[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 <a href="/cdn-cgi/l/email-protection#0d496c7b6469525f627e7966687f4d316c2d657f686b30" http: omb.eop.gov">omb.eop.gov</a>">David_Rostker@omb.eop.gov</a>, 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 F<INF>MSY</INF>). 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 <a href="/cdn-cgi/l/email-protection#024663746b665d506d7176696770423e63226a7067643f" http: omb.eop.gov">omb.eop.gov</a>">David_Rostker@omb.eop.gov</a>, 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


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