizes 2009 data and 
not the entire data set for 2010. At the time the data were presented 
to the Monitoring Committee and the Council, data were only available 
from the recreational fishery from Waves 1 and 2 of 2010. Historically, 
landings for Waves 1 and 2 comprise less than 5 percent, on average, of 
the total recreational landings since 2000. Therefore, it was suggested 
that this type of projection be postponed until more complete data are 
available. In the meantime, average recreational landings for 2007-2009 
were used. After the proposed rule published on January 14, 2011, 
landings data through December 31, 2010, were utilized to determine if 
any quota overages occurred in 2010 and make any quota adjustments as 
necessary.
    Section 603 of the Regulatory Flexibility Act requires that an IRFA 
be prepared for all proposed rules,

[[Page 17792]]

describing the impacts of the proposed rule on small entities. The IRFA 
prepared for this rule analyzed the 2011 Atlantic bluefish 
specifications, including the considered alternatives and the expected 
impacts by the Council. Each of the statutory requirements of section 
603(b) and (c) have been addressed and are summarized in the 
Classification section of this final rule. The portion of this comment 
regarding regulatory closures in fisheries outside of Atlantic bluefish 
is beyond the scope of an IRFA and this rulemaking.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), the NMFS 
Assistant Administrator has determined that this final rule is 
consistent with the Atlantic Bluefish FMP, other provisions of the 
Magnuson-Stevens Act, and other applicable law.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This final rule does not duplicate, conflict, or overlap with any 
existing Federal rules.
    The FRFA included in this final rule was prepared pursuant to 5 
U.S.C. section 604(a), and incorporates the IRFA and a summary of 
analyses completed to support the action. No significant issues were 
raised by the public comment in response to the IRFA, other than the 
comment noted above. A public copy of the EA/RIR/IRFA is available from 
the Council (see ADDRESSES).
    The preamble to the proposed rule included a detailed summary of 
the analyses contained in the IRFA, and that discussion is not repeated 
here.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

    A description of the reasons why this action is being taken, and 
the objectives of and legal basis for this final rule are contained in 
the preambles to the proposed rule and this final rule and are not 
repeated here.

Summary of Significant Issues Raised in Public Comments

    Four comments were submitted on the proposed rule. One comment was 
received that commented on the economic analyses summarized in the IRFA 
and the economic impacts of the rule more generally, but did not raise 
significant issues. The response to this comment is provided above in 
the ``Comments and Responses'' section of this preamble. The remaining 
3 comments did not refer to the economic analysis summarized in the 
IRFA or the economic impacts of the rule more generally. No changes 
were made to the final rule as a result of the comments received.

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    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. The categories of small entities 
likely to be affected by this action include commercial and charter/
party vessel owners holding an active Federal permit for Atlantic 
bluefish, as well as owners of vessels that fish for Atlantic bluefish 
in State waters. All Federally permitted vessels fall into the 
definition of small businesses; thus, there would be no 
disproportionate impacts between large and small entities as a result 
of the final rule.
    An active participant in the commercial sector was defined as any 
vessel that reported having landed 1 or more lb (0.45 kg) in the 
Atlantic bluefish fishery in 2009 (the last year for which there are 
complete data). The active participants in the commercial sector were 
defined using two sets of data. The Northeast dealer reports were used 
to identify 688 vessels that landed bluefish in States from Maine 
through North Carolina in 2009. However, the Northeast dealer database 
does not provide information about fishery participation in South 
Carolina, Georgia, or Florida. South Atlantic Trip Ticket reports were 
used to identify 908 vessels that landed bluefish in North Carolina, 
and 685 vessels that landed bluefish on Florida's east coast. Some of 
these vessels were also identified in the Northeast dealer data; 
therefore, double counting is possible. Bluefish landings in South 
Carolina and Georgia were near zero in 2009, representing a negligible 
proportion of the total bluefish landings along the Atlantic Coast. 
Therefore, this analysis assumed that no vessel activity for these two 
States took place in 2009. In recent years, approximately 2,063 party/
charter vessels may have been active in the bluefish fishery and/or 
have caught bluefish.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    No additional reporting, recordkeeping, or other compliance 
requirements are included in this final rule.

Description of the Steps Taken To Minimize Economic Impact on Small 
Entities

    Specification of commercial quota, recreational harvest levels, and 
possession limits is constrained by the conservation objectives of the 
FMP, under the authority of the Magnuson-Stevens Act. The commercial 
quota contained in this final rule is 8 percent lower than the 2010 
quota and 61 percent higher than actual 2010 bluefish landings. All 
affected States will receive reductions in their individual commercial 
quota allocation in comparison to their respective 2010 individual 
State allocations. However, the magnitude of the reduction varies 
depending on the State's respective percent share in the total 
commercial quota, as specified in the FMP.
    The RHL contained in this final rule is approximately 4 percent 
lower than the RHL in 2010. The small reduction in RHL is a reflection 
of a declining trend in recreational bluefish harvest in recent years. 
Since the 2011 RHL is greater than the total estimated recreational 
bluefish harvest for 2010, it does not constrain recreational bluefish 
harvest below a level that the fishery is anticipated to achieve. The 
possession limit for bluefish will remain at 15 fish per person, so 
there should be no impact on demand for party/charter vessel fishing 
and, therefore, no impact on revenues earned by party/charter vessels. 
No negative economic impacts on the recreational fishery are 
anticipated.
    The impacts on revenues associated with the proposed RSA quota were 
analyzed and are expected to be minimal. Assuming that the full RSA 
quota 105,000 lb (48 mt) is landed and sold to support the proposed 
research projects, then all of the participants in the fishery would 
benefit from the improved fisheries data yielded from each project.
    Because both the RHL and the commercial quota being implemented in 
this final rule are slightly lower than the 2009 RHL and commercial 
quotas, and there will be no impacts from the RSA quota, the economic 
impacts are expected to be minimal.
    Under alternative 2, which was not selected, a transfer of bluefish 
landings from the recreational to the commercial fishery would not 
occur. The absence of a quota transfer under this alternative would 
result in decreased commercial fishing opportunity compared to 2010, 
and is therefore associated with a higher probability of commercial 
revenue

[[Page 17793]]

losses compared to the specifications being implemented in this final 
rule.
    The not chosen alternative 3 would be the least restrictive 
alternative (i.e., least restrictive commercial quota), but was not 
recommended because it is the status quo. Additionally, the TAC for 
alternative 3 would have been above the recommended acceptable 
biological catch which could possibly result in quota overages.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide will be sent 
to all holders of Federal permits issued for the Atlantic bluefish 
fishery.
    In addition, copies of this final rule and guide (i.e., permit 
holder letter) are available from NMFS (see ADDRESSES) and at the 
following Web site: http://www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: March 28, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, 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

0
1. The authority citation for part 648 continues to read as follows:

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


0
2. In Sec.  648.160, paragraph (a) is revised to read as follows:


Sec.  648.160  Catch quotas and other restrictions.

* * * * *
    (a) Annual review. On or before August 15 of each year, the 
Bluefish Monitoring Committee will meet to determine the total 
allowable level of landings (TAL) and other restrictions necessary to 
achieve the appropriate target fishing mortality rate (F) specified in 
the Atlantic Bluefish FMP. In determining the TAL and other 
restrictions necessary to achieve the appropriate F, the Bluefish 
Monitoring Committee will review the following data, subject to 
availability: Commercial, recreational, and research catch data; 
current estimates of fishing mortality; stock status; recent estimates 
of recruitment; virtual population analysis results; levels of 
noncompliance by fishermen or individual States; impact of size/mesh 
regulations; discards; sea sampling data; impact of gear other than 
otter trawls and gill nets on the mortality of bluefish; and any other 
relevant information.
* * * * *
[FR Doc. 2011-7630 Filed 3-30-11; 8:45 am]
BILLING CODE 3510-22-P