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 Department of Commerce National Oceanic and Atmospheric Administration 50 CFR Part 648
[Docket No. 001127331-1044-02; I.D. 102600B]
RIN 0648-AN69
 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
 ACTION: Final rule; specifications for 2001.
 SUMMARY: NMFS issues final specifications for the 2001 fishing year for Atlantic mackerel, squid, and butterfish (MSB). This action also allocates the domestic annual harvest for 
                        *Loligo*
                         squid into quarterly periods.  The intent of this final rule is to conserve and manage the MSB resource in compliance with the Fishery Management Plan for the Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP); the regulations; and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
 DATES: Effective March 2, 2001, except that the quotas for 
                        *Loligo*
                         and 
                        *Illex*
                         squid, Atlantic mackerel, and butterfish 
                        ( print page 13025)
                        are effective March 2, 2001, through December 31, 2001.
 ADDRESSES: Send comments on any ambiguity or unnecessary complexity arising from the language used in this final rule to Patricia A. Kurkul, Regional Administrator, Northeast Region, National Marine Fisheries Service, One Blackburn Drive, Gloucester, MA  01930-2298. Copies of supporting documents, including the Environmental Assessment(EA), Regulatory Impact Review (RIR), Final Regulatory Flexibility Analysis (FRFA) and the Essential Fish Habitat Assessment, are available from Patricia A. Kurkul (see previous address).  The EA/RIR/FRFA is accessible via the Internet at http://www.nero.gov/​ro/​doc/​nr.htm.
 FOR FURTHER INFORMATION CONTACT: Paul H. Jones, Fishery Policy Analyst, 978-281-9273, fax 978-281-9135, e-mail paul.h.jones@noaa.gov.


SUPPLEMENTARY INFORMATION: Regulations implementing the FMP require NMFS to publish annual specifications for maximum optimum yield (Max OY), allowable biological catch (ABC), initial optimum yield (IOY), domestic annual harvest (DAH), domestic annual processing (DAP), joint venture processing (JVP), and total allowable levels of foreign fishing (TALFF) for the species managed under the FMP. Proposed 2001 initial specifications were published on December 5, 2000 (65 FR 75912).  Public comments were requested through January 4, 2001.  The final specifications are unchanged from those that were proposed.  A complete discussion of the specifications appears in the preamble to the proposed rule and is not repeated here. 2001 Final Specifications The following table contains the final specifications for the 2001 MSB fisheries as recommended by the Mid-Atlantic Fishery Management Council (Council). Table 1.  Final Annual Specifications for Atlantic Mackerel, Squid, and Butterfish for the Fishing Year January 1 through December 31, 2001. Metric Tons (mt)
Specifications
Squid
Atlantic Mackerel
ButterfishLoligo
IllexMax OY
26,000
24,000
N/A1
16,000ABC
17,000
24,000
347,000
7,200IOY
17,0006
24,0006
88,0002,6
5,9006DAH
17,000
24,000
85,0003
5,897DAP
17,000
24,000
50,000
5,897JVP
0
0
20,0004
0TALFF
0
0
3,000
351
                         Not applicable.2
                         OY may be increased during the year, but the total ABC will not exceed 347,000 mt3
                         Includes 15,000 mt of Atlantic mackerel recreational allocation.4
                         JVP may be increased up to 30,000 mt at discretion of RA.5
                         Bycatch TALFF specified at § 648.21(b)(3)(ii).6
                         If a 2 percent research set-aside is deducted, the total IOY would be as follows:  Atlantic mackerel - 86,240 mt, 
                        *Loligo*
                        -16,660 mt, 
                        *Illex*
                        - 23,520 mt, and butterfish- 5,782 mt.
 Atlantic Mackerel This final rule specifies an Atlantic mackerel JVP of 20,000 mt for the 2001 fishery, with a possible increase of up to 10,000 mt (for a total JVP of up to 30,000 mt) later in the fishing year, should additional applications for JVP be received.  This adjustment would be made through publication of a notification in the 
                    **Federal Register**
                    .  This action also specifies an Atlantic mackerel DAP of 50,000 mt and a DAH of 85,000 mt, which includes a 15,000-mt recreational component. A TALFF of 3,000 mt is specified for the 2001 Atlantic mackerel fishery.  Several foreign nations have expressed their interest in JVP, with two applications already submitted by Lithuania and the Russian Federation.  A permit would only authorize a foreign vessel to harvest TALFF when U.S. vessels are unable to deliver product to foreign JV catcher/processor vessels for a period of time due to events such as bad weather. When setting TALFF specifications for the 2001 Atlantic mackerel fishery, the Council also recommended conditions and restrictions for JVs and TALFF allocations.  Those recommendations include:  (1) Allowing JVs south of 37°30′ N. lat., but restricting river herring incidental catch to no more than 0.25 percent of the over-the-side transfers of Atlantic mackerel; (2) prohibiting directed foreign fishing for Atlantic mackerel south of 37° 30′ N. lat., prohibiting directed foreign fishing for Atlantic mackerel landward of a line 20 nautical miles from shore north of 37° 30′ N. lat., and specifying no TALFF for river herring; (3) ensuring, through the Administrator, Northeast Region, NMFS (Regional Administrator), that impacts on marine mammals are reduced in the prosecution of the Atlantic mackerel fishery; (4) allowing the mackerel optimum yield (OY) to be increased during the year, provided the total does not exceed 347,000 mt; (5) allowing the review of applications from a particular nation for a Atlantic mackerel JV or TALFF allocation for 2001 to include an evaluation by the Regional Administrator of that nation's performances relative to purchase obligations for previous years; (6) releasing 50 percent of the foreign nation’s TALFF allotment upon approval of an application for TALFF and releasing additional TALFF only when the foreign participant has purchased 25 percent of the JVP allotment to that nation, while specifying no purchase ratios; (7) requiring foreign fishing vessels (FFVs) purchasing JVP-caught fish from contracted U.S. vessels to cease directed fishing and take the transfer from the U.S. vessel as soon as practicable if a FFV engaged in directed fishing is approached by a contracted U.S. vessel; (8) authorizing no in-season adjustment in TALFF (i.e., TALFF not to exceed 3,000 mt), unless the Regional Administrator, in consultation with the Council, determines that it is appropriate to increase IOY to provide additional TALFF, provided the TALFF does not exceed a cap of 5,000 mt; and (9) limiting directed foreign fishing for Atlantic mackerel to the use of mid-water trawl gear.  The Council recommended these conditions and restrictions to strictly control any 
                    ( print page 13026)
                    foreign fishing for TALFF for the benefit of the domestic fishery and in conformance with the FMP.  NMFS will consider these recommendations prior to allocating TALFF. Distribution of Annual 
                    *Loligo*
                     Squid Quota into Four Quarters This final rule specifies a 
                    *Loligo*
                     squid IOY of 17,000 mt, which is equal to ABC, and sub-divides the annual quota into quarterly periods.  The quota is allocated to each period based on the proportion of landings occurring in each corresponding 3-month period from 1994-1998.  The directed 
                    *Loligo*
                     squid fishery will be closed in Quarters I, II, and III when 80 percent of any of those periods’ allocations are harvested, with vessels restricted to a 2,500-lb (1,134 kg) 
                    *Loligo*
                     trip limit until the end of the respective quarter.  Additionally, when 95 percent of the total annual DAH has been harvested, the trip limit will be reduced to 2,500 lb (1,134 kg) of 
                    *Loligo*
                     for the remainder of the year.  When the 2,500-lb (1,134 kg) trip limit has been triggered, vessels will be prohibited from possessing or landing more than 2,500 lb in a single calendar day.  Any quota overages in Quarter I will be deducted from the allocation in Quarter III, and any overage in Quarter II will be deducted from the allocation in Quarter IV.  The quota allocation is shown in Table 2. Table 2.  Loligo Quarterly Allocations.
Quarter
Percent
Metric TonsI   (Jan-Mar)
33.23
5,649II(Apr-Jun)
17.61
2,994III (Jul-Sep)
17.30
2,941IV (Oct-Dec)
31.86
5,416Total
100.00
17,000
 Butterfish Regulations promulgated under Amendment 5 to the FMP eliminated the possibility of JVP or TALFF specifications for butterfish, except for a bycatch TALFF specification if TALFF is specified for Atlantic mackerel.  Because this final rule allows for an Atlantic mackerel TALFF allocation, a 3 mt bycatch TALFF for butterfish has been specified.  If the Regional Administrator, in consultation with of the Council, determines that it is appropriate to increase the specified TALFF of 3,000 mt for Atlantic mackerel, then the specified TALFF of 3 mt for butterfish also will be increased.  The Regional Administrator may increase the TALFF for Atlantic mackerel by up to 2000 mt and may increase the TALFF for butterfish by up to 1 mt (A butterfish TALFF of 4 mt is equal to 0.08 percent of an Atlantic mackerel TALFF of 5000 mt, as described at § 648.21(b)(3)(ii). Comments and Responses Fifty-two comments were received on the proposed specifications from the public during the comment period that ended on January 4, 2001.  Specific comments related to the proposed annual specifications and regulations are discussed and responded to as follows: *Comment*
                     1:  A commenter supported the allocation of Atlantic mackerel JVP and TALFF. *Response*:  This final rule implements the proposed allocation of Atlantic mackerel JVP and TALFF. *Comment*
                     2:  Many commenters did not support the allocation of Atlantic mackerel TALFF.  One commenter stated that commercial and recreational fishers have been unable to harvest even a small percentage of the total allowable landings based on the current assessment of the mackerel fishery, leading fishers to believe that the assessments overestimate the actual stock size by orders of magnitude.  The commenter concluded that NMFS does not have the data to take such a risk of exploiting such a valuable resource.  Another commenter stated that it is unreasonable to encourage direct foreign harvest of mackerel while limiting domestic participation.  The commenter further argued that foreign U.S. mackerel harvested product would compete with U.S. domestic mackerel harvest. *Response*:  The most recent stock assessment for Atlantic mackerel (the 30th Northeast Regional Stock Assessment Workshop, April 2000 (SAW-30)) concluded that the stock is at a high level of biomass and is underexploited.  Current annual landings are considerably below the long-term potential yield estimated to be 150,000 mt.  The SAW-30 management advice stated that the forgone yield is in excess of 100,000 mt and the fishery can be increased substantially.  The Council believes the capacity of the domestic fleet to harvest mackerel greatly exceeds the domestic processors’ capacity to process mackerel.  The question of whether or not to provide an allocation of TALFF, other than zero, was reviewed and discussed by the Council at length before it made a final recommendation.  Allowing a very small level (<1 percent of the ABC) of foreign fishing to take place, primarily to move incrementally toward achieving OY and to provide opportunity to utilize U.S. harvesting capacity by stimulating JVP activity, will have a positive impact on the development of the U.S. Atlantic mackerel fishery in the world market and will not compete with mackerel harvested by U.S. vessels. *Comment*
                     3:  A commenter raised the need for an ecosystem-wide, integrated approach to population assessments, and stated that removal of mackerel by the foreign fleets could dramatically effect the entire ecosystem food chain (whales, cod, haddock, dogfish, and other groundfish) along the east coast of the Atlantic.  The commenter concluded that any surplus of fish not harvested by domestic vessels should be reserved for the ecosystem and those species that depend upon them for food. *Response*:  Ecosystem approaches to fishery assessment and management are desirable, and NMFS is working on such approaches that may prove useful in the future.  However, given the complexity of ecosystem interactions, there is no demonstrative link between mackerel abundance and the survival and recovery of whales, cod, haddock, and other groundfish.  The current population assessment is consistent with the best available scientific information and scientific practices, complies with requirements of applicable law, and is adequate to manage effectively the mackerel fishery. *Comment*
                     4:  A commenter argued that foreign vessels intending to operate under an allocation of TALFF would greatly exceed the restrictions of the law passed by Congress limiting the length, weight, and horsepower of vessels participating in the mackerel fishery. *Response*:  NMFS disagrees.  In the NMFS appropriations bills for fiscal years 1998 and 1999, Congress restricted NMFS from using any of its funds to 
                    ( print page 13027)
                    issue permits or other authorization letters to domestic vessels exceeding the established length, weight, and horsepower limit restrictions.  Current mackerel regulations (§ 648.4(a)(5)(iii)) allow any domestic vessel to obtain a permit to fish for or retain Atlantic mackerel in or from the EEZ, except for vessels that exceed either 165 ft (50.3 m) in length overall and 750 gross registered tons, or a shaft horsepower of 3000.  These restrictions were put into place to manage the harvest capacity of the domestic fleet.  In the case of foreign vessels, the harvest capacity is controlled by the extremely small amount of TALFF allocation, rendering the size limit restrictions immaterial. *Comment*
                     5:  A commenter stated that the allocation of Atlantic mackerel DAP is overestimated, noted that U.S. processors in past years have not attained the DAP levels recommended by the Council, and recommended reducing DAP. *Response*:  NMFS disagrees.  Reducing DAP, which could negatively affect U.S. processing and exports by infringing on markets currently engaged in by domestic processors, goes well beyond any measures discussed and analyzed by the Council.  In order to be considered by NMFS, recommendations to reduce DAP should be made through the Council for its consideration and analysis. Classification This final rule has been determined to be not significant for purposes of Executive Order 12866. NMFS prepared a FRFA for this action.  A copy of the FRFA is available from NMFS (see 
                    **ADDRESSES**
                    ).  A summary of the FRFA follows: A description of the reasons why action by the agency is being taken and the objectives of this final rule are explained in the preamble to the proposed rule and are not repeated here.  This action does not contain any collection-of-information, reporting, recordkeeping, or other compliance requirements.  It does not duplicate, overlap, or conflict with any other Federal rules.  This action is taken under authority of the Magnuson-Stevens Act and regulations at 50 CFR part 648. Fifty-two comments were submitted on the proposed rule, but none of them were specific to the initial regulatory flexibility analysis.  However, 10 commenters responded to the economic impacts of the measures on of fishing industry, and NMFS addressed those comments (1, 2, and 5) in the Comments and Responses section of the preamble to the final rule.  No changes were made to the final rule as a result of these comments received. There are 475 
                    *Loligo*
                     vessels, 77 
                    *Illex*
                     vessels, 443 butterfish vessels, and 1,980 Atlantic mackerel vessels that reported landings during the period 1996-1999 that would likely be impacted by the 2001 specifications.  Many vessels participate in more than one of these fisheries; therefore, the numbers are not additive.  The final 
                    *Illex*, butterfish, and Atlantic mackerel specifications represent no constraint on vessels in these fisheries.  The levels of these specifications have not been achieved by landings for these species in recent years.  Absent a constraint on the fisheries, no impacts on revenues are expected. If the final 2001 DAH specification for 
                    *Loligo*
                     squid is not exceeded, the result would be a decrease in catch and revenue in the 
                    *Loligo*
                     fishery relative to the 1999 landings and an increase from the average landings from 1996-1999 (i.e., if the status quo were maintained) and the 2000 preliminary landings. The first alternative action for Atlantic mackerel would be to set the 2001 specifications at the same level as 2000, with DAP at 50,000 mt and JVP at 10,000 mt.  Although it was rejected as inconsistent with the FMP because it would not meet the policy objectives of the Council relative to further development of the U.S. domestic harvest of Atlantic mackerel, this alternative would place no constraints, and consequently no revenue impacts, on the fishery. The second alternative for mackerel would be to set ABC at the long-term potential catch, or 150,000 mt, with DAP at 50,000 mt and JVP at 20,000 mt.  This alternative was found inconsistent with the FMP because it would not allow for variations and contingencies in the status of the stock.  For example, the current adult stock was recently estimated to exceed 2.1 million mt.  The specification of ABC at LTPC would effectively result in an exploitation rate of only about 6 percent, well below the optimal level of exploitation.  The level of foregone yield under this alternative was considered unacceptable and would not impact the IOY specifications. The third alternative for mackerel would be to lower the specification of IOY to 68,000 mt and eliminate JVP, resulting in a DAP of 50,000 mt.  This alternative would not constrain the fishery and would have no impact on revenues of participants in this fishery. For 
                    *Loligo*, one alternative would be to set the ABC, DAH, DAP, and IOY at 13,000 mt.  This was the same level as 2000 until an inseason adjustment increased the ABC, DAH, DAP, and IOY to 15,000 mt (65 FR 60118, October 10, 2000).  Under the scenario of a 13,000 mt DAH; if that value were not exceeded in 2001, 121 of the 443 impacted vessels would experience revenue reductions of greater than 5 percent.  This would represent a 20.5-percent reduction in 1996-1999 average landings of 16,348 mt.  The remaining 322 vessels would experience less than a 5-percent reduction in revenue or an increase in revenue.  A second alternative would be to set ABC, DAH, DAP, and IOY at 11,700 mt.  This would represent a 28.4-percent reduction in 1996-1999 average landings.  Under this scenario, 161 of the 443 impacted vessels would experience revenue reductions of greater than 5-percent.  The remaining 282 vessels would experience less than a 5-percent reduction in revenue, or an increase in revenue. For 
                    *Illex*, the first alternative would be to set Max OY, ABC, IOY, DAH, and DAP at 30,000 mt, and the second alternative would be to set Max OY at 24,000 mt and ABC, IOY, DAH, and DAP at 19,000 mt, far exceeding recent landings in this fishery.  Therefore, there would be no constraints, and, thus, no revenue reductions, associated with these specifications. Alternatives for butterfish would be a DAH, OY, and Max OY of 16,000 mt, and a DAH and OY of 10,000 mt.  These specifications would not constrain or impact the industry; however, they would lead to overfishing of the stock, and, thus, were rejected by the Council. Because this final rule only establishes either year-long or seasonal quotas for the managed species to be used for the sole purpose of closing the fishery when the quotas are reached and does not establish any requirements for which a regulatory entity must come into compliance, it is unnecessary to delay for 30 days the effective date of this final rule.  Therefore, the Assistant Administrator for Fisheries, NOAA, under 5 U.S.C. 553(d)(3), finds good cause not to delay the effective date of this final rule. NMFS determined that this final rule will be implemented in a manner that is consistent, to the maximum extent practicable, with the approved coastal management programs of Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia and Florida.  Concurrence in consistency was submitted by the responsible state agencies of Massachusetts, Rhode Island, Connecticut, New Jersey (
                    *Loligo*
                     squid, 
                    *Illex*
                     squid, and butterfish), Pennsylvania, Delaware, Virginia, North 
                    ( print page 13028)
                    Carolina, South Carolina, and Georgia.  Because no response was received from Maine, New Hampshire, New York, Maryland, and Florida, state concurrence in consistency is inferred.  New Jersey disagreed with this determination and advocated that the specification of Atlantic mackerel TALFF is inconsistent with the economic protection provisions of its coastal management program relative to employment and financial opportunities for commercial, charter, and party vessels.  NMFS and the Council disagree with New Jersey’s determination.  Allowing a very small level (<1 percent of the ABC) of foreign fishing to take place, primarily to move incrementally toward achieving OY and to provide opportunity to utilize U.S. harvesting capacity by stimulating JV activity, will have a positive impact on the development of the U.S. Atlantic mackerel fishery and will not compete with mackerel harvested by U.S. vessels. The President has directed Federal agencies to use plain language in their communications with the public including regulations.  To comply with this directive, we seek public comment on any ambiguity or unnecessary complexity arising from the language used in this final rule.  Such comments should be sent to the Northeast Regional Administrator (see 
                    **ADDRESSES**
                    ). List of Subjects in 50 CFR Part 648 Fisheries
Fishing
Reporting and recordkeeping requirements
 Dated: February 26, 2001. William T. Hogarth, Acting  Assistant Administrator for Fisheries, 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 (e) is revised to read as follows: § 648.21
 (e) 
                        *Distribution of annual Loligo squid commercial quota*.  (1) Beginning January 1, 2001, a commercial quota will be allocated annually for 
                        *Loligo*
                         squid into quarterly periods, based on the following percentages: Quarter
PercentI-January-March
33.23II-April-June
17.61III-July-September
17.30IV-October-December
31.86
 (2) Beginning January 1, 2001, any overages of commercial quota landed from Quarter I will be subtracted from Quarter III and any overages of commercial quota landed from Quarter II will be subtracted from Quarter IV. 3. In § 648.22, paragraph (a) is revised to read as follows: § 648.22
 (a) 
                        *General*.  NMFS shall close the directed mackerel fishery in the EEZ when U.S. fishermen have harvested 80 percent of the DAH of that fishery if such closure is necessary to prevent the DAH from being exceeded.  The closure shall remain in effect for the remainder of the fishing year, with incidental catches allowed as specified in paragraph (c) of this section, until the entire DAH is attained.  When the Regional Administrator projects that DAH will be attained for mackerel, NMFS will close the mackerel fishery in the EEZ, and the incidental catches specified for mackerel in paragraph (c) of this section will be prohibited.  NMFS will close the directed fishery in the EEZ for 
                        *Loligo*
                         when 80 percent is harvested in Quarters I, II and III, and when 95 percent of the total annual DAH has been harvested.  The closure of the directed fishery will be in effect for the remainder of the fishing year, with incidental catches allowed as specified in paragraph (c) of this section.  NMFS will close the directed fishery in the EEZ for 
                        *Illex*
                         or butterfish when 95 percent of the DAH has been harvested.  The closure of the directed fishery will be in effect for the remainder of the fishing year, with incidental catches allowed as specified in paragraph (c) of this section.


[FR Doc. 01-5133 Filed 3-1-01; 8:45 am] BILLING CODE  3510-22-S