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Federal Register: May 4, 2009 (Volume 74, Number 84)

DOCID: fr04my09-12 FR Doc E9-10156

DEPARTMENT OF COMMERCE

Veterans Employment and Training Service

CFR Citation: 50 CFR Part 648

Docket ID: [Docket No. 080410547-9274-02]

RIN ID: RIN 0648-AW70

NOTICE: Part II

DOCID: fr04my09-12

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY:

Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States

DATES: Effective May 1, 2009, except for amendments 11 and 12 to Sec. 648.14, amendment 18.c to Sec. 648.82, amendment 19.c to Sec. 648.85, and amendment 20.c to Sec. 648.86, which are effective from May 1, 2009, through October 28, 2009.

DOCUMENT SUMMARY:

Several sections of the regulations governing the fisheries of the northeastern United States contain minor inadvertent errors, omissions, and ambiguities. This rule revises the portions of the Northeast (NE) fishery regulations that relate to the Vessel Monitoring System (VMS) and prohibitions, standardizes the VMS vendor requirements, and adds prohibitions and other regulations to clarify existing policies and requirements.

SUMMARY:

Commerce Department, National Oceanic and Atmospheric Administration

SUPPLEMENTAL INFORMATION

This rule revises portions of the NE fishery regulations by reorganizing the VMS and prohibitions sections, standardizing the VMS vendor requirements, and adding prohibitions and other regulations that correct or clarify existing policies and requirements. The changes are enacted under the authority given to the Secretary of Commerce at section 305(d) of the MagnusonStevens Fishery Conservation and Management Act (MagnusonStevens Act) to promulgate regulations to fully carry out the requirements of the Act. A proposed rule for this action was published on January 15, 2009 (74 FR 2478). No comments were received. The changes are summarized below.

VMSRelated Modifications

This action standardizes the qualification requirements of VMS vendors and VMS units between the NMFS NE Region and the National VMS program. The Regional Administrator, NE Region, NMFS (RA), retains the authority to approve or disapprove a vendor or unit for use in the NE Region; however, the standards against which the vendors are judged will be the same as used by the National VMS program. This action ensures that the VMS vendors meet industryaccepted criteria while the NE Region's specific VMS needs are met.

For consistency across fishery management plans (FMPs), a measure implemented under the Surfclam and Ocean Quahog FMP requiring vessel owners to call the NMFS Office of Law Enforcement (OLE) to verify connectivity between a new or replacement VMS unit and OLE prior to the vessel sailing on its first trip using VMS is expanded to all vessel owners. This expansion allows OLE to ensure that the units are installed and registered correctly in all of the necessary systems. In addition, this action reorganizes the VMS regulations so that the requirements that apply to vessel owners/operators are separate and distinguishable from the requirements that apply to VMS vendors. Further, the VMS Demarcation Line is modified through the addition of a new coordinate intended to allow vessels from Monhegan Island, Isle au Haut, and Matinicus Isle, Maine, to more easily comply with the VMS requirements of the NE Multispecies FMP.

ProhibitionsRelated Modifications

The prohibitions section (Sec. 648.14) is reorganized to assist industry in more easily understanding the rules and regulations, and serves to improve compliance with those requirements. This rule groups together the prohibitions relating to a specific FMP, titles the sections and subsections, and provides more guidance on where to find a specific prohibition. This action also adds prohibitions to clarify or correct existing requirements. The additional prohibitions, which relate to regulations that have already been reviewed and approved through appropriate rulemaking procedures, clarify that aiding and abetting actions prohibited by the MagnusonStevens Act, or any other statute administered by NOAA, is prohibited; that observers are prohibited from providing false information; that miscoding of trips through the VMS by vessel owners/operators is not permissible; that transferring regulated species at sea, without authorization from the RA, or as otherwise permitted, is prohibited; and that any vessel possessing or retaining any species regulated by the NE Region must be under its own power.

Other Modifications

Several regulations pertaining to VMS were inadvertently deleted when two final rules affecting the same sections of the regulations became effective at about the same time in December 2007. The final rule implementing Surfclam/Ocean Quahog Framework Adjustment (FW) 1 inadvertently deleted sections of the VMS regulations that were modified or added under the NE Multispecies FW 42 correction rule. This rule reinstates those regulations. Other sections that are clarified relate to recordkeeping requirements and twinetop measurements of scallop dredges. The recordkeeping regulations (Sec. 648.7) are modified to specify some of the types of records vessel owners and dealers are required to retain, and to clarify that any person acting in the capacity of a Federally permitted dealer is subject to the same requirements as a Federally permitted dealer. Further, this rule clarifies, at Sec. 648.51, how to measure twinetop in scallop dredges and assist industry members with complying with the minimum mesh size requirements of the Atlantic Sea Scallop FMP. Other minor adjustments to the regulations correct the references of the Regular B DaysAtSea (DAS) Program by removing the word ``pilot,'' and make other corrections to crossreferences.

A detailed description of the regulatory changes, including their justification, is provided in the proposed rule (January 15, 2009, 74 FR 2478) and is not repeated here. NMFS received no comments during the comment period on the proposed rule.

Changes From the Proposed Rule

Minor errors in the proposed rule are corrected, including renumbering incorrect sequences of prohibitions; one prohibition is modified, and one prohibition is added for clarity. The prohibition barring fishing, possessing, or landing regulated NE multispecies after using an entire DAS allocation is clarified by removing the words ``in excess of a possession limit'' after ``landing.'' This is to clarify that it is not legal to land any regulated NE
[[Page 20529]]
multispecies after fully using a DAS allocation. In addition, a prohibition is added to clarify the requirements of vessel owners with regard to the Scallop Observer Program, specifying that failure to comply with the notification, observer services procurement, and observer services payment requirements of the sea scallop observer program specified in Sec. 648.11(g) is prohibited. The reorganization of this rule also affects portions of the prohibitions and NE multispecies regulations that were suspended under the NE multispecies interim rule (74 FR 17030, April 13, 2009). This rule revises several of the suspended sections (portions of Sec. 648.14, as well as Sec. 648.82(e)(2)(iii)(B) and (e)(3); Sec. 648.85(a)(3)(ii)(A)(1); (b)(6)(i); (b)(6)(iv)(A) and (B); (b)(6)(v); (b)(7)(iv)(A); and Sec. 648.86(b)(1)(ii)(B)), and renumbers the prohibitions that were added under the interim rule. In order to preserve the intent of the interim action, it is necessary to reissue all of the regulations that are affected by both rules, resuspend those sections that were suspended by the interim rule, and restate the end of effectiveness date for the temporary regulations. None of the interim rule regulations are modified by this final rule and no new sections have been suspended. All of the suspensions and the additional interim regulations will be effective through the end of the interim action, including any suspensions.

Classification

The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(d)(3) to make this rule effective immediately, thereby waiving the 30day delayed effective date required by 5 U.S.C. 553(d) because it is unnecessary and contrary to the public interest. The rule is administrative in nature and merely reorganizes sections of the regulations and codifies existing policies and procedures for clarity. The reorganization of the Prohibitions and VMS sections of the regulations is not substantive and has no effect on the public. It is intended to improve the public's understanding of the regulations by presenting the regulations more clearly. Several prohibitions are added to support existing regulations that had been approved through standard rulemaking procedures. Other minor additions to the regulations are to make the recordkeeping requirements more specific, in order to assist permitted dealers in more effectively complying with the regulations, as well as specify the process by which twinetop is measured to assist vessel owners in complying with minimum mesh size requirements. None of the additional regulations impose new requirements on the public and are intended to explain existing requirements more clearly.

Pursuant to section 305(d) of the MagnusonStevens Act, the Assistant Administrator for Fisheries, NOAA, has determined that this rule is consistent with the FMPs of the NE Region, other provisions of the MagnusonStevens Act, and other applicable law.

This rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

This rule contains a nonsubstantive change to a previously approved collectionofinformation requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA), which has been approved by OMB under control number 06480202. Public reporting burden for the requirement to confirm VMS connectivity with the NMFS OLE is estimated to average 5 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding 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 David_Rostker@omb.eop.gov, or fax to 2023957285.

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, Reporting and recordkeeping requirements.

Dated: April 28, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
For the reasons stated in the preamble, 50 CFR part 648 is to be amended as follows:
PART 648FISHERIES 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. 648.2, definitions for ``MCSP,'' ``MTU,'' and ``Records'' are added in alphabetical order to read as follows:
Sec. 648.2 Definitions.

* * * * *

MCSP means a Mobile Communications Service Provider, which is an operator of a mobile communications service used to provide wireless connectivity between mobile platforms and fixed platforms, and enables location transmission and twoway message exchange between the vessel and NMFS, when using a compatible MTU.

* * * * *

MTU means a Mobile Transmitting Unit, which is a transceiver or communications device, including antennae, dedicated message terminal and display, and an input device such as a keyboard installed on a fishing vessel participating in the VMS program.

* * * * *

Records, with respect to records required to be kept by Sec. 648.7, means those that include, but are not limited to, any written, recorded, graphic, electronic, or digital material; as well as other information stored in or accessible through a computer or other information retrieval system; worksheets; weighout slips; preliminary, interim, and final tally sheets; tags; notes; logbooks; statements; receipts; checks; ledgers; notebooks; diaries; spreadsheets; diagrams; graphs; charts; tapes; disks; or computer printouts.
* * * * *
3. In Sec. 648.4, paragraphs (a)(8)(ii) and (a)(9)(i)(N)(3)(i) are revised to read as follows:
Sec. 648.4 Vessel permits.
(a) * * *
(8) * * *
(ii) Party and charter vessels. All party or charter boats must have been issued and carry on board a valid party or charter boat permit to fish for,
[[Page 20530]]
possess, or land Atlantic bluefish in or from the EEZ if carrying passengers for hire. Persons on board such vessels must observe the possession limits established pursuant to Sec. 648.164 and the prohibitions on sale specified in Sec. 648.14(q).
(9) * * *
(i) * * *
(N) * * *
(3) * * *
(i) A vessel denied a limited access monkfish Category G or H permit may fish under the monkfish DAS program, provided that the denial has been appealed, the appeal is pending, and the vessel has on board a letter from the Regional Administrator authorizing the vessel to fish under the monkfish DAS program. The letter of authorization must be carried on board the vessel. A vessel with such a letter of authorization shall not exceed the annual allocation of monkfish DAS as specified in Sec. 648.92(b)(1) and must report the use of monkfish DAS according to the provisions of Sec. 648.10. If the appeal is finally denied, the Regional Administrator shall send a notice of final denial to the vessel owner; the letter authorizing temporary participation in the monkfish fishery shall become invalid 5 days after receipt of the notice of denial, but no later than 10 days from the date of the denial letter. If the appeal is approved, any DAS used during pendency of the appeal shall be deducted from the vessel's annual allocation of monkfish DAS for that fishing year.
* * * * *
4. In Sec. 648.7, paragraphs (a)(1) introductory text, (d), and (e) are revised to read as follows:
Sec. 648.7 Recordkeeping and reporting requirements.
(a) * * *
(1) Detailed report. Federally permitted dealers, and any individual acting in the capacity of a dealer, must submit to the Regional Administrator or to the official designee a detailed report of all fish purchased or received for a commercial purpose, other than solely for transport on land, within the time period specified in paragraph (f) of this section, by one of the available electronic reporting mechanisms approved by NMFS, unless otherwise directed by the Regional Administrator. The following information, and any other information required by the Regional Administrator, must be provided in each report:
* * * * *
(d) Inspection. Upon the request of an authorized officer or an employee of NMFS designated by the Regional Administrator to make such inspections, all persons required to submit reports under this part must make immediately available for inspection copies of reports, and all records upon which those reports are or will be based, that are required to be submitted or kept under this part.
(e) Record retention. Any record, as defined at Sec. 648.2, related to fish possessed, received, or purchased by a dealer that is required to be reported, must be retained and be available for immediate review for a total of 3 years after the date the fish were first possessed, received, or purchased. Dealers must retain the required records and reports at their principal place of business. Copies of fishing log reports must be kept on board the vessel and available for review for at least 1 year, and must be retained for a total of 3 years after the date the fish were last possessed, landed, and sold.
* * * * *
5. Section 648.9 is revised to read as follows:
Sec. 648.9 VMS vendor and unit requirements.
(a) Approval. The type approval requirements for VMS MTUs and MCSPs for the Northeast Region are those as published by the NMFS Office of Law Enforcement in the Federal Register, and are available upon request. Both the minimum national standards and any established regional standards must be met in order to receive approval for use in the Northeast Region. The Regional Administrator shall approve all MTUs and MCSPs operating in the Northeast Region.
(b) Maintenance. Once approved, VMS units must maintain the minimum standards for which they were approved in the type approval requirements. Any changes made to the original submission for approval of an MTU or MCSP by NMFS must follow the procedures outlined in the type approval requirements.
(c) Notification. A list of approved VMS vendors will be published on the Northeast Regional Office Web site and in each proposed and final rule for implementing or modifying VMS requirements for specific fisheries.
(d) Revocations. In the event that a VMS vendor is deleted from the list of approved vendors, vessel owners that purchased a VMS unit from that vendor to meet Northeast requirements will be considered authorized to use that unit for the remainder of the unit's service life.
6. Section 648.10 is revised to read as follows:
Sec. 648.10 VMS and DAS requirements for vessel owners/operators. (a) VMS Demarcation Line. The VMS Demarcation Line is defined by straight lines connecting the following coordinates in the order stated (a copy of a map showing the line is available from the Regional Administrator upon request):
VMS Demarcation Line
Description N. lat. W. long. 1. Northern terminus point 45[deg]03' 66[deg]47' (Canada landmass).
2. A point east of West Quoddy 44[deg]48.9' 66[deg]56.1' Head Light.
3. A point east of Little River 44[deg]39.0' 67[deg]10.5' Light.
4. Whistle Buoy ``8BI'' (SSE of 44[deg]13.6' 68[deg]10.8' Baker Island).
5. Isle au Haut Light........... 44[deg]03.9' 68[deg]39.1' 6. A point south of Monhegan 43[deg]43.3' 69[deg]18.6' Island.
7. Pemaquid Point Light......... 43[deg]50.2' 69[deg]30.4' 8. A point west of Halfway Rock. 43[deg]38.0' 70[deg]05.0' 9. A point east of Cape Neddick 43[deg]09.9' 70[deg]34.5' Light.
10. Merrimack River Entrance 42[deg]48.6' 70[deg]47.1' ``MR'' Whistle Buoy.
11. Halibut Point Gong Buoy 42[deg]42.0' 70[deg]37.5' ``1AHP''.
12. Connecting reference point.. 42[deg]40' 70[deg]30' 13. Whistle Buoy ``2'' off 42[deg]34.3' 70[deg]39.8' Eastern Point.
14. The Graves Light (Boston)... 42[deg]21.9' 70[deg]52.2' 15. Minots Ledge Light.......... 42[deg]16.2' 70[deg]45.6' [[Page 20531]]
16. Farnham Rock Lighted Bell 42[deg]05.6' 70[deg]36.5' Buoy.
17. Cape Cod Canal Bell Buoy 41[deg]48.9' 70[deg]27.7' ``CC''.
18. A point inside Cape Cod Bay. 41[deg]48.9' 70[deg]05' 19. Race Point Lighted Bell Buoy 42[deg]04.9' 70[deg]16.8' ``RP''.
20. Peaked Hill Bar Whistle Buoy 42[deg]07.0' 70[deg]06.2' ``2PH''.
21. Connecting point, off Nauset 41[deg]50' 69[deg]53' Light.
22. A point south of Chatham 41[deg]38' 69[deg]55.2' ``C'' Whistle Buoy.
22. A point in eastern Vineyard 41[deg]30' 70[deg]33' Sound.
24. A point east of Martha's 41[deg]22.2' 70[deg]24.6' Vineyard.
25. A point east of Great Pt. 41[deg]23.4' 69[deg]57' Light, Nantucket.
26. A point SE of Sankaty Head, 41[deg]13' 69[deg]57' Nantucket.
27. A point west of Nantucket... 41[deg]15.6' 70[deg]25.2' 28. Squibnocket Lighted Bell 41[deg]15.7' 70[deg]46.3' Buoy ``1''.
29. Wilbur Point (on Sconticut 41[deg]35.2' 70[deg]51.2' Neck).
30. Mishaum Point (on Smith 41[deg]31.0' 70[deg]57.2' Neck).
31. Sakonnet Entrance Lighted 41[deg]25.7' 71[deg]13.4' Whistle Buoy ``SR''.
32. Point Judith Lighted Whistle 41[deg]19.3' 71[deg]28.6' Buoy ``2''.
33. A point off Block Island 41[deg]08.2' 71[deg]32.1' Southeast Light.
34. Shinnecock Inlet Lighted 40[deg]49.0' 72[deg]28.6' Whistle Buoy ``SH''.
35. Scotland Horn Buoy ``S'', 40[deg]26.5' 73[deg]55.0' off Sandy Hook (NJ).
36. Barnegat Lighted Gong Buoy 39[deg]45.5' 73[deg]59.5' ``2''.
37. A point east of Atlantic 39[deg]21.9' 74[deg]22.7' City Light.
38. A point east of Hereford 39[deg]00.4' 74[deg]46' Inlet Light.
39. A point east of Cape 38[deg]47' 75[deg]04' Henlopen Light.
40. A point east of Fenwick 38[deg]27.1' 75[deg]02' Island Light.
41. A point NE of Assateague 38[deg]00' 75[deg]13' Island (VA).
42. Wachapreague Inlet Lighted 37[deg]35.0' 75[deg]33.7' Whistle Buoy ``A''.
43. A point NE of Cape Henry.... 36[deg]55.6' 75[deg]58.5' 44. A point east of Currituck 36[deg]22.6' 75[deg]48' Beach Light.
45. Oregon Inlet (NC) Whistle 35[deg]48.5' 75[deg]30' Buoy.
46. Wimble Shoals, east of 35[deg]36' 75[deg]26' Chicamacomico.
47. A point SE of Cape Hatteras 35[deg]12.5' 75[deg]30' Light.
48. Hatteras Inlet Entrance Buoy 35[deg]10' 75[deg]46' ``HI''.
49. Ocracoke Inlet Whistle Buoy 35[deg]01.5' 76[deg]00.5' ``OC''.
50. A point east of Cape Lookout 34[deg]36.5' 76[deg]30' Light.
51. Southern terminus point..... 34[deg]35' 76[deg]41' (b) Vessels required to use VMS. The following vessels must have installed on board an operational VMS unit that meets the minimum performance criteria specified in, or as modified pursuant to Sec. 648.9(a):
(1) A scallop vessel issued a Fulltime or Parttime limited access scallop permit, or an LAGC scallop permit;
(2) A scallop vessel issued an Occasional limited access permit when fishing under the Sea Scallop Area Access Program specified under Sec. 648.60;
(3) A vessel issued a limited access monkfish, Occasional scallop, or Combination permit, whose owner elects to provide the notifications required by this paragraph (b), unless otherwise authorized or required by the Regional Administrator under paragraph (d) of this section; (4) A vessel issued a limited access NE multispecies permit that fishes under a NE multispecies Category A or B DAS;
(5) A vessel issued a surfclam (SF 1) or an ocean quahog (OQ 6) open access permit;
(6) Effective January 1, 2009, a vessel issued a Maine mahogany quahog (OQ 7) limited access permit, unless otherwise exempted under paragraph Sec. 648.4(a)(4)(ii)(B)(1);
(7) A limited access monkfish vessel electing to fish in the Offshore Fishery Program in the SFMA, as provided in Sec. 648.95; and (8) A vessel issued a limited access herring permit (i.e., All Areas Limited Access Permit, Areas 2 and 3 Limited Access Permit, Incidental Catch Limited Access Permit).
(c) Operating requirements for all vessels. (1) Except as provided in paragraph (c)(2) of this section, or unless otherwise required by paragraph (c)(1)(ii) of this section, all required VMS units must transmit a signal indicating the vessel's accurate position, as specified under paragraph (c)(1)(i) of this section:
(i) At least every hour, 24 hr a day, throughout the year; or (ii) At least twice per hour, 24 hr a day, throughout the year, for vessels issued a scallop permit and subject to the requirements of Sec. 648.4(a)(2)(ii)(B).
(2) Powerdown exemption. (i) Any vessel required to transmit the vessel's location at all times, as required in paragraph (c)(1) of this section, is exempt from this requirement if it meets one or more of the following conditions and requirements:
(A) The vessel will be continuously out of the water for more than 72 consecutive hours, the vessel signs out of the VMS program by obtaining a valid letter of exemption pursuant to paragraph (c)(2)(ii) of this section, and the vessel complies with all conditions and requirements of said letter;
(B) For vessels fishing with a valid NE multispecies limited access permit, a valid surfclam and ocean quahog permit specified at Sec. 648.4(a)(4), or an Atlantic sea scallop limited access permit, the vessel owner signs out of the VMS program for a minimum period of 30 consecutive days by obtaining a valid letter of exemption pursuant to paragraph (c)(2)(ii) of this section, the vessel does not engage in any fisheries until the VMS unit is turned back on, and the vessel complies with all conditions and requirements of said letter;
[[Page 20532]]
(C) The vessel has been issued a limited access herring permit, and is in port, unless required by other permit requirements for other fisheries to transmit the vessel's location at all times. Such a vessel must repower the VMS and submit a valid VMS activity declaration prior to leaving port; or
(D) The vessel has been issued an LAGC permit, is not in possession of any scallops onboard the vessel, is tied to a permanent dock or mooring, the vessel operator has notified NMFS through VMS by transmitting the appropriate VMS powerdown code that the VMS will be powered down, and the vessel is not required by other permit requirements for other fisheries to transmit the vessel's location at all times. Such a vessel must repower the VMS and submit a valid VMS activity declaration prior to moving from the fixed dock or mooring. VMS codes and instructions are available from the Regional Administrator.
(ii) Letter of exemption(A) Application. A vessel owner may apply for a letter of exemption from the VMS transmitting requirements specified in paragraph (c)(1) of this section for his/her vessel by sending a written request to the Regional Administrator and providing the following: The location of the vessel during the time an exemption is sought; the exact time period for which an exemption is needed (i.e., the time the VMS signal will be turned off and turned on again); and, in the case of a vessel meeting the conditions of paragraph (c)(2)(i)(A) of this section, sufficient information to determine that the vessel will be out of the water for more than 72 consecutive hours. The letter of exemption must be on board the vessel at all times, and the vessel may not turn off the VMS signal until the letter of exemption has been received.
(B) Issuance. Upon receipt of an application, the Regional Administrator may issue a letter of exemption to the vessel if it is determined that the vessel owner provided sufficient information as required under this paragraph (c)(2), and that the issuance of the letter of exemption will not jeopardize accurate monitoring of the vessel's DAS. Upon written request, the Regional Administrator may change the time period for which the exemption is granted.
(d) Presumption. If a VMS unit fails to transmit an hourly signal of a vessel's position, the vessel shall be deemed to have incurred a DAS, or fraction thereof, for as long as the unit fails to transmit a signal, unless a preponderance of evidence shows that the failure to transmit was due to an unavoidable malfunction or disruption of the transmission that occurred while the vessel was properly declared out of the scallop fishery, NE multispecies fishery, or monkfish fishery, as applicable, or while the vessel was not at sea.
(e) VMS notifications(1) VMS installation notification. (i) The owner of such a vessel specified in paragraph (b) of this section, with the exception of a vessel issued a limited access NE multispecies permit as specified in paragraph (b)(4) of this section, must provide documentation to the Regional Administrator at the time of application for a limited access permit that the vessel has an operational VMS unit installed on board that meets the minimum performance criteria, unless otherwise allowed under paragraph (b) of this section.
(ii) Vessel owners must confirm the VMS unit's operation and communications service to NMFS by calling the Office of Law Enforcement (OLE) to ensure that position reports are automatically sent to and received by NMFS OLE.
(iii) NMFS does not regard the fishing vessel as meeting the VMS requirements until automatic position reports and a manual declaration are received.
(iv) If a vessel has already been issued a limited access permit without the owner providing such documentation, the Regional Administrator shall allow at least 30 days for the vessel to install an operational VMS unit that meets the minimum performance criteria, and for the owner to provide documentation of such installation to the Regional Administrator.
(v) The owner of a vessel issued a limited access NE multispecies permit that fishes or intends to fish under a Category A or B DAS as specified in paragraph (b)(1)(vi) of this section must provide documentation to the Regional Administrator that the vessel has an operational VMS unit installed on board, meeting all requirements of this part, prior to fishing under a groundfish DAS.
(vi) NMFS shall provide notification to all affected permit holders providing detailed information on procedures pertaining to VMS purchase, installation, and use.
(2) Replacement VMS installations. Should a VMS unit require replacement, a vessel owner must submit documentation to the Regional Administrator, within 3 days of installation and prior to the vessel's next trip, verifying, as described in this paragraph (e), that the new VMS unit is an operational approved system as described under Sec. 648.9(a).
(3) Access. As a condition to obtaining a limited access scallop, multispecies, an Atlantic herring, a surfclam, ocean quahog, or Maine mahogany quahog permit; or as a condition of using a VMS unit; all vessel owners must allow NMFS, the USCG, and their authorized officers or designees access to the vessel's DAS data, if applicable, and to location data obtained from its VMS unit, if required, at the time of or after its transmission to the vendor or receiver, as the case may be.
(4) Tampering. Tampering with a VMS, a VMS unit, or a VMS signal, is prohibited. Tampering includes any activity that may affect the unit's ability to operate or signal properly, or to accurately compute or report the vessel's position.
(5) Fishery participation notification. (i) A vessel subject to the VMS requirements of Sec. 648.9 and paragraphs (b)(d) of this section that has crossed the VMS Demarcation Line under paragraph (a) of this section is deemed to be fishing under the DAS program, the General Category scallop fishery, or other fishery requiring the operation of VMS as applicable, unless prior to leaving port, the vessel's owner or authorized representative declares the vessel out of the scallop, NE multispecies, or monkfish fishery, as applicable, for a specific time period. NMFS must be notified by transmitting the appropriate VMS code through the VMS, or unless the vessel's owner or authorized representative declares the vessel will be fishing in the Eastern U.S./ Canada Area, as described in Sec. 648.85(a)(3)(ii), under the provisions of that program.
(ii) Notification that the vessel is not under the DAS program, the General Category scallop fishery, or any other fishery requiring the operation of VMS, must be received by NMFS prior to the vessel leaving port. A vessel may not change its status after the vessel leaves port or before it returns to port on any fishing trip.
(iii) DAS counting for a vessel that is under the VMS notification requirements of paragraph (b) of this section, with the exception of vessels that have elected to fish exclusively in the Eastern U.S./ Canada Area on a particular trip, as described in paragraph (e)(5) of this section, begins with the first location signal received showing that the vessel crossed the VMS Demarcation Line after leaving port. DAS counting ends with the first location signal received showing that the vessel crossed the VMS Demarcation Line upon its return to port. (iv) For those vessels that have elected to fish exclusively in the Eastern U.S./Canada Area pursuant to Sec. 648.85(a)(3)(ii), the requirements of
[[Page 20533]]
this paragraph (b) begin with the first location signal received showing that the vessel crossed into the Eastern U.S./Canada Area and end with the first location signal received showing that the vessel crossed out of the Eastern U.S./Canada Area upon beginning its return trip to port, unless the vessel elects to also fish outside the Eastern U.S./Canada Area on the same trip, in accordance with Sec. 648.85(a)(3)(ii)(A).
(v) The Regional Administrator may authorize or require the use of the callin system instead of the use of VMS, as described under paragraph (h) of this section. Furthermore, the Regional Administrator may authorize or require the use of letters of authorization as an alternative means of enforcing possession limits, if VMS cannot be used for such purposes.
(f) Atlantic sea scallop vessel VMS notification requirements. Less than 1 hr prior to leaving port, the owner or authorized representative of a scallop vessel that is required to use VMS as specified in paragraph (b)(1) of this section must notify the Regional Administrator by entering the appropriate VMS code that the vessel will be participating in the scallop DAS program, Area Access Program, or general category scallop fishery. VMS codes and instructions are available from the Regional Administrator upon request.
(1) IFQ scallop vessels. An IFQ scallop vessel that has crossed the VMS Demarcation Line specified under paragraph (a) of this section is deemed to be fishing under the IFQ program, unless prior to the vessel leaving port, the vessel's owner or authorized representative declares the vessel out of the scallop fishery (i.e., agrees that the vessel will not possess, retain, or land scallops) for a specific time period by notifying the Regional Administrator through the VMS. An IFQ scallop vessel that is fishing north of 42[deg]20' N. lat. is deemed to be fishing under the NGOM scallop fishery unless prior to the vessel leaving port, the vessel's owner or authorized representative declares the vessel out of the scallop fishery, as specified in paragraphs (e)(5)(i) and (ii) of this section, and the vessel does not possess, retain, or land scallops.
(2) NGOM scallop fishery. An NGOM scallop vessel is deemed to be fishing under the NGOM scallop fishery unless prior to the vessel leaving port, the vessel's owner or authorized representative declares the vessel out of the scallop fishery, as specified in paragraphs (e)(5)(i) and (ii) of this section, and the vessel does not possess, retain, or land scallops.
(3) Incidental scallop fishery. An Incidental scallop vessel that has crossed the VMS Demarcation Line on any declared fishing trip for any species is deemed to be fishing under the Incidental scallop fishery unless, prior to the vessel leaving port, the vessel's owner or authorized representative declares the vessel out of the scallop fishery, as specified in paragraphs (e)(5)(i) and (ii) of this section, and the vessel does not possess, retain, or land scallops.
(4) Catch reports. All scallop vessels fishing in the Sea Scallop Area Access Program as described in Sec. 648.60 are required to submit daily reports through VMS of scallops kept and yellowtail flounder caught (including discarded yellowtail flounder) on each Access Area trip. The VMS catch reporting requirements are specified in Sec. 648.60(a)(9). A vessel issued an IFQ or NGOM scallop permit must report through VMS the amount of scallops kept on each trip declared as a scallop trip or on trips that are not declared through VMS as scallop trips, but on which scallops are caught incidentally. VMS catch reports by IFQ and NGOM scallop vessels must be sent prior to crossing the VMS Demarcation Line on the way back to port at the end of the trip, and must include the amount of scallop meats to be landed, the estimated time of arrival in port, the port at which the scallops will be landed, and the vessel trip report serial number recorded from that trip's vessel trip report.
(5) Scallop vessels fishing under exemptions. Vessels fishing under the exemptions provided by Sec. 648.54 (a) and/or (b)(1) must comply with the exemption requirements and notify the Regional Administrator by VMS notification or by callin notification as follows:
(i) VMS notification for scallop vessels fishing under exemptions. (A) Notify the Regional Administrator, via their VMS, prior to the vessel's first trip under the state waters exemption program, that the vessel will be fishing exclusively in state waters; and
(B) Notify the Regional Administrator, via their VMS, prior to the vessel's first planned trip in the EEZ, that the vessel is to resume fishing under the vessel's DAS allocation.
(ii) Callin notification for scallop vessels fishing under exemptions. (A) Notify the Regional Administrator by using the callin system and providing the following information at least 7 days prior to fishing under the exemption:
(1) Owner and caller name and address;
(2) Vessel name and permit number; and
(3) Beginning and ending dates of the exemption period. (B) Remain under the exemption for a minimum of 7 days. (C) If, under the exemption for a minimum of 7 days and wishing to withdraw earlier than the designated end of the exemption period, notify the Regional Administrator of early withdrawal from the program by calling the callin system, providing the vessel's name and permit number and the name and phone number of the caller, and stating that the vessel is withdrawing from the exemption. The vessel may not leave port to fish in the EEZ until 48 hr after notification of early withdrawal is received by the Regional Administrator.
(D) The Regional Administrator will furnish a phone number for callins upon request.
(E) Such vessels must comply with the VMS notification requirements specified in paragraph (e) of this section by notifying the Regional Administrator by entering the appropriate VMS code that the vessel is fishing outside of the scallop fishery. VMS codes and instructions are available from the Regional Administrator upon request.
(g) VMS notification requirements for other fisheries. (1) Unless otherwise specified in this part, or via letters sent to affected permit holders under paragraph (e)(1)(iv) of this section, the owner or authorized representative of a vessel that is required to use VMS, as specified in paragraph (b) of this section, must notify the Regional Administrator of the vessel's intended fishing activity by entering the appropriate VMS code prior to leaving port at the start of each fishing trip.
(2) Notification of a vessel's intended fishing activity includes, but is not limited to, gear and DAS type to be used; area to be fished; and whether the vessel will be declared out of the DAS fishery, or will participate in the NE multispecies and monkfish DAS fisheries, including approved special management programs.
(3) A vessel cannot change any aspect of its VMS activity code outside of port, except as follows:
(i) NE multispecies vessels are authorized to change the category of DAS used (i.e., flip its DAS), as provided at Sec. 648.85(b), or change the area declared to be fished so that the vessel may fish both inside and outside of the Eastern U.S./Canada Area on the same trip, as provided at Sec. 648.85(a)(3)(ii)(A).
(ii) Vessels issued both a NE multispecies permit and a monkfish permit are authorized to change their
[[Page 20534]]
DAS declaration from a NE multispecies Category A DAS to a monkfish DAS, while remaining subject to the to the NE multispecies DAS usage requirements under Sec. 648.92(b)(1)(i), during the course of a trip, as provided at Sec. 648.92(b)(1)(iii)(A).
(4) VMS activity codes and declaration instructions are available from the Regional Administrator upon request.
(h) Callin notification. The owner of a vessel issued a limited access monkfish or red crab permit who is participating in a DAS program and who is not required to provide notification using a VMS, and a scallop vessel qualifying for a DAS allocation under the occasional category that has not elected to fish under the VMS notification requirements of paragraph (e) of this section and is not participating in the Sea Scallop Area Access program as specified in Sec. 648.60, and any vessel that may be required by the Regional Administrator to use the callin program under paragraph (i) of this section, are subject to the following requirements:
(1) Less than 1 hr prior to leaving port, for vessels issued a limited access NE multispecies DAS permit or, for vessels issued a limited access NE multispecies DAS permit and a limited access monkfish permit (Category C, D, F, G, or H), unless otherwise specified in this paragraph (h), and, prior to leaving port for vessels issued a limited access monkfish Category A or B permit, the vessel owner or authorized representative must notify the Regional Administrator that the vessel will be participating in the DAS program by calling the callin system and providing the following information:
(i) Owner and caller name and phone number;
(ii) Vessel name and permit number;
(iii) Type of trip to be taken;
(iv) Port of departure; and
(v) That the vessel is beginning a trip.
(2) A DAS begins once the call has been received and a confirmation number is given by the Regional Administrator, or when a vessel leaves port, whichever occurs first, unless otherwise specified in paragraph (e)(2)(iii) of this section.
(3) Vessels issued a limited access monkfish Category C, D, F, G, or H permit that are allowed to fish as a monkfish Category A or B vessel in accordance with the provisions of Sec. 648.92(b)(2)(i) are subject to the callin notification requirements for limited access monkfish Category A or B vessels specified under this paragraph (h) for those monkfish DAS when there is not a concurrent NE multispecies DAS. (4) The vessel's confirmation numbers for the current and immediately prior NE multispecies, monkfish, or red crab fishing trip must be maintained on board the vessel and provided to an authorized officer immediately upon request.
(5) At the end of a vessel's trip, upon its return to port, the vessel owner or owner's representative must call the Regional Administrator and notify him/her that the trip has ended by providing the following information:
(i) Owner and caller name and phone number;
(ii) Vessel name and permit number;
(iii) Port of landing; and
(iv) That the vessel has ended its trip.
(6) A DAS ends when the call has been received and confirmation has been given by the Regional Administrator, or when a vessel enters port at the end of a fishing trip, whichever occurs later, unless otherwise specified in paragraph (e)(2)(iii) of this section.
(7) The Regional Administrator will furnish a phone number for DAS notification callins upon request.
(8) Any vessel that possesses or lands per trip more than 400 lb (181 kg) of scallops; any vessel issued a limited access NE multispecies permit subject to the NE multispecies DAS program requirements that possesses or lands regulated NE multispecies, except as provided in Sec. Sec. 648.10(h)(9)(ii), 648.17, and 648.89; any vessel issued a limited access monkfish permit subject to the monkfish DAS program and callin requirement that possess or lands monkfish above the incidental catch trip limits specified in Sec. 648.94(c); and any vessel issued a limited access red crab permit subject to the red crab DAS program and callin requirement that possesses or lands red crab above the incidental catch trip limits specified in Sec. 648.263(b)(1) shall be deemed to be in its respective DAS program for purposes of counting DAS and will be charged DAS from its time of sailing to landing, regardless of whether the vessel's owner or authorized representative provides adequate notification as required by paragraphs (e) through (h) of this section.
(9) Vessels electing to use VMS. (i) A vessel issued a limited access monkfish, Occasional scallop, or Combination permit must use the callin system specified in paragraph (h) of this section, unless the owner of such vessel has elected to provide the notifications required by paragraph (g) of this section, through VMS as specified under paragraph (h)(9)(ii) of this section. Any vessel issued a limited access monkfish or an Occasional scallop permit that has elected to provide notifications through VMS must continue to provide notifications through VMS for the entire fishing year.
(ii) A vessel issued a limited access monkfish or Occasional scallop permit may be authorized by the Regional Administrator to provide the notifications required by paragraph (e) of this section using the VMS specified in paragraph (b) of this section. For the vessel to become authorized, the vessel owner must provide documentation to the Regional Administrator at the time of application for a limited access permit that the vessel has installed on board an operational VMS as provided under Sec. 648.9(a). A vessel that is authorized to use the VMS in lieu of the callin requirement for DAS notification shall be subject to the requirements and presumptions described under paragraphs (e)(2)(i) through (v) of this section. This paragraph (h) does not apply to vessels electing to use the VMS. (i) Temporary authorization for use of the callin system. The Regional Administrator may authorize or require, on a temporary basis, the use of the callin system of notification specified in paragraph (h) of this section, instead of using the VMS. If use of the callin system is authorized or required, the Regional Administrator shall notify affected permit holders through a letter, notification in the Federal Register, email, or other appropriate means.
(j) Additional NE multispecies callin requirements(1) Spawning season callin. With the exception of a vessel issued a valid Small Vessel category permit or the Handgear A permit category, vessels subject to the spawning season restriction described in Sec. 648.82 must notify the Regional Administrator of the commencement date of their 20day period out of the NE multispecies fishery through the IVR system (or through VMS, if required by the Regional Administrator) and provide the following information:
(i) Vessel name and permit number;
(ii) Owner and caller name and phone number; and
(iii) Commencement date of the 20day period.
(2) Gillnet callin. A vessel subject to the gillnet restriction described in Sec. 648.82 must notify the Regional Administrator of the commencement of its time out of the NE multispecies gillnet fishery using the procedure described in paragraph (k)(1) of this section. 7. In Sec. 648.11, paragraph (i)(3)(v) is added to read as follows: [[Page 20535]]
Sec. 648.11 Atsea sampler/observer coverage.
* * * * *
(i) * * *
(3) * * *
(v) Observers must accurately record their sampling data, write complete reports, and report accurately any observations relevant to conservation of marine resources or their environment.
* * * * *
8. In Sec. 648.13, paragraph (d) is revised to read as follows: Sec. 648.13 Transfers at sea.
* * * * *
(d) All persons are prohibited from transferring or attempting to transfer at sea summer flounder from one vessel to another vessel, except for vessels that have not been issued a Federal permit and fish exclusively in state waters.
* * * * *
9. The suspension of paragraphs (a)(50), (53), (121), (129), (130), (132), (146), (153), (165), (173) through (175), and (177), (c)(7), (23) through (26), (33), (39), (50), (51), (57) through (78), (81) through (83), (85), (86), (88), and (89), and (g)(4) and (5) is lifted. 10. Revise Sec. 648.14 to read as follows:
Sec. 648.14 Prohibitions.
(a) General prohibitions. It is unlawful for any person to do any of the following:
(1) Violate any provision of this part, the MagnusonStevens Act, or any regulation, notice, or permit issued under the MagnusonStevens Act, or any other statute administered by NOAA.
(2) Assist, aid, or abet in the commission of any act prohibited by the MagnusonStevens Act; or any regulation, notice, or permit issued under the MagnusonStevens Act; or any other statute administered by NOAA.
(3) Fail to report to the Regional Administrator within 15 days any change in the information contained in any permit or permit application.
(4) Falsify or fail to affix and maintain vessel markings as required by Sec. 648.8.
(5) Make any false statement or provide any false information on, or in connection with, an application, declaration, record or report under this part.
(6) Fail to comply in an accurate and timely fashion with the log report, reporting, record retention, inspection, or other requirements of Sec. 648.7, or submit or maintain false information in records and reports required to be kept or filed under Sec. 648.7.
(7) Possess, import, export, transfer, land, or have custody or control of any species of fish regulated pursuant to this part that do not meet the minimum size provisions in this part, unless such species were harvested exclusively within state waters by a vessel not issued a permit under this part or whose permit has been surrendered in accordance with applicable regulations.
(8) Fail to comply with any sea turtle conservation measure specified in 50 CFR parts 222 and 223, including any sea turtle conservation measure implemented by notification in the Federal Register.
(9) Violate any provision of an inseason action to adjust trip limits, gear usage, season, area access and/or closure, or any other measure authorized by this part.
(10) Food safety program. (i) Purchase, receive for a commercial purpose other than transport to a testing facility, or process; or attempt to purchase, receive for commercial purpose other than transport to a testing facility; or process, outside Maine, ocean quahogs harvested in or from the EEZ within the Maine mahogany quahog zone, except at a facility participating in an overall food safety program, operated by the official state agency having jurisdiction, that utilizes food safetybased procedures including sampling and analyzing for PSP toxin consistent with procedures used by the State of Maine for such purpose.
(ii) Land ocean quahogs outside Maine that are harvested in or from the EEZ within the Maine mahogany quahog zone, except at a facility participating in an overall food safety program, operated by the official state agency having jurisdiction, that utilizes food safety based procedures including sampling and analyzing for PSP toxin consistent with procedures used by the State of Maine for such purpose. (iii) Fish for, harvest, catch, possess; or attempt to fish for, harvest, catch, or possess any bivalve shellfish, including Atlantic surfclams, ocean quahogs, and mussels with the exception of sea scallops harvested only for adductor muscles and shucked at sea, or a vessel issued and possessing on board a LOA from the Regional Administrator authorizing the collection of shellfish for biological sampling and operating under the terms and conditions of said LOA, in the area of the EEZ bound by the following coordinates in the order stated:
(A) 43[deg] 00' N. lat., 71[deg] 00' W. long.;
(B) 43[deg] 00' N. lat., 69[deg] 00' W. long.;
(C) 41[deg] 39' N. lat., 69[deg] 00' W. long;
(D) 41[deg] 39' N. lat., 71[deg] 00' W. long., and then ending at the first point.
(iv) Fish for, harvest, catch, or possess; or attempt to fish for, harvest, catch, or possess; any scallops except for scallops harvested only for adductor muscles and shucked at sea, or a vessel issued and possessing on board a Letter of Authorization (LOA) from the Regional Administrator authorizing collection of shellfish for biological sampling and operating under the terms and conditions of said LOA, in the area of the EEZ bound by the following coordinates in the order stated:
(A) 41[deg] 39' N. lat., 71[deg] 00' W. long.;
(B) 41[deg] 39' N. lat., 69[deg] 00' W. long.;
(C) 40[deg] 00' N. lat., 69[deg] 00' W. long.;
(D) 40[deg] 00' N. lat., 71[deg] 00' W. long., and then ending at the first point.
(b) Vessel and operator permits. It is unlawful for any person to do any of the following:
(1) Fish for, take, catch, harvest or land any species of fish regulated by this part in or from the EEZ, unless the vessel has a valid and appropriate permit issued under this part and the permit is on board the vessel and has not been surrendered, revoked, or suspended.
(2) Alter, erase, or mutilate any permit issued under this part or any document submitted in support of an application for any such permit.
(3) Operate or act as operator of a vessel that fishes for or possesses any species of fish regulated by this part, or that is issued a vessel permit pursuant to this part, without having been issued and possessing a valid operator's permit.
(4) Fish for, possess, or land species regulated under this part with or from a vessel that is issued a limited access or moratorium permit under Sec. 648.4(a) and that has had the horsepower, length, GRT, or NT of such vessel or its replacement upgraded or increased in excess of the limitations specified in Sec. 648.4(a)(1)(i)(E) and (F). (5) Fish for, take, catch, harvest or land any species of fish regulated by this part for which the vessel is eligible to possess under a limited access or moratorium permit prior to the time the vessel has been reissued the applicable limited access or moratorium permit by NMFS.
(6) Attempt to replace a limited access or moratorium fishing vessel, as specified at Sec. 648.4(a)(1)(i)(E), more than once during a permit year, unless the vessel has been rendered permanently inoperable.
(7) Purchase, possess, or receive from a vessel for a commercial purpose, other than solely for transport on land, any species of fish for which a vessel permit is required under this part, unless the [[Page 20536]]
vessel possesses a valid vessel permit issued under this part. (8) Transfer, remove, or offload, for a commercial purpose; or attempt to transfer, remove, land, or offload, for a commercial purpose; at sea, any species regulated under this part, unless the transferring vessel has been issued and carries on board a valid LOA from the Regional Administrator, or is otherwise exempted, and the receiving vessel has been issued and has on board a valid Federal permit for the species that is being transferred.
(9) Fish for, possess, or retain fish, during a fishing trip, aboard a Federally permitted vessel that, in the absence of an emergency, has not been operating under its own power for the entire trip.
(c) Dealer permits. It is unlawful for any person to do any of the following:
(1) Purchase, possess or receive for a commercial purpose; or attempt to purchase, possess or receive for a commercial purpose; other than solely for transport on land, any species regulated under this part unless in possession of a valid dealer permit issued under this part, except that this prohibition does not apply to species that are purchased or received from a vessel not issued a permit under this part that fished exclusively in state waters, or pursuant to the Sec. 648.17 NAFO Regulatory Area exemptions.
(2) Sell, barter, trade, or transfer; or attempt to sell, barter, trade, or transfer; other than solely for transport on land, any Atlantic herring, multispecies, or monkfish from a vessel that fished for such species in the EEZ, unless the dealer or transferee has a valid dealer permit issued under Sec. 648.6. A person who purchases and/or receives Atlantic herring at sea for his own personal use as bait, and does not have purse seine, midwater trawl, pelagic gillnet, sink gillnet, or bottom trawl gear on board, is exempt from the requirement to possess an Atlantic herring dealer permit.
(d) VMS. It is unlawful for any person to do any of the following: (1) Tamper with, damage, destroy, alter, or in any way distort, render useless, inoperative, ineffective, or inaccurate the VMS, VMS unit, or VMS signal required to be installed on or transmitted by vessel owners or operators required to use a VMS by this part. (2) Fail to submit the appropriate VMS activity code for the intended activity at the appropriate time, in accordance with Sec. 648.10.
(e) Observer program. It is unlawful for any person to do any of the following:
(1) Assault, resist, oppose, impede, harass, intimidate, or interfere with or bar by command, impediment, threat, or coercion any NMFSapproved observer or sea sampler conducting his or her duties; or any authorized officer conducting any search, inspection,
investigation, or seizure in connection with enforcement of this part; or any official designee of the Regional Administrator conducting his or her duties, including those duties authorized in Sec. 648.7(g). (2) Refuse to carry onboard a vessel an observer or sea sampler if requested to do so by the Regional Administrator or the Regional Administrator's designee.
(3) Fail to provide information, notification, accommodations, access, or reasonable assistance to either a NMFSapproved observer or sea sampler conducting his or her duties aboard a vessel as specified in Sec. 648.11.
(4) Submit false or inaccurate data, statements, or reports. (f) Research and experimental fishing. It is unlawful for any person to violate any terms of a letter authorizing experimental fishing pursuant to Sec. 648.12 or fail to keep such letter on board the vessel during the period of the experiment.
(g) Squid, mackerel, and butterfish(1) All persons. Unless participating in a research activity as described in Sec. 648.21(g), it is unlawful for any person to do any of the following:
(i) Possession and landing. Take, retain, possess, or land more mackerel, squid or butterfish than specified under, or after the effective date of, a notification issued under Sec. 648.22. (ii) Transfer and purchase. (A) Purchase or otherwise receive for a commercial purpose; other than solely for transport on land; mackerel, squid, or butterfish caught by a vessel that has not been issued a Federal mackerel, squid, and butterfish vessel permit, unless the vessel fishes exclusively in state waters.
(B) Transfer Loligo, Illex, or butterfish within the EEZ, unless the vessels participating in the transfer have been issued a valid Loligo and butterfish or Illex moratorium permit and are transferring species for which the vessels are permitted, or have a valid squid/ butterfish incidental catch permit and the appropriate LOA from the Regional Administrator.
(2) Vessel and operator permit holders. Unless participating in a research activity as described in Sec. 648.21(g), it is unlawful for any person owning or operating a vessel issued a valid mackerel, squid, and butterfish fishery permit, or issued an operator's permit, to do any of the following:
(i) General requirement. Fail to comply with any measures implemented pursuant to Sec. 648.21.
(ii) Possession and landing. (A) Possess more than the incidental catch allowance of Loligo or butterfish, unless issued a Loligo squid and butterfish fishery moratorium permit.
(B) Possess more than the incidental catch allowance of Illex squid, unless issued an Illex squid moratorium permit.
(C) Take, retain, possess, or land mackerel, squid or butterfish in excess of a possession allowance specified in Sec. 648.22. (D) Possess 5,000 lb (2.27 mt) or more of butterfish, unless the vessel meets the minimum mesh size requirement specified in Sec. 648.23(a)(2).
(E) Take, retain, possess, or land mackerel, squid, or butterfish after a total closure specified under Sec. 648.22.
(iii) Gear and vessel requirements. (A) Fish with or possess nets or netting that do not meet the gear requirements for Atlantic mackerel, Loligo, Illex, or butterfish specified in Sec. 648.23(a); or that are modified, obstructed, or constricted, if subject to the minimum mesh requirements, unless the nets or netting are stowed in accordance with Sec. 648.23(b) or the vessel is fishing under an exemption specified in Sec. 648.23(a)(3)(ii).
(B) Fish for, retain, or possess Atlantic mackerel in or from the EEZ with a vessel that exceeds either 165 ft (50.3 m) in length overall and 750 GRT, or a shaft horsepower (shp) of 3,000 shp, except for the retention and possession of Atlantic mackerel for processing by a vessel holding a valid atsea processor permit pursuant to Sec. 648.6(a)(2). It shall be presumed that the Atlantic mackerel on board were harvested in or from the EEZ, unless the preponderance of reliable evidence available indicates otherwise.
(C) Enter or fish in the mackerel, squid, and butterfish bottom trawling restricted areas, as described in Sec. 648.23(a)(4). (3) Charter/party restrictions. Unless participating in a research activity as described in Sec. 648.21(g), it is unlawful for the owner and operator of a party or charter boat issued a mackerel, squid, and butterfish fishery permit (including a moratorium permit), when the boat is carrying passengers for hire, to do any of the following: (i) Violate any recreational fishing measures established pursuant to Sec. 648.21(d).
(ii) Sell or transfer mackerel, squid, or butterfish to another person for a commercial purpose.
[[Page 20537]]
(iii) Carry passengers for hire while fishing commercially under a mackerel, squid, and butterfish fishery permit.
(4) Presumption. For purposes of this part, the following presumption applies: All mackerel and butterfish possessed on board a party or charter boat issued a mackerel, squid, and butterfish fishery permit are deemed to have been harvested from the EEZ.
(h) Atlantic salmon. Unless participating in a research activity as described in Sec. 648.21(g), it is unlawful for any person to do any of the following:
(1) Possession and landing. (i) Use any vessel of the United States for taking, catching, harvesting, fishing for, or landing any Atlantic salmon taken from or in the EEZ. It shall be presumed that the Atlantic salmon on board were harvested in or from the EEZ, unless the preponderance of reliable evidence available indicates otherwise. (ii) Transfer, directly or indirectly; or attempt to transfer, directly or indirectly; to any vessel any Atlantic salmon taken in or from the EEZ.
(2) [Reserved]
(i) Atlantic sea scallops(1) All persons. It is unlawful for any person to do any of the following:
(i) Permit requirement. Fish for, possess, or land, scallops without the vessel having been issued and carrying onboard a valid scallop permit in accordance with Sec. 648.4(a)(2), unless the scallops were harvested by a vessel that has not been issued a Federal scallop permit and fishes for scallops exclusively in state waters. (ii) Gear and crew requirements. Have a shucking or sorting machine on board a vessel while in possession of more than 400 lb (181.4 kg) of shucked scallops, unless that vessel has not been issued a scallop permit and fishes exclusively in state waters.
(iii) Possession and landing. (A) Fish for or land per trip, or possess at any time prior to a transfer to another person for a commercial purpose, other than solely for transport on land: (1) In excess of 40 lb (18.1 kg) of shucked scallops at any time, 5 bu (1.76 hL) of inshell scallops shoreward of the VMS Demarcation Line, or 10 bu (3.52 hL) of inshell scallops seaward of the VMS Demarcation Line, unless:
(i) The scallops were harvested by a vessel that has not been issued a scallop permit and fishes for scallops exclusively in state waters.
(ii) The scallops were harvested by a vessel that has been issued and carries on board a limited access scallop permit and is properly declared into the scallop DAS or Area Access program.
(iii) The scallops were harvested by a vessel that has been issued and carries on board an IFQ scallop permit and is properly declared into the IFQ scallop fishery.
(iv) The scallops were harvested by a vessel that has been issued and carries on board an NGOM scallop permit, and is properly declared into the NGOM scallop management area, and the NGOM TAC specified in Sec. 648.62 has not been harvested.
(v) The scallops were harvested by a vessel that has been issued and carries on board an Incidental scallop permit allowing up to 40 lb (18.1 kg) of shucked or 5 bu (1.76 hL) of inshell scallops; is carrying an atsea observer; and is authorized by the Regional Administrator to have, and the vessel does not exceed, an increased posses

FOR FURTHER INFORMATION CONTACT

Moira C. Kelly, Fishery Policy Analyst, phone (978) 2819218, fax (978) 2819135.