[Federal Register Volume 79, Number 63 (Wednesday, April 2, 2014)]
[Rules and Regulations]
[Pages 18478-18481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-07416]



National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 130716623-4275-02]
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: Final rule.


SUMMARY: Framework Adjustment 8 (Framework 8) implements several 
changes to improve operation of the butterfish discard cap in the 
longfin squid fishery and the directed butterfish fishery. Framework 8 
allocates 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 will close when it is estimated that 95 
percent of the butterfish discard cap has been taken. In addition, 
Framework 8 allows 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: Effective May 2, 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. 
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.

FOR FURTHER INFORMATION CONTACT: Aja Szumylo, Fishery Policy Analyst, 



    A proposed rule for Framework 8 was published on January 31, 2014 
(79 FR 5365), with a comment period ending March 3, 2014. Additional 
background information and detail on why and how Framework Adjustment 6 
was developed were in the proposed rule, and are not repeated here.
    Framework 8 adjusts the trimester allocations for the butterfish 
discard cap and creates distinct closure thresholds for each trimester. 
Beginning January 2014, this action sets the initial allocation 
Trimester I at 43 percent (down from 65 percent), the initial 
allocation for Trimester II at 17 percent (up from 3.3 percent), and 
the initial allocation for Trimester III at 40 percent (up from 31.7 
percent). These adjusted trimester allocations for the butterfish 
discard cap match the trimester allocations for the directed longfin 
squid fishery. Framework 8 also requires that each trimester will close 
when the longfin squid fishery has

[[Page 18479]]

harvested an estimated 95 percent of the butterfish discard cap.
    Framework 8 also allows NMFS to transfer unused butterfish quota in 
either direction, between the butterfish domestic annual harvest 
allocation (DAH or landings quota) and the butterfish discard cap on 
the longfin squid fishery. Prior to November each year, NMFS will 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.

Comments and Responses

    NMFS received one comment on the proposed rule for Framework 8 from 
the Garden State Seafood Association (GSSA), a New Jersey-based 
commercial fishing industry group.
    Comment 1: GSSA supports the proposed trimester allocations, the 95 
percent closure threshold for all trimesters, and the transfer of 
unused butterfish quota, in either direction, between the butterfish 
landings quota and the butterfish discard cap on the longfin squid 
    Response: NMFS concurs, and is implementing the measures in 
Framework 8 as proposed.


    The Administrator, Greater Atlantic Regional Fisheries Office, 
NMFS, determined that the approved measures in Framework Adjustment 8 
to the MSB FMP are necessary for the conservation and management of the 
MSB fisheries and that they are consistent with the MSA and other 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared. The 
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a 
summary of significant issues raised by public comments in response to 
the IRFA, and NMFS' responses to those comments. A copy of the IRFA, 
the RIR, and the EA are available on request (see ADDRESSES). A summary 
of the FRFA follows.

Statement of Objective and Need

    This action implements management measures to facilitate the 
operation of the butterfish fishery, and the butterfish discard cap on 
the longfin squid fishery. A complete description of the reasons why 
this action was considered, and the objectives of and legal basis for 
this action, was in the proposed rule and is 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
    There were no issues related to the IRFA or the economic impacts of 
the rule on affected entities raised in public comments.

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. Longfin 
squid is technically a shellfish, and would fall under the lower 
shellfish fishing standard of $ 5.0 million. Nonetheless, all entities 
subject to this action were considered small entities under the former, 
lower size standards, and 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 charterboat fishing. Based on these assumptions, the finfish size 
standard would apply to all entities subject to this rule. Under that 
standard, a 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 determine whether any 
affected entity is in fact ``large,'' according to SBA's size 
standards. 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 

    This action does not contain any new collection-of-information, 
reporting, recordkeeping, or other compliance requirements. It does not 
duplicate, overlap, or conflict with any other Federal rules.

Description of the Steps the Agency Has Taken To Minimize the 
Significant Economic 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

    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.

[[Page 18480]]

    Framework 8 adjusts the trimester allocations for the butterfish 
cap (Trimester I: 43 percent; Trimester II: 17 percent; Trimester III: 
40 percent), and establishes a mechanism that will close 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 considered 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 closes 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. However, 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.
    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. 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. The status quo 
alternative (Alternative 1) was rejected because it does not reallocate 
quota. While both Alternatives 2 and 3 reallocate quota to Trimester 
II, Alternative 2 was chosen because it aligns the cap allocation with 
the squid allocation. Alternative 3 was rejected because the proposed 
allocation scheme could continue regulatory confusion about butterfish 
cap allocation levels. Under the preferred alternative, 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 a vessel 
fishing in a trimester that had low historical butterfish discards by 
giving it a very low quota. By avoiding closures and discouraging 
discards, Alternative 2 would maximize potential revenues for the 
    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, (or 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. The status 
quo alternative (Alternative 4) was rejected because, in certain years, 
it could prevent optimal use of the butterfish allocation.
    Since the 2013 butterfish landings quota was 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 6 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.

[[Page 18481]]

    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.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency will publish 
one or more guides to assist small entities in complying with the rule, 
and will designate such publications as ``small entity compliance 
guides.'' The agency will explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a letter to permit holders that also serves as 
a small entity compliance guide (the guide) was prepared. Copies of 
this final rule are available from the Greater Atlantic Regional 
Fisheries Office, and the guide (i.e., permit holder letter) will be 
sent to all holders of permits for the herring fishery. The guide and 
this final rule will be available upon request.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: March 27, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:


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

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

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.
* * * * *

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. 2014-07416 Filed 4-1-14; 8:45 am]