[Federal Register Volume 75, Number 47 (Thursday, March 11, 2010)]
[Rules and Regulations]
[Pages 11441-11451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5184]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 648
[Docket No.: 0907021105-0024-03]
RIN 0648-AY00
Fisheries of the Northeastern United States; Atlantic Mackerel,
Squid, and Butterfish Fisheries; Amendment 10
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS is implementing approved measures in Amendment 10 to the
Atlantic Mackerel, Squid, and Butterfish (MSB) Fishery Management Plan
(FMP). Amendment 10 was developed by the Mid-Atlantic Fishery
Management Council (Council) to bring the FMP into compliance with
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) requirements by establishing a rebuilding program that
allows the butterfish stock to rebuild and protects the long-term
health and stability of the stock; and by minimizing bycatch and the
fishing mortality of unavoidable bycatch, to the extent practicable, in
the MSB fisheries. Amendment 10 increases the minimum codend mesh size
requirement for the Loligo squid (Loligo) fishery; establishes a
butterfish rebuilding program with a
[[Page 11442]]
butterfish mortality cap for the Loligo fishery; establishes a 72-hr
trip notification requirement for the Loligo fishery; and requires an
annual assessment of the butterfish rebuilding program by the Council's
Scientific and Statistical Committee (SSC). This rule also makes minor,
technical corrections to the existing regulations.
DATES: Effective April 12, 2010, except for the following:
1. The amendments to Sec. 648.23(a)(3) introductory text and Sec.
648.23(a)(3)(i), which are effective September 13, 2010;
2. The addition of Sec. Sec. 648.21(b)(3)(iii)--(iv),
648.22(a)(5), and Sec. 648.26, which are effective January 1, 2011.
ADDRESSES: A final supplemental environmental impact statement (FSEIS)
was prepared for Amendment 10 that describes the proposed action and
other considered alternatives and provides a thorough analysis of the
impacts of the approved measures and alternatives. Copies of Amendment
10, including the FSEIS, the Regulatory Impact Review (RIR), and the
Initial Regulatory Flexibility Analysis (IRFA), are available from:
Daniel Furlong, Executive Director, Mid-Atlantic Fishery Management
Council, Room 2115, Federal Building, 300 South New Street, Dover, DE
19904-6790. The FSEIS/RIR/IRFA is accessible via the Internet at http://www.nero.nmfs.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirement contained in this
rule should be submitted to the Regional Administrator of the Northeast
Regional Office at 55 Great Republic Drive, Gloucester, MA 01930, and
by e-mail to omb.eop.gov">David_Rostker@omb.eop.gov, or fax to 202-395-7285.
FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy
Analyst, 978-281-9272, fax 978-281-9135.
SUPPLEMENTARY INFORMATION:
Background
This amendment was developed to bring the MSB FMP into compliance
with Magnuson-Stevens Act requirements by: (1) Implementing a
rebuilding program that allows the butterfish stock to rebuild, and
protects the long-term health and stability of the stock; and (2)
minimizing bycatch, and the fishing mortality of unavoidable bycatch,
to the extent practicable, in the MSB fisheries.
In February 2005, NMFS notified the Council that the butterfish
stock was overfished, which triggered Magnuson-Stevens Act requirements
to implement rebuilding measures for the stock. In response, an
amendment to the MSB FMP was initiated by the Council in October 2005.
The Council prepared a Draft Environmental Impact Statement (DEIS) to
evaluate various alternatives to rebuild butterfish and reduce bycatch,
to the extent practicable. The DEIS comment period ended June 23, 2008.
The Council held three public meetings on Amendment 10 during June
2008, and adopted Amendment 10 on October 16, 2008. The Notice of
Availability (NOA) for Amendment 10 was published on July 14, 2009 (74
FR 33986), with a comment period ending on September 14, 2009. A
proposed rule for Amendment 10 was published on September 3, 2009 (74
FR 45597), with a comment period ending on October 19, 2009. On October
9, 2009, NMFS approved Amendment 10 on behalf of the Secretary of
Commerce.
This rule implements a rebuilding program for butterfish with
measures that: Increase the minimum codend mesh requirement for the
Loligo fishery from 1\7/8\ inches (48 mm) to 2\1/8\ inches (54 mm)
during Trimesters I (Jan-Apr) and III (Sep-Dec), starting in 2010;
establish a butterfish mortality cap program for the Loligo fishery,
starting in 2011; establish a 72-hour trip notification requirement for
the Loligo fishery, to facilitate the placement of NMFS observers on
Loligo trips, starting in 2011; and require an annual assessment of the
butterfish mortality cap program by the Council's SSC and, if
necessary, implementation of additional butterfish rebuilding measures
through the annual specifications process. The proposed rule includes
detailed information about the Council's development of these measures,
and that discussion is not repeated here.
Subsequent to the development, submission and approval of Amendment
10, the 49th Northeast Regional Stock Assessment Workshop (SAW 49)
results, published in January 2010, provided updated estimates of
butterfish fishing mortality and stock biomass. The results were not
available for the Amendment 10 review and approval on October 9, 2009.
The estimates of butterfish fishing mortality and total biomass
resulting from SAW 49 are highly uncertain, and the final assessment
report states that it would be inappropriate to compare the previous
status determination criteria from SAW 38 in 2004 with the current
assessment estimates of spawning stock biomass and fishing mortality,
because measures of population abundance in the current assessment are
scaled much higher than those in the previous assessment.
The current status of the butterfish stock is unknown because
biomass reference points could not be determined in the SAW 49
assessment. Though the butterfish population appears to be declining
over time, fishing mortality does not seem to be the major cause.
Butterfish have a high natural mortality rate, and the current
estimated fishing mortality rate (F = 0.02) is well below all candidate
overfishing threshold reference points. The assessment report noted
that predation is likely an important component of the butterfish
natural mortality rate (currently assumed to be 0.8), but also noted
that estimates of consumption of butterfish by predators appear to be
very low. In short, the underlying causes for population decline are
unknown. Amendment 10 recommends that butterfish acceptable biological
catch (ABC) be derived from applying an F of 0.1 to the most current
estimate of stock biomass. In the absence of a current stock biomass
estimate and reliable estimate of natural mortality, this methodology
will need to be reconsidered when the Council's SSC next recommends a
butterfish ABC.
Despite the considerable uncertainty in the recent assessment,
there was no evidence presented that suggests that the status of the
butterfish stock has improved since the 2004 SAW 38 assessment. Thus
NMFS has the responsibility to implement measures to reduce bycatch in
MSB fisheries to the extent practicable and that promote the long-term
health and stability of the butterfish stock. The approved Amendment 10
butterfish rebuilding program and Loligo codend mesh size increase will
limit butterfish discards and promote butterfish recruitment over a
defined time period, while also reducing the bycatch and discard of
other non-target species in the Loligo fishery. These measures are
necessary to meet the objectives and requirements of the Magnuson-
Stevens Act.
Butterfish Rebuilding Program
This action establishes a 5-year butterfish rebuilding program,
extending from 2010 through 2014. In 2004, when the SAW 38 determined
that butterfish was overfished, it advised that rebuilding of the
butterfish stock will be dependent upon increases in recruitment, which
recently has been low to intermediate. Rebuilding is further
complicated because the natural mortality rate of butterfish is high,
butterfish have a short lifespan, and fishing mortality is primarily
attributed to discards (discards have been estimated to equal twice the
annual landings). Analyses have shown that the
[[Page 11443]]
primary source of butterfish discards is the Loligo fishery because of
the use of small-mesh, diamond codends (1\7/8\-inches (48-mm) minimum
codend mesh size) and the year-round, co-occurrence of butterfish and
Loligo. Likely due to the lack of a market for butterfish, and sporadic
butterfish availability, there has not been a significant butterfish
fishery since 2002 (recent annual landings have been 437-544 mt),
resulting in the discard of both butterfish juveniles and spawning
stock.
In order to rebuild the butterfish stock, a reduction of the amount
of butterfish discards and an increase in butterfish recruitment are
both necessary. This action implements measures to reduce the fishing
mortality on butterfish that occurs as the result of discards in the
Loligo fishery, which is the primary source of butterfish discard
mortality. These measures are expected to also reduce the bycatch of
other finfish species.
The Amendment 10 analyses indicate that the stock can be rebuilt by
2014. This conclusion is supported by the SSC-reviewed auto-regressive
(AR) time series model output in Amendment 10, which suggests that the
butterfish stock is able to rebuild within 1 year, provided long-term
average recruitment occurs and F is kept at 0.1. Assuming future
butterfish recruitment is similar to butterfish recruitment seen during
1968-2002, implementing the butterfish mortality cap in 2011 achieves
an 88-percent probability of at least one large recruitment event
occurring during years 2-5 of the butterfish rebuilding period.
During Year 1 (2010) of the rebuilding program, the minimum codend
mesh size requirement will increase to 2\1/8\ inches (54 mm); this rule
allows participants in the Loligo fishery 6 months to obtain the larger
mesh necessary to comply with this requirement, so the provision will
initially take effect in Trimester III. This measure allows for
increased escapement of some juvenile butterfish.
Starting in Year 2 (2011) of the rebuilding program, the butterfish
mortality cap for the Loligo fishery will be implemented to directly
control butterfish catch (landings and discards of all ages) in the
Loligo fishery, which is the primary source of butterfish fishing
mortality. This will facilitate rebuilding of the stock and protection
of the rebuilt stock. Amendment 10 recommends that, during the
rebuilding period, the butterfish quota will be set through the
specifications process, and that that butterfish ABC will be equal to
the yield associated with applying an F of 0.1 to the most current
estimate of stock biomass. As mentioned above, because the SAW 49
butterfish stock assessment did not provide a reliable estimate of
stock biomass or natural mortality, this methodology will need to be
reconsidered when the SSC recommends butterfish ABC. Once the stock is
determined to be rebuilt, ABC will be specified according to the
fishing mortality control rule currently specified in the FMP (i.e.,
the yield associated with 75 of percent FMSY). Initial
Optimum Yield (IOY), Domestic Annual Harvest (DAH), Domestic Annual
Processing (DAP) and research quota will continue to be specified as
they are currently, with DAH equaling the amount available for landings
after the deduction of estimated discards from ABC. This process may be
modified to more explicitly account for scientific and management
uncertainty in the Council's Omnibus Annual Catch Limit and
Accountability Measure Amendment, expected to be implemented in 2011.
Minimum Codend Mesh Size Increase for the Loligo Fishery
This action increases the minimum codend mesh size for otter trawl
vessels issued Federal permits to possess Loligo squid harvested in or
from the Exclusive Economic Zone (EEZ), which, with limited exceptions
not applicable here, is U.S. waters 3-200 nm from shore. By virtue of
being issued a Federal permit, such vessels are subject to this mesh
requirement irrespective of whether they fish in the EEZ or in State
waters. The minimum mesh size is increased from 1\7/8\ inches (48 mm)
to 2\1/8\ inches (54 mm) for such vessels during Trimester I (January-
April) and Trimester III (September-December). The minimum mesh size of
1\7/8\ inches (48 mm) is maintained for these vessels during Trimester
II (May-August).
Amendment 10 specifies that the Council will re-evaluate the
effects of the minimum codend mesh size increase after the measure has
been in effect for 2 years. The evaluation will involve the review of
Northeast Fisheries Observer Program (NEFOP) catch rate data, before
and after the mesh size increase, for both Loligo and non-target
species, as well as any other new scientific information (e.g., gear
selectivity information). The results of the evaluation will be used to
maintain or revise the minimum codend mesh size requirement for the
Loligo fishery through the MSB specifications process.
Butterfish Mortality Cap
The butterfish mortality cap will account for all butterfish caught
by the Loligo fishery (discards as well as landings), and will be
specified to equal 75 percent of the butterfish ABC. The remaining 25
percent of the butterfish ABC will be allocated for butterfish catch in
other fisheries, including trips landing less than 2,500 lb (1.13 mt)
of Loligo.
Harvesting in the Loligo squid fishery is currently regulated under
a commercial quota, which is allocated by trimester (Trimester I = Jan-
Apr; Trimester II = May-Aug; Trimester III = Sept-Dec). During each
trimester, if Loligo landings are projected to reach a specified level,
the directed Loligo fishery is closed, and vessels with Loligo permits
are prohibited from landing more than 2,500 lb (1.13 mt) of Loligo.
The butterfish mortality cap is also allocated by trimester, as
follows: Trimester I-65 percent; Trimester II-3.3 percent; Trimester
III-31.7 percent. This action specifies that the directed Loligo
fishery will close during Trimesters I and III, if the butterfish
mortality cap is harvested, but will not close during Trimester II.
Because the butterfish mortality cap allocated to Trimester II is
relatively small (3.3 percent of the total butterfish mortality cap)
and butterfish bycatch during Trimester II has historically been low,
closure predictions would be based on limited data. To minimize
uncertainty associated with closing the directed Loligo fishery during
Trimester II, both the butterfish catch and the butterfish mortality
cap for Trimester II are applied to Trimester III. Therefore,
operationally, the butterfish mortality caps from Trimesters II and III
are combined, such that 35 percent of the total butterfish mortality
cap is tracked during Trimester III. Additionally, any overages/
underages from the butterfish mortality cap during Trimester I apply to
Trimester III. As a precaution against exceeding the butterfish quota,
the Loligo fishery is closed when projections indicate that 80 percent
of the butterfish mortality cap for Trimester I is projected to be
caught, and/or if 90 percent of the annual total butterfish mortality
cap is projected to be harvested in Trimester III. If Trimester II
bycatch levels are high, reducing the butterfish mortality cap for
Trimester III, the Council may recommend an inseason closure mechanism
for Trimester II in future specifications.
The butterfish mortality cap will be monitored by NMFS's Northeast
Regional Fishery Statistics Office (FSO). Butterfish catch data from
observed trips with 2,500 lb (1.13 mt) or more of Loligo onboard will
be applied to Loligo landings (2,500 lb (1,134 kg) or more) in the
dealer database to calculate total
[[Page 11444]]
butterfish catch in the Loligo fishery. When butterfish catch in the
Loligo fishery is projected to reach the specified trimester closure
thresholds, the directed Loligo fishery will close. The Amendment
specifies that a weighted average of the current and previous year's
observer data will be used to monitor the butterfish catch in the
Loligo fishery. The exact projection methodology will be developed by
FSO, reviewed annually during the MSB specifications process, and be
revised as appropriate.
Trip Notification Requirement
To facilitate the placement of observers on Loligo trips, Amendment
10 establishes a trip notification requirement. In order for a vessel
to possess 2,500 lb (1.13 mt) or more of Loligo, a vessel
representative will be required to phone NMFS to request an observer at
least 72 hr prior to embarking on a fishing trip. If the vessel
representative does not make this required trip notification to NMFS,
the vessel will be prohibited from possessing or landing more than
2,500 lb (1,134 kg) of Loligo. If a vessel is selected by NMFS to carry
an observer, the vessel will be required to carry an observer (provided
an observer is available) or the vessel will be prohibited from
possessing or landing more than 2,500 lb (1,134 kg) of Loligo. If a
trip is cancelled, a vessel representative will be required to notify
NMFS of the cancelled trip (even if the vessel was not selected to
carry an observer). If a vessel representative cancels a trip after its
vessel is selected to carry an observer, that vessel will be assigned
an observer on its next trip.
Annual Assessment of Butterfish Mortality Cap
The SSC will annually review the performance of the butterfish
mortality cap program during the specification process. The items
considered by the SSC will include, but are not limited to the:
Coefficient of variation (CV) of the butterfish bycatch estimate;
estimate of butterfish mortality; and status and trends of the
butterfish stock. If the CV of the butterfish mortality estimate or
another butterfish mortality cap performance parameter is found to be
unacceptable by the SSC, NEFOP will be consulted to evaluate if
observer coverage can be increased to acceptable levels. If increasing
NEFOP coverage is not possible, the Council would next consider
implementation of an industry-funded observer program in a subsequent
action. If increased observer coverage proves impractical or
ineffective, the SSC could recommend one or more of following for the
upcoming fishing year:
(1) Modification to the Loligo quota;
(2) Modification to the butterfish quota;
(3) Increases to minimum codend mesh size for the Loligo fishery;
(4) Establishing Gear Restricted Areas (GRAs); or
(5) Establishing any measure that could be implemented via the MSB
specification process.
If the Council does not adopt the SSC recommendations, then NMFS
will implement measures through the MSB annual specifications process
to assure the rebuilding of the butterfish stock, consistent with
existing MSB regulations at Sec. 648.21(d)(2).
The butterfish mortality cap is allocated 75 percent of the
butterfish ABC, which leaves the remaining 25 percent of the butterfish
ABC to account for direct harvest and discard mortality in other
fisheries. Butterfish landings and observed discards in these fisheries
will be reviewed as part of the SSC's annual assessment of the
performance of the butterfish mortality cap program during the
specification process. If butterfish landings and observed discards in
other fisheries are found to exceed the 25-percent allocation, then the
allocation of the butterfish quota between the Loligo fishery and other
fisheries can be revised, or other measures (e.g., reduced trip limits)
can be implemented to constrain the butterfish catch in other fisheries
to 25 percent of the butterfish ABC.
Technical Corrections
This final rule also makes minor technical corrections to existing
regulations. These corrections do not revise the intent of any
regulations; they only clarify the intent of existing regulations by
correcting technical errors. In Sec. 648.48.13(a), transfer-at-sea
requirements for squid and butterfish are revised to omit references to
a mackerel permit. In Sec. 648.14(g)(2)(ii)(C), the reference to
possession allowances is corrected. In Sec. 648.21(f)(1), the
description of Loligo trimesters is corrected. Lastly, in Sec.
648.25(a), possession restrictions for mackerel is revised to omit
references to the butterfish fishery.
Comments and Responses
NMFS received two comments during the comment period relating to
the NOA, one from an environmental group and the other from an
individual. An additional five comment letters were received on the
proposed rule for Amendment 10; letters were from two environmental
groups, one industry representative, and two individuals. Several
issues that are not relevant to Amendment 10 were raised by various
commenters; only the comments relevant to Amendment 10 are addressed
below.
Comment 1: In a comment relating to the NOA, an environmental group
urged NMFS to disapprove Amendment 10 because, in its view, it does not
minimize bycatch to the extent practicable. The commenter expressed the
view that the butterfish mortality cap and increased minimum mesh size
in Amendment 10 are insufficient and do not do enough to address
bycatch of species other than butterfish. They noted that the Loligo
fishery accounts for more than 10 percent of the observed discards of
12 species, including summer flounder, scup, silver hake, red hake, and
spiny dogfish. They stated that Amendment 10 indicates that the
implementation of the GRAs would reduce discards of several of species
other than butterfish. In their view, the implementation of a larger
minimum mesh size would allow greater escapement of both squid and
finfish, while still allowing capture of both at larger sizes and the
mitigation of earlier harvest losses.
The commenters also contended that Amendment 10 fails to
demonstrate that the other bycatch reduction measures considered were
impracticable, and fails to assess the benefits of other possible
alternatives against the potential costs. They cited discussion in the
document that indicates that an increase in the minimum mesh size
requirement for the Illex fishery would have no measurable
socioeconomic impacts. They noted their view that the analysis of the
GRAs indicates a range of potential economic losses, but also concludes
that it is difficult to predict the economic impacts because of
uncertainty about the changes in fishing activity that would occur in
response to the measure (including effort shifts and the possibility
that vessels could continue to fish within the GRAs with the larger
mesh size).
The commenters questioned the meaning of the statement in the
amendment that the only way to determine practicability of the larger
minimum mesh size increases would be to evaluate the impacts of the
initial increase for 2 years because they do not understand what
information this process will yield concerning the practicability of
mesh sizes larger than 2\1/8\ inches (54 mm). They argued that a
commitment to continue to study bycatch reduction measures does not
satisfy legal requirements. They also advocated for the implementation
of the
[[Page 11445]]
butterfish mortality cap in 2010, rather than 2011.
Response 1: The points summarized above were considered when NMFS
made the decision to approve Amendment 10. The commenters, along with
other groups, raised these concerns on many occasions during the
development Amendment 10, and included them in comments submitted
during the public comment period for the DEIS. The points were
considered by the Council and responded to in the FSEIS. The Council
explained in that document that the butterfish mortality cap and
increased minimum mesh size were selected by the Council to rebuild
butterfish and reduce bycatch, while also avoiding the potential
negative revenue impacts associated with GRAs and larger minimum mesh
sizes. These include revenue loss due to Loligo escapement if a larger
minimum mesh size were to be implemented for the entire fishery, and
lost revenue related to Loligo escapement from the larger mesh sizes
imposed in the proposed GRAs.
While the measures were adopted in large part because of the
anticipated effect they will have in reducing butterfish bycatch and
rebuilding the butterfish stock, the measures will also reduce bycatch
of other species by the Loligo fishery. In particular, from 2001 to
2006, the Loligo fishery was responsible for 7, 8, 56, 31, and 10
percent of all NEFOP discards of summer flounder, scup, silver hake,
red hake and spiny dogfish, respectively. Measures that reduce fishing
effort in MSB fisheries, such as the butterfish mortality cap, are
likely to reduce all non-target species discarding. In addition,
available selectivity analyses provide evidence for increased
escapement of juvenile butterfish (less than 12 cm or 4\3/4\ inches in
length) at codend mesh sizes above the current minimum. The combination
of measures in Amendment 10 was adopted by the Council because,
combined, they have a higher potential to reduce bycatch in MSB
fisheries than the measures that would have eliminated exemptions for
Illex vessels from Loligo minimum codend mesh-size requirements and
established seasonal GRAs.
The FSEIS analysis suggests that the total or partial elimination
of the mesh-size exemption for the Illex fishery would only produce
modest reductions in bycatch and discards of juvenile butterfish. NEFOP
data show that the Illex fishery accounts for only 7 percent of annual
butterfish discards. The Council concluded that, though the measure
might only have limited impacts on the Illex fishery, the marginal
reduction in juvenile butterfish discards did not warrant the partial
or total discontinuation of the exemption.
The percentage of total bottom otter trawl butterfish discards that
occur in the proposed GRAs ranged from 16 to 36 percent. These
percentages represent the maximum amount of discard reduction that
would be associated with the GRAs; the redirection of fishing activity
to areas outside of the GRAs would also cause butterfish discards.
These reductions were found to be insufficient when compared to the
potential negative impact on vessels that use bottom otter trawl gear
in the proposed GRAs.
NMFS notes that the NOA commenter advocated contradictory positions
by seeking to have the butterfish mortality cap implemented in 2010,
but also to have the amendment disapproved. Under the Magnuson-Stevens
Act, NMFS has the authority only to approve, partially approve, or
disapprove an FMP amendment. NMFS does not have the authority to select
alternatives that were not proposed by the Council, or to modify
elements of the measures that were proposed by the Council.
Comment 2: Concerns similar to those expressed during the NOA
comment period were expressed in comments submitted by this
environmental organization on the proposed rule, and in comments
submitted by a second environmental group on the proposed rule.
Additional points made in these comments included their view that the
analysis of the alternatives that would have required a larger minimum
mesh for the Loligo fishery indicates that the Loligo fishery could be
profitably engaged in using larger mesh sizes, and they contended that
the only argument made in the amendment to the contrary is based on
statements by industry representatives that the loss of Loligo would be
substantial. In addition, they noted that the analyses in the amendment
show that the 2\1/8\-inch (54-mm) minimum mesh size is predicted to
have limited benefits to butterfish because escapement will be low.
They argue that the bycatch reduction measures in Amendment 10 violate
both the Magnuson-Stevens Act National Standard 2 requirement to use
the best scientific information available, and the National Standard 9
requirement to reduce bycatch to the extent practicable.
An individual opposed the continued use of the smaller minimum mesh
during Trimester II because most of the smaller fish and squid are
caught during this period. The industry group opposed the proposed
minimum mesh size increase on the grounds that the increase will result
in reduced efficiency of squid gear, which will translate to higher
operating costs for Loligo vessels.
Response 2: Amendment 10 does indicate that the selected minimum
codend mesh size increase (to 2\1/8\ inches (54 mm)) will be less
effective than more substantial mesh size increases in rebuilding the
butterfish stock or minimizing bycatch in the MSB fisheries. However,
given the lack of published gear studies on Loligo selectivity, the
Council decided that the best way to determine the practicability of
bycatch reduction associated with the range of mesh size alternatives
presented in Amendment 10 would be to proceed with a modest codend mesh
size increase, and then use observer data and other available
scientific information to evaluate the impacts of the mesh size
increase for 2 years. The results of the practicability assessment will
be used for subsequent decisions to lower, maintain, or raise the
minimum codend mesh size requirements for the Loligo fishery.
Amendment 10 specifies that, if the Council selected the butterfish
mortality cap for implementation, then it would not consider requiring
a minimum mesh sizes for the Loligo fishery greater than 2\1/2\ inches
(64 mm) because the butterfish mortality cap would provide the primary
protection for butterfish. The Council was concerned that the mesh size
increase would add to the economic burden imposed by the mortality cap
program; the mortality cap program alone will reduce general discarding
only when the Loligo fishery is closed. Analysis of NEFOP and Vessel
Trip Report (VTR) data suggests that nearly 40 percent of Loligo
landings are currently taken by vessels using mesh sizes 2\3/8\ inches
(60 mm) and larger, which contradicts the industry claim that larger
mesh size increases would affect the profitability of the Loligo
fishery. Industry members expressed concern throughout the development
of Amendment 10 that mesh size increases would affect the profitability
of the Loligo fishery by reducing Loligo catch for the owners of
vessels that use smaller mesh sizes.
Originally, the amendment considered a year-round minimum codend
mesh size increase for the Loligo fishery. During public comment on the
amendment, industry members commented that discards were generally low
during Trimester II. Analyses in the amendment support the industry's
belief that discards of butterfish and other finfish species were low
during Trimester II. The Loligo quota allocated
[[Page 11446]]
to Trimester II is only 17 percent of the annual quota, so even if the
mesh-size increase is not in effect for Trimester II, it is still in
effect during the harvesting of over 80 percent of the quota.
Comment 3: Both environmental groups opposed the delay in
implementation of the butterfish mortality cap to 2011, noting that
this represents additional delay in addressing the need to rebuild
butterfish. They noted that the Magnuson-Stevens Act required the
Council to develop a rebuilding plan for butterfish within a year of
the February 2005 notification that butterfish was overfished. They
noted that once the Council had missed this deadline, NMFS should have
stepped in and developed a rebuilding plan within 9 months. They
contended that the Council's statement that it wanted to use the
results of the 2009 butterfish stock assessment is not sufficient
argument because they believe that the results of the stock assessment
could be available soon enough to implement the mortality cap midyear
through the existing inseason quota adjustment provision. One group
noted that, because the rebuilding plan relies heavily on improved
recruitment, failing to protect a single favorable recruitment event
during the rebuilding period could prove disastrous.
Response 3: NMFS agrees that the Council did not develop a
rebuilding plan for butterfish within 1 year of the notification that
the stock was overfished. However, NMFS did not prepare an amendment to
institute a rebulilding plan because the Council continued to actively
work on the issue. As industry members testified on many occasions,
bycatch reduction in the Loligo fishery will require the industry to
voluntarily use fishing practices that reduce interactions with
prohibited or unwanted species. NMFS believes that it was better to
allow the Council to complete the public process for Amendment 10, than
to intervene.
As explained in Amendment 10, the butterfish mortality cap will be
implemented in the second year of the rebuilding plan (2011). The
Council had several reasons for this. First, it determined that it was
necessary in order to use information from the 2009 updated butterfish
stock assessment when setting values for the butterfish mortality cap.
The suggestion by the commenter that the new stock assessment
information could be effectively used to implement the butterfish
mortality cap during the 2010 fishing season is unrealistic,
particularly when the Council must begin to develop the 2011
specifications in June 2010. The butterfish stock was last assessed in
2003 and, using the old assessment data, the butterfish mortality cap
for the Loligo fishery in 2010 would be fairly low (approximately 580
mt for Trimester I, and 320 mt for Trimester III) and could result in
closures of the Loligo fishery. While the updated stock assessment
might result in similarly restrictive caps, the Council wanted the best
available data to serve as the basis of the cap, and NMFS agrees that
this results in implementation in 2011
The Council specified in Amendment 10 that a weighted average of
the observed butterfish catch from the current fishing year and the
prior fishing year will be used to extrapolate total butterfish catch
for comparison to the butterfish mortality cap. The Council assumed
that the Loligo fishery would be required to use the 2\1/8\-inch (54
mm) codend minimum mesh in 2010, and hoped to use that information to
monitor the fishery in 2011. Because the mesh size increase is expected
to increase the escapement of juvenile butterfish, the Council intended
for the data used to monitor the butterfish mortality cap to better
reflect the new 2\1/8\-inch (54 mm) codend mesh size requirement. NMFS
has not relied on this rationale, noting that it is necessary to
provide the industry with time to come into compliance with new gear
requirements, generally 6 months. While observer data will be available
for vessels that currently use 2\1/8\-inch (54 mm) mesh, the Council
begins developing specifications in June each year, so the amount of
data available to the Council during the development of the 2011
specifications would be limited.
Comment 4: The industry representative commented that the results
of the November 2009 SAW assessment should be finalized before moving
forward with the butterfish mortality cap provision. The commenter also
questioned several aspects of the rebuilding plan because they were not
drawn from citable sources. These included the use of the AR time
series model to forecast recruitment, and the selection of a rebuilding
target F of 0.1 for butterfish, as too conservative for a stock with a
natural mortality rate of 0.8.
Response 4: The Council selected a rebuilding F of 0.1 to
facilitate rebuilding based on analyses of stock forecasts based on
both recent and long-term butterfish recruitment trends. An F of 0.1
simulates the low level of fishing mortality experienced by butterfish
in the absence of a directed fishery and as bycatch in the Loligo
fishery. The results of the stock analyses, presented in Appendix 2 of
the FSEIS, suggest that the butterfish stock can recover in a
relatively short period if recruitment is high and mortality is kept to
a minimum. An AR model was used to project the rebuilding timeframe
because butterfish projections were not generated during the butterfish
assessment presented in SAW 38, and the model used to set reference
points in SAW 38 did not have projection capabilities. The butterfish
rebuilding program was developed by the Council's butterfish technical
team (FMAT). Models developed by the Council technical teams do not
necessarily appear in citable sources. However, the AR model was
reviewed by the Council's SSC and determined to be appropriate for
forecasting a butterfish stock rebuilding trajectory.
Comment 5: In comments on the proposed rule, both environmental
groups expressed concerns about the effectiveness of the butterfish
mortality cap provision in the absence of a requirement for real-time
monitoring through an industry-funded observer program. Neither group
supported the use of the bycatch rate from observed trips to
extrapolate overall butterfish catch for comparison to the butterfish
mortality cap. They noted that the projection methodology is not
described in the amendment, that current observer coverage levels are
much lower than SBRM levels, and that the information provided through
the low levels of observer coverage is unlikely to be sufficient to
support adjustments to calculated bycatch rates. The industry group
also expressed concern that the details of the extrapolation
methodology are not specified.
Response 5: The amendment shows that observer coverage at the same
levels as in 2004-2006 can result in CVs at or near the SBRM standard
of 30 percent. The amendment specifies that a 2-year weighted average
will be used to extrapolate butterfish catch from observed trips.
Beyond that, the specifics of the methodology will be developed by FSO,
in cooperation with Council staff and in consultation with the Council,
and will be reviewed annually during the MSB specifications process,
which also incorporates advice from the Council's SSC. The Council will
conduct an annual review of the performance of the mortality cap
program, will consult with the NEFOP to evaluate the feasibility of
increases in observer coverage if butterfish mortality estimates are
found to be unacceptable, and can consider the implementation of an
industry-funded observer program, and other measures, in subsequent
actions to ensure the success of the
[[Page 11447]]
rebuilding program. If non-representative observer data are found to
have a confounding impact on the monitoring program, the SBRM Omnibus
Amendment provides the Council with authority to implement an industry-
funded observer program and/or an observer set-aside program for MSB
fisheries through a framework adjustment.
Comment 6: Two environmental groups noted that the use of the
observer program to track butterfish catch will likely exacerbate the
``observer effect,'' meaning that the data collected by observers may
be non-representative of unobserved trips. They stated that, because
achieving the mortality cap in Trimesters I or III could shut down the
Loligo fishery, there will be pressure on the operators of observed
vessels to alter their fishing activities to minimize bycatch, without
incentive for unobserved vessels to do the same.
Response 6: NMFS agrees that it is possible that at least some
Loligo vessel operators may change their fishing behavior, effort, and
location when observers are onboard, and that data recorded on some
observed trips may not be representative of the fishery as a whole.
However, the NEFOP tries to minimize occurrence of the observer effect
by using random selection techniques while maximizing coverage of the
full fleet, and is further exploring methods to test for observer bias.
If observer bias is found to have a confounding impact on the
butterfish rebuilding program, the SBRM Omnibus Amendment would allow
the implementation of an industry-funded observer program and/or an
observer set-aside program for MSB fisheries through framework
adjustments, rather than through FMP amendments. An industry-funded
observer program could be used to increase the rate of observer
coverage to levels found appropriate for accurately estimating
butterfish bycatch. Additionally, observer set-aside programs may
actually create incentive for vessels to be observed through granting
extra quota or increasing possession limits in exchange for carrying an
observer.
Comment 7: The industry group opposed the requirement for vessel
operators to provide 72-hr advance trip notification to the NEFOP, and
believed the NEFOP could be overwhelmed with the high volume of
notification calls it would receive prior to Loligo trips. The industry
group argued that this will delay assigning observers and providing
waivers for Loligo trips, causing lost opportunities to harvest Loligo.
Response 7: NMFS finds this concern to be unwarranted. The Council
consulted with the NEFOP throughout the development of the Amendment 10
trip notification requirement. The trip notification requirement will
be instrumental in the placement of observers on Loligo trips. The
requirement was designed so that it can be implemented using existing
NMFS resources. The NEFOP currently employs similar notification
programs for other fisheries without such problems.
Comment 8: Two environmental groups opposed the allocation of 75
percent of the butterfish ABC to the Loligo fishery, because they
believed it is too high to constrain butterfish mortality. They also
commented that the remaining 25-percent allocation is too low to
account for the contribution of the directed butterfish fishery and
other fisheries to butterfish mortality.
Response 8: While the amendment notes a recent increase in the
proportion of butterfish landings made by vessels without Loligo/
butterfish permits, and a concern about monitoring the butterfish catch
on such vessels, the amendment notes that Council staff examined
several sources of data and concluded that the issue does not appear to
be major. The analysis suggests that landings by unpermitted vessels
have not increased, but, due to a decrease in landings by permitted
vessels, such landings represent a larger proportion of the total. Data
indicate that butterfish discards relate more to Loligo landings than
to butterfish landings, and that most Loligo landings are obtained
through the vessel and dealer reports required of the Loligo fishery.
The Council and its MSB Monitoring Committee will closely track the
monitoring program data to ensure that this system effectively
constrains overall mortality.
As described elsewhere in this preamble, the Council and the SSC
will consider changes to the rebuilding program as necessary to ensure
the success of the rebuilding program.
Comment 9: An environmental organization stated that, if one
purpose of the butterfish mortality cap is to provide the Loligo
industry with incentives to reduce interactions with butterfish through
the development of more selective fishing practices, then the amendment
should include a plan to collect information about gear innovations
from fisherman and incorporate such measures into future regulations.
Response 9: Amendment 10 states that, if bycatch reduction devices
are developed and peer-reviewed science concludes that they will help
reduce butterfish discarding, the Council will work to require the use
of the new gear. NMFS concludes that the amendment does not need to
contain a more specific plan in order for innovations to be
incorporated into future regulatory actions. There are few gear
specifications for the MSB fisheries other than codend mesh
requirements, hence it would be possible to incorporate many gear
innovations voluntarily. In addition, the Council and NMFS award up to
3 percent of the butterfish and Loligo quotas as research set-aside,
and requires that proposals for research set-aside grants match
Council-identified research priorities. Reduction of bycatch in MSB
fisheries will almost certainly be a research priority during the
butterfish rebuilding period.
Changes From the Proposed Rule
In Sec. 648.26, paragraph (a) is revised to include submission of
vessel permit number and trip duration in the 72-hr trip notification;
paragraph (b) is revised to state that NMFS will either assign an
observer or grant a waiver exempting the vessel from the observer
requirement within 24 hr of the vessel representative's notification of
the proposed trip, and that a vessel may not fish in excess of the
possession limits in paragraph (c) without an observer or waiver
confirmation number; and paragraph (d) is revised to state that vessels
that cancel trips that are selected for observer coverage must include
the submission of the vessel permit number in trip cancellation
notification calls.
Classification
The Administrator, Northeast Region, NMFS, determined that
Amendment 10 to the Atlantic Mackerel, Squid, and Butterfish Fishery
Management Plan is necessary for the conservation and management of the
Atlantic mackerel, squid, and butterfish fisheries and that it is
consistent with the Magnuson-Stevens Act and other applicable law.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
The Council prepared an FSEIS for Amendment 10. The FSEIS was filed
with the EPA on June 26, 2009; a notice of availability was published
on July 2, 2009 (74 FR 31733). In approving Amendment 10 on October 7,
2009, NMFS issued a ROD identifying the selected alternatives. A copy
of the ROD is available from NMFS (see ADDRESSES).
A final regulatory flexibility analysis (FRFA) was prepared. The
FRFA incorporates the IRFA, a summary of the significant issues raised
by the public comments in response to the IRFA, and NMFS responses to
those comments,
[[Page 11448]]
and a summary of the analyses completed to support the action. A copy
of this analysis is available from the Council (see ADDRESSES).
Statement of Need
The purpose of this action is to rebuild the overfished butterfish
stock and minimize, to the extent practicable, bycatch and discards in
the MSB fisheries.
A Summary of the Significant Issues Raised by the Public Comments in
Response to the IRFA, a Summary of the Assessment of the Agency of Such
Issues, and a Statement of Any Changes Made in the Proposed Rule as a
Result of Such Comments
Seven comment letters were received during the comment periods on
the NOA and proposed rule. The majority of the comments were not
specifically directed to the IRFA, but the comment from the industry
representative did reference the economic impacts of Amendment 10 on
small entities. Comments 1, 6, and 7 were directed at potential
economic impacts associated with the minimum mesh size increase, the
72-hr trip notification, and the butterfish mortality cap for the
Loligo fishery. All public comments on issues relative to the IRFA, in
which commenters expressed concern directly and indirectly about the
economic impacts of the measures in Amendment 10, are described in the
``Comments and Responses'' section of the preamble of this rule. NMFS's
assessment of the issues raised in comments and its responses is also
provided in the ``Comments and Responses'' section of the preamble of
this final rule and, therefore, are not repeated here.
Description and Estimate of Number of Small Entities To Which the Rule
Would Apply
The majority of participants in this fishery are small entities, as
only very few grossed more than $4 million annually; therefore, there
are no disproportionate economic impacts on small entities. The
measures in Amendment 10 would primarily affect vessels that
participate in the Loligo fishery. In 2009, there were 426 vessels
issued Loligo/butterfish moratorium permits. Section 10.10.14 in
Amendment 10 describes the vessels, key ports, and revenue information
for the Loligo fishery; therefore, that information is not repeated
here.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
This action requires a trip notification requirement for the Loligo
fishery. The rationale for and description of the measures is included
in the preamble of this final rule; therefore, that information is not
repeated here. The phone call to NMFS to declare a Loligo fishing trip
is expected to take less than 2 min in duration. If a vessel
representative cancels a declared fishing trip, then a trip
cancellation call to NMFS would also be required. The 426 vessels
issued Loligo permits in 2009 averaged 12 Loligo trips per year;
therefore, each of these permit holders could average about 12 calls
per year. Assuming each trip could be cancelled, permit holders could
also place an average of 12 additional calls per year. The estimated
duration of the cancellation call is expected to be less than 1 min.
The cost of these calls would vary, based on where the call originated,
but cost is expected to be minimal. This trip notification requirement
does not duplicate, overlap, or conflict with any other Federal rules.
Description of the Steps the Agency Has Taken To Minimize the
Significant Economic Impact on Small Entities Consistent With the
Stated Objectives of Applicable Statutes, Including a Statement of the
Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each One of the Other Significant
Alternatives to the Rule Considered by the Agency Which Affect the
Impact on Small Entities Was Rejected
Several of the approved measures in Amendment 10 (e.g., trip
notification, minimum mesh size increase, annual assessment of the
butterfish mortality cap program) in Amendment 10 are expected to have
economic impacts. A detailed economic analysis of the proposed
measures, as well as the non-selected alternatives, is in Section 7.5.1
of Amendment 10.
Two of the approved measures in Amendment 10 are not anticipated to
have more than minimal economic effects on MSB fishery participants.
The requirement that vessels notify NMFS 72 hr prior to embarking on a
Loligo fishing trip is an administrative measure to facilitate the
placement of observers aboard the Loligo fleet. As described
previously, the economic burden on fishery participants associated with
this measure is expected to be minimal. In addition, the annual review
of the butterfish mortality cap by the Council's SSC may result in
modifications, which will be implemented through the MSB specifications
process. The modification measure itself is also administrative and
would have only minimal economic effects on fishery participants.
Implementing a 2\1/8\ inch (54 mm) minimum codend mesh size
requirement for the Loligo fishery is expected to have larger economic
effects on fishery participants than the no action alternative
(maintaining the 1\7/8\ inches (48 mm) minimum codend mesh size
requirement), but less of an economic effect than implementing any of
the other action alternatives (minimum mesh size requirements of 2\3/8\
inches (60 mm), 2\1/2\ inches (64 mm), or 3 inches (76 mm)). The
factors considered in evaluating economic effects of the action
alternatives were the cost of replacing a codend and the loss in
revenue that may result from Loligo escapement through the larger mesh.
While the cost of replacing a codend may be substantial, fishery
participants routinely replace codends and, as such, the cost of a
codend with a larger minimum mesh size may not be a significant
additional cost. Replacing a coded can cost between $200 and $700,
depending on the size of the net; the cost of replacement codends is
not anticipated to vary by mesh size. This action is notifying fishery
participants 6 months in advance of the regulatory change and may allow
participants to plan purchases, thereby minimizing costs associated
with a replacement codend.
The loss of revenue associated with Loligo escapement is difficult
to quantify. There are no published gear studies of Loligo selectivity;
therefore quantifying the Loligo retention associated with the
different mesh sizes is difficult. Studies of other squid species
suggest that squid, like fish, are size-selected by gear. Given this,
it could be expected that economic effects associated with the mesh
size action alternatives increase with mesh size. Economic effects
associated with an increased mesh size for the Loligo fishery are
mitigated because the mesh size increase would not be in effect during
Trimester II (May-Aug). The rapid growth of Loligo may allow fishery
participants to minimize Loligo escapement by shifting fishing effort
to later in the year, when larger squid would have an increased
retention rate.
Implementing a butterfish mortality cap for the Loligo fishery has
the potential for greater economic effects on fishery participants than
the no action alternative (no butterfish mortality cap). Under the
approved action alternative, the Loligo fishery will close when the
[[Page 11449]]
butterfish mortality cap is harvested. If the Loligo fishery is closed
in response to butterfish catch before the entire Loligo fishery is
harvested, then a loss of revenue is possible. If the Loligo fishery
can be prosecuted with minimal butterfish catch and without attaining
the butterfish mortality cap, then there is no economic difference
between the no action and action alternatives. However, there may be
additional costs associated with butterfish avoidance strategies. The
potential for Loligo revenue loss would be dependent upon the size of
the butterfish mortality cap. As described previously, the butterfish
mortality cap is based on the level of butterfish abundance. As the
butterfish stock rebuilds, the mortality cap will increase and the
potential for lost Loligo revenue should decrease. When the butterfish
stock rebuilds, a directed butterfish fishery could resume, provided
discards are kept low, and would have economic benefits for fishery
participants.
Differences in the economic effects on fishery participants between
the butterfish mortality cap alternatives (butterfish mortality cap
allocated by trimester in the same proportions as the Loligo quota,
Loligo landings, or butterfish bycatch rates) are anticipated to be
minimal. However, because the approved alternative (butterfish
mortality cap based on butterfish bycatch rates) best approximates
existing fishery conditions, by considering the ratio of butterfish
caught to Loligo landed, it is anticipated that the approved
alternative will be less constraining on the Loligo fishery than the
non-selected action alternatives, which are butterfish mortality caps
based on only Loligo information. As described in Section 7.5.1 of the
amendment, if the butterfish mortality cap is based on accurate
assumptions about the size of the butterfish stock and butterfish
bycatch rates by trimester, then potential Loligo revenue loss may be
relatively small ($1.0 million), with maximum losses per vessel
averaging 0.6 percent and ranging up to 4.1 percent. If assumptions
about butterfish stock size and bycatch rates are incorrect, then
potential Loligo revenue loss may be relatively large ($15.8 million),
with maximum losses per vessel averaging 9.1 percent and ranging up to
65 percent. These ranges assume equal distribution of losses based on
distributions of landings, but vessels with access to other fisheries
may target those fisheries to mitigate lost Loligo revenue.
As a tool to minimize bycatch, Amendment 10 considered eliminating
current exemptions from Loligo minimum mesh size requirements for the
Illex fishery. There is no minimum codend mesh size requirement for
vessels retaining Illex, but there is a 1\7/8\ inch (48 mm) minimum
mesh size requirement for vessels retaining Loligo. Because squid
species can seasonally co-occur, during the months of June-September,
the Illex fishery is exempt from the Loligo minimum mesh size
requirement on the Illex fishing grounds (i.e., the area seaward of 50
fm (91.45 m) depth contour) where Loligo is less often present. Because
the Loligo fishery accounts for more bycatch than the Illex fishery,
this action maintains the current exemption to the Loligo minimum mesh
size requirement for the Illex fishery. The economic effects on fishery
participants of maintaining the no action alternative are expected to
be less than the economic effects associated with any of the action
alternatives (Illex exemption during June-August, Illex exemption
during June-July, discontinuation of Illex exemption). Similar to the
economic effects associated with the proposed increase to the minimum
mesh size for Loligo, costs to Illex fishery participants associated
with any of the action alternatives would include replacement codends
and increased harvesting effort due to Illex escapement. While the cost
of replacing a codend may be substantial, fishery participants
routinely replace codends and, as such, the cost of a codend with a
larger minimum mesh size may not be a significant additional cost.
Additionally, the rapid growth of Illex could allow fishery
participants to minimize Illex escapement by shifting effort to later
in the year, when larger squid would have an increased retention rate.
Lastly, Amendment 10 considered establishing GRAs to reduce
butterfish discards in MSB fisheries. The action alternatives included
four GRAs, to be effective during January-April, that varied by minimum
codend mesh size requirements (i.e., 3 inches (76 mm) or 3\3/4\ inches
(96 mm)) and effective area (i.e., area accounting for 50 percent or 90
percent of MSB discards). Because the GRAs are limited in temporal and
geographic scope, the Council concluded they were not a viable solution
to butterfish discarding in MSB fisheries and did not recommend
establishing butterfish GRAs (no action alternative). Establishing GRAs
would likely have resulted in shifts in the distribution of fishing
effort with biological effects that would be difficult to predict.
Based on average annual revenue from trips that would be affected by
GRAs, potential economic effects associated with the action
alternatives per vessel ranged from revenue losses of $498,000-
$559,000. However, given that fishing vessels are flexible in their
fishing practices, these losses would most likely not be fully
realized.
This final rule contains a collection-of-information requirement
subject to the Paperwork Reduction Act (PRA) and which has been
approved by OMB under control number 0648-0601. Public reporting burden
for the phone call to declare a Loligo fishing trip is estimated to
average 2 min per call per trip, and public burden for the phone call
to cancel a Loligo trip is estimated to average 1 min. Send comments
regarding these burden estimates or any other aspect of this data
collection, including suggestions for reducing the burden, to NMFS (see
ADDRESSES) and by e-mail to omb.eop.gov">David_Rostker@omb.eop.gov, or fax to 202-
395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: March 5, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR
part 648 are amended as follows:
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
0
1. The authority citation for part 902 continues to read as follows:
Authority: 44 U.S.C. 3501 et seq.
0
2. In Sec. 902.1, the table in paragraph (b) under 50 CFR is amended
by adding an entry for Sec. 648.26 to read as follows:
Sec. 902.1 OMB control number assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
[[Page 11450]]
------------------------------------------------------------------------
Current OMB control
CFR part or section where the information number (all numbers
collection requirement is located begin with 0648-)
------------------------------------------------------------------------
* * * * *
50 CFR........................................... .....................
* * * * *
648.26........................................... -0601
* * * * *
------------------------------------------------------------------------
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
3. The authority citation for part 648 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
4. 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 squid/
butterfish incidental catch permit and authorized in writing by the
Regional Administrator to do so, may transfer or attempt to transfer or
receive Loligo, Illex, or butterfish.
* * * * *
0
5. In Sec. 648.14, paragraph (g)(1)(iii) is added and paragraph
(g)(2)(ii)(C) is revised to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(g) * * *
(1) * * *
(iii) Observer requirements for Loligo fishery. Fail to comply with
any of the provisions specified in Sec. 648.26.
* * * * *
(2) * * *
(ii) * * *
(C) Take, retain, possess or land mackerel, squid, or butterfish in
excess of a possession allowance specified in Sec. 648.25.
* * * * *
0
6. In Sec. 648.21, paragraphs (a)(2) and (f)(1) are revised, and
paragraphs (b)(3)(iii) and (b)(3)(iv) are added to read as follows:
Sec. 648.21 Procedures for determining initial annual amounts.
(a) * * *
(2) IOY, including RQ, DAH, DAP, butterfish mortality cap for the
Loligo fishery, and bycatch level of the total allowable level of
foreign fishing (TALFF), if any, for butterfish, which, subject to
annual review, may be specified for a period of up to 3 years;
* * * * *
(b) * * *
(3) * * *
(iii) The butterfish mortality cap will be allocated to the Loligo
fishery as follows: Trimester I--65 percent; Trimester II--3.3 percent;
and Trimester III--31.7 percent.
(iv) Any underages of the butterfish mortality cap for Trimesters I
or II will be applied to Trimester III of the same year, and any
overages of the butterfish mortality cap for Trimesters I and II will
be applied to Trimester III of the same year.
* * * * *
(f) * * *
(1) A commercial quota will be allocated annually for Loligo squid
into trimester periods based on the following percentages: Trimester I
(January-April)--43.0 percent; Trimester II (May-August)--17.0 percent;
and Trimester III (September-December)--40.0 percent.
* * * * *
0
7. In Sec. 648.22, paragraph (a)(5) is added to read as follows:
Sec. 648.22 Closure of the fishery.
(a) * * *
(5) NMFS shall close the directed fishery in the EEZ for Loligo
when the Regional Administrator projects that 80 percent of the
butterfish mortality cap is harvested in Trimester I and/or 90 percent
of the butterfish mortality cap is harvested in Trimester III.
* * * * *
0
8. In Sec. 648.23, paragraphs (a)(3) introductory text and (a)(3)(i)
are revised to read as follows:
Sec. 648.23 Gear restrictions.
(a) * * *
(3) Owners or operators of otter trawl vessels possessing Loligo
harvested in or from the EEZ may only fish with nets having a minimum
mesh size of 2\1/8\ inches (54 mm), during Trimesters I (Jan-Apr) and
III (Sept-Dec), or 1\7/8\ inches (48 mm), during Trimester II (May-
Aug), diamond mesh, inside stretch measure, applied throughout the
codend for at least 150 continuous meshes forward of the terminus of
the net, or for codends with less than 150 meshes, the minimum mesh
size codend shall be a minimum of one-third of the net measured from
the terminus of the codend to the headrope, unless they are fishing
consistent with exceptions specified in paragraph (b) of this section.
(i) Net obstruction or constriction. Owners or operators of otter
trawl vessels fishing for and/or possessing Loligo 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 2\1/8\ inches (54 mm), during Trimesters I (Jan-
Apr) and III (Sept-Dec), or 1\7/8\ inches (48 mm), during Trimester II
(May-Aug), diamond mesh, inside stretch measure. ``Top of the regulated
portion of the net'' means the 50 percent of the entire regulated
portion of the net that would not be in contact with the ocean bottom
if, during a tow, the regulated portion of the net were laid flat on
the ocean floor. However, owners or operators of otter trawl vessels
fishing for and/or possessing Loligo may use net strengtheners
(covers), splitting straps, and/or bull ropes or wire around the entire
circumference of the codend, provided they do not have a mesh opening
of less than 4\1/2\ inches (11.43 cm) diamond mesh, inside stretch
measure. For the purposes of this requirement, head ropes are not to be
considered part of the top of the regulated portion of a trawl net.
* * * * *
0
9. In Sec. 648.25, paragraph (a) is revised to read as follows:
Sec. 648.25 Possession restrictions.
(a) Atlantic mackerel. During a closure of the directed Atlantic
mackerel fishery that occurs prior to June 1, vessels may not fish for,
possess, or land more than 20,000 lb (9.08 mt) of Atlantic mackerel per
trip at any time, and may only land Atlantic mackerel once on any
calendar day, which is defined as the 24-hr period beginning at 0001
hours and ending at 2400 hours. During a closure of the directed
fishery for mackerel that occurs on or after June 1, vessels may not
fish for, possess, or land more than 50,000 lb (22.7 mt) of Atlantic
mackerel per trip at any time, and may only land Atlantic mackerel once
on any calendar day.
* * * * *
0
10. Section 648.26 is added to subpart B to read as follows:
Sec. 648.26 Observer requirements for the Loligo fishery.
(a) A vessel issued a Loligo and butterfish moratorium permit, as
specified at Sec. 648.4(a)(5)(i), must, for the purposes of observer
deployment, have a representative provide notice to NMFS of the vessel
name, vessel permit number, contact name for coordination of observer
deployment, telephone number for contact; and the date, time, port of
departure, and approximate trip duration, at least 72 hr prior to
beginning any fishing trip, unless it complies with the possession
[[Page 11451]]
restrictions in paragraph (c) of this section.
(b) A vessel that has a representative provide notification to NMFS
as described in paragraph (a) of this section may only embark on a
Loligo trip without an observer if a vessel representative has been
notified that the vessel has received a waiver of the observer
requirement for that trip. NMFS shall notify a vessel representative
whether the vessel must carry an observer, or if a waiver has been
granted, for the specified Loligo trip, within 24 hr of the vessel
representative's notification of the prospective Loligo trip, as
specified by paragraph (a) of this section. Any request to carry an
observer may be waived by NMFS. A vessel that fishes with an observer
waiver confirmation number that does not match the Loligo trip plan
that was called in to NMFS is prohibited from fishing for, possessing,
harvesting, or landing Loligo except as specified in paragraph (c) of
this section. Confirmation numbers for trip notification calls are only
valid for 48 hr from the intended sail date.
(c) A vessel issued a Loligo and butterfish moratorium permit, as
specified at Sec. 648.4(a)(5)(i), that does not have a representative
provide the trip notification required in paragraph (a) of this section
is prohibited from fishing for, possessing, harvesting, or landing
2,500 lb (1.13 mt) or more of Loligo per trip at any time, and may only
land Loligo once on any calendar day, which is defined as the 24-hr
period beginning at 0001 hours and ending at 2400 hours.
(d) If a vessel issued a Loligo and butterfish moratorium permit,
as specified at Sec. 648.4(a)(5)(i), intends to possess, harvest, or
land 2,500 lb (1.13 mt) or more of Loligo per trip or per calendar day,
has a representative notify NMFS of an upcoming trip, is selected by
NMFS to carry an observer, and then cancels that trip, the
representative is required to provide notice to NMFS of the vessel
name, vessel permit number, contact name for coordination of observer
deployment, and telephone number for contact, and the intended date,
time, and port of departure for the cancelled trip within 72 hr of the
initial notification. In addition, if a trip selected for observer
coverage is canceled, then that vessel is required to carry an
observer, provided an observer is available, on its next trip.
[FR Doc. 2010-5184 Filed 3-10-10; 8:45 am]
BILLING CODE 3510-22-P