[Federal Register Volume 84, Number 210 (Wednesday, October 30, 2019)]
[Rules and Regulations]
[Pages 58053-58059]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23636]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 191022-0069]
RIN 0648-BI49


Fisheries of the Northeastern United States; Framework Adjustment 
13 to the Atlantic Mackerel, Squid, and Butterfish Fishery Management 
Plan

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

ACTION: Final rule.

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

SUMMARY: This final rule implements the measures of Framework 
Adjustment 13 to the Atlantic Mackerel, Squid, and Butterfish Fishery 
Management Plan. This action establishes a 5-year rebuilding program 
for Atlantic mackerel, sets 2019-2021 Atlantic mackerel specifications 
and a river herring and shad cap for the Atlantic mackerel fishery, 
modifies the Mid-Atlantic Fishery Management Council's risk policy, and 
modifies in-season closure measures. This action is necessary to 
prevent overfishing and rebuild the Atlantic mackerel stock based on a 
recent stock assessment that found the Atlantic mackerel stock to be 
overfished and subject to overfishing. The intended effect of this 
final rule is to sustainably manage the Atlantic mackerel fishery and 
achieve optimum yield on a continuing basis.

DATES: Effective November 29, 2019.

ADDRESSES: Copies of this action, including the environmental 
assessment (EA) and Regulatory Impact Review (RIR) analysis, prepared 
in support of this action, are available upon request from Dr. 
Christopher M. Moore, Executive Director, Mid-Atlantic Fishery 
Management Council, 800 North State Street, Suite 201, Dover, DE 19901, 
telephone (302) 674-2331. The small entity compliance guide (bulletin) 
describing measures approved by this action is available from Michael 
Pentony, Regional Administrator, 55 Great Republic Drive, Gloucester, 
MA 01930. Documents are also accessible via the internet at: http://www.mafmc.org.

FOR FURTHER INFORMATION CONTACT: Alyson Pitts, Fishery Management 
Specialist, (978) 281-9352, [email protected].

SUPPLEMENTARY INFORMATION:

[[Page 58054]]

Background

    A November 2017 benchmark stock assessment (Stock Assessment 
Workshop (SAW) 64) concluded that the Atlantic mackerel stock is 
overfished and subject to overfishing. The Council developed Framework 
Adjustment 13 (Framework 13) to the Atlantic Mackerel, Squid, and 
Butterfish Fishery Management Plan (FMP) to create an Atlantic mackerel 
rebuilding plan that would prevent overfishing and rebuild the stock, 
as required by section 303 of the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act). This action also includes 
2019-2021 specifications based on the proposed rebuilding plan, 
adjustments to in-season closure measures to slow fishery catch and 
allow Atlantic mackerel bycatch in the Atlantic herring fishery, and 
modifications to the river herring and shad catch cap. At its August 
2018 meeting, the Council adopted final measures under Framework 13. We 
published a proposed rule to implement Framework 13 in the Federal 
Register on June 7, 2019 (84 FR 26634). The comment period ended on 
July 8, 2019. We received comment submissions from 14 groups and 
individuals, which are summarized in the Comments and Responses section 
of this final rule. Pursuant to section 304(a)(3) of the Magnuson-
Stevens Act, when NMFS considers the responses to comments, NMFS may 
only approve or disapprove measures proposed in a particular fishery 
management plan, amendment, or framework adjustment, and may not change 
or substitute any measure in a substantive way.
    Each year, the Council reviews the Atlantic mackerel specifications 
based on updated information. At its June 2019 meeting, the Council 
considered preliminary results of the 2019 Canadian Atlantic mackerel 
stock assessment. The Canadian assessment suggested that Atlantic 
mackerel recruitment in 2016 and 2017 was lower than the long-term 
average recruitment used to develop projections of 2019-2021 Atlantic 
mackerel specifications under Framework 13. Based on this information, 
the Council recommended maintaining the 2019 Atlantic mackerel 
acceptable biological catch (ABC) outlined in Framework 13 for 2020 
instead of increasing the ABC in 2020, as included in Framework 13. If 
this Council-recommended change to the 2020 ABC in Framework 13 is 
approved in a subsequent regulatory action, this would revise the 
Atlantic mackerel rebuilding plan included in Framework 13, because the 
revised 2020 ABC would be 14 percent lower than the 2020 ABC currently 
being implemented in this final rule.

Approved Measures

    This action approves the management measures proposed in Framework 
Adjustment 13 to the Atlantic Mackerel, Squid, and Butterfish FMP. The 
measures implemented in this final rule are:

1. Atlantic Mackerel Rebuilding Plan

    This rule adopts a 5-year rebuilding plan, which ends overfishing 
immediately and establishes measures that are projected to rebuild the 
stock within no more than 5 years. The 5-year rebuilding plan is as 
short as possible, while balancing the needs of the fishing communities 
and considering the interaction of the overfished stock within the 
marine ecosystem. The 5-year rebuilding plan will allow for a 125-
percent increase in 2020 commercial catch compared to 2018, as 
described further below under the description of specifications.
    In adopting the 5-year rebuilding program, the Council noted the 
substantial overlap between the Atlantic herring and Atlantic mackerel 
fisheries, and the expected drastic reductions in Atlantic herring 
quotas and the stability of associated fishing communities. The annual 
catch associated with the 5-year rebuilding program would help mitigate 
such economic impacts while still rebuilding the stock within the 10-
year maximum allowable rebuilding period. As a precautionary measure, 
the Council capped ABCs under the 5-year plan at levels associated with 
the Council's current risk policy for a fully rebuilt Atlantic mackerel 
stock (33,474 mt), instead of allowing the ABCs to increase in 2021 and 
beyond, as supported by the Council's Scientific and Statistical 
Committee (SSC).
    We closed the limited access Atlantic mackerel fishery on March 12, 
2019, because the fishery harvested the river herring and shad catch 
cap (84 FR 8999; March 13, 2019). As a result, Atlantic mackerel catch 
in 2019 will be less than the projected 2019 catch allocation under the 
5-year rebuilding plan. We will not know how the low catch in 2019 will 
affect the projections after the fishing year. Because the 2019 
Atlantic mackerel catch is about 75 percent lower than expected catch 
used to evaluate the rebuilding program and the Council recommended 
maintaining the lower 2019 catch levels for 2020, it is possible that 
such lower levels of catch will help expedite the rebuilding program to 
rebuild the stock before 2023.
    In order to implement this 5-year rebuilding plan, this action 
modifies the Council's risk policy to allow a higher fishing mortality 
rate to establish the increased 2019-2023 Atlantic mackerel ABCs in 
consideration of the economic needs of fishing communities. The change 
to the Council's risk policy in this action is specific to the Atlantic 
mackerel rebuilding plan, and will not affect the application of the 
Council's risk policy for any other species or FMP.

3. Atlantic Mackerel Specifications

    Table 1 presents the 2019-2021 Atlantic mackerel specifications. An 
updated stock assessment for Atlantic mackerel is scheduled to be 
completed in 2020, which would help the SSC and Council to develop and 
set the specifications for 2021 through 2023. As noted above, the 
Council will review each component of the Atlantic mackerel 
specifications annually, and will consider the results of an updated 
stock assessment in 2020 and other available information to refine 
future specifications.

                         Table 1--Final 2019-2021 Atlantic Mackerel Specifications (mt)
----------------------------------------------------------------------------------------------------------------
                                                                       2019            2020            2021
----------------------------------------------------------------------------------------------------------------
Overfishing Limit...............................................          31,764             N/A             N/A
Total ABC.......................................................          29,184          32,480          33,474
Canadian Deduction..............................................          10,000          10,000          10,000
U.S. ABC-Annual Catch Limit (ACL) (expected Canadian catch                19,184          22,480          23,474
 deducted)......................................................
Recreational Allocation.........................................           1,209           1,209           1,209
Commercial Allocation...........................................          17,975          21,271          22,265
Management Uncertainty Buffer 3 percent.........................             539             638             669
Commercial Annual Catch Target (ACT)............................          17,436          20,633          21,597
Domestic Annual Harvest (DAH) (ACT minus 0.37 percent discard             17,371          20,557          21,517
 rate)..........................................................
----------------------------------------------------------------------------------------------------------------


[[Page 58055]]

4. In-Season Closure Provisions

    In order to achieve optimum yield and effectively use the available 
commercial landings, Framework 13 adjusts the in-season closure 
measures for the commercial Atlantic mackerel fishery. The measures 
adopted by Framework 13 require the Regional Administrator to close the 
limited access commercial fishery when 90 percent of the DAH is 
projected to be landed. Once that trigger is reached, the Regional 
Administrator will reduce Atlantic mackerel possession limits to 40,000 
lb (18,144 kg) per trip for Tier 1-3 limited access Atlantic mackerel 
permits and to 5,000 lb (2,268 kg) for open access permits. When 98 
percent of the DAH is projected to be landed, the Regional 
Administrator will implement a 5,000-lb (2,268-kg) trip limit for all 
permits for the rest of the fishing year to cover remaining incidental 
catches. The measures also give the Regional Administrator the 
discretion to not implement these triggered possession limit reductions 
in November and December if landings are not projected to exceed the 
DAH by the end of the fishing year.

5. River Herring and Shad Catch Cap

    The initial river herring and shad catch cap for the Atlantic 
mackerel fishery will be set at 89 mt for 2019-2021. The cap could 
increase to the overall yearly catch cap if the fishery can first land 
10,000 mt of Atlantic mackerel without hitting the initial 89-mt river 
herring and shad catch cap in each year. The overall yearly catch cap 
is set at 129 mt in 2019, 152 mt in 2020, and 159 mt in 2021, based on 
the increasing Atlantic mackerel DAHs approved under the rebuilding 
plan. The overall yearly catch cap for future years could be revised 
based on annual Council recommendations of future Atlantic mackerel DAH 
and river herring and shad bycatch measures.

6. Corrections and Clarifications to Existing Regulations

    This final rule includes revisions to correct regulatory text that 
is unnecessary, outdated, or unclear. These revisions are consistent 
with section 305(d) of the Magnuson-Stevens Act, which provides 
authority to the Secretary of Commerce to promulgate regulations 
necessary to ensure that amendments to an FMP are carried out in 
accordance with the FMP and the Magnuson-Stevens Act. Specifically, 
this final rule modifies 50 CFR 648.24(b)(1)(i)(A) and 648.24(b)(6), to 
reference ``limited access'' and ``open access'' permits instead of the 
``directed'' and ``incidental'' fishery to be clear and consistent with 
the changes being made to the regulations by this action. The language 
clarification does not change the definition or terms of the permit.

Comments and Responses

    We received comment submissions from 14 groups and individuals. 
This includes comments from nine environmental organizations, two 
commercial fishing industry groups (SeaFreeze Limited and Garden State 
Seafood Association), along with two members of the public. 
Environmental organizations that submitted comments were: Blue Planet 
Strategies; Conservation Law Foundation; Wild Oceans; Pew Charitable 
Trusts; Natural Resources Defense Council; Bennett-Nickerson 
Environmental Consulting; Oceans North; Ecology Action Center; and 
World Wildlife Federation Canada. One letter from Pew Charitable Trusts 
was originally submitted on August 9, 2018, and was previously 
considered by the Council before it adopted final measures under 
Framework 13. Additionally, the Council received a letter from Oceans 
North (a Canadian environmental advocacy group), submitted on May 30, 
2019, that was not responsive to this action. However, the Council 
considered this letter at its June 2019 meeting when it adopted 2020 
Atlantic mackerel specifications that would be implemented through a 
separate action. Consolidated responses to similar comments on the 
proposed measures are provided below.

Atlantic Mackerel Rebuilding Plan

    Comment 1: A group letter from several U.S. environmental advocacy 
groups (Blue Planet Strategies, Conservation Law Foundation, Wild 
Oceans, Pew Charitable Trusts, Natural Resources Defense Council, and 
Bennett-Nickerson Environmental Consulting) voiced concern that the 
proposed 5-year rebuilding period is not legally sufficient to meet the 
``as short as possible'' rebuilding time period standard required by 
the Magnuson-Stevens Act. Both commercial fishing industry groups 
support the 5-year rebuilding program because it considers the needs of 
fishing communities.
    Response 1: We disagree that the 5-year rebuilding plan is not 
legally sufficient. It would rebuild the fishery in as short a period 
possible and within 10 years, as required by section 304(e)(4) of the 
Magnuson-Stevens Act. The Council may consider other factors, including 
the needs of fishing communities, when specifying a rebuilding time 
period. Furthermore, there are several factors that could expedite the 
rebuilding timeline. Instead of allowing the ABCs to increase in 2021 
and beyond, as suggested by assessment projections, the Council capped 
ABCs under the 5-year plan at levels associated with the Council's 
current risk policy for a fully rebuilt Atlantic mackerel stock (33,474 
mt) as a precautionary measure. As noted above, the low mackerel catch 
in 2019 could also reduce the rebuilding period, because realized catch 
is 75 percent lower than estimated catch used in the rebuilding plan 
projections. In addition, the Council recommended maintaining the 2019 
Atlantic mackerel DAH of 17,371 mt for 2020 instead of increasing it to 
20,557 mt, as originally proposed in the rebuilding plan. The Council 
will also review the specifications annually in order to adjust the 
rebuilding program, as necessary, once new information becomes 
available, including the results from a stock assessment update to be 
completed in 2020.
    The 5-year rebuilding plan is appropriate because it rebuilds the 
stock as quickly as possible while considering the needs of fishing 
communities, consistent with National Standard 8 of the Magnuson-
Stevens Act. Due to the substantial overlap between the Atlantic 
herring and Atlantic mackerel fisheries, the expected reduced quotas 
and potential mid-water trawl gear restrictions in the Atlantic herring 
fishery may also have negative socioeconomic impacts on the Atlantic 
mackerel fishery and negatively affect the stability of associated 
fishing communities. The higher annual catch associated with the 5-year 
rebuilding program would help mitigate such economic impacts while 
still rebuilding the stock within the 10-year maximum allowable 
rebuilding period.
    Comment 2: The Garden State Seafood Association noted the stock 
status shift from unknown to overfished, which highlights that the 
information available for making management decisions is more certain 
now than in the past.
    Response 2: We agree that having an approved stock assessment and a 
definitive stock status determination helps us make better-informed 
fishery management decisions. The SAW 64 peer review panel concluded 
that the northwest stock of Atlantic Mackerel is overfished with 
overfishing occurring. At its May 2018 meeting, the SSC reviewed the 
SAW 64 report, and approved use of the SAW 64 report as it is the best 
scientific information available to inform management decisions 
(https://www.nefsc.noaa.gov/

[[Page 58056]]

saw/reports.html). The current assessment overcomes many of the 
problems encountered in the previous assessments. The current 
assessment does not exhibit a retrospective pattern, and it uses a 
stockwide egg survey for the first time. The current assessment also 
differs from previous assessments in that it is able to provide a stock 
status recommendation based upon biological reference points that were 
unknown and unavailable for use in previous assessments.

Revision to the Mid-Atlantic Council Risk Policy

    Comment 3: Group letters from U.S. and Canadian environmental 
advocacy groups claim that the Council abandoned its risk policy in 
order to implement the 5-year rebuilding plan, citing 304(e)(4) of the 
Magnuson-Stevens Act which requires the Council develop a rebuilding 
plan that would rebuild the stock in the shortest time possible. The 
two commercial fishing industry groups support the modification of the 
Council's risk policy to select a rebuilding plan that allows a higher 
fishing mortality rate and considers the needs of fishing communities.
    Response 3: While the Council did modify its risk policy in order 
to adopt the 5-year rebuilding plan and accommodate adaptive fisheries 
management, while considering the needs of fishing communities, this is 
an appropriate modification. When the Council adopted a standard risk 
policy in 2011 as part of Amendment 13 to the Atlantic Mackerel, Squid, 
and Butterfish FMP (76 FR 60605; September 29, 2011), it allowed the 
risk policy to be revised in the future and allowed the risk policy to 
be adjusted via a framework adjustment. This allows for flexibility in 
its application due to the dynamic nature of fisheries and the 
environment and the uncertainty in available data. The modification to 
the Council's risk policy approved in this action is specific to the 
Atlantic mackerel rebuilding plan, and would not affect the application 
of the Council's risk policy for any other species or FMP.

Atlantic Mackerel Specifications

    Comment 4: A group letter from the U.S. environmental advocacy 
groups listed above commented on the uncertainty around the assessment 
projections used to make decisions for the rebuilding plan, which 
relies on the strong 2015 year class. Commenters added that 
historically, high allowable catch has been followed by stock decline. 
They also highlight that, while the strong 2015 year class was 
confirmed in the Canadian assessment, subsequent year classes were not 
as strong, and that the U.S. projections were created based on 
speculation and not science. Commenters urged NMFS to disapprove the 
Framework 13 rebuilding plan, and requested that the SSC reconsider the 
most recent scientific information found in the Canadian stock 
assessment to develop a new rebuilding plan.
    Response 4: We disagree that the Framework 13 rebuilding plan and 
associated specifications were based on speculation and not science. 
The measures included in Framework 13 are based on the best available 
science at the time of decision-making. While there is some uncertainty 
in catch projections, this uncertainty was accounted for and considered 
by the SSC and Council. The assessment included a series of workshops 
to refine models and methods and was approved by the peer review panel 
and the SSC. The Canadian stock assessment confirms the above average 
2015 year class, which was the driver behind NMFS' projections for the 
5-year rebuilding plan. Although the Canadian assessment provides 
additional data regarding more recent recruitment levels, it does not 
provide definitive information that would require us to disapprove the 
5-year rebuilding program for Atlantic mackerel in Framework 13.
    The Canadian Atlantic mackerel stock assessment was not completed 
and the results were unavailable when the Council adopted the Atlantic 
mackerel rebuilding program under Framework 13, and therefore were not 
integrated into projections used for the rebuilding plan. Such 
information is important, and it was considered by the Council in 
revising its recommendation for the 2020 Atlantic mackerel 
specifications that will be implemented in a subsequent action. In 
reviewing the U.S. Atlantic mackerel stock assessment and associated 
projections, the SSC expressed concern about the use of long-term 
recruitment in the projections, noting uncertainty in the size of the 
2015 year class and the implications of this uncertainty for the 
projections. This concern regarding the uncertainty associated with the 
projections prompted the SSC to recommend conservative estimates, which 
were integrated into the 5-year rebuilding plan and ultimately adopted 
by the Council in Framework 13. As noted above, the Council considered 
the results of the Canadian assessment and recommended continuing the 
2019 ABC for 2020 in a subsequent action. In addition the Council, with 
the support of the SSC, also recommended keeping the 10,000 mt Canadian 
deduction, which is conservative in comparison to the 8,000 mt ABC that 
was set after the recent Canadian assessment. This will, in effect, 
provide a 2,000 mt buffer in the U.S. specifications to prevent an ABC 
overage. The specifications are reviewed annually and will incorporate 
any new information, including the result of the U.S. Atlantic mackerel 
management track stock assessment in 2020. Thus, while it was not 
available when the Council initially developed this rebuilding plan, 
the new information from Canada was subsequently used to inform the 
Council's most recent recommendation for the 2020 Atlantic mackerel 
specifications. These 2020 specifications will be finalized and updated 
in future rulemaking actions, consistent with the FMP's requirement to 
update the specifications yearly, in light of the most recent 
scientific data. This regular review of the specifications will help 
ensure that the Framework 13 rebuilding plan approved in this final 
rule achieves its objectives consistent with applicable law.
    Comment 5: A member of the public commented that the Council has 
the opportunity with Framework 13 to manage forage species in a more 
sustainable manner and should consider taking actions to manage forage 
abundance as opposed to increasing the allowable catch amount.
    Response 5: The measures approved in this action sustainably manage 
Atlantic mackerel by ending overfishing and rebuilding the stock, as 
required by the Magnuson-Stevens Act. The role of Atlantic mackerel as 
an ecosystem component, that is, as a forage species, was considered in 
the assessment projections. Analyses of the diets of predator species 
sampled by the Northeast Fisheries Science Center bottom trawl surveys 
indicated a low occurrence of Atlantic mackerel in predator diets from 
1973-2016, with approximately 0.2 percent of all predator stomachs 
containing mackerel. Additional potentially important predators of 
mackerel, including highly migratory species, marine mammals, and 
seabirds, are not sampled by the NEFSC trawl surveys. Consumption by 
these predators is more difficult to estimate due to incomplete 
information on population levels and annual diet information. In 
addition, predator food habits were not available for the months the 
northern contingent was outside of the area sampled by the NEFSC trawl 
survey. Changes in the distribution of Atlantic mackerel to the north 
and east

[[Page 58057]]

have been observed. Several working papers suggested that some of these 
changes could be associated with environmental variables, but cause and 
effect could not be formally identified. Thus, assessment upon which 
Framework 13 is based included consideration of factors such as 
sustainable forage as one natural cause of Atlantic mackerel mortality.

In-Season Closure Provisions and Associated Corrections and 
Clarifications to Existing Regulations

    Comment 6: Both commercial fishing industry groups support the 
phased in-season closure and possession limits that are included in 
Framework 13.
    Response 6: This final rule approves the measures to slow the 
fishery as catch approaches the DAH in order to achieve optimum yield 
while reducing the risk to exceed the ABC.
    Comment 7: Both commercial fishing groups do not support the 
correction of terminology in the regulatory language that changes 
``incidental permits'' to ``open access permits''. Their rationale for 
not supporting this change is that the emerging jig fishery is using 
this type of permit to target Atlantic mackerel, but this use would be 
inconsistent with the definition of the incidental catch permit at 
Sec.  648.4(a)(5)(iv). SeaFreeze commented that the segment of the 
fleet that uses the open access permit for directed fishing may 
encroach upon quota access that limited access permit holders have 
qualified for, which may result in less quota access for limited access 
permit holders. Additionally, Garden State Seafood Association 
highlighted that Tier 3 permits are available for purchase by those who 
participate in the open access jig fishery.
    Response 7: The language change from ``incidental'' to ``open 
access'' does not change the definition of the permit and does not 
change any measure controlling operations of such permits. The change 
was to maintain consistency in the reference to this permit in existing 
regulations. We disagree that the segment of the fleet that carries out 
directed fishing on Atlantic mackerel using the open access permit will 
encroach upon the limited access quota, as quotas are set annually and 
possession limits are determined by permit, not by allocation. In 
addition, this concern reflects permit issues that are beyond the scope 
of Framework 13 and that could be considered by the Council in a 
separate action.

River Herring and Shad Catch Cap

    Comment 8: A member of the public commented on the contrast of the 
increased river herring and shad catch caps in relation to wetland 
restoration investments throughout the region that benefit anadromous 
fish populations with ecosystem consideration.
    Response 8: River herring and shad are an important component in 
the ecosystem. The revised caps in Framework 13 are well within the 
scope of caps that have been considered since the caps were established 
in Amendment 14 (79 FR 10029, February 24, 2014). A recent 
comprehensive status review under the Endangered Species Act (ESA) for 
alewife and blueback herring (84 FR 28630, June 19, 2019) noted that 
such caps are an important component in the broader effort to reduce 
river herring and shad bycatch in federal waters, protect and improve 
habitat, and rebuild these stocks to sustainable levels. The Council 
reviews the river herring and shad catch cap annually and can revise 
such caps for future fishing years based on new information.
    Comment 9: The commercial fishing groups both noted that the low 
river herring and shad catch cap, which is applied to all gear types, 
is the limiting factor preventing the commercial fishing fleet from 
achieving optimum yield (OY). Both organizations highlighted that in 
2014, the first year the cap was implemented, the cap was 236 mt 
compared to the 129 mt, 152 mt, and 159 mt cap limits evaluated in 
Framework 13. SeaFreeze Limited does not support the initial cap of 89 
mt, stating the overall yearly cap of 129 mt itself is a bycatch 
avoidance factor. The commenters suggested that these caps should be 
modified after the recent 5-year status review to allow a meaningful 
increase in order to catch the allowable mackerel quota and achieve OY.
    Response 9: When the river herring and shad catch cap was initially 
set at 236 mt, the DAH was 33,821 mt and was based on the 0.74 percent 
ratio used in 2015 that is also used in Framework 13 to establish the 
catch caps of 129 mt in 2019, 152 mt in 2020, and 159 mt, which are 
relative to the DAH for each year (79 FR 10029; February 24, 2014). The 
89 mt catch cap as a scaling provision was established in 2015 and 
represents the median of actual river herring and shad catches by the 
Atlantic mackerel fishery from 2005-2012 (80 FR 14870; March 20, 2015). 
The 89 mt cap was well within the initial river herring and shad catch 
cap established in Framework 14, as described above. The cap has been 
reached in 2018 and 2019, effectively closing the directed Atlantic 
mackerel fishery. The river herring and shad catch cap is intended to 
create an incentive for industry to avoid river herring and shad 
bycatch. The Council will review the river herring and shad catch cap 
for 2020 at its August 2019 meeting.

Changes From the Proposed Rule

    There are no changes from the proposed rule.

Classification

    The Administrator, Greater Atlantic Region, NMFS, determined that 
Framework 13 to the Atlantic Mackerel, Squid, and Butterfish FMP is 
necessary for the conservation and management of the Atlantic mackerel 
fishery managed by the Mid-Atlantic Council and that it is consistent 
with the Magnuson-Stevens Act and other applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. This rule is not an E.O. 13771 
regulatory action because this rule is not significant under E.O. 
12866.
    This final rule does not contain policies with Federalism or 
takings implications as those terms are defined in E.O. 13132 and E.O. 
12630, respectively.
    A Final Regulatory Flexibility Act (FRFA) analysis was prepared for 
this action and is included below. The FRFA incorporates the Initial 
Regulatory Flexibility Act (IRFA) analysis. A summary of the IRFA was 
published in the proposed rule for this action and is not repeated 
here. The FRFA below includes a summary of the significant issues 
raised by the public comments in response to the IRFA and the NMFS 
responses to those comments, and a summary of the analyses completed in 
the Framework 13 EA. A description of why this action was considered, 
the objectives of, and the legal basis for this rule is contained in 
Framework 13 and in the preambles of the proposed rule and this final 
rule, and is not repeated here. All of the documents that constitute 
the FRFA are available upon request (see ADDRESSES).

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

    The public did not raise any significant issues in response to the 
IRFA, so no changes were made from the proposed rule.

[[Page 58058]]

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

    The measures in Framework 13 apply to vessels that hold any 
commercial permit for Atlantic mackerel. We analyzed the impacts using 
NMFS's database for Atlantic mackerel permit holders in 2017 (the most 
recent year of full year permit data) cross-referenced with NMFS 
ownership data. Some small entities own multiple vessels with Atlantic 
mackerel permits. For purposes of the Regulatory Flexibility Act, NMFS 
established a small business size standard for businesses, including 
their affiliates, whose primary industry is commercial fishing (see 50 
CFR 200.2). A business primarily engaged in commercial fishing (North 
American Industry Classification System (NAICS) code 11411) is 
classified as a small business if it is independently owned and 
operated, is not dominant in its field of operation (including its 
affiliates), and has combined annual receipts not in excess of $11 
million for all its affiliated operations worldwide. The determination 
of whether the entity is large or small is based on the average annual 
revenue for the most recent 3 years for which data are available. In 
2017, 1,829 separate vessels held Atlantic mackerel permits. These 
vessels were owned by 1,379 entities, nearly all of which (1,368) were 
small business entities. Based on revenue from all species landed, 951 
of these small business entities were commercial fishing entities, 116 
were for-hire entities, and 301 had no revenue, but are considered 
small businesses. For those small businesses with revenues, average 
revenues were $0.6 million in 2017, which is well under the NMFS 
threshold of $11 million. 299 entities reported revenue from Atlantic 
mackerel during 2017. Of these entities, 4 were large and 295 were 
small. In 2017, 145 vessels were issued limited access permits and may 
be affected by the directed fishery closure measures proposed in this 
action. They are owned by 105 entities, of which 98 are small entities. 
Thus, NMFS concluded that almost all (98 entities with vessels issued 
limited access permits that could be affected by the directed fishery 
closure measures, and 295 entities reporting revenue from Atlantic 
mackerel) of the entities affected by this action are small entities.

Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of This Proposed Rule

    This action does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.

Description of Steps the Agency Has Taken To Minimize the Significant 
Economic Impact on Small Entities Consistent With the Stated Objectives 
of Applicable Statues

    There are no significant adverse economic impacts of Framework 13. 
All of the rebuilding alternatives considered allow an increase in 
landings over time and have positive long-term socio-economic benefits 
compared to taking no action. The approved 5-year and 7-year rebuilding 
program specifications would significantly increase the allowable quota 
by over 8,000 mt in the first year, with increases in subsequent years. 
The proposed 5-year rebuilding program would result in an additional $7 
million in fishing revenue annually in 2020-2021, compared to 2020-2021 
under the no action alternative (which would continue under current 
specifications), while the 7-year rebuilding plan would result in an 
additional $8 million in fishing revenue. While the 7-year program 
would allow a larger quota increase compared to the 5-year program, the 
5-year rebuilding program was selected because it would rebuild the 
fishery faster than the 7-year rebuilding program.
    In conclusion, there are no significant adverse economic impacts on 
a substantial number of small entities in this action.
    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 letter to permit holders that also serves as 
small entity compliance guide (the guide) was prepared. Copies of the 
guide (i.e., permit holder letter) will be sent to all entities issued 
limited and open access Atlantic mackerel permits. The guide and this 
final rule will be available upon request from the Regional 
Administrator (see ADDRESSES) and online at https://www.greateratlantic.fisheries.noaa.gov/sustainable/species/msb/index.html.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: October 24, 2019.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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


0
 2. In Sec.  648.21, revise paragraph (c) to read as follows:


Sec.  648.21   Mid-Atlantic Fishery Management Council risk policy.

* * * * *
    (c) Most restrictive ABC recommendation. (1) Unless otherwise 
allowed in paragraph (c)(2) of this section, for instances in which the 
application of the risk policy approaches in either paragraph (b)(1) or 
(2) of this section using OFL distribution, as applicable given life 
history determination, results in a more restrictive ABC recommendation 
than the calculation of ABC derived from the use of FREBUILD 
at the MAFMC-specified overfishing risk level as outlined in paragraph 
(a) of this section, the SSC shall recommend to the MAFMC the lower of 
the ABC values.
    (2) The SSC may specify higher 2019-2023 ABCs for Atlantic mackerel 
based on FREBUILD instead of the methods outlined in 
paragraph (a) of this section to implement a rebuilding program that 
would rebuild this stock by 2023.
* * * * *

0
 3. In Sec.  648.24, revise paragraphs (b)(1) and (6) to read as 
follows:


Sec.  648.24  Fishery closures and accountability measures.

* * * * *
    (b) * * *
    (1) Atlantic mackerel commercial sector EEZ closure--(i) First 
phase commercial closure. (A) Unless otherwise determined in paragraph 
(b)(1)(iii) of this section, NMFS will close the commercial Atlantic 
mackerel fishery, which includes vessels issued an open access or 
limited access Atlantic mackerel permit, including a limited access 
Tier 3 Atlantic mackerel permit, in the EEZ when the Regional 
Administrator projects that 90 percent of the Atlantic mackerel DAH is 
harvested if such a closure is necessary to prevent the DAH from being 
exceeded. The closure of the commercial fishery shall be in effect for 
the remainder of that fishing year, with

[[Page 58059]]

incidental catches allowed, as specified in Sec.  648.26.
    (B) Unless previously closed pursuant to paragraph (b)(1)(i)(A) of 
this section, NMFS will close the Tier 3 commercial mackerel fishery in 
the EEZ when the Regional Administrator projects that 90 percent of the 
Tier 3 Atlantic mackerel allocation will be harvested. Unless otherwise 
restricted, the closure of the Tier 3 commercial mackerel fishery will 
be in effect for the remainder of that fishing period, with incidental 
catches allowed as specified in Sec.  648.26.
    (ii) Second phase commercial quota closure. When the Regional 
Administrator projects that 98 percent of the Atlantic mackerel DAH 
will be landed, NMFS will reduce the possession of Atlantic mackerel in 
the EEZ applicable to all Atlantic mackerel permits for the remainder 
of the fishing year as specified in Sec.  648.26(a)(2)(iii)(A).
    (iii) NMFS has the discretion to not implement measures outlined in 
paragraphs (b)(1)(i)(A) or (b)(1)(ii) of this section during November 
and December if the Regional Administrator projects that commercial 
Atlantic mackerel landings will not exceed the DAH during the remainder 
of the fishing year.
* * * * *
    (6) River herring and shad catch cap. The river herring and shad 
cap on the mackerel fishery applies to all trips that land more than 
20,000 lb (9.08 mt) of mackerel. NMFS shall close the limited access 
mackerel fishery in the EEZ when the Regional Administrator project 
that 95 percent of the river herring/shad catch cap has been harvested. 
Following closures of the limited access mackerel fishery, vessels must 
adhere to the possession restrictions specified in Sec.  648.26.
* * * * *

0
 4. In Sec.  648.26, revise paragraphs (a)(1)(i) through (iii) and 
(a)(2) to read as follows:


Sec.  648.26   Mackerel, squid, and butterfish possession restrictions.

    (a) * * *
    (1) * * *
    (i) A vessel issued a Tier 1 limited access mackerel permit is 
authorized to fish for, possess, or land Atlantic mackerel with no 
possession restriction in the EEZ per trip, and may only land Atlantic 
mackerel once on any calendar day, which is defined as the 24-hr period 
beginning at 0001 hours and ending at 2400 hours, provided that the 
fishery has not been closed because 90 percent of the DAH has been 
harvested, as specified in Sec.  648.24(b)(1)(i)(A).
    (ii) A vessel issued a Tier 2 limited access mackerel permit is 
authorized to fish for, possess, or land up to 135,000 lb (61.23 mt) of 
Atlantic mackerel in the EEZ per trip, and may only land Atlantic 
mackerel once on any calendar day, which is defined as the 24-hr period 
beginning at 0001 hours and ending at 2400 hours, provided that the 
fishery has not been closed because 90 percent of the DAH has been 
harvested, as specified in Sec.  648.24(b)(1)(i)(A).
    (iii) A vessel issued a Tier 3 limited access mackerel permit is 
authorized to fish for, possess, or land up to 100,000 lb (45.36 mt) of 
Atlantic mackerel in the EEZ per trip, and may only land Atlantic 
mackerel once on any calendar day, which is defined as the 24-hr period 
beginning at 0001 hours and ending at 2400 hours, provided that the 
fishery has not been closed because 90 percent of the DAH has been 
harvested, or 90 percent of the Tier 3 allocation has been harvested, 
as specified in Sec.  648.24(b)(1)(i)(A) and (B), respectively.
* * * * *
    (2) Atlantic mackerel closure possession restrictions. Any Atlantic 
mackerel possession restrictions implemented under paragraph (a)(2) of 
this section will remain in place for the rest of the fishing year, 
unless further restricted by a subsequent action. If the entire 
commercial Atlantic mackerel fishery is closed due to harvesting the 
river herring/shad catch cap, as specified in Sec.  648.24(b)(6) before 
the fishery harvests 90 percent of the Atlantic mackerel DAH, then the 
Atlantic mackerel possession restrictions specified in paragraph 
(a)(2)(iii)(B) of this section shall remain in place for the rest of 
the fishing year unless further reduced by the possession restrictions 
specified in paragraph (a)(2)(iii)(A) of this section.
    (i) Limited Access Fishery. (A) During a closure of the commercial 
Atlantic mackerel fishery pursuant to Sec.  648.24(b)(1)(i)(A), when 90 
percent of the DAH is harvested, vessels issued a Tier 1, 2, or 3 
limited access Atlantic mackerel permit, may not take and retain, 
possess, or land more than 40,000 lb (18.14 mt) of Atlantic mackerel 
per trip at any time, and may only land Atlantic mackerel once on any 
calendar day, which is defined as the 24-hr period beginning at 0001 
hours and ending at 2400 hours.
    (B) During a closure of the Tier 3 commercial Atlantic mackerel 
fishery pursuant to Sec.  648.24(b)(1)(i)(B), when 90 percent of the 
Tier 3 allocation is harvested, vessels issued a Tier 3 limited access 
Atlantic mackerel permit may not take and retain, possess, or land more 
than 20,000 lb (9.08 mt) of Atlantic mackerel per trip at any time, and 
may only land Atlantic mackerel once on any calendar day, which is 
defined as the 24-hr period beginning at 0001 hours and ending at 2400 
hours.
    (ii) Open Access Fishery. During a closure of the Atlantic mackerel 
commercial sector pursuant to Sec.  648.24(b)(1)(i)(A), when 90 percent 
of the DAH is harvested, vessels issued an open access Atlantic 
mackerel permit may not take and retain, possess, or land more than 
5,000 lb (2.27 mt) of Atlantic mackerel per trip at any time, and may 
only land Atlantic mackerel once on any calendar day, which is defined 
as the 24-hr period beginning at 0001 hours and ending at 2400 hours.
    (iii) Entire commercial fishery--(A) Commercial quota closure. 
During a closure of the entire commercial Atlantic mackerel fishery 
pursuant to Sec.  648.24(b)(1)(ii), when 98 percent of the DAH is 
harvested, vessels issued an open or limited access Atlantic mackerel 
permit may not take and retain, possess, or land more than 5,000 lb 
(2.27 mt) of Atlantic mackerel per trip at any time, and may only land 
Atlantic mackerel once on any calendar day, which is defined as the 24-
hr period beginning at 0001 hours and ending at 2400 hours.
    (B) River herring/shad catch cap closure. During a closure of the 
limited access commercial Atlantic mackerel fishery pursuant to Sec.  
648.24(b)(6), when 95 percent of the river herring/shad catch cap has 
been harvested, vessels issued an open or limited access Atlantic 
mackerel permit may not take and retain, possess, or land more than 
20,000 lb (9.08 mt) of Atlantic mackerel per trip at any time, and may 
only land Atlantic mackerel once on any calendar day, which is defined 
as the 24-hr period beginning at 0001 hours and ending at 2400 hours.
* * * * *
[FR Doc. 2019-23636 Filed 10-29-19; 8:45 am]
 BILLING CODE 3510-22-P