[Federal Register Volume 61, Number 247 (Monday, December 23, 1996)]
[Proposed Rules]
[Pages 67521-67524]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32389]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 951208293-6351-01; I.D. 110796F]
RIN 0648-AF01


Fisheries of the Northeastern United States; Amendment 5 to the 
Fishery Management Plan for the Atlantic Mackerel, Squid, and 
Butterfish Fisheries; Resubmitted Measures.

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS issues this proposed rule to implement three provisions 
of Amendment 5 to the Fishery Management Plan for the Atlantic 
Mackerel, Squid, and Butterfish Fisheries (FMP) that were initially 
disapproved but have been revised and resubmitted by the Mid-Atlantic 
Fishery Management Council (Council). These measures would: Revise the 
overfishing definition for Atlantic mackerel, establish criteria for a 
moratorium vessel permit for Illex squid, and establish a 5,000-lb 
(2.27-mt) incidental catch permit for Illex squid. The intent of these 
measures is to prevent

[[Page 67522]]

overfishing and to avoid overcapitalization of the domestic fleet in 
these fisheries.

DATES: Public comments must be received on or before February 3, 1997.

ADDRESSES: Comments on the proposed rule and its supporting documents 
should be sent to: Dr. Andrew A. Rosenberg, Administrator, Northeast 
Regional Office, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298. 
Mark the outside of the envelope, ``Comments on Resubmitted Amendment 5 
Atlantic Mackerel, Squid, and Butterfish.''
    Comments regarding burden-hour estimates for collection-of-
information requirements contained in this proposed rule should be sent 
to Dr. Andrew A. Rosenberg at the address above, and to the Office of 
Information and Regulatory Affairs, Office of Management and Budget 
(OMB), Washington, D.C. 20503 (Attention: NOAA Desk Officer).
    Copies of the resubmitted portion of Amendment 5 and its supporting 
documents, including its environmental assessment and regulatory impact 
review (RIR) that contain an initial regulatory flexibility analysis 
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 19904-6790.

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 Council and its Squid, Mackerel, and Butterfish (SMB) 
Committee in the early 1990's. Details concerning the development of 
Amendment 5 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, and a modification 
of the formula for arriving at the allowable biological catch (ABC) for 
Atlantic mackerel.
    The proposed rule identified specific concerns about the following 
proposed measures: (1) The moratoria entry criteria, (2) the proposal 
to constrain the 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 and the public comments received 
relative to the amendment and the proposed rule. Based upon this 
review, several provisions of Amendment 5 were found to be inconsistent 
with the national standards of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). Therefore, the 
following measures were disapproved: (1) The Illex moratorium permit, 
(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. Details concerning the disapprovals were 
provided in the final rule implementing Amendment 5, which was 
published on April 2, 1996 (61 FR 14465), and are not repeated here.
    At its June 1996 meeting, the Council revised several of the 
disapproved measures for resubmission. Management measures for an Illex 
moratorium and a cap on the ABC for Atlantic mackerel were resubmitted. 
The Council did not resubmit a measure to exempt sea herring vessels 
from the minimum mesh size for Loligo squid.

Proposed Revised Management Measures

    A revised moratorium vessel permit for Illex squid is proposed in 
the resubmitted portion of Amendment 5. A vessel would qualify for the 
permit if it landed five trips of at least 5,000 lb (2.27 mt) between 
August 13, 1981, and August 13, 1993. Additionally, a vessel that was 
under construction for, or was being rerigged for, use in the directed 
fishery for Illex on August 13, 1993, would qualify for the moratorium 
permit provided it landed five trips of at least 5,000 lb (2.27 mt) 
prior to December 31, 1994. A vessel would also be issued a moratorium 
permit if it is replacing a vessel of substantially similar harvesting 
capacity that involuntarily left the Illex fishery during the 
moratorium, and both the entering and replaced vessels are owned by the 
same person. If the Illex moratorium permit is approved, it would 
terminate at the end of the fifth year following implementation, unless 
extended by an amendment to the FMP.
    An open-access incidental catch permit for Illex squid is proposed 
that would allow the harvest of up to 5,000 lb (2.27 mt) of Illex per 
trip. This represents an increase of 2,500 lb (1.13 mt) more than the 
2,500 lb (1.13 mt) incidental catch limit that was originally proposed 
in Amendment 5. The incidental allowance for butterfish and Loligo 
squid would not be affected and remains at 2,500 lb (1.13 mt) per trip.
    The Council also submitted a revised definition of overfishing for 
Atlantic mackerel. Overfishing would be defined to occur when the 
annual catch of Atlantic mackerel exceeds the ABC for that species. In 
addition, for overfishing to be avoided, the fishing mortality rate 
associated with the expected total catch of Atlantic mackerel (defined 
as the ABC in U.S. waters plus the expected catch in Canadian waters 
for the fishing year), could not exceed F0.1, as determined by the 
most recent stock assessment conducted by the NMFS Northeast Fisheries 
Science Center. The catch or extraction rate associated with a fishing 
mortality rate of F0.1 is a fishing mortality rate determined 
annually in the specification process; the use of F0.1 as a 
measure of overfishing would allow the ABC to vary annually, depending 
on variations in stock size. F0.1 is generally considered a 
conservative, or biologically safe level of exploitation and has been 
used as a biological reference point in fisheries throughout the world. 
A spawning stock of no less than 900,000 mt of Atlantic mackerel would 
be required to be maintained at the end of each fishing year.

Classification

    NMFS has determined that this proposed rule which would implement 
the resubmitted portion of Amendment 5 is consistent with the 
resubmitted portion. However, at this time NMFS has not determined 
whether the resubmitted portion of Amendment 5 is consistent with the 
national standards, other provisions of the Magnuson-Stevens Act, and 
other applicable law. NMFS, in making that determination, will take 
into account the information, views, and comments received during the 
comment period.
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    The Council prepared an IRFA as part of the RIR, which describes 
the impact this proposed rule, if adopted, would have on small 
entities. The Council's analysis indicates that this proposed

[[Page 67523]]

rule, if implemented, could have a significant economic impact on a 
substantial number of small entities. This analysis examined the impact 
of the proposed moratorium for Illex squid on revenues earned by a 
``reference fleet.'' This term is defined as 26 vessels that landed 
Illex in 1993 in excess of the proposed 5,000-lb (2.27 mt) incidental 
catch allowance. The Council identified a total of 52 vessels that 
would qualify for the moratorium permit and then performed a 
sensitivity analysis to examine the impact on the revenues of the 
reference fleet if various levels of catch were achieved by the 
additional 26 vessels. This analysis concluded that, depending on the 
catch levels assigned to the new participating vessels, reference fleet 
revenues could increase by as much as 5.3 percent or decrease by as 
much as 10.4 percent. A copy of the RIR is available from the Council 
(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 Paperwork Reduction Act, unless that collection of 
information displays a currently valid OMB Control Number.
    This proposed rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act. This requirement has been 
approved by the OMB under Control Number 0648-0202. Public reporting 
burden for the collection of information is estimated to average 30 
minutes for an initial vessel permit application and 15 minutes for a 
vessel permit renewal request. These estimates 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 this burden estimate 
or any other aspect of the collection of information to NMFS or OMB 
(see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: December 16, 1996.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 648, Subpart 
B, is proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

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

    2. In Sec. 648.4, paragraphs (a)(5)(ii) through (a)(5)(iv) are 
redesignated as (a)(5)(iii) through (a)(5)(iv), a new paragraph 
(a)(5)(ii) is added, introductory text for paragraphs (a)(5) and 
(a)(5)(i)(A), and newly redesignated paragraphs (a)(5)(iii) and 
(a)(5)(iv) are revised to read as follows:


Sec. 648.4  Vessel permits.

    (a) * * *
    (5) Mackerel, squid, and butterfish vessels. 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 exclusive economic zone (EEZ), must have 
been issued and carry on board a valid Loligo squid and butterfish 
moratorium permit, Loligo/butterfish incidental catch permit, Illex 
squid and Atlantic mackerel 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 1996 Federal squid, mackerel, and butterfish permits and 
are not otherwise subject to permit sanctions due to enforcement 
proceedings, may fish for, possess, or land, Atlantic mackerel, squid, 
or butterfish in or from the EEZ. As of June 1, 1997, a vessel that 
fishes for, possesses, or lands Illex squid in or from the EEZ must 
have on board a valid Illex moratorium permit or squid/butterfish 
incidental catch permit, and a vessel that fishes for, possesses, or 
lands Atlantic mackerel in or from the EEZ must have on board a valid 
Atlantic mackerel permit.
    (i) Loligo squid and butterfish moratorium permit --(A) 
Eligibility. 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 (a)(5)(iii) of this section, if it 
meets any of the following criteria:
* * * * *
    (ii) Illex squid moratorium permit (Applicable for 5 years from the 
effective date of the moratorium) --(A) Eligibility. A vessel is 
eligible for a moratorium permit to fish for and retain Illex squid in 
excess of the incidental catch allowance specified in paragraph 
(a)(5)(iii) of this section, if it meets any of the following criteria:
    (1) The vessel landed and sold at least 5,000 lb (2.27 mt) of Illex 
squid on five separate trips between August 13, 1981, and August 13, 
1993;
    (2) The vessel is replacing such a vessel and meets the 
requirements of paragraph (a)(3)(i)(C) of this section; or
    (3) The vessel was under construction for, or was being rerigged 
for, use in the directed fishery for Illex squid on August 13, 1993 and 
the vessel landed and sold at least 5,000 lb (2.27 mt) of Illex squid 
on five separate trips prior to December 31, 1994.
    (B) Application/renewal restrictions. No one may apply for an 
initial Illex squid moratorium permit for a vessel after:
    (1) One year following the effective date of the final rule 
implementing the moratorium permit; or
    (2) The owner retires the vessel from the fishery.
    (C) Replacement vessels. See paragraph (a)(3)(i)(C) of this 
section.
    (D) Appeal of denial of permit. See paragraph (a)(3)(i)(D) of this 
section.
    (iii) Squid/butterfish incidental catch permit. 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, or up to 5,000 lb (2.26 mt) of 
Illex squid as an incidental catch in another directed fishery. 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. 648.21.
    (iv) Atlantic mackerel permit. Any vessel of the United States may 
obtain a permit to fish for or retain Atlantic mackerel in or from the 
EEZ.
* * * * *
    3. In Sec. 648.13, paragraph (a) is revised to read as follows:


Sec. 648.13  Transfers at sea.

    (a) Only vessels issued a Loligo and butterfish moratorium or Illex 
moratorium permit under Sec. 648.4(a)(5) and vessels issued an Atlantic 
mackerel or squid/butterfish incidental catch permit and authorized in 
writing by the Regional Director to do so, may transfer or attempt to 
transfer Loligo, Illex, or butterfish from one vessel to another 
vessel.
* * * * *
    4. In Sec. 648.14, paragraphs (p)(2) through (p)(8) are 
redesignated as (p)(3) through (p)(9), a new paragraph (p)(2) is added, 
and paragraphs (a)(75) and newly redesignated paragraph (p)(6) are 
revised to read as follows:


Sec. 648.14  Prohibitions.

    (a) * * *
    (75) Transfer Loligo, Illex, or butterfish within the EEZ, unless 
the vessels participating in the transfer have been issued a valid 
Loligo and butterfish or Illex moratorium permit and are transferring 
the species for which the vessels are permitted or have a valid squid/
butterfish incidental catch permit

[[Page 67524]]

and a letter of authorization from the Regional Director.
* * * * *
    (p) * * *
    (2) Possess more than the incidental catch allowance of Illex squid 
unless issued an Illex squid moratorium permit.
* * * * *
    (6) Transfer squid or butterfish at sea to another vessel unless 
that other vessel has been issued a valid Loligo and butterfish or 
Illex moratorium permit or a valid squid/butterfish incidental catch 
permit and a letter of authorization by the Regional Director for the 
species being transferred.
* * * * *
[FR Doc. 96-32389 Filed 12-20-96; 8:45 am]
BILLING CODE 3510-22-F