[Federal Register Volume 73, Number 127 (Tuesday, July 1, 2008)]
[Rules and Regulations]
[Pages 37382-37388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14937]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 071219865-8771-02]
RIN 0648-AP60


Fisheries of the Northeastern United States; Atlantic Mackerel, 
Squid, and Butterfish Fisheries; Amendment 9

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

ACTION: Final rule.

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

SUMMARY: NMFS is implementing approved measures contained in

[[Page 37383]]

Amendment 9 to the Atlantic Mackerel, Squid, and Butterfish (MSB) 
Fishery Management Plan (FMP). Amendment 9 was developed by the Mid-
Atlantic Fishery Management Council (Council) to remedy deficiencies in 
the FMP and to address other issues that have arisen since Amendment 8 
to the FMP became effective in 1999. Amendment 9 establishes multi-year 
specifications for all four species managed under the FMP (mackerel, 
butterfish, Illex squid (Illex), and Loligo squid (Loligo)) for up to 3 
years; extends the moratorium on entry into the Illex fishery, without 
a sunset provision; adopts biological reference points recommended by 
the Stock Assessment Review Committee (SARC) for Loligo; designates 
essential fish habitat (EFH) for Loligo eggs based on best available 
scientific information; and prohibits bottom trawling by MSB-permitted 
vessels in Lydonia and Oceanographer Canyons.

DATES: Effective July 31, 2008.

ADDRESSES: A final supplemental environmental impact statement (FSEIS) 
was prepared for Amendment 9 that describes the proposed action and 
other considered alternatives and provides a thorough analysis of the 
impacts of the proposed measures and alternatives. Copies of Amendment 
9, including the FSEIS, the Regulatory Impact Review (RIR), and the 
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 FSEIS/RIR/IRFA is accessible 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

    This amendment is needed to remedy deficiencies in the FMP and to 
address other issues that have arisen since Amendment 8 to the FMP (64 
FR 57587, October 26, 1999) became effective in 1999. Amendment 8 was 
only partially approved by NMFS because the amendment failed to 
adequately address some Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act) requirements for Federal FMPs. 
Specifically, the amendment was considered deficient with respect to: 
Consideration of fishing gear impacts on EFH as they relate to MSB 
fisheries; designation of EFH for Loligo eggs; and the reduction of 
bycatch and discarding of target and non-target species in the MSB 
fisheries.
    The final version of Amendment 9 contains alternatives that 
consider allowing for multi-year specifications and management 
measures, extending or eliminating the moratorium on entry to the 
directed Illex fishery, revising the biological reference points for 
Loligo, designating EFH for Loligo eggs, implementing area closures to 
reduce gear impacts from MSB fisheries on EFH of other federally 
managed species, increasing the incidental possession limit for Illex 
vessels during a closure of the Loligo fishery, and requiring real-time 
electronic reporting via vessel monitoring systems in the Illex 
fishery. The Council held four public meetings on Amendment 9 during 
May 2007. Following the public comment period that ended on May 21, 
2007, the Council adopted Amendment 9 on August 6, 2007. The Notice of 
Availability (NOA) for Amendment 9 was published on March 25, 2008 (73 
FR 15716), with a comment period ending on May 27, 2008. A proposed 
rule for Amendment 9 was published on April 4, 2008 (73 FR 18483), with 
a comment period ending on May 19, 2008. On June 17, 2008, NMFS 
approved Amendment 9 on behalf of the Secretary of Commerce.
    This rule establishes management measures that were recommended by 
the Council as part of Amendment 9. Specifically, this rule implements 
measures that: Allow for multi-year specifications for all four species 
managed under the FMP (mackerel, butterfish, Illex, and Loligo) for up 
to 3 years; extend the moratorium on entry into the Illex fishery, 
without a sunset provision; adopt biological reference points for 
Loligo recommended by the SARC; designate EFH for Loligo eggs based on 
best available science information; and prohibit bottom trawling by 
MSB-permitted vessels in Lydonia and Oceanographer Canyons.

Approved Measures

Multi-Year Specifications and Management Measures

    Regulations at Sec.  648.21 specify that specifications for 
mackerel, Illex, and butterfish are recommended to the Council on an 
annual basis, and that specifications for Loligo may be specified for 
up to 3 years, subject to annual review. To streamline the 
administrative and regulatory process involved in setting 
specifications and management measures, Amendment 9 establishes multi-
year specifications for all four species: Mackerel, Illex, Loligo, and 
butterfish. Amendment 9 does not establish any specification measures; 
rather it affects the periodicity for specifying such regulatory 
measures through future Council actions. Under multi-year 
specifications, Amendment 9 requires an annual review of updated 
information on the fishery by the MSB Monitoring Committee, as is the 
current practice, during the period of the multi-year specifications. 
The MSB Monitoring Committee will examine data collected from the 
fishery and resource surveys and alert the Council of any changes, 
including those of stock status, that might require a revision to the 
specifications before the multi-year period elapses.
    This action allows for specifications and management measures for 
any or all of the four species in the FMP to be set for up to 3 years, 
subject to annual review. In the past, the specifications and 
management measures for MSB fisheries have remained fairly constant 
across years. This measure still enables the Council to respond to 
changes in stock status, in any given year, by modifying quotas or 
management measures. However, if changes were not necessary, the 
Council and NMFS would not have to recommend and implement annual 
specifications and management measures. Because this measure is largely 
administrative, it is not anticipated that there will be effects on the 
environment. This measure does have the potential to provide MSB 
fishery participants with an expanded planning horizon for harvesting 
and processing activities; therefore, it may have positive economic 
effects for MSB fishery participants.

Moratorium on Entry into the Illex Fishery

    A fishery is considered overcapitalized when the harvest potential 
of the fishing fleet exceeds the harvest at optimum yield (OY). 
Information presented in Amendment 9 indicates the Illex fishery is 
overcapitalized; therefore, this amendment limits the potential for 
increases in the harvest capacity of the large-scale, directed Illex 
fishery.
    In order to prevent excess harvest capacity from developing in the 
directed Illex fishery, a moratorium on new entry into this fishery was 
established in 1997. In the directed fishery, moratorium-permitted 
vessels are not subject to any daily Illex possession limit. As such, 
the maximum potential Illex landings for moratorium-permitted vessels 
are unlimited until 95 percent of the annual harvest quota has been 
achieved in any given year. Once 95 percent of the annual quota has 
been harvested, the possession limit for vessels with Illex moratorium 
permits becomes 10,000 lb (4.54 mt). The moratorium on new entry was 
initially

[[Page 37384]]

scheduled to expire in 2002, but has been extended several times 
through framework actions and is most recently scheduled to expire in 
July 2009.
    Throughout the year, a small-scale, incidental catch fishery for 
Illex is currently provided for through an open-access Federal permit 
that allows possession of up to 10,000 lb (4.54 mt) of Illex on a 
single trip. In addition to the 10,000-lb (4.54-mt) trip allowance for 
Illex, vessels in possession of this permit are also allowed to land 
2,500 lb (1.13 mt) of Loligo and 600 lb (0.27 mt) of butterfish in a 
single trip (unless the directed fishery closes prior to October 1, in 
which case the limit is 250 lb (0.11 mt)). Amendment 9 does not include 
any modifications to this permit.
    Amendment 9 eliminates the scheduled expiration of the moratorium. 
As such, new entry into the directed commercial fishery for Illex is 
prohibited indefinitely. The transfer of moratorium permits from one 
participant to another will only be allowed through the transfer of 
ownership of a permitted vessel. Since the moratorium's implementation 
in 1997, there has been a slight decline in the number of vessels 
issued an Illex moratorium permit in any given year, from a maximum of 
77 in 1998, to 72 in 2003. Amendment 9 prevents expansion of the size 
of the directed Illex fleet beyond the number of permitted vessels in 
2008, thereby preventing expansion in a fishery that is already 
overcapitalized and offering the greatest degree of protection to 
historic participants in the directed Illex fishery.
    This measure is anticipated to have economic benefits for 
historical participants already possessing Illex moratorium permits and 
the potential to negatively affect those wanting to become an Illex 
fishery participant in the future.

Biological Reference Points for Loligo

    Regulations at Sec.  600.315 state that conservation and management 
measures must be based upon the best scientific information available, 
and that FMPs should be amended on a timely basis, as new information 
indicates the necessity for change in objectives or management 
measures. Therefore, Amendment 9 revises the proxies for target and 
threshold fishing mortality rates, FTarget and 
FThreshold, respectively, for Loligo to reflect the 
analytical advice provided by the most recent Loligo stock assessment 
review committee (SARC 34). While Amendment 9 revises the formulas and 
values for these reference points, the function of the reference points 
remains unchanged. FTarget is the basis for determining OY, 
and FThreshold is used to determine whether overfishing is 
occurring.
    Because Loligo is a sub-annual species (i.e., has a lifespan of 
less than 1 year), the stock is solely dependent on sufficient 
recruitment year to year to prevent stock collapse. The status quo 
proxies for FTarget (75 percent of the fishing morality rate 
supporting maximum sustainable yield (FMax)) and 
FThreshold (FMax) are based on maximum yield, 
while the revised proxies for FTarget and FThreshold 
in Amendment 9 are more risk averse because they are based on average 
fishing mortality rates achieved during a time period when the stock 
biomass was fairly resilient (1987-2000). The revised proxies are 
calculated as follows: FTarget is the 75\th\ percentile of 
fishing mortality rates during 1987-2000 and FThreshold is 
the average fishing mortality rates during the same period. The revised 
proxy for FTarget (0.32 or 0.24 for trimesters and quarters, 
respectively) would be used as the basis for establishing Loligo OY. 
However, it should be noted that it is currently not possible to 
accurately predict Loligo stock biomass because recruitment, which 
occurs throughout the year, is highly variable inter-annually and is 
influenced by changing environmental conditions.
    Biological reference points that ensure an adequate number of 
spawners produce adequate recruitment in the subsequent year are 
considered most appropriate for squid species. However, until such 
reference points can be reliably estimated for the Loligo stock, the 
revised reference points in Amendment 9 will serve as an intermediate 
step for calculating harvest levels that are more robust, with respect 
to stock sustainability, than status quo reference points.

Designation of EFH for Loligo Eggs

    Amendment 9 designates EFH for Loligo eggs in order to bring the 
FMP into compliance with the Magnuson-Stevens Act requirement that FMPs 
describe and identify EFH for each life history stage of a managed 
species. The MSB FMP currently identifies and describes EFH for all 
life stages of MSB species for which information is available, with the 
exception of Loligo eggs. Loligo eggs are found attached to rocks and 
boulders on sand or mud bottom, as well as attached to aquatic 
vegetation in coastal and offshore bottom habitats from Georges Bank 
southward to Cape Hatteras. Generally, the following conditions exist 
where Loligo egg EFH is found: Bottom water temperatures between 
10[deg] C and 23[deg] C; salinities of 30 to 32 ppt; and depths less 
than 50 m. Locations of fishery interactions with Loligo eggs are 
reported in Hatfield and Cadrin (2002).\1\
---------------------------------------------------------------------------

    \1\ Hatfield, E.M.C. and S.X. Cadrin. 2002. Geographic and 
temporal patterns in size and maturity of the longfin inshore squid 
(Loligo pealeii) off the northeastern United States. Fish. Bull. 100 
(2): 200-213.
---------------------------------------------------------------------------

    This action adds a description of EFH and a map for Loligo eggs to 
the FMP that are based on the above information. Some Council members 
expressed concern that the proposed Loligo egg EFH areas are based on 
anecdotal information (i.e., interviews with fishermen). Also, they 
considered it likely that the proposed EFH areas are not constant, but 
instead shift from year to year. Nevertheless, the information on the 
locations of Loligo eggs provided in Hatfield and Cadrin (2002) is the 
best scientific information that is currently available. Additionally, 
EFH designations are meant to include habitat areas used in different 
years. Failure to designate EFH for Loligo eggs in Amendment 9 would be 
inconsistent with the EFH requirements of the Magnuson-Stevens Act.
    To the degree that EFH is vulnerable to damage by fishing and/or 
non-fishing activities, management oversight of these activities in 
areas designated as EFH for a given life stage of any managed resource 
will allow for direct and indirect benefits for that resource. That 
oversight cannot occur, however, without first identifying the 
geographical locations of EFH. Amendment 9 identifies EFH for Loligo 
eggs based upon documented observations. By implementing Amendment 9, 
fishing and/or non-fishing activities that could potentially affect 
Loligo egg EFH would not be restricted. However, a requirement would be 
established whereby NMFS must be consulted to determine whether future 
Federal non-fishing activities would adversely impact Loligo egg EFH. 
Also, potential adverse impacts of MSB and other federally managed 
fisheries on Loligo egg EFH would have to be evaluated and, if 
necessary, minimized, in a future management action.

Prohibition on Bottom Trawling to Reduce Gear Impacts on EFH by MSB 
Fisheries

    Amendment 9 considered reducing gear impacts on EFH by MSB 
fisheries in order to bring the FMP into compliance with the Magnuson-
Stevens Act requirements. The FMP currently lacks adequate analysis of 
the effects of MSB fisheries on EFH for federally managed species 
within the geographic scope of the MSB fisheries. Such an analysis has 
been conducted as part of Amendment 9, and the results indicate

[[Page 37385]]

that actions should be taken that would reduce impacts to EFH for 
federally managed species related to the activities of the MSB 
fisheries by prohibiting bottom trawling by MSB-permitted vessels.
    This action prohibits bottom trawling in Lydonia and Oceanographer 
Canyons by MSB-permitted vessels. MSB-permitted vessels transiting 
these canyons must stow all bottom trawl gear. While Lydonia and 
Oceanographer Canyons are only minimally used by vessels with bottom 
trawl gear, this action will prevent future expansion of MSB fisheries 
into these canyons. This prohibition was determined to be practicable 
by the Council and is similar to regulations associated with the 
Northeast Region's Monkfish FMP (i.e., vessels on a monkfish day-at-sea 
are prohibited from entering these canyons). Even though this action 
does not prohibit bottom trawling by other federally permitted vessels 
in Lydonia and Oceanographer Canyons, this prohibition would improve 
habitat quality in these canyons by reducing the adverse effects of 
bottom trawling on EFH for federally managed species. Decreased fishery 
interactions with the managed stocks, non-target species, and protected 
and endangered species in Lydonia and Oceanographer Canyons are also 
expected, and this would correspond to localized benefits to these 
resources. The areas affected by the action represent 3 percent of the 
total EFH for juvenile tilefish and 2 percent or less for several other 
species (barndoor skate, little skate, red hake, silver hake, and witch 
flounder).
    Short-term costs to fishery participants are related to the size of 
the area where bottom trawling is prohibited and how frequently those 
areas are utilized by fishery participants (see FRFA for complete 
economic analysis). The prohibition of bottom trawling by MSB-permitted 
vessels in Lydonia and Oceanographer Canyons is likely to have a 
minimal impact on revenues both for vessel owners and ports. Other 
restricted area alternatives considered by the Council would have 
provided greater habitat protection, but were not practicable because 
their potential economic impact would be higher.

Comments and Responses

    NMFS received four comment letters on the proposed rule for 
Amendment 9; letters were from one industry representative and three 
individuals.
    Comment 1: The industry representative and one individual support 
the measure to extend the moratorium on entry into the Illex fishery, 
without a sunset provision. Commenters explain that this measure 
benefits current participants in the Illex fishery by protecting their 
investment and preventing overcapitalization. Additionally, the 
industry representative believes further reduction of capacity in the 
Illex fishery is not necessary because few incentives exist for new 
participants to enter the Illex fishery (i.e., it is a high volume/low 
value fishery and it is cost prohibitive to install a refrigerated 
seawater holding system necessary for Illex), and the number of trips 
targeting Illex have declined each year since 1998.
    Response: Amendment 9 prevents expansion of the size of the 
directed Illex fleet beyond the number of permitted vessels in 2008, 
thereby preventing expansion in a fishery that is already 
overcapitalized and offering the greatest degree of protection to 
historic participants in the directed Illex fishery. However, Amendment 
9 does not preclude a future action to reduce the overcapacity that 
already exists in the Illex fishery.
    Comment 2: One individual expressed support for a complete ban on 
all trawling that is harmful for the next 70 years.
    Response: While Amendment 9 does not consider a ban on trawling, 
this comment indicates general support for the measure to prohibit 
bottom trawling by MSB-permitted vessels in Lydonia and Oceanographer 
Canyons.
    Comment 3: The industry representative supports the measure to 
allow for multi-year specifications for all four species (mackerel, 
butterfish, Illex, and Loligo) for up to 3 years, subject to annual 
review, provided the Council has flexibility to adjust measures through 
the specification process in response to new information.
    Response: NMFS concurs with the commenter.
    Comment 4: The industry representative does not support revising 
the biological reference points (i.e., FTarget and 
FThreshold) recommended by the SARC for Loligo because they 
argue that the status quo reference points are adequate to meet the 
overfishing requirements. The industry representative also believes 
that Loligo biomass trends have been relatively stable over the past 
several decades, that changes in indices were mainly due to 
environmental factors, and that stability of indices are due to the 
flexibility of life history patterns of Loligo. Additionally, the 
industry representative and one individual believe that language in the 
proposed rule stating that status quo biological reference points for 
Loligo ``may be too liberal and subject the stock to overfishing'' is 
unsupported by the Amendment 9 FSEIS or the report from the most recent 
Loligo squid stock assessment report. The comment letter from the 
individual further explains that the status quo reference points were 
rejected by the SARC because they were too analytically complex in 
light of the dynamic nature of the Loligo stock; therefore, the SARC 
recommended a simpler approach for calculating Loligo biological 
reference points.
    Response: Biological reference points for squid species, such as 
Loligo, need to account for their unique life history in order to 
ensure stock sustainability. Loligo is a sub-annual species and 
recruits in any given year are produced by the survivors from the 
previous year. However, annual population abundance levels are highly 
variable and recruitment levels are currently not predictable. A single 
recruitment failure could lead to stock collapse. In order to minimize 
the risk of recruitment overfishing, squid stocks are ideally managed 
by ensuring that a minimum percentage of the spawners escape each year. 
The status quo overfishing definition for Loligo does not minimize this 
risk because it maximizes yield, rather than adequate spawner 
escapement. For these reasons, NMFS disagrees with the conclusion that, 
because Loligo biomass trends have been relatively stable over the past 
several decades, the status quo reference points Loligo are adequate to 
meet the overfishing requirements.
    NMFS agrees with the commenters that the language in the proposed 
rule stating that status quo biological reference points for Loligo 
``may be too liberal and subject the stock to overfishing'' may be too 
general and takes this opportunity to clarify the difference between 
the status quo biological reference points and the revised reference 
points in Amendment 9. The status quo reference points maximize yield, 
while the reference points in Amendment 9 are more risk averse because 
they are based on estimated fishing mortality rates during a time 
period (1987-2000) when stock biomass levels appeared to be fairly 
resilient to the levels of landings that occurred during that same 
period. In addition, NMFS agrees with the commenter that the status quo 
reference points were too analytically complex, in light of the dynamic 
nature of the Loligo stock, and that reference points in Amendment 9 
are less complex and, therefore, more appropriate for the Loligo stock.
    Comment 5: The industry representative does not support the

[[Page 37386]]

measure to designate EFH for Loligo eggs and asserts that Loligo egg 
EFH is based on anecdotal information and areas where eggs have been 
observed are likely to vary year to year. The comment letter explains 
that Loligo are a short-lived, highly productive animal whose abundance 
is more vulnerable to environmental conditions such as temperature, 
depth, and salinity. The letter notes that areas with observation of 
Loligo eggs are productive, historical fishing areas and there is no 
evidence that the bycatch of Loligo eggs reduces productivity or 
negatively impacts Loligo recruitment. Additionally, the commenter 
believes the proposed rule inappropriately speculates that a future 
action would evaluate fishing activities to determine if fishing 
activities adversely impact Loligo eggs in an attempt to impose 
prohibitions on mobile bottom-tending gear.
    Response: As described previously, Amendment 9 brings the FMP into 
compliance with the Magnuson-Stevens Act requirement that FMPs describe 
and identify EFH for each life history stage of a managed species. The 
MSB FMP currently identifies and describes EFH for all life stages of 
MSB species for which information is available, with the exception of 
Loligo eggs. Failure to designate EFH for Loligo eggs in Amendment 9 
would be inconsistent with the EFH requirements of the Magnuson-Stevens 
Act. During the development of and public comment periods on Amendment 
9, individuals expressed concern that the proposed Loligo egg EFH areas 
are based on anecdotal information (i.e., interviews with fishermen) 
and that the proposed EFH areas are not constant, but instead shift 
from year to year. Nevertheless, information on the location of Loligo 
eggs is based on information in a peer-reviewed, scientific journal and 
is, therefore, based on the best scientific information available. 
Additionally, EFH designations are designed to consider year-to-year 
variability in habitat requirements and implementation of Amendment 9 
does not preclude revising descriptions of EFH for Loligo eggs as new 
information becomes available. In addition to requiring that EFH be 
designated for each life history stage of a managed species, the 
Magnuson-Stevens Act also requires that potential adverse impacts of 
MSB fisheries on Loligo egg EFH be evaluated. Explaining this 
requirement in the proposed rule was appropriate. Based upon the 
outcome of that evaluation, a range of habitat protection measures 
exist that could be implemented if protection of Loligo egg EFH is 
determined to be necessary. Prohibitions on mobile bottom-tending gear 
is not the only option for mitigating potential effects of MSB 
fisheries on Loligo egg EFH.
    Comment 6: The industry representative does not support the measure 
to prohibit bottom trawling by MSB-permitted vessels in Lydonia and 
Oceanographer Canyons. Opposition to prohibiting bottom trawling by 
MSB-permitted vessels in Lydonia and Oceanographer Canyons is based on 
the industry representatives belief that Amendment 9 offers no 
rationale on why prohibiting trawling in those areas will have an 
effect on MSB species and how bottom trawling for MSB species affects 
habitat in those areas. Further, the industry representative claims 
that this measure is being used to protect deep-sea corals, despite no 
evidence in Amendment 9 supporting that fishing for MSB species results 
in coral bycatch, and that, because Amendment 9 does not demonstrate 
that MSB fishing in these areas results in coral bycatch that NMFS and 
the Council have approved an alternative that is in opposition to 
NOAA's General Counsel and illegal.
    Response: As described previously, Amendment 9 considered reducing 
gear impacts on EFH by MSB fisheries in order to bring the FMP into 
compliance with the Magnuson-Stevens Act requirements. The FMP 
currently lacks adequate analysis of the effects of MSB fisheries on 
EFH for federally managed species within the geographic scope of the 
MSB fisheries. Such an analysis has been conducted as part of Amendment 
9, and the results indicate that actions should be taken that would 
reduce impacts to EFH for federally managed species related to the 
activities of the MSB fisheries by prohibiting bottom trawling by MSB-
permitted vessels.
    The prohibition of bottom trawling by MSB-permitted vessels in 
Lydonia and Oceanographer Canyons is not intended to protect deep-sea 
coral. Neither the proposed rule or FSEIS for Amendment 9 suggests that 
this prohibition is because deep-sea coral is bycatch in the MSB 
fisheries. The proposed rule explained that the proposed prohibition 
was similar to regulations associated with the Northeast Region's 
Monkfish FMP because both regulations are based on protecting EFH for 
fish species (e.g., tilefish) and preventing fishery expansion into 
offshore canyons that contain habitat vulnerable to bottom trawling. 
Because neither prohibition (i.e., vessels fishing under a monkfish 
day-at-sea are prohibited from fishing in Lydonia and Oceanographer 
Canyons; MSB-permitted vessels are prohibited from bottom trawling in 
Lydonia and Oceanographer Canyons) is based on protecting coral, 
neither prohibition is inconsistent with advice from NOAA's Office of 
General Counsel.

Changes From the Proposed Rule

    There are no changes from the proposed rule.

Classification

    The Administrator, Northeast Region, NMFS, determined that 
Amendment 9 to the Atlantic Mackerel, Squid, and Butterfish Fishery 
Management Plan is necessary for the conservation and management of the 
Atlantic mackerel, squid, and butterfish fisheries and that it is 
consistent with the Magnuson-Stevens Act and other applicable law.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared an FSEIS for Amendment 9; a notice of 
availability was published on March 28, 2008 (73 FR 16672). The FSEIS 
describes the impacts of the Amendment 9 measures on the environment. 
The measures to allow for multi-year specifications and revised 
biological reference points for Loligo are largely administrative. 
However, they will provide for an expanded planning horizon for 
harvesting and processing activities and a fixed constant as a basis 
for the fishing target definition, respectively. The measure to 
designate EFH for Loligo eggs will not directly affect the environment, 
but it will allow future impacts to EFH for Loligo eggs to be 
identified and mitigated. Extending the moratorium on entry into the 
Illex fishery without a sunset provision and prohibiting bottom 
trawling by MSB-permitted vessels in Lydonia and Oceanographer Canyons 
will have short-term, negative economic impacts, but are expected to 
have long-term benefits on the biological and physical environment.
    NMFS, pursuant to section 604 of the Regulatory Flexibility Act 
(RFA), has prepared a FRFA in support of Amendment 9. 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 for the proposed rule to implement Amendment 9, the 
comments and responses in this final rule, and the corresponding 
economic analyses prepared for Amendment 9 (e.g., the FSEIS and the 
RIR). The contents of these incorporated documents are not repeated in 
detail here. A copy of the IRFA, the RIR, and the FSEIS are available 
upon request

[[Page 37387]]

(see ADDRESSES). A description of the reasons for this action, the 
objectives of the action, and the legal basis for this final rule are 
found in Amendment 9 and the preamble to the proposed and final rules.

Statement of Need

    The purpose of this action is to remedy deficiencies in the FMP and 
to address other issues that have arisen since Amendment 8 to the FMP 
became effective in 1999.

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

    As described previously, several of the measures in Amendment 9 are 
not anticipated to have direct economic effects on MSB fisheries; 
however, extending the moratorium on entry into the Illex fishery, 
without a sunset provision, and prohibiting bottom trawling in Lydonia 
and Oceanographer Canyons by MSB-permitted vessels may have economic 
effects on MSB fisheries. All public comments on issues relative to the 
IRFA, in which commenters expressed concern directly and indirectly 
about the economic impacts of the measures in Amendment 9, are 
described in the ``Comments and Responses'' section of the preamble of 
this rule. NMFS's assessment of the issues raised in comments and 
responses is also provided in the ``Comments and Responses'' section of 
the preamble of this final rule and, therefore, are not repeated here. 
After taking all public comments into consideration, NMFS approved 
Amendment 9 on June 17, 2008.

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

    There are no large entities participating in this fishery, as none 
grossed more than 4 million dollars annually; therefore, there are no 
disproportionate economic impacts on small entities. The measures in 
Amendment 9 affect all MSB-permitted vessels; however, many of the 
proposed measures (e.g., multi-year specifications, revised biological 
reference points for Loligo, designation of EFH for Loligo eggs) are 
not expected to have direct economic impacts. Section 6.5 (Human 
Communities) in the Amendment 9 FSEIS describes the number of vessels 
and revenue information for each of the MSB fisheries; therefore, that 
information is not repeated here.

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

    As described previously, several of the approved measures in 
Amendment 9 are not anticipated to have direct economic effects on MSB 
fisheries. Implementing multi-year specifications and management 
measures for all four managed species has the potential to provide MSB 
fishery participants with an expanded planning horizon for harvesting 
and processing activities. Therefore, it may have positive economic 
effects for MSB fishery participants when compared to the non-selected 
alternative of no action (annual specifications and management measures 
for mackerel, Illex, and butterfish; multi-year specifications and 
management measures for Loligo). This could lead to better business 
plans and ultimately greater economic benefits. Amendment 9 contains 
two alternatives that would have provided for multi-year specifications 
and management measures; the selected alternative allows for multi-year 
specifications for up to 3 years, subject to annual review, and a non-
selected alternative would have provided for multi-year specifications 
for up to 5 years, subject to annual review. The 3-year alternative was 
selected because management based on 3-year stock projections, rather 
than 5-year stock projections, is likely more appropriate for MSB 
species, given their relatively brief life spans, but it is difficult 
to assign a dollar value to this effect.
    The revisions to biological reference points (FTarget 
and FThreshold) for Loligo are primarily administrative and 
are not expected to have direct economic effects on fishery 
participants. Revising the reference points is consistent with 
Magnuson-Stevens Act requirements to use the best scientific 
information available, as compared to the non-selective alternative of 
no action (using status quo reference points for FTarget and 
FThreshold), but the economic impacts of the proposed action 
are difficult to predict. The revised reference points are not expected 
to result in substantial changes to the Loligo quota; the annual quota 
has been set at 17,000 mt each year since 2001. Consumer demand for 
Loligo will affect Loligo prices, which, in turn, will result in 
economic impacts on Loligo harvesters that are currently 
unquantifiable. If, on the other hand, the Loligo stock size decreases 
such that harvest costs increase, then Loligo prices would be expected 
to increase. Because the revised biological reference points are 
considered more robust, with respect to stock sustainability, than the 
status quo reference points, it is expected that there would be some 
long-term economic benefits associated with the revised reference 
points as compared to benefits associated with the status quo reference 
points.
    The measure designating EFH for Loligo eggs is not anticipated to 
have any direct economic effects on MSB participants, when compared to 
the non-selected alternative of not designating EFH for Loligo eggs. 
Designating EFH for Loligo eggs does not result in an immediate action 
that would restrict the actions of any regulated entity.
    Additionally, the measure extending the moratorium on entry into 
the Illex fishery, without a sunset provision, is not expected to have 
any direct economic effects on MSB participants, when compared to the 
non-selected alternatives (i.e., terminating the moratorium, allowing 
the moratorium to expire in 2009, extending the moratorium without a 
sunset provision, but allowing new entry through permit transfer), 
because the moratorium on entry into the directed Illex fishery has 
been in place since 1997. Failure to extend the moratorium could result 
in further overcapitalization of this sector of the fishing industry, 
which in turn could have negative economic consequences for the vessels 
that depend upon the Illex resource.
    The measure in Amendment 9 that may have economic effects on MSB 
fisheries is the prohibition on bottom trawling in Lydonia and 
Oceanographer Canyons by MSB-permitted vessels. The selected 
alternative and non-selected alternatives prohibiting bottom trawling 
(either at the head of Hudson Canyon or in the tilefish habitat area of 
particular concern (HAPC)) would improve habitat quality in the closed 
areas by reducing the adverse impacts of bottom trawling by MSB-
permitted vessels as compared

[[Page 37388]]

to the no action, non-selected alternative (no new areas closed to 
bottom trawling by MSB-permitted vessels). Decreased fishery 
interactions with the managed stocks, non-target species, and protected 
and endangered species are also expected to be associated with action 
alternatives, and this would correspond to localized benefits to these 
resources.
    Short-term costs to fishery participants are related to the size of 
the closure area. Analyses of ex-vessel revenues from MSB-permitted 
bottom trawl vessels were conducted for 2001-2004. The results 
indicated that closing tilefish HAPC (non-selected alternative) to 
bottom otter trawling during that period would have reduced annual 
revenue from bottom trawling by 10 percent or more for about 162 MSB-
permitted vessels. Closing the head of Hudson Canyon (non-selected 
alternative) to bottom trawling in 2001-2004 would have reduced ex-
vessel revenues by 10 percent or more for about 64 MSB-permitted bottom 
trawl vessels. Geographical analysis of fishing effort reveals minimal 
use of bottom trawl gear in Lydonia and Oceanographer Canyons; 
therefore, of the significant alternatives considered, the closure of 
Lydonia and Oceanographer Canyons (selected alternative) would have 
minimis potential economic impacts on revenue for vessel owners.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: June 26 2008.
John Oliver,
Deputy Assistant Administrator for Operations, 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.  648.4, paragraph (a)(5)(i) is revised to read as follows:


Sec.  648.4  Vessel permits.

* * * * *
    (a) * * *
    (5) * * *
    (i) Loligo squid/butterfish and Illex squid moratorium permits.
* * * * *

0
3. In Sec.  648.14, paragraph (p)(12) is added to read as follows:


Sec.  648.14  Prohibitions.

* * * * *
    (p) * * *
    (12) Enter or be in the areas described at Sec.  648.23(a)(4).
* * * * *

0
4. In Sec.  648.20, paragraph (b) is revised to read as follows:


Sec.  648.20  Maximum optimum yield (OYs).

* * * * *
    (b) Loligo-the catch associated with a fishing mortality rate of 
FThreshold.
* * * * *

0
5. In Sec.  648.21, paragraphs (a)(1) through (4) are revised to read 
as follows:


Sec.  648.21  Procedures for determining initial annual amounts.

* * * * *
    (a)* * *
    (1) Initial OY (IOY), including research quota (RQ), domestic 
annual harvest (DAH), and domestic annual processing (DAP) for Illex 
squid, which, subject to annual review, may be specified for a period 
of up to 3 years;
    (2) IOY, including RQ, DAH, DAP, and bycatch level of the total 
allowable level of foreign fishing (TALFF), if any, for butterfish, 
which, subject to annual review, may be specified for a period of up to 
3 years;
    (3) IOY, including RQ, DAH, DAP, joint venture processing (JVP), if 
any, and TALFF, if any, for mackerel, which, subject to annual review, 
may be specified for a period of up to 3 years. The Monitoring 
Committee may also recommend that certain ratios of TALFF, if any, for 
mackerel to purchases of domestic harvested fish and/or domestic 
processed fish be established in relation to the initial annual 
amounts.
    (4) Initial OY (IOY), including research quota (RQ), domestic 
annual harvest (DAH), and domestic annual processing (DAP) for Loligo 
squid, which, subject to annual review, may be specified for a period 
of up to 3 years; and
* * * * *

0
6. In Sec.  648.23, paragraph (a)(4) is added to read as follows:


Sec.  648.23  Gear restrictions.

    (a)* * *
    (4) Mackerel, squid, and butterfish bottom trawling restricted 
areas. (i) Oceanographer Canyon. No permitted mackerel, squid, or 
butterfish vessel may fish with bottom trawl gear in the Oceanographer 
Canyon or be in the Oceanographer Canyon unless transiting. Vessels may 
transit this area provided the bottom trawl gear is stowed in 
accordance with the provisions of paragraph (b) of this section. 
Oceanographer Canyon is defined by straight lines connecting the 
following points in the order stated (copies of a chart depicting this 
area are available from the Regional Administrator upon request):

                          Oceanographer Canyon
------------------------------------------------------------------------
                  Point                        N. Lat.        W. Long.
------------------------------------------------------------------------
OC1                                       40[deg]10.0'      68[deg]12.0'
OC2                                       40[deg]24.0'      68[deg]09.0'
OC3                                       40[deg]24.0'      68[deg]08.0'
OC4                                       40[deg]10.0'      67[deg]59.0'
OC1                                       40[deg]10.0'      68[deg]12.0'
------------------------------------------------------------------------

    (ii) Lydonia Canyon. No permitted mackerel, squid, or butterfish 
vessel may fish with bottom trawl gear in the Lydonia Canyon or be in 
the Lydonia Canyon unless transiting. Vessels may transit this area 
provided the bottom trawl gear is stowed in accordance with the 
provisions of paragraph (b) of this section. Lydonia Canyon is defined 
by straight lines connecting the following points in the order stated 
(copies of a chart depicting this area are available from the Regional 
Administrator upon request):

                             Lydonia Canyon
------------------------------------------------------------------------
                  Point                        N. Lat.        W. Long.
------------------------------------------------------------------------
LC1                                       40[deg]16.0'      67[deg]34.0'
LC2                                       40[deg]16.0'      67[deg]42.0'
LC3                                       40[deg]20.0'      67[deg]43.0'
LC4                                       40[deg]27.0'      67[deg]40.0'
LC5                                       40[deg]27.0'      67[deg]38.0'
LC1                                       40[deg]16.0'      67[deg]34.0'
------------------------------------------------------------------------

* * * * *
[FR Doc. E8-14937 Filed 6-30-08; 8:45 am]
BILLING CODE 3510-22-S