[Federal Register Volume 74, Number 170 (Thursday, September 3, 2009)]
[Proposed Rules]
[Pages 45597-45605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21322]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 0907021105-91234-02]
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: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement 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 permanently 
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 would 
increase the minimum codend mesh size requirement for the Loligo squid 
(Loligo) fishery; establish a butterfish rebuilding program with a 
butterfish mortality cap for the Loligo fishery; establish a 72-hr trip 
notification requirement for the Loligo fishery; and require an annual 
assessment of the butterfish rebuilding program by the Council's 
Scientific and Statistical Committee (SSC). This proposed rule would 
also make minor, technical corrections to existing regulations.

DATES: Public comments must be received no later than 5 p.m., eastern 
standard time, on October 19, 2009.

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 proposed 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.
    You may submit comments on this proposed rule, identified by RIN 
0648-AY00, by any one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal e-Rulemaking portal http://www.regulations.gov;
    <bullet> Fax: (978) 281-9135, Attn: Carrie Nordeen;
    <bullet> Mail to Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 
01930. Mark the outside of the envelope ``Comments on MSB Amendment 
10.''
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (e.g., name, address) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit confidential business information or otherwise sensitive or 
protected information. NMFS will accept anonymous comments (enter N/A 
in the required fields if you wish to remain anonymous). Attachments to 
electronic comments will be accepted in Microsoft Word, Excel, 
WordPerfect, or Adobe PDF formats only.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS, Northeast Regional Office and 
to David Rostker by e-mail <a href="/cdn-cgi/l/email-protection#367257405f5269645945425d534476595b541853594618515940"><span class="__cf_email__" data-cfemail="6d290c1b0409323f021e1906081f2d02000f4308021d430a021b">[email protected]</span></a> or fax (202) 395-
7285.

FOR FURTHER INFORMATION CONTACT: Carrie Nordeen, Fishery Policy 
Analyst, 978-281-9272, fax 978-281-9135.

SUPPLEMENTARY INFORMATION:

Background

    This amendment is needed to bring the MSB FMP into compliance with

[[Page 45598]]

Magnuson-Stevens Act requirements by: (1) Implementing a rebuilding 
program that allows the butterfish stock to rebuild, and permanently 
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. 
Management measures for rebuilding butterfish are designed to reduce 
the fishing mortality on butterfish that occurs through discarding of 
butterfish caught in other directed fisheries, which is the primary 
source of butterfish fishing mortality. Measures that reduce the 
discarding of butterfish are expected to also reduce the bycatch of 
other finfish species in MSB fisheries.
    Initially, Amendment 9 to the MSB FMP was intended to bring the MSB 
FMP into compliance with Magnuson-Stevens Act bycatch requirements, and 
contained several management alternatives to address deficiencies in 
the FMP that related to discarding, especially as they affected 
butterfish. Amendment 9 considered management measures to reduce 
finfish discards by MSB fisheries by implementing mesh size increases 
in the directed Loligo fishery, removing mesh size exemptions for the 
directed Illex squid (Illex) fishery, and establishing seasonal gear 
restricted areas (GRAs). However, those specific management 
alternatives were developed in 2004, prior to the butterfish stock 
being declared overfished. On June 13, 2007, the Council recommended 
that all management measures developed as part of Amendment 9 to 
correct deficiencies in the FMP related to bycatch of finfish, 
especially butterfish, be considered in Amendment 10. Accordingly, no 
action was taken in Amendment 9 to address bycatch, and these 
alternatives were evaluated in Amendment 10.
    The Council held three public meetings on Amendment 10 during June 
2008. Following the public comment period that ended on June 23, 2008, 
the Council adopted Amendment 10 on October 16, 2008.
    This action proposes management measures that were recommended by 
the Council as part of Amendment 10. If implemented, these management 
measures would:
    <bullet> Establish a minimum mesh size increase to 2-1/8 inches (54 
mm) (from 1-7/8 inches (48 mm)) for the Loligo fishery during 
Trimesters I (Jan - Apr) and III (Sep - Dec), starting in 2010;
    <bullet> Establish a butterfish mortality cap program for the 
Loligo fishery, starting in 2011;
    <bullet> Establish a 72-hr trip notification requirement for the 
Loligo fishery, to facilitate the placement of NMFS observers on Loligo 
trips, starting in 2011; and
    <bullet> 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.
    A Notice of Availability (NOA) for Amendment 10 was published on 
July 14, 2009. The comment period on Amendment 10 ends on September 14, 
2009.

Proposed Measures

Minimum Codend Mesh Size Increase for the Loligo Fishery

    The Magnuson-Stevens Act requires that conservation and management 
measures, to the extent practicable, minimize bycatch, and to the 
extent that bycatch cannot be avoided, minimize the mortality of such 
bycatch. Of the three active MSB fisheries (i.e., Loligo, Illex, and 
Atlantic mackerel), the discarding of non-target species, especially 
butterfish, is highest in the Loligo fishery. During 2001-2006, the 
Loligo fishery was responsible for the following percentages of 
observed discards: 68 percent of butterfish, 8 percent of scup, 56 
percent of silver hake, 31 percent of red hake, 10 percent of spiny 
dogfish, 8 percent of striped bass, and 7 percent of summer flounder. 
To bring the MSB FMP into compliance with Magnuson-Stevens Act bycatch 
requirements, Amendment 10 considered minimum codend mesh size 
increases for the Loligo fishery from 1-7/8 inches (48 mm) to a range 
from 2-1/8 inches (54 mm) to 3 inches (76 mm).
    Amendment 10 indicates that increases to Loligo codend mesh size 
would increase escapement of most non-target species in proportion to 
the size of the mesh increase. Increases in escapement of non-target 
species ultimately reduces discarding of non-target species. The 
largest reduction in bycatch would come from increasing the minimum 
mesh size to 3 inches (76 mm); less bycatch reduction would result from 
smaller mesh size increases (either 2-1/8 inches (54 mm) or 2-1/2 
inches (64 mm)), or an increase that is only in effect for part of the 
year. Increased harvest effort to compensate for increased escapement 
of Loligo through the larger mesh is a potential effect of increasing 
mesh size, and has the potential to increase with mesh size.
    Certain characteristics of the trawl gear used in the Loligo 
fishery result in an effective mesh size that is actually smaller than 
the specified codend mesh size. The codend's diamond-shaped mesh 
becomes constricted when towed under load stress and reduces the 
effective mesh size of the gear. Additionally, the cover (minium mesh 
size of 4-1/2 inches (11.43 cm)) used to strengthen the codend in this 
volume fishery creates a masking effect and may further reduce the 
effective mesh size. While the Loligo codend mesh size increase was 
originally proposed for general bycatch reduction in the MSB fisheries, 
a minimum codend mesh size increase could also aid in rebuilding the 
butterfish stock.
    There are no published gear studies of Loligo selectivity; 
therefore, quantifying the Loligo retention effects associated with the 
different mesh sizes is difficult. Studies of other squid species 
suggest that squid, like fish, are size-selected by gear. However, 
Loligo growth studies suggest that Loligo retention has the potential 
to increase during the year, due to the rapid growth rate of squid. If 
Loligo escapement occurs, survival rates are unknown. As long as 
significant escapement mortality does not occur, increasing codend mesh 
size in the Loligo fishery is not anticipated to increase the harvest 
mortality on the Loligo stock, because harvesting would continue to be 
controlled by trimester quotas. Amendment 10 proposes a minimum codend 
mesh size increase for the Loligo fishery from 1-7/8 inches (48 mm) to 
2-1/8 inches (54 mm). Of the mesh sizes considered in the amendment, a 
minimum mesh size increase to 2-1/8 inches (54 mm) is anticipated to 
result in the least additional escapement of bycatch and Loligo. 
However, larger mesh size increases were deemed impracticable by the 
Council.
    When evaluating the effect of a Loligo minimum codend mesh size 
increase on butterfish rebuilding, the amendment concludes that only a 
codend mesh size increase to 3 inches (76 mm) would provide for 
escapement of juvenile butterfish and a portion of the spawning stock. 
Codend mesh size increases to less than 3 inches (76 mm) would 
facilitate escapement of some juvenile butterfish, but not many of the 
spawning stock. Therefore, as a stand-alone measure, a minimum codend 
mesh size increase to 2-1/8 inches (54 mm) for the Loligo fishery would 
be less

[[Page 45599]]

likely to both enable butterfish rebuilding and ensure the long-term 
sustainability of the butterfish resource, as compared to a minimum 
mesh size increase to 3 inches (76 mm).
    Originally, the amendment considered a year-round minimum codend 
mesh size increase for the Loligo fishery. During public comment on the 
amendment, industry members expressed concern that economic effects 
associated with additional harvest effort due to a minimum codend mesh 
size increase during Trimester II (May-August) could be high because of 
Loligo's reduced body size during that period, following summer 
spawning. Additionally, industry members commented that discarding was 
generally low during Trimester II. Analyses in the amendment support 
the industry's beliefs that discarding of butterfish and other finfish 
is low during Trimester II. For these reasons, Amendment 10 proposes 
that the minimum mesh size increase for the Loligo fishery only be in 
effect for Trimesters I and III. The Loligo quota allocated to 
Trimester II is only 17 percent of the annual quota, so even if the 
mesh size increase would not be in effect for Trimester II, it would 
still be in effect during the harvesting of over 80 percent of the 
quota.
    Given the lack of gear selectivity information on Loligo, Amendment 
10 proposes that the best way to comply with the Magnuson-Stevens Act 
requirement to minimize bycatch in MSB fisheries, to the extent 
practicable, is to proceed with a modest codend mesh size increase and 
then re-evaluate the effects of the minimum codend mesh size increase 
after the measure has been effective for 2 years. The evaluation would 
examine 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 would be used 
to maintain or revise minimum codend mesh size requirements for the 
Loligo fishery through the MSB specifications process.

Butterfish Rebuilding Program

Status of the Butterfish Stock
    In 2004, the 38th Northeast Regional Stock Assessment Workshop 
(SAW-38) provided estimates of butterfish fishing mortality and stock 
biomass estimates through 2002, and determined that butterfish was 
overfished. Although the butterfish assessment stock size estimate was 
highly imprecise (80 percent confidence interval ranged from 2,600 mt 
to 10,900 mt), the overfished determination was based on the fact that 
the 2002 biomass estimate for butterfish (7,800 mt) was below the 
threshold level defining the stock as overfished (\1/2\ B<INF>MSY</INF> 
=11,400 mt). The next butterfish stock assessment is scheduled for 
November 2009.
    SAW-38 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 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.
Butterfish Rebuilding Projections
    The Amendment 10 Fishery Management Action Team (FMAT) attempted to 
update the model used in the SAW-38 stock assessment to estimate 
recruitment and stock rebuilding for butterfish. However, because of 
limited data on the age composition of butterfish catch from 2002 to 
present, due to the absence of a directed fishery, it was not possible 
to update the model. Therefore, in consultation with the Council's SSC, 
the FMAT used an auto-regressive (AR) time-series model to forecast 
recruitment biomass for stock recovery. The AR model was used to 
forecast recruit biomass during 2007-2016; these forecasted recruitment 
data were used in a projection to determine if and when the butterfish 
stock would rebuild. To simulate a bycatch-only fishery (i.e., minimal 
directed fishing, discards as the primary source of fishing mortality), 
a fishing mortality rate (F) of 0.1 was found appropriate to project 
the biomass of butterfish during 2005-2016. Using an F of 0.1, and an 
estimate of long-term average recruitment, results from the AR model 
indicated that the butterfish stock could rebuild to above BMSY (22,800 
mt) in 2007, and remain above the target level of BMSY during 2007-
2016. While these projections suggest that the butterfish stock can 
rebuild quickly, they do not represent stock status and, like the SAW-
38 butterfish stock biomass estimate, the projection estimates are 
likely highly imprecise.
Determination of Butterfish Quotas
    The rebuilding program proposed in Amendment 10 specifies that, 
during the rebuilding period, quotas would be set through the 
specifications process and would conform to the following control rule: 
Allowable Biological Catch (ABC) would equal the yield associated with 
applying an F of 0.1 to the most current estimate of stock biomass. 
Butterfish stock status determinations and reference points status 
would be determined periodically through the SAW process. During years 
without updated SAW assessments, butterfish stock biomass would be 
annually estimated during the specifications process by updating the 
stock assessment model with current year data, including Northeast 
Fisheries Science Center survey data, NEFOP data, and landings data. 
The process for annually estimating the butterfish stock biomass would 
be documented in a technical summary report. Once the stock is 
determined to be rebuilt, ABC would be specified according to the 
fishing mortality control rule currently specified in the FMP (i.e., 
the yield associated with 75 percent FMSY). Initial Optimum Yield 
(IOY), Domestic Annual Harvesting (DAH) and Domestic Annual Processing 
(DAP) would 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.
Butterfish Mortality Cap
    As described previously, there has been no significant butterfish 
fishery since 2002. In the absence of a directed fishery, butterfish 
fishing mortality is primarily the result of discarding in other 
fisheries. The year-round co-occurrence of Loligo and butterfish 
results in over half of all observed butterfish discards occurring in 
the Loligo fishery. For this reason, Amendment 10 proposes that a 
mortality cap be set to control the amount of butterfish fishing 
mortality in

[[Page 45600]]

the Loligo fishery. Because the butterfish mortality cap would account 
for all butterfish caught by the Loligo fishery (discards as well as 
landings), the mortality cap is specified to equal 75 percent of the 
butterfish ABC. The remaining 25 percent of the butterfish ABC would 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 (Jan-Apr; May-Aug; 
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 proposed in 
Amendment 10 would also require the closure of the directed Loligo 
fishery if the butterfish mortality cap is attained.
    Amendment 10 indicates that the butterfish mortality cap would 
limit the fishing mortality on butterfish spawning stock and juveniles, 
thereby improving the likelihood of increasing recruitment and 
rebuilding and maintaining the butterfish stock. The amendment also 
concludes that the butterfish mortality cap for the Loligo fishery is 
the most effective measure to rebuild the butterfish stock, as it is 
currently the only way to directly control butterfish fishing mortality 
and allow for the reduction in butterfish bycatch that will promote 
rebuilding of the stock.
    In addition to being an effective rebuilding measure for the 
butterfish stock, the butterfish mortality cap would provide the Loligo 
industry with incentives to reduce interactions with butterfish. During 
the development of Amendment 10, industry advisors indicated that they 
are able to prosecute the Loligo fishery with minimal associated 
bycatch of butterfish. Should modified fishing practices reduce 
interactions between the Loligo fishery and butterfish, then Loligo 
harvest may only be minimally affected by the butterfish mortality cap.
    Since the Loligo quota is allocated by trimester, Amendment 10 
proposes that the butterfish mortality cap for the Loligo fishery also 
be allocated by trimester. Observer data would be used to allocate the 
butterfish mortality cap to the trimesters based on butterfish bycatch 
rates in the Loligo fishery. Therefore, the butterfish mortality cap 
would be allocated to the Loligo fishery as follows: Trimester I - 65 
percent; Trimester II - 3.3 percent; Trimester III - 31.7 percent.
    Originally, Amendment 10 proposed that butterfish mortality caps 
would be monitored during all three Loligo trimesters, with closures of 
the Loligo fishery if the mortality cap was projected to be attained. 
However, based on input during public hearings, the Council modified 
this provision in Amendment 10. Amendment 10 would close the directed 
Loligo fishery during Trimesters I and III, if the butterfish mortality 
cap was harvested, but would 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 and would be variable. To 
minimize uncertainty associated with closing the directed Loligo 
fishery during Trimester II, Amendment 10 proposes that the butterfish 
mortality cap be tracked during Trimester II, but that butterfish catch 
and the mortality cap for Trimester II be applied to Trimester III. 
Therefore, operationally, the butterfish mortality caps from Trimesters 
II and III would be combined, such that 35 percent of the total 
butterfish morality cap would be tracked during Trimester III. 
Additionally, any overages/underages from the butterfish mortality cap 
during Trimester I would be applied to Trimester III. As a precaution 
against exceeding the butterfish quota, Amendment 10 also proposes that 
closure thresholds be established for the butterfish mortality cap by 
trimester. Therefore, closures of the directed Loligo fishery would 
occur if 80 percent of the butterfish mortality cap for Trimester I was 
projected to be harvested, and/or if 90 percent of the cap for 
Trimester III was projected to be harvested. If Trimester II bycatch 
levels are high, reducing the butterfish mortality cap for Trimester 
III, the Council could recommend the in-season closure mechanism for 
Trimester II in future specifications. Exempting the Loligo fishery 
from a closure in response to butterfish bycatch during Trimester II is 
not expected to undermine the butterfish rebuilding program's ability 
to control the fishing mortality of butterfish, because all bycatch is 
tracked and applied to the butterfish mortality cap for Trimester III. 
As such, there should be no negative biological impacts related to the 
modification of this measure.
    The butterfish mortality cap will be monitored by NMFS's 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 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 would close. 
The exact projection methodology will be developed by FSO, reviewed 
annually during the MSB specifications process, and be revised as 
appropriate.
    While an industry-funded observer program was considered by the 
Council, analyses in Amendment 10 demonstrate that status quo levels of 
observer coverage would be sufficient for the purpose of administering 
the butterfish mortality cap. To facilitate the placement of observers 
on Loligo trips, Amendment 10 proposes a trip notification requirement. 
In order for a vessel to possess 2,500 lb (1.13 mt) or more of Loligo, 
a vessel representative would be required to phone NMFS to request an 
observer at least 72 hrs prior to embarking on a fishing trip. If the 
vessel representative does not make this required trip notification to 
NMFS, the vessel would 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 would be required to carry an observer 
(provided an observer is available) or the vessel would be prohibited 
from possessing or landing more than 2,500 lb (1,134 kg) of Loligo. If 
a trip is cancelled, a vessel representative would 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 was selected to carry an observer, that vessel would be 
assigned an observer on its next trip.
    The SSC would annually review the performance of the butterfish 
mortality cap program during the specification process. The items 
considered by the SSC would include, but arenot limited to the: 
Coefficient of variation (CV) of the butterfish bycatch estimate; 
estimate of butterfish mortality; and status and trend 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 could 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

[[Page 45601]]

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 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 
would implement measures through the MSB annual specifications process 
to assure the rebuilding of the butterfish stock, consistent with 
existing MSB regulations at Sec.  648.2(d)(2).
    As previously described, in conjunction with the butterfish 
mortality cap, 25 percent of the butterfish ABC would be allocated for 
direct harvest and discard mortality in other fisheries. Butterfish 
landings and observed discards in other fisheries would be monitored by 
FSO, but would not result in fisheries closures. These data would be 
reviewed as part of the 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 of the butterfish ABC, then the allocation of 
the butterfish quota between the Loligo fishery and other fisheries 
would be revised, or other measures (e.g., reduced trip limits) would 
be implemented to constrain the other fisheries to 25 percent of the 
butterfish ABC.
    The process for closing the directed butterfish fishing would be 
status quo (fishery closure at 80 percent of IOY). All butterfish 
landings would count against the butterfish quota to determine when the 
directed butterfish fishery is closed. Projected landings would be 
based on dealer data and would be monitored weekly. If the directed 
butterfish fishery is closed, vessels with Loligo/butterfish moratorium 
permits would be subject to the closure-related incidental trip limits 
set in the specifications.

Butterfish Rebuilding Program Timeline

    Amendment 10 proposes a 5-year butterfish rebuilding program; the 
rebuilding program would extend from 2010 to 2014. Section 304(e) of 
the Magnuson-Steven Act specifies that rebuilding periods for 
overfished species be as short as possible, taking into account the 
biology of the stock and the needs of fishing communities. Butterfish 
rebuilding periods of 7 and 10 years were considered by the Council, 
but rejected because the biology of the stock allows for rapid 
rebuilding. Rebuilding periods of less than 5 years were rejected by 
the Council due to the potential for negative economic effects 
associated with a compressed rebuilding schedule. A 5-year rebuilding 
program is proposed to balance Magnuson-Stevens Act requirements while 
considering the biology of the stock and the needs of fishing 
communities. Even though the proposed butterfish rebuilding plan is a 
5-year plan, the primary measures of the rebuilding plan, such as the 
butterfish mortality cap and minimum codend mesh size increase for the 
Loligo fishery, would need to be permanent to ensure long-term 
sustainability of the butterfish stock.
    During Year 1 (2010) of the rebuilding program, the 2009 quotas 
would be maintained (ABC specification for butterfish at 1,500 mt; 
landings limited to 500 mt). Butterfish landings would be monitored and 
the butterfish fishery would be closed when landings are projected to 
reach 80 percent of the butterfish quota. Additionally, as described 
previously, the minimum codend mesh size requirement for the Loligo 
fishery would be increased from 1-7/8 inches (48 mm) to 2-1/8 inches 
(54 mm) during Trimesters I and III. The goal of the rebuilding plan 
during Year 1 would be to further butterfish rebuilding by keeping 
landings levels low, thereby discouraging a directed fishery, and by 
increasing some escapement of juvenile butterfish with a minimum codend 
mesh size increase up to 2-1/8 inches (54 mm). During Year 2 (2011) of 
the rebuilding program, in addition to management measures effective 
during Year 1 of the rebuilding plan, the butterfish mortality cap for 
the Loligo fishery would be implemented. The butterfish mortality cap 
for the Loligo fishery would directly control the butterfish landings 
and discards (of all ages) in the Loligo fishery, the primary source of 
butterfish fishing mortality, and facilitate rebuilding of the stock 
and protection of the rebuilt stock.
    The rebuilding program in Amendment 10 is expected to rebuild the 
butterfish stock within the 5-year rebuilding period. This conclusion 
is supported by the SSC-reviewed AR model, 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. If the 
butterfish mortality cap is implemented in 2010, then the probability 
of at least one large recruitment event occurring during years 1-5 of 
the rebuilding period rises to 94 percent. In other words, implementing 
the butterfish mortality cap in 2011, rather than 2010, increases the 
risk of failing to take advantage of a good recruitment event (from 6 
percent to 12 percent).
    The Council recommended the 5-year rebuilding timeline, in part, 
due to concerns that the SAW-38 stock estimate for 2002 would have to 
be used to set the butterfish mortality cap for 2010. Best available 
science suggests that the butterfish stock size has been highly 
variable during 1968-2002. Using the SAW-38 assessment data, the 
butterfish mortality cap for the Loligo fishery 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. If the butterfish 
mortality cap is set too low, given the current butterfish stock 
conditions, the measure could have unnecessarily severe economic 
effects on the Loligo fishery. Because a butterfish stock assessment is 
scheduled for November 2009, Amendment 10 proposes using the updated 
stock information when specifying a butterfish mortality cap for the 
Loligo fishery. A 2011 implementation of the butterfish mortality cap 
would allow the updated butterfish stock estimate to be used when 
setting the butterfish mortality cap, but the updated stock estimate 
would not yet be available when setting a butterfish mortality cap for 
2010.
    In addition, the rebuilding program specifies that the minimum 
codend mesh size increase for the Loligo fishery would be implemented 
prior to the butterfish mortality cap. Amendment 10 proposes using a 
weighted average of the current and the previous year's data for to 
track the butterfish mortality cap for the Loligo fishery. If the 
butterfish mortality cap were to be implemented in 2010, then 2009 data 
(i.e., data prior to the implementation of the mesh size increase) 
would be used to calculate the butterfish mortality cap. Because the 
mesh size increase is expected to increase the escapement of juvenile 
butterfish, the Council thought it inappropriate to use data from 2009, 
when much of the industry used a smaller minimum codend mesh size, to 
calculate/track the butterfish mortality cap harvested by a fishery 
required to use gear with a larger mesh size. By implementing the 
butterfish mortality cap in 2011, the data used to monitor the 
butterfish mortality cap would better

[[Page 45602]]

reflect the new 2-1/8-inch (54-mm) codend mesh size requirement.

Corrections

    This proposed rule also contains minor corrections to existing 
regulations. These corrections would not revise the intent of any 
regulations; they would 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 would be revised to omit 
references to a mackerel permit. In Sec.  648.14(g)(2)(ii)(C), the 
reference to possession allowances would be corrected. In Sec.  
648.21(f)(1), the description of Loligo trimesters would be corrected. 
Lastly, in Sec.  648.25(a), possession restrictions for mackerel would 
be revised to omit references to the butterfish fishery.
    Public comments are being solicited on Amendment 10 and its 
incorporated documents through the end of the comment period, September 
14, 2009, stated in the NOA for Amendment 10 (74 FR 33986). All 
comments received by September 14, 2009, whether specifically directed 
to Amendment 10 or this proposed rule, will be considered in the 
approval/disapproval decision on Amendment 10. Public comments must be 
received by September 14, 2009, to be considered in the approval/
disapproval decision on the amendment. Comments received after 5 pm, 
eastern standard time, will not be considered in the decision to 
approve or disapprove Amendment 10. Public comments on this proposed 
rule must be received no later than 5 p.m., eastern standard time, on 
October 19, 2009.

Classification

    Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, NMFS 
has determined that this proposed rule is consistent with the FMP, 
other provisions of the Magnuson-Stevens Act, and other applicable law, 
subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Council prepared an FSEIS for Amendment 10; a notice of 
availability was published on July 2, 2009 (74 FR 31733). The FSEIS 
describes the impacts of the proposed Amendment 10 measures on the 
environment. The proposed measure to increase minimum codend mesh size 
from 1-7/8 inches (48 mm) to 2-1/8 inches (54 mm) for the Loligo 
fishery during Trimesters I (Jan-Apr) and III (Sep-Dec) would minimize 
bycatch and discards of non-target species to the extent practicable, 
including butterfish, an overfished species. Loss of revenue due to 
increased Loligo escapement associated with the mesh size increase 
would depend on the actual amount of Loligo escapement, but revenue 
loss would be mitigated because the mesh size increase would not be 
effective during Trimester II. The proposed measure to establish a 
butterfish mortality cap for the Loligo fishery would aid in the 
rebuilding of the butterfish stocks by directly controlling butterfish 
fishing mortality. If the butterfish mortality cap is attained and the 
Loligo fishery closes, bycatch of butterfish and other non-target 
species would be reduced. Loss of revenue is possible if the Loligo 
quota could not be harvested because the fishery was closed in response 
to butterfish bycatch. As the butterfish stock rebuilds and the 
butterfish mortality cap increases as the stock size increases, the 
likelihood of lost Loligo revenue associated with the butterfish 
mortality cap is expected to decrease. The requirement that vessels 
notify NMFS 72 hrs prior to embarking on a Loligo fishing trip is an 
administrative measure, but it is anticipated to have biological 
benefits by enhancing observer coverage of the Loligo fishery. The 
annual review of the butterfish mortality cap program is expected to 
have both biological and economic benefits by allowing new information 
(e.g., changes in stock estimates or bycatch rates) to be quickly 
incorporated into the management process for butterfish.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained at the beginning of this section in the preamble 
and in the SUMMARY section of the preamble. A summary of the analysis 
follows. A copy of this analysis is available from the Council or NMFS 
(see ADDRESSES).

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 2 grossed more than $4 million annually; therefore, there are no 
disproportionate economic impacts on small entities. The proposed 
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 proposes a trip notification requirement for the Loligo 
fishery. The rationale for and description of the measure is included 
in the preamble of this rule; therefore, that information is not 
repeated here. The phone call to NMFS to declare a Loligo fishing trip 
is expected to be 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 calls 
originated, but cost is expected to be minimal. This trip notification 
requirement does not duplicate, overlap, or conflict with any other 
Federal rules.

Economic Impacts of the Proposed Action Compared to Significant Non-
Selected Alternatives

    Some of the proposed measures (e.g., trip notification, minimum 
mesh size increase, annual assessment of 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 proposed 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 hrs 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. This rule also proposes that 
the butterfish mortality cap be reviewed by the Council's SSC on an 
annual basis, and that modifications to the butterfish mortality cap be 
implemented through the MSB specifications process. This measure is 
also administrative and would have only minimal economic effects on 
fishery participants.

[[Page 45603]]

    Implementing a 2-1/8-inches (54-mm) minimum codend mesh size 
requirement for the Loligo fishery is expected to have a larger 
economic effect on fishery participants than the no action alternative 
(maintaining the 1-7/8-inches (48-mm) minimum 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 are the cost 
of replacing a codend and the loss in revenue that may result from 
increased harvest effort due to 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 codend can cost approximately between $200 
and $700, depending on the size of the net. Notifying fishery 
participants well in advance of regulatory changes may allow 
participants to plan purchases, thereby minimizing costs associated 
with a replacement codend. The cost of replacement codends is not 
anticipated to vary by mesh size among the action alternatives.
    The loss of revenue associated with increased harvest effort due to 
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 action alternatives increase with mesh 
size. Economic effects associated with an increased minimum 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 
action alternatives, the Loligo fishery would close when the butterfish 
mortality cap was harvested. If the Loligo fishery is closed in 
response to butterfish bycatch before the entire Loligo fishery is 
harvested, then a loss of revenue is possible. If the Loligo fishery 
can be prosecuted with minimal butterfish bycatch and without 
triggering the butterfish mortality cap, then there would be no 
economic differences 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 determined based on the 
level of butterfish abundance. As the butterfish stock rebuilds, the 
mortality cap would increase and the potential for lost Loligo revenue 
should decrease. When the butterfish stock rebuilds, a directed 
butterfish fishery could resume, provided discards were kept low, and 
would have economic benefits for fishery participants.
    The economic effects on fishery participants between the action 
alternatives (butterfish mortality cap allocated by trimester in the 
same proportions as the Loligo quota, Loligo landings, or butterfish 
bycatch rates) is anticipated to be minimal. However, because the 
proposed action (butterfish morality 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 proposed action would be less constraining on the Loligo fishery 
than the non-selected action alternatives, 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, the Council 
recommended maintaining 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

[[Page 45604]]

flexible in their fishing practices, these losses would most likely not 
be fully realized.
    This proposed rule contains a collection-of-information requirement 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act (PRA). This requirement has 
been submitted to OMB for approval. Public reporting burden for a trip 
notification requirement for the Loligo fishery is estimated to average 
3 min per response, including the time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection information.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to NMFS, 
Northeast Regional Office at the ADDRESSES above, and to David Rostker 
by e-mail <a href="/cdn-cgi/l/email-protection#5f1b3e29363b000d302c2b343a2d1f30323d713a302f71383029"><span class="__cf_email__" data-cfemail="5d193c2b3439020f322e2936382f1d32303f7338322d733a322b">[email protected]</span></a> or fax (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 in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: August 28, 2009
James W. Balsiger,
Acting Assistant Administrator For Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 648 is 
proposed to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

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

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  648.13, 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 
Loligo, Illex, or butterfish from one vessel to another vessel.
* * * * *
    3. 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.
* * * * *
    4. 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.
* * * * *
    5. 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.
* * * * *
    6. 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

[[Page 45605]]

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.
* * * * *
    7. 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.
* * * * *
    8. Section 648.26 is added 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, contact name for coordination of observer deployment, telephone 
number for contact; and the date, time, and port of departure, at least 
72 hrs prior to beginning any fishing trip, unless it complies with the 
possession restrictions in paragraph (c) of this section.
    (b) If the vessel representative notifies NMFS of an upcoming trip, 
and then that trip is cancelled, the representative is required to 
provide notice to NMFS of the vessel name, 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 hrs of the initial notification.
    (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), possesses, harvests, or lands 
2,500 lb (1.13 mt) or more of Loligo per trip or per calendar day and 
is selected by NMFS to carry an observer, but the trip selected for 
observer coverage is cancelled, then that vessel is required to carry 
an observer, provided an observer is available, on its next trip.
[FR Doc. E9-21322 Filed 9-2-09; 8:45 am]
BILLING CODE 3510-22-S


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