[Federal Register Volume 77, Number 166 (Monday, August 27, 2012)]
[Rules and Regulations]
[Pages 51858-51865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21060]

[[Page 51858]]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 110707371-2346-03]
RIN 0648-BB28

Fisheries of the Northeastern United States; Atlantic Mackerel, 
Squid, and Butterfish Fisheries; Specifications and Management Measures

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

ACTION: Final rule.


SUMMARY: NMFS is implementing final 2012 specifications and management 
measures for the butterfish fishery, which is managed as part of the 
Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. This 
action requires a 3-inch (76-mm) minimum codend mesh size in order to 
possess more than 2,000 lb (0.9 mt) of butterfish (up from 1,000 lb 
(0.45mt)). These specifications and management measures promote the 
utilization and conservation of the butterfish resource.

DATES: Effective on August 24, 2012.

ADDRESSES: Copies of the 2012 specifications document, including the 
Environmental Assessment (EA), is available from John K. Bullard, 
Northeast Regional Administrator, National Marine Fisheries Service, 55 
Great Republic Drive, Gloucester, MA 01930. This document is also 
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 this rule. Copies of the FRFA and the 
Small Entity Compliance Guide are available from: Daniel S. Morris, 
Acting 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: Aja Szumylo, Fishery Policy Analyst, 
978-281-9195, fax 978-281-9135.



    On October 26, 2011, NMFS published a proposed rule (76 FR 66260) 
that included the Mid-Atlantic Fishery Management Council's (Council) 
preferred butterfish specifications. Though an overfishing limit (OFL) 
was not able to be established for butterfish based on the most recent 
butterfish assessment, the Council's preferred specifications would 
have doubled the butterfish acceptable biological catch (ABC) for 
fishing year 2012 over the status quo level (to 3,622 mt). A public 
comment on the proposed rule submitted by the Herring Alliance, an 
environmental group that represents 52 organizations concerned about 
the status of the Atlantic coast's forage fish, accurately stated that 
the proposed increase to the butterfish ABC is prohibited by the 
Council's former risk policy. That policy, at 50 CFR 648.21(d), states: 
``If an OFL cannot be determined from the stock assessment, or if a 
proxy is not provided by the Scientific and Statistical Committee (SSC) 
during the ABC recommendation process, ABC levels may not be increased 
until such time that an OFL has been identified.'' To remedy this 
situation, NMFS published an interim final rule for butterfish 
specifications (March 21, 2012; 77 FR 16472) that temporarily 
reinstated the status quo butterfish specifications (1,811 mt ABC; 
1,630 mt ACT; 500 mt domestic annual harvest (DAH) and domestic annual 
processing (DAP); 1,436 mt butterfish mortality cap) and allowed for 
public comment.
    The interim final rule was published to address the procedural 
impediment to finalizing the original proposed butterfish specification 
identified in the comment noted above. This action finalizes the 
interim rule. Because NMFS already proposed the specifications and 
management measures contained in this final rule at the initial 
proposed rule stage, and the public already had an opportunity to 
comment on the proposed specifications (October 26, 2011; 76 FR 66260), 
there is no need to re-propose these final specifications. NMFS used 
the interim final rule to accept comments on the lower specification, 
but also responded to comments on the higher proposed specification in 
the interim final rule (March 21, 2012; 77 FR 16472). Comments on the 
interim final rule are addressed in the Comments and Responses section 
of this rule.
    Since the publication of the interim final rule for butterfish 
specifications, the Council recommended, and NMFS has approved, 
Framework Adjustment 6 (Framework 6) to the Atlantic Mackerel, Squid, 
and Butterfish Fishery Management Plan. Framework 6 adjusts the 
Council's risk policy to allow the SSC to propose ABC increases for 
stocks that have stable or increasing trends in abundance, and for 
which there is robust scientific information to suggest that an 
increased ABC will not lead to overfishing. In accordance with the 
adjustments in Framework 6, the SSC reaffirmed its original 2012 
butterfish ABC recommendation of 3,622 mt (initially recommended at the 
SSC's May 2011 meeting to recommend 2012 butterfish specifications) at 
its May 2012 meeting.
    Following the SSC's reaffirmation of the 2012 butterfish 
specifications, the Council reaffirmed its original suite of 
recommended specifications at its June 2012 meeting. Therefore, this 
action now sets butterfish specifications in accordance with the 
Council's original recommendation for the remainder of the 2012 fishing 
year (until December 31, 2012). The butterfish ABC and ACL are 
specified at 3,622 mt, and the ACL is specified at 3,260 mt (reduced 10 
percent from ACL). This action allocates \2/3\ of butterfish catch 
(based on the 1999-2008 average) as discards, and maintains the 
allocation of 15 mt for Research Set-Aside (RSA) specified in the 
interim final butterfish specifications (March 21, 2012; 77 FR 16472), 
which results in a DAH and DAP of 1,072 mt (3,260 mt minus 2,173 mt 
discards minus 15 mt RSA). The total allowable level of foreign fishing 
(TALFF) for butterfish is only specified to address bycatch by foreign 
fleets targeting mackerel TALFF. Because there was no mackerel TALFF 
specified in the final 2012 specifications for mackerel, butterfish 
TALFF is also set at zero.

 Table 1--Final Specifications, in Metric Tons (mt), for Butterfish for
                          the 2012 Fishing Year
              Specifications                         Butterfish
OFL......................................  Unknown.
ABC......................................  3,622.
ACL......................................  3,622.
ACT......................................  3,260.
RSA......................................  15.
DAH/DAP..................................  1,072.
JVP......................................  0.
TALFF....................................  0.
Butterfish Mortality Cap.................  2,445.

    The butterfish mortality cap in the longfin squid fishery is 
specified at 2,445 mt (75 percent of 3,260 mt). If the butterfish 
mortality cap is harvested during Trimester I (January-April) or 
Trimester III (September-December), the directed longfin squid fishery 
will close for the remainder of that trimester.
    The 2012 butterfish mortality cap is allocated by Trimester as 

[[Page 51859]]

Table 2--Trimester Allocation of Butterfish Mortality Cap on the Longfin
                         Squid Fishery for 2012
                  Trimester                     Percent     Metric tons
I (Jan-Apr)..................................         65        1,589.25
II (May-Aug).................................        3.3           80.69
III (Sep-Dec)................................       31.7          775.06
    Total....................................        100           2,445

    Finally, this action implements a 3-inch (76-mm) minimum codend 
mesh size requirement for vessels possessing 2,000 lb (0.9 mt) or more 
of butterfish (up from 1,000 lb (0.45 mt) in 2011), in order to allow 
more butterfish that otherwise would have been discarded to be landed.
    In its reaffirmation of its recommended 2012 butterfish ABC of 
3,622 mt, the SSC also noted that the rationale for the 2013 butterfish 
ABC recommendation provides additional support for its 2012 butterfish 
ABC recommendation. The SSC's final butterfish ABC recommendation for 
2013 is 8,400 mt, based on an OFL proxy of 16,800 mt. A detailed 
summary of the SSC's rationale for its 2013 butterfish ABC 
recommendation is available in its May 2012 Report (available, along 
with other materials from the SSC discussion, at: http://www.mafmc.org/meeting_materials/SSC/2012-05/SSC_2012_05.htm), and will be 
discussed in the documentation for the 2013 MSB specifications 
recommendations. It is summarized below because of its relevance to the 
SSC's reaffirmation of its 2012 butterfish ABC recommendation.
    Because of the uncertainty in the most recent butterfish stock 
assessment, on April 6, 2012, the Council requested that NMFS Northeast 
Fisheries Science Center (NEFSC) offer additional analysis of the 
butterfish stock to aid the SSC in the ABC setting process for the 2013 
fishing year. The NEFSC analysis (May 2, 2012, also available with the 
SSC meeting report) applied ranges of a number of different factors 
(such as natural mortality and survey catchability) to develop a range 
of likely stock biomasses that would be consistent with recent survey 
results and observed butterfish catch. The NEFSC also examined a range 
of fishing mortalities that would result from these biomass estimates. 
The SSC used the NEFSC analysis, along with guidance (Patterson, 1992) 
that suggests maintaining a natural mortality/fishing mortality ratio 
of 67 percent for small pelagic species, to develop a proxy OFL for 
butterfish. Consistent with the 2010 butterfish assessment, the SSC 
assumed a high level of natural morality (M = 0.8) and applied the 67-
percent ratio to result in a fishing mortality of F = 0.536, which the 
SSC used as a proxy maximum fishing mortality rate threshold for 
butterfish. In the NEFSC analysis, a catch of 16,800 mt would only lead 
to fishing mortality rates higher than F = 0.536 (i.e., rates 
consistent with overfishing based on the maximum fishing mortality rate 
threshold proxy) under very extreme assumptions. The SSC therefore 
adopted 16,800 mt as a proxy OFL.
    The SSC buffered the proxy OFL by 50 percent to reach the 
butterfish ABC of 8,400 mt. Its justification for this buffer noted 
that the short life history of butterfish gives limited time for 
management to respond to adverse patterns, that recruitment of 
butterfish is highly variable and uncertain, that the stock status of 
butterfish is unknown, and that butterfish are susceptible to 
environmental and ecosystem variability, in particular inter-annual 
variability in natural mortality.

Comments and Responses

    Five comments were submitted on the interim final butterfish 
specifications from: Seafreeze, Ltd. (Seafreeze), a frozen seafood 
producer based in Rhode Island; Dr. Joel Jay Sohn, a research associate 
at Harvard University; the Garden State Seafood Association (GSSA), an 
industry group representing members of the commercial fishing industry 
in New Jersey; the Herring Alliance, which represents 52 organizations 
concerned about the status of the Atlantic Coast's forage fish; and one 
member of the public.

Comments on the Specifications

    Comment 1: Seafreeze noted that NMFS stated in the request for 
comments that all comments received are part of the public record and 
will generally be posted in the Federal Register without change. It 
noted that this had not been done for the comments received on either 
2011 or 2012 MSB specifications, and speculated that this may be 
because NMFS did not want the public to see the comments. They also 
stated that we did not fully answer their comments.
    Response: NMFS' requests for comment state that comments are part 
of the public record and will generally be posted to http://www.regulations.gov, not the Federal Register, without change. This was 
done for the Seafreeze comments on both the 2011 and 2012 
specifications. It is never our practice to reprint full comment 
letters in the Federal Register. NMFS has not, and does not, ``hide'' 
comments from the public. The commenter's submission focused primarily 
on the merits of the two most recent butterfish stock assessments. As 
noted below, comments on the merits of stock assessments are not 
generally addressed in the response to comment.
    Comment 2: GSSA maintained its support for the Council's original 
butterfish specification recommendation (ABC = 3,622 mt; ACT = 3,260 
mt; DAH and DAP = 1,087 mt; butterfish cap = 2,445 mt). It noted that 
recent trawl survey information, and information from the 49th Stock 
Assessment Workshop (SAW 49), suggest that fishing mortality is low, 
and therefore support the increase.
    Response: This action implements the Council's original preferred 
    Comment 3: The Herring Alliance supported NMFS' disapproval of the 
Council's proposed 2012 specifications and implementation of status quo 
specifications. It stated that the Council's proposed catch limits are 
inconsistent with the regulations implementing the Omnibus Amendment.
    Response: NMFS agrees that the Council's initially proposed 2012 
specifications were inconsistent with the Council's risk policy as 
implemented through the Omnibus ACL/AM Amendment (76 FR 60606, 
September 29, 2011), and so NMFS implemented the status quo (2011) 
specifications in an interim final rule for the beginning of the 2012 
fishing year. The revised Risk Policy in Framework Adjustment 6 to the 
MSB FMP allows the SSC to recommend increases to the ABC for stocks 
without an OFL, provided that there is sufficient scientific evidence 
to suggest that such increases will not result in overfishing. Based on 
the new Risk Policy, the SSC has since reaffirmed its 2012 butterfish 
specifications recommendation in accordance with the new provisions in 
Framework Adjustment 6, which was recently approved by NMFS, and this 
action promulgates the Council's original specifications 
    Comment 4: Seafreeze disagreed with the determination that we are 
risking overfishing of the butterfish resource because no OFL has been 
    Response: The butterfish quota was maintained at status quo because 
an increase was prohibited by the regulations, not because NMFS 
determined that the stock was at risk of overfishing due to the lack of 
an established OFL. The Council's Risk Policy at the time it 
recommended 2012

[[Page 51860]]

butterfish specifications did not permit the SSC to recommend increases 
to the ABC for stocks for which an OFL could not be determined. As 
discussed above, the Council has since adjusted the risk policy in 
Framework Adjustment 6 to the MSB FMP. The adjustments to the risk 
policy allow the SSC to recommend ABC increases for stocks without an 
OFL under certain limited circumstances, such as for butterfish, where 
the SSC can present information that suggests that stock abundance is 
stable or increasing, and information that supports its finding that 
increases in ABC are unlikely to result in overfishing.
    Comment 5: Seafreeze claimed that scientists and managers have 
cited recent low butterfish landings as an indication that the 
butterfish stock must be in trouble. It claimed that this rationale 
creates a vicious cycle that has been used to make decisions to keep 
quotas low.
    Response: Butterfish landings have never been used on their own as 
the rationale for the butterfish quotas that were set from 2005 to 
2011. The quotas were initially lowered in 2005 to discourage a 
directed fishery after NMFS notified the Council that the butterfish 
stock was overfished based on the 2004 assessment. Past landings 
information is a single component within the suite of information used 
to make decisions about future landings levels. Among other things, the 
SSC considers information from recent assessments and survey indices 
when making ABC recommendations
    Comment 6: Dr. Sohn commented that the certification by the SSC 
that the best available science was employed in its butterfish ABC 
recommendation to the Council is a self-certification of the SSC's ABC 
development process.
    Response: NMFS disagrees. In our view, the SSC's agreement that the 
best available science was used indicates its approval of the peer-
review process. That fact that the independent peer-reviewers at SAW 49 
proposed no radically different model for butterfish stock status 
determinations demonstrates that little can be done at this time to 
reduce the uncertainty in stock biomass estimates.
    Comment 7: Dr. Sohn stated that the conclusion from the assessment 
that ``butterfish populations appear to be declining over time'' is 
untrue. He noted that evidence demonstrates that butterfish populations 
increase and decrease over time, and that currently NMFS surveys and 
all other long-term surveys indicate a period of increasing abundance.
    Response: The butterfish population decline was noted by all 
independent reviewers of the SAW 49 butterfish assessment. The recent 
increase in survey trends occurred after the 2009 assessment. NMFS 
notes that the SSC analyzed additional information from 2010 and 2011 
to reach its recommendation for the 2012 fishing year; specifically, a 
recommended doubling of the 2011 ABC recommendation.
    Comment 8: The Herring Alliance was disappointed that NMFS did not 
respond to its claim that the Council's ABC recommendation of 3,622 mt 
was not 100-percent supported by the scientific analyses, including the 
technical report cited by the SSC, and is therefore inconsistent with 
National Standard 2. It claimed the record shows that the Council's 
original recommendation of 3,622 mt was not based on the best available 
scientific information. It noted that the SSC doubled the ABC based on 
a NOAA Technical Memorandum used to set ABCs for stocks that only have 
reliable catch information, but did not apply the recommended 
methodology in the memorandum in any rigorous way. The Herring Alliance 
also asserted that other rationale for the increase cited by the SSC 
and NMFS, namely that there were anecdotal observations of increased 
butterfish abundance, and that fishing mortality appears low compared 
to natural mortality, cannot be supported by best available science.
    Response: At the time of the proposed rule for 2012 specifications, 
NMFS determined that the SSC provided appropriate scientific 
justification for its recommended doubling of the butterfish ABC. The 
SSC relied on the findings of the most recent butterfish assessment, 
SAW 49, in conjunction with information form Council staff, to inform 
its final ABC recommendation. SAW 49 determined that the butterfish 
stock has a high natural mortality rate (M = 0.8) and a low fishing 
mortality rate (F = 0.02), and concluded that environmental factors, 
rather than fishing mortality, are driving stock abundance. The SSC 
also considered recent trawl survey indices, which indicate that 
butterfish abundance is stable or increasing.
    The Herring Alliance referenced NOAA Technical Memorandum NMFS-
SEFSC-616 (Calculating Acceptable Biological Catch for Stocks That Have 
Reliable Catch Data Only (Only Reliable Catch Stocks--ORCS; 2011)). The 
memorandum was developed by a Working Group comprised of 
representatives from seven of the eight SSCs, five of the six NMFS 
Science Centers, NMFS Headquarters, academic institutions, a state 
agency, and a non-governmental organization, to offer guidance which 
can be used to set ABCs for stocks that only have reliable catch data, 
are lightly fished, and appear to have stable or increasing trends. The 
SSC noted that the butterfish stock met the criteria outlined for this 
approach, and relied on the concepts in this guidance document in 
developing its ABC recommendation. The report recommends doubling catch 
during a stable period to create an OFL, setting the ABC at 50 to 90 
percent of the OFL, and then tracking the stock to see how the adjusted 
catch levels affect abundance. During its public process, the SSC 
discussed that, because butterfish fishing mortality was likely 
contributing very little to changes in stock abundance, the ABC could 
be doubled and still yield a fishing mortality rate that would not 
affect stock size. The SSC also commented during Council deliberations 
that establishing an OFL or OFL proxy would not have changed its ABC 
recommendation for 2012. NMFS considered the SSC's rational for 
increasing the butterfish ABC and found it to be appropriate and well 
supported by the best available scientific information. Though the SSC 
used the guidance in NOAA Technical Memorandum NMFS-SEFSC-616, it used 
its scientific judgment to recommend an ABC that was expected to result 
in a level of fishing mortality documented in SAW 49, and, at the time 
of NMFS's initial proposed rule, was not expected to result in 
overfishing of the butterfish resource.
    The observation that natural mortality is much higher than fishing 
mortality is not used as a justification for increasing catch levels; 
it is offered in SAW 49 as part of the determination that fishing 
mortality does not appear to be the major driving factor determining 
butterfish stock size, and that other environmental factors are the 
primary drivers of butterfish abundance levels. The relative 
contribution of fishing mortality compared to natural mortality is well 
documented in SAW 49. The anecdotal observations of increased 
butterfish abundance provided by the fishing industry were not noted as 
a basis for the decision, but were offered as part of the fishery 
performance reports generated during the Council's specification 
process. Observations from the fishing industry are often used to 
contextualize the scientific information being considered by SSC 
    NMFS still supports the rationale that the SSC put forward in 
recommending the 3,622-mt ABC for butterfish during

[[Page 51861]]

its initial deliberations for 2012 specifications. The SSC has also 
conducted deliberations for its 2013 butterfish ABC recommendation, and 
offered additional rationale in its 2013 ABC recommendation that 
supports the assertion that the 3,622-mt butterfish ABC will not result 
in overfishing. Their rationale for their recommended 2013 ABC (8,400 
mt) is outlined in the Background section of the preamble to this 
action. Given that the additional analysis that the SSC used to derive 
its 2013 ABC recommendation of 8,400 mt suggests that this level has a 
low likelihood of resulting in overfishing, it is reasonable to 
conclude that ABCs of lower amounts, such as the 3,622-mt ABC that will 
be implemented in this action, will be unlikely to result in 
    Comment 9: The Herring Alliance commented on the proposed rule and 
on the interim final rule for butterfish specifications that the role 
of butterfish as forage should have been taken into account in setting 
the butterfish ABC. It noted that the National Standard 1 guidelines 
specify that managers must pay serious attention to maintaining 
adequate forage for all components of the ecosystem, and that the FMP's 
specification of optimum yield (OY) must address ecological factors, 
even where quantification of ecological factors is not available. It 
reiterated that marine predators switch prey depending on the relative 
abundance and distribution of forage species, and concluded that, 
because the status of stocks such as Atlantic herring blueback herring, 
alewife, American shad, hickory shad, and Atlantic menhaden are 
compromised, a lack of precautionary protection for butterfish may 
render these stocks more vulnerable to collapse. Likewise, it also 
argued that, should predators switch to butterfish because of low 
availability of other forage species, the Council's high butterfish ABC 
recommendation could lead to collapse of the butterfish stock.
    Response: As noted in the response to comments in the interim final 
rule for butterfish specifications, the impacts of natural mortality on 
the butterfish stock, including predation, are taken into account 
during the butterfish assessment process, and are addressed during the 
specification of the ABC. The assessment does not consider potential 
future increases or decreases in butterfish predation because 
information is not available on future trends in forage.
    As noted by the commenter, National Standard 1 of the Magnuson-
Stevens Act discusses the specification of OY, and requires that an FMP 
or amendment prevent overfishing while achieving, on a continuing 
basis, the OY from each fishery for the United States fishing industry 
(16 U.S.C. 1851(a)(1)). The Magnuson-Stevens Act defines ``optimum'' 
with respect to yield from a fishery, as being prescribed on the basis 
of maximum sustainable yield from the fishery, as reduced by relevant 
economic, social or ecological factors (16 U.S.C. 1802(33)). The 
Council's FMPs all contain a process for assessing, specifying, 
identifying, and adjusting OY, as needed, based on relevant economic, 
social, and ecological factors for each species. The guidelines state 
that achieving OY on a continuing basis means producing a long-term 
series of catches such that the average catch is equal to OY and other 
conservation objectives of the Magnuson-Stevens Act are met (Sec.  
600.310(e)(3)(i)(B)). The guidelines further state that an FMP must 
contain measures, including ACLs and AMs, to achieve OY on a continuing 
basis. However, the Magnuson-Stevens Act and guidelines do not require 
that OY considerations be addressed when developing ACLs. The 
implementing regulations for the Council's Omnibus Amendment require 
that the ACL be set equal to the ABC for all Council-managed species, 
but the Council may take these additional factors into account when 
establishing ACTs (see final NS1 guidelines, 74 FR 3178, 3189 
(explaining OY, ABC, ACT, ACL relationships in response 33)).
    Comment 10: One member of the public commented that butterfish 
quotas should be cut to save the species, and that this comment should 
not be dismissed by NMFS. This commenter also stated that NMFS has no 
clear, accurate information.
    Response: The quota levels recommended by the Council and 
implemented through this final rule are based on the best available 
science, and was reviewed twice by the Council's SSC. The SSC is a 
Magnuson-Stevens Act-mandated Council body made up of independent 
scientists, which recommends the ABC levels for all fisheries. NMFS 
notes that the commenter made general allegations for which no 
supporting documentation was provided. NMFS encourages every commenter 
to provide documentation or specific references to reports or data to 
support statements and conclusions submitted in response to rulemaking 
and to enable the agency to be more specific in its responses.
    Comment 11: Dr. Sohn urged the Secretary of Commerce to reject the 
Council's butterfish quota recommendations because they are based upon 
invalid scientific reasoning and methodology, and urged an orderly 
process of re-examination of the data and methodology used to assess 
butterfish so that the recommendations are based upon scientifically 
valid assumptions and methods.
    Response: A benchmark butterfish assessment is scheduled for 2013. 
In the meantime, the current specification recommendations for 
butterfish are based on the best available scientific information. 
Further comments on the current butterfish assessment are addressed 
    Comment 12: Dr. Sohn discouraged the adoption of short-term rules 
to govern butterfish harvest. He argued that, by adopting short-term 
rules, previous scientific and management errors will be perpetuated.
    Response: The commenter does not explain what he considers to be a 
``short-term'' rule. The Council typically recommends specifications 
for butterfish for 1 fishing year (January 1-December 31), but may set 
specifications for up to 3 years for any of the species managed under 
the MSB FMP. The Council recommended butterfish specifications for 1 
fishing year during the 2012 specifications process.
    Comment 13: Seafreeze expressed its view that butterfish needs to 
be turned into export revenue and jobs rather than being discarded.
    Response: Not all unharvested fish constitute foregone yield, as 
these animals serve as prey for other fishery stocks. Hence, fishery 
yields for predator species can theoretically improve when a very high 
quota for butterfish is reduced.

Comments on the Butterfish Assessment

    In addition to comments on the regulatory content of this 
rulemaking, Seafreeze, and Dr. Sohn commented extensively on the 
butterfish stock assessment. NMFS does not typically respond in detail 
to comments on the merits of the assessment in the response to comments 
in rulemaking. This is because assessments are conducted and finalized 
prior to and separate from rulemakings, and feature their own process 
for public participation procedures. Comments on the merits of an 
assessment, and the information used in the assessment, can therefore 
not be addressed during the rulemaking process, but rather need to be 
addressed in the assessment process. Given the nature of the comments 
on the interim final rule for butterfish specifications, NMFS 
recognizes that commenters are making a direct link between the merits 
of the butterfish assessment and our approval of the Council's 

[[Page 51862]]

butterfish specifications as being supported by the best available 
scientific information. Although the assessment and its supporting 
information are not subject to NMFS' decision making in the 
specifications, responses to specific comments on the assessment are 
provided in the following to clarify our position on these matters.
    Comment 14: Seafreeze noted that the assessment of fish stocks is 
an imprecise science and will remain so as long as we use a handful of 
fish to estimate the full size of a given fish stock, or until we count 
every fish in the ocean.
    Response: We agree that there is uncertainty in fish stock 
assessments. However, even if all of the fish in the stock were 
counted, there would still be uncertainty in the size of the stock in 
the future, given a specified quota. We assess stocks based on data 
gathered from thousands of fish, not just handfuls, taken in the course 
of NEFSC (and other) fishery-independent surveys, as well as samples 
gathered directly from fishing vessels. Although some uncertainty is 
inherent in estimates of relative abundance, this uncertainty typically 
decreases with increased sampling whether these data are collected by 
scientists, fishery observers, or port samplers.
    Comment 15: Dr. Sohn noted that the failure of the assessment 
process for butterfish has produced incorrect management decisions that 
stretch back to butterfish being listed as overfished in 2004. He 
implied that the failure of the butterfish assessment process is the 
result of a willful and deliberate misrepresentation of information on 
the part of NMFS.
    Response: The unique life history of butterfish poses significant 
and well-documented challenges for assessing the status of the resource 
and for management. The assessment process includes detailed discussion 
of this issue and the Council process utilizes and accounts for the 
uncertainty in the assessments by establishing butterfish management 
policies and measures through review and recommendations of its SSC. 
Responses to specific assessment issues below offer more explanation of 
the butterfish assessment.
    Comment 16: Seafreeze claimed that the butterfish stock is assessed 
in the same way that assessments are done for cod. It noted that stock 
assessments are usually 5-7 years old by the time they are used for 
quota setting and that, given that butterfish have a 1.5-year lifespan, 
3-4 generation-old information is being used to set annual quotas for 
butterfish. It compared this to using 30 to 40-year-old data for 
setting the annual quota for cod, which have a 10-year lifespan. Dr. 
Sohn also asserted that the use of ``old'' data means that NMFS will 
fail to conserve a resource when needed, and fail to open a fishery for 
harvest when the resource has recovered.
    Response: Cod and butterfish are assessed using different methods. 
The assessment model for the cod stocks is completely age-structured, 
for instance. Because there are not sufficient data to use an age-
structured model for butterfish at this time, the butterfish assessment 
uses a delay-difference model, in which several assumptions are made on 
the way these fish grow and transition from the younger group (fish 
that are too small to enter the fishery) and the older mature group (in 
which all the fish are available to the fishery). If sufficient data 
are eventually available, an age-structured model can be applied to 
butterfish because the same fundamental processes of mortality, growth, 
spawning, and recruitment occur. The important distinction is the very 
different parameters governing the dynamics of cod and butterfish. 
Although more real-time collection of data might be useful for 
estimating the status of the butterfish stock throughout the year, for 
a recruitment-driven stock such as butterfish there will always be much 
uncertainty when attempting to predict what state the stock will be in 
during the next year.
    Comment 17: Seafreeze expressed a lack of confidence in efforts to 
calibrate the FSV Bigelow to the RV Albatross IV and noted that it is 
likely impossible to mathematically calculate how the species captured 
in each tow will differ between vessels, especially if the vessels use 
different tow speeds and haul times.
    Response: Estimating the relative capture efficiency at length for 
butterfish taken by the FSV Bigelow and RV Albatross IV is not easy. 
This is why external peer reviews were conducted of both the 
experimental design and estimation methodology of the vessel 
calibration experiment. It is also true that, for a given tow, a 
prediction of relative efficiency will be imprecise. Precision becomes 
much better for predicting the average relative efficiency over all 
tows in the calibration study, which is the procedure NMFS used to 
calibrate the surveys of the two vessels. This gain in precision occurs 
because the average becomes less variable as the number of tows used 
for inference increases. When conducting these analyses, we do not 
dictate the way that various changes in towing affect the relative 
efficiency of the two vessels. Instead, we allow this effect to be 
estimated from the data.
    Comment 18: Seafreeze claimed that the recent high abundance of 
butterfish (as documented in East Coast state and university surveys, 
recent NEFSC surveys, data from nuclear plants, and other sources) has 
been explained away by citing the calibration factors between the FSV 
Bigelow to the RV Albatross IV.
    Response: NMFS disagrees. The calibrated time series still shows 
this increase.
    Comment 19: Dr. Sohn claimed that NMFS has refused to acknowledge 
that the peer review process has rejected the assessment for 
    Response: NMFS acknowledges that the peer review results indicated 
that the fishing mortality level identified in the assessment may not 
be appropriate and that a stock biomass level could be determined. This 
is why there are no acceptable biological reference points for this 
    Comment 20: Dr. Sohn asserted that NMFS has not been inclusive in 
its performance with respect to its assessment of butterfish, that NMFS 
has not sought advice widely, and that NMFS has not captured the full 
range of scientific thoughts and opinions on this subject matter. He 
noted that the assessment process has not been set up to work with its 
stakeholders in gathering information in a scientific fashion in order 
to assist in the assessment.
    Response: In fishery assessments, we strive to account for a range 
of biological and ecosystem characteristics, to improve our results, 
and to bound them by explicitly identifying and considering underlying 
uncertainties. The scientific review process used in the Northeast for 
developing fishery stock assessments is public and transparent, and one 
of the most rigorous review processes of its kind in the United States. 
The assessment process used in the Northeast comprises a series of 
working group meetings that are open to the public. Scientists from 
industry, NGOs, academic institutions, and state governments regularly 
participate in these meetings, during which the working group comes to 
consensus on the data and models to be used to assess the stock. The 
primary goal of these meetings is to develop a scientifically 
defensible assessment that is vetted and subjected to independent, 
arms-length peer-review (by reviewers obtained through the Center for 
Independent Experts) at the final Stock Assessment Review Committee 
(SARC) meeting.
    Comment 21: Dr. Sohn stated that assessments are not done in a 

[[Page 51863]]

fashion so that rational management can take place.
    Response: NMFS acknowledges that assessments are conducted within 
many constraints. Some of these constraints are not commonly in play in 
other areas of scientific research. Examples include deadlines that are 
driven by pending management events, the availability of scientific 
staff to analyze data and conduct the work within those deadlines, and 
the reliance of fishery managers on scientific information to inform 
their decisions. Assessments also involve continual evaluation and re-
evaluation. New data are constantly arriving from multiple sources 
including monitoring by researchers and fishery observers, and 
reporting by fishing vessels and fish dealers.
    Comment 22: Dr. Sohn noted that ocean larval transport from the 
southern end of the butterfish population range (north of Cape 
Hatteras) to the northern end of its range may have an important role 
in the population dynamics of butterfish. The commenter cited a number 
of scientific studies that demonstrate that, for various species, 
larvae produced in one area may be the foundation for populations of 
adult fish in another area. He argued that, by limiting the assessment 
to the northern portion of the range of butterfish, NMFS is not 
measuring abundance in the area that may produce the butterfish of the 
mid- and North Atlantic. The commenter asserted that NMFS has limited 
its survey to a political boundary rather than a biological boundary, 
and thus has no data on important butterfish breeding grounds. He 
concluded by noting that a zoogeographical ecosystem-based model of the 
butterfish population should be done for butterfish, and that the 
failure to incorporate new technology and theory is the result of NMFS 
ignoring important scientific issues in the assessment process.
    Response: The studies cited by the commenter do not analyze data on 
butterfish, but simply suggest that this transport might apply to 
butterfish. There is some movement of butterfish across the Cape 
Hatteras latitude. However, this occurs for any species over any 
specified stock boundary. For butterfish, there is no evidence that the 
degree of mixing is substantial. As spawning occurs north of the Cape 
Hatteras latitude, any larvae transported north of that latitude would 
only provide some fraction of the population. Overall levels of annual 
recruitment can still be estimated without knowing the mechanism that 
determines the proportion of recruitment from the southern stock area. 
Nonetheless, these issues, as well as a larval abundance index for 
butterfish, will be considered in the 2013 benchmark butterfish 
    There will be a series of public meetings to determine the data and 
model used in the benchmark butterfish assessment, and commenters are 
welcome to attend. Also underway are projects to determine ways in 
which measures of habitat association by butterfish might be 
incorporated into the next assessment model. Zoogeographical ecosystem-
based models would be ideal for all species but, to the best of our 
knowledge, there are no stocks anywhere that are assessed using such a 
spatially-detailed model. The absence of such models reflects the real 
data limitations and our inability to parameterize such a complex 
model, rather than a na[iuml]ve understanding of the species biology. 
While an enormous amount of information on the demography of butterfish 
is considered in the assessment, the rapid growth and short lifespan of 
butterfish, as well as other limitations, such as poor discard estimate 
precision, contribute to the poor precision of butterfish spawning 
biomass estimates. We are confident that the new comprehensive study 
will improve our knowledge of the butterfish population, and help NMFS 
and the Council in future population estimates.
    Comment 23: Dr. Sohn stated that the 2004 and 2009 assessments for 
butterfish failed because they used a mathematical model that assumes 
equilibrium conditions.
    Response: Equilibrium (as used by the commenter) is an attribute of 
deterministic models, in which every set of variable states in the 
model are uniquely determined by parameters in the model and by sets of 
previous states of these variables. Deterministic models perform the 
same way for a given set of initial conditions. Because of the 
variability surrounding many of the parameters in models created for 
stock assessments, deterministic models, and deterministic equilibrium 
does not apply to any stock. Rather, stochastic or probabilistic 
models, in which randomness is present and variable states are not 
described by unique values, but rather by probability distributions, 
are used to for stock assessments. There can be a stochastic 
equilibrium, which is the average behavior of a stochastic model; this 
is how stock assessment scientists view fish populations. Reference 
points are determined under stochastic (probabilistic) conditions, and 
then uncertainty in the reference points caused by this stochasticity 
is considered.
    Comment 24: Dr. Sohn commented that the claims that NMFS makes 
concerning the decrease of the butterfish population are the result of 
numbers and biomass caught during the NMFS spring and fall surveys. He 
noted that, while NMFS prides itself on the survey, it has destroyed 
continuity by not paying sufficient attention to ensure consistent 
sampling. He further discussed that the use of calibration techniques 
appears to provide ad hoc remedies that can never be tested as to their 
    Response: The use of calibration factors is well founded in the 
literature and their estimation for transitioning the survey from the 
RV Albatross IV to the FSV Bigelow was based on rigorous statistical 
analysis. Therefore, the results are not ad hoc. The precision of the 
calculated confidence intervals for the FSV Bigelow-RV Albatross IV 
calibration factors is publicly available, and this uncertainty has 
been accounted for in calibrating butterfish indices from 2009 onward. 
NMFS does not currently consider the stock to be declining, nor has it 
been since 2008. The two NEFSC documents cited explain the careful 
attention paid to ensuring reliable transition of the survey from the 
RV Albatross IV to the FSV Bigelow. Fishing industry members were very 
involved in the design of the new trawl, and the gear comparison 
experiment was one of the most extensive ever performed in terms of 
numbers of replicates in space and time.
    Comment 25: Dr. Sohn commented that NMFS failed to check its trawl 
survey results against independent data sets or long-term state 
surveys. He claimed that NMFS has found excuses not to ``go outside'' 
of their own data sets to examine butterfish abundance, believing that 
these are too local or not long-term. The commenter noted that we 
should know butterfish abundance, and that the fact that we do not know 
is because NMFS is not using all of the available data.
    Response: State survey data are reviewed at the data meeting for a 
benchmark assessment. For butterfish, only the Massachusetts inshore 
and Connecticut Long Island Sound surveys were readily available. These 
data were reviewed, but not used in the assessment for several reasons. 
The state surveys cover only a very limited portion of the butterfish 
stock area. There are no age data associated with the samples. Age data 
are needed to distinguish the two age groups used in the model for the 
2010 butterfish assessment. For the Long Island Sound survey annual 
indices, there were no associated measures of uncertainty.

[[Page 51864]]

Regardless, using all state and other regional survey indices does not 
allow one to estimate absolute abundance.
    Comment 26: Dr. Sohn claimed that NMFS does not critically evaluate 
the methodology it uses for stock assessments.
    Response: NMFS disagrees. The SARC process provides significant 
critical evaluation of assessment models by independent peer-reviewers.


    The Administrator, Northeast Region, NMFS, determined that these 
specifications are necessary for the conservation and management of the 
butterfish fishery and that they are consistent with the Magnuson-
Stevens Fishery Conservation and Management Act and other applicable 
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under section 553(d) of the Administrative Procedure Act to waive the 
30-day delay in effectiveness for this action because delaying the 
effectiveness of this rule would be contrary to the public interest.
    Immediately implementing the final 2012 butterfish specifications 
will not only benefit the butterfish fishery directly, it will also aid 
the longfin squid fishery because the rule will increase the butterfish 
mortality cap in that fishery to 2,445 mt (a 1,009-mt increase from 
status quo). By the time the longfin squid fishery closed on July 10, 
2012, in Trimester II, over 100 percent of the status quo annual 
allocation of the butterfish mortality cap was estimated to have been 
taken. Because the butterfish mortality cap closes the longfin squid 
fishery in Trimester III when 90 percent of the annual butterfish cap 
allocation has been taken, under the status quo allocation, the longfin 
squid fishery would not be opened at the start of Trimester III on 
September 1, 2012. The increased butterfish mortality cap implemented 
through the final 2012 butterfish specifications will allow for the 
longfin squid fishery to operate during Trimester III. Longfin squid 
migrate throughout their range and have sporadic availability. The 
fleet is quick to target longfin squid aggregations when they do 
appear, and is capable of landing over 550 mt in a single week. 
Analysis of this year's fishing activity indicates that longfin squid 
was particularly abundant this spring and summer, and historical 
availability patterns suggest that longfin squid abundance could still 
be high in the early fall. Only 7,761 mt of the 22,220 mt longfin squid 
quota has been harvested this year, meaning that well over half of the 
quota remains to be harvested during the final 4 months of the fishing 
year. A 30-day delay in the implementation of this rulemaking, may 
prevent fishermen from accessing longfin squid when it is temporarily 
available within portions of its range and prevent the harvest of a 
significant amount of longfin squid quota (up to 2,220 mt of the 
remaining 14,459 mt of longfin squid quota), negating any benefit of 
implementing this rule.
    Moreover, the fishing entities affected by this rule need not 
change their practice or gear, or make any other modifications to come 
into compliance with this action. They can continue to fish as they do 
now without any change after this rule goes into effect. Accordingly, 
the 30-day delay in effectiveness is not necessary here, where there is 
no need for the affected entities to modify their behavior, purchase 
new gear, or otherwise adjust their activities to come into compliance 
with the rule.
    The Council prepared an EA for the 2012 specifications, and the 
NOAA Assistant Administrator for Fisheries concluded that there will be 
no significant impact on the human environment as a result of this 
rule. A copy of the EA is available upon request (see ADDRESSES).
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act, 
has prepared a FRFA in support of the 2012 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 summaries 
in the IRFA, a summary of the significant issues raised by the public 
in response to the IRFA, and NMFS's responses to those comments. A copy 
of the IRFA, the RIR, and the EA are available upon request (see 

Statement of Need for This Action

    This action implements 2012 specifications for butterfish and 
adjusts the gear requirements for the butterfish fishery. A complete 
description of the reasons why this action is being considered, and the 
objectives of and legal basis for this action, are contained in the 
preamble to the proposed and final rules and are not repeated here.

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

    Comment 13 was not specifically directed to the IRFA, but expressed 
concern about negative economic impacts of the specifications for 
butterfish on small entities. The comment is fully described in the 
``Comments and Responses'' section of the preamble to this final rule 
and, therefore, is not repeated here.

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

    Based on permit data for 2011, the numbers of potential fishing 
vessels in the 2012 MSB fisheries are as follows: 351 longfin squid/
butterfish moratorium permits; 1,904 incidental squid/butterfish 
permits; and 831 MSB party/charter permits. Many vessels participate in 
more than one of these fisheries; therefore, permit numbers are not 
additive. 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. There are no large entities 
participating in this fishery, as that term is defined in section 601 
of the RFA. Therefore, there are no disproportionate economic impacts 
on small entities.

Description of Projected Reporting, Recordkeeping, and Other Compliance 

    There are no new reporting or recordkeeping requirements contained 
in any of the alternatives considered for this action. In addition, 
there are no Federal rules that duplicate, overlap, or conflict with 
this final rule.

[[Page 51865]]

Description of the Steps the Agency Has Taken to Minimize the 
Significant Economic Impacts 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 butterfish DAH specified in this action (1,072 mt) represents a 
114-percent increase over the 2011 DAH (500 mt). Though there has not 
been a directed butterfish fishery in recent years due to market 
conditions, the butterfish DAH was exceeded during the 2010 and 2011 
fishing years. The increase in the DAH has the potential to increase 
revenue for permitted vessels.
    The adjustment to the gear requirement for the butterfish fishery, 
which requires vessels possessing 2,000 lb (0.9 mt) or more of 
butterfish to fish with a 3-inch (76-mm) minimum codend mesh, is 
expected to result in a modest increase in revenue for fishery 
participants. This adjustment will enable additional retention of 
butterfish by vessels using small-mesh fishing gear. Previously, the 
mesh size requirement applied to vessels possessing 1,000 lb (0.45 mt) 
or more of butterfish.
    As discussed in the FRFA for MSB Amendment 10 (75 FR 11441; March 
11, 2010), the butterfish mortality cap may potentially economically 
impact fishery participants. The longfin squid fishery closes during 
Trimesters I and III if the butterfish mortality cap is reached. If the 
longfin squid fishery is closed in response to butterfish catch before 
the entire longfin squid quota is harvested, then the fishery may lose 
revenue. The potential for longfin squid revenue loss depends upon the 
size of the butterfish mortality cap. The 2012 butterfish mortality cap 
of 2,445 mt specified in this action represents a 70-percent increase 
over status quo (1,436 mt). The 2011 butterfish mortality cap did not 
result in a closure of the longfin squid fishery in Trimester I. At the 
start of Trimester III, over 55 percent of the butterfish mortality cap 
(compared to 31.7 percent allocated at the start of the fishing year) 
was available for the longfin squid fishery for the duration of the 
fishing year. The status quo butterfish mortality cap was implemented 
in the interim final butterfish specifications during Trimester I of 
the 2012 fishing year, and did result in a closure of the longfin squid 
fishery. In addition, at the time of publication of this action, the 
butterfish cap has already exceeded the Trimester III closure 
threshold, meaning that the lower status quo cap would not allow the 
longfin squid fishery to reopen during Trimester III. Given that the 
lower cap constrained the longfin squid fishery in 2012, it is 
reasonable to expect that the proposed increase to the cap may provide 
for additional fishing opportunities for the longfin squid fishery 
between the implementation of this rule and the end of the 2012 fishing 
year on December 31, 2012. For that reason, additional revenue losses 
are not expected as a result of this proposed action.

Alternatives to the Actions in the Final Rule for Butterfish

    There were six alternatives to the preferred action for butterfish 
that were not selected. The first (status quo) and second non-selected 
alternatives were based on the specifications structure that existed 
prior to the implementation of the Omnibus Amendment, and were not 
selected because they no longer comply with the MSB FMP. The third 
alternative (least restrictive) would have set the ABC and ACL at 4,528 
mt, the ACT at 4,075 mt, the DAH and DAP at 1,358 mt, and the 
butterfish mortality cap at 3,056 mt. The fourth alternative would have 
set the ABC and ACL at 2,717 mt, the ACT at 2,445 mt, the DAH and DAP 
at 815 mt, and the butterfish mortality cap at 1,834 mt. These two 
alternatives were not selected because they were all inconsistent with 
the ABC recommended by the SSC. The fifth non-selected alternative 
would have set ABC and ACL at 1,811 mt, the ACT at 1,630 mt, the DAH 
and DAP at 543 mt, and the butterfish mortality cap at 1,222 mt. This 
alternative was not selected because it is inconsistent with status 
quo. The sixth alternative was the modified status quo alternative that 
was implemented in the interim final butterfish specifications.
    There were two alternatives regarding the adjustment to the 
butterfish gear requirement. The status quo alternative requires 
vessels possessing 1,000 lb (0.45 mt) or more of butterfish to fish 
with a 3-inch (76-mm) minimum codend mesh. The selected alternative (3-
inch (76-mm) mesh to possess 2,000 lb (0.9 mt)) could create some 
additional revenue in the form of butterfish landings for vessels using 
mesh sizes smaller than 3 inches (76 mm).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: August 21, 2012.
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 amended 
as follows:


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

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

2. In Sec.  648.23, paragraph (a)(1) is revised to read as follows:

Sec.  648.23  Mackerel, squid, and butterfish gear restrictions.

    (a) * * *
    (1) Butterfish fishery. Owners or operators of otter trawl vessels 
possessing 2,000 lb (0.9 mt) or more of butterfish harvested in or from 
the EEZ may only fish with nets having a minimum codend mesh of 3 
inches (76 mm) diamond mesh, inside stretch measure, applied throughout 
the codend for at least 100 continuous meshes forward of the terminus 
of the net, or for codends with less than 100 meshes, the minimum mesh 
size codend shall be a minimum of one-third of the net, measured from 
the terminus of the codend to the headrope.
* * * * *
[FR Doc. 2012-21060 Filed 8-24-12; 8:45 am]