Atlantic Mackerel, Squid, and Butterfish Fisheries; Amendment 5

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