[Federal Register Volume 61, Number 64 (Tuesday, April 2, 1996)]
[Rules and Regulations]
[Pages 14465-14477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7625]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
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Federal Register / Vol. 61, No. 64 / Tuesday, April 2, 1996 / Rules
and Regulations
[[Page 14465]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Parts 611 and 655
[Docket No. 951208293-6065-02; I.D. 110995B]
RIN 0648-AF01
Atlantic Mackerel, Squid, and Butterfish Fisheries; Amendment 5
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final rule to implement approved measures
contained in Amendment 5 to the Fishery Management Plan for the
Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP). Amendment 5
(Amendment) is intended to further the Americanization of the fisheries
and to implement measures to prevent overfishing and avoid
overcapitalization of the domestic fleet. In addition, NMFS informs the
public of the approval by the Office of Management and Budget (OMB) of
the collection-of-information requirements contained in this rule and
publishes the OMB control numbers for these collections.
EFFECTIVE DATE: May 2, 1996.
ADDRESSES: Copies of Amendment 5, final environmental impact statement,
regulatory impact review, and other supporting documents are available
upon request from David R. Keifer, Executive Director, Mid-Atlantic
Fishery Management Council, Room 2115, Federal Building, 300 South New
Street, Dover, DE 19901-6790.
Comments regarding the collection-of-information requirements
contained in this rule should be sent to Dr. Andrew Rosenberg,
Director, Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA
01930-2298, and to the Office of Information and Regulatory Affairs,
Office of Management and Budget (OMB), Washington, D.C. 20503
(Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Myles Raizin, Fishery Policy Analyst,
508-281-9104.
SUPPLEMENTARY INFORMATION:
Background
Amendment 5 was developed in response to concerns regarding
overcapitalization expressed by industry representatives at several
meetings of the Mid-Atlantic Fishery Management Council (Council) and
its Squid, Mackerel, and Butterfish Committee in the early 1990's.
Increases in domestic squid landings and a stagnation in the growth of
butterfish landings at well below the maximum sustainable yield (MSY)
for that species moved the Council to develop this comprehensive
amendment. Details concerning the development of the Amendment are
provided in the proposed rule which was published in the Federal
Register on December 20, 1995 (60 FR 65618).
Amendment 5, as adopted by the Council, contained moratoria on
entry into the Illex and the Loligo squid and butterfish fisheries
based on specified criteria. It also proposed a minimum mesh size for
the Loligo fishery with an exemption for the sea herring fishery and
the summer Illex fishery beyond the 50-fathom curve; an annual
specification process for all four species; reduction of the MSY for
Loligo from 44,000 metric tons (mt) to 36,000 mt; a modification of the
formula for arriving at the allowable biological catch for Atlantic
mackerel; elimination of joint venture processing and total allowable
level of foreign fishing for Loligo and Illex squid and butterfish; and
establishment of vessel operator permits, dealer permits and reporting,
and vessel reporting requirements.
In the proposed rule, NMFS noted that it had specific concerns
about the following proposed measures: (1) The moratorium entry
criteria, (2) the proposal to constrain the allowable biological catch
(ABC) specified for Atlantic mackerel by the long-term potential catch
(LTPC) estimate, and (3) the proposed exemptions from the Loligo
minimum mesh requirement. The proposed rule requested the public to
comment on all proposed measures, but to focus on these in particular.
NMFS, on behalf of the Secretary of Commerce, reviewed Amendment 5
in light of the administrative record underlying it and the public
comments received relative to the Amendment and the proposed rule. NMFS
has decided, based upon this review, that several provisions of the
Amendment are inconsistent with the national standards of the Magnuson
Fishery Conservation and Management Act (Magnuson Act). Therefore, the
following measures have been disapproved: (1) The Illex moratorium, (2)
the use of LTPC to cap ABC for Atlantic mackerel, and (3) the exemption
from the minimum mesh requirement for the Loligo fishery for a vessel
fishing for sea herring whose catch is comprised of 75 percent or more
of sea herring.
Comments and Responses
A total of thirty commenters provided 14 substantively different
comments on the proposed rule to implement Amendment 5. The commenters
were members of Congress, industry associations, state agencies, the
New England Fishery Management Council, and various individuals.
Fourteen commenters supported and five opposed the Amendment in its
entirety. The remaining eleven commenters opposed at least one
management measure.
Comment 1: Seventeen commenters supporting the moratoria permit
measures believe the fisheries for Illex and Loligo squid are at full
harvesting capacity and urged quick approval.
Response 1: The fishery for Loligo is considered to be fully
utilized or fully exploited while the fishery for Illex remains
underutilized or underexploited. The Loligo moratorium was approved
while the Illex moratorium was disapproved for the reasons stated in
the following response.
Comment 2: Three commenters believed the Amendment satisfies
National Standards 1, 4, and 5.
Response 2: NMFS reviewed the Amendment and determined that most of
the Amendment was consistent with the Magnuson Act. However, NMFS
determined that three measures were inconsistent with the national
standards. NMFS disapproved the Illex moratorium, the minimum mesh
[[Page 14466]]
exemption for the sea herring fishery, and the use of LTPC to cap
Atlantic mackerel ABC. The Illex moratorium is not consistent with
National Standard 4, because the overall impact of the measure has
discriminatory effects that render the allocation of fishing privileges
in the Illex fishery unfair and inequitable. Specifically, the criteria
arbitrarily exclude vessels that may have historically landed Illex
catches smaller than 5,000 lb (2.27 mt) per trip. These vessels, which
may have routinely caught more than the 2,500 lb (1.13 mt) incidental
catch allowance specified in the Amendment, would be eliminated from
the directed fishery under the threshold catch criterion. Employing a
threshold catch criterion to qualify for the Illex moratorium that
operates on a per/trip basis is less inclusive of such vessels than the
Loligo/butterfish criteria, which required 20,000 lb (9.07 mt) of
cumulative landings within a 30-day period. This discriminatory impact
is further exacerbated by the fact that the extension of the qualifying
period back to 1981 allows larger-scale past participants to qualify,
even if they are not present participants in the fishery, while
smaller-scale present participants do not.
The criterion that allows vessels equipped with refrigerated sea
water systems (RSW) or plate or blast systems by May 1994 to qualify
for a moratorium permit has the effect of revising the control date for
a selected portion of the industry. There is no explanation as to why
this select group should be treated differently from others in the
fishery. As worded, the criterion would allow any vessel equipped with
an RSW system or plate or blast freezers before the relevant date to
qualify for a moratorium permit if the owner could demonstrate the
required number of landings prior to the implementation date of this
Amendment. This would allow vessels to enter the fishery that had never
fished for Illex squid. This is not fair and equitable to those that
have participated in the fishery and conflicts with the Council's goal
to prevent overcapitalization in the fishery.
NMFS disapproved the sea herring exemption from the minimum mesh
size for Loligo, because NMFS law enforcement officials advise that
this measure is not enforceable. Ascertaining at-sea the percentage of
herring in the entire catch is virtually impossible. The cost of
establishing a system or procedure to measure the percentage of herring
on board would be prohibitive. Consequently, this measure is
inconsistent with National Standard 7.
NMFS disapproved the measure to cap the annual ABC specification
for Atlantic mackerel, because such a cap on ABC would not allow the
annual specifications to reflect variations and contingencies in the
stock, which is inconsistent with National Standard 6. The most recent
stock assessment estimates mean spawning stock biomass (SSB) at
2,100,000 mt. The annual specifications for 1996, which were calculated
to maintain SSB at 900,000 mt, resulted in an ABC specification of
1,175,500 mt. The current stock assessment estimates LTPC at 150,000
mt/year. Consequently, the constrained level of ABC would not be
reasonably reflective of the size of the Atlantic mackerel stock.
Comment 3: Six commenters want to alter the vessel replacement
provisions proposed in Amendment 5 by allowing vessel upgrades to 10
percent and allowing vessel characteristics from multiple vessels to be
combined into one vessel. One commenter thought vessel replacement
should be based on carrying capacity.
Response 3: These proposed changes were not contained in the
proposed rule because they were not offered as measures in Amendment 5.
A further amendment to the FMP would be needed to accomplish these
changes. The commenters should direct these comments to the Council.
Comment 4: Ten commenters opposed Amendment 5, believing that the
Illex moratorium is discriminatory.
Response 4: The Illex moratorium was disapproved, as noted above.
Comment 5: Nine commenters opposed the Illex moratorium permit on
the basis that Illex is underutilized.
Response 5: The Illex moratorium was disapproved because of its
inconsistency with National Standard 4, not because the fishery is not
fully utilized. While recent harvest levels have not approached the
MSY, recent scientific information strongly suggests that the MSY
should be adjusted downward in response to new life history
information. This is likely to result in a revised assessment of the
utilization status of the species. In any event, the issue of whether
or not to impose a moratorium in the Illex fishery is within the
prerogative of the Council. If the Council believes that a moratorium
is necessary and appropriate for the conservation of the Illex fishery,
and develops an administrative record that leads NMFS to conclude that
the moratorium is consistent with the Magnuson Act and other applicable
law, it will be approved.
Comment 6: Six commenters believed that the moratorium on Illex
would deprive displaced groundfish vessels of an alternative fishery.
Response 6: See response to Comment 5.
Comment 7: Three commenters opposed both moratoria permits on the
grounds that they do not follow the limited entry guidelines discussed
in the Magnuson Act.
Response 7: The Council did consider the provisions of section
303(b)(6) expressly in the Amendment. The several factors noted in this
section merely have to be taken into account by the Council in
determining whether to limit access to a fishery. It is up to the
Council what weight, if any, should be accorded to any of these factors
or whether or not to make a provision in the Amendment for any of the
factors.
Comment 8: One commenter opposed the refrigerated seawater/blast
freezer provision for the Illex moratorium permit.
Response 8: The Illex moratorium was disapproved, as noted above.
Comment 9: One commenter felt that the Council can accomplish its
goals only by establishing a moratorium eligibility criterion that
considers the three moratorium species together as a unit for purposes
of qualifying for a moratorium permit. He proposed raising the
criterion to 50,000 lb (22.7 mt) of landings per year, in any 2 years
during the qualification period, for any one or any combination of the
three species.
Response 9: The Council analyzed the impact of using the same
qualifying criteria for all three fisheries and determined that it
would defeat the purpose of the limited entry provision and increase
the chances of overcapitalization in the industry. A 50,000 lb (22.7
mt) criterion as described in the comment, is not discussed as an
alternative in the Amendment. The Council may exercise its judgment as
to how best to accomplish its management goals. The Secretary will
support the Council's judgment if it is consistent with the Magnuson
Act and other applicable law.
Comment 10: Four commenters believed that the Illex moratorium
should be disapproved pending further scientific investigation.
Response 10: The Illex moratorium was disapproved. However, the
21st Northeast Regional Stock Assessment Workshop (SAW 21) reassessed
both squid stocks and the results of the assessment and the SAW
members' management advice will be available soon.
Comment 11: One commenter believed the Council would use the
[[Page 14467]]
same qualifying criteria as was used to determine eligibility for the
summer flounder moratorium permit and invested money into refitting his
vessel. He protested the fact that his vessel will not qualify for the
squid fisheries under the criteria specified in the Amendment.
Response 11. The Council has the authority to propose regulations
that are unique to an individual fishery. It is unfortunate that the
commenter invested money without making inquiries about possible
qualifying criteria. The fact that the Council intended to use criteria
different than those in the summer flounder moratorium was well known
before Amendment 5 was taken to public hearings.
Comment 12: One commenter stated that Article 1, section 9 of the
United States Constitution states that ``no bill of Attainder or ex-
post facto Law shall be passed,'' yet the time frame for qualifying for
the moratorium permits was clearly retroactive, having been announced
in June of 1994. The commenter felt that this retroactive date
disqualified him for a moratorium permit without due process.
Response 12: The rule implementing the moratorium is not a bill of
Attainder; it neither rises to the level of a legislative act, nor
pronounces an individual guilty of a crime without due process. The use
of a date that precedes the publication date of this rule as a basis
for qualifying for a moratorium permit does not amount to an ``ex-post
facto Law.'' A control date document was published in the Federal
Register on August 13, 1992 (57 FR 36384). This legal document advised
the public that entry into the fishery after its publication date might
not guarantee future access to the fishery if the Council developed an
amendment to the FMP that limited access. The control date was later
changed by the Council when it adopted August 13, 1993, in the
Amendment as the end date for the qualifying period. Consequently, the
fact that the control date could be used as a qualifying criterion was
announced to the public long before this rule was published.
The publication of the control date signified the inception of a
long process that differentiates the legislative from the rulemaking
process. During this process, Amendment 5, which included the control
date and qualification period, was developed, debated, subjected to
public scrutiny, and finally adopted by the Council for submission to
NMFS. The control date criterion was not adopted after the fact, as the
public was aware of the control date throughout the process. To prevent
the Council from choosing a moratorium qualifying date that preceded
the date of the final rule would seriously impair the value of any
moratorium; the time needed to bring a fishery management plan or
amendment containing a moratorium provision to the implementation stage
would allow for a dramatic increase in effort in the fishery affected,
thereby thwarting the Council's ability to limit effort and conserve
the resource. This result runs contrary to the broad responsibility
invested in the Council by the framers of the Magnuson Act.
Comment 13: Two commenters believed that a mesh size of 2\3/8\
inches, as opposed to 1\7/8\ inches, is needed in the Loligo fishery to
address issues of juvenile escapement of Loligo and discard of small
scup and butterfish.
Response 13: No mesh selectivity studies have been done to analyze
the effect of different mesh sizes and configuration on the escapement
of juvenile squid. Thus, no scientific support exists for the
commenter's contention. New Jersey fishermen testified that they use
1\7/8\ inch mesh and experienced no problems of juvenile escapement.
The imposition of a minimum mesh size is an important first step in
conserving the resource. NMFS has encouraged the Council to investigate
the escapement issue and to adjust the mesh size through the framework
mechanism in Amendment 5, should the Council's conclusions warrant such
action.
Comment 14: The overfishing definitions for Loligo and Illex squid
are outdated and meaningless.
Response 14: Amendment 5 does not propose new overfishing
definitions for the squids. SAW 21 reassessed both squid species and
the results of that assessment will be used to establish new
overfishing definitions. Such definitions must be implemented by a
future plan amendment.
Changes From the Proposed Rule
Since three management measures published in the proposed rule are
disapproved, the following provisions have been removed: Provisions at
Sec. 655.4 and other appropriate sections regarding the issuance or use
of a Loligo moratorium permit; the provision at Sec. 655.22(b)(2) that
would use LTPC to constrain ABC for Atlantic mackerel; and the sea
herring exemption at Sec. 655.25(a)(2).
Classification
The Director, Northeast Region, NMFS, determined that the approved
measures of Amendment 5 are necessary for the conservation and
management of the Atlantic Mackerel, Squid, and Butterfish Fisheries
and that they are consistent with the Magnuson Act and other applicable
laws.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy,
Small Business Administration, that this rule would not have a
significant economic impact on a substantial number of small entities.
The reasons were published in the proposed rule on December 20, 1995
(60 FR 65618). As such, no regulatory flexibility analysis was required
and none has been prepared.
This final rule contains collection-of-information requirements
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). The collection of this information has been approved by OMB
under control numbers 0648-0229, 0648-0018, 0648-0212, 0648-0202, and
0648-0306. The response times for these requirements are estimated to
be: 2 minutes per response for dealer reporting, 6 minutes per response
for employment data, 30 minutes per response for vessel permits and
vessel permit appeals, 45 minutes per response for vessel I.D.
requirements, 1 hour per response for operator permits, 5 minutes per
response for dealer permits, and 2 minutes per response for the
observer notification requirement.
The response estimates shown include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding any of these burden
estimates or any other aspect of the collection of information,
including suggestions for reducing burdens, to Dr. Andrew Rosenberg and
OMB (see ADDRESSES). Notwithstanding any other provision of the law, no
person is required to respond to, nor shall any person be subject to a
penalty for failure to comply with a collection of information, subject
to the requirements of the PRA, unless that collection of information
displays a current valid OMB Control Number.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 611
Fisheries, Foreign relations, Reporting and recordkeeping
requirements.
[[Page 14468]]
50 CFR Part 655
Fisheries, Reporting and recordkeeping requirements.
Dated: March 21, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 15 CFR part 902, 50 CFR
parts 611 and 655 are amended as follows:
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. In Sec. 902.1, paragraph (b) the table is amended by adding in
the left column under 50 CFR, in numerical order, ``655.4'', ``655.5'',
``655.6'', ``655.7'', and ``655.8'', and in the right column, in
corresponding positions, the control numbers ``and -0212'', `` -0202'',
``and -0229'', `` -0018'', and `` -0306''.
PART 611--FOREIGN FISHING
3. The authority citation for part 611 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 971 et seq., 22
U.S.C. 1971 et seq., and 16 U.S.C. 1361 et seq.
4. In Sec. 611.50, paragraphs (b)(3), (b)(4)(i), and (b)(4)(ii) are
revised to read as follows:
Sec. 611.50 Northwest Atlantic Ocean fishery.
* * * * *
(b) * * *
(3) TALFF. The Atlantic mackerel TALFF for the Northwest Atlantic
Ocean fishery is published in the Federal Register. Current TALFFs are
also available from the Regional Director. The procedure for
determining and adjusting the Atlantic mackerel TALFF is set forth in
50 CFR part 655.
(4) * * *
(i) The other allocated species, namely: Atlantic herring, Atlantic
mackerel, butterfish (as a bycatch of Atlantic mackerel), and river
herring (including alewife, blueback herring, and hickory shad); and
(ii) The prohibited species, namely: American plaice, American
shad, Atlantic cod, Atlantic menhaden, Atlantic redfish, Atlantic
salmon, all marlin, all spearfish, sailfish, swordfish, black sea bass,
bluefish, croaker, haddock, ocean pout, pollock, red hake, scup, sea
turtles, sharks (except dogfish), silver hake, spot, striped bass,
summer flounder, tilefish, yellowtail flounder, weakfish, white hake,
short-finned squid, long-finned squid, windowpane flounder, winter
flounder, witch flounder, Continental Shelf fishery resources, and
other invertebrates (except non-allocated squids).
* * * * *
5. Part 655 is revised to read as follows:
PART 655--ATLANTIC MACKEREL, SQUID, AND BUTTERFISH FISHERIES
Subpart A--General Provisions
Sec.
655.1 Purpose and scope.
655.2 Definitions.
655.3 Relation to other laws.
655.4 Vessel permits.
655.5 Operator permit.
655.6 Dealer permit.
655.7 Recordkeeping and reporting requirements.
655.8 Vessel identification.
655.9 Prohibitions.
655.10 Facilitation of enforcement.
655.11 Penalties.
Subpart B--Management Measures
655.20 Fishing year.
655.21 Maximum optimum yields.
655.22 Procedures for determining initial annual amounts.
655.23 Closure of the fishery.
655.24 Time and area restrictions for directed foreign fishing.
655.25 Gear restrictions.
655.26 Minimum fish sizes. [Reserved]
655.27 Possession limits. [Reserved]
655.28 At-sea observer coverage.
655.29 Transfer-at-sea.
655.30 Experimental fishery.
Figure 1 to part 655--Exemption line to minimum net mesh-size
requirement for Loligo squid.
Authority: 16 U.S.C. 1801 et seq.
Subpart A--General Provisions
Sec. 655.1 Purpose and scope.
(a) The regulations in this part govern the conservation and
management of Atlantic mackerel, Illex squid, Loligo squid, and
butterfish.
(b) The regulations governing fishing for Atlantic mackerel, Illex
squid, Loligo squid, and butterfish by vessels other than vessels of
the United States are contained in 50 CFR part 611.
(c) This part implements the Fishery Management Plan for the
Atlantic Mackerel, Squid, and Butterfish Fisheries of the Northwest
Atlantic Ocean.
Sec. 655.2 Definitions.
In addition to the definitions in the Magnuson Act and in
Sec. 620.2 of this chapter, the terms used in this part have the
following meanings:
Atlantic butterfish or butterfish means the species Peprilus
triacanthus.
Atlantic mackerel or mackerel means the species Scomber scombrus.
Atlantic Mackerel, Squid, and Butterfish Monitoring Committee or
Monitoring Committee means a committee made up of staff representatives
of the Mid-Atlantic and New England Fishery Management Councils, and
the Northeast Regional Office and Northeast Fisheries Science Center of
NMFS. The Council Executive Director or a designee chairs the
Committee.
Being rerigged means physical alteration of the vessel or its gear
had begun to transform the vessel into one capable of fishing
commercially for Loligo squid or butterfish.
Charter or party boat means any vessel that carries passengers for
hire to engage in fishing.
Council means the Mid-Atlantic Fishery Management Council.
Dealer means any person who receives squid, mackerel, or butterfish
for a commercial purpose, other than solely for transport on land, from
the owner or operator of a vessel issued a permit under Sec. 655.4.
Fishery Management Plan (FMP) means the Fishery Management Plan for
the Atlantic mackerel, squid, and butterfish fisheries of the Northwest
Atlantic Ocean, as revised by subsequent amendments.
Fishing for commercial purposes means any fishing or fishing
activity that results in the harvest of Atlantic mackerel, squid, or
butterfish, one or more of which (or parts thereof) is sold, traded, or
bartered.
Fishing trip or trip means a period of time during which fishing is
conducted, beginning when the vessel leaves port and ending when the
vessel returns to port.
Gross registered tonnage (GRT) means the gross tonnage specified on
the U.S. Coast Guard documentation.
Illex means the species Illex illecebrosus (short-finned or summer
squid).
Joint venture harvest means U.S.-harvested Atlantic mackerel
transferred to foreign vessels in the EEZ.
Land means to begin offloading fish or to offload fish at sea or on
land, or to enter port with fish.
Liner means a piece of mesh rigged inside the main or outer net.
Loligo means the species Loligo pealei (long-finned or bone squid).
Metric ton (mt) means 1,000 kg or 2,204.6 lb.
Operator means the master, captain, or other individual aboard a
fishing vessel and in charge of that vessel's operations.
Personal use means use not for sale, barter, or trade.
[[Page 14469]]
Postmark means independently verifiable evidence of date of
mailing, such as U.S. Postal Service postmark, United Parcel Service
(U.P.S.) or other private carrier postmark, certified mail receipt,
overnight mail receipt, or receipt received upon hand delivery to an
authorized representative of NMFS.
Recreational fishing means fishing that neither is intended to, nor
results in, the barter, trade, or sale of fish.
Recreational fishing vessel means any vessel from which no fishing
other than recreational fishing is conducted. Charter and party boats
are not considered recreational fishing vessels.
Regional Director means the Director, Northeast Region, NMFS, 1
Blackburn Drive, Gloucester, MA 01930-2298, or a designee.
Reporting month means the period of time beginning at 0001 hours
local time on the first day of each calendar month and ending at 2400
hours local time on the last day of each calendar month.
Reporting week means a period of time beginning at 0001 hours local
time on Sunday and ending at 2400 hours local time the following
Saturday.
Squid means Loligo pealei and Illex illecebrosus.
Substantially similar harvesting capacity means the same or less
GRT and vessel registered length for commercial vessels.
Transfer means to begin to remove, to pass over the rail, or
otherwise take away fish from any vessel and move them to another
conveyance.
Under construction means that the keel has been laid.
Vessel registered length means the registered length specified on
U.S. Coast Guard Documentation, or state registration if the state
registered length is verified by a NMFS authorized official.
Sec. 655.3 Relation to other laws.
(a) The relation of this part to other laws is set forth in
Sec. 620.3 of this chapter and paragraphs (b) through (d) of this
section.
(b) Additional regulations governing domestic fishing for Northeast
Multispecies, which affect this part, are found at 50 CFR part 651.
(c) Additional regulations governing domestic fishing for summer
flounder, which affect this part, are found at 50 CFR part 625.
(d) Nothing in these regulations supersedes more restrictive state
management measures.
Sec. 655.4 Vessel permits.
(a) General--(1) Requirement. Beginning on January 1, 1997, any
vessel of the United States, including party or charter vessels, that
fishes for, possesses, or lands Atlantic mackerel, squid, or butterfish
in or from the EEZ, must have been issued and carry on board a valid
Loligo squid and butterfish moratorium permit, or a valid incidental
catch permit, or a valid Atlantic mackerel and Illex squid permit, or a
valid party or charterboat permit issued under this section. This
requirement does not apply to recreational fishing vessels. Until
January 1, 1997, vessels that have been issued 1995 Federal squid,
mackerel, and butterfish permits and are not otherwise subject to
permit sanctions due to enforcement proceedings, may fish for, possess,
or land squid, Atlantic mackerel or butterfish in or from the EEZ.
(2) Condition. Vessel owners who apply for a fishing vessel permit
under this section must agree as a condition of the permit that the
vessel's fishing activities, catch and pertinent gear (without regard
to whether such fishing occurs in or from the EEZ or landward of the
EEZ, and without regard to where such fish or gear are possessed, taken
or landed) will be subject to all requirements of this part. All such
fishing activities, catch and gear will remain subject to all
applicable state requirements. If a requirement of this part differs
from a management measure required by state law, any vessel owner
permitted to fish in the EEZ must comply with the more restrictive
requirement.
(b) Moratorium permit--(1) Loligo squid and butterfish. A vessel is
eligible for a moratorium permit to fish for and retain Loligo squid or
butterfish in excess of the incidental catch allowance specified in
paragraph (c)(1) of this section, if it meets any of the following
criteria:
(i) The vessel landed and sold at least 20,000 lb (9.07 mt) of
Loligo or butterfish in any 30-consecutive-day period between August
13, 1981, and August 13, 1993; or
(ii) The vessel is replacing a vessel of substantially similar
harvesting capacity that involuntarily left the Loligo or butterfish
fishery during the effective period of the moratorium, and both the
entering and replaced vessels are owned by the same person. Vessel
permits issued to vessels that involuntarily leave the fishery may not
be combined to create larger replacement vessels.
(iii) Vessels that are judged unseaworthy by the U.S. Coast Guard
for reasons other than lack of maintenance may be replaced by a vessel
of substantially similar harvesting capacity during the effective
period of the moratorium.
(2) Restriction. No one may apply for the permit specified in
paragraph (b)(1) of this section more than 12 months after the
effective date of these regulations, or the event specified under
paragraph (i)(1) of this section. This section does not affect annual
permit renewals.
(3) Appeal of denial of permit. (i) Any applicant denied a
moratorium permit may appeal to the Regional Director within 30 days of
the notice of denial. Any such appeal shall be in writing. The only
ground for appeal is that the Regional Director erred in concluding
that the vessel did not meet the criteria in paragraph (b)(1)(i) of
this section. The appeal shall set forth the basis for the applicant's
belief that the Regional Director's decision was made in error.
(ii) The appeal may be presented, at the option of the applicant,
at a hearing before an officer appointed by the Regional Director.
(iii) The hearing officer shall make a recommendation to Regional
Director.
(iv) The decision on the appeal by the Regional Director is the
final decision of the Department of Commerce.
(c) Incidental catch permit. (1) Any vessel of the United States
may obtain a permit to fish for or retain up to 2,500 lb (1.13 mt) of
Loligo squid or butterfish as an incidental catch in another directed
fishery.
(2) Adjustments to the incidental catch. The incidental catch
allowance may be revised by the Regional Director based upon a
recommendation by the Council following the procedure set forth in
Sec. 655.22. NMFS will publish an adjustment in the Federal Register.
The public may comment on the adjustment for 30 days after the date of
publication. After consideration of public comments, NMFS may publish a
notification of adjustment to the incidental catch allowance in the
Federal Register.
(d) Atlantic mackerel and Illex squid permit. The owner of any
vessel of the United States must obtain a permit under this part to
fish for or retain Atlantic mackerel or Illex squid in or from the EEZ.
(e) Party and charter boat permit. The owner of any party or
charter boat must obtain a permit under this part to fish for or retain
in or from the EEZ Atlantic mackerel, squid or butterfish while
carrying passengers for hire.
(f) Vessel permit application. (1) An application for a permit
under this section must be submitted and signed by the owner of the
vessel on an appropriate form obtained from the Regional Director at
least 30 days prior to the date on which the applicant desires to have
the permit made effective. The Regional Director will
[[Page 14470]]
notify the applicant of any deficiency in the application pursuant to
this section. Applicants for moratorium permits shall provide
information with the application sufficient for the Regional Director
to determine if the vessel meets any eligibility requirements. Dealer
weighout forms, joint venture receipts, and notarized statements from
marine architects or surveyors or shipyard officials will be considered
acceptable forms of proof.
(2) Information requirements. In addition to applicable information
required to be provided by paragraph (f)(1) of this section, an
application for a permit under this section must contain at least the
following information, and any other information required by the
Regional Director: Vessel name; owner name, mailing address, and
telephone number; U.S. Coast Guard documentation number and a valid
copy of the vessel's U.S. Coast Guard documentation or, if
undocumented, the state registration number and a copy of the current
state registration; home port and principal port of landing; overall
length; gross tonnage; net tonnage; engine horsepower; year the vessel
was built; type of construction; type of propulsion; approximate fish
hold capacity; type of fishing gear used by the vessel; number of crew;
permit category; if the owner is a corporation, a copy of the
Certificate of Incorporation showing the principals in the corporation,
and the names and addresses of all shareholders owning 25 percent or
more of the corporation's shares; if the owner is a partnership, a copy
of the Partnership Agreement and the names and addresses of all
partners; if there is more than one owner, names of all owners that
have acquired more than a 25-percent interest; the name and signature
of the owner or the owner's authorized representative; permit number of
any current or, if expired, previous Federal fishery permit issued to
the vessel; and a copy of the charter/party boat license and number of
passengers the vessel is licensed to carry (charter and party boats);
and any other information required by the Regional Director to manage
the fishery.
(g) Fees. The Regional Director may charge a fee to recover
administrative expenses of issuing a permit required under this
section. The amount of the fee is calculated in accordance with the
procedures of the NOAA Finance Handbook (available from Regional
Director) for determining administrative costs of each special product
or service. The fee may not exceed such costs and is specified on each
application form. The appropriate fee must accompany each application;
if it does not, the application will be considered incomplete for
purposes of paragraph (h) of this section. Any fee paid by an
insufficient commercial instrument shall render any permit issued on
the basis thereof null and void.
(h) Issuance. (1) Except as provided in subpart D of 15 CFR part
904, the Regional Director will issue a permit under this section
within 30 days of receipt of the application unless:
(i) The applicant has failed to submit a complete application as
described in paragraph (f) of this section. An application is complete
when all requested forms, information, documentation, and fees, if
applicable, have been received; or
(ii) The application was not received by the Regional Director by
the deadlines set forth in paragraph (b)(3) of this section; or
(iii) The applicant has failed to comply with all applicable
reporting requirements of Sec. 655.7 during the 12 months immediately
preceding the date of the application.
(2) Upon receipt of an incomplete application, or an application
from a person who has not complied with all applicable reporting
requirements of Sec. 655.7 during the 12 months immediately preceding
the application, the Regional Director will notify the applicant of the
deficiency. If the applicant fails to correct the deficiency within 30
days of the Regional Director's notification, the application will be
deemed abandoned.
(i) Expiration. Except as provided in paragraph (b)(1)(ii) of this
section, a permit expires:
(1) When the owner retires the vessel from the fishery;
(2) Upon the renewal date specified on the permit; or
(3) When the ownership of the vessel changes; however, the Regional
Director may authorize the continuation of a moratorium permit for the
Loligo squid and butterfish fisheries if the new owner requests.
Applications for permit continuations must be addressed to the Regional
Director.
(j) Duration. A permit is valid until it is revoked, suspended, or
modified under 15 CFR part 904, or until it otherwise expires, or
ownership changes, or the applicant has failed to report any change in
the information on the permit application to the Regional Director as
specified in paragraph (m) of this section.
(k) Replacement. Replacement permits for an otherwise valid permit
may be issued by the Regional Director when requested in writing by the
owner or authorized representative, stating the need for replacement,
the name of the vessel, and the Federal fisheries permit number
assigned. An application for a replacement permit will not be
considered a new application. An appropriate fee may be charged for
issuance of the replacement permit.
(l) Transfer. Permits issued under this part are not transferable
or assignable. A permit is valid only for the fishing vessel and owner
for which it is issued.
(m) Change in application information. Any change in the
information specified in paragraph (f)(2) of this section must be
submitted by the applicant in writing to the Regional Director within
15 days of the change. If the written notice of the change in
information is not received by the Regional Director within 15 days,
the permit is null and void.
(n) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(o) Display. The permit must be maintained in legible condition and
displayed for inspection upon request by any authorized officer.
(p) Sanctions. Procedures governing enforcement-related permit
sanctions and denials are found at subpart D of 15 CFR part 904.
Sec. 655.5 Operator permit.
(a) General. Beginning June 3, 1996, any operator of a vessel
issued a valid Federal Atlantic mackerel, Loligo, Illex, or butterfish
permit under this part, or any operator of a vessel fishing for
Atlantic mackerel, Loligo, Illex, or butterfish in the EEZ or in
possession of Atlantic mackerel, Loligo, Illex, or butterfish in or
harvested from the EEZ, must have and carry on board a valid operator's
permit issued under this part. An operator permit issued pursuant to
part 649, 650, or 651 shall satisfy the permitting requirement of this
section.
(b) Operator application. Applicants for a permit under this
section must submit a completed permit application on an appropriate
form obtained from the Regional Director. The application must be
signed by the applicant and submitted to the Regional Director at least
30 days prior to the date on which the applicant desires to have the
permit made effective. The Regional Director will notify the applicant
of any deficiency in the application pursuant to this section.
(c) Condition. Vessel operators who apply for an operator's permit
under this section must agree as a condition of this permit that the
operator and vessel's fishing, catch, and pertinent gear (without
regard to whether such fishing occurs in the EEZ or landward of the
EEZ, and without regard to where such fish or gear are possessed,
taken,
[[Page 14471]]
or landed), are subject to all requirements of this part while fishing
in the EEZ or on board a vessel permitted under Sec. 655.4. The vessel
and all such fishing, catch, and gear will remain subject to all
applicable state or local requirements. Further, such operators must
agree as a condition of this permit that, if the permit is suspended or
revoked pursuant to 15 CFR part 904, the operator cannot be aboard any
fishing vessel issued a Federal Fisheries Permit or any vessel subject
to Federal fishing regulations while the vessel is at sea or engaged in
offloading. If a requirement of this part and a management measure
required by state or local law differ, any operator issued a permit
under this part must comply with the more restrictive requirement.
(d) Information requirements. An applicant must provide at least
all the following information and any other information required by the
Regional Director: Name, mailing address, and telephone number; date of
birth; hair color; eye color; height; weight; social security number
(optional); and signature of the applicant. The applicant must also
provide two recent (no more than 1 year old) color passport-size
photographs.
(e) Fees. The Regional Director may charge a fee to recover the
administrative expense of issuing a permit required under this section.
The amount of the fee is calculated in accordance with the procedures
of the NOAA Finance Handbook for determining the administrative costs
of each special product or service. The fee may not exceed such costs
and is specified on each application form. The appropriate fee must
accompany each application; if it does not, the application will be
considered incomplete for purposes of paragraph (f) of this section.
Any fee paid by an insufficiently funded commercial instrument shall
render any permit issued on the basis thereof null and void.
(f) Issuance. Except as provided in subpart D of 15 CFR part 904,
the Regional Director shall issue an operator's permit within 30 days
of receipt of a completed application if the criteria specified herein
are met. Upon receipt of an incomplete or improperly executed
application, the Regional Director will notify the applicant of the
deficiency in the application. If the applicant fails to correct the
deficiency within 30 days following the date of notification, the
application will be deemed abandoned.
(g) Expiration. A Federal operator permit will expire upon the
renewal date specified in the permit.
(h) Duration. A permit is valid until it is revoked, suspended or
modified under 15 CFR part 904, or otherwise expires, or the applicant
has failed to report a change in the information on the permit
application to the Regional Director as specified in paragraph (k) of
this section.
(i) Replacement. Replacement permits, for otherwise valid permits,
may be issued by the Regional Director when requested in writing by the
applicant, stating the need for replacement and the Federal operator
permit number assigned. An applicant for a replacement permit must also
provide two recent color passport-size photos of the applicant. An
application for a replacement permit will not be considered a new
application. An appropriate fee may be charged.
(j) Transfer. Permits issued under this section are not
transferable or assignable. A permit is valid only for the person to
whom it is issued.
(k) Change in application information. Notice of a change in the
permit holder's name, address, or telephone number must be submitted in
writing to, and received by, the Regional Director within 15 days of
the change in information. If written notice of the change in
information is not received by the Regional Director within 15 days,
the permit is void.
(l) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(m) Display. Any permit issued under this part must be maintained
in legible condition and displayed for inspection upon request by any
authorized officer.
(n) Sanctions. Vessel operators with suspended or revoked permits
may not be aboard a federally permitted fishing vessel in any capacity
while the vessel is at sea or engaged in offloading. Procedures
governing enforcement related permit sanctions and denials are found at
subpart D of 15 CFR part 904.
(o) Vessel owner responsibility. Vessel owners are responsible for
ensuring that their vessels are operated by an individual with a valid
operator's permit issued under this section.
Sec. 655.6 Dealer permit.
(a) General. Beginning on January 1, 1997, all dealers must have a
valid permit issued under this part in their possession.
(b) Dealer application. Applicants for a permit under this section
must submit a completed application on an appropriate form provided by
the Regional Director. The application must be signed by the applicant
and submitted to the Regional Director at least 30 days before the date
upon which the applicant desires to have the permit made effective. The
Regional Director will notify the applicant of any deficiency in the
application pursuant to this section.
(c) Information requirements. Applications must contain at least
the following information and any other information required by the
Regional Director: Company name, place(s) of business, mailing
address(es) and telephone number(s), owner's name; dealer permit number
(if a renewal); and name and signature of the person responsible for
the truth and accuracy of the report. If the dealer is a corporation, a
copy of the Certificate of Incorporation must be included with the
application. If the dealer is a partnership, a copy of the Partnership
Agreement and the names and addresses of all partners must be included
with the application.
(d) Fees. The Regional Director may charge a fee to recover the
administrative expense of issuing a permit required under this section.
The amount of the fee is calculated in accordance with the procedures
of the NOAA Finance Handbook for determining the administrative costs
of each special product or service. The fee may not exceed such costs
and is specified with each application form. The appropriate fee must
accompany each application; if it does not, the application will be
considered incomplete for purposes of paragraph (e) of this section.
Any fee paid by an insufficiently funded commercial instrument shall
render any permit issued on the basis thereof null and void.
(e) Issuance. Except as provided in subpart D of 15 CFR part 904,
the Regional Director will issue a permit at any time during the
fishing year to an applicant unless the applicant has failed to submit
a completed application. An application is complete when all requested
forms, information, and documentation have been received and the
applicant has submitted all applicable reports specified in
Sec. 655.7(a). Upon receipt of an incomplete or improperly executed
application, the Regional Director will notify the applicant of the
deficiency in the application. If the applicant fails to correct the
deficiency within 30 days following the date of notification, the
application will be deemed abandoned.
(f) Expiration. A permit will expire upon the renewal date
specified in the permit.
(g) Duration. A permit is valid until it is revoked, suspended, or
modified
[[Page 14472]]
under 15 CFR part 904, or otherwise expires, or ownership changes, or
the applicant has failed to report any change in the information on the
permit application to the Regional Director as required by paragraph
(j) of this section.
(h) Replacement. Replacement permits, for otherwise valid permits,
may be issued by the Regional Director when requested in writing by the
applicant, stating the need for replacement and the Federal dealer
permit number assigned. An application for a replacement permit will
not be considered a new application. An appropriate fee may be charged.
(i) Transfer. Permits issued under this part are not transferable
or assignable. A permit is valid only for the person to whom, or other
business entity to which, it is issued.
(j) Change in application information. Within 15 days after a
change in the information contained in an application submitted under
this section, a written report of the change must be submitted to, and
received by, the Regional Director. If written notice of the change in
information is not received by the Regional Director within 15 days,
the permit is void.
(k) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(l) Display. Any permit, or a valid duplicate thereof, issued under
this part must be maintained in legible condition and displayed for
inspection upon request by any authorized officer.
(m) Federal versus state requirements. If a requirement of this
part differs from a fisheries management measure required by state law,
any dealer issued a Federal dealer permit must comply with the more
restrictive requirement.
(n) Sanctions. Procedures governing enforcement-related permit
sanctions and denials are found at subpart D of 15 CFR part 904.
Sec. 655.7 Recordkeeping and reporting requirements.
(a) Dealers--(1) Weekly report. Beginning on January 1, 1997,
dealers must send by mail, to the Regional Director or official
designee, on a weekly basis, on forms supplied by or approved by the
Regional Director, a report of fish purchases. If authorized in writing
by the Regional Director, dealers may submit reports electronically or
through other media. The following information and any other
information required by the Regional Director must be provided in the
report: Name and mailing address of dealer; dealer number; name and
permit number of the vessels from which fish are landed or received;
dates of purchases; pounds by species; price by species; and port
landed. If no fish are purchased during the week, a report so stating
must be submitted. All report forms must be signed by the dealer or
other authorized individual.
(2) Annual report. All persons required to submit reports under
paragraph (a)(1) of this section are required to complete the
``Employment Data'' section of the Annual Processed Products Reports;
completion of the other sections on that form is voluntary. Reports
must be submitted to the address supplied by the Regional Director.
(3) Inspection. Upon the request of an authorized officer, or by an
employee of NMFS designated by the Regional Director to make such
inspections, the dealer must make immediately available for inspection
copies of the required reports that have been submitted, or should have
been submitted, and the records upon which the reports were based.
(4) Record retention. Copies of reports, and records upon which the
reports were based, must be retained and available for review for 1
year after the date of the last entry on the report. The dealer must
retain such reports and records at its principal place of business.
(5) Submitting reports. Reports must be received, or postmarked if
mailed, within 3 days after the end of each reporting week. Each dealer
will be sent forms and instructions, including the address to which to
submit reports, shortly after receipt of a dealer permit.
(6) At-sea activities. All persons purchasing, receiving, or
processing any mackerel, squid, or butterfish at sea for landing at any
port of the United States must submit information identical to that
required by paragraphs (a)(1) and (2) of this section and provide those
reports to the Regional Director or designee on the same frequency
basis.
(b) Vessel owners--(1) Fishing log reports. Beginning on January 1,
1997, the owner of any vessel issued a Federal Atlantic mackerel,
Loligo squid, butterfish or Illex squid permit under Sec. 655.4 must
maintain on board the vessel, and submit, an accurate daily fishing log
report for all fishing trips, regardless of species fished for or
taken, on forms supplied by or approved by the Regional Director. If
authorized in writing by the Regional Director, vessel owners may
submit reports electronically. At least the following information, and
any other information required by the Regional Director, must be
provided: Vessel name, U.S. Coast Guard (USCG) documentation number (or
state registration number if undocumented); permit number; date/time
sailed; date/time landed; trip type; number of crew; number of anglers
(if a charter or party boat); gear fished; quantity and size of gear;
mesh/ring size; chart area fished; average depth; latitude/longitude
(or loran station and bearings); total hauls per area fished; average
tow time duration; pounds by species of all species landed or
discarded; dealer permit number; dealer name; date sold; port and state
landed; and vessel operator's name, signature, and operator permit
number.
(2) When to fill in the log. Fishing log reports must be filled in,
except for information required but not yet ascertainable, before
offloading has begun. All information in paragraph (b)(1) of this
section must be filled in for each fishing trip before starting the
next fishing trip.
(3) Inspection. Upon the request of an authorized officer, or an
employee of NMFS designated by the Regional Director to make such
inspections, at any time during or after a trip, owners and operators
must make immediately available for inspection the fishing log reports
currently in use, or to be submitted.
(4) Record retention. Copies of the fishing log reports must be
retained and available for review for 1 year after the date of the last
entry on the report.
(5) Submitting reports. Fishing log reports must be received or
postmarked, if mailed, within 15 days after the end of the reporting
month. Each owner will be sent forms and instructions, including the
address to which to submit reports, shortly after receipt of a Federal
Fisheries Permit. If no fishing trip is made during a month, a report
so stating must be submitted.
Sec. 655.8 Vessel identification.
(a) Vessel name. Each fishing vessel owner subject to this part
must affix permanently the vessel's name on the port and starboard
sides of the bow and, if possible, on its stern if the vessel is over
25 ft (7.6 m) in length.
(b) Official number. Each fishing vessel owner subject to this
section must display the vessel's official number on the port and
starboard sides of its deckhouse or hull, and on an appropriate weather
deck, so as to be visible from above by enforcement vessels and
aircraft if the vessel is over 25 ft (7.6 m) in length. The official
number is the U.S. Coast Guard documentation number, or the vessel's
state registration number for vessels not required to be documented
under title 46 of the United States Code.
(c) Numerals. Except as provided in paragraph (e) of this section,
the official
[[Page 14473]]
number must be permanently affixed in block arabic numerals in
contrasting color at least 18 inches (45.7 cm) in height for vessels
over 65 ft (19.8 m) in length, and at least 10 inches (25.4 cm) in
height for all other vessels over 25 ft (7.6 m) in length.
(d) Duties of owner. Any vessel owner subject to this part will:
(1) Keep the vessel's name and official number clearly legible and
in good repair; and
(2) Ensure that no part of the vessel, its rigging, its fishing
gear, or any other object obstructs the view of the official number
from any enforcement vessel or aircraft.
(e) Nonpermanent marking. Vessels carrying recreational fishing
parties on a per capita basis or by charter must use markings that meet
the above requirements, except for the requirement that they be affixed
permanently to the vessel. The nonpermanent markings must be displayed
in conformity with the above requirements when the vessel is fishing
for Atlantic mackerel, squid, or butterfish.
Sec. 655.9 Prohibitions.
(a) In addition to the general prohibitions specified in Sec. 620.7
of this chapter, it is unlawful for any person owning or operating a
vessel issued a valid Federal Atlantic mackerel, squid, or butterfish
permit under Sec. 655.4, or issued an operator permit under Sec. 655.5,
to do any of the following:
(1) Possess more than the incidental catch allowance of Loligo
squid or butterfish unless issued a moratorium permit pursuant to
Sec. 655.4(b).
(2) Use any vessel for taking, catching, harvesting, or landing of
any Atlantic mackerel, squid, or butterfish, except as provided in
Sec. 655.4(a), unless the vessel has on board a valid permit issued
under Sec. 655.4.
(3) Fail to report to the Regional Director within 15 days any
change in the information contained in the permit application for a
vessel, as specified in Sec. 655.4(m).
(4) Falsify or fail to affix and maintain vessel markings as
required by Sec. 655.8.
(5) Take, retain, or land Atlantic mackerel, squid, or butterfish
in excess of a trip allowance specified under Sec. 655.23.
(6) Take, retain, or land Atlantic mackerel, squid, or butterfish
after a total closure specified under Sec. 655.23.
(7) Make any false statement, written or oral, to an authorized
officer, concerning the taking, catching, landing, purchase, sale, or
transfer of any mackerel, squid, or butterfish.
(8) Fish with or possess nets or netting that do not meet the
minimum mesh requirement for Loligo specified in Sec. 655.25(a) or that
are modified, obstructed, or constricted, if subject to the minimum
mesh requirement, unless the nets or netting are stowed in accordance
with Sec. 655.25(b) or the vessel is fishing under an exemption
specified in Sec. 655.25(a).
(9) Sell or transfer Atlantic mackerel, squid, or butterfish to
another person for a commercial purpose, other than transport, unless
that person has a dealer permit issued under Sec. 655.6.
(10) Falsify information in order to qualify a vessel for a
moratorium permit pursuant to Sec. 655.4(b).
(11) Transfer squid, or butterfish at sea to another vessel unless
that other vessel is issued a valid moratorium permit issued pursuant
to Sec. 655.4(b) or a letter of authorization issued by the Regional
Director.
(12) Fail to comply with any measures implemented pursuant to
Sec. 655.22.
(13) Refuse to embark an observer if requested by the Regional
Director.
(14) Assault, resist, oppose, impede, harass, intimidate, or
interfere with or bar by command, impediment, threat, coercion or
refusal of reasonable assistance an observer conducting his or her
duties aboard a vessel.
(15) Carry passengers for hire while fishing commercially under a
permit issued pursuant to Sec. 655.4(b), Sec. 655.4(c), or
Sec. 655.4(d).
(16) Fail to carry on board a letter of authorization if fishing in
an experimental fishery pursuant to Sec. 655.30.
(17) Employ an operator aboard a vessel who has not been issued an
operator permit that meets the requirements of Sec. 655.5.
(b) It is unlawful for the owner and operator of a party or charter
boat issued a permit (including a moratorium permit) pursuant to
Sec. 655.4, when the boat is carrying passengers for hire, to do any of
the following:
(1) Violate any recreational fishing measures established pursuant
to Sec. 655.22(d)
(2) Sell or transfer Atlantic mackerel, squid, or butterfish to
another person for a commercial purpose.
(3) Refuse to embark an observer if requested by the Regional
Director.
(c) It is unlawful for any person to do any of the following:
(1) Possess in or harvest from the EEZ Atlantic mackerel, squid, or
butterfish unless the person is operating a vessel, other than a
recreational fishing vessel, issued a permit pursuant to Sec. 655.4,
and the permit is on board the vessel, and has not been surrendered,
revoked, or suspended.
(2) Possess nets or netting with mesh not meeting the minimum size
requirement of Sec. 655.25 that do not meet the net stowage provisions
of Sec. 655.25, if the person possesses Loligo squid harvested in or
from the EEZ.
(3) If subject to the permitting requirements in Sec. 655.4,
Sec. 655.5, or Sec. 655.6, to offload, to cause to be offloaded, sell
or buy, whether on land or at sea, as an owner, operator, dealer,
buyer, or receiver, without accurately and completely preparing and
submitting in a timely fashion the documents required by Sec. 655.7.
(4) Transfer Loligo squid or butterfish within the EEZ, unless the
vessels participating in the transfer are issued valid moratorium
permits pursuant to Sec. 655.4(b) or valid letters of authorization
pursuant to Sec. 655.29.
(5) Purchase or otherwise receive, except for transport on land,
Atlantic mackerel, squid, or butterfish from the owner or operator of a
vessel issued a permit pursuant to Sec. 655.4, unless in possession of
a valid permit issued under Sec. 655.6.
(6) Purchase or otherwise receive for a commercial purpose,
Atlantic mackerel, squid, or butterfish caught by other than a vessel
issued a permit pursuant to Sec. 655.4, unless the vessel has not been
issued a permit under this part and is fishing exclusively within the
waters under the jurisdiction of any state.
(7) Make any false statements, oral or written, to an authorized
officer concerning the catching, taking, harvesting, landing, purchase,
sale, possession, or transfer of any Atlantic mackerel, squid, or
butterfish.
(8) Fail to report to the Regional Director within 15 days any
change in information contain in the permit application.
(9) Assault, resist, impede, oppose, harass, intimidate, or
interfere with or bar by command, impediment, threat, coercion, or
refusal of reasonable assistance to an observer conducting his or her
duties aboard a vessel.
(10) Operate a vessel fishing for Atlantic mackerel, squid, or
butterfish within the EEZ, unless issued an operator permit that meets
the requirements of Sec. 655.5.
(11) Violate any other provisions of this part, the Magnuson Act,
or any regulation or permit issued under the Magnuson Act.
(d) All Atlantic mackerel and butterfish possessed on board a party
or charter boat issued a permit under Sec. 655.4 are deemed to have
been harvested from the EEZ.
(e) It is unlawful for any person to violate any terms of a letter
authorizing experimental fishing pursuant to Sec. 655.30 or to fail to
keep such letter on
[[Page 14474]]
board the vessel during the period of the experiment.
Sec. 655.10 Facilitation of enforcement.
See Sec. 620.8 of this chapter.
Sec. 655.11 Penalties.
See Sec. 620.9 of this chapter.
Subpart B--Management Measures
Sec. 655.20 Fishing year.
The fishing year is the 12-month period beginning on January 1 and
ending on December 31.
Sec. 655.21 Maximum optimum yields.
The optimum yields (OYs) specified pursuant to Sec. 655.22 during a
fishing year may not exceed the following amounts:
(a) Atlantic mackerel: That quantity of mackerel that is less than
or equal to ABC specified pursuant to Sec. 655.22;
(b) Loligo squid: 36,000 mt (79,362,000 lb);
(c) Illex squid: 30,000 mt (66,135,000 lb); and
(d) Butterfish: 16,000 mt (35,272,000 lb).
Sec. 655.22 Procedures for determining initial annual amounts.
(a) Initial annual specifications. The Atlantic Mackerel, Squid,
and Butterfish Monitoring Committee (Monitoring Committee) will meet
annually to develop specifications regarding:
(1) The initial optimum yield (IOY), domestic annual harvest (DAH),
and domestic annual processing (DAP) for the squids;
(2) The IOY, DAH, DAP and bycatch level of the total allowable
level of foreign fishing (TALFF), if any, for butterfish; and
(3) The IOY, DAH, DAP, joint venture processing (JVP), if any, and
TALFF, if any, for Atlantic mackerel.
(4) The Monitoring Committee will recommend these specifications to
the Mackerel, Squid, and Butterfish Committee (Committee) of the
Council. As a basis for establishing these specifications and
restrictions, the Monitoring Committee will review available data
pertaining to the following:
(i) Commercial and recreational landings;
(ii) Current estimates of fishing mortality;
(iii) Stock status;
(iv) The most recent estimates of recruitment;
(v) Virtual population analysis results;
(vi) Levels of noncompliance by harvesters or individual states;
(vii) Impact of size/mesh regulations;
(viii) The results of a survey of domestic processors and joint
venture operators of estimated Atlantic mackerel processing capacity
and intent to use that capacity;
(ix) The results of a survey of fishermen's trade associations of
estimated Atlantic mackerel harvesting capacity and intent to use that
capacity;
(x) Any other relevant information.
(b) Guidelines. The specifications determined pursuant to paragraph
(a) by the Monitoring Committee will be consistent with the following
guidelines:
(1) Squid. (i) The most recent biological data, including data on
discards, will be reviewed annually under the procedures specified in
paragraph (a) of this section. ABC for any fishing year is either the
maximum OY specified in Sec. 655.21, or a lower amount if stock
assessments indicate that the potential yield is less than the maximum
OY.
(ii) IOY is a modification of ABC based on social and economic
factors.
(2) Atlantic mackerel. (i) Atlantic mackerel ABC, the allowable
biological catch in U.S. waters, is derived using the following terms:
C=the estimated catch of mackerel in Canadian waters for the upcoming
fishing year; S=the mackerel spawning stock size at the beginning of
the year for which quotas are specified; and T=a spawning stock size
that must be maintained in the year following the year for which quotas
are specified, where T900,000 mt(1,984,050,000 lbs).
Consequently, ABC=S-C-T.
(ii) IOY is less than or equal to ABC and represents a modification
of ABC, based on social and economic factors.
(iii) IOY is composed of DAH and TALFF. DAH, DAP and JVP are
projected by reviewing data from sources specified in this paragraph
(a) and other relevant data including past domestic landings, projected
amounts of mackerel necessary for domestic processing and for joint
ventures during the fishing year, projected recreational landings, and
other data pertinent for such a projection. The JVP component of DAH is
the portion of DAH that domestic processors either cannot or will not
use. In addition, IOY is based on such criteria as contained in the
Magnuson Act, specifically section 201(e), and the application of the
following economic factors:
(A) Total world export potential by mackerel producing countries;
(B) Total world import demand by mackerel consuming countries;
(C) U.S. export potential based on expected U.S. harvests, expected
U.S. consumption, relative prices, exchange rates, and foreign trade
barriers;
(D) Increased/decreased revenues to the U.S. from foreign fees;
(E) Increased/decreased revenues to U.S. harvesters (with/without
joint ventures);
(F) Increased/decreased revenues to U.S. processors and exporters;
(G) Increases/decreases in U.S. harvesting productivity due to
decreases/increases in foreign harvest;
(H) Increases/decreases in U.S. processing productivity; and
(I) Potential impact of increased/decreased TALFF on foreign
purchases of U.S. products and services and U.S.-caught fish, changes
in trade barriers, technology transfer, and other considerations.
(iv) The Council may also recommend that certain ratios of TALFF to
purchases of domestic harvested fish and/or domestic processed fish be
established in relation to the initial annual amounts.
(3) Butterfish. (i) The most recent biological data, including data
on discards, will be reviewed annually under the procedures specified
in paragraph (a) of this section. If this review indicates that the
stock cannot support a level of harvest equal to the maximum OY, the
Council will recommend establishing an ABC less than the maximum OY for
the fishing year. This level represents the modification of maximum OY
to reflect biological and ecological factors. If the stock is able to
support a harvest level equivalent to the maximum OY, the ABC is to be
set at that level.
(ii) IOY is a modification of ABC based on social and economic
factors. The IOY is composed of a DAH and bycatch TALFF which is equal
to 0.08 percent of the allocated portion of the Atlantic mackerel
TALFF.
(c) Adjustments. The specifications established pursuant to this
section may be adjusted by the Regional Director, in consultation with
the Council, during the fishing year by publishing a notification in
the Federal Register stating the reasons for such an action with a 30-
day comment period.
(d) Recommended measures. Based on the review of the data described
in paragraph (a) of this section, the Monitoring Committee will
recommend to the Committee the following measures it determines are
necessary to assure that the specifications are not exceeded:
(1) Commercial quotas;
(2) The amount of Loligo squid and butterfish that may be retained,
possessed and landed by vessels issued the incidental catch permit
specified in Sec. 655.4(c);
(3) Commercial minimum fish sizes;
[[Page 14475]]
(4) Commercial trip limits;
(5) Commercial seasonal quotas;
(6) Minimum mesh sizes;
(7) Commercial gear restrictions;
(8) Recreational harvest limit;
(9) Recreational minimum fish size;
(10) Recreational possession limits;
(11) Recreational season.
(e) Annual fishing measures. (1) The Committee shall review the
recommendations of the Monitoring Committee. Based on these
recommendations and any public comment, the Committee shall make its
recommendations to the Council with respect to the specifications and
any other measures necessary to assure that the specifications are not
exceeded. The Council shall review these recommendations. Based on
these recommendations, and any public comment, the Council shall make
recommendations to the Regional Director. Included in the
recommendation will be supporting documents, as appropriate, concerning
the environmental, economic, and social impacts of the proposed action.
The Regional Director will review these recommendations, and on or
about November 1 of each year, and will publish a notification in the
Federal Register of proposed specifications and any other measures
necessary to assure that the specifications are not exceeded. If the
specifications differ from those recommended by the Council, the
reasons for any differences must be clearly stated and the revised
specifications must satisfy the criteria set forth in this section. The
Federal Register notification of proposed specifications will provide
for a 30-day public comment period.
(2) The Council's recommendations will be available for inspection
at the office of the Regional Director during the public comment
period.
(3) On or about December 15 of each year, the Secretary will make a
final determination concerning the specifications for each species and
the other measures contained in the notification of proposed
specifications. After the Secretary considers all relevant data and any
public comments, a notification of final specifications and response to
public comments will be published in the Federal Register. If the final
amounts differ from those recommended by the Council, the reason(s) for
the difference(s) must be clearly stated and the revised specifications
must be consistent with the guidelines set forth in paragraph (b) of
this section.
Sec. 655.23 Closure of the fishery.
(a) General. The Secretary shall close the directed Atlantic
mackerel, Illex squid, Loligo squid, or butterfish fishery in the EEZ
when U.S. fishermen have harvested 80 percent of the DAH, if such
closure is necessary to prevent the DAH from being exceeded. The
closure will be in effect for the remainder of the fishing year, with
incidental catches allowed as specified in paragraph (c) of this
section, until the entire DAH is attained. When the Regional Director
projects that DAH will be attained for any of the species, the
Secretary shall close the fishery in the EEZ to all fishing for that
species, and the incidental catches specified in paragraph (c) of this
section will be prohibited.
(b) Notification. The Secretary will take the following actions if
it is determined that a closure is necessary:
(1) Notify, in advance, the Executive Directors of the Mid-
Atlantic, New England, and South Atlantic Councils;
(2) Mail notifications of the closure to all holders of permits
issued under Secs. 655.4, 655.5 and 655.6 at least 72 hours before the
effective date of the closure;
(3) Provide for adequate notification of the closure to
recreational participants in the fishery; and
(4) Publish a notification of closure in the Federal Register.
(c) Incidental catches. During a period of closure of a directed
fishery, the trip limit for the species for which the fishery is closed
is 10 percent by weight of the total amount of fish on board for
vessels with Loligo/butterfish moratorium permits or Illex or mackerel
commercial permits. During a period of closure of the directed fishery
for Loligo or butterfish, the trip limit for vessels issued an
incidental catch permit for those species is 10 percent by weight of
the total amount of fish on board, or the allowed level of incidental
catch specified in Sec. 655.4(c)(1), whichever is less.
Sec. 655.24 Time and area restrictions for directed foreign fishing.
Foreign fishing is regulated under the provisions specified in
Sec. 611.50(b)(2).
Sec. 655.25 Gear restrictions.
(a) Mesh restriction and exemption. Owners or operators of otter
trawl vessels possessing Loligo squid 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 entire net
unless they are fishing during the months of June, July, August, and
September for Illex seaward of the following coordinates (see Figure 1
to part 655):
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
Point M1....................... 43 deg.58.0' N. 67 deg.22.0' W.
Point M2....................... 43 deg.50.0' N. 68 deg.35.0' W.
Point M3....................... 43 deg.30.0' N. 69 deg.40.0' W.
Point M4....................... 43 deg.20.0' N. 70 deg.00.0' W.
Point M5....................... 42 deg.45.0' N. 70 deg.10.0' W.
Point M6....................... 42 deg.13.0' N. 69 deg.55.0' W.
Point M7....................... 41 deg.00.0' N. 69 deg.00.0' W.
Point M8....................... 41 deg.45.0' N. 68 deg.15.0' W.
Point M9....................... 42 deg.10.0' N. 67 deg.10.0' W.
Point M10...................... 41 deg.18.6' N. 66 deg.24.8' W.
Point M11...................... 40 deg.55.5' N. 66 deg.38.0' W.
Point M12...................... 40 deg.45.5' N. 68 deg.00.0' W.
Point M13...................... 40 deg.37.0' N. 68 deg.00.0' W.
Point M14...................... 40 deg.30.0' N. 69 deg.00.0' W.
Point M15...................... 40 deg.22.7' N. 69 deg.00.0' W.
Point M16...................... 40 deg.18.7' N. 69 deg.40.0' W.
Point M17...................... 40 deg.21.0' N. 71 deg.03.0' W.
Point M18...................... 39 deg.41.0' N. 72 deg.32.0' W.
Point M19...................... 38 deg.47.0' N. 73 deg.11.0' W.
Point M20...................... 38 deg.04.0' N. 74 deg.06.0' W.
Point M21...................... 37 deg.08.0' N. 74 deg.46.0' W.
Point M22...................... 36 deg.00.0' N. 74 deg.52.0' W.
Point M23...................... 35 deg.45.0' N. 74 deg.53.0' W.
Point M24...................... 35 deg.28.0' N. 74 deg.52.0' W.
------------------------------------------------------------------------
Vessels fishing under this exemption may not have ``available for
immediate use,'' as described in paragraph (b) of this section, any net
with mesh size less than 1\7/8\ inches (48 mm) diamond mesh when the
vessel is landward of the specified coordinates.
(b) Net stowage requirements. Otter trawl vessels possessing Loligo
squid that are subject to the minimum mesh size may not have
``available for immediate use'' any net, or any piece of net, not
meeting the minimum mesh size requirement, or any net, or any piece of
net, with mesh that is rigged in a manner that is inconsistent with the
minimum mesh size. A net that conforms to one of the following
specifications and that can be shown not to have been in recent use, is
considered not to be ``available for immediate use'':
(1) A net stowed below deck, provided:
(i) It is located below the main working deck from which the net is
deployed and retrieved;
(ii) The towing wires, including the leg wires, are detached from
the net; and
(iii) It is fan-folded (flaked) and bound around its circumference;
or
(2) A net stowed and lashed down on deck, provided:
(i) It is fan-folded (flaked) and bound around its circumference;
(ii) It is securely fastened to the deck or rail of the vessel; and
(iii) The towing wires, including the leg wires, are detached from
the net; or
(3) A net that is on a reel and is covered and secured, provided:
[[Page 14476]]
(i) The entire surface of the net is covered with canvas or other
similar material that is securely bound;
(ii) The towing wires, including the leg wires, are detached from
the net; and
(iii) The codend is removed from the net and stored below deck; or
(4) Nets that are secured in a manner authorized in writing by the
Regional Director and published in the Federal Register.
(c) Mesh obstruction or constriction. Any combination of mesh or
liners that effectively decreases the mesh below the minimum size is
prohibited, except that a liner may be used to close the opening
created by the rings in the rearmost portion of the net, provided the
liner extends no more than 10 meshes forward of the rearmost portion of
the net.
(d) Net obstruction or constriction. The owner or operator of a
fishing vessel 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) (inside
stretch measure); Net strengtheners (covers), splitting straps and/or
bull ropes or wire may be used, provided they do not constrict the top
of the regulated portion of the net to less than an effective mesh
opening of 1\7/8\ inches (48 mm) (inside stretch measure). The ``top of
the regulated portion of the net'' means the 50 percent of the entire
regulated portion of the net which (in a hypothetical situation) would
not be in contact with the ocean bottom during a tow if the regulated
portion of the net were laid flat on the ocean floor. For the purpose
of this paragraph, head ropes shall not be considered part of the top
of the regulated portion of a trawl net. Net strengtheners (covers) may
not have an effective mesh opening of less than 4.5-inch (11.43-cm)
(inside stretch measure).
Sec. 655.26 Minimum fish sizes. [Reserved]
Sec. 655.27 Possession limits. [Reserved]
Sec. 655.28 At-sea observer coverage.
(a) The Regional Director may require observers for any vessel
holding a permit issued under Sec. 655.4.
(b) Owners of vessels selected for observer coverage must notify
the appropriate Regional or Center Director, as specified by the
Regional Director, before commencing any fishing trip that may result
in the harvest of Atlantic mackerel, Loligo squid, Illex squid, or
butterfish. Notification procedures will be specified in selection
letters to vessel owners.
(c) An owner or operator of a vessel on which a NMFS-approved
observer is embarked must:
(1) Provide accommodations and food that are equivalent to those
provided to the crew;
(2) Allow the observer access to and use of the vessel's
communications equipment and personnel upon request for the
transmission and receipt of messages related to the observer's duties;
(3) Allow the observer access to and use of the vessel's navigation
equipment and personnel upon request to determine the vessel's
position;
(4) Allow the observer free and unobstructed access to the vessel's
bridge, working decks, holding bins, weight scales, holds, and any
other space used to hold, process, weigh, or store fish; and
(5) Allow the observer to inspect and copy any records associated
with the catch and distribution of fish for that trip.
Sec. 655.29 Transfer-at-sea.
Only vessels issued a moratorium permit under Sec. 655.4(b) may
transfer Loligo or butterfish at sea. Unless authorized in writing by
the Regional Director, vessels issued an incidental catch permit under
Sec. 655.4(c) are prohibited from transferring or attempting to
transfer Loligo or butterfish from one vessel to another vessel.
Sec. 655.30 Experimental fishery.
(a) The Regional Director, in consultation with the Executive
Director of the Council, may exempt any person or vessel from the
requirements of this part for the conduct of experimental fishing
beneficial to the management of the Atlantic mackerel, squid, or
butterfish resource or fishery.
(b) The Regional Director may not grant such an exemption unless
he/she determines that the purpose, design, and administration of the
exemption is consistent with the objectives of the FMP, the provisions
of the Magnuson Act, and other applicable law, and that granting the
exemption will not:
(1) Have a detrimental effect on the Atlantic mackerel, squid, or
butterfish resource and fishery;
(2) Cause any quota to be exceeded; or
(3) Create significant enforcement problems.
(c) Each vessel participating in any exempted experimental fishing
activity is subject to all provisions of this FMP except those
necessarily relating to the purpose and nature of the exemption. The
exemption will be specified in a letter issued by the Regional Director
to each vessel participating in the exempted activity. This letter must
be carried on board the vessel seeking the benefit of such exemption.
4. Figure 1 to part 655 is added to read as follows:
BILLING CODE 3510-22-P
[[Page 14477]]
[GRAPHIC] [TIFF OMITTED] TR02AP96.000
BILLING CODE 3510-22-C
Figure 1 to Part 655--Exemption Line to Minimum Net Mesh-size
Requirement for Loligo Squid
[FR Doc. 96-7625 Filed 4-1-96; 8:45 am]
BILLING CODE 3510-22-P
