[Federal Register Volume 62, Number 101 (Tuesday, May 27, 1997)]
[Rules and Regulations]
[Pages 28638-28643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13817]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 951208293-7055-04; 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: Final rule.

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SUMMARY: NMFS issues this final 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 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 overfishing and to avoid overcapitalization of the 
domestic fleet in these fisheries.

DATES: Effective June 26, 1997.

ADDRESSES: Copies of Amendment 5 and its supporting documents, and the 
resubmission including the environmental assessment, regulatory impact 
review (RIR) and initial regulatory flexibility analysis (IRFA), 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 19904-
6790.
    Comments regarding the burden-hour estimates or any other aspect of 
the collection-of-information requirements contained in this rule 
should be sent to Dr. Andrew A. Rosenberg, Regional Administrator, 1 
Blackburn Dr, Gloucester, MA 01930, and the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), (Attention: 
NOAA Desk Officer), Washington, D.C. 20502.

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 were provided in the preamble to the proposed rule, which 
was published in the Federal Register on December 20, 1995 (60 FR 
65618), and are not repeated here.
    NMFS, on behalf of the Secretary of Commerce (Secretary), reviewed 
Amendment 5 in light of the administrative record underlying it and the 
public comments received relative to the amendment and the proposed 
rule. Based upon this review, the following provisions of the amendment 
were found to be inconsistent with the national standards of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) and, accordingly, were disapproved: (1) The Illex 
moratorium permit, (2) the use of long term potential catch to cap 
allowable biological catch (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 preamble to 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 permit, an increase in the allowable incidental catch of 
Illex, and a cap on Atlantic mackerel ABC were resubmitted. A proposed 
rule to implement these measures was published in the Federal Register 
on December 23, 1996 (61 FR 67521). The preamble to the proposed rule 
described the measures. Comments were accepted through February 3, 
1997. NMFS approved those measures on behalf of the Secretary on 
February 21, 1997.
    Under the final rule, a vessel will qualify for a moratorium permit 
if 5,000 lb (2.27 mt) or more of Illex were landed from it and sold on 
at least 5 trips 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, 
qualifies for a moratorium permit if 5,000 lb (2.27 mt) or more of 
Illex were landed from it and sold on at least 5 trips prior to 
December 31, 1994. The Illex moratorium will terminate at the end of 
the fifth year following implementation unless extended by an amendment 
to the FMP.
    The rule also implements an open-access incidental catch permit for 
Illex squid. The catch allowance associated with this permit is 5,000 
lb (2.27 mt) per

[[Page 28639]]

trip. This represents an increase of 2,500 lb (1.13 mt) over the 
allowance proposed in the initial submission of Amendment 5. The 
incidental allowance could be revised by the Council annually as part 
of the annual specification process.
     Finally, the rule revises the overfishing definition for Atlantic 
mackerel to restrict ABC in U.S. and Canadian waters to that quantity 
of mackerel associated with a fishing mortality rate of 
F0.1, as recommended by the Northeast Fisheries Science 
Center. The overfishing definition is otherwise unchanged, and still 
maintains the requirement that ABC be specified to maintain a spawning 
stock size of at least 900,000 mt in the year following the year for 
which specifications are being developed. Based on the most recent 
stock assessment for Atlantic mackerel (1994), this will cap ABC for 
Atlantic mackerel at 383,000 mt.

Changes From the Proposed Rule

    There are two changes from the proposed rule. Paragraph 648.4(a)(5) 
is revised to be consistent with other Northeast regulations for vessel 
permits, and the heading at
    Sec. 648.8(a)(5)(ii) is changed to read Illex squid moratorium 
permit (Applicable from July 1, 1997, until July 1, 2002.) This changes 
the effective date of the Illex moratorium permit from the previously 
proposed date of June 1, 1997, which appeared in Paragraph 648.4(a)(5) 
of the proposed regulations, to July 1, 1997. This change come as a 
result of delays in the publication of the final rule. 

Comments and Responses

    A total of four commenters provided 10 substantively different 
comments on the proposed rule to implement the resubmitted measures. 
The commenters were comprised of a representative of the East Coast 
Fisheries Federation, Inc., representatives of the States of 
Connecticut and Maine, and an individual representing Seafreeze, Ltd. 
of Rhode Island and Lund's Fisheries, Inc. of Cape May, New Jersey. One 
commenter supported the resubmitted measures for the Illex moratorium 
permit while three opposed this measure. One commenter supported the 
increase in the incidental catch allowance for Illex. One commenter 
appended several Congressional comments opposing the Illex moratorium 
permit. The substance of these comments are incorporated in other 
comments. No comments were received regarding the cap on Atlantic 
mackerel ABC.
    Comment 1: One commenter asserts that the submission violates the 
mandate in the Magnuson-Stevens Act to reduce regulatory discards since 
catches of Illex may be mixed with Loligo to as much as a 50:50 ratio 
in certain seasons. The commenter assumes that a large number of 
vessels in the Loligo/butterfish moratorium fishery will not qualify 
for the Illex moratorium fishery, and that discards of Illex in excess 
of the bycatch allowance by these Loligo moratorium vessels will be 
unacceptable.
    Response 1: The commenter bases his comment about the seasonal 
mixing of squid stocks on information supplied by an experienced 
fishing vessel captain at the August, 1996, Council meeting. The 
minutes of that meeting indicate the captain noted that by moving to a 
different area or fishing at a different time of day or both, a vessel 
operator can practically eliminate large bycatches of Illex and the 
need to discard large amounts of that species. The captain was actually 
making a point in favor of a bycatch allowance after attainment of 95 
percent of the quota, a measure proposed in Amendment 6.
    Comment 2: A commenter states that in other moratoria, the Council 
has used the landing of 1 lb (.45 kg) of the subject species during a 
time period as qualifying criteria for a moratorium permit, e.g., the 
summer flounder moratorium permit. Since the adoption of the multiple 
pound qualifying criterion for Illex and Loligo squid, the Council has 
reverted back to 1 lb (.45 kg) of landing in its scup moratorium permit 
qualifying criteria.
    Response 2: The objective of the resubmitted measures for the Illex 
moratorium permit is to prevent overcapitalization in a fishery that is 
fully-utilized. The Council estimated that a 1 lb (.45 kg) of landing 
qualifying criterion would prequalify a minimum of 295 vessels using 
the August 13, 1981, through August 13, 1993, window. The Council noted 
and NMFS concurs, that given that 19 vessels harvested approximately 
17,814 mt in 1992, which represents 94 percent of the 1997 quota for 
Illex, using a 1 lb (.45 kg) landing criterion would likely lead to 
overcapitalization and threaten the conservation of the Illex stock.
    Comment 3: A commenter estimates that 400 vessels will obtain the 
Loligo/butterfish moratorium permit. To allow 400 boats into those 
fisheries while excluding them from Illex will do nothing but place 
enormous pressure on two species while providing no ``relief valve'' in 
the third; and there will be no opportunity to take advantage of normal 
cycles and fluctuations in resource availability and market--the 
essence of the mixed-trawl fishery which the Council has pledged to 
sustain.
    Response 3: NMFS believes that those vessels which qualify for a 
Loligo/butterfish moratorium permit represent the historic and directed 
participants in the fishery. The same is true for the Illex fishery. 
The Council demonstrated that the number of vessels estimated to 
qualify for the Illex permit would have the ability to harvest in 
excess of the entire 1997 quota under certain circumstances. The 
Regulatory Impact Review prepared by the Council shows that allowing a 
large number of new vessels to prosecute this fishery could cause 
significant losses in income (8 to 10 percent) to existing harvesters 
while putting the stock in jeopardy.
    Comment 4: The NMFS letter of disapproval of February 9, 1996, 
stated that ``the measure has discriminatory effects that render the 
allocation of fishing privileges in the Illex fishery unfair and 
inequitable.'' One commenter agrees and hopes NMFS will reject this 
even-more restrictive and more discriminatory plan.
    Response 4: The letter of disapproval voiced a concern about the 
impact on vessels that routinely caught less than 5,000 lb (2.27 mt) of 
Illex per trip that would be eliminated from the fishery. The 
administrative record underlying Amendment 5 did not address these 
participants. This is the discriminatory effect that the Regional 
Administrator asked the Council to address. The administrative record 
supporting the resubmission indicated that if there were such 
participants, they were minimal and only participated in the fishery on 
an incidental basis. NMFS believes that increasing the incidental catch 
allowance to 5,000 lb (2.27 mt) for this species meets this concern.
    Comment 5: One commenter complained that until last year, vessels 
fishing from northern New England ports were unable to target this 
resource because the use of small mesh nets which were necessary to 
catch Illex squid in the quantities required to qualify for a permit 
under the proposed rule, has been prohibited in the Gulf of Maine.
    Response 5: Until April 1995, regulations in the Gulf of Maine did 
not prevent a small mesh fishery for Illex from being prosecuted under 
a number of different small mesh exemption programs which did in some 
cases include restrictions on fishing by area by season. Therefore, 
NMFS believes that vessel owners fishing in the Gulf of Maine had the 
same opportunity to qualify for an Illex moratorium permit as vessel 
owners from other areas.

[[Page 28640]]

    Comment 6: One commenter was of the opinion that the qualification 
criteria for an Illex moratorium permit unquestionably contravene some 
of the most fundamental provisions of the Magnuson-Stevens Act, most 
particularly Section 301, National Standards 4 through 6.
    Response 6: The qualification criteria are consistent with National 
Standards 4 through 6.
    National Standard 4 prohibits discrimination between residents of 
different states. The qualifying criteria for a moratorium permit are 
unrelated to the residency of an applicant. National Standard 5 
prohibits the implementation of a management measure that has economic 
allocation as its sole purpose. A moratorium using the qualifying 
criteria will prevent overcapitalization that could lead to overfishing 
of the resource. The 21st Northeast Stock Assessment Workshop (SAW 21) 
determined that the stock of Illex is currently fully-utilized and 
introduced new overfishing definitions for the squids to reduce the 
risk of overfishing these species, which new information determines 
lives for only 1 year.
    National Standard 6 requires management measures to take into 
account and allow for variations among, and contingencies in fisheries, 
fishery resources, and catches. SAW 21 recommended a maximum optimum 
yield (Max OY) of 24,000 mt for the Illex fishery. The vessels that 
will comprise the moratorium fishery will be capable of taking this 
amount, although historic catches have been below the recommended Max 
OY. This will allow the Council to set annual quotas taking into 
account a range of catches and contingencies based upon future stock 
assessments.
    Comment 7: A commenter provided several reasons for supporting the 
Illex moratorium measure. He states that the criterion is appropriate 
because it confers eligibility on participants with reasonable 
dependence on the fishery in the specified period. He states that it 
properly does not confer eligibility on vessel owners who entered the 
fishery after that period.
    Response 7: NMFS agrees.
    Comment 8: In support of the Council proposal, one commenter stated 
that a decision by NMFS to disapprove the Illex moratorium permit will 
trigger a surge in speculative over-capacity as people fish to gain 
history, thus causing a downward spiral in the industry and a shift in 
fishing behavior to derby system practices.
    Response 8: NMFS agrees.
    Comment 9: The resubmission analysis demonstrates that the Illex 
fishery is industrial in nature, with no real participation by small-
scale fishermen. The resubmission analysis (pg 14-15) states that 18 
out of 53 vessels that reported landing Illex in 1993 represented 99 
percent of the total harvest of the fishery for that year. The average 
trip landed roughly 90,000 lb (40.83 mt) and the average landings of 
the 19 vessel reference fleet was 130,000 lb (58.98 mt). Small-scale 
fishermen are simply not involved in the directed fishery because it 
occurs offshore and requires substantial investments in freezing 
capacity or refrigerated seawater system capacity. The Council 
nonetheless increased the bycatch allowance to 5,000 lb (2.27 mt) to 
ensure that the traditional dependence in the Illex fishery by small-
scale fishermen was fully accounted for.
    Response 9: NMFS agrees.
    Comment 10: One commenter observed that if the resubmission is 
disapproved and an open access fishery is permitted to continue, any 
effort by boats to diversify into the Illex fishery will now result in 
direct losses to existing Illex participants. As more vessels come into 
the fishery, the behavior patterns of the fishermen will begin to 
shift, and we will be faced with a derby-style system. If the Illex 
moratorium permit is approved, opportunities to diversify would still 
exist. Mackerel prices on the world market are good, and mackerel and 
herring both continue to be under-exploited. Vessel operators need to 
spend time and effort with the growing mackerel processing industry in 
Gloucester and New Bedford in order to develop stable markets for this 
fishery if their interest is diversification.
    Response 10: NMFS agrees.

Classification

    The Regional Administrator, Northeast Region, NMFS, determined that 
this final rule is necessary for the conservation and management of the 
Atlantic mackerel, squid, and butterfish fishery and that it is 
consistent with the Magnuson-Stevens Act and other applicable law.
    This rule has been determined to be not significant for purposes of 
E.O. 12866.
    In compliance with the Regulatory Flexibility Act (RFA), the 
Council prepared an initial regulatory flexibility analysis (IRFA) for 
the resubmitted portion of Amendment 5. The IRFA concluded that this 
rule would have a significant impact on a substantial number of small 
entities. No comments were received on the IRFA. The final regulatory 
flexibility analysis (FRFA) consists of the IRFA, the comments and 
responses in this final rule, most of which address in some way the 
public's concerns about possible effects of this rule on small 
entities, and the discussion below.
    The analysis of the impact of the moratorium on the existing 
participants in the directed Illex fishery is based on information 
available for 1993, the last year of the moratorium qualification 
period. The analysis shows that while there were 3,061 vessels issued 
the open-access vessel permit required to harvest Illex squid, only 53 
vessels landed Illex squid that year. All of the owners of these 
permitted vessels are considered small business entities. Of those 53 
vessels, only 26 vessels landed 5,000 lb (2.27 mt) or more of Illex on 
at least one trip in that year. The average number of trips for these 
vessels was 12.8 trips. Eighteen of those vessels accounted for 99% of 
the total landings. The total landings for all vessels landing any 
Illex in 1993 was 18,017 mt. However, 21 vessels accounted for 17,058 
mt of the total landings. These landings represent nearly the entire 
total allowable catch (i.e., quota) for the Illex fishery. Most of the 
vessels that were issued the open-access vessel permit caught no Illex 
at all. Therefore, it is reasonable to conclude that the economic 
reliance of these vessels on this species is non-existent. It is likely 
that the owners of these vessels hold Federal permits for other 
fisheries in which they are substantial participants and obtained the 
open-access permit to preserve the option of retaining Illex if it was 
encountered as a bycatch in these other fisheries. In light of the 
foregoing, the directed fishery consists of a relatively small number 
of vessels that land substantial quantities of Illex per vessel. This 
analysis uses the 26 vessels that landed 5,000 lb (2.27 mt) or more on 
at least one trip in 1993 as the best estimate of the existing 
participants in the directed Illex fishery. Based on the average number 
of Illex trips these vessels made in 1993 (i.e., 12.8), they easily 
qualify for a Illex moratorium permit. These 26 vessels are referred to 
as the ``reference fleet''. The other 27 vessels that also landed Illex 
squid in 1993 are referred to as the ``fringe fleet''.
    Amendment 5, as originally submitted by the Council, states that 
decreased landings of Illex from fisheries in other nations are likely 
to mean increased value for this species in future years. The value of 
Illex has been generally increasing for several years due to decreasing 
catches in other parts of the world. As a result, the U.S. Illex 
fishery would certainly attract additional

[[Page 28641]]

participants if entry is not limited. The landings data for the fishery 
demonstrate that the reference fleet is capable of taking the entire 
total quota for this species. Data for subsequent years shows that more 
vessels are entering the fleet and each vessel is taking less of the 
``pie''. Since the directed Illex fishery typically involves large 
vessels that land high volumes of Illex (the total catch for a 
reference fleet vessel in 1993 was 1,522,695 lb), each additional 
vessel participating in the directed fishery would generate a large 
amount of Illex landings, creating the potential for a rapid increase 
in overcapitalization and resultant pressure to overfish the resource. 
Since there are a total of 52 vessels noted in Table 1 of resubmitted 
Amendment 5 that would qualify for a moratorium permit, the capacity to 
harvest the entire quota is extant in the fleet that would qualify for 
a moratorium permit. It is not anticipated that there will be a sudden 
shift of the additional vessels to the directed fishery, since this 
sector of the fleet has not, to date, exhibited a great economic 
reliance on Illex. The 27 vessel in the fringe fleet in 1993 made only 
an average of 3.9 trips and landed an average of 1,155 lb of Illex per 
trip. This pattern persisted in 1994. It is reasonable to conclude that 
these vessels have Federal fisheries permits for other fisheries on 
which they are more economically dependant. Also, some of owners of 
these vessels may be deterred from entering the directed Illex fishery 
due to the cost of acquiring refrigeration equipment necessary to 
maintain the product quality demanded by on-shore processors. Because 
of these reasons, the Council concluded that there is real 
justification for a vessel permit moratorium program to control further 
expansion of the directed fishery to avoid overcapitalization and 
jeopardy to the stock. NMFS agrees.
    NMFS landings data is used in the resubmitted version of Amendment 
5 as the basis to estimate the number of vessels additional to the 
reference fleet that would qualify for a moratorium permit under 
various moratorium permit eligibility criteria including the one chosen 
by the Council and implemented by this final rule. Five eligibility 
criteria in addition to the criteria implemented by this rule (landings 
of 5,000 lbs (2.27 mt) or more of Illex on at least 5 trips from August 
13, 1981 - August 13, 1993) were evaluated. Each criterion was 
evaluated for two qualification periods: August 13, 1981 - August 13, 
1993; and August 13, 1981 - August 13, 1994. The five additional 
eligibility criteria are: (1) landings of 2,500 lbs (1.13 mt) or more 
of Illex on at least 5 trips; (2) landings of 20,000 lbs or more of 
Illex during any 30-day period; (3) landings of 5,000 lbs (2.27 mt) or 
more of Illex on at least 1 trip; (4) landings of 2,500 lbs (1.13 mt) 
or more of Illex on at least 1 trip; and (5) landings of 1 lb (.45 kg) 
or more of Illex on at least 1 trip.
    The number of vessels in addition to the 26 vessel reference fleet 
that would qualify for a moratorium permit under the qualifying 
criteria considered varies from a low of 26 under the eligibility 
criteria implemented in this rule (resulting in a qualifying fleet of 
52 vessels) to a high of 309 under an eligibility criteria of 1 lb (.45 
kg) or more of Illex landed on at least one trip between August 13, 
1981 and August 13, 1994 (resulting in a qualifying fleet of 335 
vessels).
    In order to assess the impact of this rule on small business 
entities, an examination must be made of the impact upon the revenues 
of the reference fleet under a range of assumptions about the 
participation of the additional vessels. The reference fleet comprises 
the small business entities that are the substantial participants in 
the Illex fishery and most economically reliant upon it.
    Because the qualification criteria adopted by the Council and 
implemented by this final rule would add the smallest number of 
additional vessels of all the alternatives considered, it is reasonable 
to conclude that the qualification criteria implemented by this rule 
would have the smallest economic impact upon the reference fleet of all 
the alternatives considered. This will minimize the significant 
economic impact on these small business entities while taking into 
account the factors that the Council has to consider under section 
303(b)(6) of the Magnuson-Stevens Act when limiting access to a 
fishery. The underlying analysis in the resubmitted Amendment 5 shows 
that if none of the additional qualifying vessels make any landings, 
the revenue of the reference fleet would increase 5.3% if the 1997 
quota of 19,000 mt is harvested. The increase is due to the fact that 
in 1993 total catch was only 18,017 mt. This analysis also examines a 
range of catch levels for the additional qualifying vessels and shows 
that reference fleet revenues could decrease by as much as 10.4%.
    The Illex moratorium regime that was proposed by the Council in its 
initial submission of Amendment 5 was modified for the resubmission by 
increasing the incidental catch allowance for non-moratorium vessels 
from 2,500 lbs (1.13 mt) per trip to 5,000 lbs (2.27 mt) per trip and 
by limiting the moratorium to a period of five years unless extended by 
another FMP amendment (a ``sunset provision''). The criteria for 
qualifying for a moratorium permit were not changed.
    The original moratorium regime was disapproved because it 
arbitrarily restricted vessels which have historically landed Illex in 
amounts greater than 2,500 lbs (1.13 mt) but less than 5,000 lbs (2.27 
mt) per trip to an incidental catch allowance of 2,500 lbs (1.13 mt) 
per trip. These vessels, which may have routinely caught more than the 
2,500 lbs (1.13 mt) incidental catch allowance proposed, would not 
qualify for a moratorium permit and would have had to reduce their 
landings to comply with the 2,500 lbs (1.13 mt) incidental catch 
allowance. While these vessels still will not qualify for a moratorium 
permit, the increased incidental catch allowance will allow them to 
harvest as incidental catch at least, and for most vessels, more than 
their past historical levels.
    The modified measure implemented by this rule was approved by NMFS 
because the modifications (increase in incidental catch allowance to 
5,000 lbs (2.27 mt) per trip and 5-year sunset provision) addressed the 
concerns that led to the initial disapproval. The incidental catch 
allowance of 5,000 lbs (2.27 mt) will allow sustained small vessel 
participation at or above previous historic levels. Therefore, this 
alternative compared to the original submission minimizes impacts on 
small entities that do not qualify for a moratorium permit and thus, 
cannot participate in the Illex directed fishery. Increasing the 
incidental catch allowance to 5,000 lbs (2.27 mt) per trip has no 
negative conservation effect because incidental catches are counted 
against the total quota. While this increase in the incidental catch 
allowance likely would mean that less of the quota will be available to 
those vessels qualifying for a moratorium permit, the effect on the 
qualifying fleet likely will be small, since only between 27 and 35 
non-qualifying vessels caught Illex in the 1992 through 1994 fishery 
and it is unlikely any significant number of additional vessels will 
elect to join the harvest because it is not economically feasible to 
conduct a directed Illex fishery offshore at the low volume permitted 
by the 5,000 lbs (2.27 mt) per trip limit given the price per pound for 
landed Illex and the costs incurred during a fishing trip. In all 
likelihood, raising the incidental catch amount to 5,000 lbs (2.27 mt) 
per trip will be a factor only if the Illex move

[[Page 28642]]

inshore, a phenomenon which is uncertain from year to year.
    Raising the incidental catch allowance higher than 5,000 lbs (2.27 
mt) per trip was not analyzed since the 5,000 lbs limit eliminated the 
arbitrary restriction discussed above. However, as the limit is raised 
higher and higher more and more vessels could be lured into the 
incidental catch fishery with consequent negative economic impacts on 
participants in the directed fishery as the share available to them was 
reduced. This would unjustly benefit new participants in the incidental 
catch fishery at the expense of directed fishery participants with a 
historic economic reliance on this species.
    The sunset provision submitted as part of the Council's 
resubmission will require the Council to examine capacity in the 
fishery over the five-year moratorium period. Should the Council 
determine that extension of the moratorium is necessary, an amendment, 
including the analyses required by the Magnuson-Stevens and Regulatory 
Flexibility Acts, will be required.
    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 (PRA), unless that 
collection of information displays a currently valid OMB control 
number.
    This rule contains a collection-of-information requirement subject 
to the PRA. 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.
    The estimated response times include the time needed for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Public comment is sought regarding: Whether 
this collection of information is necessary for the proper performance 
of the functions of the agency, including whether the information has 
practical utility; the accuracy of the burden estimate; ways to enhance 
the quality, utility, and clarity of the information to be collected; 
and ways to minimize the burden of the collection of information, 
including through the use of automated collection techniques or other 
forms of information technology. Send comments regarding burden 
estimates or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: May 21, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Services.
    For the reasons set out in the preamble, 50 CFR part 648, Subpart 
B, is amended as follows:

PART 648--FISHERIES OF 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)(v), 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 - Any vessel of the 
United States, including party and charter vessels, must have been 
issued and carry on board a valid vessel permit to fish for, possess, 
or land Atlantic mackerel, squid, or butterfish in or from the EEZ.
    (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 from July 1, 1997, 
until July 1, 2002.)
    (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 5,000 lb (2.27 mt) or more of Illex 
squid on at least 5 separate trips between August 13, 1981, and August 
13, 1993; or
    (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 5,000 lb (2.27 mt) or more of Illex 
squid on at least 5 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) June 26, 1998; 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 (2.27 mt) of 
Illex squid, as an incidental catch in another directed fishery. The 
incidental catch allowance may be revised by the Regional Administrator 
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 a mackerel 
or squid/butterfish incidental catch permit and authorized in writing 
by the Regional Administrator 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:


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 and a letter of authorization from 
the Regional Administrator.
* * * * *
    (p) * * *
    (2) Possess more than the incidental catch allowance of Illex squid 
unless

[[Page 28643]]

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 and are transferring the species for which the 
vessel is permitted or a valid squid/butterfish incidental catch permit 
and a letter of authorization by the Regional Administrator.
* * * * *
[FR Doc. 97-13817 Filed 5-23-97; 8:45 am]
BILLING CODE 3510-22-F