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 Department of Commerce National Oceanic and Atmospheric Administration 50 CFR Part 648
[Docket No. 0907301206-0032-02]
RIN 0648-AY13
 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
 ACTION: Final rule.
 SUMMARY: This action implements 2010 specifications and management measures for Atlantic mackerel, squid, and butterfish (MSB). Specifically, this action maintains quotas for Atlantic mackerel (mackerel), 
                        *Illex*
                         squid (
                        *Illex*), 
                        *Loligo*
                         squid (
                        *Loligo*), and butterfish at the same levels as 2009. This action also modifies accounting procedures for underages of Trimester 1 quotas in the 
                        *Loligo*
                         fishery so that Trimester 1 quota underages that are greater than 25 percent of the Trimester 1 quota will be allocated equally to Trimesters 2 and 3, and underages that are less than 25 percent of the Trimester 1 quota will be allocated to Trimester 3. Additionally, this action will increase the minimum mesh size requirement for codend covers in the 
                        *Loligo*
                         fishery from 4.5 inches (11.43 cm) to 5 inches (12.7 cm). These specifications and management measures promote the utilization and conservation of the MSB resource.
 DATES: Effective March 5, 2010, except for the amendment to § 648.23(a)(3)(i), which is effective August 3, 2010.
 ADDRESSES: Copies of supporting documents used by the Mid-Atlantic Fishery Management Council (Council), including the Environmental Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are available from: Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 19904-6790. The EA/RIR/IRFA is accessible via the Internet at 
                        *http://www.nero.noaa.gov.*
                         NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), which is contained in the classification section of the rule. Copies of the FRFA and the Small Entity Compliance Guide are available from: Patricia Kurkul, Regional Administrator, National Marine Fisheries Service, Northeast Region, 55 Great Republic Drive, Gloucester, MA 01930-2276, or via the Internet at 
                        *http://www.nero.noaa.gov.*
 FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy Analyst, 978-281-9272, fax 978-281-9135.


SUPPLEMENTARY INFORMATION:  Background Regulations implementing the Fishery Management Plan for the Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP) appear at 50 CFR part 648, subpart B. Regulations governing foreign fishing appear at 50 CFR part 600, subpart F. These regulations at § 648.21 and § 600.516(c), require that NMFS, based on the maximum optimum yield (Max OY) of each fishery as established by the regulations, annually publish a proposed rule specifying the amounts of the initial optimum yield (IOY), allowable biological catch (ABC), domestic annual harvest (DAH), and domestic annual processing (DAP), as well as, where applicable, the amounts for total allowable level of foreign fishing (TALFF) and joint venture processing (JVP) for the affected species managed under the FMP. In addition, these regulations allow specifications to be specified for up to 3 years, subject to annual review. The regulations at § 648.21 also specify that IOY for squid is equal to the combination of research quota (RQ) and DAH, with no TALFF specified for squid. For butterfish, the regulations specify that a butterfish bycatch TALFF will be specified only if TALFF is specified for mackerel. At its June 9-11, 2009, meeting in New York, NY, the Mid-Atlantic Fishery Management Council (Council) recommended 2010 MSB specifications. The recommended specifications for mackerel, 
                    *Illex, Loligo,*
                     and butterfish are the same as those implemented in 2009. For 
                    *Loligo,*
                     the Council recommended a modification in accounting Trimester 1 quota underages. The Council also recommended increasing the minimum mesh size requirement for codend covers in the 
                    *Loligo*
                     fishery. The Council submitted these recommendations, along with the required analyses, for agency review on August 10, 2009. A proposed rule for the 2010 MSB specifications and management measures was published on November 12, 2009 (74 FR 58234), and the public comment period for the proposed rule ended on December 14, 2009. Details concerning the Council's development of these measures were presented in the preamble of the proposed rule and are not repeated here. Final MSB Specifications and Management Measures for the 2010 Fishing Year This action implements the following MSB specifications and management measures for the 2010 fishing year, which are described in detail below. Table 1—Final Specifications, in Metric Tons (mt), for Atlantic Mackerel, Squid, and Butterfish for 2010 Fishing Year
Specifications
*Loligo*
*Illex*
Mackerel
ButterfishMax OY
32,000
24,000
N/A
12,175( print page 5538)ABC
19,000
24,000
156,000
1,500IOY 3
1
                             18,667
24,000
2
                             115,000
3
                             485DAH
18,667
24,000
4
                             115,000
485DAP
18,667
24,000
100,000
485JVP
0
0
0
0TALFF
0
0
0
01
                         Excludes 333 mt for Research Set-Aside (RSA).2
                         IOY may be increased during the year, but the total ABC will not exceed 156,000 mt.3
                         Includes a 15,000 mt catch of Atlantic mackerel by the recreational fishery.4
                         Excludes 15 mt for RSA.
 Atlantic Mackerel This action specifies the mackerel ABC at 156,000 mt, based on the formula ABC = T − C. T is the yield (211,000 mt) associated with a fishing mortality rate (F) that is equal to the target F (F = 0.12); C is the estimated catch of mackerel in Canadian waters (55,000 mt) for the upcoming fishing year. Thus, 211,000 mt minus 55,000 mt results in the 2010 mackerel ABC of 156,000 mt. This action also specifies the mackerel IOY at 115,000 mt, a level that can be fully harvested by the domestic fleet, thereby precluding the specification of TALFF while allowing the U.S. mackerel industry to expand. Because the harvesting ability and processing capacity exists, it is reasonable to assume that the commercial fishery will harvest 100,000 mt of mackerel. Therefore, this action specifies the mackerel DAH at 115,000 mt, which is the commercial harvest plus the 15,000 mt anticipated to be harvested by the recreational fishery. Because IOY = DAH, this specification is consistent with the Council's recommendation that the level of IOY should not provide for TALFF. This action specifies the mackerel DAP at 100,000 mt and the mackerel JVP at zero. For the past 6 years, the Council has recommended zero JVP because the surplus between DAH and DAP has been declining as U.S. shoreside processing capacity for mackerel has expanded. The Council also heard from the industry that the availability (i.e., size, distribution, and abundance) of mackerel to the fishery, rather than processing capacity, has curtailed catch in recent years. Based on this information, the Council concluded, and NMFS concurs, that processing capacity is no longer a limiting factor relative to domestic production of mackerel. Consequently, if U.S. harvesters land mackerel in excess of 100,000 mt, and should the IOY be adjusted upward, U.S. processors have the capacity and intent to process it. Inseason Adjustment of the Mackerel IOY Regulations at § 648.21(e) provide that specifications may be adjusted inseason during the fishing year by the NMFS Northeast Regional Administrator (Regional Administrator), in consultation with the Council, by publishing a notice in the 
                    **Federal Register**
                     and providing a 30-day public comment period. In 2010, as in 2009, NMFS's Northeast Fishery Statistic Office will summarize mackerel landings from dealer reports on a weekly basis and post this information on the Northeast Regional Office Web site (
                    *http://www.nero.noaa.gov/​*). NMFS staff will closely monitor these landings and industry trends to determine if an inseason adjustment is necessary. If, using landings projections and all other available information, the Regional Administrator determines that 70 percent of the Atlantic mackerel IOY will be landed during the 2010 fishing year, the Regional Administrator will make available additional quota for a total IOY of 156,000 mt of Atlantic mackerel for harvest during 2010. Additionally, if an inseason adjustment of the IOY is warranted, the Regional Administrator will notify the Council and the inseason adjustment will be published in the 
                    **Federal Register.** Atlantic Squids Loligo This action specifies the 
                    *Loligo*
                     Max OY at 32,000 mt and the ABC, IOY, DAH, DAP at 19,000 mt. This is consistent with proxies for 
                    *Loligo*
                     target and threshold fishing mortality rates, FTarget
                     and FThreshold,
                     which were revised through Amendment 9 to the FMP (Amendment 9) (73 FR 37382, July 1, 2008) to reflect the analytical advice provided by the most recent 
                    *Loligo*
                     stock assessment review committee (SARC 34). The FMP does not authorize the specification of JVP and TALFF for the 
                    *Loligo*
                     fishery because of the domestic industry's capacity to harvest and process the OY for this fishery; therefore, there will be no JVP or TALFF in 2010. Distribution of the 
                    *Loligo*
                     DAH As was done in 2007 to 2009, this action allocates the 2010 
                    *Loligo*
                     DAH into trimesters, consistent with the Council's recommendation. The trimester allocations for 2010 are as follows: Table 2—Trimester Allocation of Loligo Quota in 2010
Trimester
Percent
Metric tons 1I (Jan-Apr)
43
8,027II (May-Aug)
17
3,173III (Sep-Dec)
40
7,467Total
100
18,6671
                         Trimester allocations after 333 mt RQ deduction.
 This action will split the distribution of Trimester I underages evenly between Trimester II and III if the underage is greater than 25 percent of the Trimester I quota. All other underages or overages will be applied to Trimester III. This method of underage distribution will prevent an underharvest of the annual quota, and distribute unharvested quota evenly throughout the year. Announcements of quota adjustments may be delayed up to 2 months after Trimester I ends due to inherent data processing time lag and late dealer reporting in the dealer reporting program. Changes to 
                    *Loligo*
                     Codend Mesh Size Requirements This action will increase the “net strengthener”/”codend cover” minimum mesh requirement from 4.5 inches (11.3 cm) to 5 inches (12.7 cm) (inside stretch measurement), consistent with the codend mesh size requirement currently 
                    ( print page 5539)
                    required in another Mid-Atlantic fishery (scup). This increase should reduce bycatch of small squid and finfish in the 
                    *Loligo*
                     fishery. Illex This action specifies the 
                    *Illex*
                     Max OY, IOY, ABC, and DAH at 24,000 mt. The FMP does not authorize the specification of JVP or TALFF for the 
                    *Illex*
                     fishery because of the domestic fishing industry's capacity to harvest and to process the IOY from this fishery. Butterfish The status of the butterfish stock was most recently assessed in late 2004. That assessment concluded that, while overfishing of the stock is not occurring, the stock is overfished. Based on this information, the Council was notified by NMFS on February 11, 2005, that the butterfish stock was designated as overfished, pursuant to the requirements of section 304(e) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Council developed a rebuilding plan for the butterfish stock in Amendment 10 to the FMP (Amendment 10), which was approved October 7, 2009. A stock assessment was conducted in late 2009, but the results are not yet available. The Council recommended that the quota be restricted to recent landings levels to prevent an expansion of the fishery and to protect the rebuilding stocks. Therefore, in 2010, as implemented in 2009, this action sets the Max OY at 12,175 mt; the ABC at 1,500 mt; and the IOY, DAH, and DAP at 500 mt. Harvest at these levels should prevent overfishing of the butterfish stock in 2010. Additionally, consistent with MSB regulations, the Council recommended, and this action is specifying, zero TALFF for butterfish in 2010 because zero TALFF is specified for mackerel. Comments and Responses *Comment:*
                     One comment letter was received that indicated that quotas for all four species should be cut in half, and that overfishing is occurring. *Response:*
                     The most recent stock assessments for these species indicate that overfishing is not occurring for any of them, and that butterfish is the only species managed under the MSB Fishery Management Plan (FMP) that is overfished. This action specifies that the butterfish quota will remain at the reduced level of 500 mt in 2010 in order to curtail a directed butterfish fishery consistent with the rebuilding program for butterfish established by Amendment 10 to the MSB FMP. Classification Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this rule is consistent with the Atlantic Mackerel, Squid, and Butterfish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law. This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866 (E.O. 12866). NMFS, pursuant to section 604 of the Regulatory Flexibility Act, has prepared a final regulatory flexibility analysis (FRFA), included in this final rule, in support of the 2009 MSB 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 summarized in the IRFA, a summary of the significant issues raised by the public, and a summary of analyses prepared to support the action (i.e., the EA and the RIR). The contents of these documents are not repeated in detail here. A copy of the IRFA, the RIR, and the EA are available upon request (see 
                    **ADDRESSES**
                    ). A complete description of the reasons why this action is being considered, and the objectives of and legal basis for this action, is contained in the preamble to the proposed and final rules and is not repeated here. Statement of Need for This Action This action specifies 2010 specifications and management measures for MSB fisheries and modifies existing management measures to improve the management of MSB fisheries. A Summary of the Significant Issues Raised by the Public Comments in Response to the IRFA, a Summary of the Assessment of the Agency of Such Issues, and a Statement of Any Changes Made in the Final Rule as a Result of Such Comments NMFS received one comment letter, but it was not related to the IRFA or the general economic effects of the proposed action. Description and Estimate of Number of Small Entities to Which the Rule Will Apply Based on permit data for 2008, the numbers of potential fishing vessels in the 2010 fisheries are as follows: 371 for 
                    *Loligo*
                    /butterfish, 77 for 
                    *Illex,*
                     2,342 for mackerel, and 2,193 vessels with incidental catch permits for squid/butterfish. There are no large entities participating in this fishery, as defined in section 601 of the RFA. 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. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements This action does not contain any new collection-of-information, reporting, recordkeeping, or other compliance requirements. It does not duplicate, overlap, or conflict with any other Federal rules. Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the Stated Objectives of Applicable Statutes, Including a Statement of the Factual, Policy, and Legal Reasons for Selecting the Alternative Adopted in the Final Rule and Why Each One of the Other Significant Alternatives to the Rule Considered by the Agency Which Affect the Impact on Small Entities Was Rejected Actions Implemented With the Final Rule The mackerel IOY specified in this action (115,000 mt, with 15,000 mt allocated to recreational catch) represents status quo, as compared to 2009, and is no constraint to vessels relative to the landings in recent years. Mackerel landings for 2004-2006 averaged 51,836 mt. Landings in 2007 were 25,547 mt, and landings in 2008 were 21,749 mt. This action also allows for an inseason adjustment, which would increase the IOY up to the ABC (156,000 mt), if landings approach the IOY early in the fishing year. Therefore, no reductions in revenues for the mackerel fishery are expected as a result of this action. The 
                    *Loligo*
                     IOY (19,000 mt) specified in this action represents the status quo compared to the 2009. No reductions in revenues for the 
                    *Loligo*
                     fishery are expected as a result of this action. The accounting methods for 
                    *Loligo*
                     trimester underages implemented in this action will distribute any substantial underage in Trimester I (greater than 25 percent of the Trimester I quota) evenly over the rest of the year. This method of transferring quota over to Trimester II from Trimester I may provide some economic benefits to this fishery compared to how the fishery was prosecuted under the 2008 and 2009 specifications.
                    ( print page 5540) This action also increases the required minimum codend cover mesh size from 4.5 inches (11.3 cm) to 5.0 inches (12.7 cm) in the 
                    *Loligo*
                     fishery. This mesh size increase is not expected to have a significant impact on landings since most of the selectivity occurs in the codend liner. Most vessels are equipped with nets meeting or exceeding the proposed codend minimum mesh size, so no negative impacts on revenues in this fishery are expected as a result of this action. The 
                    *Illex*
                     IOY (24,000 mt) specified in this action represents status quo as compared to 2009. Implementation of this action would not result in a reduction in revenue or a constraint on expansion of the fishery in 2010. The butterfish IOY specified in this action (500 mt) represents status quo, as compared to 2009, and represents only a minimal constraint to vessels relative to the landings in recent years. Due to market conditions, there has not been a directed butterfish fishery in recent years; therefore, recent landings have been low. Given the lack of a directed butterfish fishery and low butterfish landings, this action is not expected to reduce revenues in this fishery more than minimally. Alternatives to the Actions in the Final Rule The Council analysis evaluated two alternatives for mackerel. The first alternative would have set the ABC at 56,000 mt, IOY at 56,000 mt, and the second alternative would have set the ABC at 186,000 mt, IOY at 115,000 mt. Based on recent harvest levels, neither of the ABC and IOY alternatives represents a constraint on vessels in this fishery. However, the ABC of 56,000 mt in the first alternative could result in foregone revenue if mackerel is available to the fishery. For 
                    *Loligo,*
                     alternatives to this action would have set the Max OY at 32,000 mt and ABC, IOY, DAH, and DAP at 19,000 mt. The alternatives differed from this action in how Trimester underages and overages were applied to the following Trimester quotas. The first alternative is the status quo, and would have continued to transfer Trimester I and II overages or underages to Trimester III. The second alternative would make the full amount of a Trimester I underage available to Trimester II. This action distributes any substantial underage in Trimester I (greater than 25 percent of the Trimester I quota) evenly over the rest of the year, which may positively impact 
                    *Loligo*
                     stocks, and prevent an underharvest of the annual quota. For 
                    *Illex,*
                     one alternative was considered, which would have set the ABC, IOY, DAH, and DAP at 19,000 mt rather than 24,000 mt. This quota was used between 1997 and 1999, and was associated with the SAW 21 stock assessment from 1996. However, this alternative would still allow harvest in excess of recent landings in this fishery. For butterfish, two alternatives were considered. The first would have set Max OY at 12,175 mt; ABC at 4,525 mt; and IOY, DAH, and DAP 1,861 mt; which is equivalent to the 2005-2007 specifications. The second alternative would have set Max OY at 12,175 mt; ABC at 9,131 mt; and IOY, DAH, and DAP at 3,044 mt. The amounts in this alternative represent the specifications that would result from the application of the F target control rule if the butterfish stock was declared rebuilt, and was included due to the potential for rapid rebuilding in the butterfish stock. However, this alternative would likely result in overfishing and the additional depletion of the spawning stock biomass of an overfished species. None of these alternatives represent a constraint on vessels in this fishery or would reduce revenues in the fishery. 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 was prepared. The guide will be sent to all holders of permits issued for the MSB fisheries. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from the Regional Administrator and are also available from NMFS, Northeast Region (see 
                    **ADDRESSES**
                    ). List of Subjects in 50 CFR Part 648 Fisheries
Fishing
Recordkeeping and reporting requirements
 Dated: January 28, 2010. 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
 1.The authority citation for part 648 continues to read as follows: Authority:
                        16 U.S.C. 1801 
                            *et seq.* 2.In § 648.21, paragraph (f)(2) is revised to read as follows: § 648.21
 
 (f)  * * * (2) Any underages of commercial period quota for Trimester I that are greater than 25 percent of the Trimester I quota will be divided in half, with one portion applied to Trimester II, and one portion applied to Trimester III of the same year. Any underages of commercial period quota for Trimester I that are less than 25 percent of the Trimester I quota will be applied to Trimester III of the same year. Any overages of commercial quota for Trimesters I and II will be subtracted from Trimester III of the same year. 
 3.In § 648.22, paragraph (a)(2)(i) is added, and paragraph (a)(2)(ii) is added and reserved to read as follows: § 648.22
  (a)  * * * (2)  * * * (i) If the Regional Administrator determines that the Trimester I closure threshold has been underharvested by 25 percent or more, then the amount of the underharvest shall be reallocated to Trimester II and Trimester III in equal amounts, through notice in the 
                            **Federal Register.** (ii) [Reserved]
 4.In § 648.23, paragraph (a)(3)(i) is revised to read as follows: § 648.23
  (a)  * * * (3)  * * * (i) 
                            *Net obstruction or constriction.*
                             Owners or operators of otter trawl vessels fishing for and/or possessing 
                            *Loligo*
                             shall not use any device, gear, or material, including, but not limited to, nets, net strengtheners, ropes, lines, or chafing gear, on the top of the regulated portion of a trawl net that results in an effective mesh opening of less than 17/8 inches (48 mm) diamond mesh, inside stretch measure. “Top of the regulated portion of the net” means the 50 percent of the entire regulated portion of the net that would not be in contact with the ocean bottom if, during a tow, the regulated portion of the net were laid flat on the ocean floor. However, owners 
                            ( print page 5541)
                            or operators of otter trawl vessels fishing for and/or possessing 
                            *Loligo*
                             may use net strengtheners (covers), splitting straps, and/or bull ropes or wire around the entire circumference of the codend, provided they do not have a mesh opening of less than 5 inches (12.7 cm) diamond mesh, inside stretch measure. For the purpose of this requirement, head ropes are not to be considered part of the top of the regulated portion of a trawl net.


[FR Doc. 2010-2282 Filed 2-2-10; 8:45 am] BILLING CODE 3510-22-P