[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.

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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:
<bullet> https://www.regulations.gov/docket?D=NOAA-NMFS-2017-0013
<bullet> https://www.greateratlantic.fisheries.noaa.gov/regs/2017/April/17ForageOmnibusAmendmentpr.html or
<bullet> 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 <a href="/cdn-cgi/l/email-protection#743b3d26352b270116191d07071d1b1a341b19165a111b045a131b02"><span class="__cf_email__" data-cfemail="87c8ced5c6d8d4f2e5eaeef4f4eee8e9c7e8eae5a9e2e8f7a9e0e8f1">[email protected]</span></a> 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:

<bullet> Anchovies (family Engraulidae)
<bullet> Argentines (family Argentinidae)
<bullet> Greeneyes (family Chlorophthalmidae)
<bullet> Halfbeaks (family Hemiramphidae)
<bullet> Herrings and Sardines (family Clupeidae)
<bullet> Lanternfishes (family Myctophidae)
<bullet> Pearlsides (family Sternoptychidae)
<bullet> Sand lances (family Ammodytidae)
<bullet> Silversides (family Atherinopsidae)
<bullet> Cusk-eels (order Ophidiiformes)
<bullet> Atlantic Saury-Scomberesox saurus
<bullet> Pelagic Mollusks (except Sharptail Shortfin Squid)
<bullet> 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 <a href="/cdn-cgi/l/email-protection#a7e8eef5e6f8f4d2c5caced4d4cec8c9e7c8cac589c2c8d789c0c8d1"><span class="__cf_email__" data-cfemail="27686e7566787452454a4e54544e484967484a450942485709404851">[email protected]</span></a>, 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


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