[Federal Register Volume 73, Number 66 (Friday, April 4, 2008)]
[Rules and Regulations]
[Pages 18443-18450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7062]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 070717340-8451-02]
RIN 0648-AV40


Fisheries of the Northeastern United States; Atlantic Mackerel, 
Squid, and Butterfish Fisheries; Specifications and Management Measures

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

ACTION: Final rule.

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SUMMARY: This action implements 2008 specifications and management 
measures for Atlantic mackerel, squid, and butterfish (MSB) and 
modifies existing management measures. Specifically, it clarifies gear 
requirements for the Loligo squid fishery, standardizes procedures for 
closing the Atlantic mackerel (mackerel) and butterfish fisheries, 
modifies incidental possession limits for mackerel and butterfish, and 
establishes a butterfish possession limit. These specifications and 
management measures promote the utilization and conservation of the MSB 
resource.

DATES: Effective May 5, 2008.

ADDRESSES: Copies of supporting documents used by the Mid-Atlantic 
Fishery Management Council (Council), including the Environmental 
Assessment (EA) and Regulatory Impact Review (RIR)/Initial Regulatory 
Flexibility Analysis (IRFA), are available from: Daniel Furlong, 
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, 
Federal Building, 300 South New Street, Dover, DE 19904-6790. The EA/
RIR/IRFA is accessible via the Internet at http://www.nero.nmfs.gov. 
NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), which is 
contained in the Classification section of the preamble of this rule. 
Copies of the FRFA and the Small Entity Compliance Guide are available 
from the Regional Administrator, Northeast Regional Office, NMFS, One 
Blackburn Drive, Gloucester, MA 01930-2298, and are also available via 
the Internet at http://www.nero.nmfs.gov.

FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy 
Analyst, 978-281-9272, fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    Regulations implementing the Fishery Management Plan for the 
Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP) appear at 50 
CFR part 648, subpart B. Regulations governing foreign fishing appear 
at 50 CFR part 600, subpart F. These regulations, at Sec.  648.21 and 
Sec.  600.516(c), require that NMFS, based on the maximum optimum yield 
(Max OY) of each fishery as established by the regulations, annually 
publish a rule specifying the amounts of the initial optimum yield 
(IOY), allowable biological catch (ABC), domestic annual harvest (DAH), 
and domestic annual processing (DAP), as well as, where applicable, the 
amounts for total allowable level of foreign fishing (TALFF) and joint 
venture processing (JVP) for the affected species managed under the 
FMP. In addition, these regulations allow Loligo squid specifications 
to be specified for up to 3 years, subject to annual review. The 
regulations found in Sec.  648.21 also specify that IOY for squid is 
equal to the combination of research quota (RQ) and DAH, with no TALFF 
specified for squid. For butterfish, the regulations specify that a 
butterfish bycatch TALFF will be specified only if TALFF is specified 
for mackerel.
    The Council adopted 2008 MSB specifications and management measures 
at its June 2007 meeting and submitted them to NMFS for review and 
approval. Initial submission was on August 1, 2007, and final 
submission was on November 9, 2007. A proposed rule for 2008 MSB 
specifications and management measures was published on December 28, 
2007 (72 FR 73749), and a notice to re-open the public comment period 
on the proposed rule was published on January 29, 2008 (73 FR 5153). 
The public comment period for the proposed rule ended on February 5, 
2008. Details concerning the Council's development of these measures 
were presented in the preamble of the proposed rule and are not 
repeated here.

Disapproval of Increased Incidental Loligo Squid Possession Limit for 
Illex Squid Vessels

    The issue of incidental catch of Loligo squid in the Illex squid 
fishery was identified several years ago when large amounts of Loligo 
squid discards were reported in vessel trip reports by Illex squid 
vessels during closures of the directed Loligo squid fishery in the 
summer and fall of 2000. Analyses developed for Amendment 9 to the FMP 
indicated that the Illex squid fishery occurs primarily during June-
November

[[Page 18444]]

in offshore waters and that both squid species can co-occur during 
September-November on the Illex squid fishery grounds, when the Loligo 
squid begin to move offshore. Because of the seasonal co-occurrence of 
the two squid species, members of the directed Illex squid fishery 
testified at Council meetings that the 2,500-lb (1.13-mt) incidental 
Loligo squid possession limit during closures of the Loligo squid 
fishery creates compliance problems for the Illex squid fishery because 
vessels catch more than 2,500 lb (1.13 mt) of Loligo squid when the 
species mix. In an effort to reduce regulatory discarding and allow 
more accurate quantification of the removals of Loligo squid taken in 
the directed Illex squid fishery, the Council recommended increasing 
the incidental Loligo squid possession limit for vessels engaged in the 
directed Illex squid fishery during Loligo squid fishery closures. 
Specifically, during closures of the Loligo squid fishery in August-
October, Illex squid moratorium vessels fishing seaward of the small 
mesh exemption line (approximately the 50-fm (91-m) depth contour) 
would be permitted to possess and land up to 5,000 lb (2.27 mt) of 
Loligo squid, provided they possess a minimum of 10,000 lb (4.54 mt) of 
Illex squid on board.
    This measure is similar to the measure proposed by the Council in 
the 2007 MSB specifications, but not implemented due to concerns about 
NMFS's ability to administer the measure effectively. The small mesh 
exemption line, which approximates the 50-fm (91-m) depth contour, was 
implemented for the Illex squid fishery because Illex squid are not 
generally available to the fishery shoreward of this line. The Illex 
squid fishery is exempt from the 1\7/8\-inches (48-mm) minimum mesh 
requirement for the Loligo squid fishery in the exemption area. 
However, Loligo squid are widely distributed shoreward of this line, 
which would make it difficult to determine if the Loligo squid is truly 
incidentally caught within the Illex squid exemption area. Currently, 
there is no mechanism to determine if Illex squid moratorium vessels 
fish for Loligo squid shoreward of the small mesh exemption line. Tools 
to collect spatial effort information on the Illex squid fleet were 
discussed by the Council, but implementation of those tools would 
require an FMP amendment or framework adjustment. Therefore, for 2008, 
the incidental Loligo squid possession limit for Illex squid moratorium 
vessels, during closures of the Loligo squid fishery, will remain at 
2,500 lb (1.13 mt) per trip per day.

Final MSB Specifications and Management Measures for the 2008 Fishing 
Year

    This action implements the following MSB specifications and 
management measures for the 2008 fishing year, which are described in 
detail below.

   Table 1.--Final Specifications, in Metric Tons (mt), for Atlantic Mackerel, Squid, and Butterfish for 2008
                                                  Fishing Year
----------------------------------------------------------------------------------------------------------------
                       Specifications                            Loligo       Illex       Mackerel    Butterfish
----------------------------------------------------------------------------------------------------------------
Max OY......................................................       26,000       24,000          N/A       12,175
ABC.........................................................       17,000       24,000      156,000        1,500
IOY.........................................................   \1\ 16,977       24,000  \2\ 115,000          500
DAH.........................................................       16,977       24,000  \3\ 115,000          500
DAP.........................................................       16,977       24,000      100,000          500
JVP.........................................................            0            0            0            0
TALFF.......................................................            0            0            0           0
----------------------------------------------------------------------------------------------------------------
\1\ Excludes 23 mt for Research Quota (RQ).
\2\ IOY may be increased during the year, but the total ABC will not exceed 156,000 mt.
\3\ Includes a 15,000 mt catch of Atlantic mackerel by the recreational fishery.

Atlantic Mackerel

    This action specifies the mackerel ABC at 156,000 mt, based on the 
formula ABC = T-C. T is the yield (211,000 mt) associated with a 
fishing mortality rate (F) that is equal to target F (F = 0.12); C is 
the estimated catch of mackerel in Canadian waters (52,000 mt) for the 
upcoming fishing year. Thus, 211,000 mt minus 52,000 mt results in the 
2008 mackerel ABC of 156,000 mt. This action also specifies the 
mackerel IOY at 115,000 mt, a level that can be fully harvested by the 
domestic fleet, thereby precluding the specification of TALFF, while 
allowing the U.S. mackerel industry to expand. Given the trends in 
increasing mackerel landings, NMFS believes that it is reasonable to 
assume that, in 2008, the commercial fishery will harvest 100,000 mt of 
mackerel. Therefore, this action specifies the mackerel DAH at 115,000 
mt, which is the commercial harvest plus the 15,000 mt anticipated to 
be harvested by the recreational fishery. Because IOY = DAH, this 
specification is consistent with the Council's recommendation that the 
level of IOY should not provide for TALFF.
    As recommended by the Council, this action specifies the mackerel 
DAP at 100,000 mt and the mackerel JVP at zero. In previous years, the 
Council recommended a JVP greater than zero because it believed U.S. 
processors lacked the capability to process the total amount of 
mackerel that U.S. harvesters could land. However, for the past several 
years, the Council has recommended zero JVP because the surplus between 
DAH and DAP has been declining as U.S. shore-based processing capacity 
for mackerel has expanded. The Council also heard from the industry 
that the availability of mackerel to the fishery, rather than 
processing capacity, has curtailed catch in recent years. Based on this 
information, the Council concluded, and NMFS concurs, that processing 
capacity is no longer a limiting factor relative to domestic production 
of mackerel. Consequently, if U.S. harvesters land mackerel in excess 
of 100,000 mt, should the IOY be adjusted upward, U.S. processors have 
the capacity and intent to process it.

Closure of the Mackerel Fishery

    Regulations at Sec.  648.22(a)(1) specify that NMFS shall close the 
directed mackerel fishery when the Regional Administrator projects that 
80 percent of the mackerel DAH is landed, if such a closure is 
necessary to prevent the DAH from being exceeded. To facilitate 
achieving the mackerel DAH and consistent with the Council's 
recommendation, this action specifies that NMFS will close the mackerel 
fishery when 90 percent of the mackerel DAH is projected to be landed 
in 2008.

Mackerel Incidental Possession Limit

    Regulations at Sec.  648.22(c) specify that, during closures of the 
mackerel fishery,

[[Page 18445]]

the incidental possession limit for mackerel is 10 percent, by weight, 
of the total amount of fish on board. In general, possession limits 
that are a percent of the total catch on board are difficult to 
estimate and enforce. This action modifies the incidental possession 
limit for mackerel such that: It is easier to estimate and enforce, and 
it is more similar to incidental possession limits for squid and 
butterfish; it is low enough to ensure that the mackerel ABC would not 
be exceeded; it is high enough to minimize regulatory discarding of 
mackerel in fisheries where mackerel is taken incidentally, but not so 
high as to encourage directed fishing; and it is high enough to allow 
small-scale fisheries to continue after the directed fishery is closed. 
Consistent with these factors and the Council's recommendation, this 
action specifies the mackerel incidental possession limit at 20,000 lb 
(4.54 mt).

Inseason Adjustment of the Mackerel IOY

    Regulations at Sec.  648.21(e) provide that specifications may be 
adjusted inseason during the fishing year by the Regional 
Administrator, in consultation with the Council, by publishing a notice 
in the Federal Register and providing a 30-day public comment period. 
At the June 2007 Council meeting, in response to recent growth in the 
domestic harvesting and processing sectors of the mackerel fishery, 
both the mackerel industry and the Council voiced interest in 
increasing the 2008 mackerel IOY if landings approach 115,000 mt during 
the most active part of the fishing year (January-April). However, the 
mackerel fishing season is short and it would be difficult to implement 
a separate inseason action during the fishing season. To facilitate a 
timely inseason adjustment to the mackerel IOY, if necessary, public 
comment was solicited as part of the 2008 MSB specifications, and this 
action implements a protocol for an inseason adjustment in 2008. The 
protocol specifies that, if using landings projections and all other 
available information, the Regional Administrator determines that 70 
percent of the Atlantic mackerel IOY will be landed during the 2008 
fishing year, the Regional Administrator will make available additional 
quota for a total IOY of 156,000 mt of Atlantic mackerel for harvest 
during 2008. NMFS's Northeast Fishery Statistic Office (FSO) will 
summarize mackerel landings from dealer reports on a weekly basis and 
post this information on the Northeast Regional Office Web site (http://www.nero.noaa.gov/). NMFS staff will closely monitor these landings 
and industry trends to determine if an inseason adjustment is 
necessary. Additionally, if an inseason adjustment of the IOY is 
warranted, the Regional Administrator will notify the Council and the 
inseason adjustment will be published in the Federal Register.

Atlantic Squids

Loligo Squid

    For 2008, this action specifies the Loligo squid Max OY at 26,000 
mt; the ABC at 17,000 mt; and the research quota (RQ) for up to 3 
percent (510 mt) of the ABC. One scientific research project proposal 
requesting Loligo squid RQ was recommended for approval and will be 
forwarded to the NOAA Grants Office for award. The proposed Loligo 
squid IOY, DAH, and DAP were adjusted to reflect the RQ and equal 
16,977 mt. The FMP does not authorize the specification of JVP and 
TALFF for the Loligo squid fishery because of the domestic industry's 
capacity to harvest and process the OY for this fishery; therefore, 
there would be no JVP and TALFF in 2008.

Distribution of the Loligo Squid DAH

    For 2008, this action specifies that the Loligo squid DAH will be 
allocated by trimester. Managing the DAH by trimesters, rather than 
quarters, results in allocations that are the same or higher than the 
quarterly allocations. Higher allocations may increase the length of 
time the fishery is open and allow closure projections to be based on 
more information and, perhaps, to be more accurate. Additionally, 
managing by trimesters rather than quarters is administratively 
streamlined because only three, rather than four, closures of the 
directed fishery could occur during a fishing year. The 2008 trimester 
allocations are as follows:

      Table 2.--Trimester Allocation of Loligo Squid Quota in 2008
------------------------------------------------------------------------
                                                Metric tons
            Trimester                Percent        \1\        RQ (mt)
------------------------------------------------------------------------
I (Jan-Apr)......................           43        7,300           NA
II (May-Aug).....................           17        2,886           NA
III (Sep-Dec)....................           40        6,791           NA
                                  --------------------------------------
    Total........................          100       16,977           23
------------------------------------------------------------------------
\1\ Trimester allocations after 23 mt RQ deduction.

    For 2008, the Council recommended that the percentage at which the 
directed Loligo squid fishery would close and the handling of quota 
overages and underages would be the same as in 2007. Therefore, this 
action specifies the directed Loligo squid fishery would close when 90 
percent of the DAH is harvested in Trimesters I and II, and when 95 
percent of the DAH is harvested in Trimester III. Additionally, it 
specifies that any underages from Trimesters I and II would be applied 
to Trimester III, and any overages from Trimesters I and II would be 
subtracted from Trimester III.

Clarification of Loligo Squid Gear Requirements

    Regulations at Sec.  648.23(d) specify that net strengtheners have 
a minimum mesh size of 4\1/2\ inches (11.43 cm) and that any device, 
including net strengtheners, may not be used on the top 50 percent of a 
codend (i.e., the portion of the codend that is not in contact with the 
ocean floor when the net is fishing) if it constricts the minimum mesh 
size to less than the required 1\7/8\ inch (48 mm). However, any time a 
1\7/8\-inch (48-mm) codend is used with a 4\1/2\-inches (11.43-cm) net 
strengthener, the actual mesh size will be less than 1\7/8\ inches (48 
mm) because the meshes from the codend and the net strengthener will 
not be in alignment and will overlap. The U.S. Coast Guard brought it 
to NMFS's attention that Loligo squid vessels have net strengtheners 
covering the top 50 percent of the codend. When questioned about the 
need for and use of net strengtheners, members of the Loligo squid 
fishing industry explained that codends with a minimum mesh size of 
1\7/8\ inches (48 mm) are of such fine gauge that they will burst if a 
net strengthener does not surround the entire circumference of the 
codend. To ensure gear regulations are consistent

[[Page 18446]]

with the way the Loligo squid fishery needs to operate, this action 
specifies that net strengtheners, splitting straps, and/or bull ropes 
or wire may be used around the entire circumference of the codend, 
provided they do not have a mesh opening of less than 4\1/2\ inches 
(11.43 cm), diamond mesh, inside stretch measure.

Illex Squid

    This action specifies the Illex squid Max OY, IOY, ABC, and DAH at 
24,000 mt. The FMP does not authorize the specification of JVP and 
TALFF for the Illex squid fishery because of the domestic fishing 
industry's capacity to harvest and to process the IOY from this 
fishery.

Butterfish

    The status of the butterfish stock was most recently assessed in 
late 2004 and that assessment concluded that, while overfishing of the 
stock is not occurring, the stock is overfished. Based on this 
information, the Council was notified by NMFS on February 11, 2005, 
that the butterfish stock was designated as overfished, pursuant to the 
requirements of section 304(e) of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act), and the Council 
is developing a rebuilding plan for the butterfish stock in Amendment 
10 to the FMP (Amendment 10). While a butterfish rebuilding program is 
being developed in Amendment 10, the Council recommended restricting 
butterfish landings to recent landings levels to prevent an expansion 
of the fishery and to protect the rebuilding stock. Therefore, this 
action specifies the butterfish Max OY at 12,175 mt, ABC at 1,500 mt, 
and IOY, DAH, and DAP at 500 mt. Consistent with MSB regulations, this 
action specifies zero TALFF for butterfish in 2008 because zero TALFF 
is established for mackerel.

Closure of the Butterfish Fishery and the Incidental Butterfish 
Possession Limit

    Existing regulations specify that NMFS shall close the butterfish 
fishery when the Regional Administrator projects that 95 percent of the 
butterfish DAH is projected to be landed, and once the butterfish 
fishery is closed, the incidental butterfish possession limit is 2,500 
lb (1.13 mt) per day. Consistent with the lower butterfish DAH for 
2008, this action modifies both the butterfish fishery closure 
threshold and incidental possession limit. As such, if 80 percent of 
the butterfish DAH is projected to be landed prior to October 1, a 250-
lb (0.11-mt) incidental butterfish possession limit would be in effect 
for the remainder of the year and if 80 percent of the butterfish DAH 
is projected to be landed on or after October 1, a 600-lb (0.27-mt) 
incidental butterfish possession limit would be in effect for the 
remainder of the year. These measures should prevent the 500-mt 
butterfish DAH from being exceeded, while allowing for butterfish taken 
incidentally in other fisheries to be landed, thus reducing discards.
    Incidental possession limits for butterfish apply not only during a 
fishery closure but also year-round to vessels issued incidental catch 
permits. Because the Council did not explicitly recommend a butterfish 
possession limit for vessels issued a butterfish incidental catch 
permit during its June 2007 meeting, the proposed rule for the 2008 MSB 
specifications and management measures proposed a year-round, 250-lb 
(0.11-mt) butterfish possession limit for vessels issued incidental 
butterfish catch permits. In response to this proposed measure, the 
Council discussed this measure at its January 2008 meeting and 
recommended a revised butterfish incidental possession limit in a 
letter to NMFS during public comment on the proposed rule. The 
Council's recommendation was that the butterfish incidental possession 
limit for incidental permit holders be set at 600 lb (0.27 mt) per day, 
unless the butterfish fishery closes prior to October 1, then a 250-lb 
(0.11-mt) butterfish possession limit would be in effect for the 
remainder of the year. The Council believes this measure provides 
consistency for all butterfish permit holders (i.e., limited access and 
incidental), improves the enforcability of the measure, and would 
reduce regulatory discarding while limiting directed fishing on 
butterfish by incidental permit holders. NMFS concurs with the 
butterfish possession limit recommended by the Council in its comment 
letter; therefore, this action implements that Council-recommended 
measure.

Butterfish Possession Limits

    Regulations at Sec.  648.23(a)(2) specify that trawl vessels 
possessing 5,000 lb (2.27 mt) or more of butterfish may only fish with 
nets having a minimum codend mesh size of 3 inches (76 mm). Consistent 
with the Council's intent to prevent expansion of the butterfish 
fishery and protect the rebuilding stock as Amendment 10 is being 
developed, this action specifies that a trawl vessel possessing 1,000 
lb (0.45 mt) or more of butterfish may only fish with nets having a 
minimum codend mesh size of 3 inches (76 mm) and that a vessel issued a 
butterfish moratorium permit may not fish for, possess, or land more 
than 5,000 lb (2.27 mt) of butterfish per trip per day.

Comments and Responses

    NMFS received five comment letters on the proposed 2008 MSB 
specifications and management measures; one letter was from the 
Council, three letters were from industry representatives, and one 
letter was from an individual. Comments on the FMP that were not 
specific to the 2008 specifications and management measures described 
in the proposed rule are not responded to in this final rule.
    Comment 1: One commenter indicated general support for a reduction 
of commercial quotas, the use of accurate harvest information to 
develop quotas, and the need for protection of the public fishery 
resource.
    Response: NMFS acknowledges the importance of the issues raised by 
the commenter, which relate generally to 2008 MSB specifications and 
management measures. As specified in the FMP, the Council developed the 
2008 MSB specifications and management measures using the best 
available data regarding the resource and the fishery. Additionally, 
the 2008 MSB specifications and management measures are consistent with 
the rules specified in the FMP to promote utilization and conservation 
of the MSB resource.
    Comment 2: Three industry representatives expressed support for the 
proposed 2008 MSB specifications, indicating that they are consistent 
with the best available science and status of the fishery resources.
    Response: NMFS concurs with the commenters.
    Comment 3: Three industry representatives expressed support for an 
inseason adjustment of the mackerel IOY, up to the ABC, if landings 
projections indicate that 70 percent of the IOY will be landed during 
the fishing year. Additionally, these industry representatives stressed 
the importance of speedy implementation of an inseason action, if 
warranted, to prevent any interruption of the fishery.
    Response: If information demonstrates an inseason adjustment is 
necessary, NMFS will make the adjustment in a manner that will avoid 
interruption in the fishery, as specified in this final rule.
    Comment 4: One industry representative supported the proposed 
change of the mackerel incidental possession limit from an allowable 
percentage of catch (10 percent, by

[[Page 18447]]

weight, of all fish on board) to a fixed limit (20,000 lb (4.54 mt)), 
while two industry representatives opposed this change. Of those 
opposed, one industry representative contended that it is not feasible 
to eliminate mackerel bycatch in the Atlantic herring fishery to 
conform with a fixed weight standard, and recommended a thorough 
sampling of both herring and mackerel fisheries, before a 20,000-lb 
(4.54-mt) mackerel incidental possession limit is established, to 
ensure the herring fishery is not negatively impacted by the 2008 MSB 
specifications and management measures. The other industry 
representative critical of the proposed change argued that the herring 
fishery is a high-volume fishery, where catch is pumped aboard the 
vessel, and crew do not have the ability to sort and weigh incidentally 
caught mackerel, but they can estimate a catch ratio. This commenter 
believes the enforceability of a limit that is a percentage of catch or 
a fixed value are equal, and the only feasible way to determine the 
amount of bycatch is through statistical sub-sampling of the catch and 
an extrapolation of those data.
    Response: At its June 2007 meeting, the Council discussed revising 
the mackerel incidental possession limit from a percentage of catch to 
a fixed limit. Council discussion focused on the issue that possession 
limits that are a percent of the total catch on board are difficult to 
estimate and enforce because the relative amounts of all species (i.e., 
target and bycatch) must be known. Therefore, there was support during 
the meeting to revise the mackerel incidental possession limit, such 
that it would be easier to estimate and enforce, because it would 
require only knowing the amount of mackerel bycatch on board, and that 
it would be similar to the fixed value incidental possession limits for 
squid and butterfish.
    The Council considered several competing objectives in the 
development of a revised incidental possession limit for mackerel. 
First, the possession limit needed to be low enough to ensure that the 
mackerel ABC would not be exceeded. Secondly, the possession limit 
needed to be set high enough to minimize regulatory discarding of 
mackerel in fisheries where mackerel is taken incidentally, but not so 
high as to encourage directed fishing. Lastly, because small-scale 
mackerel fisheries contribute only minimally to the overall mackerel 
harvest, the Council wanted the incidental possession limit to be high 
enough to allow small-scale fisheries to continue after the directed 
fishery was closed. After considering these factors, the Council 
recommended a mackerel incidental possession limit of 20,000 lb (4.54 
mt) for 2008.
    According to the Magnuson-Stevens Act, NMFS either approves or 
disapproves a management measure recommended by the Council, but NMFS 
cannot implement a measure not considered by the Council. Since NMFS 
concurs with the Council that a possession limit that is a fixed value 
is easier to estimate and enforce than a percentage of catch, this 
action implements the Council-recommended mackerel incidental 
possession limit of 20,000 lb (4.54 mt) rather than disapproving that 
measure and maintaining the mackerel incidental possession limit of 10 
percent, by weight, of all fish on board.
    Comment 5: One industry representative expressed support for the 
measure to clarify the gear requirement for Loligo squid, specifically, 
the provisions that a net strengthener could be used around the entire 
circumference of the codend and that the minimum mesh size of the net 
strengthener was 4.5 inches (11.43 cm).
    Response: NMFS believes this clarification is appropriate and 
necessary. Allowing the net strengthener to be used around the entire 
circumference of the codend, instead of just on the lower 50 percent of 
the net, is not expected to significantly affect the escapement of 
small Loligo squid from the codend, but it does ensure that Loligo 
squid gear requirements are consistent with the way the fishery is 
operated.

Changes From the Proposed Rule

    In the proposed rule, Sec.  648.25(d)(1) specified that if a vessel 
has been issued a butterfish incidental catch permit (as specified at 
Sec.  648.4(a)(5)(ii)), then it may not fish for, possess, or land more 
than 250 lb (0.11 mt) of butterfish per trip at any time, and may only 
land butterfish once on any calendar day. In response to the Council's 
comment letter on this limit, NMFS reconsidered this limit, and this 
action is revising the limit consistent with the Council's 
recommendation. Therefore, Sec.  648.25(d)(1) will specify that if a 
vessel has been issued a butterfish incidental catch permit (as 
specified at Sec.  648.4(a)(5)(ii)), then it may not fish for, possess, 
or land more than 600 lb (0.27 mt) of butterfish per trip at any time, 
and may only land butterfish once on any calendar day, unless the 
directed fishery for butterfish closes prior to October 1, then a 
vessel that has been issued a butterfish incidental catch permit may 
not fish for, possess, or land more than 250 lb (0.11 mt) of butterfish 
per trip at any time, and may only land butterfish once on any calendar 
day.

Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the 
NMFS Acting Assistant Administrator has determined that this rule is 
consistent with the Atlantic Mackerel, Squid, and Butterfish FMP, other 
provisions of the Magnuson-Stevens Act, and other applicable law.
    This action is authorized by 50 CFR part 648 and has been 
determined to be not significant for purposes of Executive Order 12866 
(E.O. 12866).
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act, 
has prepared a final regulatory flexibility analysis (FRFA), included 
in this final rule, in support of the 2008 MSB specifications and 
management measures. The FRFA describes the economic impact that this 
final rule, along with other non-preferred alternatives, will have on 
small entities.
    The FRFA incorporates the economic impacts and analysis summarized 
in the IRFA, a summary of the significant issues raised by the public, 
and a summary of analyses prepared to support the action (i.e., the EA 
and the RIR). The contents of these documents are not repeated in 
detail here. A copy of the IRFA, the RIR, and the EA are available upon 
request (see ADDRESSES). A complete description of the reasons why this 
action is being considered, and the objectives of and legal basis for 
this action, is contained in the preamble to the proposed and final 
rules and is not repeated here.

Statement of Need for This Action

    This action specifies 2008 specifications and management measures 
for MSB fisheries and modifies existing management measures to improve 
the monitoring and management of MSB fisheries.

A Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA, a Summary of the Assessment of the Agency of Such 
Issues, and a Statement of Any Changes Made in the Proposed Rule as a 
Result of Such Comments

    A summary of the comments received and NMFS' responses thereto is 
contained in the preamble and is not repeated here.

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

    Based on permit data for 2006, the number of potential fishing 
vessels in the 2008 fisheries are as follows: 383 for

[[Page 18448]]

Loligo squid/butterfish; 78 for Illex squid; 2,495 for mackerel; and 
2,016 vessels with incidental catch permits for squid/butterfish. There 
are no large entities participating in this fishery, as defined in 
section 601 of the RFA. Therefore, there are no disproportionate 
economic impacts on small entities. Many vessels participate in more 
than one of these fisheries; therefore, permit numbers are not 
additive.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

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

Description of the Steps the Agency Has taken to Minimize the 
Significant Economic Impact on Small Entities Consistent With the 
Stated Objectives of Applicable Statutes, Including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each One of the Other Significant 
Alternatives to the Rule Considered by the Agency Which Affect the 
Impact on Small Entities Was Rejected

Actions Implemented With the Final Rule

    The mackerel IOY specified in this action (115,000 mt, with 15,000 
mt allocated to recreational catch) represents no constraint on vessels 
in this fishery. This level of landings has not been achieved by 
vessels in this fishery in recent years. Mackerel landings for 2001-
2003 averaged 24,294 mt. Landings in 2004 were 55,528 mt, landings in 
2005 were 43,246 mt, and landings for 2006 were 58,279 mt. This action 
also specifies an inseason adjustment, if landings approach the IOY 
early in the fishing year, to increase the IOY up to the ABC (156,000 
mt). Therefore, no reductions in revenues for the mackerel fishery are 
expected as a result of this action; in fact, an increase in revenues 
as a result of the action is possible. Based on 2006 data, the mackerel 
fishery could increase its landings by 56,721 mt in 2008, if it takes 
the entire IOY. In 2006, the last year with complete financial data, 
the average value for mackerel was $418 per mt. Using this value, the 
mackerel fishery could see an increase in revenues of $23,709,378 as a 
result of the 2008 IOY (115,000 mt), and an additional increase in 
revenues of $17,138,000 as a result of the inseason adjustment to 
increase the IOY up to the ABC (156,000 mt).
    Additionally, this action changes the percentage at which the 
directed mackerel fishery would close (from 80 percent to 90 percent of 
OY) and the incidental mackerel possession limit after the directed 
fishery is closed (from 10 percent, by weight, of the total fish on 
board to a fixed possession limit of 20,000 lb (4.54 mt)). Under these 
changes, it is likely that a higher level of revenue could be realized 
by vessels engaged in the directed mackerel fishery compared to the 
other alternatives. An increase in revenues of 10 percent of OY in the 
directed fishery could be realized, amounting to a potential increase 
in landings in the directed fishery on the order about 10,000 mt. Given 
recent prices, this would translate into increased revenues of about 
$4.2 million, or $15,000 per vessel.
    The Loligo squid IOY (17,000 mt) specified in this action 
represents status quo as compared to 2007. Loligo squid landings for 
2001-2003 averaged 14,092 mt. Landings in 2004 were 15,447, landings in 
2005 were 16,984 mt, and landings in 2006 were 15,880 mt. In 2006, the 
last year for which complete financial data are available, the average 
value for Loligo squid was $1,751 per mt. Implementation of this action 
would not result in a reduction in revenue or a constraint on restraint 
on the fishery in 2008.
    The Illex squid IOY (24,000 mt) specified in this action represents 
status quo as compared to 2007. Illex squid landings for 2001-2003 
averaged 4,350 mt. Landings in 2004 were 26,098 mt, landings in 2005 
were 12,032 mt, and landings in 2006 were 13,944 mt. In 2006, the last 
year for which complete financial data are available, the average value 
for Illex squid was $578 per mt. Implementation of this action would 
not result in a reduction in revenue or a constraint on the fishery in 
2008.
    The butterfish IOY (500 mt) specified in this action represents no 
constraint to vessels relative to the landings in recent years. Due to 
market conditions, there has not been a directed butterfish fishery in 
recent years; therefore, recent landings have been low. Landings in 
2004 were 537 mt, landings in 2005 were 437 mt, and landings in 2006 
were 554 mt. Given the lack of a directed butterfish fishery and low 
butterfish landings, this action is not expected to reduce revenues in 
this fishery. Based on 2006 data, the value of butterfish was $1,472 
per mt.
    This action also modifies the trigger for closing the directed 
butterfish fishery and reduces butterfish possession limits. 
Specifically, this action changes the percentage at which the directed 
butterfish fishery would close (from 95 percent to 80 percent of DAH) 
and the incidental butterfish possession limit after the directed 
fishery is closed (from 2,500 lb (1.13 mt) to either 600 lb (0.27 mt) 
or 250 lb (0.11 mt)). Additionally, this action implements a 5,000-lb 
(2.27-mt) butterfish possession limit for all trips and reduces the 
possession limit for trips using small mesh (i.e., less than 3 inches 
(76 mm)) from 5,000 lb (4.54 mt) to 1,000 lb (0.45 mt). These measures 
potentially limit the amount of fishing effort for butterfish as the 
stock rebuilds compared to the other alternatives. Therefore, there 
could be some minor losses in revenue for vessels that wanted to direct 
on butterfish in the short term (i.e., during the rebuilding period).

Alternatives to the Actions in the Final Rule

    The Council analysis evaluated three alternatives for mackerel, and 
all of them would have set IOY at 115,000 mt, maintained the status quo 
trigger for closing the directed fishery, and maintained the status quo 
incidental mackerel possession limit. This IOY and these management 
measures do not represent a constraint on vessels in this fishery, so 
no negative impacts on revenues in this fishery are expected as a 
result of these alternatives. One of these alternatives (status quo) 
would have set the ABC at 186,000 mt, and the other could have set the 
ABC at 335,000 mt. These alternatives were not adopted by the Council 
because that level of ABC is not consistent with the overfishing 
definition in the FMP, as updated by the most recent stock assessment. 
Furthermore, alternatives that would set a higher harvest were not 
adopted because they proposed harvest that was too high in light of 
social and economic concerns relating to TALFF. The specification of 
TALFF would have limited the opportunities for the domestic fishery to 
expand, and therefore would have resulted in negative social and 
economic impacts to both U.S. harvesters and processors (for a full 
discussion of the TALFF issue, see the earlier section on Atlantic 
mackerel).
    For Loligo squid, all alternatives would have set Max OY at 26,000 
mt and ABC, IOY, DAH, and DAP at 17,000 mt. While the annual quota 
under all alternatives represents status quo, alternatives differ in 
their allocation of the annual quota and incidental Loligo squid 
possession limit for Illex squid vessels. Two alternatives would have 
allocated quotas by trimester. Of these, both include an increase of 
the Loligo

[[Page 18449]]

squid incidental possession limit for Illex squid vessels during 
August-October closures of the Loligo squid fishery; one alternative 
specifies a 5,000-lb (2.27-mt) limit for vessels fishing seaward of the 
small-mesh exemption line (approximating the 50-fm (91-m) depth 
contour), and the other specifies a 10,000-lb (4.54-mt) limit for 
vessels fishing seaward of a boundary approximating the 80-fm (146-m) 
depth contour. As described in the preamble of this rule, there are no 
tools in place for NMFS to monitor spatial activities of the Illex 
squid fleet; therefore, this possession limit provision of these 
alternatives will not be implemented because it cannot be administered 
effectively. The third alternative would allocate quota by quarters 
(status quo). Difference in seasonal quota distribution may have 
distributive effects on seasonal participants in the fishery; however, 
all alternatives are expected to result in the same total landings for 
2008.
    For Illex squid, one alternative considered would have set Max OY, 
ABC, IOY, DAH, and DAP at 30,000 mt. This alternative would allow 
harvest far in excess of recent landings in this fishery. Therefore, 
there would be no constraints and, thus, no revenue reductions, 
associated with this alternative. However, the Council considered this 
alternative unacceptable because an ABC specification of 30,000 mt may 
not prevent overfishing in years of moderate to low abundance of Illex 
squid. Another alternative considered would have set MAX OY at 24,000 
mt and ABC, IOY, DAH, and DAP at 19,000 mt. The Council considered this 
alternative unacceptable because it was unnecessarily restrictive.
    For butterfish, one alternative considered would have set the ABC 
at 4,525 mt and IOY, DAH, and DAP at 1,861 mt, while another would have 
set ABC at 12,175 mt and IOY, DAH, and DAP 9,131 mt. These amounts 
exceed the landings of this species in recent years. Both alternatives 
would have maintained the status quo trigger for closing the directed 
fishery, incidental possession limit, and possession limit for trips 
using mesh smaller than 3 inches (76 mm). Therefore, neither 
alternative represents a constraint on vessels in this fishery or would 
reduce revenues in the fishery. However, neither of these alternatives 
were adopted because they would likely result in overfishing and the 
additional depletion of the spawning stock biomass of an overfished 
species.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule or group of related rules for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule, 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide was prepared. 
The guide will be sent to all holders of permits issued for the MSB 
fisheries. In addition, copies of this final rule and guide (i.e., 
permit holder letter) are available from the Regional Administrator and 
are also available from NMFS, Northeast Region (see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: March 31, 2008.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
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.  648.14, paragraphs (a)(73), (p)(3), (p)(5), and (p)(11) are 
revised to read as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (73) Take, retain, possess, or land more mackerel, squid, or 
butterfish than as specified at Sec.  648.25.
* * * * *
    (p) * * *
    (3) Take, retain, possess, or land mackerel, squid, or butterfish 
in excess of a possession allowance specified at Sec.  648.25.
* * * * *
    (5) Fish with or possess nets or netting that do not meet the 
minimum mesh requirements for Loligo or butterfish specified in Sec.  
648.23, or that are modified, obstructed, or constricted, if subject to 
the minimum mesh requirements, unless nets or netting are stowed in 
accordance with Sec.  648.23(b) or the vessel is fishing under an 
exemption specified in Sec.  648.23(a)(3)(ii).
* * * * *
    (11) Possess 1,000 lb (0.45 mt) or more of butterfish, unless the 
vessel meets the minimum mesh size requirement specified in Sec.  
648.23(a)(2).
* * * * *

0
3. In Sec.  648.22, paragraph (c) is removed and paragraph (a) is 
revised to read as follows:


Sec.  648.22  Closure of the fishery.

    (a) Closing procedures. (1) NMFS shall close the directed mackerel 
fishery in the EEZ when the Regional Administrator projects that 90 
percent of the mackerel DAH is harvested, if such a closure is 
necessary to prevent the DAH from being exceeded. The closure of the 
directed fishery shall be in effect for the remainder of that fishing 
period, with incidental catches allowed as specified at Sec.  648.25. 
When the Regional Administrator projects that the DAH for mackerel 
shall be landed, NMFS shall close the mackerel fishery in the EEZ and 
the incidental catches specified for mackerel at Sec.  648.25 will be 
prohibited.
    (2) NMFS shall close the directed fishery in the EEZ for Loligo 
when the Regional Administrator projects that 90 percent of the Loligo 
quota is harvested in Trimesters I and II, and when 95 percent of the 
Loligo DAH has been harvested in Trimester III. The closure of the 
directed fishery shall be in effect for the remainder of that fishing 
period, with incidental catches allowed as specified at Sec.  648.25.
    (3) NMFS shall close the directed Illex fishery in the EEZ when the 
Regional Administrator projects that 95 percent of the Illex DAH is 
harvested. The closure of the directed fishery shall be in effect for 
the remainder of that fishing period, with incidental catches allowed 
as specified at Sec.  648.25.
    (4) NMFS shall close the directed butterfish fishery in the EEZ 
when the Regional Administrator projects that 80 percent of the 
butterfish DAH is harvested. The closure of the directed fishery shall 
be in effect for the remainder of that fishing period, with incidental 
catches allowed as specified at Sec.  648.25.
* * * * *

0
4. In Sec.  648.23, paragraphs (a)(4) and (d) are removed and 
paragraphs (a)(2) and (a)(3) are revised to read as follows:


Sec.  648.23  Gear restrictions.

    (a) * * *
    (2) Owners or operators of otter trawl vessels possessing 1,000 lb 
(0.45 mt) or more of butterfish harvested in or from

[[Page 18450]]

the EEZ may only fish with nets having a minimum codend mesh of 3 
inches (76 mm) diamond mesh, inside stretch measure, applied throughout 
the codend for at least 100 continuous meshes forward of the terminus 
of the net, or for codends with less than 100 meshes, the minimum mesh 
size codend shall be a minimum of one-third of the net, measured from 
the terminus of the codend to the headrope.
    (3) Owners or operators of otter trawl vessels possessing Loligo 
harvested in or from the EEZ may only fish with nets having a minimum 
mesh size of 1\7/8\ inches (48 mm) diamond mesh, inside stretch 
measure, applied throughout the codend for at least 150 continuous 
meshes forward of the terminus of the net, or for codends with less 
than 150 meshes, the minimum mesh size codend shall be a minimum of 
one-third of the net measured from the terminus of the codend to the 
headrope, unless they are fishing consistent with exceptions specified 
in paragraph (b) of this section.
    (i) Net obstruction or constriction. Owners or operators of otter 
trawl vessels fishing for and/or possessing Loligo shall not use any 
device, gear, or material, including, but not limited to, nets, net 
strengtheners, ropes, lines, or chafing gear, on the top of the 
regulated portion of a trawl net that results in an effective mesh 
opening of less than 1\7/8\ inches (48 mm) diamond mesh, inside stretch 
measure. ``Top of the regulated portion of the net'' means the 50 
percent of the entire regulated portion of the net that would not be in 
contact with the ocean bottom if, during a tow, the regulated portion 
of the net were laid flat on the ocean floor. However, owners or 
operators of otter trawl vessels fishing for and/or possessing Loligo 
may use net strengtheners (covers), splitting straps, and/or bull ropes 
or wire around the entire circumference of the codend, provided they do 
not have a mesh opening of less than 4\1/2\ inches (11.43 cm) diamond 
mesh, inside stretch measure. For the purpose of this requirement, head 
ropes are not to be considered part of the top of the regulated portion 
of a trawl net.
    (ii) Illex fishery. Owners or operators of otter trawl vessels 
possessing Loligo harvested in or from the EEZ and fishing during the 
months of June, July, August, and September for Illex seaward of the 
following coordinates (copies of a map depicting this area are 
available from the Regional Administrator upon request) are exempt from 
the Loligo gear requirements specified at paragraph (a)(3) of this 
section, provided they do not have available for immediate use, as 
defined in paragraph (b) of this section, any net, or any piece of net, 
with a mesh size less than 1\7/8\ inches (48 mm) diamond mesh or any 
net, or any piece of net, with mesh that is rigged in a manner that is 
prohibited by paragraph (a)(3) of this section, when the vessel is 
landward of the specified coordinates.

------------------------------------------------------------------------
              Point                      N. Lat.            W. Long.
------------------------------------------------------------------------
M1...............................  43[deg]58.0'        67[deg]22.0'
M2...............................  43[deg]50.0'        68[deg]35.0'
M3...............................  43[deg]30.0'        69[deg]40.0'
M4...............................  43[deg]20.0'        70[deg]00.0'
M5...............................  42[deg]45.0'        70[deg]10.0'
M6...............................  42[deg]13.0'        69[deg]55.0'
M7...............................  41[deg]00.0'        69[deg]00.0'
M8...............................  41[deg]45.0'        68[deg]15.0'
M9...............................  42[deg]10.0'        67[deg]10.0'
M10..............................  41[deg]18.6'        66[deg]24.8'
M11..............................  40[deg]55.5'        66[deg]38.0'
M12..............................  40[deg]45.5'        68[deg]00.0'
M13..............................  40[deg]37.0'        68[deg]00.0'
M14..............................  40[deg]30.0'        69[deg]00.0'
M15..............................  40[deg]22.7'        69[deg]00.0'
M16..............................  40[deg]18.7'        69[deg]40.0'
M17..............................  40[deg]21.0'        71[deg]03.0'
M18..............................  39[deg]41.0'        72[deg]32.0'
M19..............................  38[deg]47.0'        73[deg]11.0'
M20..............................  38[deg]04.0'        74[deg]06.0'
M21..............................  37[deg]08.0'        74[deg]46.0'
M22..............................  36[deg]00.0'        74[deg]52.0'
M23..............................  35[deg]45.0'        74[deg]53.0'
M24..............................  35[deg]28.0'        74[deg]52.0'
------------------------------------------------------------------------

* * * * *

0
5. Section 648.25 is added to read as follows:


Sec.  648.25  Possession restrictions.

    (a) Atlantic mackerel. During a closure of the directed Atlantic 
mackerel fishery, vessels may not fish for, possess, or land more than 
20,000 lb (9.08 mt) of mackerel per trip at any time, and may only land 
mackerel once on any calendar day, which is defined as the 24-hr period 
beginning at 0001 hours and ending at 2400 hours.
    (b) Loligo. During a closure of the directed fishery for Loligo, 
vessels may not fish for, possess, or land more than 2,500 lb (1.13 mt) 
of Loligo per trip at any time, and may only land Loligo once on any 
calendar day, which is defined as the 24-hr period beginning at 0001 
hours and ending at 2400 hours. If a vessel has been issued a Loligo 
incidental catch permit (as specified at Sec.  648.4(a)(5)(ii)), then 
it may not fish for, possess, or land more than 2,500 lb (1.13 mt) of 
Loligo per trip at any time and may only land Loligo once on any 
calendar day.
    (c) Illex. During a closure of the directed fishery for Illex, 
vessels may not fish for, possess, or land more than 10,000 lb (4.54 
mt) of Illex per trip at any time, and may only land Illex once on any 
calendar day, which is defined as the 24-hr period beginning at 0001 
hours and ending at 2400 hours. If a vessel has been issued an Illex 
incidental catch permit (as specified at Sec.  648.4(a)(5)(ii)), then 
it may not fish for, possess, or land more than 10,000 lb (4.54 mt) of 
Illex per trip at any time, and may only land Illex once on any 
calendar day.
    (d) Butterfish. (1) During a closure of the directed fishery for 
butterfish that occurs prior to October 1, vessels may not fish for, 
possess, or land more than 250 lb (0.11 mt) of butterfish per trip at 
any time, and may only land butterfish once on any calendar day, which 
is defined as the 24-hr period beginning at 0001 hours and ending at 
2400 hours. During a closure of the directed fishery for butterfish 
that occurs on or after October 1, vessels may not fish for, possess, 
or land more than 600 lb (0.27 mt) of butterfish per trip at any time, 
and may only land butterfish once on any calendar day. If a vessel has 
been issued a butterfish incidental catch permit (as specified at Sec.  
648.4(a)(5)(ii)), then it may not fish for, possess, or land more than 
600 lb (0.27 mt) of butterfish per trip at any time, and may only land 
butterfish once on any calendar day, unless the directed fishery for 
butterfish closes prior to October 1, then a vessel that has been 
issued a butterfish incidental catch permit may not fish for, possess, 
or land more than 250 lb (0.11 mt) of butterfish per trip at any time, 
and may only land butterfish once on any calendar day.
    (2) A vessel issued a butterfish moratorium permit (as specified at 
Sec.  648.4(a)(5)(i)) may not fish for, possess, or land more than 
5,000 lb (2.27 mt) of butterfish per trip at any time, and may only 
land butterfish once on any calendar day, which is defined as the 24-hr 
period beginning at 0001 hours and ending at 2400 hours.

[FR Doc. E8-7062 Filed 4-3-08; 8:45 am]
BILLING CODE 3510-22-P