[Federal Register Volume 77, Number 218 (Friday, November 9, 2012)]
[Rules and Regulations]
[Pages 67305-67307]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27335]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 120917459-2591-01]
RIN 0648-BC57

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: Interim final rule.


SUMMARY: NMFS is implementing revised 2012 specifications for the 
butterfish fishery, which is managed as part of the Atlantic Mackerel, 
Squid, and Butterfish Fishery Management Plan. This action raises the 
butterfish acceptable biological catch (ABC) to 4,200 mt (from 3,622 
mt), and specifies the butterfish annual catch target (ACT) at 3,780 
mt, the domestic annual harvest (DAH) and domestic annual processing 
(DAP) at 872 mt, and the butterfish mortality cap at 3,165 mt. These 
specifications promote the utilization and conservation of the 
butterfish resource.

DATES: Effective on November 8, 2012. Comments must be received by 
November 26, 2012.

ADDRESSES: Copies of the revised 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.
    You may submit comments, identified by NOAA-NMFS-2012-0209, by any 
one of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter NOAA-NMFS-2012-0209 in the keyword search. 
Locate the document you wish to comment on from the resulting list and 
click on the ``Submit a Comment'' icon on the right of that line.
     Mail to NMFS, Northeast Regional Office, 55 Great Republic 
Dr, Gloucester, MA 01930. Mark the outside of the envelope ``Comments 
on Interim Final 2012 Butterfish Specifications.''
     Fax: (978) 281-9135, Attn: Aja Szumylo.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that they are received, documented, and considered by 
NMFS. 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. 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.) submitted voluntarily by the sender will be publicly 
accessible. Do not submit confidential business information, or 
otherwise sensitive or protected information. 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 or Excel, WordPerfect, or Adobe PDF file formats 
only. Comments on this interim final rule will be addressed in the 
final rule for 2013 Specifications and Management Measures for the

[[Page 67306]]

Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan.

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



    At the August 2012 Mid-Atlantic Fishery Management Council 
(Council) meeting, several longfin squid industry members expressed 
concern that the current 2012 acceptable biological catch (ABC) for 
butterfish (3,622 mt) was too conservative, and that the butterfish 
mortality cap on the longfin squid fishery derived from this ABC may 
close the longfin squid fishery prior to the end of the 2012 fishing 
year. In response to this concern, and in light of the Council's 
Scientific and Statistical Committee's (SSC) recommended butterfish ABC 
for the 2013 fishing year (8,400 mt), the Council requested that the 
SSC reconsider its butterfish ABC recommendation for 2012. The SSC met 
on September 13, 2012, and revised its 2012 butterfish ABC 
recommendation to 4,200 mt based on the information that supported 
their 2013 ABC recommendation, and noted that the additional mortality 
at the end of the 2012 fishing year should not result in overfishing. 
The recommendation of 4,200 mt represents the projected butterfish 
mortality on November 1, 2012 (2,800 mt), plus the prorated mortality 
that would have been allocated for the months of November and December 
(700 mt per month) if the SSC had recommended a 2012 ABC of 8,400 mt 
(2,800 mt + (700 mt x 2) = 4,200 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 
this action.
    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 overfishing 
limit (OFL) for butterfish. Consistent with the 2010 butterfish 
assessment, the SSC assumed a high level of natural mortality (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.
    Based on the SSC's revised recommendation, the Council met on 
September 14, 2012, and recommended an increase of the butterfish ABC 
and annual catch limit (ACL) to 4,200 mt for the remainder of the 2012 
fishing year (until December 31, 2012). The Council recommended 
maintaining the current 10-percent buffer for management uncertainty 
and set an annual catch target (ACT) of 3,780 mt (a 520-mt increase 
over the current ACT of 3,260 mt).
    The Council also recommended re-specifying the butterfish mortality 
cap at 3,165 mt, and the butterfish domestic annual harvest (DAH) and 
domestic annual processing (DAP) at 872 mt. The current butterfish 
mortality cap on the longfin squid fishery is 2,445 mt, and the Council 
proposed using the entire 520 mt added to the ACT to increase the 
butterfish mortality cap, as well as transferring 200 mt from the 
current DAH (1,072 mt) to the cap, for a total increase of 720 mt 
(2,445 mt + 520 mt + 200 mt = 3,165 mt). Butterfish landings and the 
butterfish cap are tracked in parallel such that all landings count 
against the DAH for quota monitoring, while all butterfish catch 
(landings and discards) by vessels that land over 2,500 lb (1.13 mt) of 
longfin squid count against the butterfish mortality cap. The Council 
requested that 200 mt of the current DAH be moved to the butterfish 
mortality cap to balance the use of butterfish in the mortality cap and 
the directed fishery, while constraining overall catch within the ABC. 
Current landing trends suggest that total 2012 butterfish landing 
should not exceed 650 mt, thus transferring an additional 200 mt from 
the DAH into the butterfish cap would allow for additional longfin 
squid landings without constraining butterfish landings.
    NMFS found that there is sufficient scientific justification for 
the Council's recommendations, and is implementing the revised 
specifications as recommended. The authority for this rulemaking is 50 
CFR 648.22(e), which allows the Regional Administrator to adjust 
specifications during the fishing year, in consultation with the 
Council, by publishing notification in the Federal Register. The 
allocations for Research Set-Aside (RSA) and joint venture processing 
(JVP) remain as specified in the interim final butterfish 
specifications (77 FR 16472; March 21, 2012). 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--Interim Final Specifications, in Metric Tons (mt), for
                  Butterfish for the 2012 Fishing Year
                       Specifications                         Butterfish
OFL........................................................        (\1\)
ABC........................................................        4,200
ACL........................................................        4,200
ACT........................................................        3,780
RSA........................................................           15
DAH/DAP....................................................          872
JVP........................................................            0
TALFF......................................................            0
Butterfish Mortality Cap...................................        3,165
\1\ Unknown.


    The Administrator, Northeast Region, NMFS, determined that these 
specifications are necessary for the conservation and management of the 
butterfish fishery and that they are

[[Page 67307]]

consistent with the Magnuson-Stevens Fishery Conservation and 
Management Act and other applicable laws.
    The Assistant Administrator for Fisheries, NOAA, finds good cause 
under section 553(b)(B) of the Administrative Procedure Act to waive 
the requirement that NMFS provide prior notice of this rule and an 
opportunity for comment because they are contrary to the public 
interest. Allowing time for prior notice and public comment would be 
contrary to the public interest because of the unnecessary economic 
harm it would cause to the longfin squid fishery. The interim final 
2012 butterfish specifications will aid the longfin squid fishery 
because the rule will increase the butterfish mortality cap in that 
fishery to 3,165 mt (a 720-mt increase from status quo). Recently 
available data indicate that the butterfish biomass has sufficiently 
increased to allow NMFS to increase the butterfish mortality cap 
without risking harm to the species. This action did not allow for 
prior public comment because the request for Council reconsideration of 
the 2012 butterfish specifications, the SSC's scientific review 
process, and the determination could not have been completed any 
earlier, due to the inherent time constraints associated with the 
process. While the information supporting this change became available 
during the specifications setting process for the 2013 fishing year in 
May 2012, the need to use this information to adjust the 2012 
butterfish specifications only became apparent in August 2012, after 
high squid availability and rapid utilization of the lower (2,445-mt) 
butterfish mortality cap made the possibility of a Trimester III 
longfin squid closure imminent. The request to consider the 
applicability of the SSC's 2013 butterfish ABC recommendation to the 
2012 fishing year was made on August 16, 2012. The SSC met to review 
this request on September 13, 2012, which was the earliest possible 
date that they could meet given public notice requirements necessary to 
schedule and convene SSC meetings. Similarly, the Council met to 
consider the SSC's revised recommendation and recommend the adjustment 
to the butterfish ABC at the earliest possible date given public notice 
requirements, which was September 14, 2012. Allowing time for prior 
public notice and comment in addition to that offered through the 
Council process would further delay the use of available scientific 
information to increase the butterfish mortality cap on the longfin 
squid fishery, which negates direct benefits to the longfin squid 
    The Assistant Administrator for Fisheries also finds good cause 
under section 553(d) of the Administrative Procedure Act to waive the 
30-day delay in effectiveness for this action. Increasing the 
butterfish mortality cap should allow for the longfin squid fishery to 
operate for the duration of the 2012 fishing year. 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 remain 
high until the close of the fishing year on December 31, 2012. Only 
11,598 mt of the 22,220 mt longfin squid quota has been harvested as of 
October 31, 2012, meaning that 52.1 percent of the quota remains to be 
harvested during the final 2 months of the fishing year. Closing the 
longfin squid fishery during the 30-day delay period prior to the 
implementation of this rule could prevent the harvest of a significant 
amount of longfin squid quota. With current squid prices at $1 per 
pound, the lost revenue from such a closure (up to 1,200 mt of the 
remaining 10,622 mt of longfin squid quota--the average monthly squid 
landings for the 2012 fishing year) could amount to $2.6 million, which 
would negate any benefit of implementing this rule. As noted above, 
allowing the longfin squid fishery to extend its fishing activity 
through the end of the 2012 fishing year will not result in harm to the 
butterfish population. 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. These fishing 
vessels can continue to fish as they do now without any change after 
this rule goes into effect.
    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 interim final rule has been determined to be not significant 
for purposes of Executive Order 12866.
    This rule is exempt from the procedures of the Regulatory 
Flexibility Act to prepare a regulatory flexibility analysis because 
the rule is issued without opportunity for prior public comment.

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

    Dated: November 5, 2012.
Paul N. Doremus,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 2012-27335 Filed 11-8-12; 8:45 am]