[Federal Register Volume 79, Number 21 (Friday, January 31, 2014)]
[Proposed Rules]
[Pages 5364-5367]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-01896]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 130716623-4062-01]
RIN 0648-BD50


Fisheries of the Northeastern United States; Atlantic Mackerel, 
Squid, and Butterfish Fisheries; Framework Adjustment 8

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

ACTION: Proposed rule, request for comments.

-----------------------------------------------------------------------

SUMMARY: Framework Adjustment 8 (Framework 8) proposes several changes 
to facilitate operation of the butterfish discard cap in the longfin 
squid fishery and the directed butterfish fishery. Framework 8 would 
allocate the butterfish discard cap among trimesters in the same 
percentages used for the trimester allocations for longfin squid: 43 
percent to Trimester I (January to April); 17 percent to Trimester II 
(May to August), and 40 percent to Trimester III (September to 
December). Each trimester would close when it is estimated that 95 
percent of the butterfish discard cap has been taken. In addition, 
Framework 8 would allow NMFS to transfer, in either direction, up to 50 
percent of unused quota between the butterfish landing allocation and 
the discard cap on the longfin squid fishery. This would occur near the 
end of the year in order to optimally utilize the butterfish that is 
available for fishing each year.

DATES: Public comments must be received by March 3, 2014.

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: Dr. Christopher M.

[[Page 5365]]

Moore, Executive Director, Mid-Atlantic Fishery Management Council, 800 
North State Street, Suite 201, Dover, DE 19901, telephone (302) 674-
2331. The EA/RIR/IRFA is also accessible via the Internet at http://www.nero.noaa.gov.
    You may submit comments, identified by NOAA-NMFS-2014-0010, by any 
one of the following methods:
    -- Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0010, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments;
    -- Mail: Submit written comments to NMFS, Northeast Regional 
Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside 
of the envelope ``Comments on Framework 8;''
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Aja Szumylo, Fishery Policy Analyst, 
978- 281-9195, fax 978-281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    NMFS implemented the butterfish mortality cap on the longfin squid 
fishery on January 1, 2011, as part of Amendment 10 to the Atlantic 
Mackerel, Squid, and Butterfish (MSB) Fishery Management Plan (FMP) (75 
FR 11441, March 11, 2010) as a means of reducing fishing mortality on 
the butterfish stock. Framework Adjustment 7 to the MSB FMP (78 FR 
14230, March 5, 2013) changed the butterfish mortality cap on the 
longfin squid fishery from a catch cap to a discard cap to accommodate 
a potential directed fishery for butterfish. Butterfish discards in the 
longfin squid fishery account for the largest source of butterfish 
fishing mortality. If management measures do not control butterfish 
discards in the longfin squid fishery in real time, substantial 
overages of the butterfish annual catch limit (ACL), which includes 
both butterfish landings and discards, could occur. Since NMFS must 
deduct catch in excess of the ACL from the following fishing year's 
ACL, overages in one year could substantially disrupt the directed 
butterfish and longfin squid fisheries the next year. In order to 
minimize the likelihood of a butterfish ACL overage, NMFS tracks 
directed butterfish landings (allocated as the butterfish domestic 
annual harvest or domestic annual harvest (DAH)) in real-time, and NMFS 
reduces the directed trip limit to ensure that the landings quota is 
not exceeded. Similarly, NMFS tracks butterfish discards in the longfin 
squid fishery in real time, and NMFS issues a closure of the longfin 
squid fishery once NMFS projects that the fishery has harvested the 
applicable amount of the butterfish discard cap.
    The butterfish discard cap is currently allocated by trimesters, 
with 65 percent of the cap allocated to Trimester I (January to April); 
3.3 percent to Trimester II (May to August); and 31.7 percent to 
Trimester III (September to December). NMFS can close the directed 
longfin squid fishery when the fishery has harvested: 80 percent of the 
Trimester I cap; 75 percent of the annual cap in Trimester II; or 95 
percent of the annual cap in Trimester III. Butterfish discard cap 
underages and overages from Trimesters I and II currently roll over 
into Trimester III.
    Amendment 10 to the MSB FMP initially allocated a very low amount 
of the cap to Trimester II because, historically, butterfish bycatch in 
the longfin squid fishery during that period was very low. In recent 
years, longfin squid catches in Trimester II have been substantial, and 
if butterfish discards on longfin squid trips are substantial, the 
potential exists for 75 percent of the entire annual cap to be 
harvested in Trimester II alone. This could lead to a variety of 
negative outcomes, including premature closure of the Trimester III 
longfin squid fishery, and/or deductions from future years if the 
fishery exceeds the butterfish ACL.
    In order to address this issue, Framework 8 measures would adjust 
the trimester allocations for the butterfish discard cap and create 
distinct closure thresholds for each trimester. The proposed action 
would set the following initial allocations for the trimesters 
beginning in January 2014: 43 percent to Trimester I; 17 percent to 
Trimester II; and 40 percent to Trimester III. The proposed trimester 
allocation percentages for the butterfish discard cap match the 
trimester allocations for the directed longfin squid fishery. Framework 
8 proposes that each trimester would close when the fishery has 
harvested an estimated 95 percent of the butterfish discard cap.
    Framework 8 would also allow NMFS to transfer unused butterfish 
quota in either direction, between the butterfish DAH and the 
butterfish discard cap on the longfin squid fishery. Prior to November 
each year, NMFS would make a projection regarding the likely 
trajectories of butterfish landings and the butterfish discard cap. If 
the butterfish DAH appears likely to constrain the directed butterfish 
fishery or the butterfish discard cap appears likely to constrain the 
longfin squid fishery, and the other fishery appears unlikely to be 
impacted by a shift in quota, NMFS could transfer up to 50 percent of 
the total butterfish DAH or total butterfish discard cap to optimize 
the use of the overall butterfish quota. NMFS would make this transfer 
on or about November 15 each fishing year, in accordance with the 
Administrative Procedure Act, in order to optimally utilize the 
butterfish that is available for fishing each year.

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 proposed rule is 
consistent with the MSB FMP, other provisions of the Magnuson-Stevens 
Act, and other applicable law, subject to further consideration after 
public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities. A summary of the analysis follows.

Statement of Objective and Need

    This action proposes management measures for the longfin squid and 
butterfish fisheries. A complete description of the reasons why the 
Council and NMFS are considering this action, and the objectives of and 
legal basis for this action, are contained elsewhere in the preamble to 
this proposed rule and are not repeated here.

[[Page 5366]]

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

    Subsequent to Council action related to this proposed rule, the 
Small Business Administration revised its small business size standards 
for several industries in a final rule effective July 22, 2013. The 
rule increased the size standard for Finfish Fishing from $4.0 to 19.0 
million, Shellfish Fishing from $4.0 to 5.0 million, and Other Marine 
Fishing from $4.0 to 7.0 million. NMFS has reviewed the analyses 
prepared for this action in light of the new size standards. While 
longfin squid is technically a shellfish, and would fall under the 
lower shellfish fishing standard of $5.0 million, all entities subject 
to this action were considered small entities under the former, lower 
size standards, thus they all would continue to be considered small 
under the new standards. Thus, all of the approximately 375 vessels 
with limited access butterfish/longfin squid permits would qualify as 
small businesses.
    Having different size standards for different types of marine 
fishing activities creates difficulties in categorizing businesses that 
participate in more than one of these activities. For now, the short-
term approach is to classify a business entity into the SBA defined 
categories based on which activity produced the most gross revenue. In 
this case, it is very likely the revenue from finfishing was greater 
than revenue (if any) from shellfishing and greater than the revenue 
from charter boat fishing. Based on these assumptions, the finfish size 
standard would apply and the business is considered large, only if 
revenues are greater than $19 million. Section 5.6 in the Framework 8 
EA describes the vessels, key ports, and revenue information for the 
longfin squid and butterfish fisheries; therefore, that information is 
not repeated here.
    Although it is possible that some entities, based on rules of 
affiliation, would qualify as large business entities, due to lack of 
reliable ownership affiliation data NMFS cannot apply the business size 
standard at this time. NMFS is currently compiling data on vessel 
ownership that should permit a more refined assessment and 
determination of the number of large and small entities for future 
actions. For this action, since available data are not adequate to 
identify affiliated vessels, each operating unit is considered a small 
entity for purposes of the RFA, and, therefore, there is no 
differential impact between small and large entities. Therefore, there 
are no disproportionate economic impacts on small entities.
    The measures in this action could have some impact on the 
approximately 375 vessels with limited access butterfish/longfin squid 
permits, all of which qualify as small businesses because their gross 
revenues are less than $19 million annually. With a longfin squid price 
of approximately $1,600/mt, the fishery's FY 2012 landings totaled 671 
mt and generated $1.1 million in ex-vessel revenues.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements Minimizing Significant Economic Impacts on Small Entities

    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.

Economic Impact of the Proposed Action Compared to Significant Non-
Selected Alternatives

    The Council conducted a comprehensive evaluation of the potential 
socioeconomic impacts of Framework 8 in the EA (see ADDRESSES), and a 
discussion of this evaluation follows.
    Framework 8 proposes adjusting the trimester allocations for the 
butterfish cap (Trimester I: 43 percent; Trimester II: 17 percent; 
Trimester III: 40 percent), and proposes closing each trimester when it 
is projected that 95 percent of the trimester allocation has been 
harvested (Alternative 2). In addition to the no action alternative 
(Alternative 1), Framework 8 also considered allocating 54 percent of 
the butterfish cap to Trimester I, 10.15 percent to Trimester II, and 
35.85 percent to Trimester III, with 95 percent closure thresholds for 
each trimester (Alternative 3). Similar to the status quo alternative, 
both of the adjusted allocations proposed in the action alternatives 
would allow rollovers of quota not used during trimesters early in the 
year, and would deduct overages from later trimesters when the 
trimester allocations have been exceeded early in the year.
    The alternatives to amend in-season Trimester II closure authority 
would result in positive long-term socioeconomic impacts compared to 
the status quo because they would: (1) Reduce the chance of acceptable 
biological catch (ABC) overages that could reduce long-term butterfish 
productivity; (2) avoid distributional issues in the longfin squid 
fishery that would occur if Trimester II harvested most (75 percent) of 
the butterfish cap; and (3) avoid future disruptions of the fishery if 
the status quo led to an ABC overage that had to be repaid.
    Compared to the status quo, it is possible that either of the 
action alternatives could result in vessel owners losing some squid 
revenues in the short term if NMFS were to close Trimester II earlier 
than it would under the status quo, especially if those revenues are 
not recouped later in the year because squid are unavailable. The 
amount of potential relative losses is not clear because there have 
been no closures at current cap levels on which to base potential 
economic impacts. The longer-term benefits of reducing the likelihood 
of exceeding ABC each year would offset any occasional short-term 
losses of revenue.
    There are distributional issues in the longfin squid fishery that 
would occur if most (75 percent) of the butterfish cap was harvested in 
Trimester II. The disparity of allocation percentages between the 
current butterfish cap and the longfin squid allocation could cause 
unnecessary closures that would be avoided if the allocation 
percentages were the same. Under the status quo, Trimester I receives a 
large percentage of the cap (65 percent), but Trimester II is not 
limited by the cap until 75 percent of the entire annual cap is 
reached. This means that no catch might be available in Trimester III 
if the combined Trimester I and Trimester II usage of the cap nears 75 
percent. The preferred alternative, Alternative 2, would provide 
vessels with the opportunity to maximize their longfin squid catch 
while avoiding closures due to the butterfish cap. Maximized catch with 
no closures would allow for increased and steady revenues for vessels 
and the fishery as a whole.
    To ensure that Trimester III has a reasonable amount of quota, some 
quota must be reallocated from Trimesters I and II. At the same time, 
Trimester II needs to retain a reasonable quota allocation. At current 
cap quota levels, none of the proposed allocations would be expected to 
cause a closure as long as the longfin squid fleet maintains relatively 
low butterfish discard rates. The preferred alternative, Alternative 2, 
was chosen because it aligns the cap allocation with the squid 
allocation. Thus, each longfin squid Trimester is responsible for its 
butterfish cap, and each trimester starts with a butterfish cap that 
matches its longfin squid allocation. This provides good incentive for 
vessels to avoid discarding butterfish each trimester and does not 
penalize vessels fishing in a trimester that had low historical 
butterfish discards by giving it a very low quota. By avoiding

[[Page 5367]]

closures and discouraging discards, Alternative 2 would maximize 
potential revenues for the fishery.
    Among the alternatives, Trimester I has the most cap allocation 
under the status quo, less under Alternative 3, and least under the 
preferred Alternative 2. However, since the offshore fleet fishes in 
Trimesters I and III, and the overall purpose is to ensure that a 
reasonable amount of cap remains for Trimester III, any disadvantage 
from losing cap quota in Trimester I for the offshore fleet may be made 
up by improved access to Trimester III.
    Framework 8 considered two alternatives to shift quota between the 
butterfish cap and butterfish landings: Status quo (Alternative 4) and 
the proposed alternative, which would allow for transfers between these 
two allocations late in the year in order to optimally utilize the 
available butterfish allocation (Alternative 5). The alternative to 
shift quota at the end of the year could facilitate some additional 
butterfish fishing or additional longfin squid fishing compared to the 
status quo, which would have positive economic effects for the 
fisheries. The maximum transfer amount is 50 percent of the original 
quota, i.e., 50 percent of one could be transferred to the other (50 
percent of the landings quota to the cap quota or 50 percent of the cap 
quota to landings). As there has been no directed butterfish fishery in 
the past, it is not possible to predict the exact amount of landings 
this could result in over time, but because the transfer would occur 
near the end of the FY, they would probably be limited. Since the 
transfer would only be in place after November 15, (approximately 12 
percent of the FY) a substantial amount of effort would have already 
taken place earlier in the year, but a transfer could still offer 
additional fishing opportunity compared to the status quo.
    Since the 2013 butterfish landings quota is 2,570 mt, this provides 
a starting point for examining the range of benefits that could accrue 
from a transfer from butterfish landings to the cap. At most, one half 
of the landings quota (1,285 mt) could be transferred. It is possible 
that such a transfer could result in reopening of the longfin fishery 
for the last 6 weeks of the year, or the longfin squid fishery staying 
open when it would have otherwise closed. While the last 6 weeks of the 
year have seen relatively low longfin squid landings recently, late 
season catches in 2004-2007 demonstrate that catches of 1-2 million lb 
(453.6 to 907.1 mt) per week of longfin squid are possible in the last 
six weeks of the year, which could theoretically result in additional 
revenues of approximately $6-$12 million, given recent longfin squid 
prices, though this would likely be the high end of the range.
    With the butterfish cap in 2013 set at 3,884 mt, half of that 
amount would be 1,942 mt which would be the most that could be 
transferred to butterfish landings. It is possible that 1,942 mt of 
butterfish could be landed in 6 weeks, but the price of such landings 
is difficult to determine. In recent years, prices have ranged from 
$1,400--$1,800 per metric ton, which could theoretically mean 
additional revenues of around $3 million dollars, though it is not 
clear that recent prices would be maintained at higher landings levels, 
which would mean that $3 million should be considered the high end of 
possible additional revenues.
    In both of the transfer scenarios, since a transfer would only be 
made if it appears the quota would not be used during the FY, there are 
no opportunity costs associated with the transfer in terms of other 
fishery operations.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: January 24, 2014.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be 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.  648.22, paragraphs (b)(3)(vi) and (vii) are revised to read 
as follows:


Sec.  648.22  Atlantic mackerel, squid, and butterfish specifications.

* * * * *
    (b) * * *
    (3) * * *
    (vi) The butterfish mortality cap will be based on a portion of the 
ACT (set annually during specifications) and the specified cap amount 
will be allocated to the longfin squid fishery as follows: Trimester 
I--43 percent; Trimester II--17 percent; and Trimester III--40 percent.
    (vii) Any underages of the cap for Trimester I that are greater 
than 25 percent of the Trimester I cap will be reallocated to Trimester 
II and III (split equally between both trimesters) of the same year. 
The reallocation of the cap from Trimester I to Trimester II is 
limited, such that the Trimester II cap may only be increased by 50 
percent; the remaining portion of the underage will be reallocated to 
Trimester III. Any underages of the cap 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 the cap for Trimesters I and II 
will be subtracted from Trimester III of the same year.
* * * * *
0
3. In Sec.  648.24, paragraph (c)(3) is revised and paragraph (c)(5) is 
added to read as follows:


Sec.  648.24  Fishery closures and accountability measures.

* * * * *
    (c) * * *
    (3) Butterfish mortality cap on the longfin squid fishery. NMFS 
shall close the directed fishery in the EEZ for longfin squid when the 
Regional Administrator projects that 95 percent of each Trimester's 
butterfish mortality cap allocation has been harvested.
* * * * *
    (5) Butterfish allocation transfer. NMFS may transfer up to 50 
percent of any unused butterfish allocation from the butterfish DAH to 
the butterfish mortality cap on the longfin squid fishery if the 
butterfish catch in the longfin squid fishery is likely to result in a 
closure of the longfin squid fishery, and provided the transfer does 
not increase the likelihood of closing the directed butterfish fishery. 
NMFS may instead transfer up to 50 percent of the unused butterfish 
catch from the butterfish mortality cap allocation to the butterfish 
DAH if harvest of butterfish in the directed butterfish fishery is 
likely to exceed the butterfish DAH, and provided the transfer of 
butterfish allocation from the butterfish mortality cap allocation does 
not increase the likelihood of closing the longfin squid fishery due to 
harvest of the butterfish mortality cap. NMFS would make this transfer 
on or about November 15 each fishing year, in accordance with the 
Administrative Procedure Act.
* * * * *
[FR Doc. 2014-01896 Filed 1-30-14; 8:45 am]
BILLING CODE 3510-22-P