Fisheries of the Northeastern United States; Mid-Atlantic Unmanaged Forage Omnibus Amendment, 40721-40734 [2017-18034]

Download as PDF Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations The rule is effective 12 a.m. local time August 28, 2017, through 11:59 p.m. local time December 31, 2017. FOR FURTHER INFORMATION CONTACT: Celia Barroso, NMFS West Coast Region, 562–432–1850. SUPPLEMENTARY INFORMATION: The United States is a member of the IATTC, which was established under the Convention for the Establishment of an Inter-American Tropical Tuna Commission signed in 1949 (Convention). The Convention provides an international agreement to ensure the effective international conservation and management of highly migratory species of fish in the IATTC Convention Area. The IATTC Convention Area, as amended by the Antigua Convention, includes the waters of the EPO bounded by the coast of the Americas, the 50° N. and 50° S. parallels, and the 150° W. meridian. Fishing for Pacific bluefin tuna in the EPO is managed, in part, under the Tuna Conventions Act as amended (Act), 16 U.S.C. 951–962. Under the Act, NMFS must publish regulations to carry out recommendations of the IATTC that have been approved by the Department of State (DOS). Regulations governing fishing by U.S. vessels in accordance with the Act appear at 50 CFR part 300, subpart C. These regulations implement IATTC recommendations for the conservation and management of highly migratory fish resources in the EPO. In 2016, the IATTC adopted Resolution C–16–08, which establishes a 600 metric ton (mt) catch limit of Pacific bluefin tuna applicable to U.S. commercial fishing vessels in 2017 and 2018, combined. Additionally, catch is not to exceed 425 mt in a single year; therefore, the annual limit in 2017 is 425 mt. With the approval of the DOS, NMFS implemented this catch limit by notice-and-comment rulemaking under the Act (82 FR 18704, April 21, 2017, and codified at 50 CFR 300.25). NMFS, through monitoring landings data and other available information, has determined that the 2017 catch limit has been exceeded. In accordance with 50 CFR 300.25(g), this Federal Register notice announces that the U.S. fishery for Pacific bluefin tuna in the IATTC Convention Area will be closed starting on August 28, 2017, through the end of the 2017 calendar year. The 2018 catch limit will be calculated by subtracting the amount caught in 2017 from 600 mt. During the closure, a U.S. fishing vessel may not be used to target, retain on board, transship, or land Pacific bluefin tuna captured in the IATTC Convention Area, except as follows: Any Pacific bluefin tuna already on asabaliauskas on DSKBBXCHB2PROD with RULES DATES: VerDate Sep<11>2014 17:58 Aug 25, 2017 Jkt 241001 board a fishing vessel on August 28, 2017, may be retained on board, transshipped, and/or landed, to the extent authorized by applicable laws and regulations, provided all Pacific bluefin tuna are landed within 14 days after the effective date of this rule, that is, no later than September 11, 2017. Classification NMFS has determined there is good cause to waive prior notice and opportunity for public comment pursuant to 5 U.S.C. 553(b)(B). This action is based on the best available information and is necessary for the conservation and management of Pacific bluefin tuna. Compliance with the notice and comment requirement would be impracticable and contrary to the public interest because NMFS would be unable to ensure that the 2017 Pacific bluefin tuna catch limit is not further exceeded, and that biennial limit of 600mt is also not exceeded. For the same reasons, NMFS has also determined there is good cause to waive the requirement for a 30-day delay in effectiveness under 5 U.S.C. 553(d)(3). This action is required by § 300.25(a) and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 951 et seq. Dated: August 23, 2017. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2017–18157 Filed 8–23–17; 4:15 pm] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 161025999–7662–02] RIN 0648–BG42 Fisheries of the Northeastern United States; Mid-Atlantic Unmanaged Forage Omnibus Amendment National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS partially approves and implements through regulations measures included in the Mid-Atlantic Unmanaged Forage Omnibus Amendment, as adopted by the MidAtlantic Fishery Management Council and approved by NMFS on June 13, 2017. The purpose of this action is to SUMMARY: PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 40721 prevent the development of new, and the expansion of existing, commercial fisheries on certain forage species until the Council has adequate opportunity and information to evaluate the potential impacts of forage fish harvest on existing fisheries, fishing communities, and the marine ecosystem. This final rule implements an annual landing limit, possession limits, and permitting and reporting requirements for Atlantic chub mackerel and certain previously unmanaged forage species and species groups caught within Mid-Atlantic Federal waters; allows vessels to transit MidAtlantic Federal waters with forage species caught in other areas; and identifies measures that can be revised through a future framework adjustment. DATES: This rule is effective September 27, 2017 ADDRESSES: The Council prepared an environmental assessment (EA) for the Mid-Atlantic Unmanaged Forage Omnibus Amendment that describes the Council’s preferred management measures and other alternatives considered and provides a thorough analysis of the impacts of the all alternatives considered. Copies of the Mid-Atlantic Unmanaged Forage Species Omnibus Amendment, including the EA, the Regulatory Impact Review, and the Regulatory Flexibility Act analysis are available from: Christopher Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 State Street Dover, DE 19901. The supporting documents are also accessible via the Internet at: • https://www.regulations.gov/ docket?D=NOAA-NMFS-2017-0013 • https://www.greateratlantic. fisheries.noaa.gov/regs/2017/April/17 ForageOmnibusAmendmentpr.html or • http://www.mafmc.org/actions/ unmanaged-forage. Copies of the small entity compliance guide prepared for this action are available from John K. Bullard, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930– 2298, or available on the internet at: https://www.greateratlantic. fisheries.noaa.gov/sustainable/species/ forage/index.html. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to the Greater Atlantic Regional Fisheries Office and by email to OIRA_Submission@omb.eop.gov or fax to (202) 395–5806. E:\FR\FM\28AUR1.SGM 28AUR1 40722 Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations Disapproved Measures FOR FURTHER INFORMATION CONTACT: Douglas Christel, Fishery Policy Analyst, (978) 281–9141, fax (978) 281– 9135. SUPPLEMENTARY INFORMATION: asabaliauskas on DSKBBXCHB2PROD with RULES Background On August 8, 2016, the Council adopted final measures under the MidAtlantic Unmanaged Forage Omnibus Amendment. On November 23, 2016, the Council submitted the amendment and draft EA to NMFS for preliminary review, with final submission of the draft amendment and EA on March 20, 2017. NMFS published a Notice of Availability in the Federal Register on March 28, 2017 (82 FR 15311), informing the public that the Council had submitted this amendment to the Secretary of Commerce for review and approval. NMFS published a proposed rule that included implementing regulations on April 24, 2017 (82 FR 18882). The public comment period for both the Notice of Availability and proposed rule ended on May 30, 2017. The Council developed the MidAtlantic Unmanaged Forage Omnibus Amendment and the measures described in the proposed rule under the discretionary provision specified in section 303(b)(12) of the MagnusonStevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801, et seq.; 1853(b)(12)). The objective of this action is to prevent the development of new, and the expansion of existing, commercial fisheries on certain forage species until the Council has adequate opportunity and information to evaluate the potential impacts of forage fish harvest on existing fisheries, fishing communities, and the marine ecosystem. The two primary purposes of this action are to: (1) Advance an ecosystem approach to fisheries management in the Mid-Atlantic through consideration of management alternatives that would afford protection to currently unmanaged forage species by regulating landings and/or possession of those species; and (2) consider management alternatives to address data collection and reporting of landings of currently unmanaged forage species. Details concerning the development of these measures are contained in the EA prepared for this action and summarized in the preamble of the proposed rule, and, therefore, are not repeated here. VerDate Sep<11>2014 17:58 Aug 25, 2017 Jkt 241001 Designation of Bullet and Frigate Mackerel as Ecosystem Component (EC) Species The Magnuson-Stevens Act permits NMFS to approve, partially approve, or disapprove measures proposed by the Council based only on whether the measures are consistent with the fishery management plan, the MagnusonStevens Act and its National Standards, and other applicable law. Following the consideration of public comment and additional review of this action and supporting analysis, NMFS concluded that the inclusion of bullet and frigate mackerel as EC species is inconsistent with National Standard 2 of the Magnuson-Stevens Act regarding the use of best available scientific information. The best available scientific information presented for this amendment does not support the proposed designation of bullet and frigate mackerel as forage for species managed by the Council. Because this action is an amendment to the Council’s existing FMPs, the species that are included in the amendment must be a forage species and also must be linked to one or more FMP fisheries, either as prey for the managed species or as bycatch in the managed fisheries. This is consistent with our understanding of Council intent, as documented in the March 2016 Fishery Management Action Team meeting summary. As a result, NMFS asserted that this amendment needed to establish a logical connection between the species proposed as forage and at least one managed species. During the development of this action and in the proposed rule, NMFS advised the Council and the public that bullet and frigate mackerel do not meet the criteria used to identify forage for species regulated by the Council. Although the Council did not rely exclusively on the forage criteria identified by the Council’s Scientific and Statistical Committee (SSC), as summarized in Table 5 of the EA, the forage criteria served as the initial foundation for evaluating species to include in this action. These criteria establish general parameters, including adult size, trophic level, and whether the species comprised a considerable portion of the diet of other predators, among other criteria, to determine whether a species is forage for another species. The adult sizes of bullet and frigate mackerel (20–24 inches (51–61 cm) total length) are larger than the size ranges identified for other forage species included in this action, which average PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 7 inches (18 cm) in total length. Thus, the adult sizes of bullet and frigate mackerel are more than double the forage fish size range recommended by the Council’s SSC (1–10 inches (2–25 cm) total length). Bullet and frigate mackerel feed on most of the other forage species included in this amendment, confirming their higher tropic classification. This is inconsistent with the SSC’s classification criteria that forage species are typically low to mid tropic level species that consume very small prey less than 1-inch long (2–2.5 cm), typically zooplankton and or small benthic invertebrates. While the amendment includes some information suggesting that these species are consumed by large pelagic species such as tunas, billfish, and sharks, it is not clear what portion of the diet of these species that bullet and/or frigate mackerel represent. As a result, while bullet and frigate mackerel may be prey for large pelagic species, it is unknown whether they constitute forage for large pelagic species in the marine ecosystem, as defined by the SSC. Finally, even applying the lower forage thresholds used by the Council (i.e., the presence of forage species in at least two stomach content samples over a 40-year period of NMFS surveys), there is no scientific evidence presented in this amendment that indicates bullet and frigate mackerel are forage for managed species. Thus, the best available scientific information does not support the classification of these species as forage for managed species, and NMFS determined that including them would be inconsistent with National Standard 2 of the Magnuson-Stevens Act. Other criteria considered by the Council to classify forage species for this amendment include the presence of such species as bycatch in managed fisheries and the potential for commercial exploitation. While there is evidence that a small amount of bullet mackerel was caught with bottom trawl gear that resulted in the landings of species managed by the Council, the information and analysis indicate cooccurrence that is not necessarily indicative of systematic bycatch in those fisheries. Many unmanaged species cooccur with managed species, but that does not make them forage for the managed species or susceptible to routine bycatch in targeted fisheries for managed species. NMFS concluded that available information is not sufficient to suggest that bullet mackerel are systematically caught as bycatch in managed fisheries. With no dealer reported landings of bullet mackerel, and an average of less than 7,500 lb (3.4 E:\FR\FM\28AUR1.SGM 28AUR1 Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations mt) of frigate mackerel reported landed each year between 1996–2015, including several years when less than 1,000 lb (0.4 mt) was landed, there is limited information to support that these species are caught as bycatch in managed fisheries or will be subject to commercial exploitation at this time. Finally, the best available information does not support the Council’s determination that bullet and frigate mackerel should be classified as EC species based upon the National Standard Guidelines at 50 CFR 600.305. As defined in § 600.305(d)(11) and noted during the April 2016 Council meeting, EC species should not include target stocks that are caught for sale or personal use. However, the amendment includes evidence that bullet and frigate mackerel are caught and sold by commercial vessels and are retained for personal use as bait by recreational fisheries in Federal waters, creating competing interests and conflicts among user groups, both of which are criteria that could exclude consideration of bullet and frigate mackerel as EC species under the National Standard Guidelines. The Council could consider alternative mechanisms to protect and manage these and other similar species, such as little tunny/false albacore and bonito, for the benefits they provide to the marine ecosystem and important commercial and recreational fisheries within the Mid-Atlantic. This is consistent with the May 19, 2017, discussion by the Ecosystem and Ocean Planning Committee (EOPC). If the Council believes that these species require conservation and management, a small tuna FMP or a broader ecosystem based management action may be a more effective vehicle to manage these species than an amendment predicated on protecting forage for managed species. This would allow the Council to develop a management approach and measures that would reflect the unique role these species play in the marine ecosystem, and to better integrate the concerns of and impacts to the predominantly recreational fishery for these species. Such an approach is supported by not only the EOPC, but also by members of the public commenting on this action. asabaliauskas on DSKBBXCHB2PROD with RULES Approved Measures 1. Designation of Certain Mid-Atlantic Forage Species as Ecosystem Component Species This action designates the following forage species and species groups as EC species in all of the FMPs under the Council’s jurisdiction: • Anchovies (family Engraulidae) VerDate Sep<11>2014 17:58 Aug 25, 2017 Jkt 241001 • Argentines (family Argentinidae) • Greeneyes (family Chlorophthalmidae) • Halfbeaks (family Hemiramphidae) • Herrings and Sardines (family Clupeidae) • Lanternfishes (family Myctophidae) • Pearlsides (family Sternoptychidae) • Sand lances (family Ammodytidae) • Silversides (family Atherinopsidae) • Cusk-eels (order Ophidiiformes) • Atlantic Saury-Scomberesox saurus • Pelagic Mollusks (except Sharptail Shortfin Squid) • Copepods, Krill, Amphipods, and Other Species Under One Inch as Adults The Magnuson-Stevens Act contains no requirements to designate EC species. To minimize confusion and reflect the purpose of this action to manage forage species, these species will be collectively referred to as ‘‘MidAtlantic forage species’’ for the remainder of this preamble discussion and in the final regulatory text. 2. Permit and Reporting Requirements This action requires any commercial vessel, operator, or dealer that lands or sells Mid-Atlantic forage species and Atlantic chub mackerel to comply with existing Federal permit and reporting requirements. Any commercial fishing vessel that possesses, lands, or sells Mid-Atlantic forage species or chub mackerel caught in Federal waters from New York through Cape Hatteras, North Carolina (an area referred to as the ‘‘Mid-Atlantic Forage Species Management Unit’’ below and in the regulations), must be issued a valid commercial fishing vessel permit issued by the Greater Atlantic Regional Fisheries Office (GARFO). Any commercial vessel operator fishing for or possessing these species in or from the Mid-Atlantic Forage Species Management Unit must obtain and retain on board a valid operator permit issued by GARFO. Similarly, a seafood dealer purchasing and selling these species must obtain a valid commercial seafood dealer permit issued by GARFO. Vessel operators and dealers are required to report the catch and sale of these species and species groups on existing vessel trip reports (logbooks) and dealer reports, respectively. NMFS and Council staff prepared a species identification guide to help vessel operators and dealers differentiate among these forage species and identify the codes needed to accurately report these on vessel logbooks and dealer reports. We will send this guide to all vessels that landed in Mid-Atlantic ports during 2016 and make it available PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 40723 on both the GARFO and Council Web sites (see ADDRESSES) and through your local NMFS port agent office (see https:// www.greateratlantic.fisheries.noaa.gov/ sed/portagents/portagents.html). The permit and reporting requirements mentioned above for vessels, operators, and dealers fishing for, possessing, and purchasing chub mackerel are effective through December 31, 2020, unless overwritten by another Council or NMFS action. This is because the Council is currently developing potential long-term measures and assembling the scientific information necessary to consider formally integrating chub mackerel as a stock in the fishery managed under the Atlantic Mackerel, Squid, and Butterfish FMP. 3. Annual Landing Limits This action sets an annual landing limit of 2.86 million lb (1,297 mt) for Atlantic chub mackerel. All landings of chub mackerel in ports from Maine through North Carolina will count against the annual landings limit. NMFS will close the directed fishery for chub mackerel in the Mid-Atlantic Forage Species Management Unit once the Regional Administrator determines that 100 percent of the chub mackerel annual landing limit has been harvested. After the closure of the directed fishery, vessels would be subject to the chub mackerel incidental possession limit described below. As in the case for the permit and reporting requirements, the chub mackerel annual landing limit is effective through December 31, 2020, unless overwritten by a future Council or NMFS action. 4. Possession Limits This action establishes a 1,700-lb (771-kg) combined possession limit for all Mid-Atlantic forage species (see the list of EC species listed above) caught within the Mid-Atlantic Forage Species Management Unit. Initially, commercial vessels are not subject to a possession limit for chub mackerel. However, once the chub mackerel annual landing limit is harvested, NMFS will implement a 40,000-lb (18,144-kg) chub mackerel possession limit in the Mid-Atlantic Forage Species Management Unit. As in the case for the annual landing limit, the chub mackerel incidental possession limit will expire on December 31, 2020, unless overwritten by a future Council or NMFS action. 5. Transit Provision This action allows a vessel issued a Federal commercial fishing permit from GARFO that possesses Mid-Atlantic E:\FR\FM\28AUR1.SGM 28AUR1 40724 Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations forage species and chub mackerel in excess of the proposed possession limits to transit the Mid-Atlantic Forage Species Management Unit in certain circumstances. The following three conditions must be met to transit through the management unit: (1) Forage species were harvested outside of the Mid-Atlantic Forage Species Management Unit; (2) the vessel lands in a port that is outside of the MidAtlantic Forage Species Management Unit (i.e., north of New York or south of Cape Hatteras, North Carolina); and (3) all gear is stowed and not available for immediate use. The transiting provision for vessels possessing chub mackerel is effective through December 31, 2020, unless overwritten by a future Council or NMFS action. asabaliauskas on DSKBBXCHB2PROD with RULES 6. Administrative Measures This action allows the Council to modify the list of EC species, annual landing limits, and possession limits for Mid-Atlantic forage species and chub mackerel through a framework adjustment to applicable FMPs rather than through an amendment to these FMPs. Although the preamble of the proposed rule did not indicate that the list of EC species could be modified through a framework action, the proposed regulations did indicate that the list of Mid-Atlantic forage species (the same as the EC species listed above) could be modified in a framework action. Under this action, the Council establishes a policy that requires use of an experimental fishing permit (EFP) to support any new fishery or the expansion of existing fisheries for MidAtlantic forage species. The Council would consider the results of any experimental fishing activity and other relevant information before deciding how to address future changes to the management of fisheries for MidAtlantic forage species. Pursuant to existing regulations at § 648.12, the Regional Administrator already consults with the Council’s Executive Director before approving any exemption under an EFP request. Comments and Responses During the public comment periods for the Notice of Availability and the proposed rule for this amendment, we received 11,519 comments from 11,510 individuals. This included 11,484 form letters from Pew Charitable Trusts; comments from representatives of three commercial fishing entities/groups (Seafreeze Ltd., Lund’s Fisheries Incorporated, and the Garden State Seafood Association (GSSA)); comments from three environmental organizations VerDate Sep<11>2014 17:58 Aug 25, 2017 Jkt 241001 (Pew Charitable Trusts, Wild Oceans, and the Audubon Society); and comments from the Office of Management and Budget. Two individuals expressed general opposition to the rule, while 11,506 individuals supported the action and 11 individuals supported some, but not all of the proposed measures. The following discussion summarizes the issues raised in the comments that were relevant to this action and associated NMFS’s responses. Please note that, pursuant to section 304(a)(3) of the Magnuson-Stevens Act, when NMFS considers the responses to comments, NMFS may only approve or disapprove measures proposed in a particular fishery management plan, amendment, or framework adjustment, and may not change or substitute any measure in a substantive way. General Comments Comment 1: One individual expressed disappointment that the Council waited six years to protect forage species, indicating that the Council should have acted sooner. Response: We are satisfied with the amount of time that the Council took to develop this action, and contend that the measures implemented by this final rule will provide meaningful protection to important forage species in the MidAtlantic. The Council identified the need to protect forage species as part of its strategic planning and visioning process in 2011, and initiated this action in 2014, shortly after receiving guidance about how to manage forage species from its SSC. Because this was the first management action to specifically manage forage species in the Atlantic Ocean, the Council conducted extensive outreach to solicit public input during the development of this action. This action represents proactive steps by the Council to protect previously unmanaged forage species and prevent the initiation or further development of commercial fisheries on these species as it collects information on the importance of these species to fisheries communities and the ecosystem. Comment 2: One individual was concerned that the proposed measures would not become effective until 2020. Response: The comment is incorrect; all measures approved in this final rule are effective on September 27, 2017. As noted above, the Atlantic chub mackerel measures will expire on December 31, 2020, three years after implementation, to incentivize the Council to develop long-term management measures to formally integrate this species into the PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 Atlantic Mackerel, Squid, and Butterfish FMP. Comment 3: Two individuals were concerned that climate change, including ocean acidification, will destroy fish habitat and negatively impact forage fish, sea birds, and marine mammals, with one individual suggesting the Environmental Protection Agency (EPA) should protect our air and water. Response: Recent NMFS studies recognize that certain species are more vulnerable than others to climate change and associated effects to habitat. While stock assessments and management measures can consider the impacts of climate change, NMFS is not authorized to regulate the sources of air and water pollution referenced in these comments. The EPA develops regulations and policies aimed at reducing air and water pollution. Comment 4: One individual suggested that forage fish should be limited to processing as food, not fish meal or fish oil. Response: Because the Council did not impose any restrictions on the use or processing of forage species in this action, NMFS does not have the authority to impose such restrictions through this final rule. Comment 5: Seven individuals, along with 11,484 form letters from Pew, expressed general support for this action. Three individuals indicated that forage fish are a vitally important component to the ecology of our oceans through their role of energy transferors and as the primary food source for larger fish, marine mammals, and humans. A separate comment from Pew indicated that forage fish are the bedrock of coastal economies, jobs, recreation, and seafood, and that protecting them through this action is an important step toward ecosystem based fisheries management. The Audubon Society commented that seabirds depend on forage species, especially small, schooling fish that are protected by this amendment. They provided a list of 15 seabird species that rely upon forage fish for 20 percent or more of their diet. The 11,484 Pew form letters indicated that, due to reductions in the availability and catch rates of other stocks, vessels will target unmanaged species, which would negatively affect those species and predators of those species. Similarly, one individual indicated that this amendment would help prevent the commercial fishing industry from fishing down the food web. Response: We agree that forage species are an integral part of the marine ecosystem, and that excessive catch of E:\FR\FM\28AUR1.SGM 28AUR1 asabaliauskas on DSKBBXCHB2PROD with RULES Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations forage species will have negative impacts not only on predators such as fish, sea birds, and marine mammals, but also on fishing communities that rely upon predators of forage species for important commercial and recreational fisheries. That is why the Council initiated this action as part of its efforts to integrate ecosystem approaches to fisheries management. We recognize that restrictions in targeted fisheries potentially could increase fishing effort on other unmanaged species, such as the forage species listed in this action. By preventing the creation of new or expansion of existing commercial fisheries on previously unmanaged forage species, this action minimizes the risk of fishing down the food web. Comment 6: One individual recommended that we use caution when allowing additional fishing to occur on forage species until we know more about the impacts of fishing on these species. Another individual indicated that NMFS must achieve a sustainable balance between species regeneration and harvest of forage fish. Response: One of the primary purposes of this action is to maintain recent catch levels until we can collect additional data on the catch and landings of these previously unmanaged forage species. The data collected through the vessel logbook and dealer reporting requirements implemented by this action will help the Council make more informed decisions in the future regarding the appropriate levels of catch for such species. Further, this action adopts a policy that requires use of an EFP and subsequent Council review before considering any new fisheries or expansion of existing fisheries for MidAtlantic forage species. Comment 7: One individual was concerned that by managing these species, fishermen would be held responsible for declines in abundance. This individual suggested that there are no plans to examine how environmental factors affect forage species or predators, and that this action does not assess the impacts of factory ships on the ecosystem, only impacts of small boats. Response: We disagree with this commenter. The EA prepared for this action includes a cumulative effects analysis (Section 7.6 of the EA), as required by the National Environmental Policy Act (NEPA) and the Council on Environmental Quality regulations. This analysis considers the impacts of nonfishing activities such as climate change, point and non-point source pollution, shipping, dredging, storm events, and other factors on the physical and biological dimensions of the environment. The impacts of these non- VerDate Sep<11>2014 17:58 Aug 25, 2017 Jkt 241001 fishing activities are considered in the development of all fishery management actions. Further, environmental factors along with mortality resulting from fishing activities are considered when developing a stock assessment and determining the appropriate levels of catch for managed species. Depending on the species, fishing may not be the primary source of mortality, and this will influence the measures necessary to sustain that species. This action will help collect data to help determine the scale of fishing mortality on these forage species should the Council determine that these species require conservation and management in the future. Finally, while the EA does not explicitly evaluate the impacts of ‘‘factory ships’’ on the ecosystem, Section 7 of the EA evaluates the impacts of fishery operations of all sizes of vessels that fish within Federal waters on all aspects of the marine environment, including target and non-target species, endangered species, marine mammals, and habitat. Comment 8: One individual suggested that all fisheries management decisions must be guided by peer reviewed scientific analysis to drive rational decisions. Response: Fishery management decisions must be based upon the best scientific information available, as required by National Standard 2 of the Magnuson-Stevens Act. The best available scientific information can take many forms and does not always take the form of peer reviewed analysis. All fishery measures are developed, analyzed, and reviewed by Council and NMFS staff, external scientists, academic researchers, industry representatives, and others with scientific expertise. Comment 9: Seafreeze Ltd. expressed concern that measures were not based on a scientific threshold for determining whether a species is a forage species in this amendment. It noted that the Council did not use the SSC’s dietary threshold in its definition of forage species (forage species represent greater than five percent of an animal’s diet for more than five years), suggesting that a lack of a threshold or consistent diet data calls into question the purpose of this action. Response: As noted above, the Council did not rely exclusively upon the SSC’s forage species criteria to inform its decision to include forage species for this action, although the SSC’s criteria did serve as the starting point for Council consideration. Section 4.2 of the EA prepared for this action notes that there were ‘‘no uniform quantitative metrics available to PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 40725 compare the trophic level of a number of forage species, or to assess the number of trophic linkages for each species.’’ Instead, the Council determined how to best evaluate the SSC’s and other criteria used to define forage species. The Council used alternative dietary criteria due to the diversity of diet for many species. Specifically, the SSC’s dietary criteria would have reduced the list of forage species to only a few species, many of which are not found in Federal waters. As a result, any proposed measures to protect such a limited list of forage species would not likely have been effective or offer much benefit to managed species important to commercial and recreational fisheries managed by the Council. Accordingly, the Council used a lower threshold to be more inclusive of forage species in this action, while still prioritizing protection for species that had the greatest potential to support future large-scale commercial fisheries. Comment 10: The Garden State Seafood Association (GSSA) was critical of the amendment’s purpose and goals, indicating that there is no biological benefit from the proposed measures. This group suggested that NMFS should delay the implementation of this final rule until measurable goals can be identified. Response: We disagree that there is no biological benefit from this action. Although this action maintains existing catch levels for forage species, in the long-term, this action will help maintain sustainable populations of several forage species for various predators, including Council-managed predators, protected species predators, and seabirds. The purposes of this action are to prevent the expansion of existing and the development of future commercial fisheries for certain forage species while the Council collects the information it needs to assess the impacts to existing fisheries, fishing communities, and the marine ecosystem. The measures implemented by this action do exactly that. Because data have not been collected on the catch of these species, it is difficult to quantitatively assess the impacts of forage species on predators, the marine ecosystem, and communities at this time. Therefore, implementation of reporting requirements through this final rule will provide the information the Council and NMFS need to assess catch of these species and develop more effective measures in the future, as necessary. Comment 11: Seafreeze Ltd. and Lund’s Fisheries Incorporated are concerned that state permitted vessels do not have similar restrictions on the E:\FR\FM\28AUR1.SGM 28AUR1 asabaliauskas on DSKBBXCHB2PROD with RULES 40726 Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations catch of forage species, with Lund’s Fisheries suggesting that this creates two classes of fishermen and penalizes those with a Federal permit from selling forage species. Lund’s Fisheries suggested that NMFS and the Council should encourage the Atlantic States Marine Fisheries Commission to take similar action to protect forage species in state waters. Response: Neither the Council, nor NMFS has the authority to require states to implement similar measures to protect forage species. Because each state has a seat on the Council, and the Council has already expressed its interest in protecting forage species, it is incumbent upon each state to decide whether it should implement similar forage species measures within waters under their jurisdiction. We disagree that this penalizes Federal permit holders from selling catch of these species, as it implements possession limits that reflect 99 percent of trip-level commercial landings of forage species over the past 20 years. Therefore, based on recent fishing operations, vessels issued a Federal permit should not be negatively affected by these possession limits. Comment 12: One individual suggested that this action violates NOAA Administrative Order (NAO) 216–6A because the Council did not examine whether this action would set a precedent for future action with significant effects or represent a decision in principle about future consideration. He also stated that the use of discretionary authority under section 303(b)(12) of the MagnusonStevens Act to manage chub mackerel sets a precedent regarding the regulation of commercially targeted species outside of a FMP and without adequate oversight. In contrast, Pew supports the use of such discretionary authority until the species can be formally integrated as a species within the Atlantic Mackerel, Squid, and Butterfish FMP. Response: The commenter cites text related to the determination of significance of NOAA’s actions as required by the NEPA from an outdated version of NAO 216–6A dated May 20, 1999. The new version of NAO 216–6A became effective April 22, 2016, and contains no such language. In fact, the new version authorizes the development of a companion manual to set policy and procedures for complying with NEPA. That companion manual became effective January 13, 2017, and contains the text referenced by the commenter, but in the context of evaluating the use of a categorical exclusion under extraordinary circumstances. Since the Council developed an EA in support of VerDate Sep<11>2014 17:58 Aug 25, 2017 Jkt 241001 this action, this policy guidance is not relevant to this action. The Council will evaluate the significance of any future action it may develop for chub mackerel as it develops measures for that particular action. We disagree that the use of section 303(b)(12) of the Magnuson-Stevens Act to develop chub mackerel measures under this action sets a precedent that would allow commercial fishing to occur outside of a FMP and without oversight. Section 303(b) specifically authorizes the development of such discretionary measures as part of a FMP. Therefore, this section allows for increased management and oversight of commercial fisheries by the Council, not the opposite. We agree with Pew in that it represents a viable mechanism to proactively implement interim measures to manage this species while the Council develops the required provisions to formally manage chub mackerel as a stock in an FMP. Comment 13: Two individuals recommended that this action should include river herring, with one citing the millions of taxpayer dollars spent to restore habitat and breeding streams that would be wasted if these species are not protected. He indicated that NMFS needs to collect more data and protect river herring in the ocean. Three individuals suggested that this action should also include Atlantic menhaden as a forage species. Response: Because the Council did not consider managing river herring or Atlantic menhaden as forage species under this action, NMFS does not have the authority to add these species through this final rule. The Council has already considered ways to manage river herring as part of Amendment 14 to the Atlantic Mackerel, Squid, and Butterfish FMP and associated specifications since 2014. Specifically, the Council established a river herring and shad catch cap in the mackerel fishery and established reporting requirements to monitor such catch in the mackerel fishery. The Atlantic States Marine Fisheries Commission (ASMFC) already manages Atlantic menhaden because this species is predominantly found in nearshore waters and is prosecuted by state fisheries. The Council could consider management measures for these species and other species through a future action, as appropriate. Ecosystem Component Species Comment 14: One individual indicated that, until there is sufficient science on the population dynamics and trophic significance of all forage species originally listed (presumably by the SSC PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 or Fishery Management Action Team), none of the species should be omitted from this action. Another individual indicated that the Council should be precautionary and implement catch limits for all forage species. Response: Section 4.2 of the EA describes the background for how the Council determined which forage species to include in this action. The Council did not intend to prohibit the harvest of all unmanaged forage species. Instead, the Council identified a list of prioritized forage species to minimize the burden of the proposed new regulations on existing managed fisheries. In selecting the taxa to include in this amendment, the Council prioritized some species due to their importance as prey for ‘‘socially and economically important species’’ and their perceived potential to become the target of large-scale commercial fisheries. The Council could add forage species through a future action as more information becomes available, or as needed to achieve conservation and management objectives. Comment 15: Seafreeze Ltd. and the GSSA oppose the approval of halfbeaks, scaled sardine, Atlantic thread herring, and Spanish sardine as EC species in this action, because there is no link as forage or bycatch between these species and fisheries managed by the Council. They contend that none of these species have been found in NMFS observer data for trawls, gillnets, or hook gear resulting in landings of Council managed species; that they have not been found in the stomachs of Council managed species in NMFS surveys; and that they fail to meet all the criteria for listing as an EC species and the forage species criteria developed by the SSC. Response: We disagree that these species fail to meet the criteria for listing as an EC species, as the amendment provides information that supports the determination that these species are eligible to be listed as EC species based on the criteria outlined in the National Standard Guidelines at § 600.305. The Council relied in part on the SSC’s definition of forage species as well as other criteria in its proposed list of forage species to manage as EC species in this action. Section 6.1 of the EA identifies the rationale for the inclusion of each species in this action. While halfbeaks have not been found in the stomach contents of managed species in NMFS surveys, they were documented as forage for bluefish, a Council-managed species, in another source. Further, the Council notes that halfbeaks are often caught in Florida and are commonly used as bait in MidAtlantic recreational fisheries, making E:\FR\FM\28AUR1.SGM 28AUR1 asabaliauskas on DSKBBXCHB2PROD with RULES Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations them vulnerable to potential future commercial exploitation. There is sufficient evidence that other unmanaged herrings and sardines are consumed as forage for many Councilmanaged species, are often documented as bycatch in managed fisheries, and are potentially vulnerable to commercial exploitation due to market demand. Comment 16: The GSSA, Seafreeze Ltd., and Lund’s Fisheries Incorporated opposed the inclusion of bullet and frigate mackerel as EC species for the same reasons we highlighted in the proposed rule. However, Pew and Wild Oceans, along with 11,496 Pew form letters, supported the inclusion of these species, highlighting their importance to ecosystems and coastal communities who directly or indirectly depend upon the catch or use of these species. One individual disagreed with our assertion that the trophic level of these species is too high, suggesting that trophic linkages are truncated in pelagic ecosystems. Pew noted that bullet and frigate mackerel are vulnerable to commercial exploitation because they school in predictable areas, while Wild Oceans contended that protecting bullet and frigate could reduce predation on managed species by providing more prey for common predators. Supporters also noted that many significant keystone predators such as large pelagic species (tuna, billfish, swordfish, dolphinfish (dorado) and sharks) feed on these mackerel, and a failure to protect them could cause trophic cascading (e.g., effects on species higher or lower in the food chain as a result of changes in prey or predator abundance) and indirect and unpredictable effects (presumably reduced abundance) on large pelagic species. Response: As noted above, we maintain our original contention that the best available information does not support the classification of bullet and frigate mackerel as forage species in this action and that they are not related to species managed by the Council. Public comments did not provide additional information that would change this determination. The SSC did not differentiate trophic structure criteria based on where organisms were found, and the commenter did not provide sufficient evidence to warrant such a differentiation. Although Wild Oceans asserts that these species are vulnerable to commercial exploitation because they school in predictable areas, Pew notes that these species are less vulnerable to commercial fishing, particularly trawl gear, because of their fast swimming speed. This, in conjunction with minimal commercial landings of these species over the past 20 years, suggests VerDate Sep<11>2014 17:58 Aug 25, 2017 Jkt 241001 that these species are not vulnerable to commercial exploitation at this time. While we acknowledge that bullet and frigate are prey for large pelagic species, available information does not confirm that bullet and frigate mackerel constitute a substantial component of the diet of large pelagic species, or that they are forage for managed species. Therefore, there is insufficient information in the amendment to conclude that failure to protect these species through this action would cause trophic cascading or negative impacts on managed species or large pelagic predators. Comment 17: Pew asserts that a nexus between forage species and regulated species is not required by the Magnuson-Stevens Act, noting that the discretionary authority provided in section 303 can be used to conserve target and non-target species considering ecological factors that may affect fish populations. They also cite the National Standard 1 guidelines in highlighting that maintaining adequate forage may prevent overfishing and achieve optimum yield. Wild Oceans indicates that these Guidelines allow flexibility to achieve ecosystem goals, including those in the Council’s ecosystem approach to fisheries management (EAFM) guidance document, and that failure to include these species is contrary to NMFS’ ecosystem based fishery management (EBFM) policy. Response: We agree that section 303 of the Magnuson-Stevens Act provides the Council with the discretion to implement measures for target and nontarget species for ecosystem considerations. As noted in the scoping document for this action and Council meetings during the development of this action, the intent of this action was to maintain an adequate biomass of forage species to allow for abundant populations of Council-managed predators, as well as to integrate ecosystem considerations into the FMP. NMFS determined that forage species considered in this action must have an ecological or operational (bycatch) linkage with Council-managed species in order to maintain consistency with the Council’s intent to maintain an adequate biomass of forage species to allow for abundant populations of Council-managed predators of the forage species. Although the description of the purpose and need for this action, as included in the EA, indicated that the Council was also integrating an ecosystem approach to management into this action, the Council did so by protecting forage species; this action was not intended to be a comprehensive PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 40727 ecosystem management action. NMFS must evaluate this action within the context in which it was developed, and using the best available information, which, as noted above, is not sufficient to justify inclusion of bullet and frigate mackerel as EC species under this action. We also agree that the National Standard 1 Guidelines allow the Council to consider forage and EC species when determining optimum yield and the greatest benefit to the nation. However, it is important to note that the National Standard 1 Guidelines apply to stocks in the fishery that the Council determines require conservation and management. By proposing to manage bullet and frigate mackerel as EC species, the Council has implicitly determined that such species do not require conservation and management measures at this time pursuant to the National Standard Guidelines at § 600.305(c)(5) and are, therefore, not stocks in the fishery. Accordingly, the National Standard 1 Guidelines do not apply to these species. That notwithstanding, if the Council believes that these species require conservation and management in the future, a small tuna FMP or a broader ecosystem based management action may be a more effective vehicle to manage these species than an amendment predicated on protecting forage for managed species. Finally, despite the disapproval of bullet and frigate mackerel as EC species in this action, we contend that the Council’s use of discretionary authority to designate certain other previously unmanaged forage species as EC species and to implement measures to protect against the further exploitation of these species is consistent with both the Council’s EAFM guidance document and the NMFS EBFM policy. Permitting and Reporting Requirements Comment 18: Pew, Lund’s Fisheries Incorporated, and the GSSA support the use of existing permitting requirements for this action. They, along with one individual and the 11,484 respondents to the Pew form letter, also support the use of existing reporting requirements to collect additional data on these species. Another individual indicated that the proposed reporting requirements would not collect acceptable data, but did not suggest why. The Office of Management and Budget indicated that this action would have no effect on any current information collections. Response: The existing permitting and reporting requirements are necessary to collect information to effectively monitor and manage the catch of forage E:\FR\FM\28AUR1.SGM 28AUR1 40728 Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations asabaliauskas on DSKBBXCHB2PROD with RULES species. The permitting and reporting requirements allow us to identify which vessels are catching chub mackerel and Mid-Atlantic forage species, how much they are catching of each species or species group, where and when the catch occurs, and what gear is used to catch these species. This information could then be used to monitor catch against the chub mackerel annual landing limits, enforce possession limits, and provide information necessary to assess the status of the stock and develop potential future management measures, as necessary. Thus, this final rule implements the permitting and reporting requirements for Mid-Atlantic forage species. Annual Landing and Possession Limits Comment 19: One individual suggested that NMFS should stop all fishing for forage species, stating that, without limits, commercial vessels will harvest them until endangered and overfished. Respondents to the Pew form letter and another individual suggested that forage fish quotas should be set to prevent overfishing. Response: We do not agree that it is necessary to stop all fishing for forage species or impose quotas for all species to prevent overfishing or prevent such species from becoming endangered. We do not know much about the status of these species. As noted in the response to the previous comment, the information collected through measures implemented by this final rule will: Provide the information the Council needs to effectively monitor the catch of these species; allow the Council and NMFS to evaluate the potential impacts of existing catch levels on existing fisheries, fishing communities, and the marine ecosystem; and allow the Council and NMFS to set appropriate future landing limits to prevent overfishing, as necessary. Comment 20: One individual recommended that NMFS implement a 5.25 million-lb (2,381-mt) annual landing limit for chub mackerel because it reflects the historical fluctuation of the chub mackerel market, is more consistent with the market’s overall direction, avoids implementing artificial constraints, allows equal access to the market, and facilitates competition in the market rather than consolidating control by a select group of large vessels. He notes that implementing the proposed 2.86 million lb (1,297 mt) limit artificially caps the market and could increase landing price to the disproportionate benefit of large vessels. Lund’s Incorporated and the GSSA support the higher limit, stating there is no evidence that the higher limit would VerDate Sep<11>2014 17:58 Aug 25, 2017 Jkt 241001 harm the stock and that it would reduce discards until the SSC can set a reasonable biologically-based limit in a future action. They also suggest the ecosystem management approach should consider changing species distribution, including the increasing availability of a species like chub mackerel in setting landing limits. In contrast, Pew and another individual felt that the proposed limit is too high and that the limit should be set lower as a precaution because NMFS does not have adequate data about biological and ecological status of stock, what fishing level is sustainable, and the impacts of recent increased fishing. Response: Although chub mackerel landings have fluctuated greatly since 1996, landings since 2013 are substantially higher than previous years. The Council considered several alternative annual landing limits for chub mackerel, including the average landing amount from 1996–2015 (900,127 lb (408 mt)), average landings from 2011–2015 (1.75 million lb (794 mt), and the highest landings recorded in 2013 (5.25 million lb (2,381 mt)). Instead, the Council adopted a 2.86 million-lb (1,297-mt) annual landing limit to reflect more recent average landings between 2013–2015. This limit accounts for variations in resource availability and catch, and is higher than the five-year average landings, but lower than the highest landings recorded in 2013. This compromise is not only consistent with the purpose of this action to maintain existing catch levels, but also with the principles advocated by several commenters to mirror recent landings trends, reduce discards, and set a precautionary catch limit while the Council develops longterm measures in a subsequent action. We disagree that the chub mackerel annual landing limit implemented by this final rule implements artificial constraints, prevents equal access to the resource or markets, or disproportionately benefits large vessels. Even without constraints, the landing price for chub mackerel has been highly variable and not necessarily correlated with landing amounts since 1996. The EA suggests that landings amounts and associated price is affected by several variables, including availability of chub mackerel and other species. Therefore, the Council and NMFS cannot determine how any one particular measure affects market prices at this time. All vessels of all sizes have equal access to available chub mackerel under this action. Section 8.11.4.3 of the EA describes the economic impact analysis required under the Regulatory Flexibility Act (RFA). That analysis PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 indicates that between 2006 and 2015, 63 small businesses and affiliated entities reported fishing revenues from forage species affected by this action. All of these entities had average annual sales during 2013–2015 that were less than $11 million, which is the level of annual fishery revenue used to determine small entities under the RFA. Thus, all entities affected by this action are classified as small businesses. Further, this analysis concluded that all proposed measures, including the chub mackerel annual landing limit, would not place a substantial number of small entities at a significant competitive disadvantage to large entities. Comment 21: Seafreeze Ltd., Lund’s Fisheries Incorporated, and the GSSA support the 40,000-lb (18-mt) chub mackerel possession limit once the annual landing limit is reached. Pew indicated that the limit is not supported by the best available science or a methodology similar to the limit used to derive the possession limit for other EC species, suggesting that it should be lower to prevent a directed fishery. Another individual stated the possession limit is higher than annual chub mackerel landings before 2003, and suggested that it disproportionately benefits larger vessels. He recommended that if NMFS implements the 2.86 million-lb (1,297-mt) chub mackerel annual landing limit, NMFS should also implement the 10,000-lb (4.5-mt) possession limit because the annual limit and possession limit must be similarly restrictive to equitably restrict all fisheries regardless of size and better align with the amendment’s purpose of preventing fishery expansion. He also noted that the lower possession limit reduces discards, but does not provide enough incentive to target the species. Response: To be consistent with the methodology used by the Council to determine the possession limit for EC species, the Council would have had to adopt a much higher chub mackerel possession limit than the proposed 40,000-lb (18-mt) limit. The limit for EC species was based on the 99th percentile of dealer-reported landings of these species from 1997–2015. That limit was meant to maintain existing catch levels for those species. In contrast, as noted by Pew, the chub mackerel limit was intended to prevent directed fishing. Accordingly, using a similar methodology is not appropriate, as the trip limit should reduce incentives to target chub mackerel. The Council chose a 40,000-lb (18-mt) limit because that is the capacity of a bait truck, and limiting landings to that amount reduces economic incentives to target chub mackerel, while allowing E:\FR\FM\28AUR1.SGM 28AUR1 asabaliauskas on DSKBBXCHB2PROD with RULES Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations vessels to land smaller, incidental amounts of chub mackerel to minimize discards. The Council considered a 10,000-lb (4.5-mt) possession limit based on average trip-level landings from 1996–2015, but that would likely result in higher discards due to larger volumes of chub mackerel caught by larger vessels in recent years. The possession limit selected is separate and distinct from the annual landings limit, and does not need to be proportional to have the desired effect of reducing incentives to target this species once the annual landing limit is caught. We recognize that the possession limit is higher than annual landings before 2003, but note that landings since 1996 have been highly variable, ranging from 479 lb (217 kg) to 5.25 million lb (2,381 mt). Contrary to what one commenter indicated, this possession limit would actually benefit smaller capacity vessels more than larger capacity vessels because it is less likely to constrain landings once the annual landing limit is reached. Section 5.2.3 of the EA states that there is a substantial range in landing amounts within the fishery, concluding that the amount of chub mackerel catch which is truly incidental is not well understood and is likely different for larger, faster vessels than for smaller, slower vessels. Comment 22: Pew, Lund’s Fisheries Incorporated, and the GSSA support the proposed 1,700-lb (771-kg) limit for EC species. Response: This final rule implements this trip limit for approved EC species. Comment 23: The Executive Director of the New England Fishery Management Council highlighted that existing regulations for the Northeast Multispecies FMP only allow the retention of certain species in exempted fisheries within the Southern New England Regulated Mesh Area, an area that overlaps with the proposed MidAtlantic Forage Species Management Unit. He suggested that the final rule clarify that the most restrictive possession limit would apply to vessels subject to the Northeast Multispecies FMP that are fishing within the MidAtlantic Forage Species Management Unit. Response: We agree. This was an oversight, and we made the appropriate changes to the regulatory text at § 648.351(a) in this final rule. Transit Measure Comment 24: Seafreeze Ltd. supported the transit measure, but both Lund’s Fisheries Incorporated and the GSSA opposed the measure, stating that it creates an unfair competitive situation by allowing harvesters from other VerDate Sep<11>2014 17:58 Aug 25, 2017 Jkt 241001 jurisdictions to be exempted from possession limits imposed on MidAtlantic harvesters. Response: The transit measure would only apply to catch of Mid-Atlantic forage species outside of the MidAtlantic Forage Species Management Unit (Mid-Atlantic Federal waters), which is outside of the jurisdiction of the Mid-Atlantic Fishery Management Council. In addition, because transiting vessels must have their gear stowed when transiting the Management Unit, this measure is unlikely to negatively impact Mid-Atlantic forage species, managed species, or other predators. Further, this measure was developed mostly to address the targeting of chub mackerel within the Gulf of Mexico that are landed in Rhode Island. Since this action counts all chub mackerel landed in New England ports against the chub mackerel annual landing limit, impacts to chub mackerel are minimized. The Magnuson-Stevens Act requires the Council to manage a stock throughout its range. Therefore, when considering integrating chub mackerel into the Atlantic Mackerel, Squid, and Butterfish FMP in a future action under development, the Council will need to consider the species range as it develops measures for that action, including potentially reconsidering the need for this transiting provision. Other Administrative Measures Comment 25: Pew Charitable Trusts noted that the Mid-Atlantic Fishery Management Council manages some species to the Virginia/North Carolina border and others to the latitude of Cape Hatteras. Pew supported extending the Mid-Atlantic Forage Species Management Unit to Cape Hatteras to ensure there is no gap in the management of these species within the jurisdiction of the Mid-Atlantic Fishery Management Council. Response: We agree and have implemented the Management Unit as proposed. Comment 26: The GSSA and Lund’s Fisheries Incorporated supported the ability to revise landing and possession limits through a future framework adjustment action. Response: The framework measures have been implemented through this action. Comment 27: The GSSA, Lund’s Fisheries Incorporated, and the Pew Charitable Trusts support the use of an EFP to support the development of any new or expanded fishery for forage species. Pew indicated that the Council should emulate the more formal EFP review process adopted by the Pacific Fisheries Management Council as part PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 40729 of its Comprehensive Ecosystem Based Amendment 1 and documented in its Council Operating Procedure 24 before opening or expanding any fishery. Pew also recommended that NMFS should prohibit new or expanded fishing on EC species until full Federal management is in place that protects their role as prey in the ecosystem, and that the Council should evaluate whether a species is in need of conservation and management before allowing new or expanded fisheries for these species. Response: The Council documented its intent to require an EFP and subsequent review through the adoption of this action. Existing regulations at § 648.12 require the Regional Administrator to consult with the Council’s Executive Director before approving any exemptions to the Council’s FMPs. The regulations revised by this action have already expanded that consultation requirement to specifically include exemptions that would contribute to the development of a new fishery or the expansion of existing fisheries for Mid-Atlantic forage species and chub mackerel. Therefore, the Council has already developed a protocol similar to the Pacific Council’s Operating Procedure 24. At § 648.14(w), this action implements a prohibition against vessels possessing more Mid-Atlantic Forage Species and chub mackerel than authorized in § 648.351. As a result, no additional prohibition is needed to prevent the expansion of existing fisheries or the development of new fisheries for these species. In addition, fisheries for Mid-Atlantic Forage Species cannot develop or expand without a future Council or NMFS action, which must be consistent with the Magnuson-Stevens Act and other applicable law. Thus, both the Council and NMFS will evaluate whether a stock requires conservation and management, and NMFS will ensure that all measures developed for those stocks in the future, including measures to achieve optimum yield, are consistent with applicable law, before approving any new or expanded fisheries for EC species. Comment 28: Pew Charitable Trusts recommended that NMFS update the list of authorized fisheries and gear in § 600.725(v) to ensure that no fishery on unmanaged forage species emerges without the knowledge of NMFS and the Council. Response: As noted in Section 5.3.2.2 of the EA for this action, the list of authorized fisheries and gear at § 600.725(v) already includes two general categories of commercial fisheries for which the legal harvest of unmanaged forage species would be E:\FR\FM\28AUR1.SGM 28AUR1 40730 Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations asabaliauskas on DSKBBXCHB2PROD with RULES allowed without advanced notification to the Council. The Council considered modifying this list as part of this action, but instead implemented more discrete possession limits for forage species. As a result, NMFS cannot unilaterally implement such changes through this final rule. It is likely that any fishery for other unmanaged forage species would be detected through existing data collections such as the vessel logbook or dealer reports. For example, landings of several species of previously unmanaged forage species included in this action (anchovies, argentines, sand lances, silversides, chub mackerel, and frigate mackerel) were recorded in Federal dealer reports. This prompted the Council to develop appropriate management measures through this and the follow-on chub mackerel amendment. Similar action can be taken in the future for other species, as appropriate. Impact Analysis Comment 29: One individual indicated that the negative socioeconomic impacts of this action will be offset by the positive socioeconomic impacts of maintaining healthy populations of forage species. He also noted that the amendment should consider the recreational and professional diving communities in the socioeconomic impact analysis, as a lack of forage species could negatively affect seal and predator populations, which are important drivers of demand for diving and spearfishing trips. The comment included a statement from another individual who estimated that dive shops in the Greater Boston Area cater to up to 1,500 divers each year and have yearly revenues of $3–4 million. Response: We agree that the benefits of maintaining recent catch levels of certain forage species through measures implemented by this action outweigh the potential costs associated with annual landing limits and possession limits. The EA prepared for this action included a description of the affected environment in Section 6, and an evaluation of the impacts of the proposed measures on components of the affected environment, including marine predators such as fish species, marine mammals, and fishing communities, in Section 7. The socioeconomic impact analysis focused on commercial and recreational fishery participants because they are the entities most likely to be affected by this action. That analysis did not evaluate impacts to diving operations because diving operations are only indirectly affected by this action and are not subject to these measures. As a result, VerDate Sep<11>2014 17:58 Aug 25, 2017 Jkt 241001 the Regulatory Flexibility Act does not require consideration of the impacts to non-regulated entities such as the diving industry. However, this action should provide benefits to the diving community similar to the benefits that would accrue to the recreational fishery in that it will protect forage species from further commercial exploitation, which will help maintain predator and seal populations important to the spearfishing and diving communities. Changes From the Proposed Rule We have made several changes to the proposed regulations, including changes as a result of public comment and our decision to disapprove the inclusion of bullet and frigate mackerel as EC species. Some of these changes are administrative in nature, clarify the new or existing management measures, or correct inadvertent omissions in the proposed rule. All of these changes are consistent with section 305(d) of the Magnuson-Stevens Act (16 U.S.C. 1855(d)), which provides that the Secretary of Commerce may promulgate regulations necessary to ensure that amendments to an FMP are carried out in accordance with the FMP and the Magnuson-Stevens Act. These changes are listed below in the order that they appear in the regulations. In this final rule’s amendments to § 648.2, paragraph (a)(14) is renumbered as (a)(12), and paragraph (a)(15) is renumbered as (a)(13), to reflect the disapproval of the inclusion of bullet and frigate mackerel as Mid-Atlantic forage species in this final rule. The regulations at §§ 648.4(a)(15), 648.5(a)(2), 648.6(a)(1), 648.7(a)(1) and (b)(1)(i), and 648.351(d) were revised by adding language specifying that the vessel permit, operator permit, dealer permit, reporting requirements, and transiting provision for vessels fishing for and possessing Atlantic chub mackerel and dealers purchasing chub mackerel are effective through December 31, 2020, as intended. In § 648.351(a), the phrase ‘‘Unless otherwise prohibited under § 648.80,’’ was added to the beginning of this paragraph to reference the possession restrictions of Northeast multispecies exempted fisheries. As noted above in Comment 23, the Executive Director of the New England Fishery Management Council indicated that the proposed possession limits for Mid-Atlantic forage species would inadvertently allow a vessel to possess species that are not explicitly authorized for exempted fisheries implemented under the Northeast Multispecies FMP. PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 Classification The Administrator, Greater Atlantic Region, NMFS, determined that the Mid-Atlantic Unmanaged Forage Omnibus Amendment is necessary for the conservation and management of the fisheries managed by the Mid-Atlantic Fishery Management Council and that it is consistent with the MagnusonStevens Fishery Conservation and Management Act and other applicable laws. This final rule has been determined to be not significant for purposes of Executive Order 12866. This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. NMFS received two comments regarding the socioeconomic impacts of this action (see Comments 20 and 29 above). In Comment 20, the commenter suggested that this action would artificially cap the market that could disproportionately benefit large vessels. However, as noted above, because all entities affected by this action are small businesses, this action could not place a substantial number of small entities at a significant competitive disadvantage to large entities. Comment 20 pertained to the diving community, a group that is not subject to the regulations under this action. Accordingly, no comments were received that would change the certification that this action will not have a significant economic impact on a substantial number of small entities regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared. This final rule contains a collectionof-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by the Office of Management and Budget (OMB) under the OMB control numbers listed below. Public reporting burden for these collections of information, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information, are estimated to average, as follows: 1. Initial Federal vessel permit application, OMB# 0648–0202, (45 minutes/response); E:\FR\FM\28AUR1.SGM 28AUR1 Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations 2. Initial Federal dealer permit application, OMB# 0648–0202, (15 minutes/response); 3. Initial Federal operator permit application, OMB# 0648–0202, (60 minutes/response); 4. Vessel logbook report of catch by species, OMB# 0648–0212, (5 minutes/ response); and 5. Dealer report of landings by species, OMB# 0648–0229, (4 minutes/ response). Send comments on these or any other aspects of the collection of information to the Greater Atlantic Regional Fisheries Office at the ADDRESSES above, and email to OIRA_Submission@ omb.eop.gov, or fax to (202) 395–5806. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. List of Subjects in 50 CFR Part 648 Fisheries, Fishing, Recordkeeping and reporting requirements. Dated: August 21, 2017. 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: 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 § 648.2, add definitions for ‘‘Atlantic chub mackerel’’ and ‘‘MidAtlantic forage species’’ in alphabetical order to read as follows: ■ § 648.2 Definitions. asabaliauskas on DSKBBXCHB2PROD with RULES * * * * * Atlantic chub mackerel means Scomber colias. * * * * * Mid-Atlantic forage species means the following species and species groups: (1) Anchovies (family Engraulidae), including but not limited to the following species: (i) Striped anchovy-Anchoa hepsetus. (ii) Dusky anchovy-Anchoa lyolepis. (iii) Bay anchovy-Anchoa mitchilli. (iv) Silver anchovy-Engraulis eurystole. (2) Argentines (family Argentinidae), including but not limited to the following species: VerDate Sep<11>2014 17:58 Aug 25, 2017 Jkt 241001 (i) Striated argentine-Argentina striata. (ii) Pygmy argentine-Glossanodon pygmaeus. (3) Greeneyes (family Chlorophthalmidae), including but not limited to the following species: (i) Shortnose greeneyeChlorophthalmus agassizi. (ii) Longnose greeneye-Parasudis truculenta. (4) Halfbeaks (family Hemiramphidae), including but not limited to the following species: (i) Flying halfbeak-Euleptorhamphus velox. (ii) Balao-Hemiramphus balao. (iii) Ballyhoo-Hemiramphus brasiliensis. (iv) False silverstripe halfbeak/ American halfbeak/Meek’s halfbeakHyporhamphus meeki. (5) Herrings and Sardines (family Clupeidae). With the exception of other herring and sardine species managed under this part, including American shad, Atlantic herring, blueback herring, hickory shad, and river herring/alewife, as defined in this section, the following herring and sardine species are MidAtlantic forage species: (i) Round herring-Etrumeus teres. (ii) Scaled sardine-Harengula jaguana. (iii) Atlantic thread herringOpisthonema oglinum. (iv) Spanish sardine-Sardinella aurita. (6) Lanternfishes (family Myctophidae), including but not limited to the following species: (i) Horned lanternfish-Ceratoscopelus maderensis. (ii) Dumril’s headlightfish-Diaphus dumerilii. (iii) Crocodile lanternfishLampanyctus crocodilus. (iv) Doflein’s false headlightfishLobianchia dofleini. (v) Spotted lanternfish-Myctophum punctatum. (7) Pearlsides (family Sternoptychidae), including but not limited to the following species: (i) Atlantic silver hatchetfishArgyropelecus aculeatus. (ii) Muller’s pearlside-Maurolicus muelleri. (iii) Weizman’s pearlside-Maurolicus weitzmani. (iv) Slope hatchetfish-Polyipnus clarus. (8) Sand lances (family Ammodytidae), including but not limited to the following species: (i) American/inshore sand lanceAmmodytes americanus. (ii) Northern/offshore sand lanceAmmodytes dubius. PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 40731 (9) Silversides (family Atherinopsidae), including but not limited to the following species: (i) Rough silverside-Membras martinica. (ii) Inland silverside-Menidia beryllina. (iii) Atlantic silverside-Menidia menidia. (10) Cusk-eels (order Ophidiiformes), including but not limited to the following species: (i) Chain pearlfish-Echiodon dawsoni. (ii) Fawn cusk-eel-Lepophidium profundorum. (iii) Striped cusk-eel-Ophidion marginatum. (11) Atlantic saury-Scomberesox saurus. (12) Pelagic mollusks and cephalopods, excluding sharptail shortfin squid (Illex oxygonius), but including the following pelagic mollusc species: (i) Neon flying squid-Ommastrephes bartramii. (ii) European flying squid-Todarodes sagittatus. (iii) Atlantic brief squid-Lolliguncula brevis. (iv) Bobtail squids (family Sepiolidae), including but not limited to the following species: (A) Odd bobtail squid-Heteroteuthis dispar. (B) Big fin bobtail squid-Rossia megaptera. (C) Warty bobtail squid-Rossia palpebrosa. (D) Lesser bobtail squid-Semirossia tenera. (E) Butterfly bobtail squidStoloteuthis leucoptera. (v) Sea angels and sea butterflies (orders Gymnosomata and Thecosomata). (vi) Tuberculate pelagic octopusOcythoe tuberculata. (13) Species under one inch as adults, including but not limited to the following species groups: (i) Copepods (subclass Copepoda). (ii) Krill (order Euphausiacea). (iii) Amphipods (order Amphipoda). (iv) Ostracods (class Ostracoda). (v) Isopods (order Isopoda). (vi) Mysid shrimp (order Mysidacea). * * * * * ■ 3. In § 648.4, add paragraph (a)(15) to read as follows: § 648.4 Vessel permits. (a) * * * (15) Mid-Atlantic forage species and Atlantic chub mackerel. Any commercial fishing vessel must have been issued and have on board a valid commercial vessel permit issued in E:\FR\FM\28AUR1.SGM 28AUR1 40732 Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations accordance with this paragraph (a)(15) to fish for, possess, transport, sell, or land Mid-Atlantic forage species or Atlantic chub mackerel in or from the EEZ portion of the Mid-Atlantic Forage Species Management Unit, as defined at § 648.351(c). The vessel permit requirements specified in this paragraph (a)(15) for a commercial fishing vessel fishing for, possessing, transporting, selling, or landing Atlantic chub mackerel are effective through December 31, 2020. A vessel that fishes for such species exclusively in state waters is not required to be issued a Federal permit. * * * * * ■ 4. In § 648.5, revise paragraph (a) to read as follows: asabaliauskas on DSKBBXCHB2PROD with RULES § 648.5 Operator permits. (a) General. (1) Any operator of a vessel issued a permit, carrier permit, or processing permit for, and that fishes for or possesses, the species listed in paragraph (a)(2) of this section, must have been issued, and carry on board, a valid operator permit for these species. An operator’s permit issued pursuant to part 622 or part 697 of this chapter, satisfies the permitting requirement of this section. This requirement does not apply to operators of recreational vessels. (2) Following are the applicable species: Atlantic sea scallops, NE multispecies, spiny dogfish, monkfish, Atlantic herring, Atlantic surfclam, ocean quahog, Atlantic mackerel, squid, butterfish, scup, black sea bass, or Atlantic bluefish, harvested in or from the EEZ; tilefish harvested in or from the EEZ portion of the Tilefish Management Unit; skates harvested in or from the EEZ portion of the Skate Management Unit; Atlantic deep-sea red crab harvested in or from the EEZ portion of the Red Crab Management Unit; or Atlantic chub mackerel and Mid-Atlantic forage species, as defined at § 648.2, harvested in or from the EEZ portion of the Mid-Atlantic Forage Species Management Unit, as defined at § 648.351(c). The operator permit requirements specified in this paragraph (a)(2) for an operator of a vessel fishing for and possessing Atlantic chub mackerel are effective through December 31, 2020. * * * * * ■ 5. In § 648.6, revise paragraph (a)(1) to read as follows: § 648.6 Dealer/processor permits. (a) * * * (1) All dealers of NE multispecies, monkfish, skates, Atlantic herring, Atlantic sea scallop, Atlantic deep-sea VerDate Sep<11>2014 17:58 Aug 25, 2017 Jkt 241001 red crab, spiny dogfish, summer flounder, Atlantic surfclam, ocean quahog, Atlantic mackerel, squid, butterfish, scup, bluefish, tilefish, and black sea bass; Atlantic surfclam and ocean quahog processors; Atlantic hagfish dealers and/or processors, and Atlantic herring processors or dealers, as described in § 648.2; must have been issued under this section, and have in their possession, a valid permit or permits for these species. A dealer of Atlantic chub mackerel or Mid-Atlantic forage species, as defined in § 648.2, harvested in or from the EEZ portion of the Mid-Atlantic Forage Species Management Unit, as defined at § 648.351(c), must have been issued and have in their possession, a valid dealer permit for any species issued in accordance with this paragraph. The dealer permit requirements specified in this paragraph (a)(1) for dealers purchasing Atlantic chub mackerel are effective through December 31, 2020. * * * * * ■ 6. In § 648.7, revise paragraphs (a)(1) and (b)(1)(i) to read as follows: § 648.7 Recordkeeping and reporting requirements. (a)(1) Detailed report. Federally permitted dealers, and any individual acting in the capacity of a dealer, must submit to the Regional Administrator or to the official designee a detailed report of all fish purchased or received for a commercial purpose, other than solely for transport on land, within the time period specified in paragraph (f) of this section, by one of the available electronic reporting mechanisms approved by NMFS, unless otherwise directed by the Regional Administrator. The dealer reporting requirements specified in this paragraph (a)(1) for dealers purchasing or receiving for a commercial purpose Atlantic chub mackerel are effective through December 31, 2020. The following information, and any other information required by the Regional Administrator, must be provided in each report: * * * * * (b) * * * (1) * * * (i) The owner or operator of any vessel issued a valid permit or eligible to renew a limited access permit under this part must maintain on board the vessel, and submit, an accurate fishing log report for each fishing trip, regardless of species fished for or taken, on forms supplied by or approved by the Regional Administrator. The reporting requirements specified in this paragraph (b)(1)(i) for an owner or operator of a vessels fishing for, PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 possessing, or landing Atlantic chub mackerel are effective through December 31, 2020. If authorized in writing by the Regional Administrator, a vessel owner or operator may submit reports electronically, for example by using a VMS or other media. With the exception of those vessel owners or operators fishing under a surfclam or ocean quahog permit, at least the following information and any other information required by the Regional Administrator must be provided: Vessel name; USCG documentation number (or state registration number, if undocumented); permit number; date/ time sailed; date/time landed; trip type; number of crew; number of anglers (if a charter or party boat); gear fished; quantity and size of gear; mesh/ring size; chart area fished; average depth; latitude/longitude (or loran station and bearings); total hauls per area fished; average tow time duration; hail weight, in pounds (or count of individual fish, if a party or charter vessel), by species, of all species, or parts of species, such as monkfish livers, landed or discarded; and, in the case of skate discards, ‘‘small’’ (i.e., less than 23 inches (58.42 cm), total length) or ‘‘large’’ (i.e., 23 inches (58.42 cm) or greater, total length) skates; dealer permit number; dealer name; date sold, port and state landed; and vessel operator’s name, signature, and operator’s permit number (if applicable). * * * * * ■ 7. In § 648.12, revise the introductory text to read as follows: § 648.12 Experimental fishing. The Regional Administrator may exempt any person or vessel from the requirements of subparts A (General provisions), B (Atlantic mackerel, squid, and butterfish), D (Atlantic sea scallop), E (Atlantic surfclam and ocean quahog), F (NE multispecies and monkfish), G (summer flounder), H (scup), I (black sea bass), J (Atlantic bluefish), K (Atlantic herring), L (spiny dogfish), M (Atlantic deep-sea red crab), N (tilefish), O (skates), and P (Mid-Atlantic forage species and Atlantic chub mackerel) of this part for the conduct of experimental fishing beneficial to the management of the resources or fishery managed under that subpart. The Regional Administrator shall consult with the Executive Director of the MAFMC before approving any exemptions for the Atlantic mackerel, squid, butterfish, summer flounder, scup, black sea bass, spiny dogfish, bluefish, and tilefish fisheries, including exemptions for experimental fishing contributing to the development of new or expansion of E:\FR\FM\28AUR1.SGM 28AUR1 40733 Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations existing fisheries for Mid-Atlantic forage species and Atlantic chub mackerel. * * * * * ■ 8. In § 648.14, add paragraph (w) to read as follows: § 648.14 Prohibitions. * * * * (w) Mid-Atlantic forage species and Atlantic chub mackerel. It is unlawful for any person owning or operating a vessel issued a valid commercial permit under this part to do any of the following: (1) Fish for, possess, transfer, receive, or land; or attempt to fish for, possess, transfer, receive, or land; more than 1,700 lb (771.11 kg) of all Mid-Atlantic forage species combined per trip in or from the Mid-Atlantic Forage Species Management Unit, as defined at § 648.351(c). A vessel not issued a commercial permit in accordance with § 648.4 that fished exclusively in state waters or a vessel that fished Federal waters outside of the Mid-Atlantic Forage Species Management Unit that is transiting the area with gear that is stowed and not available for immediate use is exempt from this prohibition. (2) Fish for, possess, transfer, receive, or land; or attempt to fish for, possess, transfer, receive, or land; more than 40,000 lb (18.14 mt) of Atlantic chub mackerel per trip in or from the MidAtlantic Forage Species Management Unit, as defined at § 648.351(c), after the annual Atlantic chub mackerel landing limit has been harvested and notice has been provided to the public consistent with the Administrative Procedure Act. A vessel not issued a commercial permit in accordance with § 648.4 that fished exclusively in state waters or a vessel that fished in Federal waters outside of the Mid-Atlantic Forage Species Management Unit that is transiting the area with gear that is stowed and not available for immediate use is exempt from this prohibition. ■ 9. Add subpart P to read as follows: asabaliauskas on DSKBBXCHB2PROD with RULES * Subpart P—Mid-Atlantic Forage Species and Atlantic Chub Mackerel Sec. 648.350 Mid-Atlantic forage species and Atlantic chub mackerel annual landing limits. 648.351 Mid-Atlantic forage species and Atlantic chub mackerel possession limits. 648.352 Mid-Atlantic forage species and Atlantic chub mackerel framework measures. § 648.350 Mid-Atlantic forage species and Atlantic chub mackerel annual landing limits. (a) Mid-Atlantic forage species. There is no annual landing limit for Mid- VerDate Sep<11>2014 17:58 Aug 25, 2017 Jkt 241001 Atlantic forage species, as defined at § 648.2. (b) Atlantic chub mackerel. Effective through December 31, 2020, the annual landings limit for Atlantic chub mackerel is set at 2.86 million lb (1,297 mt). All landings of Atlantic chub mackerel by vessels issued a Federal commercial permit in accordance with § 648.4 in ports from Maine through North Carolina shall count against the annual landings limit. NMFS shall close the directed fishery for Atlantic chub mackerel in the EEZ portion of the MidAtlantic Forage Species Management Unit in a manner consistent with the Administrative Procedure Act when the Regional Administrator determines that 100 percent of the Atlantic chub mackerel annual landings limit has been harvested. Following closure of the directed Atlantic chub mackerel fishery, a vessel must adhere to the possession limit specified in § 648.351(b). § 648.351 Mid-Atlantic forage species and Atlantic chub mackerel possession limits. (a) Mid-Atlantic forage species. Unless otherwise prohibited in § 648.80, a vessel issued a valid commercial permit in accordance with § 648.4 may fish for, possess, and land up to 1,700 lb (771.11 kg) of all Mid-Atlantic forage species combined per trip in or from the EEZ portion of the Mid-Atlantic Forage Species Management Unit, as defined in paragraph (c) of this section. A vessel not issued a permit in accordance with § 648.4 that is fishing exclusively in state waters is exempt from the possession limits specified in this section. (b) Atlantic chub mackerel. Effective through December 31, 2020, a vessel issued a valid commercial permit in accordance with § 648.4 may fish for, possess, and land an unlimited amount of Atlantic chub mackerel from the MidAtlantic Forage Species Management Unit, as defined in paragraph (c) of this section, provided the Atlantic chub mackerel annual landing limit has not been harvested. Once the Atlantic chub mackerel annual landing limit has been harvested, as specified in § 648.350, a vessel may fish for, possess, and land up to 40,000 lb (18.14 mt) of Atlantic chub mackerel per trip in or from the MidAtlantic Forage Species Management Unit for the remainder of the fishing year (until December 31). A vessel not issued a permit in accordance with § 648.4 that is fishing exclusively in state waters is exempt from the possession limits specified in this section. (c) Mid-Atlantic Forage Species Management Unit. The Mid-Atlantic Forage Species Management Unit is the PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 area of the Atlantic Ocean that is bounded on the southeast by the outer limit of the U.S. EEZ; bounded on the south by 35°15.3′ N. lat. (the approximate latitude of Cape Hatteras, NC); bounded on the west and north by the coastline of the United States; and bounded on the northeast by the following points, connected in the order listed by straight lines: Point 1 ................ 2 ................ 3 ................ 4 ................ 5 ................ 6 ................ 7 ................ 8 ................ 9 ................ 10 .............. 11 .............. 12 .............. 13 .............. 14 .............. 15 .............. 16 .............. 17 .............. 18 .............. 19 .............. 20 .............. 21 .............. 22 .............. 23 .............. 24 .............. 25 .............. 26 .............. 27 .............. 28 .............. 29 .............. 30 .............. 31 .............. 32 .............. 33 .............. 34 .............. 35 .............. 36 .............. 37 .............. 38 .............. 39 .............. 40 .............. 41 .............. 42 .............. 43* ............. Latitude 40°59.32′ N. 40°59.02′ N. 40°57.05′ N. 40°57.87′ N. 40°59.78′ N. 41°1.57′ N. 41°3.40′ N. 41°4.65′ N. 41°6.67′ N. 41°8.69′ N. 41°10.79′ N. 41°12.22′ N. 41°13.57′ N. 41°14.94′ N. 41°15.52′ N. 41°17.43′ N. 41°18.62′ N. 41°18.27′ N. 41°10.31′ N. 41°2.35′ N. 40°54.37′ N. 40°46.39′ N. 40°38.39′ N. 40°30.39′ N. 40°22.38′ N. 40°14.36′ N. 40°6.33′ N. 39°58.29′ N. 39°50.24′ N. 39°42.18′ N. 39°34.11′ N. 39°26.04′ N. 39°17.96′ N. 39°9.86′ N. 39°1.77′ N. 38°53.66′ N. 38°45.54′ N. 38°37.42′ N. 38°29.29′ N. 38°21.15′ N. 38°13.00′ N. 38°4.84′ N. 38°2.21′ N. Longitude 73°39.62′ W. 73°39.41′ W. 73°36.78′ W. 73°32.85′ W. 73°23.70′ W. 73°15.00′ W. 73°6.10′ W. 73°0.00′ W. 72°50.00′ W. 72°40.00′ W. 72°29.45′ W. 72°22.25′ W. 72°15.38′ W. 72°8.35′ W. 72°5.41′ W. 72°1.18′ W. 71°55.80′ W. 71°54.47′ W. 71°46.44′ W. 71°38.43′ W. 71°30.45′ W. 71°22.51′ W. 71°14.60′ W. 71°6.72′ W. 70°58.87′ W. 70°51.05′ W. 70°43.27′ W. 70°35.51′ W. 70°27.78′ W. 70°20.09′ W. 70°12.42′ W. 70°4.78′ W. 69°57.18′ W. 69°49.6′ W. 69°42.05′ W. 69°34.53′ W. 69°27.03′ W. 69°19.57′ W. 69°12.13′ W. 69°4.73′ W. 68°57.35′ W. 68°49.99′ W. 68°47.62′ W. * Point 43 falls on the U.S. EEZ. (d) Transiting. Any vessel issued a valid permit in accordance with § 648.4 may transit the Mid-Atlantic Forage Species Management Unit, as defined in paragraph (c) of this section, with an amount of Mid-Atlantic forage species or Atlantic chub mackerel on board that exceeds the possession limits specified in paragraphs (a) and (b) of this section, respectively, to land in a port in a state that is outside of the Mid-Atlantic Forage Species Management Unit, provided that those species were harvested outside of the Mid-Atlantic Forage Species Management Unit and E:\FR\FM\28AUR1.SGM 28AUR1 40734 Federal Register / Vol. 82, No. 165 / Monday, August 28, 2017 / Rules and Regulations that all gear is stowed and not available for immediate use as defined in § 648.2. The transitting provisions specified in this paragraph (d) for a vessel possessing Atlantic chub mackerel are effective through December 31, 2020. § 648.352 Mid-Atlantic forage species and Atlantic chub mackerel framework measures. asabaliauskas on DSKBBXCHB2PROD with RULES (a) General. The MAFMC may, at any time, initiate action to add or revise management measures if it finds that action is necessary to meet or be consistent with the goals and objectives of the Atlantic Mackerel, Squid, and Butterfish FMP; the Atlantic Surfclam and Ocean Quahog FMP; the Summer Flounder, Scup, and Black Sea Bass VerDate Sep<11>2014 18:18 Aug 25, 2017 Jkt 241001 FMP; the Atlantic Bluefish FMP; the Spiny Dogfish FMP; and Tilefish FMPs. (b) Adjustment process. The MAFMC shall develop and analyze appropriate management actions over the span of at least two MAFMC meetings. The MAFMC must provide the public with advance notice of the availability of the recommendation(s), appropriate justification(s) and economic and biological analyses, and the opportunity to comment on the proposed adjustment(s) at its first meeting, prior to its second meeting, and at its second meeting. The MAFMC’s recommendations on adjustments or additions to management measures must come from one or more of the PO 00000 Frm 00066 Fmt 4700 Sfmt 9990 following categories: The list of MidAtlantic forage species, possession limits, annual landing limits, and any other measure currently included in the applicable FMPs specified in paragraph (a) of this section. Issues that require significant departures from previously contemplated measures or that are otherwise introducing new concepts may require an amendment of the FMPs instead of a framework adjustment. (c) MAFMC recommendation. See § 648.110(a)(2). (d) NMFS action. See § 648.110(a)(3). (e) Emergency actions. See § 648.110(a)(4). [FR Doc. 2017–18034 Filed 8–25–17; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\28AUR1.SGM 28AUR1

Agencies

[Federal Register Volume 82, Number 165 (Monday, August 28, 2017)]
[Rules and Regulations]
[Pages 40721-40734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18034]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 161025999-7662-02]
RIN 0648-BG42


Fisheries of the Northeastern United States; Mid-Atlantic 
Unmanaged Forage Omnibus Amendment

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS partially approves and implements through regulations 
measures included in the Mid-Atlantic Unmanaged Forage Omnibus 
Amendment, as adopted by the Mid-Atlantic Fishery Management Council 
and approved by NMFS on June 13, 2017. The purpose of this action is to 
prevent the development of new, and the expansion of existing, 
commercial fisheries on certain forage species until the Council has 
adequate opportunity and information to evaluate the potential impacts 
of forage fish harvest on existing fisheries, fishing communities, and 
the marine ecosystem. This final rule implements an annual landing 
limit, possession limits, and permitting and reporting requirements for 
Atlantic chub mackerel and certain previously unmanaged forage species 
and species groups caught within Mid-Atlantic Federal waters; allows 
vessels to transit Mid-Atlantic Federal waters with forage species 
caught in other areas; and identifies measures that can be revised 
through a future framework adjustment.

DATES: This rule is effective September 27, 2017

ADDRESSES: The Council prepared an environmental assessment (EA) for 
the Mid-Atlantic Unmanaged Forage Omnibus Amendment that describes the 
Council's preferred management measures and other alternatives 
considered and provides a thorough analysis of the impacts of the all 
alternatives considered. Copies of the Mid-Atlantic Unmanaged Forage 
Species Omnibus Amendment, including the EA, the Regulatory Impact 
Review, and the Regulatory Flexibility Act analysis are available from: 
Christopher Moore, Executive Director, Mid-Atlantic Fishery Management 
Council, Suite 201, 800 State Street Dover, DE 19901. The supporting 
documents are also accessible via the Internet at:
 https://www.regulations.gov/docket?D=NOAA-NMFS-2017-0013
 https://www.greateratlantic.fisheries.noaa.gov/regs/2017/April/17ForageOmnibusAmendmentpr.html or
 http://www.mafmc.org/actions/unmanaged-forage.
    Copies of the small entity compliance guide prepared for this 
action are available from John K. Bullard, Regional Administrator, 
NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic 
Drive, Gloucester, MA 01930-2298, or available on the internet at: 
https://www.greateratlantic.fisheries.noaa.gov/sustainable/species/forage/index.html.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
final rule may be submitted to the Greater Atlantic Regional Fisheries 
Office and by email to OIRA_Submission@omb.eop.gov or fax to (202) 395-
5806.

[[Page 40722]]


FOR FURTHER INFORMATION CONTACT: Douglas Christel, Fishery Policy 
Analyst, (978) 281-9141, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: 

Background

    On August 8, 2016, the Council adopted final measures under the 
Mid-Atlantic Unmanaged Forage Omnibus Amendment. On November 23, 2016, 
the Council submitted the amendment and draft EA to NMFS for 
preliminary review, with final submission of the draft amendment and EA 
on March 20, 2017. NMFS published a Notice of Availability in the 
Federal Register on March 28, 2017 (82 FR 15311), informing the public 
that the Council had submitted this amendment to the Secretary of 
Commerce for review and approval. NMFS published a proposed rule that 
included implementing regulations on April 24, 2017 (82 FR 18882). The 
public comment period for both the Notice of Availability and proposed 
rule ended on May 30, 2017.
    The Council developed the Mid-Atlantic Unmanaged Forage Omnibus 
Amendment and the measures described in the proposed rule under the 
discretionary provision specified in section 303(b)(12) of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) (16 U.S.C. 1801, et seq.; 1853(b)(12)). The objective of 
this action is to prevent the development of new, and the expansion of 
existing, commercial fisheries on certain forage species until the 
Council has adequate opportunity and information to evaluate the 
potential impacts of forage fish harvest on existing fisheries, fishing 
communities, and the marine ecosystem. The two primary purposes of this 
action are to: (1) Advance an ecosystem approach to fisheries 
management in the Mid-Atlantic through consideration of management 
alternatives that would afford protection to currently unmanaged forage 
species by regulating landings and/or possession of those species; and 
(2) consider management alternatives to address data collection and 
reporting of landings of currently unmanaged forage species. Details 
concerning the development of these measures are contained in the EA 
prepared for this action and summarized in the preamble of the proposed 
rule, and, therefore, are not repeated here.

Disapproved Measures

Designation of Bullet and Frigate Mackerel as Ecosystem Component (EC) 
Species

    The Magnuson-Stevens Act permits NMFS to approve, partially 
approve, or disapprove measures proposed by the Council based only on 
whether the measures are consistent with the fishery management plan, 
the Magnuson-Stevens Act and its National Standards, and other 
applicable law. Following the consideration of public comment and 
additional review of this action and supporting analysis, NMFS 
concluded that the inclusion of bullet and frigate mackerel as EC 
species is inconsistent with National Standard 2 of the Magnuson-
Stevens Act regarding the use of best available scientific information.
    The best available scientific information presented for this 
amendment does not support the proposed designation of bullet and 
frigate mackerel as forage for species managed by the Council. Because 
this action is an amendment to the Council's existing FMPs, the species 
that are included in the amendment must be a forage species and also 
must be linked to one or more FMP fisheries, either as prey for the 
managed species or as bycatch in the managed fisheries. This is 
consistent with our understanding of Council intent, as documented in 
the March 2016 Fishery Management Action Team meeting summary. As a 
result, NMFS asserted that this amendment needed to establish a logical 
connection between the species proposed as forage and at least one 
managed species. During the development of this action and in the 
proposed rule, NMFS advised the Council and the public that bullet and 
frigate mackerel do not meet the criteria used to identify forage for 
species regulated by the Council.
    Although the Council did not rely exclusively on the forage 
criteria identified by the Council's Scientific and Statistical 
Committee (SSC), as summarized in Table 5 of the EA, the forage 
criteria served as the initial foundation for evaluating species to 
include in this action. These criteria establish general parameters, 
including adult size, trophic level, and whether the species comprised 
a considerable portion of the diet of other predators, among other 
criteria, to determine whether a species is forage for another species. 
The adult sizes of bullet and frigate mackerel (20-24 inches (51-61 cm) 
total length) are larger than the size ranges identified for other 
forage species included in this action, which average 7 inches (18 cm) 
in total length. Thus, the adult sizes of bullet and frigate mackerel 
are more than double the forage fish size range recommended by the 
Council's SSC (1-10 inches (2-25 cm) total length). Bullet and frigate 
mackerel feed on most of the other forage species included in this 
amendment, confirming their higher tropic classification. This is 
inconsistent with the SSC's classification criteria that forage species 
are typically low to mid tropic level species that consume very small 
prey less than 1-inch long (2-2.5 cm), typically zooplankton and or 
small benthic invertebrates. While the amendment includes some 
information suggesting that these species are consumed by large pelagic 
species such as tunas, billfish, and sharks, it is not clear what 
portion of the diet of these species that bullet and/or frigate 
mackerel represent. As a result, while bullet and frigate mackerel may 
be prey for large pelagic species, it is unknown whether they 
constitute forage for large pelagic species in the marine ecosystem, as 
defined by the SSC. Finally, even applying the lower forage thresholds 
used by the Council (i.e., the presence of forage species in at least 
two stomach content samples over a 40-year period of NMFS surveys), 
there is no scientific evidence presented in this amendment that 
indicates bullet and frigate mackerel are forage for managed species. 
Thus, the best available scientific information does not support the 
classification of these species as forage for managed species, and NMFS 
determined that including them would be inconsistent with National 
Standard 2 of the Magnuson-Stevens Act.
    Other criteria considered by the Council to classify forage species 
for this amendment include the presence of such species as bycatch in 
managed fisheries and the potential for commercial exploitation. While 
there is evidence that a small amount of bullet mackerel was caught 
with bottom trawl gear that resulted in the landings of species managed 
by the Council, the information and analysis indicate co-occurrence 
that is not necessarily indicative of systematic bycatch in those 
fisheries. Many unmanaged species co-occur with managed species, but 
that does not make them forage for the managed species or susceptible 
to routine bycatch in targeted fisheries for managed species. NMFS 
concluded that available information is not sufficient to suggest that 
bullet mackerel are systematically caught as bycatch in managed 
fisheries. With no dealer reported landings of bullet mackerel, and an 
average of less than 7,500 lb (3.4

[[Page 40723]]

mt) of frigate mackerel reported landed each year between 1996-2015, 
including several years when less than 1,000 lb (0.4 mt) was landed, 
there is limited information to support that these species are caught 
as bycatch in managed fisheries or will be subject to commercial 
exploitation at this time.
    Finally, the best available information does not support the 
Council's determination that bullet and frigate mackerel should be 
classified as EC species based upon the National Standard Guidelines at 
50 CFR 600.305. As defined in Sec.  600.305(d)(11) and noted during the 
April 2016 Council meeting, EC species should not include target stocks 
that are caught for sale or personal use. However, the amendment 
includes evidence that bullet and frigate mackerel are caught and sold 
by commercial vessels and are retained for personal use as bait by 
recreational fisheries in Federal waters, creating competing interests 
and conflicts among user groups, both of which are criteria that could 
exclude consideration of bullet and frigate mackerel as EC species 
under the National Standard Guidelines. The Council could consider 
alternative mechanisms to protect and manage these and other similar 
species, such as little tunny/false albacore and bonito, for the 
benefits they provide to the marine ecosystem and important commercial 
and recreational fisheries within the Mid-Atlantic. This is consistent 
with the May 19, 2017, discussion by the Ecosystem and Ocean Planning 
Committee (EOPC). If the Council believes that these species require 
conservation and management, a small tuna FMP or a broader ecosystem 
based management action may be a more effective vehicle to manage these 
species than an amendment predicated on protecting forage for managed 
species. This would allow the Council to develop a management approach 
and measures that would reflect the unique role these species play in 
the marine ecosystem, and to better integrate the concerns of and 
impacts to the predominantly recreational fishery for these species. 
Such an approach is supported by not only the EOPC, but also by members 
of the public commenting on this action.

Approved Measures

1. Designation of Certain Mid-Atlantic Forage Species as Ecosystem 
Component Species

    This action designates the following forage species and species 
groups as EC species in all of the FMPs under the Council's 
jurisdiction:

 Anchovies (family Engraulidae)
 Argentines (family Argentinidae)
 Greeneyes (family Chlorophthalmidae)
 Halfbeaks (family Hemiramphidae)
 Herrings and Sardines (family Clupeidae)
 Lanternfishes (family Myctophidae)
 Pearlsides (family Sternoptychidae)
 Sand lances (family Ammodytidae)
 Silversides (family Atherinopsidae)
 Cusk-eels (order Ophidiiformes)
 Atlantic Saury-Scomberesox saurus
 Pelagic Mollusks (except Sharptail Shortfin Squid)
 Copepods, Krill, Amphipods, and Other Species Under One Inch 
as Adults

    The Magnuson-Stevens Act contains no requirements to designate EC 
species. To minimize confusion and reflect the purpose of this action 
to manage forage species, these species will be collectively referred 
to as ``Mid-Atlantic forage species'' for the remainder of this 
preamble discussion and in the final regulatory text.

2. Permit and Reporting Requirements

    This action requires any commercial vessel, operator, or dealer 
that lands or sells Mid-Atlantic forage species and Atlantic chub 
mackerel to comply with existing Federal permit and reporting 
requirements. Any commercial fishing vessel that possesses, lands, or 
sells Mid-Atlantic forage species or chub mackerel caught in Federal 
waters from New York through Cape Hatteras, North Carolina (an area 
referred to as the ``Mid-Atlantic Forage Species Management Unit'' 
below and in the regulations), must be issued a valid commercial 
fishing vessel permit issued by the Greater Atlantic Regional Fisheries 
Office (GARFO). Any commercial vessel operator fishing for or 
possessing these species in or from the Mid-Atlantic Forage Species 
Management Unit must obtain and retain on board a valid operator permit 
issued by GARFO. Similarly, a seafood dealer purchasing and selling 
these species must obtain a valid commercial seafood dealer permit 
issued by GARFO.
    Vessel operators and dealers are required to report the catch and 
sale of these species and species groups on existing vessel trip 
reports (logbooks) and dealer reports, respectively. NMFS and Council 
staff prepared a species identification guide to help vessel operators 
and dealers differentiate among these forage species and identify the 
codes needed to accurately report these on vessel logbooks and dealer 
reports. We will send this guide to all vessels that landed in Mid-
Atlantic ports during 2016 and make it available on both the GARFO and 
Council Web sites (see ADDRESSES) and through your local NMFS port 
agent office (see https://www.greateratlantic.fisheries.noaa.gov/sed/portagents/portagents.html).
    The permit and reporting requirements mentioned above for vessels, 
operators, and dealers fishing for, possessing, and purchasing chub 
mackerel are effective through December 31, 2020, unless overwritten by 
another Council or NMFS action. This is because the Council is 
currently developing potential long-term measures and assembling the 
scientific information necessary to consider formally integrating chub 
mackerel as a stock in the fishery managed under the Atlantic Mackerel, 
Squid, and Butterfish FMP.

3. Annual Landing Limits

    This action sets an annual landing limit of 2.86 million lb (1,297 
mt) for Atlantic chub mackerel. All landings of chub mackerel in ports 
from Maine through North Carolina will count against the annual 
landings limit. NMFS will close the directed fishery for chub mackerel 
in the Mid-Atlantic Forage Species Management Unit once the Regional 
Administrator determines that 100 percent of the chub mackerel annual 
landing limit has been harvested. After the closure of the directed 
fishery, vessels would be subject to the chub mackerel incidental 
possession limit described below. As in the case for the permit and 
reporting requirements, the chub mackerel annual landing limit is 
effective through December 31, 2020, unless overwritten by a future 
Council or NMFS action.

4. Possession Limits

    This action establishes a 1,700-lb (771-kg) combined possession 
limit for all Mid-Atlantic forage species (see the list of EC species 
listed above) caught within the Mid-Atlantic Forage Species Management 
Unit. Initially, commercial vessels are not subject to a possession 
limit for chub mackerel. However, once the chub mackerel annual landing 
limit is harvested, NMFS will implement a 40,000-lb (18,144-kg) chub 
mackerel possession limit in the Mid-Atlantic Forage Species Management 
Unit. As in the case for the annual landing limit, the chub mackerel 
incidental possession limit will expire on December 31, 2020, unless 
overwritten by a future Council or NMFS action.

5. Transit Provision

    This action allows a vessel issued a Federal commercial fishing 
permit from GARFO that possesses Mid-Atlantic

[[Page 40724]]

forage species and chub mackerel in excess of the proposed possession 
limits to transit the Mid-Atlantic Forage Species Management Unit in 
certain circumstances. The following three conditions must be met to 
transit through the management unit: (1) Forage species were harvested 
outside of the Mid-Atlantic Forage Species Management Unit; (2) the 
vessel lands in a port that is outside of the Mid-Atlantic Forage 
Species Management Unit (i.e., north of New York or south of Cape 
Hatteras, North Carolina); and (3) all gear is stowed and not available 
for immediate use. The transiting provision for vessels possessing chub 
mackerel is effective through December 31, 2020, unless overwritten by 
a future Council or NMFS action.

6. Administrative Measures

    This action allows the Council to modify the list of EC species, 
annual landing limits, and possession limits for Mid-Atlantic forage 
species and chub mackerel through a framework adjustment to applicable 
FMPs rather than through an amendment to these FMPs. Although the 
preamble of the proposed rule did not indicate that the list of EC 
species could be modified through a framework action, the proposed 
regulations did indicate that the list of Mid-Atlantic forage species 
(the same as the EC species listed above) could be modified in a 
framework action.
    Under this action, the Council establishes a policy that requires 
use of an experimental fishing permit (EFP) to support any new fishery 
or the expansion of existing fisheries for Mid-Atlantic forage species. 
The Council would consider the results of any experimental fishing 
activity and other relevant information before deciding how to address 
future changes to the management of fisheries for Mid-Atlantic forage 
species. Pursuant to existing regulations at Sec.  648.12, the Regional 
Administrator already consults with the Council's Executive Director 
before approving any exemption under an EFP request.

Comments and Responses

    During the public comment periods for the Notice of Availability 
and the proposed rule for this amendment, we received 11,519 comments 
from 11,510 individuals. This included 11,484 form letters from Pew 
Charitable Trusts; comments from representatives of three commercial 
fishing entities/groups (Seafreeze Ltd., Lund's Fisheries Incorporated, 
and the Garden State Seafood Association (GSSA)); comments from three 
environmental organizations (Pew Charitable Trusts, Wild Oceans, and 
the Audubon Society); and comments from the Office of Management and 
Budget. Two individuals expressed general opposition to the rule, while 
11,506 individuals supported the action and 11 individuals supported 
some, but not all of the proposed measures. The following discussion 
summarizes the issues raised in the comments that were relevant to this 
action and associated NMFS's responses. Please note that, pursuant to 
section 304(a)(3) of the Magnuson-Stevens Act, when NMFS considers the 
responses to comments, NMFS may only approve or disapprove measures 
proposed in a particular fishery management plan, amendment, or 
framework adjustment, and may not change or substitute any measure in a 
substantive way.

General Comments

    Comment 1: One individual expressed disappointment that the Council 
waited six years to protect forage species, indicating that the Council 
should have acted sooner.
    Response: We are satisfied with the amount of time that the Council 
took to develop this action, and contend that the measures implemented 
by this final rule will provide meaningful protection to important 
forage species in the Mid-Atlantic. The Council identified the need to 
protect forage species as part of its strategic planning and visioning 
process in 2011, and initiated this action in 2014, shortly after 
receiving guidance about how to manage forage species from its SSC. 
Because this was the first management action to specifically manage 
forage species in the Atlantic Ocean, the Council conducted extensive 
outreach to solicit public input during the development of this action. 
This action represents proactive steps by the Council to protect 
previously unmanaged forage species and prevent the initiation or 
further development of commercial fisheries on these species as it 
collects information on the importance of these species to fisheries 
communities and the ecosystem.
    Comment 2: One individual was concerned that the proposed measures 
would not become effective until 2020.
    Response: The comment is incorrect; all measures approved in this 
final rule are effective on September 27, 2017. As noted above, the 
Atlantic chub mackerel measures will expire on December 31, 2020, three 
years after implementation, to incentivize the Council to develop long-
term management measures to formally integrate this species into the 
Atlantic Mackerel, Squid, and Butterfish FMP.
    Comment 3: Two individuals were concerned that climate change, 
including ocean acidification, will destroy fish habitat and negatively 
impact forage fish, sea birds, and marine mammals, with one individual 
suggesting the Environmental Protection Agency (EPA) should protect our 
air and water.
    Response: Recent NMFS studies recognize that certain species are 
more vulnerable than others to climate change and associated effects to 
habitat. While stock assessments and management measures can consider 
the impacts of climate change, NMFS is not authorized to regulate the 
sources of air and water pollution referenced in these comments. The 
EPA develops regulations and policies aimed at reducing air and water 
pollution.
    Comment 4: One individual suggested that forage fish should be 
limited to processing as food, not fish meal or fish oil.
    Response: Because the Council did not impose any restrictions on 
the use or processing of forage species in this action, NMFS does not 
have the authority to impose such restrictions through this final rule.
    Comment 5: Seven individuals, along with 11,484 form letters from 
Pew, expressed general support for this action. Three individuals 
indicated that forage fish are a vitally important component to the 
ecology of our oceans through their role of energy transferors and as 
the primary food source for larger fish, marine mammals, and humans. A 
separate comment from Pew indicated that forage fish are the bedrock of 
coastal economies, jobs, recreation, and seafood, and that protecting 
them through this action is an important step toward ecosystem based 
fisheries management. The Audubon Society commented that seabirds 
depend on forage species, especially small, schooling fish that are 
protected by this amendment. They provided a list of 15 seabird species 
that rely upon forage fish for 20 percent or more of their diet. The 
11,484 Pew form letters indicated that, due to reductions in the 
availability and catch rates of other stocks, vessels will target 
unmanaged species, which would negatively affect those species and 
predators of those species. Similarly, one individual indicated that 
this amendment would help prevent the commercial fishing industry from 
fishing down the food web.
    Response: We agree that forage species are an integral part of the 
marine ecosystem, and that excessive catch of

[[Page 40725]]

forage species will have negative impacts not only on predators such as 
fish, sea birds, and marine mammals, but also on fishing communities 
that rely upon predators of forage species for important commercial and 
recreational fisheries. That is why the Council initiated this action 
as part of its efforts to integrate ecosystem approaches to fisheries 
management. We recognize that restrictions in targeted fisheries 
potentially could increase fishing effort on other unmanaged species, 
such as the forage species listed in this action. By preventing the 
creation of new or expansion of existing commercial fisheries on 
previously unmanaged forage species, this action minimizes the risk of 
fishing down the food web.
    Comment 6: One individual recommended that we use caution when 
allowing additional fishing to occur on forage species until we know 
more about the impacts of fishing on these species. Another individual 
indicated that NMFS must achieve a sustainable balance between species 
regeneration and harvest of forage fish.
    Response: One of the primary purposes of this action is to maintain 
recent catch levels until we can collect additional data on the catch 
and landings of these previously unmanaged forage species. The data 
collected through the vessel logbook and dealer reporting requirements 
implemented by this action will help the Council make more informed 
decisions in the future regarding the appropriate levels of catch for 
such species. Further, this action adopts a policy that requires use of 
an EFP and subsequent Council review before considering any new 
fisheries or expansion of existing fisheries for Mid-Atlantic forage 
species.
    Comment 7: One individual was concerned that by managing these 
species, fishermen would be held responsible for declines in abundance. 
This individual suggested that there are no plans to examine how 
environmental factors affect forage species or predators, and that this 
action does not assess the impacts of factory ships on the ecosystem, 
only impacts of small boats.
    Response: We disagree with this commenter. The EA prepared for this 
action includes a cumulative effects analysis (Section 7.6 of the EA), 
as required by the National Environmental Policy Act (NEPA) and the 
Council on Environmental Quality regulations. This analysis considers 
the impacts of non-fishing activities such as climate change, point and 
non-point source pollution, shipping, dredging, storm events, and other 
factors on the physical and biological dimensions of the environment. 
The impacts of these non-fishing activities are considered in the 
development of all fishery management actions. Further, environmental 
factors along with mortality resulting from fishing activities are 
considered when developing a stock assessment and determining the 
appropriate levels of catch for managed species. Depending on the 
species, fishing may not be the primary source of mortality, and this 
will influence the measures necessary to sustain that species. This 
action will help collect data to help determine the scale of fishing 
mortality on these forage species should the Council determine that 
these species require conservation and management in the future. 
Finally, while the EA does not explicitly evaluate the impacts of 
``factory ships'' on the ecosystem, Section 7 of the EA evaluates the 
impacts of fishery operations of all sizes of vessels that fish within 
Federal waters on all aspects of the marine environment, including 
target and non-target species, endangered species, marine mammals, and 
habitat.
    Comment 8: One individual suggested that all fisheries management 
decisions must be guided by peer reviewed scientific analysis to drive 
rational decisions.
    Response: Fishery management decisions must be based upon the best 
scientific information available, as required by National Standard 2 of 
the Magnuson-Stevens Act. The best available scientific information can 
take many forms and does not always take the form of peer reviewed 
analysis. All fishery measures are developed, analyzed, and reviewed by 
Council and NMFS staff, external scientists, academic researchers, 
industry representatives, and others with scientific expertise.
    Comment 9: Seafreeze Ltd. expressed concern that measures were not 
based on a scientific threshold for determining whether a species is a 
forage species in this amendment. It noted that the Council did not use 
the SSC's dietary threshold in its definition of forage species (forage 
species represent greater than five percent of an animal's diet for 
more than five years), suggesting that a lack of a threshold or 
consistent diet data calls into question the purpose of this action.
    Response: As noted above, the Council did not rely exclusively upon 
the SSC's forage species criteria to inform its decision to include 
forage species for this action, although the SSC's criteria did serve 
as the starting point for Council consideration. Section 4.2 of the EA 
prepared for this action notes that there were ``no uniform 
quantitative metrics available to compare the trophic level of a number 
of forage species, or to assess the number of trophic linkages for each 
species.'' Instead, the Council determined how to best evaluate the 
SSC's and other criteria used to define forage species. The Council 
used alternative dietary criteria due to the diversity of diet for many 
species. Specifically, the SSC's dietary criteria would have reduced 
the list of forage species to only a few species, many of which are not 
found in Federal waters. As a result, any proposed measures to protect 
such a limited list of forage species would not likely have been 
effective or offer much benefit to managed species important to 
commercial and recreational fisheries managed by the Council. 
Accordingly, the Council used a lower threshold to be more inclusive of 
forage species in this action, while still prioritizing protection for 
species that had the greatest potential to support future large-scale 
commercial fisheries.
    Comment 10: The Garden State Seafood Association (GSSA) was 
critical of the amendment's purpose and goals, indicating that there is 
no biological benefit from the proposed measures. This group suggested 
that NMFS should delay the implementation of this final rule until 
measurable goals can be identified.
    Response: We disagree that there is no biological benefit from this 
action. Although this action maintains existing catch levels for forage 
species, in the long-term, this action will help maintain sustainable 
populations of several forage species for various predators, including 
Council-managed predators, protected species predators, and seabirds. 
The purposes of this action are to prevent the expansion of existing 
and the development of future commercial fisheries for certain forage 
species while the Council collects the information it needs to assess 
the impacts to existing fisheries, fishing communities, and the marine 
ecosystem. The measures implemented by this action do exactly that. 
Because data have not been collected on the catch of these species, it 
is difficult to quantitatively assess the impacts of forage species on 
predators, the marine ecosystem, and communities at this time. 
Therefore, implementation of reporting requirements through this final 
rule will provide the information the Council and NMFS need to assess 
catch of these species and develop more effective measures in the 
future, as necessary.
    Comment 11: Seafreeze Ltd. and Lund's Fisheries Incorporated are 
concerned that state permitted vessels do not have similar restrictions 
on the

[[Page 40726]]

catch of forage species, with Lund's Fisheries suggesting that this 
creates two classes of fishermen and penalizes those with a Federal 
permit from selling forage species. Lund's Fisheries suggested that 
NMFS and the Council should encourage the Atlantic States Marine 
Fisheries Commission to take similar action to protect forage species 
in state waters.
    Response: Neither the Council, nor NMFS has the authority to 
require states to implement similar measures to protect forage species. 
Because each state has a seat on the Council, and the Council has 
already expressed its interest in protecting forage species, it is 
incumbent upon each state to decide whether it should implement similar 
forage species measures within waters under their jurisdiction. We 
disagree that this penalizes Federal permit holders from selling catch 
of these species, as it implements possession limits that reflect 99 
percent of trip-level commercial landings of forage species over the 
past 20 years. Therefore, based on recent fishing operations, vessels 
issued a Federal permit should not be negatively affected by these 
possession limits.
    Comment 12: One individual suggested that this action violates NOAA 
Administrative Order (NAO) 216-6A because the Council did not examine 
whether this action would set a precedent for future action with 
significant effects or represent a decision in principle about future 
consideration. He also stated that the use of discretionary authority 
under section 303(b)(12) of the Magnuson-Stevens Act to manage chub 
mackerel sets a precedent regarding the regulation of commercially 
targeted species outside of a FMP and without adequate oversight. In 
contrast, Pew supports the use of such discretionary authority until 
the species can be formally integrated as a species within the Atlantic 
Mackerel, Squid, and Butterfish FMP.
    Response: The commenter cites text related to the determination of 
significance of NOAA's actions as required by the NEPA from an outdated 
version of NAO 216-6A dated May 20, 1999. The new version of NAO 216-6A 
became effective April 22, 2016, and contains no such language. In 
fact, the new version authorizes the development of a companion manual 
to set policy and procedures for complying with NEPA. That companion 
manual became effective January 13, 2017, and contains the text 
referenced by the commenter, but in the context of evaluating the use 
of a categorical exclusion under extraordinary circumstances. Since the 
Council developed an EA in support of this action, this policy guidance 
is not relevant to this action. The Council will evaluate the 
significance of any future action it may develop for chub mackerel as 
it develops measures for that particular action.
    We disagree that the use of section 303(b)(12) of the Magnuson-
Stevens Act to develop chub mackerel measures under this action sets a 
precedent that would allow commercial fishing to occur outside of a FMP 
and without oversight. Section 303(b) specifically authorizes the 
development of such discretionary measures as part of a FMP. Therefore, 
this section allows for increased management and oversight of 
commercial fisheries by the Council, not the opposite. We agree with 
Pew in that it represents a viable mechanism to proactively implement 
interim measures to manage this species while the Council develops the 
required provisions to formally manage chub mackerel as a stock in an 
FMP.
    Comment 13: Two individuals recommended that this action should 
include river herring, with one citing the millions of taxpayer dollars 
spent to restore habitat and breeding streams that would be wasted if 
these species are not protected. He indicated that NMFS needs to 
collect more data and protect river herring in the ocean. Three 
individuals suggested that this action should also include Atlantic 
menhaden as a forage species.
    Response: Because the Council did not consider managing river 
herring or Atlantic menhaden as forage species under this action, NMFS 
does not have the authority to add these species through this final 
rule. The Council has already considered ways to manage river herring 
as part of Amendment 14 to the Atlantic Mackerel, Squid, and Butterfish 
FMP and associated specifications since 2014. Specifically, the Council 
established a river herring and shad catch cap in the mackerel fishery 
and established reporting requirements to monitor such catch in the 
mackerel fishery. The Atlantic States Marine Fisheries Commission 
(ASMFC) already manages Atlantic menhaden because this species is 
predominantly found in nearshore waters and is prosecuted by state 
fisheries. The Council could consider management measures for these 
species and other species through a future action, as appropriate.

Ecosystem Component Species

    Comment 14: One individual indicated that, until there is 
sufficient science on the population dynamics and trophic significance 
of all forage species originally listed (presumably by the SSC or 
Fishery Management Action Team), none of the species should be omitted 
from this action. Another individual indicated that the Council should 
be precautionary and implement catch limits for all forage species.
    Response: Section 4.2 of the EA describes the background for how 
the Council determined which forage species to include in this action. 
The Council did not intend to prohibit the harvest of all unmanaged 
forage species. Instead, the Council identified a list of prioritized 
forage species to minimize the burden of the proposed new regulations 
on existing managed fisheries. In selecting the taxa to include in this 
amendment, the Council prioritized some species due to their importance 
as prey for ``socially and economically important species'' and their 
perceived potential to become the target of large-scale commercial 
fisheries. The Council could add forage species through a future action 
as more information becomes available, or as needed to achieve 
conservation and management objectives.
    Comment 15: Seafreeze Ltd. and the GSSA oppose the approval of 
halfbeaks, scaled sardine, Atlantic thread herring, and Spanish sardine 
as EC species in this action, because there is no link as forage or 
bycatch between these species and fisheries managed by the Council. 
They contend that none of these species have been found in NMFS 
observer data for trawls, gillnets, or hook gear resulting in landings 
of Council managed species; that they have not been found in the 
stomachs of Council managed species in NMFS surveys; and that they fail 
to meet all the criteria for listing as an EC species and the forage 
species criteria developed by the SSC.
    Response: We disagree that these species fail to meet the criteria 
for listing as an EC species, as the amendment provides information 
that supports the determination that these species are eligible to be 
listed as EC species based on the criteria outlined in the National 
Standard Guidelines at Sec.  600.305. The Council relied in part on the 
SSC's definition of forage species as well as other criteria in its 
proposed list of forage species to manage as EC species in this action. 
Section 6.1 of the EA identifies the rationale for the inclusion of 
each species in this action. While halfbeaks have not been found in the 
stomach contents of managed species in NMFS surveys, they were 
documented as forage for bluefish, a Council-managed species, in 
another source. Further, the Council notes that halfbeaks are often 
caught in Florida and are commonly used as bait in Mid-Atlantic 
recreational fisheries, making

[[Page 40727]]

them vulnerable to potential future commercial exploitation. There is 
sufficient evidence that other unmanaged herrings and sardines are 
consumed as forage for many Council-managed species, are often 
documented as bycatch in managed fisheries, and are potentially 
vulnerable to commercial exploitation due to market demand.
    Comment 16: The GSSA, Seafreeze Ltd., and Lund's Fisheries 
Incorporated opposed the inclusion of bullet and frigate mackerel as EC 
species for the same reasons we highlighted in the proposed rule. 
However, Pew and Wild Oceans, along with 11,496 Pew form letters, 
supported the inclusion of these species, highlighting their importance 
to ecosystems and coastal communities who directly or indirectly depend 
upon the catch or use of these species. One individual disagreed with 
our assertion that the trophic level of these species is too high, 
suggesting that trophic linkages are truncated in pelagic ecosystems. 
Pew noted that bullet and frigate mackerel are vulnerable to commercial 
exploitation because they school in predictable areas, while Wild 
Oceans contended that protecting bullet and frigate could reduce 
predation on managed species by providing more prey for common 
predators. Supporters also noted that many significant keystone 
predators such as large pelagic species (tuna, billfish, swordfish, 
dolphinfish (dorado) and sharks) feed on these mackerel, and a failure 
to protect them could cause trophic cascading (e.g., effects on species 
higher or lower in the food chain as a result of changes in prey or 
predator abundance) and indirect and unpredictable effects (presumably 
reduced abundance) on large pelagic species.
    Response: As noted above, we maintain our original contention that 
the best available information does not support the classification of 
bullet and frigate mackerel as forage species in this action and that 
they are not related to species managed by the Council. Public comments 
did not provide additional information that would change this 
determination. The SSC did not differentiate trophic structure criteria 
based on where organisms were found, and the commenter did not provide 
sufficient evidence to warrant such a differentiation. Although Wild 
Oceans asserts that these species are vulnerable to commercial 
exploitation because they school in predictable areas, Pew notes that 
these species are less vulnerable to commercial fishing, particularly 
trawl gear, because of their fast swimming speed. This, in conjunction 
with minimal commercial landings of these species over the past 20 
years, suggests that these species are not vulnerable to commercial 
exploitation at this time. While we acknowledge that bullet and frigate 
are prey for large pelagic species, available information does not 
confirm that bullet and frigate mackerel constitute a substantial 
component of the diet of large pelagic species, or that they are forage 
for managed species. Therefore, there is insufficient information in 
the amendment to conclude that failure to protect these species through 
this action would cause trophic cascading or negative impacts on 
managed species or large pelagic predators.
    Comment 17: Pew asserts that a nexus between forage species and 
regulated species is not required by the Magnuson-Stevens Act, noting 
that the discretionary authority provided in section 303 can be used to 
conserve target and non-target species considering ecological factors 
that may affect fish populations. They also cite the National Standard 
1 guidelines in highlighting that maintaining adequate forage may 
prevent overfishing and achieve optimum yield. Wild Oceans indicates 
that these Guidelines allow flexibility to achieve ecosystem goals, 
including those in the Council's ecosystem approach to fisheries 
management (EAFM) guidance document, and that failure to include these 
species is contrary to NMFS' ecosystem based fishery management (EBFM) 
policy.
    Response: We agree that section 303 of the Magnuson-Stevens Act 
provides the Council with the discretion to implement measures for 
target and non-target species for ecosystem considerations. As noted in 
the scoping document for this action and Council meetings during the 
development of this action, the intent of this action was to maintain 
an adequate biomass of forage species to allow for abundant populations 
of Council-managed predators, as well as to integrate ecosystem 
considerations into the FMP. NMFS determined that forage species 
considered in this action must have an ecological or operational 
(bycatch) linkage with Council-managed species in order to maintain 
consistency with the Council's intent to maintain an adequate biomass 
of forage species to allow for abundant populations of Council-managed 
predators of the forage species. Although the description of the 
purpose and need for this action, as included in the EA, indicated that 
the Council was also integrating an ecosystem approach to management 
into this action, the Council did so by protecting forage species; this 
action was not intended to be a comprehensive ecosystem management 
action. NMFS must evaluate this action within the context in which it 
was developed, and using the best available information, which, as 
noted above, is not sufficient to justify inclusion of bullet and 
frigate mackerel as EC species under this action.
    We also agree that the National Standard 1 Guidelines allow the 
Council to consider forage and EC species when determining optimum 
yield and the greatest benefit to the nation. However, it is important 
to note that the National Standard 1 Guidelines apply to stocks in the 
fishery that the Council determines require conservation and 
management. By proposing to manage bullet and frigate mackerel as EC 
species, the Council has implicitly determined that such species do not 
require conservation and management measures at this time pursuant to 
the National Standard Guidelines at Sec.  600.305(c)(5) and are, 
therefore, not stocks in the fishery. Accordingly, the National 
Standard 1 Guidelines do not apply to these species. That 
notwithstanding, if the Council believes that these species require 
conservation and management in the future, a small tuna FMP or a 
broader ecosystem based management action may be a more effective 
vehicle to manage these species than an amendment predicated on 
protecting forage for managed species. Finally, despite the disapproval 
of bullet and frigate mackerel as EC species in this action, we contend 
that the Council's use of discretionary authority to designate certain 
other previously unmanaged forage species as EC species and to 
implement measures to protect against the further exploitation of these 
species is consistent with both the Council's EAFM guidance document 
and the NMFS EBFM policy.

Permitting and Reporting Requirements

    Comment 18: Pew, Lund's Fisheries Incorporated, and the GSSA 
support the use of existing permitting requirements for this action. 
They, along with one individual and the 11,484 respondents to the Pew 
form letter, also support the use of existing reporting requirements to 
collect additional data on these species. Another individual indicated 
that the proposed reporting requirements would not collect acceptable 
data, but did not suggest why. The Office of Management and Budget 
indicated that this action would have no effect on any current 
information collections.
    Response: The existing permitting and reporting requirements are 
necessary to collect information to effectively monitor and manage the 
catch of forage

[[Page 40728]]

species. The permitting and reporting requirements allow us to identify 
which vessels are catching chub mackerel and Mid-Atlantic forage 
species, how much they are catching of each species or species group, 
where and when the catch occurs, and what gear is used to catch these 
species. This information could then be used to monitor catch against 
the chub mackerel annual landing limits, enforce possession limits, and 
provide information necessary to assess the status of the stock and 
develop potential future management measures, as necessary. Thus, this 
final rule implements the permitting and reporting requirements for 
Mid-Atlantic forage species.

Annual Landing and Possession Limits

    Comment 19: One individual suggested that NMFS should stop all 
fishing for forage species, stating that, without limits, commercial 
vessels will harvest them until endangered and overfished. Respondents 
to the Pew form letter and another individual suggested that forage 
fish quotas should be set to prevent overfishing.
    Response: We do not agree that it is necessary to stop all fishing 
for forage species or impose quotas for all species to prevent 
overfishing or prevent such species from becoming endangered. We do not 
know much about the status of these species. As noted in the response 
to the previous comment, the information collected through measures 
implemented by this final rule will: Provide the information the 
Council needs to effectively monitor the catch of these species; allow 
the Council and NMFS to evaluate the potential impacts of existing 
catch levels on existing fisheries, fishing communities, and the marine 
ecosystem; and allow the Council and NMFS to set appropriate future 
landing limits to prevent overfishing, as necessary.
    Comment 20: One individual recommended that NMFS implement a 5.25 
million-lb (2,381-mt) annual landing limit for chub mackerel because it 
reflects the historical fluctuation of the chub mackerel market, is 
more consistent with the market's overall direction, avoids 
implementing artificial constraints, allows equal access to the market, 
and facilitates competition in the market rather than consolidating 
control by a select group of large vessels. He notes that implementing 
the proposed 2.86 million lb (1,297 mt) limit artificially caps the 
market and could increase landing price to the disproportionate benefit 
of large vessels. Lund's Incorporated and the GSSA support the higher 
limit, stating there is no evidence that the higher limit would harm 
the stock and that it would reduce discards until the SSC can set a 
reasonable biologically-based limit in a future action. They also 
suggest the ecosystem management approach should consider changing 
species distribution, including the increasing availability of a 
species like chub mackerel in setting landing limits. In contrast, Pew 
and another individual felt that the proposed limit is too high and 
that the limit should be set lower as a precaution because NMFS does 
not have adequate data about biological and ecological status of stock, 
what fishing level is sustainable, and the impacts of recent increased 
fishing.
    Response: Although chub mackerel landings have fluctuated greatly 
since 1996, landings since 2013 are substantially higher than previous 
years. The Council considered several alternative annual landing limits 
for chub mackerel, including the average landing amount from 1996-2015 
(900,127 lb (408 mt)), average landings from 2011-2015 (1.75 million lb 
(794 mt), and the highest landings recorded in 2013 (5.25 million lb 
(2,381 mt)). Instead, the Council adopted a 2.86 million-lb (1,297-mt) 
annual landing limit to reflect more recent average landings between 
2013-2015. This limit accounts for variations in resource availability 
and catch, and is higher than the five-year average landings, but lower 
than the highest landings recorded in 2013. This compromise is not only 
consistent with the purpose of this action to maintain existing catch 
levels, but also with the principles advocated by several commenters to 
mirror recent landings trends, reduce discards, and set a precautionary 
catch limit while the Council develops long-term measures in a 
subsequent action.
    We disagree that the chub mackerel annual landing limit implemented 
by this final rule implements artificial constraints, prevents equal 
access to the resource or markets, or disproportionately benefits large 
vessels. Even without constraints, the landing price for chub mackerel 
has been highly variable and not necessarily correlated with landing 
amounts since 1996. The EA suggests that landings amounts and 
associated price is affected by several variables, including 
availability of chub mackerel and other species. Therefore, the Council 
and NMFS cannot determine how any one particular measure affects market 
prices at this time. All vessels of all sizes have equal access to 
available chub mackerel under this action. Section 8.11.4.3 of the EA 
describes the economic impact analysis required under the Regulatory 
Flexibility Act (RFA). That analysis indicates that between 2006 and 
2015, 63 small businesses and affiliated entities reported fishing 
revenues from forage species affected by this action. All of these 
entities had average annual sales during 2013-2015 that were less than 
$11 million, which is the level of annual fishery revenue used to 
determine small entities under the RFA. Thus, all entities affected by 
this action are classified as small businesses. Further, this analysis 
concluded that all proposed measures, including the chub mackerel 
annual landing limit, would not place a substantial number of small 
entities at a significant competitive disadvantage to large entities.
    Comment 21: Seafreeze Ltd., Lund's Fisheries Incorporated, and the 
GSSA support the 40,000-lb (18-mt) chub mackerel possession limit once 
the annual landing limit is reached. Pew indicated that the limit is 
not supported by the best available science or a methodology similar to 
the limit used to derive the possession limit for other EC species, 
suggesting that it should be lower to prevent a directed fishery. 
Another individual stated the possession limit is higher than annual 
chub mackerel landings before 2003, and suggested that it 
disproportionately benefits larger vessels. He recommended that if NMFS 
implements the 2.86 million-lb (1,297-mt) chub mackerel annual landing 
limit, NMFS should also implement the 10,000-lb (4.5-mt) possession 
limit because the annual limit and possession limit must be similarly 
restrictive to equitably restrict all fisheries regardless of size and 
better align with the amendment's purpose of preventing fishery 
expansion. He also noted that the lower possession limit reduces 
discards, but does not provide enough incentive to target the species.
    Response: To be consistent with the methodology used by the Council 
to determine the possession limit for EC species, the Council would 
have had to adopt a much higher chub mackerel possession limit than the 
proposed 40,000-lb (18-mt) limit. The limit for EC species was based on 
the 99th percentile of dealer-reported landings of these species from 
1997-2015. That limit was meant to maintain existing catch levels for 
those species. In contrast, as noted by Pew, the chub mackerel limit 
was intended to prevent directed fishing. Accordingly, using a similar 
methodology is not appropriate, as the trip limit should reduce 
incentives to target chub mackerel.
    The Council chose a 40,000-lb (18-mt) limit because that is the 
capacity of a bait truck, and limiting landings to that amount reduces 
economic incentives to target chub mackerel, while allowing

[[Page 40729]]

vessels to land smaller, incidental amounts of chub mackerel to 
minimize discards. The Council considered a 10,000-lb (4.5-mt) 
possession limit based on average trip-level landings from 1996-2015, 
but that would likely result in higher discards due to larger volumes 
of chub mackerel caught by larger vessels in recent years. The 
possession limit selected is separate and distinct from the annual 
landings limit, and does not need to be proportional to have the 
desired effect of reducing incentives to target this species once the 
annual landing limit is caught. We recognize that the possession limit 
is higher than annual landings before 2003, but note that landings 
since 1996 have been highly variable, ranging from 479 lb (217 kg) to 
5.25 million lb (2,381 mt). Contrary to what one commenter indicated, 
this possession limit would actually benefit smaller capacity vessels 
more than larger capacity vessels because it is less likely to 
constrain landings once the annual landing limit is reached. Section 
5.2.3 of the EA states that there is a substantial range in landing 
amounts within the fishery, concluding that the amount of chub mackerel 
catch which is truly incidental is not well understood and is likely 
different for larger, faster vessels than for smaller, slower vessels.
    Comment 22: Pew, Lund's Fisheries Incorporated, and the GSSA 
support the proposed 1,700-lb (771-kg) limit for EC species.
    Response: This final rule implements this trip limit for approved 
EC species.
    Comment 23: The Executive Director of the New England Fishery 
Management Council highlighted that existing regulations for the 
Northeast Multispecies FMP only allow the retention of certain species 
in exempted fisheries within the Southern New England Regulated Mesh 
Area, an area that overlaps with the proposed Mid-Atlantic Forage 
Species Management Unit. He suggested that the final rule clarify that 
the most restrictive possession limit would apply to vessels subject to 
the Northeast Multispecies FMP that are fishing within the Mid-Atlantic 
Forage Species Management Unit.
    Response: We agree. This was an oversight, and we made the 
appropriate changes to the regulatory text at Sec.  648.351(a) in this 
final rule.

Transit Measure

    Comment 24: Seafreeze Ltd. supported the transit measure, but both 
Lund's Fisheries Incorporated and the GSSA opposed the measure, stating 
that it creates an unfair competitive situation by allowing harvesters 
from other jurisdictions to be exempted from possession limits imposed 
on Mid-Atlantic harvesters.
    Response: The transit measure would only apply to catch of Mid-
Atlantic forage species outside of the Mid-Atlantic Forage Species 
Management Unit (Mid-Atlantic Federal waters), which is outside of the 
jurisdiction of the Mid-Atlantic Fishery Management Council. In 
addition, because transiting vessels must have their gear stowed when 
transiting the Management Unit, this measure is unlikely to negatively 
impact Mid-Atlantic forage species, managed species, or other 
predators. Further, this measure was developed mostly to address the 
targeting of chub mackerel within the Gulf of Mexico that are landed in 
Rhode Island. Since this action counts all chub mackerel landed in New 
England ports against the chub mackerel annual landing limit, impacts 
to chub mackerel are minimized. The Magnuson-Stevens Act requires the 
Council to manage a stock throughout its range. Therefore, when 
considering integrating chub mackerel into the Atlantic Mackerel, 
Squid, and Butterfish FMP in a future action under development, the 
Council will need to consider the species range as it develops measures 
for that action, including potentially reconsidering the need for this 
transiting provision.

Other Administrative Measures

    Comment 25: Pew Charitable Trusts noted that the Mid-Atlantic 
Fishery Management Council manages some species to the Virginia/North 
Carolina border and others to the latitude of Cape Hatteras. Pew 
supported extending the Mid-Atlantic Forage Species Management Unit to 
Cape Hatteras to ensure there is no gap in the management of these 
species within the jurisdiction of the Mid-Atlantic Fishery Management 
Council.
    Response: We agree and have implemented the Management Unit as 
proposed.
    Comment 26: The GSSA and Lund's Fisheries Incorporated supported 
the ability to revise landing and possession limits through a future 
framework adjustment action.
    Response: The framework measures have been implemented through this 
action.
    Comment 27: The GSSA, Lund's Fisheries Incorporated, and the Pew 
Charitable Trusts support the use of an EFP to support the development 
of any new or expanded fishery for forage species. Pew indicated that 
the Council should emulate the more formal EFP review process adopted 
by the Pacific Fisheries Management Council as part of its 
Comprehensive Ecosystem Based Amendment 1 and documented in its Council 
Operating Procedure 24 before opening or expanding any fishery. Pew 
also recommended that NMFS should prohibit new or expanded fishing on 
EC species until full Federal management is in place that protects 
their role as prey in the ecosystem, and that the Council should 
evaluate whether a species is in need of conservation and management 
before allowing new or expanded fisheries for these species.
    Response: The Council documented its intent to require an EFP and 
subsequent review through the adoption of this action. Existing 
regulations at Sec.  648.12 require the Regional Administrator to 
consult with the Council's Executive Director before approving any 
exemptions to the Council's FMPs. The regulations revised by this 
action have already expanded that consultation requirement to 
specifically include exemptions that would contribute to the 
development of a new fishery or the expansion of existing fisheries for 
Mid-Atlantic forage species and chub mackerel. Therefore, the Council 
has already developed a protocol similar to the Pacific Council's 
Operating Procedure 24.
    At Sec.  648.14(w), this action implements a prohibition against 
vessels possessing more Mid-Atlantic Forage Species and chub mackerel 
than authorized in Sec.  648.351. As a result, no additional 
prohibition is needed to prevent the expansion of existing fisheries or 
the development of new fisheries for these species. In addition, 
fisheries for Mid-Atlantic Forage Species cannot develop or expand 
without a future Council or NMFS action, which must be consistent with 
the Magnuson-Stevens Act and other applicable law. Thus, both the 
Council and NMFS will evaluate whether a stock requires conservation 
and management, and NMFS will ensure that all measures developed for 
those stocks in the future, including measures to achieve optimum 
yield, are consistent with applicable law, before approving any new or 
expanded fisheries for EC species.
    Comment 28: Pew Charitable Trusts recommended that NMFS update the 
list of authorized fisheries and gear in Sec.  600.725(v) to ensure 
that no fishery on unmanaged forage species emerges without the 
knowledge of NMFS and the Council.
    Response: As noted in Section 5.3.2.2 of the EA for this action, 
the list of authorized fisheries and gear at Sec.  600.725(v) already 
includes two general categories of commercial fisheries for which the 
legal harvest of unmanaged forage species would be

[[Page 40730]]

allowed without advanced notification to the Council. The Council 
considered modifying this list as part of this action, but instead 
implemented more discrete possession limits for forage species. As a 
result, NMFS cannot unilaterally implement such changes through this 
final rule. It is likely that any fishery for other unmanaged forage 
species would be detected through existing data collections such as the 
vessel logbook or dealer reports. For example, landings of several 
species of previously unmanaged forage species included in this action 
(anchovies, argentines, sand lances, silversides, chub mackerel, and 
frigate mackerel) were recorded in Federal dealer reports. This 
prompted the Council to develop appropriate management measures through 
this and the follow-on chub mackerel amendment. Similar action can be 
taken in the future for other species, as appropriate.

Impact Analysis

    Comment 29: One individual indicated that the negative 
socioeconomic impacts of this action will be offset by the positive 
socioeconomic impacts of maintaining healthy populations of forage 
species. He also noted that the amendment should consider the 
recreational and professional diving communities in the socioeconomic 
impact analysis, as a lack of forage species could negatively affect 
seal and predator populations, which are important drivers of demand 
for diving and spearfishing trips. The comment included a statement 
from another individual who estimated that dive shops in the Greater 
Boston Area cater to up to 1,500 divers each year and have yearly 
revenues of $3-4 million.
    Response: We agree that the benefits of maintaining recent catch 
levels of certain forage species through measures implemented by this 
action outweigh the potential costs associated with annual landing 
limits and possession limits. The EA prepared for this action included 
a description of the affected environment in Section 6, and an 
evaluation of the impacts of the proposed measures on components of the 
affected environment, including marine predators such as fish species, 
marine mammals, and fishing communities, in Section 7. The 
socioeconomic impact analysis focused on commercial and recreational 
fishery participants because they are the entities most likely to be 
affected by this action. That analysis did not evaluate impacts to 
diving operations because diving operations are only indirectly 
affected by this action and are not subject to these measures. As a 
result, the Regulatory Flexibility Act does not require consideration 
of the impacts to non-regulated entities such as the diving industry. 
However, this action should provide benefits to the diving community 
similar to the benefits that would accrue to the recreational fishery 
in that it will protect forage species from further commercial 
exploitation, which will help maintain predator and seal populations 
important to the spearfishing and diving communities.

Changes From the Proposed Rule

    We have made several changes to the proposed regulations, including 
changes as a result of public comment and our decision to disapprove 
the inclusion of bullet and frigate mackerel as EC species. Some of 
these changes are administrative in nature, clarify the new or existing 
management measures, or correct inadvertent omissions in the proposed 
rule. All of these changes are consistent with section 305(d) of the 
Magnuson-Stevens Act (16 U.S.C. 1855(d)), which provides that the 
Secretary of Commerce may promulgate regulations necessary to ensure 
that amendments to an FMP are carried out in accordance with the FMP 
and the Magnuson-Stevens Act. These changes are listed below in the 
order that they appear in the regulations.
    In this final rule's amendments to Sec.  648.2, paragraph (a)(14) 
is renumbered as (a)(12), and paragraph (a)(15) is renumbered as 
(a)(13), to reflect the disapproval of the inclusion of bullet and 
frigate mackerel as Mid-Atlantic forage species in this final rule.
    The regulations at Sec. Sec.  648.4(a)(15), 648.5(a)(2), 
648.6(a)(1), 648.7(a)(1) and (b)(1)(i), and 648.351(d) were revised by 
adding language specifying that the vessel permit, operator permit, 
dealer permit, reporting requirements, and transiting provision for 
vessels fishing for and possessing Atlantic chub mackerel and dealers 
purchasing chub mackerel are effective through December 31, 2020, as 
intended.
    In Sec.  648.351(a), the phrase ``Unless otherwise prohibited under 
Sec.  648.80,'' was added to the beginning of this paragraph to 
reference the possession restrictions of Northeast multispecies 
exempted fisheries. As noted above in Comment 23, the Executive 
Director of the New England Fishery Management Council indicated that 
the proposed possession limits for Mid-Atlantic forage species would 
inadvertently allow a vessel to possess species that are not explicitly 
authorized for exempted fisheries implemented under the Northeast 
Multispecies FMP.

Classification

    The Administrator, Greater Atlantic Region, NMFS, determined that 
the Mid-Atlantic Unmanaged Forage Omnibus Amendment is necessary for 
the conservation and management of the fisheries managed by the Mid-
Atlantic Fishery Management Council and that it is consistent with the 
Magnuson-Stevens Fishery Conservation and Management Act and other 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. This rule is not an E.O. 13771 
regulatory action because this rule is not significant under E.O. 
12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. NMFS received two comments 
regarding the socioeconomic impacts of this action (see Comments 20 and 
29 above). In Comment 20, the commenter suggested that this action 
would artificially cap the market that could disproportionately benefit 
large vessels. However, as noted above, because all entities affected 
by this action are small businesses, this action could not place a 
substantial number of small entities at a significant competitive 
disadvantage to large entities. Comment 20 pertained to the diving 
community, a group that is not subject to the regulations under this 
action. Accordingly, no comments were received that would change the 
certification that this action will not have a significant economic 
impact on a substantial number of small entities regarding this 
certification. As a result, a regulatory flexibility analysis was not 
required and none was prepared.
    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by the Office of Management and Budget (OMB) under the OMB 
control numbers listed below. Public reporting burden for these 
collections of information, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information, are estimated to average, as follows:
    1. Initial Federal vessel permit application, OMB# 0648-0202, (45 
minutes/response);

[[Page 40731]]

    2. Initial Federal dealer permit application, OMB# 0648-0202, (15 
minutes/response);
    3. Initial Federal operator permit application, OMB# 0648-0202, (60 
minutes/response);
    4. Vessel logbook report of catch by species, OMB# 0648-0212, (5 
minutes/response); and
    5. Dealer report of landings by species, OMB# 0648-0229, (4 
minutes/response).
    Send comments on these or any other aspects of the collection of 
information to the Greater Atlantic Regional Fisheries Office at the 
ADDRESSES above, and email to OIRA_Submission@omb.eop.gov, or fax to 
(202) 395-5806. Notwithstanding any other provision of the law, no 
person is required to respond to, and no person shall be subject to 
penalty for failure to comply with, a collection of information subject 
to the requirements of the PRA, unless that collection of information 
displays a currently valid OMB control number.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: August 21, 2017.
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:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

0
1. The authority citation for part 648 continues to read as follows:

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

0
2. In Sec.  648.2, add definitions for ``Atlantic chub mackerel'' and 
``Mid-Atlantic forage species'' in alphabetical order to read as 
follows:


Sec.  648.2   Definitions.

* * * * *
    Atlantic chub mackerel means Scomber colias.
* * * * *
    Mid-Atlantic forage species means the following species and species 
groups:
    (1) Anchovies (family Engraulidae), including but not limited to 
the following species:
    (i) Striped anchovy-Anchoa hepsetus.
    (ii) Dusky anchovy-Anchoa lyolepis.
    (iii) Bay anchovy-Anchoa mitchilli.
    (iv) Silver anchovy-Engraulis eurystole.
    (2) Argentines (family Argentinidae), including but not limited to 
the following species:
    (i) Striated argentine-Argentina striata.
    (ii) Pygmy argentine-Glossanodon pygmaeus.
    (3) Greeneyes (family Chlorophthalmidae), including but not limited 
to the following species:
    (i) Shortnose greeneye-Chlorophthalmus agassizi.
    (ii) Longnose greeneye-Parasudis truculenta.
    (4) Halfbeaks (family Hemiramphidae), including but not limited to 
the following species:
    (i) Flying halfbeak-Euleptorhamphus velox.
    (ii) Balao-Hemiramphus balao.
    (iii) Ballyhoo-Hemiramphus brasiliensis.
    (iv) False silverstripe halfbeak/American halfbeak/Meek's halfbeak-
Hyporhamphus meeki.
    (5) Herrings and Sardines (family Clupeidae). With the exception of 
other herring and sardine species managed under this part, including 
American shad, Atlantic herring, blueback herring, hickory shad, and 
river herring/alewife, as defined in this section, the following 
herring and sardine species are Mid-Atlantic forage species:
    (i) Round herring-Etrumeus teres.
    (ii) Scaled sardine-Harengula jaguana.
    (iii) Atlantic thread herring-Opisthonema oglinum.
    (iv) Spanish sardine-Sardinella aurita.
    (6) Lanternfishes (family Myctophidae), including but not limited 
to the following species:
    (i) Horned lanternfish-Ceratoscopelus maderensis.
    (ii) Dumril's headlightfish-Diaphus dumerilii.
    (iii) Crocodile lanternfish-Lampanyctus crocodilus.
    (iv) Doflein's false headlightfish-Lobianchia dofleini.
    (v) Spotted lanternfish-Myctophum punctatum.
    (7) Pearlsides (family Sternoptychidae), including but not limited 
to the following species:
    (i) Atlantic silver hatchetfish-Argyropelecus aculeatus.
    (ii) Muller's pearlside-Maurolicus muelleri.
    (iii) Weizman's pearlside-Maurolicus weitzmani.
    (iv) Slope hatchetfish-Polyipnus clarus.
    (8) Sand lances (family Ammodytidae), including but not limited to 
the following species:
    (i) American/inshore sand lance-Ammodytes americanus.
    (ii) Northern/offshore sand lance-Ammodytes dubius.
    (9) Silversides (family Atherinopsidae), including but not limited 
to the following species:
    (i) Rough silverside-Membras martinica.
    (ii) Inland silverside-Menidia beryllina.
    (iii) Atlantic silverside-Menidia menidia.
    (10) Cusk-eels (order Ophidiiformes), including but not limited to 
the following species:
    (i) Chain pearlfish-Echiodon dawsoni.
    (ii) Fawn cusk-eel-Lepophidium profundorum.
    (iii) Striped cusk-eel-Ophidion marginatum.
    (11) Atlantic saury-Scomberesox saurus.
    (12) Pelagic mollusks and cephalopods, excluding sharptail shortfin 
squid (Illex oxygonius), but including the following pelagic mollusc 
species:
    (i) Neon flying squid-Ommastrephes bartramii.
    (ii) European flying squid-Todarodes sagittatus.
    (iii) Atlantic brief squid-Lolliguncula brevis.
    (iv) Bobtail squids (family Sepiolidae), including but not limited 
to the following species:
    (A) Odd bobtail squid-Heteroteuthis dispar.
    (B) Big fin bobtail squid-Rossia megaptera.
    (C) Warty bobtail squid-Rossia palpebrosa.
    (D) Lesser bobtail squid-Semirossia tenera.
    (E) Butterfly bobtail squid-Stoloteuthis leucoptera.
    (v) Sea angels and sea butterflies (orders Gymnosomata and 
Thecosomata).
    (vi) Tuberculate pelagic octopus-Ocythoe tuberculata.
    (13) Species under one inch as adults, including but not limited to 
the following species groups:
    (i) Copepods (subclass Copepoda).
    (ii) Krill (order Euphausiacea).
    (iii) Amphipods (order Amphipoda).
    (iv) Ostracods (class Ostracoda).
    (v) Isopods (order Isopoda).
    (vi) Mysid shrimp (order Mysidacea).
* * * * *

0
3. In Sec.  648.4, add paragraph (a)(15) to read as follows:


Sec.  648.4   Vessel permits.

    (a) * * *
    (15) Mid-Atlantic forage species and Atlantic chub mackerel. Any 
commercial fishing vessel must have been issued and have on board a 
valid commercial vessel permit issued in

[[Page 40732]]

accordance with this paragraph (a)(15) to fish for, possess, transport, 
sell, or land Mid-Atlantic forage species or Atlantic chub mackerel in 
or from the EEZ portion of the Mid-Atlantic Forage Species Management 
Unit, as defined at Sec.  648.351(c). The vessel permit requirements 
specified in this paragraph (a)(15) for a commercial fishing vessel 
fishing for, possessing, transporting, selling, or landing Atlantic 
chub mackerel are effective through December 31, 2020. A vessel that 
fishes for such species exclusively in state waters is not required to 
be issued a Federal permit.
* * * * *

0
4. In Sec.  648.5, revise paragraph (a) to read as follows:


Sec.  648.5   Operator permits.

    (a) General. (1) Any operator of a vessel issued a permit, carrier 
permit, or processing permit for, and that fishes for or possesses, the 
species listed in paragraph (a)(2) of this section, must have been 
issued, and carry on board, a valid operator permit for these species. 
An operator's permit issued pursuant to part 622 or part 697 of this 
chapter, satisfies the permitting requirement of this section. This 
requirement does not apply to operators of recreational vessels.
    (2) Following are the applicable species: Atlantic sea scallops, NE 
multispecies, spiny dogfish, monkfish, Atlantic herring, Atlantic 
surfclam, ocean quahog, Atlantic mackerel, squid, butterfish, scup, 
black sea bass, or Atlantic bluefish, harvested in or from the EEZ; 
tilefish harvested in or from the EEZ portion of the Tilefish 
Management Unit; skates harvested in or from the EEZ portion of the 
Skate Management Unit; Atlantic deep-sea red crab harvested in or from 
the EEZ portion of the Red Crab Management Unit; or Atlantic chub 
mackerel and Mid-Atlantic forage species, as defined at Sec.  648.2, 
harvested in or from the EEZ portion of the Mid-Atlantic Forage Species 
Management Unit, as defined at Sec.  648.351(c). The operator permit 
requirements specified in this paragraph (a)(2) for an operator of a 
vessel fishing for and possessing Atlantic chub mackerel are effective 
through December 31, 2020.
* * * * *

0
5. In Sec.  648.6, revise paragraph (a)(1) to read as follows:


Sec.  648.6   Dealer/processor permits.

    (a) * * *
    (1) All dealers of NE multispecies, monkfish, skates, Atlantic 
herring, Atlantic sea scallop, Atlantic deep-sea red crab, spiny 
dogfish, summer flounder, Atlantic surfclam, ocean quahog, Atlantic 
mackerel, squid, butterfish, scup, bluefish, tilefish, and black sea 
bass; Atlantic surfclam and ocean quahog processors; Atlantic hagfish 
dealers and/or processors, and Atlantic herring processors or dealers, 
as described in Sec.  648.2; must have been issued under this section, 
and have in their possession, a valid permit or permits for these 
species. A dealer of Atlantic chub mackerel or Mid-Atlantic forage 
species, as defined in Sec.  648.2, harvested in or from the EEZ 
portion of the Mid-Atlantic Forage Species Management Unit, as defined 
at Sec.  648.351(c), must have been issued and have in their 
possession, a valid dealer permit for any species issued in accordance 
with this paragraph. The dealer permit requirements specified in this 
paragraph (a)(1) for dealers purchasing Atlantic chub mackerel are 
effective through December 31, 2020.
* * * * *

0
6. In Sec.  648.7, revise paragraphs (a)(1) and (b)(1)(i) to read as 
follows:


Sec.  648.7   Recordkeeping and reporting requirements.

    (a)(1) Detailed report. Federally permitted dealers, and any 
individual acting in the capacity of a dealer, must submit to the 
Regional Administrator or to the official designee a detailed report of 
all fish purchased or received for a commercial purpose, other than 
solely for transport on land, within the time period specified in 
paragraph (f) of this section, by one of the available electronic 
reporting mechanisms approved by NMFS, unless otherwise directed by the 
Regional Administrator. The dealer reporting requirements specified in 
this paragraph (a)(1) for dealers purchasing or receiving for a 
commercial purpose Atlantic chub mackerel are effective through 
December 31, 2020. The following information, and any other information 
required by the Regional Administrator, must be provided in each 
report:
* * * * *
    (b) * * *
    (1) * * *
    (i) The owner or operator of any vessel issued a valid permit or 
eligible to renew a limited access permit under this part must maintain 
on board the vessel, and submit, an accurate fishing log report for 
each fishing trip, regardless of species fished for or taken, on forms 
supplied by or approved by the Regional Administrator. The reporting 
requirements specified in this paragraph (b)(1)(i) for an owner or 
operator of a vessels fishing for, possessing, or landing Atlantic chub 
mackerel are effective through December 31, 2020. If authorized in 
writing by the Regional Administrator, a vessel owner or operator may 
submit reports electronically, for example by using a VMS or other 
media. With the exception of those vessel owners or operators fishing 
under a surfclam or ocean quahog permit, at least the following 
information and any other information required by the Regional 
Administrator must be provided: Vessel name; USCG documentation number 
(or state registration number, if undocumented); permit number; date/
time sailed; date/time landed; trip type; number of crew; number of 
anglers (if a charter or party boat); gear fished; quantity and size of 
gear; mesh/ring size; chart area fished; average depth; latitude/
longitude (or loran station and bearings); total hauls per area fished; 
average tow time duration; hail weight, in pounds (or count of 
individual fish, if a party or charter vessel), by species, of all 
species, or parts of species, such as monkfish livers, landed or 
discarded; and, in the case of skate discards, ``small'' (i.e., less 
than 23 inches (58.42 cm), total length) or ``large'' (i.e., 23 inches 
(58.42 cm) or greater, total length) skates; dealer permit number; 
dealer name; date sold, port and state landed; and vessel operator's 
name, signature, and operator's permit number (if applicable).
* * * * *

0
7. In Sec.  648.12, revise the introductory text to read as follows:


Sec.  648.12   Experimental fishing.

    The Regional Administrator may exempt any person or vessel from the 
requirements of subparts A (General provisions), B (Atlantic mackerel, 
squid, and butterfish), D (Atlantic sea scallop), E (Atlantic surfclam 
and ocean quahog), F (NE multispecies and monkfish), G (summer 
flounder), H (scup), I (black sea bass), J (Atlantic bluefish), K 
(Atlantic herring), L (spiny dogfish), M (Atlantic deep-sea red crab), 
N (tilefish), O (skates), and P (Mid-Atlantic forage species and 
Atlantic chub mackerel) of this part for the conduct of experimental 
fishing beneficial to the management of the resources or fishery 
managed under that subpart. The Regional Administrator shall consult 
with the Executive Director of the MAFMC before approving any 
exemptions for the Atlantic mackerel, squid, butterfish, summer 
flounder, scup, black sea bass, spiny dogfish, bluefish, and tilefish 
fisheries, including exemptions for experimental fishing contributing 
to the development of new or expansion of

[[Page 40733]]

existing fisheries for Mid-Atlantic forage species and Atlantic chub 
mackerel.
* * * * *

0
8. In Sec.  648.14, add paragraph (w) to read as follows:


Sec.  648.14   Prohibitions.

* * * * *
    (w) Mid-Atlantic forage species and Atlantic chub mackerel. It is 
unlawful for any person owning or operating a vessel issued a valid 
commercial permit under this part to do any of the following:
    (1) Fish for, possess, transfer, receive, or land; or attempt to 
fish for, possess, transfer, receive, or land; more than 1,700 lb 
(771.11 kg) of all Mid-Atlantic forage species combined per trip in or 
from the Mid-Atlantic Forage Species Management Unit, as defined at 
Sec.  648.351(c). A vessel not issued a commercial permit in accordance 
with Sec.  648.4 that fished exclusively in state waters or a vessel 
that fished Federal waters outside of the Mid-Atlantic Forage Species 
Management Unit that is transiting the area with gear that is stowed 
and not available for immediate use is exempt from this prohibition.
    (2) Fish for, possess, transfer, receive, or land; or attempt to 
fish for, possess, transfer, receive, or land; more than 40,000 lb 
(18.14 mt) of Atlantic chub mackerel per trip in or from the Mid-
Atlantic Forage Species Management Unit, as defined at Sec.  
648.351(c), after the annual Atlantic chub mackerel landing limit has 
been harvested and notice has been provided to the public consistent 
with the Administrative Procedure Act. A vessel not issued a commercial 
permit in accordance with Sec.  648.4 that fished exclusively in state 
waters or a vessel that fished in Federal waters outside of the Mid-
Atlantic Forage Species Management Unit that is transiting the area 
with gear that is stowed and not available for immediate use is exempt 
from this prohibition.

0
9. Add subpart P to read as follows:
Subpart P--Mid-Atlantic Forage Species and Atlantic Chub Mackerel
Sec.
648.350 Mid-Atlantic forage species and Atlantic chub mackerel 
annual landing limits.
648.351 Mid-Atlantic forage species and Atlantic chub mackerel 
possession limits.
648.352 Mid-Atlantic forage species and Atlantic chub mackerel 
framework measures.


Sec.  648.350   Mid-Atlantic forage species and Atlantic chub mackerel 
annual landing limits.

    (a) Mid-Atlantic forage species. There is no annual landing limit 
for Mid-Atlantic forage species, as defined at Sec.  648.2.
    (b) Atlantic chub mackerel. Effective through December 31, 2020, 
the annual landings limit for Atlantic chub mackerel is set at 2.86 
million lb (1,297 mt). All landings of Atlantic chub mackerel by 
vessels issued a Federal commercial permit in accordance with Sec.  
648.4 in ports from Maine through North Carolina shall count against 
the annual landings limit. NMFS shall close the directed fishery for 
Atlantic chub mackerel in the EEZ portion of the Mid-Atlantic Forage 
Species Management Unit in a manner consistent with the Administrative 
Procedure Act when the Regional Administrator determines that 100 
percent of the Atlantic chub mackerel annual landings limit has been 
harvested. Following closure of the directed Atlantic chub mackerel 
fishery, a vessel must adhere to the possession limit specified in 
Sec.  648.351(b).


Sec.  648.351   Mid-Atlantic forage species and Atlantic chub mackerel 
possession limits.

    (a) Mid-Atlantic forage species. Unless otherwise prohibited in 
Sec.  648.80, a vessel issued a valid commercial permit in accordance 
with Sec.  648.4 may fish for, possess, and land up to 1,700 lb (771.11 
kg) of all Mid-Atlantic forage species combined per trip in or from the 
EEZ portion of the Mid-Atlantic Forage Species Management Unit, as 
defined in paragraph (c) of this section. A vessel not issued a permit 
in accordance with Sec.  648.4 that is fishing exclusively in state 
waters is exempt from the possession limits specified in this section.
    (b) Atlantic chub mackerel. Effective through December 31, 2020, a 
vessel issued a valid commercial permit in accordance with Sec.  648.4 
may fish for, possess, and land an unlimited amount of Atlantic chub 
mackerel from the Mid-Atlantic Forage Species Management Unit, as 
defined in paragraph (c) of this section, provided the Atlantic chub 
mackerel annual landing limit has not been harvested. Once the Atlantic 
chub mackerel annual landing limit has been harvested, as specified in 
Sec.  648.350, a vessel may fish for, possess, and land up to 40,000 lb 
(18.14 mt) of Atlantic chub mackerel per trip in or from the Mid-
Atlantic Forage Species Management Unit for the remainder of the 
fishing year (until December 31). A vessel not issued a permit in 
accordance with Sec.  648.4 that is fishing exclusively in state waters 
is exempt from the possession limits specified in this section.
    (c) Mid-Atlantic Forage Species Management Unit. The Mid-Atlantic 
Forage Species Management Unit is the area of the Atlantic Ocean that 
is bounded on the southeast by the outer limit of the U.S. EEZ; bounded 
on the south by 35[deg]15.3' N. lat. (the approximate latitude of Cape 
Hatteras, NC); bounded on the west and north by the coastline of the 
United States; and bounded on the northeast by the following points, 
connected in the order listed by straight lines:

------------------------------------------------------------------------
         Point                  Latitude                Longitude
------------------------------------------------------------------------
1.....................  40[deg]59.32' N.         73[deg]39.62' W.
2.....................  40[deg]59.02' N.         73[deg]39.41' W.
3.....................  40[deg]57.05' N.         73[deg]36.78' W.
4.....................  40[deg]57.87' N.         73[deg]32.85' W.
5.....................  40[deg]59.78' N.         73[deg]23.70' W.
6.....................  41[deg]1.57' N.          73[deg]15.00' W.
7.....................  41[deg]3.40' N.          73[deg]6.10' W.
8.....................  41[deg]4.65' N.          73[deg]0.00' W.
9.....................  41[deg]6.67' N.          72[deg]50.00' W.
10....................  41[deg]8.69' N.          72[deg]40.00' W.
11....................  41[deg]10.79' N.         72[deg]29.45' W.
12....................  41[deg]12.22' N.         72[deg]22.25' W.
13....................  41[deg]13.57' N.         72[deg]15.38' W.
14....................  41[deg]14.94' N.         72[deg]8.35' W.
15....................  41[deg]15.52' N.         72[deg]5.41' W.
16....................  41[deg]17.43' N.         72[deg]1.18' W.
17....................  41[deg]18.62' N.         71[deg]55.80' W.
18....................  41[deg]18.27' N.         71[deg]54.47' W.
19....................  41[deg]10.31' N.         71[deg]46.44' W.
20....................  41[deg]2.35' N.          71[deg]38.43' W.
21....................  40[deg]54.37' N.         71[deg]30.45' W.
22....................  40[deg]46.39' N.         71[deg]22.51' W.
23....................  40[deg]38.39' N.         71[deg]14.60' W.
24....................  40[deg]30.39' N.         71[deg]6.72' W.
25....................  40[deg]22.38' N.         70[deg]58.87' W.
26....................  40[deg]14.36' N.         70[deg]51.05' W.
27....................  40[deg]6.33' N.          70[deg]43.27' W.
28....................  39[deg]58.29' N.         70[deg]35.51' W.
29....................  39[deg]50.24' N.         70[deg]27.78' W.
30....................  39[deg]42.18' N.         70[deg]20.09' W.
31....................  39[deg]34.11' N.         70[deg]12.42' W.
32....................  39[deg]26.04' N.         70[deg]4.78' W.
33....................  39[deg]17.96' N.         69[deg]57.18' W.
34....................  39[deg]9.86' N.          69[deg]49.6' W.
35....................  39[deg]1.77' N.          69[deg]42.05' W.
36....................  38[deg]53.66' N.         69[deg]34.53' W.
37....................  38[deg]45.54' N.         69[deg]27.03' W.
38....................  38[deg]37.42' N.         69[deg]19.57' W.
39....................  38[deg]29.29' N.         69[deg]12.13' W.
40....................  38[deg]21.15' N.         69[deg]4.73' W.
41....................  38[deg]13.00' N.         68[deg]57.35' W.
42....................  38[deg]4.84' N.          68[deg]49.99' W.
43*...................  38[deg]2.21' N.          68[deg]47.62' W.
------------------------------------------------------------------------
* Point 43 falls on the U.S. EEZ.

    (d) Transiting. Any vessel issued a valid permit in accordance with 
Sec.  648.4 may transit the Mid-Atlantic Forage Species Management 
Unit, as defined in paragraph (c) of this section, with an amount of 
Mid-Atlantic forage species or Atlantic chub mackerel on board that 
exceeds the possession limits specified in paragraphs (a) and (b) of 
this section, respectively, to land in a port in a state that is 
outside of the Mid-Atlantic Forage Species Management Unit, provided 
that those species were harvested outside of the Mid-Atlantic Forage 
Species Management Unit and

[[Page 40734]]

that all gear is stowed and not available for immediate use as defined 
in Sec.  648.2. The transitting provisions specified in this paragraph 
(d) for a vessel possessing Atlantic chub mackerel are effective 
through December 31, 2020.


Sec.  648.352  Mid-Atlantic forage species and Atlantic chub mackerel 
framework measures.

    (a) General. The MAFMC may, at any time, initiate action to add or 
revise management measures if it finds that action is necessary to meet 
or be consistent with the goals and objectives of the Atlantic 
Mackerel, Squid, and Butterfish FMP; the Atlantic Surfclam and Ocean 
Quahog FMP; the Summer Flounder, Scup, and Black Sea Bass FMP; the 
Atlantic Bluefish FMP; the Spiny Dogfish FMP; and Tilefish FMPs.
    (b) Adjustment process. The MAFMC shall develop and analyze 
appropriate management actions over the span of at least two MAFMC 
meetings. The MAFMC must provide the public with advance notice of the 
availability of the recommendation(s), appropriate justification(s) and 
economic and biological analyses, and the opportunity to comment on the 
proposed adjustment(s) at its first meeting, prior to its second 
meeting, and at its second meeting. The MAFMC's recommendations on 
adjustments or additions to management measures must come from one or 
more of the following categories: The list of Mid-Atlantic forage 
species, possession limits, annual landing limits, and any other 
measure currently included in the applicable FMPs specified in 
paragraph (a) of this section. Issues that require significant 
departures from previously contemplated measures or that are otherwise 
introducing new concepts may require an amendment of the FMPs instead 
of a framework adjustment.
    (c) MAFMC recommendation. See Sec.  648.110(a)(2).
    (d) NMFS action. See Sec.  648.110(a)(3).
    (e) Emergency actions. See Sec.  648.110(a)(4).

[FR Doc. 2017-18034 Filed 8-25-17; 8:45 am]
 BILLING CODE 3510-22-P