Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; 2011 Atlantic Bluefish Specifications; Regulatory Amendment

AGENCY:

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

ACTION:

Final rule; final specifications for the 2011 Atlantic bluefish fishery.

SUMMARY:

NMFS issues final specifications for the 2011 Atlantic bluefish fishery, including total allowable landings (TAL), a commercial quota and recreational harvest limit (RHL), and a recreational possession limit. The intent of this action is to establish the allowable 2011 harvest levels and other management measures to achieve the target fishing mortality rate (F), consistent with the Atlantic Bluefish Fishery Management Plan (FMP). The final rule also amends the bluefish regulations that specify the process for setting the annual TAL and target F to more clearly reflect the intent of the FMP.

DATES:

This rule is effective May 2, 2011. The final specifications for the 2011 Atlantic bluefish fishery are effective May 2, 2011, through December 31, 2011.

ADDRESSES:

Copies of the specifications document, including the Environmental Assessment and Initial Regulatory Flexibility Analysis (EA/IRFA) and other supporting documents for the specifications, are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The specifications document is also accessible via the Internet at: http://www.nero.noaa.gov.

FOR FURTHER INFORMATION CONTACT:

Jason Berthiaume, Fishery Management Specialist, (978) 281-9177.

SUPPLEMENTARY INFORMATION:

Background

The Atlantic bluefish fishery is managed cooperatively by the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission). The management unit for bluefish specified in the FMP is U.S. waters of the western Atlantic Ocean. Regulations implementing the FMP appear at 50 CFR part 648, subparts A and J. The regulations requiring annual specifications are found at § 648.16.

The FMP requires the Council to recommend, on an annual basis, a total allowable catch (TAC) and a TAL that will control fishing mortality. An estimate of annual discards is deducted from the TAC to calculate the TAL that can be made during the year by the commercial and recreational fishing sectors combined. The FMP requires that 17 percent of the TAL be allocated to the commercial fishery, as a quota (further allocated to the States from Maine to Florida in specified shares), with the remaining 83 percent of the TAL allocated as an RHL. The Council may also recommend a research set-aside (RSA) quota, which is deducted from the bluefish TAL (after any applicable transfer) in an amount proportional to the percentage of the overall TAL as allocated to the commercial and recreational sectors.

Pursuant to § 648.162, the annual review process for bluefish requires that the Council's Bluefish Monitoring Committee (Monitoring Committee) and Scientific and Statistical Committee (SSC) review and make recommendations based on the best available data, including, but not limited to, commercial and recreational catch/landing statistics, current estimates of fishing mortality, stock abundance, discards for the recreational fishery, and juvenile recruitment. Based on the recommendations of the Monitoring Committee and SSC, the Council makes a recommendation to the NMFS Northeast Regional Administrator. Because this FMP is a joint plan, the Commission also meets during the annual specification process to adopt complementary measures.

The Council's recommendations must include supporting documentation concerning the environmental, economic, and social impacts of the recommendations. NMFS is responsible for reviewing these recommendations to assure they achieve the FMP objectives, and may modify them if they do not. NMFS then publishes proposed specifications in the Federal Register, and after considering public comment, NMFS will publish final specifications in the Federal Register. The proposed specifications were published in the Federal Register on January 14, 2011 (76 FR 2640), with a 15-day comment period which ended on January 31, 2011.

Final Specifications

Updated Model Estimates

According to Amendment 1 to the FMP (Amendment 1), overfishing for bluefish occurs when F exceeds the fishing mortality rate that allows maximum sustainable yield (F_MSY), or the maximum F threshold to be achieved. The stock is considered overfished if the biomass (B) falls below the minimum biomass threshold, which is defined as 1/2 B_MSY. Amendment 1 also established that the long-term target F is 90 percent of F_MSY (F_MSY = 0.19, therefore F_target = 90 percent of F_MSY, or 0.17), and the long-term target B is B_MSY = 324 million lb (146,964 mt).

An age-structured assessment program (ASAP) model for bluefish was approved by the 41st Stock Assessment Review Committee (SARC 41) in 2005 to estimate F and annual biomass. In June 2010, the ASAP model was updated in order to estimate the current status of the bluefish stock (i.e., 2009 biomass and F estimates) and enable the Monitoring Committee and SSC to recommend 2011 specifications using landings information and survey indices through the 2009 fishing year. The results of the assessment update were as follows: (1) An estimated stock biomass for 2009, B₂₀₀₉ = 343.901 million lb (155,991 mt); and (2) an estimated fishing mortality rate for 2009, F₂₀₀₉ = 0.10. Based on the updated 2009 estimate of bluefish stock biomass, the bluefish stock is not considered overfished: B₂₀₀₉ is greater than the minimum biomass threshold, 1/2 B_MSY = 162 million lb (73,526 mt), and is above B_MSY. Biomass has been above the target since 2007, and the stock was declared rebuilt in October 2009, satisfying the rebuilding program requirement to achieve rebuilding by 2010 that was established in Amendment 1. Estimates of F have declined from 0.41 in 1991 to 0.10 in 2009. The updated model results also conclude that the Atlantic bluefish stock is not experiencing overfishing; i.e., the most recent F (F₂₀₀₉ = 0.10) is less than the maximum F overfishing threshold specified by SARC 41 (F_MSY = 0.19).

2011 TAL

The Council's SSC met in July 2010 to review updated stock status and other fishery independent and dependent data to recommend an acceptable biological catch (ABC) for the 2011 bluefish fishing year. Based on the updated bluefish assessment, the SSC recommended an ABC of 31.744 million lb (14,399 mt), which corresponds to an F of 0.15. Following the SSC meeting, the Monitoring Committee met to review the SSC's ABC determination and recommend bluefish management measures for 2011. The MC recommended an F_target of 0.15 and a corresponding TAC of 31.744 million lb (14,399 mt). After subtracting an estimate of discards of 4.451 million lb (2,019 mt) (the average annual discard level from 2007-2009) from the TAC, the Monitoring Committee recommended a 2011 TAL of 27.293 million lb (12,380 mt). At its August 2010 meeting, the Council concurred with the recommendation of the Monitoring Committee for a TAC of 31.744 million lb (14,299 mt) and a TAL of 27.293 million lb (12,380 mt). The proposed TAL is a 7-percent decrease from the 2010 TAL of 29.264 million lb (13,274 mt) due to a slight decrease in the 2009 estimate of bluefish stock biomass. The discussion below describes the recommended allocation of TAL between the commercial and recreational sectors, and the proportional adjustments to account for the recommended bluefish RSA quota.

Final Commercial Quota and RHL

Based strictly on the percentages specified in the FMP (17 percent commercial, 83 percent recreational), the commercial quota for 2011 would be 4.640 million lb (2,105 mt) and the RHL would be 22.653 million lb (10,275 mt) in 2011. However, the FMP stipulates that, in any year in which 17 percent of the TAL is less than 10.500 million lb (4,763 mt), and the recreational fishery is not projected to land its harvest limit for the upcoming year, the commercial quota may be increased up to 10.500 million lb (4,763 mt), provided that the combined projected recreational landings and commercial quota would not exceed the TAL. The RHL would then be adjusted downward so that the TAL would be unchanged.

The Council postponed projections of estimated recreational harvest for 2011 until Marine Recreational Fisheries Statistics Survey (MRFSS) harvest data through Wave 5 of 2010 became available (six “Waves” of data are released each year by MRFSS). In the meantime, the 3-year average of annual recreational harvest from 2007 through 2009 (17.882 million lb (8,111 mt)) was applied as the estimated recreational harvest for 2011. As such, it was expected that a transfer of up to 4.772 million lb (2,164 mt) from the recreational sector to the commercial sector could be approved. This option represents the preferred alternative recommended by the Council in its specifications document.

Northeast Regional Office staff recently updated the recreational harvest projection using 2010 MRFSS data through Wave 6. The inclusion of Wave 6 data did not result in any quota overages for the fishing year and would, therefore, not impact the final quotas. Using the best available data, the 2011 recreational harvest was estimated to be 16.581 million lb (7,456 mt), or approximately 61 percent of the TAL. Consistent with the Council's recommendation, this allows for a transfer of 4.772 million lb (2,164 mt) from the recreational sector to the commercial sector. This results in an adjusted commercial quota of 9.411 million lb (4,269 mt) and an RHL of 17.882 million lb (8,111 mt).

RSA

Two research projects that would utilize bluefish RSA quota have been preliminarily approved and forwarded to NOAA's Grants Management Division. A 105,000-lb (48-mt) RSA quota is preliminarily approved for use by these projects during 2011. Proportional adjustments of this amount to the commercial and recreational allocations results in a final commercial quota of 9.375 million lb (4,253 mt) and a final RHL of 17.813 million lb (8,080 mt).

Final Recreational Possession Limit

The current recreational possession limit of up to 15 fish per person is maintained to achieve the RHL.

Final State Commercial Allocations

The final State commercial allocations of the 2011 commercial quota are shown in Table 1, based on the percentages specified in the FMP.

Final Regulatory Amendment

Amendment 1, implemented in 2000, established a rebuilding schedule to rebuild the bluefish stock biomass to its biomass target using a graduated step reduction in F over a 9-yr period. Amendment 1 specified a target F of 90 percent of F_MSY, to become effective after the rebuilding period. The regulations at § 648.160(a) state that the Council must set the TAL to “achieve the target fishing mortality rate (F) specified in the Fishery Management Plan for Atlantic Bluefish for the upcoming fishing year or the estimated F for the fishing year preceding the Council submission of the recommended specifications, whichever F is lower.” These regulations reflect the annual specification process during the rebuilding period; however, the regulations do not reflect the intent of the FMP for specification of the TAL after the rebuilding period. The “whichever F is lower” provision was only intended to apply to annual specifications during the rebuilding period. Therefore, this rule eliminates the “whichever F is lower” provision to more clearly reflect the intent of the FMP.

Comments and Responses

The public comment period for the proposed rule ended on January 31, 2011. Four comments were received. A summary and response to the concerns raised by the commenters are included below.

Comment 1: A member of the charter/party Atlantic bluefish fishery in New Jersey was supportive of the quotas, but feels the recreational bag limit of 15 fish per person per day is too high. The commenter stated that the combined pressure of recreational and party/charter, as well as a commercial presence in the Atlantic bluefish fishery, has caused significant reductions in catch levels. The commenter suggested a recreational bag limit of 5 fish per person per day.

Response: From 2000-2009, the recreational fishery overharvested its RHL in only 2 years, 2006 and 2007, with recreational landings of 16.752 and 21.163 million lb, respectively, or about 7 percent higher than the combined recreational harvest limit implemented those years. With the majority of the years from 2000-2009 having recreational landings well under the RHL for those years, and minimal overages occurring in 2006 and 2007, a reduction to the recreational bag limit from 15 fish per day to 5 fish would not allow the recreational fishery to achieve the RHL. The 15 fish per day limit is consistent with the conservation objectives in the Atlantic Bluefish FMP while allowing the recreational sector to achieve optimum yield.

Comment 2: Two comments suggested that the quotas were too high to be sustainable, and criticized the Council in general, but offered no scientific basis for this suggestion.

Response: Atlantic bluefish are not overfished, nor are they subject to overfishing; therefore, there is no scientific basis for reducing the quotas as suggested by these commenters.

Comment 3: One comment was in support of the quotas, but raised concerns regarding the IRFA. Specifically, the comment states that the IRFA should have used data through 2010 for all alternatives, rather than just for alternative 3. The comment also suggested that NMFS should conduct the analyses beyond Atlantic bluefish to include a comprehensive analysis of an entire suite of permits. The commenter stated that this could be performed by looking at the closure status of additionally permitted fisheries other than bluefish to quantify the fisheries a permit holder is able to participate in.

Response: Alternative 3 is the no action alternative and does not utilize 2010 data. If alternative 3 were to be the selected alternative, the 2011 specifications would remain the same as the 2010 Atlantic bluefish specifications. The no action alternative is considered to be synonymous with “status quo” management measures for 2010 since the alternative interpretation (failure to specify management measures) would be in violation of the Magnuson-Stevens Fishery Conservation and Management Act. Therefore, alternative 3 would not necessitate additional analysis and would maintain the 2010 quotas which rely upon the analysis used for setting the 2010 specifications. The analysis performed for alternatives 1 and 2 utilizes 2009 data and not the entire data set for 2010. At the time the data were presented to the Monitoring Committee and the Council, data were only available from the recreational fishery from Waves 1 and 2 of 2010. Historically, landings for Waves 1 and 2 comprise less than 5 percent, on average, of the total recreational landings since 2000. Therefore, it was suggested that this type of projection be postponed until more complete data are available. In the meantime, average recreational landings for 2007-2009 were used. After the proposed rule published on January 14, 2011, landings data through December 31, 2010, were utilized to determine if any quota overages occurred in 2010 and make any quota adjustments as necessary.

Section 603 of the Regulatory Flexibility Act requires that an IRFA be prepared for all proposed rules, describing the impacts of the proposed rule on small entities. The IRFA prepared for this rule analyzed the 2011 Atlantic bluefish specifications, including the considered alternatives and the expected impacts by the Council. Each of the statutory requirements of section 603(b) and (c) have been addressed and are summarized in the Classification section of this final rule. The portion of this comment regarding regulatory closures in fisheries outside of Atlantic bluefish is beyond the scope of an IRFA and this rulemaking.

Classification

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this final rule is consistent with the Atlantic Bluefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

This final rule does not duplicate, conflict, or overlap with any existing Federal rules.

The FRFA included in this final rule was prepared pursuant to 5 U.S.C. section 604(a), and incorporates the IRFA and a summary of analyses completed to support the action. No significant issues were raised by the public comment in response to the IRFA, other than the comment noted above. A public copy of the EA/RIR/IRFA is available from the Council (see ADDRESSES).

The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated here.

Final Regulatory Flexibility Analysis

Statement of Objective and Need

A description of the reasons why this action is being taken, and the objectives of and legal basis for this final rule are contained in the preambles to the proposed rule and this final rule and are not repeated here.

Summary of Significant Issues Raised in Public Comments

Four comments were submitted on the proposed rule. One comment was received that commented on the economic analyses summarized in the IRFA and the economic impacts of the rule more generally, but did not raise significant issues. The response to this comment is provided above in the “Comments and Responses” section of this preamble. The remaining 3 comments did not refer to the economic analysis summarized in the IRFA or the economic impacts of the rule more generally. No changes were made to the final rule as a result of the comments received.

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

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. The categories of small entities likely to be affected by this action include commercial and charter/party vessel owners holding an active Federal permit for Atlantic bluefish, as well as owners of vessels that fish for Atlantic bluefish in State waters. All Federally permitted vessels fall into the definition of small businesses; thus, there would be no disproportionate impacts between large and small entities as a result of the final rule.

An active participant in the commercial sector was defined as any vessel that reported having landed 1 or more lb (0.45 kg) in the Atlantic bluefish fishery in 2009 (the last year for which there are complete data). The active participants in the commercial sector were defined using two sets of data. The Northeast dealer reports were used to identify 688 vessels that landed bluefish in States from Maine through North Carolina in 2009. However, the Northeast dealer database does not provide information about fishery participation in South Carolina, Georgia, or Florida. South Atlantic Trip Ticket reports were used to identify 908 vessels that landed bluefish in North Carolina, and 685 vessels that landed bluefish on Florida's east coast. Some of these vessels were also identified in the Northeast dealer data; therefore, double counting is possible. Bluefish landings in South Carolina and Georgia were near zero in 2009, representing a negligible proportion of the total bluefish landings along the Atlantic Coast. Therefore, this analysis assumed that no vessel activity for these two States took place in 2009. In recent years, approximately 2,063 party/charter vessels may have been active in the bluefish fishery and/or have caught bluefish.

Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

No additional reporting, recordkeeping, or other compliance requirements are included in this final rule.

Description of the Steps Taken To Minimize Economic Impact on Small Entities

Specification of commercial quota, recreational harvest levels, and possession limits is constrained by the conservation objectives of the FMP, under the authority of the Magnuson-Stevens Act. The commercial quota contained in this final rule is 8 percent lower than the 2010 quota and 61 percent higher than actual 2010 bluefish landings. All affected States will receive reductions in their individual commercial quota allocation in comparison to their respective 2010 individual State allocations. However, the magnitude of the reduction varies depending on the State's respective percent share in the total commercial quota, as specified in the FMP.

The RHL contained in this final rule is approximately 4 percent lower than the RHL in 2010. The small reduction in RHL is a reflection of a declining trend in recreational bluefish harvest in recent years. Since the 2011 RHL is greater than the total estimated recreational bluefish harvest for 2010, it does not constrain recreational bluefish harvest below a level that the fishery is anticipated to achieve. The possession limit for bluefish will remain at 15 fish per person, so there should be no impact on demand for party/charter vessel fishing and, therefore, no impact on revenues earned by party/charter vessels. No negative economic impacts on the recreational fishery are anticipated.

The impacts on revenues associated with the proposed RSA quota were analyzed and are expected to be minimal. Assuming that the full RSA quota 105,000 lb (48 mt) is landed and sold to support the proposed research projects, then all of the participants in the fishery would benefit from the improved fisheries data yielded from each project.

Because both the RHL and the commercial quota being implemented in this final rule are slightly lower than the 2009 RHL and commercial quotas, and there will be no impacts from the RSA quota, the economic impacts are expected to be minimal.

Under alternative 2, which was not selected, a transfer of bluefish landings from the recreational to the commercial fishery would not occur. The absence of a quota transfer under this alternative would result in decreased commercial fishing opportunity compared to 2010, and is therefore associated with a higher probability of commercial revenue losses compared to the specifications being implemented in this final rule.

The not chosen alternative 3 would be the least restrictive alternative (i.e., least restrictive commercial quota), but was not recommended because it is the status quo. Additionally, the TAC for alternative 3 would have been above the recommended acceptable biological catch which could possibly result in quota overages.

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 shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall 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 small entity compliance guide will be sent to all holders of Federal permits issued for the Atlantic bluefish fishery.

In addition, copies of this final rule and guide (i.e., permit holder letter) are available from NMFS (see ADDRESSES) and at the following Web site: http://www.nero.noaa.gov.

List of Subjects in 50 CFR Part 648

• Fisheries
• Fishing
• Recordkeeping and reporting requirements

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

PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

2. In § 648.160, paragraph (a) is revised to read as follows: