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Proposed Rule

Magnuson-Stevens Fishery Conservation and Management Act Provisions; Foreign Fishing and Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fisheries; 2003 Specifications and Foreign Fishing Restrictions

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Start Preamble


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


Proposed rule, 2003 initial specifications; request for comments.


NMFS proposes initial specifications for the 2003 fishing year for Atlantic mackerel, squid, and butterfish (MSB). Regulations governing these fisheries require NMFS to publish proposed specifications for the upcoming fishing year and to provide an opportunity for public comment. This action also proposes an inseason adjustment procedure for the 2003 mackerel joint venture processing (JVP) annual specifications. Finally, NMFS proposes a revision to the method for carrying over Loligo squid Quarter I underages into Quarter III. The intent of this action is to promote the development and conservation of the MSB resources.


Public comments must be received no later than 5 p.m., Eastern Standard Time, on November 27, 2002.


Copies of supporting documents used by the Mid-Atlantic Fishery Management Council, including the Environmental Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility Analysis (IRFA), are available from: Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 19904-6790. The EA/RIR/IRFA is accessible via the Internet at http:/​ro/​doc/​nr.htm.

Comments on the proposed specifications should be sent to: Patricia A. Kurkul, Regional Administrator, Northeast Regional Office, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298. Please mark the envelope, “Comments-2003 MSB Specifications.” Comments also may be sent via Start Printed Page 65935facsimile (fax) to 978-281-9135. Comments will not be accepted if submitted via e-mail or Internet.

Start Further Info


Paul H. Jones, Fishery Policy Analyst, 978-281-9273, fax 978-281-9135, e-mail

End Further Info End Preamble Start Supplemental Information


Regulations implementing the Fishery Management Plan for the Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP), prepared by the Mid-Atlantic Fishery Management Council (Council), appear at 50 CFR part 648, subpart B. Regulations governing foreign fishing appear at 50 CFR part 600, subpart F. These regulations, at §§ 600.516(c) and 648.21, require that NMFS, based on the maximum optimum yield (Max OY) of each fishery as established by the regulations, annually publish a proposed rule specifying the initial amounts of the initial optimum yield (IOY), as well as the amounts for allowable biological catch (ABC), domestic annual harvest (DAH), domestic annual processing (DAP), total allowable level of foreign fishing (TALFF), and JVP for the affected species managed under the FMP. Because the regulations found in § 648.20 also specify that IOY for squid is equal to the combination of RQ and DAH, there will be no TALFF specified for squid. For butterfish, the regulations specify that a butterfish bycatch TALFF will be specified if TALFF is specified for Atlantic mackerel. Procedures for determining the initial annual amounts are found in § 648.21.

In addition, the regulations at § 648.21(g) allow the specification of quota set-asides to be used for research purposes. For 2003, the Council recommended quota set-asides of up to 2 percent of IOY for Atlantic mackerel and butterfish; and of up to 3 percent of IOY for squids. The set-asides would fund research and data collection for those species. A Request for Research Proposals was published to solicit proposals for 2003 based on research priorities previously identified by the Council (67 FR 13602, March 25, 2002). The deadline for submission was May 13, 2002. On July 10, 2002, NMFS convened a Review Panel to review the comments submitted by technical reviewers. Based on discussions between NMFS staff, technical review comments, and Review Panelist comments, two Loligo squid project proposals were recommended for approval and forwarded to the NOAA Grants Office for award. Consistent with the recommendations, the quotas in this proposed rule have been adjusted to reflect the projects recommended for approval. If the awards are not made by the NOAA Grants Office for any reason, NMFS will publish an action in the Federal Register restoring the unused set-aside amount to the annual quota.

Table 1 contains the proposed initial specifications for the 2003 Atlantic mackerel, Loligo and Illex squids, and butterfish fisheries.

Table 1.—Proposed Initial Annual Specifications, in Metric Tons (mt), for Atlantic Mackerel, Squid, and Butterfish for the Fishing Year January 1 Through December 31, 2003

SpecificationsSquidAtlantic mackerelButterfish
Max OY26,00024,0001 N\A16,000
IOY5 16,872.524,0002 175,0005,900
DAH16,872.524,0003 175,0005,900
JVP004 10,0000
1 Not applicable.
2 IOY may be increased during the year, but the total ABC will not exceed 347,000 mt.
3 Includes 15,000 mt of Atlantic mackerel recreational allocation.
4 JVP may be increased up to 20,000 mt at discretion of Regional Administrator.
5 Excludes 127.5 mt for Research Set-Aside (RSA).

2003 Proposed Specifications

Atlantic Mackerel

Overfishing for Atlantic mackerel is defined by the FMP to occur when the catch associated with a threshold fishing mortality rate (F) of FMSY (the F that produces MSY (maximum sustainable yield)) is exceeded. When spawning stock biomass (SSB) is greater than 890,000 mt, the maximum F threshold is FMSY (0.45), and the target F is 0.25. To avoid low levels of recruitment, the FMP contains a control rule whereby the threshold F decreases linearly from 0.45 at 890,000 mt SSB to zero at 225,000 mt SSB (1/4 of the biomass level that would produce MSY on a continuing basis (BMSY)), and the target F decreases linearly from 0.25 at 890,000 mt SSB to zero at 450,000 mt SSB (1/2 BMSY). Annual quotas are specified that correspond to the target F resulting from this control rule.

Since SSB is currently above 890,000 mt, the target F for 2003 is 0.25. The yield associated with that target F at the estimated stock size is 369,000 mt. The ABC recommendation of 347,000 mt represents an adjustment to the yield estimate of 369,000 mt, minus the estimated Canadian catch of 22,000 mt. The proposed IOY for the 2003 Atlantic mackerel fishery is 175,000 mt, which is equal to the proposed DAH. The specification for DAH is computed by totaling the estimated recreational catch, the proposed DAP, and the proposed JVP. The 175,000 mt proposed DAH is comprised of 15,000 mt recreational; 150,000 mt DAP; and 10,000 JVP.

The Council recommends, and NMFS proposes, to reduce JVP by 10,000 mt and increase DAP for the Atlantic mackerel fishery by 100,000 mt. The DAP and JVP components of DAH have historically been estimated using the Council's annual processor survey, which is intended to obtain estimates of processing capacity in the domestic and joint venture (JV) fisheries. However, from 1994 through 2002, response to this voluntary survey was incomplete and did not contain projections from some large processors. This year, in place of the survey, the Council relied on testimony presented by domestic processors during its May 2, 2002, meeting concerning their current and projected shoreside processing capacity for Atlantic mackerel in 2003. While domestic processing capacity is increasing, the Council believes, based on the best data available, that the capacity of the domestic fleet to harvest mackerel still exceeds the domestic Start Printed Page 65936processors' capacity to process mackerel. Therefore, the Council has recommended, and NMFS proposes, a specification of 10,000 mt of JVP for the 2003 fishery, with a possible increase to 20,000 mt later in 2003. If additional applications for JVP are received, the Council could authorize NMFS to increase this allocation to 20,000 mt by publishing a notice in the Federal Register and providing a 30-day comment period.

The Council also recommended, and NMFS proposes, a TALFF of zero. The Council chose to specify an IOY that results in a TALFF of zero despite the minimal loss to the Nation that may result from the loss of poundage fees collected from foreign vessels. The Council believes that the development of the domestic mackerel fishery results in the greatest resource benefits to the nation. With the 100,000 mt increase in DAP, the Council was concerned that the perceived competition TALFF represents to U.S. processors could impede the future expansion of domestic mackerel processing facilities.

As authorized by §§ 600.501 and 600.520(b)(2)(ii), the Council recommended, and NMFS proposes, that several special conditions be imposed on the 2003 Atlantic mackerel fishery, as follows: (1) JVs would be allowed south of 37°30′ N. lat., but river herring bycatch may not exceed 0.25 percent of the over-the-side transfers of Atlantic mackerel; (2) the Administrator, Northeast Region, NMFS (Regional Administrator) should ensure that impacts on marine mammals are reduced in the prosecution of the Atlantic mackerel fishery; (3) the mackerel optimum yield (OY) may be increased during the year, but the total should not exceed 347,000 mt; and (4) applications from a particular nation for an Atlantic mackerel JV allocation for 2003 may be based on an evaluation by the Regional Administrator of that nation's performances relative to purchase obligations for previous years.

Atlantic Squids


The FMP defines overfishing for Loligo squid as occurring when the catch associated with a threshold of the fishing mortality that produces the maximum sustainable level of yield per recruit (FMAX) is exceeded (FMAX is a proxy for FMSY). When an estimate of FMSY becomes available, it will replace the current overfishing proxy, FMAX. Max OY is specified as the catch associated with FMAX. The biomass target is specified as BMSY.

NMFS' Northeast Fisheries Science Center (NEFSC) fall 2000 and spring 2001 survey data, length based virtual population analyses results, scale survey biomass estimates, and production modeling estimates all indicate that Loligo squid biomass was high in 2002 and 2001. The most recent stock assessment for Loligo squid (the 34th Northeast Regional Stock Assessment Workshop, 2002 (SAW-34)) concluded overfishing is not occurring and recommended that the Council maintain the catch of 20,000 mt (to include both landings and discards).

Based on the assumption that the stock will be at or near Bmsy in 2003, the Council recommended no changes from the 2002 quota level. The 2003 quota is specified as the yield associated with 75 percent of Fmsy at Bmsy, or 17,000 mt, based on projections from SAW-34. The regulations continue to specify Max OY as the yield associated with Fmax, or 26,000 mt. Thus, the 2003 proposed Max OY for Loligo squid is 26,000 mt and the recommended ABC for the 2003 fishery is 17,000 mt.

In Amendment 5 to the FMP, the Council concluded that U.S. vessels have the capacity to, and will harvest the OY on an annual basis, so that DAH equals OY. The Council also concluded that U.S. fish processors, on an annual basis, can process that portion of the OY that will be harvested by U.S. commercial fishing vessels, so that DAP equals DAH. The regulations found in § 648.20 do not authorize the specification of JVP and TALFF for the Loligo squid fishery, therefore, JVP and TALFF are zero.

Distribution of the Annual Loligo Squid Quota

Since 2001, the annual DAH for Loligo squid has been allocated into quarterly periods. The Council and NMFS recommended no change from the 2002 quarterly distribution system. Due to the recommendation of two research projects that would utilize Loligo squid RSA, this proposed rule adjusts the quarterly allocations from those that were proposed, based on formulas specified in the FMP. The 2003 quarterly allocations would be as follows:

Table 2.—Loligo Squid Quarterly Allocations

QuarterPercentMetric tons1Research set-aside
I (Jan-Mar)33.235,606.7N/A
II (Apr-Jun)17.612,971.3N/A
III (Jul-Sep)17.32,918.9N/A
IV (Oct-Dec)31.865,375.6N/A
1 Quarterly allocations after 127.5 mt RSA deduction

Also unchanged from 2002, the Council recommended that the 2002 directed fishery be closed in Quarters I-III when 80 percent of the period allocation is harvested, with vessels restricted to a 2,500-lb (1,134-kg) Loligo squid trip limit per single calender day until the end of the respective quarter. The directed fishery would close when 95 percent of the total annual DAH has been harvested, with vessels restricted to a 2,500-lb (1,134-kg) Loligo squid trip limit per single calender day for the remainder of the year. Quota overages from Quarter I would be deducted from the allocation in Quarter III, and any overages from Quarter II would be deducted from Quarter IV.

Carry-Over of Quarterly Quota Underages

The Council has also recommended, and NMFS proposes, to modify the method for carrying over Loligo squid Quarterly underages for 2003 and subsequent fishing years. Currently, by default, Quarterly underages from Quarters II and III carry over into Quarter IV because Quarter IV does not close until 95 percent of the total annual quota has been harvested. Additionally, if the Quarter I landings for Loligo squid are less than 70 percent of the Quarter I allocation, the underage below 70 percent is to be applied to the Quarter III allocation. The Council has recommended, and NMFS proposes that, in the event that the Quarter I landings for Loligo squid are less than Start Printed Page 6593780 percent of the Quarter I allocation, the underage below 80 percent would be applied to the Quarter III allocation. NMFS is publishing the measure in this proposed rule as presented in the Council's submission, but notes that the Council minutes for the May 2, 2002, meeting lists the Council's motion for this proposed change, however, it was not consistent with the intent of the action. This proposed rule publishes the measure as Council staff believes the Council intended. NMFS requests Council confirmation of its intent during the public comment period.


The overfishing definition for Illex squid states that overfishing for Illex squid occurs when the catch associated with a threshold fishing mortality rate of FMSY is exceeded. Maximum OY is specified as the catch associated with a fishing mortality rate of FMSY. The biomass target is specified as BMSY. The minimum biomass threshold is specified as 1/2 BMSY.

The most recent assessment of the Illex squid stock (SAW-29) concluded that the stock is not overfished and that overfishing is not occurring. The previous assessment, the 21st Northeast Regional Stock Assessment (1996), had concluded that the U.S. Illex squid stock is fully exploited. Due to a lack of adequate data, the estimate of yield at FMSY was not updated in SAW-29. However, an upper bound on annual F was computed for the U.S. Exclusive Economic Zone portion of the stock, based on a model that incorporated weekly landings and relative fishing effort and mean squid weights during 1994-1998. These estimates of F were well below the biological reference points. Current absolute stock size is unknown and no stock projections were done in SAW-29.

Since data limitations did not allow an update of yield estimates at the threshold and target F values, the Council recommended, and NMFS proposes, that the specification of Max OY and ABC remain unchanged from 2002 at 24,000 mt (the yield associated with FMSY). The directed fishery for Illex squid would remain open until 95 percent of the DAH is taken (22,800 mt). Once 95 percent of the DAH is estimated to have been taken, the directed fishery would be closed and a 5,000-lb (2,268-kg) trip limit would take effect for the remainder of the fishing year. Similar to Loligo squid, when a trip limit is in effect, vessels are prohibited from possessing or landing more than 5,000 lb (2,268 kg) in a single calendar day. The FMP does not authorize the specification of JVP and TALFF for the Illex squid fishery because of the domestic fishing industry's ability to harvest and to process the OY from this fishery.


The FMP set OY for butterfish at 16,000 mt. Based on the most current stock assessment, the Council recommends, and NMFS proposes, an ABC of 7,200 mt for the 2003 fishery. This represents no change in the specifications since 1996. Commercial landings of butterfish have been low, at 2,797 mt, 1,964 mt, 2,116 mt and 1,432 mt for the 1997 through 2000 fisheries, respectively. Lack of market demand and the difficulty in locating schools of market-sized fish have constrained this fishery.

For the 2003 fishing year, the Council recommended, and NMFS proposes, an IOY for butterfish of 5,900 mt. The IOY is composed of a DAH of 5,900 mt and a bycatch TALFF that is equal to zero. The regulations found in § 648.20 authorizes the specification of JVP or TALFF specifications for butterfish only for a bycatch TALFF specification if TALFF is specified for Atlantic mackerel. Because the Council did not recommend TALFF for Atlantic mackerel, TALFF for butterfish is set at zero.


This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of E.O. 12866.

The Council prepared an IRFA in section 3.0 of the RIR that describes the economic impacts this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of the SUPPLEMENTARY INFORMATION section of this proposed rule. This proposed rule does not duplicate, overlap, or conflict with other Federal rules. There are no new reporting or recordkeeping requirements contained in the Preferred Alternatives or any of the alternatives considered for this action. A copy of the IRFA can be obtained from the Northeast Regional Office of NMFS (see ADDRESSES), from the Council (see ADDRESSES) or via the Internet at http:/ A summary of the analysis follows:

The numbers of potential fishing vessels in the 2002 fisheries are 384 for Loligo squid/butterfish, 73 for Illex squid, 2,242 for Atlantic mackerel, and 1,828 vessels with incidental catch permits for squid/butterfish. All of the vessels are considered small entities. Many vessels participate in more than one of these fisheries; therefore, the numbers are not additive. The proposed DAH specifications of 175,000 mt for Atlantic mackerel, 24,000 mt for Illex squid, and 5,900 mt for butterfish represent no constraint on vessels in these fisheries. The level of landings in the proposed specifications for 2003 have not been achieved by vessels in these fisheries in recent years. Absent such a constraint, no impacts on revenues are expected as a result of the proposed action.

From 1997-2001, Loligo squid landings averaged 16,771 mt. If the 2002 proposed DAH specification of 17,000 mt for Loligo squid is achieved, there would be an increase in catch and revenue in the Loligo squid fishery relative to the average landings from 1997-2001. NMFS also proposes to modify the provision for carrying over Quarter I Loligo squid underages. Under the new measure, Loligo squid Quarter I underages less than 80 percent of the Quarter I allocation would be applied to Quarter III. Currently, all underages from Quarter I less than 70 percent are applied to the Quarter III allocation. By making the increased underage available during Quarter III, Loligo squid permit holders could continue to fish during a time when that quarter may have otherwise been closed. This could provide an added economic benefit to fishers during Quarter III. However, because this provision would only shift a limited amount of quota from one period to another, and does not modify the Loligo squid annual quota, no overall change in revenue is expected.

One alternative considered for the Atlantic mackerel fishery was to set the 2003 specifications at the same level as 2002. The Council rejected this option because of concerns associated with the potential for rapid expansion of the shore-side processing sector of this industry in 2003. If rapid expansion of the processing sector did occur early in 2003, and landings exceeded 85,000 mt, an inseason adjustment to IOY would be necessary. However, the majority of mackerel landings occur from January through March, and it is unlikely that an inseason adjustment could be made in time for quota to be available to industry for that period. The result would be the unnecessary closure of the fishery that could result in negative economic and/or social impacts to the U.S. mackerel industry. Some or all of the vessel owners, crews, dealers, processors or fishing communities associated with the Atlantic mackerel fishery could be adversely affected by maintaining the 2002 annual specifications for Atlantic mackerel in 2003. A second alternative considered for Atlantic mackerel was to Start Printed Page 65938set ABC at the long-term potential catch (LTPC), or 134,000 mt. This alternative was found inconsistent with the status of the stock. The current adult stock was recently estimated to exceed 2.1 million mt. The specification of ABC at LTPC would effectively result in an exploitation rate of only about 6 percent, well below the optimal level of exploitation. The Council considered the level of foregone yield under this alternative unacceptable.

For Loligo squid, one alternative that was considered was to set the ABC, DAH, DAP, and IOY at 13,000 mt, or a 23.3-percent reduction from the 2001 level. This was the same level as the initial quota allocated for the 2000 fishing year (an inseason adjustment increased the ABC, DAH, DAP, and IOY to 15,000 mt; 65 FR 60118, October 10, 2000). If the 13,000-mt alternative was adopted for the 2002 fishing year, 15 of the 447 impacted vessels would experience a total gross revenue reduction (all species combined) of greater than 5 percent. The remaining 365 vessels would experience a less than 5-percent reduction in revenue or an increase in revenue. A second alternative would have set ABC, DAH, DAP, and IOY at 18,300 mt. Under this alternative, the quota would be specified at a level that is 1,300 mt higher than is specified by the overfishing definition control rule in the FMP. Since the stock is technically not protected from overfishing, some negative economic and social impacts could be expected from this alternative in the long term if the stock did become overfished. The vessel owners, crews, dealers, processors and fishing communities associated with these ports would be expected to be affected the most by this alternative when compared to the proposed 2003 annual specifications for Loligo.

For Illex squid, one alternative considered would have set Max OY, ABC, IOY, DAH, and DAP at 30,000 mt and a second alternative would have set Max OY at 24,000 mt and ABC, IOY, DAH, and DAP at 19,000 mt. These specifications would be far in excess of recent landings in this fishery. Therefore, there would be no constraints and, thus, no revenue reductions, associated with these specifications. However, the Council considered the first alternative unacceptable because an ABC specification of 30,000 mt may not prevent overfishing in years of moderate to low abundance of Illex squid. Conversely, under the second alternative an ABC of 19,000 mt would not allow the fishery to perform at its optimal exploitation level during a year of relatively high abundance, and was therefore rejected.

For butterfish, the Council considered two alternatives; the first set a Max OY of 16,000 mt and an ABC, IOY, DAH, and DAP of 7,200 mt, and the second set a Max OY of 16,000 mt and a ABC, IOY, DAH, and DAP at 10,000 mt. These specifications far exceed recent harvests in the butterfish fishery and would not constrain or impact the industry; however, they could lead to overfishing of the stock and, thus, were rejected by the Council.

Start List of Subjects

List of Subjects in 50 CFR Part 648

  • Fisheries
  • Fishing
  • Reporting and recordkeeping requirements
End List of Subjects Start Signature

Dated: October 24, 2002.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

End Signature

For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

Start Part


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

Start Authority

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

End Authority

2. In § 648.21, paragraph (f)(3) is revised to read as follows:

Procedures for determining initial annual amounts.
* * * * *

(f) * * *

(3) Beginning January 1, 2003, if commercial landings in Quarter I are determined to be less than 80 percent of the Quarter I quota allocation, any remaining Quarter I quota that is less than 80 percent will be reallocated to Quarter III (e.g., if the Quarter I quota was 100,000 lb (220,462 kg) and 50,000 lb (110,231 kg) was landed, then the remaining Quarter I quota, up to 80 percent, or 30,000 lb (66,139 kg), would be reallocated to Quarter III. A balance of 20 percent, or 20,000 lb (44,092 kg), would remain in Quarter I).

* * * * *
End Part End Supplemental Information

[FR Doc. 02-27506 Filed 10-28-02; 8:45 am]