[Federal Register Volume 61, Number 44 (Tuesday, March 5, 1996)]
[Proposed Rules]
[Pages 8540-8563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4709]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 651
[Docket No. 960216032-6032-01; I.D. 021296E]
RIN 0648-AH70
Northeast Multispecies Fishery; Amendment 7
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 Amendment 7 to the
Northeast Multispecies Fishery Management Plan (FMP). These regulations
would: Establish an annual target Total Allowable Catch (TAC) for
regulated species; accelerate the current days-at-sea (DAS) effort
reduction program; eliminate most of the current exemptions to the
effort control program; add new closed areas; restrict fisheries in the
Gulf of Maine/Georges Bank (GOM/GB) and Southern New England (SNE)
regulated mesh areas having more than a minimal bycatch of regulated
species; establish a possession limit for vessels 30 ft (9.1 m) or less
in length; establish the current experimental Nantucket Shoals dogfish
fishery as an exempted fishery; modify the permit categories; establish
restrictions on charter or party, and recreational vessels; revise and
expand the existing framework provisions; and revise the harbor
porpoise protection framework procedures. The intended effect of this
rule is to rebuild multispecies stocks.
DATES: Comments are invited on the proposed Amendment 7 and its
supporting documents, including the regulatory impact review (RIR) and
the initial regulatory flexibility analysis (IRFA) contained within the
RIR, and the proposed rule through April 19, 1996.
ADDRESSES: Comments should be sent to Dr. Andrew A. Rosenberg,
Director, NMFS, Northeast Regional Office, 1 Blackburn Drive,
Gloucester, MA 01930. Mark the outside of the envelope ``Comments on
Multispecies Plan.''
Comments regarding burden-hour estimates for collection-of-
information requirements contained in this proposed rule should also be
sent to the Office of Information and Regulatory Affairs, Office of
Management and Budget (OMB), Washington, D.C. 20503 (Attention: NOAA
Desk Officer).
Copies of proposed Amendment 7, its RIR and the IRFA contained
within the RIR, and the Final Supplemental Environmental Impact
Statement (FSEIS) are available from Douglas Marshall, Executive
Director, New England Fishery Management Council, Suntaug Office Park,
5 Broadway (US Rte. 1), Saugus, MA 01906-1097.
FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, Fishery Policy
Analyst, 508-281-9252.
SUPPLEMENTARY INFORMATION: Regulations implementing Amendment 5 to the
FMP were published on March 1, 1994 (59 FR 9872). Amendment 5's
principal objective was to eliminate the overfished condition of the
multispecies finfish stocks. An emergency rule to further protect the
severely depleted haddock resource was issued by NMFS and published
January 3, 1994 (59 FR 26). This rule was extended through further
rulemaking and permanently became effective with the publication of
Secretarial Amendment 6 to the FMP (59 FR 32134).
Amendment 7 development began in response to an unprecedented
report entitled, ``Special Advisory: Groundfish Status on Georges
Bank,'' issued and delivered by the Northeast Regional Stock Assessment
Workshop to the New England Fishery Management Council (Council) at its
August 9-10, 1994, meeting. The Advisory announced that Amendment 5 to
the FMP is inadequate to achieve the reductions in fishing mortality
rates needed to rebuild the principal groundfish stocks of cod, haddock
and yellowtail flounder and cautioned that fishing mortality ``should
be reduced to as low a level as possible, approaching zero'' to prevent
further decline and to rebuild already collapsed stocks.
In response to this advice, the Council began development of
Amendment 7 to the FMP. As an interim measure, the Council initiated,
and NMFS approved, an emergency interim rule (59 FR 63926, December 12,
1994) to afford some additional protection to the multispecies resource
during the development of Amendment 7. This emergency action was
extended on March 13, 1995 (60 FR 13078). At the request of the
Council, NMFS approved Framework Adjustment 9 to the FMP (60 FR 19364,
April 18, 1995) to implement measures contained in the emergency action
on a permanent basis, until Amendment 7 could be finalized and
implemented.
Recent scientific information from the Northeast Fisheries Science
Center (NEFSC) confirms that groundfish stocks are at historical lows.
Results from Stock Assessment Workshop 19 (SAW 19), presented to the
Council at its February 15-16, 1995, meeting concluded that GOM cod
continues to be overexploited and exhibits persisting low biomass
levels. Stock assessment scientists counsel that spawning stock biomass
decline for GOM cod should be halted and reversed immediately.
Similarly, results from SAW 20 on GB haddock, presented at the August
10-11, 1995, Council meeting indicate that this stock remains in an
overfished and collapsed condition and that fishing mortality needs to
remain as low as possible.
In addition, the most recent U.S. and Canadian bottom trawl survey
indices, through fall 1995 for GB and SNE yellowtail flounder and GB
and GOM cod, indicate no significant new recruitment in any of these
stocks and suggest a continuation of consistently low biomass levels.
Overall, there is very little recruitment and very low biomass levels
observed for all of these stocks and conservation of the vulnerable
existing year classes has become critical. In the absence of immediate
measures to husband older year classes and begin stock rebuilding,
scientists caution that the recovery period may be substantially
lengthened.
For haddock, both U.S. and Canadian survey results indicate a small
amount of recruitment into the fishery, which, if mortality levels are
kept low, may contribute to rebuilding these stocks.
Amendment 7
This Amendment would implement Alternative 3 of the Council's
Amendment 7 public hearing document as refined and modified by the
Council for adoption as its preferred alternative. The foundation of
this action is an acceleration of the Amendment 5 effort-reduction
schedule. This action would build and expand upon the current
management system, serving as a basic structure to be further developed
by the Council through the framework process.
Disapproved Measures
Three measures proposed in Amendment 7 have been disapproved by
NMFS and are not included in this proposed rule. The allowance of
[[Page 8541]]
additional DAS for trawl vessels in the Individual DAS category that
use 8-inch mesh; the 300-lb (136.1-kg) possession allowance of
regulated species for trawl vessels that use 8-inch mesh in an exempted
fishery; and the establishment of a Limited Access permit category for
vessels that fished in the Possession Limit Open Access category under
Amendment 5, have been determined to be inconsistent with the national
standards of the Magnuson Fishery Conservation and Management Act
(Magnuson Act) or other applicable law.
The first measure, which would grant additional DAS for large mesh
trawl vessels, was proposed by the Council based on its policy to
provide incentives for using mesh larger than the minimum size. The
Council provided this incentive to trawl and gillnet vessels that would
have received the Fleet category DAS allocation and to trawl vessels
that would receive the Individual category DAS allocation, but did not
provide it to the gillnet vessels that may be permitted in this
category. This omission, whether intentional or unintentional, is
inequitable; and was therefore disapproved, because it is inconsistent
with Magnuson Act National Standard 4. Increased DAS for large mesh
Fleet category vessels (both gillnet and trawls) was not disapproved,
because no inequity is established within that category.
The 300-lb (136.1-kg) allowance of regulated species bycatch for
vessels fishing in an exempted fishery (i.e., a fishery that has less
than five-percent bycatch of regulated species) was disapproved,
because it conflicts with the Council's proposed exempted fishery
measure. A fishery can be exempted only if sufficient information is
available to demonstrate that it would have a minimal bycatch of
regulated species, otherwise the fishery is not allowed. The exemption
standard is a strong disincentive against regulated species bycatch.
The 300-lb (136.1-kg) allowance would provide an incentive for
regulated species bycatch, counteracting the effect of the bycatch
prevention measure. Therefore, because this measure would counteract
the conservation effect of the bycatch protection measures, it cannot
be reasonably calculated to promote conservation; therefore it is
inconsistent with National Standard 4.
The proposed establishment of a new possession limit category was
also disapproved. This category would establish an inequity and impose
an undue administrative burden on NMFS. The Council set the possession
limit for this category at zero, making it effectively more restrictive
than the open access categories. Thus, a vessel applying to fish in
this category would be committing to at least one year without the
ability to land regulated species. The administrative burden of
establishing this category is likely to be significant due to the
permit eligibility reviews and appeal process. The Amendment does not
make clear the purpose of the category, that is, which sector of the
industry would be served by it. This measure would present a
significant administrative cost to NMFS with no discernable benefit or
purpose.
The Council will have the opportunity to reconsider, modify, and
possibly resubmit these measures under the Magnuson Act's 60-day
accelerated review schedule.
Measures of Concern
Public comments are particularly sought on several measures. The
first such measure is the possession allowance for the Open Access
Handgear Category that would allow a directed fishery on multispecies
with only a 300-lb (136.1-kg) constraint on cod, haddock and yellowtail
catch and a requirement to use hand gear. Charter/Party permit holders
and recreational vessels may obtain the Handgear permit, which raises
enforcement concerns about determining which set of rules a vessel may
be fishing under at any given time. A call-in requirement for Charter/
Party vessels is proposed to aid in distinguishing which type of trip a
vessel is conducting, but this would only provide a partial solution at
the expense of complicating the DAS call-in program.
The second measure is the white hake exemption program presented in
the Amendment as an option for future implementation by the Director,
Northeast Regional, NMFS (Regional Director). This exemption would
allow a directed fishery on a regulated species, white hake, outside
the constraint of a DAS. This possible exemption raises concern as this
fishery is currently fully exploited and may not be able to withstand
additional pressure.
Third, the Large Mesh DAS permit, which would allocate additional
DAS to vessels using mesh larger than the minimum size, is based on the
notion that the selectivity of this mesh would compensate for the
additional allocation of DAS. However, no mesh selectivity studies for
7- (17.8 cm) and 8-inch (20.3 cm) mesh in these fisheries exist yet.
Fourth, the Council proposed a change to the boundary for the Mid-
Atlantic area to incorporate the inshore waters of New York. For the
purposes of enforcement, the proposed rule simplifies the Council's
definition of the new boundary line by using fewer coordinates. The
simplified definition would appear to achieve the Council's objective.
This rule proposes to define the Mid-Atlantic regulated mesh area as
the area bounded on the east by a line running from the Rhode Island
shoreline along 71 deg.47.5' W. long. to its intersection with the
three-nautical mile line, south along the three-nautical mile line to
Montauk Point, southwesterly along the three-nautical mile line to the
intersection of 72 deg.30' W. long., and south along that line to the
intersection of the outer boundary of the EEZ (see Figure 1 to part
651).
Amendment 7 did not specifically exempt mid-water trawl gear from
the proposed GOM area closures, but left open the possibility that this
gear may become exempt in the future. NMFS is seeking public comment on
this possibility.
Because Amendment 7 proposes to eliminate the DAS exemption for
gillnet vessels, most gillnet vessels will become permitted in either
the Fleet or the Individual DAS category. NMFS is seeking comment on
how to calculate the number of DAS for any gillnet vessel that may
appeal the number of Individual DAS assigned to it by NMFS because a
vessel's initial allocation of DAS is currently based on time away from
the dock and a gillnet DAS is proposed to be counted under this rule as
time when gear is in the water.
Fifth, the Council proposed the allowance of a possession limit for
winter flounder in the Mid-Atlantic regulated mesh area. NMFS is
concerned about the impact of this, and the Winter Flounder State
Waters exemptions because of the severely overfished status of this
resource.
The following summarizes the remaining proposed measures.
Total Allowable Catch
The Amendment would establish a procedure for setting annual target
TAC levels for specific cod, haddock, and yellowtail flounder stocks
(GB cod, haddock, and yellowtail flounder, SNE yellowtail flounder, and
GOM cod), and an aggregate TAC for the combined stocks of the other
regulated species (pollock, redfish, white hake, witch flounder,
American plaice, winter flounder and windowpane flounder). This
procedure would be used annually to set TACs, with the exception of
TACs for 1996, which would be set by this rule. The TACs would be set
based on the best available scientific information and would provide a
measure by which to evaluate the effectiveness of the management
program and to make determinations on the need for
[[Page 8542]]
adjustments to this program on an annual basis. The TAC levels would be
set so as to attain a fishing mortality rate that would allow cod,
haddock, and yellowtail flounder stocks to rebuild over time, and to
maintain current potential yield for the seven other regulated species.
The 1994 special advisory concluded that fishing mortality ``should
be reduced to as low a level possible, approaching zero'' for GB stocks
of cod, haddock and yellowtail flounder, and SNE yellowtail flounder.
The biological reference point of F0.1 was selected by the Council
as the most practicable way to achieve this goal, considering the needs
of the fishery. For GOM cod, a biological reference point of Fmax
was selected because this stock is not as depleted as the others. TACs
for the remaining regulated species would be set at levels
corresponding to recent fishing mortality rates to ensure that effort
is not redirected on these stocks. Because the Council's overriding
management objective is to rebuild the five primary stocks of cod,
haddock and yellowtail flounder, the management program established
under Amendment 5, and expanded in this Amendment, is based on these
primary stocks as well. In other words, the remaining multispecies
stocks, other than cod, haddock and yellowtail flounder, would be
protected under the management program developed for the primary
stocks.
Using the 1993 fishing mortality rates contained in Amendment 5 as
a baseline, an 80 percent average reduction in the fishing mortality
rate is required to achieve the fishing mortality goals for the above
mentioned stocks. This Amendment proposes to accomplish the reduction
primarily through a combination of reductions in DAS, bycatch controls,
area closures and elimination of previously established exemptions to
effort reduction programs.
Specification of 1996 and 1997 TAC and Adjustments
For the period May 1, 1996, through April 30, 1997, the TAC levels
that would correspond to the fishing mortality rate objectives are
contained in the table below (calculation of the TACs is based on
scientific assessment incorporating data and estimates of stock sizes,
recruitment patterns, natural and fishing mortality, growth, etc.).
Table 1.--1996 TAC Specifications
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1996
target
Species TACs
(metric
tons)
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Georges Bank cod............................................. 1,851
Georges Bank haddock......................................... 2,801
Georges Bank yellowtail flounder............................. 385
Gulf of Maine cod............................................ 2,761
Southern New England yellowtail flounder..................... 150
Aggregate for remaining regulated species.................... 25,500
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Specification of TACs and adjustments for 1997 and beyond would be
accomplished through the annual review framework process discussed
later in this document.
Days-at-Sea Effort Control Program
The Amendment proposes to reduce DAS in two equal increments, on
May 1, 1996 and May 1, 1997, to the level called for in the final year
of the current Amendment 5 DAS reduction schedule. In addition, vessels
previously exempted from the DAS program would be subject to the effort
control program through this Amendment. Specifically, vessels in the
45-ft (13.7 m)-and-less, Hook-Gear and Gillnet Permit categories were
exempted from the DAS program. Amendment 7 proposes to eliminate these
exemptions and allocate DAS to all but the smallest group of vessels,
those 30 ft (9.1 m) or less in length.
Existing limited access vessels subject to the effort-control
program would continue under reduced DAS allocations. Vessels currently
in the Individual and Combination DAS permit categories would have
their DAS allocation reduced by 35 percent of their Amendment 5
baseline in fishing year 1996 and by 50 percent in fishing year 1997.
Vessels assigned to the Fleet DAS limited access permit category would
receive an allocation of 139 DAS in the fishing year 1996 and 88 DAS in
the fishing year 1997.
Limited access vessels that agree to use sink gillnet gear with a
minimum mesh size of 7 inches (17.8 cm) for the entire fishing year
could opt to fish under a new permit category ``Large Mesh DAS'' and
would be allocated 155 DAS in 1996, and 120 DAS in 1997. Similarly,
trawl vessels choosing to fish exclusively with nets with a minimum
mesh size of 8 inches (20.32 cm) when fishing under a groundfish DAS
allocation could also enroll in this category and receive the same DAS
allocation. Again, DAS allocations for 1997 may change as the result of
the annual review process described under the framework provisions.
Limited access vessels 30 ft (9.1 m) or less in length that do not
fish under a DAS program would be restricted to a cod, haddock and
yellowtail flounder possession limit of up to a maximum combined weight
of 300 lb (136.1 kg), but would not be subject to any limits on other
multispecies finfish. These vessels may choose instead to fish under
the DAS program. Vessels issued a 1995 valid limited access
multispecies permit and fishing under the Small boat exemption (less
than or equal to 45 ft (13.7 m)) that are 20 ft (6.1 m) or less in
length, would initially be assigned to the Small Vessel (less than or
equal to 30 ft (9.1 m)) category. However, due to different methods of
measuring overall length, vessels greater than 20 ft (6.1 m) but less
than or equal to 30 ft (9.1 m) would need to provide verification of
overall length to obtain a Small Vessel category permit.
With the exception of one 20-consecutive-day block of time between
March 1 through May 31 that all vessels subject to the effort-control
program would be required to ``take out'' of the fishery, this rule
would eliminate the Fleet DAS category requirement of taking blocks of
time ``out'' of the multispecies fishery as well as the layover day
provision currently required after completion of a multispecies DAS.
Upon implementation of this rule, DAS will be prorated to account
for a full fishing year beginning May 1, 1996, through April 30, 1997.
Closed Areas
In addition to retaining the current closed areas, the Amendment
would close additional areas, seasonally, to reduce further fishing
mortality. The areas selected for closure correspond to the current
time/area closures imposed on sink gillnet vessels in the GOM, that is,
the Northeast Closure Area, the Mid-Coast Closure Area, and the
Massachusetts Bay Closure Area to reduce the bycatch of harbor
porpoise. These areas would be closed to all gear types capable of
catching multispecies. By extending the closure of these areas to all
gear capable of catching multispecies, the goal of reducing bycatch of
harbor porpoise can be realized in a less complex and more enforceable
manner, while at the same helping to achieve the goal of reducing
fishing mortality for regulated species in the GOM. Further, because
the closure areas range from the U.S.-Canadian boundary, down through
Massachusetts Bay, and would be closed for different seasons and for
relatively short periods of time, they would affect vessels more or
less equally throughout the GOM region. All vessels would be allowed to
[[Page 8543]]
transit these areas, provided that their gear is properly stowed. To
minimize the impact of these closures on other fisheries, gears that
have little or no impact on regulated species would be exempt from the
closures.
Exempted Fisheries
Under this proposed rule, vessels fishing in the GOM/GB and SNE
regulated mesh areas would be allowed to fish only in an exempted
fishery, under a DAS (multispecies or scallop), or under the small
vessel category. An exempted fishery is one in which it has been
determined that there is a minimal bycatch of regulated species.
Currently, a five-percent standard is applied to fisheries utilizing
mesh smaller than the minimum mesh size in the GOM, GB or SNE regulated
mesh areas. This rule would extend the restriction to large mesh
fisheries and would revise the requirement to reflect the Council's
intent that the five-percent standard is an absolute maximum and that
other restrictions on fishing gear and/or seasons may be considered to
reduce bycatch.
Changes To Permit Categories
The Amendment would establish two additional limited access permit
categories and allow some vessels in an open access category an
opportunity to qualify for a limited access permit under specified
criteria.
During the development of Amendment 5, the open access Hook-Gear
category was promoted by the Council as the remaining opportunity for
new entrants into the multispecies fishery. Under Amendment 7, vessels
holding open access permits would no longer be allowed to target
regulated species. Consequently, individuals that may have invested in
vessels and gear based on the Council's guidance and that have
participated in the fishery would be given an opportunity to qualify
for a Hook-Gear limited access permit, if they meet the following
criteria: The vessel held a 1995 open access Hook-Gear permit and
submitted to the Regional Director, no later than January 26, 1996,
fishing log reports dated between June 1, 1994 and June 1, 1995,
documenting landings of at least 500 lb (226.8 kg) of multispecies
finfish. Under Amendment 5 regulations, all vessels issued a
multispecies permit are required to submit logbooks within 15 days
after the end of each month. The January 26, 1996 deadline, therefore,
actually is less restrictive than the current provision. Vessels
fishing under the limited access Hook-Gear permit would be restricted
to setting no more than 4,500 hooks per day. And finally, vessels
qualifying for the limited access Hook-Gear permit under this provision
would be restricted to that limited access category and could not
select a different limited access permit category.
A new limited access category also would be established for vessels
that currently have limited access status and that choose to use larger
than the minimum size mesh in exchange for an increased allocation of
DAS. The mesh requirements for this category were described under
``Days at Sea Effort Control Program.''
Vessels 30 ft (9.1 m) or less in length that choose to fish under
the Small Vessel permit category and vessels possessing an open access
Handgear permit category would not be allowed to fish for, possess, or
land regulated multispecies between March 1 and March 20 of each year.
This rule also proposes three new open access permit categories:
Handgear, Charter/party and Scallop Multispecies Possession Limit.
Vessels holding Handgear permits could possess, land, and sell up to
300 lb (136.1 kg), combined weight, of cod, haddock, and yellowtail
flounder, and unlimited amounts of the other multispecies finfish,
provided they use rod and reel or handlines only (no jigging machines).
Charter/party permits would be required for vessels that carry
passengers for hire and that do not possess a limited access permit.
These vessels would be restricted by the recreational fishing
provisions on minimum fish sizes, gear, and a prohibition on sale.
Charter/party permit holders could also obtain an open access Handgear
permit to fish commercially for multispecies finfish when they are not
fishing under hire. Limited access scallop vessels could obtain an open
access Scallop Multispecies Possession Limit permit and possess, land
and sell up to 300 lb (136.1 kg) of regulated species when fishing
under a scallop DAS.
Other Measures
The current experimental dogfish trawl fishery in the Nantucket
Shoals area would be implemented on a permanent basis during the time
period of June 1 through October 15 of each year. Extensive sea
sampling conducted by the Massachusetts Division of Marine Fisheries
has shown that this fishery has a very low bycatch of regulated species
and is, therefore, an appropriate candidate for exemption to the mesh
restrictions. Vessels participating in the Nantucket Shoals dogfish
exemption program would be required to have on board an authorization
letter issued by the Regional Director and would be allowed to retain
the bycatch species and amounts allowed in the GB/GOM small mesh
exemption area, as well as skates in an amount up to 10 percent of
other fish on board.
Limited access vessels would be allowed to continue fishing under
the current state waters winter flounder exemption program. This
program is available to vessels fishing in the waters of any state that
is in compliance with the Atlantic States Marine Fisheries Commission's
(ASMFC) Winter Flounder Fishery Management Program. Additionally,
limited access vessels that are not fishing under the DAS program would
be allowed to retain up to 500 lb (226.8 kg) of winter flounder when
fishing under this exemption program.
Vessels fishing in the Mid-Atlantic regulated mesh area, when not
fishing under a DAS, would be allowed to possess, land, and sell winter
flounder up to 10 percent by weight of all other species on board, or
200 lb (90.72 kg), whichever is less.
Vessels fishing in the SNE regulated mesh area would be allowed to
retain a bycatch of skate or skate parts up to 10 percent of the total
weight of other fish possessed on board, when fishing under the small-
mesh exemption provision. This possession limit represents a legitimate
bycatch when fishing in the exempted species program, while eliminating
the incentive to conduct a directed fishery on skate.
A provision would be added to the Observer Program section that
would allow the Regional Director to accept observer coverage funded by
sources other than NMFS, provided certain conditions are met. These
conditions are: That all observer coverage is determined by NMFS to be
in compliance with NMFS' sea-sampling guidelines and procedures; that
the owner or operator of the vessel complies with all requirements
under the multispecies plan; and that the observer is approved by the
Regional Director.
Because the Small Mesh Area 1 exemption area lies entirely within
the Mid-coast Closure Area, the season termination date for this
exemption would be changed to coincide with the closure of this area.
The current Small Mesh Area 1 season of July 15 through November 15
would, therefore, be changed to July 15 through October 31.
Amendment 7 requires that recreational and charter/party vessels
comply with the following restrictions: A 20-inch (50.8-cm) minimum
fish size for cod and haddock for the first year of the plan increasing
to 21-inches (53.3 cm) in the second year; a prohibition on the sale of
multispecies finfish; and a two hook-per-line limit for each angler.
[[Page 8544]]
In addition, there would be a 10 fish bag limit on cod and haddock,
combined, for recreational anglers. This would not include charter/
party vessels.
Charter/party vessels not fishing under the DAS program that
possess limited access multispecies permits or open access Handgear
permits would be required to fish under the recreational provisions,
when fishing for hire.
Amendment 7 would expand the FMP's existing framework provision to
remove the current 10-percent cap on annual reductions in fishing
mortality and establish an annual process to review progress towards
fishing mortality goals and to make changes in the management program,
including recreational provisions. A Multispecies Monitoring Committee
(MSMC) would be established to consist of technical staff from the New
England and Mid-Atlantic Council's, the NMFS Northeast Regional Office,
the NEFSC, and representatives from the U.S. Coast Guard, the fishing
industry, and from affected coastal states appointed by the ASMFC. The
MSMC would meet annually and, based on a review of the status of the
resource, would recommend to the Multispecies Committee of the Council
annual DAS adjustments by fleet sector, target TACs and any other
management measure adjustments necessary to achieve the FMP's goals.
After considering this recommendation, and any public comment, the
Council would then make a recommendation to the Regional Director on
annual TACs and adjustments to management measures, if any, for the
following fishing year. If the Council fails to submit a recommendation
to the Regional Director by February 1 that meets the FMP goals and
objectives, the Regional Director may publish as a proposed rule one of
the options reviewed and not rejected by the Council, provided that the
option meets the FMP objective and is consistent with other applicable
law. If, after considering public comment, the Regional Director
decides to approve the option published as a proposed rule, the action
will be published as a final rule in the Federal Register.
This rule would revise the current haddock possession limit to be
1,000 lb (453.6 kg) for vessels fishing under a multispecies DAS.
Existing regulations limit possession of haddock to 500 lb (226.8 kg)
or its equivalent, as measured by the volume of four standard boxes or
five standard totes. This volumetric measure has, in practice, allowed
vessels to land more than the 500-lb (226.8-kg) haddock trip limit
because volumetric equivalent measures turned out to be too generous.
This has made enforcement of this provision problematic for cases based
solely on landing records. Therefore, in response to the elimination of
the use of this volumetric measure and to address that industry concern
over vessels catching more than the 500-lb (226.8-kg) haddock trip
limit and consequently discarding fish, the possession limit of haddock
would be increased to 1,000 lb (453.6 kg). Although the status of
haddock remains critical, other more restrictive conservation measures
proposed under this plan would afford additional benefits to this
species.
For clarity, Latin nomenclature for genus and species has been
added to the Definitions section and removed from all other sections.
Unless changed by this proposed rule, all measures currently in
place under the FMP would remain in effect.
Classification
This action has been determined to be economically significant for
the purposes of E.O. 12866.
Section 304(a)(1)(D)(ii) of the Magnuson Act, as amended, requires
NMFS to publish implementing regulations proposed by a Council within
15 days of the receipt of an amendment and proposed regulations. At
this time, NMFS has not determined whether the amendment these rules
would implement is consistent with the national standards, other
provisions of the Magnuson Act, and other applicable law. NMFS, in
making that determination, will take into account the information,
views and comments received during the comment period.
The Council prepared a FSEIS for Amendment 7 describing the
possible impacts on the environment as a result of this rule. This
amendment is expected to have a significant impact on the human
environment. A copy of the FSEIS may be obtained from the Council (see
ADDRESSES).
The Biological Opinion (BO) for the original consultation on the
initial FMP in 1986 concluded that the fishing activities resulting
from that action may affect but are not likely to jeopardize the
continued existence of endangered and threatened species of marine
mammals, sea turtles, and fish or their critical habitat(s) found in
the affected area. This conclusion was re-evaluated in a BO for the
Marine Mammal Exemption Program MMEP initiated in 1989 under the Marine
Mammal Protection Act of 1972. New information regarding incidental
take was introduced and the conclusion of no jeopardy was reached.
Amendment 5 to the FMP contained measures to reduce the incidental take
of marine mammals and implemented significant effort reduction
measures. Due to the scope of the proposed amendment and the fact that
right whale critical habitat has been designated since the BO for
Amendment 5 to the Multispecies FMP was written, formal consultation
was re-initiated. This consultation does not change the basis for the
original determination. The consultation concluded that the provisions
of the proposed amendment may affect but are not likely to jeopardize
the continued existence of endangered and threatened species or their
critical habitat(s).
Adverse impacts on marine mammals resulting from fishing activities
conducted under this rule are discussed in the FSEIS.
In compliance with the Regulatory Flexibility Act, the Council has
prepared an IRFA as part of the RIR contained in Amendment 7 that
concludes that this proposed rule would have significant economic
impacts on a substantial number of small entities. The measures
proposed are restrictive, and impacts on the industry are expected to
be significant. In the early years of the program, some vessels may be
unable to cover their costs, in part because of these restrictions and
also due to the poor condition of the stocks. Such vessels are expected
to leave the fishery. Relative to the status quo, however, this
proposal produces positive significant effects on a substantial number
of small entities after stock abundance of groundfish recovers. The
majority of the vessels in the Northeast Multispecies Fishery are
considered small entities. The proposed action will reduce the overall
revenues of the multispecies industry by approximately 10 to 25 percent
in the first three years of the program compared to the status quo. The
impact of the proposed action will not be uniform for all vessels or
all sectors. Instead, the action will have different effects on
different gear groups, with trawlers being relatively more
disadvantaged than other vessels. This is primarily because trawlers
produce the largest share of total groundfish landings and have higher
costs. Alternately, smaller independent vessels are well suited to
adapting to year to year changes in species as availability changes.
Generally, smaller vessels are more flexible and have lower costs. The
proposed action would allow vessels 30 ft (9.1 m) or less in length to
be exempt from the DAS program, provided they comply with the 300-lb
(136.1-kg) cod, haddock, and yellowtail flounder possession limit. Cod,
haddock, and yellowtail flounder
[[Page 8545]]
comprise 15 percent of the revenue of these vessels.
The negative effects of the non-selected alternatives would be
greater than those of the proposed measures. Expected impacts of the
proposed action on crew income are negative in the first 5 years of the
program and positive thereafter. Likewise, the level of employment is
expected to decline in the short-term to an undetermined extent but
will rebound over the long term. Projected revenues from fishing will
be positive beginning in the year 2001, which will create demand for
other goods and services in the area and lead to increased production
and employment. The overall impacts will be positive. The proposed
action is expected to increase net benefits to the nation by $18
million over the 10-year rebuilding period. The recreational sector is
not expected to be negatively impacted by this action.
The proposed action is economically significant for the purposes of
E.O. 12866, but probably will not have an annual impact on the economy
of $100 million or more, and will not adversely affect the
productivity, environment, public health or safety or state, local or
tribal governments or communities in the long term. By increasing
multispecies catch rates in the long term and reducing operating costs,
the proposed action is expected to make the industry more productive
after recovery of groundfish stock abundance and to increase the
competitiveness of the domestic industry in comparison to foreign
suppliers.
This proposed rule contains six new collection-of-information
requirements subject to the Paperwork Reduction Act and have been
submitted to OMB for approval. The public reporting burden for these
collection-of-information requirements are indicated in the parentheses
in the following statements and include 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 this reporting
burden estimate or any other aspect of the collection of information,
including suggestions for reducing the burden, to NMFS and OMB (see
ADDRESSES).
The new requirements are:
1. The Nantucket Shoals Dogfish exemption, OMB# 0648-0202, will
require vessel notification (2 minutes/response).
Revisions to the existing requirements are:
2. Proof of VTS installation, OMB# 0648-0202, (2 minutes/response);
3. Call-in or card system, OMB# 0648-0202, (2 minutes/response);
4. Limited access permit, OMB# 0648-0202. Appeal of the DAS
allocation will require written submission (2 hours/response);
5. Limited access permit appeals, OMB# 0648-0202, appeal of denied
permits will require written submission (0.5 hours/response);
6. Three new vessel permit categories (Handgear, Charter/Party and
Scallop Multispecies Possession Limit), OMB# 0648-0202, are created
with no increase in burden above that currently associated with vessel
permits.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act unless that collection of information
displays a currently valid OMB Control Number.
List of Subjects in 50 CFR Part 651
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: February 26, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 651 is
proposed to be amended as follows:
PART 651--NORTHEAST MULTISPECIES FISHERY
1. The authority citation for part 651 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 651.2, the definition for ``Charter and party boats'' is
removed, and the definitions for ``Alewife'', ``American shad'',
``Atlantic croaker'', ``Black sea bass'', ``Blowfish'', ``Bluefish'',
``Charter or party boat or charter/party boat'', ``Conger eels'',
``Cunner'', ``Dogfish'', ``Exempted gear'', ``Fourspot flounder'',
``Hagfish'', ``Handgear'', ``Handline or handline gear'', ``Hickory
shad'', ``John Dory'', ``Longhorn sculpin'', ``Mullet'', ``Multispecies
Monitoring Committee'', ``Rod and reel'', ``Scup'', ``Sea raven'',
``Searobin'', ``Skate'', ``Spot'', ``Summer flounder'', ``Swordfish'',
``Target Total Allowable Catch (TAC)'', ``Tautog'', ``Tilefish'', and
``Weakfish'' are added, in alphabetical order; the definitions for
``DAS (Days-at-sea)'', ``Out of the multispecies fishery or DAS
program'', and ``Sink gillnet'' are revised to read as follows:
Sec. 651.2 Definitions.
* * * * *
Alewife means Alosa pseudoharengus.
* * * * *
American shad means Alosa sapidissima.
Atlantic croaker means Micropogonias undulatus.
* * * * *
Black sea bass means Centropristis striata.
Blowfish (puffer) means any species in the family Tetraodontidae.
Bluefish means Pomatomus saltatrix.
* * * * *
Charter or party boat or charter/party boat means any vessel
carrying passengers for hire to engage in recreational fishing and that
is not fishing under a DAS.
* * * * *
Conger eels means Conger oceanicus.
* * * * *
Cunner means Tautogolabrus adspersus.
DAS (Days-at-sea) means the 24-hour periods of time during which a
fishing vessel is absent from port in which the vessel intends to fish
for, possess or land, or fishes for, possesses, or lands regulated
species, or for gillnet vessels, the 24-hour periods of time beginning
when the gillnet vessel leaves port with the intent to fish for,
possess or land, or fishes for, possesses or lands regulated species,
and ending when a gillnet vessel returns to port with all of its
gillnet gear that was in the water on board.
* * * * *
Dogfish means spiny dogfish, Squalus acanthias, or smooth dogfish,
Mustelus canis.
* * * * *
Exempted gear means gear that is deemed to be not capable of
catching multispecies finfish and includes: pelagic hook and line,
pelagic longline, spears, rakes, diving gear, cast nets, tongs,
harpoons, weirs, dipnets, stop nets, pound nets, pelagic gillnets, pots
and traps, purse seines, shrimp trawls (with a properly configured
grate as defined under this part), and mid-water trawls.
* * * * *
Fourspot flounder means Paralichthys oblongus.
* * * * *
Hagfish means Myxine glutinosa.
Handgear means handline or rod and real gear.
Handline or handline gear means fishing gear that is released by
hand and consists of one main line to which is attached up to two
leaders for a total of
[[Page 8546]]
not more than three hooks. Handlines are retrieved only by hand, not by
mechanical means.
* * * * *
Hickory shad means Alosa mediocris.
* * * * *
John Dory means Zenopsis conchifera.
* * * * *
Longhorn sculpin means Myoxocephalus octodecimspinosus.
* * * * *
Mullet means any species in the family Mugilidae.
* * * * *
Multispecies Monitoring Committee means a team of scientific and
technical staff appointed by the Council to review, analyze, and
recommend adjustments to the management measures. The team will consist
of staff from the New England and Mid-Atlantic Fishery Management
Councils, the NMFS Northeast Regional Office, the NEFSC, the U.S. Coast
Guard, an industry representative, and representatives from affected
coastal states appointed by the Atlantic States Marine Fisheries
Commission.
* * * * *
Out of the multispecies fishery or DAS program means the period of
time during which a vessel is absent from port and is not fishing for
regulated species under the multispecies DAS program.
* * * * *
Rod and reel means a hand-held (including rod holder) fishing rod
with a manually operated reel attached.
* * * * *
Scup means Stenotomus chrysops.
Sea raven means Hemitripterus americanus.
Searobin means any species in the family Triglidae.
Sink gillnet means a bottom-tending gillnet, which is any gillnet,
anchored or otherwise, that is designed to be, or is fished on or near
the bottom in the lower third of the water column.
Skate means any species in the family Rajidae.
Spot means Leiostomus xanthurus.
* * * * *
Summer flounder means Paralichthys dentatus.
Swordfish means Xiphias gladius.
Target Total Allowable Catch (TAC) means the annual domestic
harvest targets for regulated species.
Tautog (blackfish) means Tautoga onitis.
* * * * *
Tilefish means Lopholatilus chamaeleonticeps.
* * * * *
Weakfish means Cynoscion regalis.
* * * * *
3. In Sec. 651.4, paragraphs (a), (b), (c), (e), (f), (h)(1)(ii),
(h)(1)(iii) and (q) are revised to read as follows:
Sec. 651.4 Vessel permits.
* * * * *
(a) General. Any vessel of the United States, including a charter
or party boat, must have been issued and have on board a valid Federal
multispecies permit issued under this part to fish for, possess or land
multispecies finfish in or from the EEZ. Recreational vessels and
vessels fishing for multispecies exclusively in state waters are exempt
from this requirement.
(b) Limited access permits--(1) Eligibility--
(i) Limited access multispecies permit. To be eligible for a
multispecies limited access permit, specified in Sec. 651.22, in 1996
and thereafter, a vessel must have been issued a limited access
multispecies permit for the preceding year, must be replacing a vessel
that was issued a limited access multispecies permit for the preceding
year, or must qualify for a 1996 limited access multispecies permit
under paragraph (b)(1)(ii) of this section.
(ii) Limited access hook-gear permit. A vessel issued a 1995 open
access hook-gear permit may apply for and obtain a 1996 limited access
hook-gear permit provided it meets the criteria for eligibility
described below. Vessels must apply for a limited access Hook-Gear
permit before September 1, 1996, to receive an automatic mailing of an
application to renew their permit in 1997 and to be insured that their
permit application will be processed within the 30 days allowed under
paragraph (e) of this section. Vessels applying after December 31,
1996, will be ineligible to apply for a 1997 limited access hook-gear
permit. A vessel qualifying for a limited access hook-gear permit may
not change its limited access permit category. The criteria for
eligibility are:
(A) The vessel held a 1995 open access Hook-Gear permit and
submitted to the Regional Director, no later than January 26, 1996,
fishing log reports dated between June 1, 1994 and June 1, 1995,
documenting landings of at least 500 lb (226.8 kg) of multispecies
finfish; or
(B) The vessel is replacing a vessel that meets the criteria set
forth in paragraph (b)(1)(ii)(A) of this section.
(2) Qualification restriction. Unless the Regional Director
determines to the contrary, no more than one vessel may qualify, at any
one time, for a limited access multispecies permit based on that or
another vessel's fishing and permit history. If more than one vessel
owner claims eligibility for a limited access multispecies permit,
based on one vessel's fishing and permit history, the Regional Director
shall determine who is entitled to qualify for the limited access
multispecies permit and the DAS allocation according to paragraph
(b)(3) of this section.
(3) Change in ownership. The fishing and permit history of a vessel
is presumed to transfer with the vessel whenever it is bought, sold, or
otherwise transferred, unless there is a written agreement, signed by
the transferor/seller and transferee/buyer, or other credible written
evidence, verifying that the transferor/seller is retaining the
vessel's fishing and permit history for purposes of replacing the
vessel.
(4) Replacement vessels. To be eligible for a limited access permit
under this section, the replacement vessel must meet the following
criteria and any applicable criteria under paragraph (b)(5) of this
section:
(i) The replacement vessel's horsepower may not exceed by more than
20 percent the horsepower of the vessel that was initially issued a
limited access multispecies permit as of the date the initial vessel
applied for such permit; and
(ii) The replacement vessel's length, gross registered tonnage, and
net tonnage may not exceed by more than 10 percent the length, gross
registered tonnage, and net tonnage of the vessel that was initially
issued a limited access multispecies permit as of the date the initial
vessel applied for such permit. For purposes of this paragraph, a
vessel not required to be documented under title 46, U.S.C. will be
considered to be 5 net tons. For undocumented vessels, gross registered
tonnage does not apply.
(5) Upgraded vessel. To remain eligible to retain a valid limited
access permit under this part, or to apply for or renew a limited
access permit under this part, a vessel may be upgraded, whether
through refitting or replacement, only if the upgrade complies with the
following limitations:
(i) The vessel's horsepower may be increased, whether through
refitting or replacement, only once. Such an increase may not exceed 20
percent of the horsepower of the vessel initially issued a limited
access multispecies permit as of the date the initial vessel applied
for such permit; and
(ii) The vessel's length, gross registered tonnage, and net tonnage
may be upgraded, whether through refitting or replacement, only once.
Such an increase shall not exceed 10 percent each of the length, gross
registered
[[Page 8547]]
tonnage, and net tonnage of the vessel initially issued a limited
access multispecies permit as of the date the initial vessel applied
for such permit. This limitation allows only one upgrade, at which time
any or all three specifications of vessel size may be increased. This
type of upgrade may be done separately from an engine horsepower
upgrade.
(6) Consolidation restriction. Limited access permits under this
permit and DAS allocations may not be combined or consolidated.
(7) Appeal of denial of limited access multispecies permit.
(i) Any applicant eligible to apply for an initial limited access
Hook-Gear permit who is denied such permit may appeal the denial to the
Regional Director within 30 days of the notice of denial. Any such
appeal must be based on one or more of the following grounds, must be
in writing, and must state the grounds for the appeal:
(A) The information used by the Regional Director was based on
mistaken or incorrect data;
(B) The applicant was prevented by circumstances beyond his/her
control from meeting relevant criteria; or
(C) The applicant has new or additional information.
(ii) The Regional Director will appoint a designee who will make
the initial decision on the appeal.
(iii) The appellant may request a review of the initial decision by
the Regional Director by so requesting in writing within 30 days of the
notice of the initial decision. If the appellant does not request a
review of the initial decision within 30 days, the initial decision
shall become the final administrative action of the Department of
Commerce.
(iv) Upon receiving the findings and a recommendation, the Regional
Director will issue a final decision on the appeal. The Regional
Director's decision is the final administrative action of the
Department of Commerce.
(v) Status of vessels pending appeal of a limited access permit
denial. A vessel denied a limited access Hook-Gear permit may fish
under the limited access Hook-Gear category, provided that the denial
has been appealed, the appeal is pending, and the vessel has on board a
letter from the Regional Director authorizing the vessel to fish under
the limited access Hook-Gear category. The Regional Director will issue
such a letter for the pendency of any appeal. Any such decision is the
final administrative action of the Department of Commerce on allowable
fishing activity pending a final decision on the appeal. The
authorizing letter must be carried on board the vessel. If the appeal
is finally denied, the Regional Director shall send a notice of final
denial to the vessel owner; the authorizing letter becomes invalid 5
days after receipt of the notice of denial.
(8) Limited access permit restrictions. (i) A vessel may be issued
a limited access multispecies permit in only one category during a
fishing year. Vessels are prohibited from changing limited access
multispecies permit categories during the fishing year, except as
provided in paragraph (f)(3) of this section. A vessel issued a limited
access Hook-Gear permit may not change its limited access permit
category at any time.
(ii) With the exception of Combination Vessels, sea scallop dredge
vessels are prohibited from being issued a limited access multispecies
permits.
(9) Confirmation of Permit History. Notwithstanding any other
provisions of this part, a person who does not currently own a fishing
vessel, but who has owned a qualifying vessel that has sunk, been
destroyed, or transferred to another person, may apply for and receive
a Confirmation of Permit History if the fishing and permit history of
such vessel has been retained lawfully by the applicant. To be eligible
to obtain a Confirmation of Permit History, the applicant must show
that the qualifying vessel meets the eligibility requirements, as
applicable, in this part. Issuance of a valid and current Confirmation
of Permit History preserves the eligibility of the applicant to apply
for or renew a limited access multispecies permit for a replacement
vessel based on the qualifying vessel's fishing and permit history at a
subsequent time, subject to the replacement provisions specified at
Sec. 651.4. A Confirmation of Permit History must be applied for and
received on an annual basis in order for the applicant to preserve the
fishing rights and limited access eligibility of the qualifying vessel.
If fishing privileges have been assigned or allocated previously under
this part based on the qualifying vessel's fishing and permit history,
the Confirmation of Permit History also preserves such fishing
privileges. Any decision regarding the issuance of a Confirmation of
Permit History for a qualifying vessel that has applied for or been
issued previously a limited access permit under this part is a final
agency action subject to judicial review under 5 U.S.C. 704.
Applications for a Confirmation of Permit History must be received by
the Regional Director by the beginning of the fishing year for which
the Confirmation of Permit History is required. Information
requirements for the Confirmation of Permit History application shall
be the same as those for a limited access permit with any request for
information about the vessel being applicable to the qualifying vessel
that has been sunk, destroyed or transferred. Vessel permit applicants
who have been issued a Confirmation of Permit History and who wish to
obtain a vessel permit for a replacement vessel based upon the previous
vessel history may do so pursuant to paragraph (b)(4) of this section.
(c) Open access permits. Subject to the restrictions in
Sec. 651.33, a U. S. vessel that has not been issued a limited access
multispecies permit may obtain an open access Handgear or Charter/party
permit. Vessels that are issued a valid scallop limited access permit
under Sec. 650.4 of this chapter and that have not been issued a
limited access multispecies permit may obtain an open access Scallop
Multispecies Possession Limit permit.
* * * * *
(e) Vessel permit application. Applicants for a permit under this
section must submit a completed application on an appropriate form
obtained from the Regional Director. The application must be signed by
the owner of the vessel, or the owner's authorized representative, and
be submitted to the Regional Director at least 30 days before the date
on which the applicant desires to have the permit made effective. The
Regional Director will notify the applicant of any deficiency in the
application pursuant to this section. Applicants for limited access
multispecies permits shall provide information with the application
sufficient for the Regional Director to determine whether the vessel
meets the eligibility requirements specified.
(f) Information requirements. (1) In addition to applicable
information required to be provided by paragraph (e) of this section,
an application for a permit must contain at least the following
information, and any other information required by the Regional
Director: Vessel name; owner name, mailing address, and telephone
number; U.S. Coast Guard documentation number and a copy of the
vessel's current U.S. Coast Guard documentation or, if undocumented,
state registration number and a copy of the current state registration;
party/charter boat license; home port and principal port of landing;
length overall; gross tonnage; net tonnage; engine horsepower; year the
vessel was built; type of construction; type of propulsion; approximate
fish-
[[Page 8548]]
hold capacity; type of fishing gear used by the vessel; number of crew;
number of party or charter passengers licensed to carry (if
applicable); permit category; if the owner is a corporation, a copy of
the current Certificate of Incorporation, or other corporate papers
showing incorporation and the names of the current officers in the
Corporation, and the names and addresses of all shareholders owning 25
percent or more of the corporation's shares; if the owner is a
partnership, a copy of the current Partnership Agreement and the names
and addresses of all partners; if there is more than one owner, names
of all owners owning a 25 percent interest or more; and, name and
signature of the owner or the owner's authorized representative.
(2) Applications for an initial limited access Hook-Gear permit
must also contain the following information:
(i) If the engine horsepower was changed or a contract to change
the engine horsepower had been entered into prior to May 1, 1996, such
that it is different from that stated in the vessel's most recent
application for a Federal Fisheries Permit before May 1, 1996,
sufficient documentation to ascertain the different engine horsepower.
However, the engine replacement must be completed within one year of
the date of when the contract for the replacement engine was signed.
(ii) If the length, gross tonnage, or net tonnage was changed or a
contract to change the length, gross tonnage or net tonnage had been
entered into prior to May 1, 1996, such that it is different from that
stated in the vessel's most recent application for a Federal Fisheries
Permit, sufficient documentation to ascertain the different length,
gross tonnage or net tonnage. However, the upgrade must be completed
within one year from the date when the contract for the upgrade was
signed.
(3) A vessel issued a limited access multispecies permit may
request a change in permit category, unless otherwise restricted by
paragraph (b)(8) of this section. In 1996, any such change must be
requested by submitting an application to the Regional Director within
45 days of implementation of this rule. After 45 days, the vessel must
fish only in the DAS program assigned for the remainder of the 1996
fishing year. Any DAS that a vessel uses prior to a change in permit
category will be counted against its allocation received under any
subsequent permit category. For 1997 and beyond, limited access
multispecies vessels eligible to request a change in permit category
must elect a category prior to the start of each fishing year and must
remain in that permit category for the duration of the fishing year. A
vessel issued an open access permit may request a different open access
permit category by submitting an application to the Regional Director
at any time.
(4) If the vessel is a combination vessel, or if the applicant
elects to take an Individual DAS allocation or to use a VTS unit,
although not required, a copy of the vendor installation receipt from a
NMFS-certified VTS vendor as described in Sec. 651.28(a).
* * * * *
(h) * * *
(1) * * *
(ii) The application was not received by the Regional Director by
the deadlines set forth in paragraphs (b)(1)(ii), and (q) of this
section; or
(iii) The applicant and applicant's vessel failed to meet all
eligibility requirements described in paragraph (b)(1) of this section;
or
* * * * *
(q) Limited access multispecies permit renewal. To renew or apply
for a limited access multispecies permit a completed application must
be received by the Regional Director by the first day of the fishing
year for which the permit is required. Failure to renew a limited
access multispecies permit in any year bars the renewal of the permit
in subsequent years.
* * * * *
4. Section 651.9 is revised to read as follows:
Sec. 651.9 Prohibitions.
(a) In addition to the general prohibitions specified in Sec. 620.7
of this chapter, it is unlawful for any person owning or operating a
vessel issued a valid Federal multispecies vessel permit issued under
this part, issued a permit under Sec. 651.5 or a letter under
Sec. 651.4(b)(7)(v), to do any of the following:
(1) Fail to report to the Regional Director within 15 days any
change in the information contained in the permit application as
required under Sec. 651.4(m) or Sec. 651.5(k).
(2) Fish for, possess, or land multispecies finfish unless the
operator of the vessel has been issued an operator's permit under
Sec. 651.5, and a valid permit is on board the vessel.
(3) Sell, barter, trade, or transfer, or attempt to sell, barter,
trade, or transfer to a dealer any multispecies finfish unless the
dealer has a valid Federal dealer's permit issued under Sec. 651.6.
(4) Sell, barter, trade, or transfer, or attempt to sell, barter,
trade, or otherwise transfer, for a commercial purpose, other than
transport, any multispecies, unless the transferee has a dealer permit
issued under Sec. 651.6.
(5) Fail to comply in an accurate and timely fashion with the log
report, reporting, record retention, inspection, and other requirements
of Sec. 651.7(b).
(6) Fail to affix and maintain permanent markings as required by
Sec. 651.8.
(7) Enter, fail to remove gear from, or be in the areas described
in Sec. 651.21(f)(1) through Sec. 651.21(h)(1) during the time period
specified, except as provided in Sec. 651.21(d), (f)(2), (g)(2), and
(h)(2).
(8) Possess or land multispecies finfish smaller than the minimum
sizes specified in Sec. 651.23 or Sec. 651.34, as appropriate.
(9) Land, or possess on board a vessel, more than the possession
limits specified in Sec. 651.27(a), or violate any of the other
provisions of Sec. 651.27.
(10) Land, offload, remove, or otherwise transfer, or attempt to
land, offload, remove, or otherwise transfer fish from one vessel to
another vessel or other floating conveyance unless authorized in
writing by the Regional Director pursuant to Sec. 651.30(a).
(11) Refuse or fail to carry an observer if requested to do so by
the Regional Director.
(12) Interfere with or bar by command, impediment, threat,
coercion, or refusal of reasonable assistance, an observer conducting
his or her duties aboard a vessel.
(13) Fail to provide an observer with the required food,
accommodations, access, and assistance, specified in Sec. 651.31.
(b) In addition to the prohibitions specified in paragraph (a) of
this section, it is unlawful for any person owning or operating a
vessel issued a limited access multispecies permit under Sec. 651.4(b)
or a letter under Sec. 651.4(b)(7)(v), to do any of the following:
(1) Fish for, possess, or land multispecies finfish with or from a
vessel that has had the horsepower of such vessel or its replacement
upgraded or increased in excess of the limitations specified in
Sec. 651.4(b)(4) or Sec. 651.4(b)(5).
(2) Fish for, possess, or land multispecies finfish with or from a
vessel that has had the length, gross registered tonnage, or net
tonnage of such vessel or its replacement increased or upgraded in
excess of limitations specified in Sec. 651.4(b)(4) or
Sec. 651.4(b)(5).
(3) Combine, transfer, or consolidate DAS allocations.
[[Page 8549]]
(4) Fish for, possess at any time during a trip, or land per trip
more than the possession limit of regulated species specified in
Sec. 651.27(c) after using up the vessel's annual DAS allocation or
when not participating under the DAS program pursuant to Sec. 651.22,
unless otherwise exempted under Secs. 651.22(b)(3) or 651.34.
(5) Possess or land per trip more than the possession limit
specified under Sec. 651.22(b)(3)(i) if the vessel has been issued a
limited access Small Vessel permit.
(6) Fail to comply with the restrictions on fishing and gear
specified in Sec. 651.22(b)(4) if the vessel has been issued a limited
access Hook-Gear permit.
(7) Fail to declare and be out of the multispecies fishery as
required by Sec. 651.22(g), using the procedure described under
Sec. 651.22(h), as applicable.
(8) Land, or possess on board a vessel, more than the possession
limit of winter flounder specified in Sec. 651.27(b), or violate any of
the other provisions specified in Sec. 651.27(b).
(9) If required to have a VTS unit specified in Sec. 651.28(a) or
Sec. 651.29(a):
(i) Fail to have a certified, operational, and functioning VTS unit
that meets the specifications of Sec. 651.28(a) on board the vessel at
all times.
(ii) Fail to comply with the notification, replacement, or any
other requirements regarding VTS usage specified in Sec. 651.29(a).
(10) Fail to comply with any requirement regarding the DAS
notification specified in Sec. 651.29(a) or Sec. 651.29(b).
(11) Fail to comply with other notification requirements, including
a call-in system specified in Sec. 651.29(c), if required by the
Regional Director.
(12) Fail to provide notification of the beginning or ending of a
trip, as required under Sec. 651.29(b) and Sec. 651.29(d).
(c) In addition to the prohibitions specified in paragraph (a) of
this section, it is unlawful for any person owning or operating a
vessel issued a Handgear permit under Sec. 651.4(c) to do any of the
following:
(1) Possess at any time during a trip, or land per trip, more than
the possession limit of regulated species specified in Sec. 651.33(a),
unless the regulated species were harvested by a charter or party
vessel.
(2) Use, or possess on board, gear capable of harvesting
multispecies finfish other than rod and reel or handline while in
possession of, or fishing for, multispecies finfish.
(3) Possess or land multispecies finfish during the time period
specified in Sec. 651.33(a)(2).
(d) In addition to the prohibitions specified in paragraph (a) of
this section, it is unlawful for any person owning or operating a
vessel issued a Scallop Multispecies Possession Limit permit under
Sec. 651.4(c) to do any of the following:
(1) Possess or land more than the possession limit of regulated
species specified in Sec. 651.33(c).
(2) Possess or land regulated species when not fishing under a
scallop DAS.
(e) In addition to the general prohibitions specified in Sec. 620.7
of this chapter and the prohibitions specified in paragraphs (a)
through (d) of this section, it is unlawful for any person to do any of
the following:
(1) Fish for, possess, or land multispecies finfish unless: (i) The
multispecies finfish were being fished for or harvested by a vessel
issued a valid Federal multispecies permit under this part, or a letter
under Sec. 651.4(b)(7)(v), and the operator aboard such vessel was
issued an operator's permit under Sec. 651.5 and a valid permit is on
board the vessel;
(ii) The multispecies finfish were harvested by a vessel not issued
a Federal multispecies permit that fishes for multispecies finfish
exclusively in state waters; or
(iii) The multispecies finfish were harvested by a recreational
fishing vessel.
(2) Sell, barter, trade, or otherwise transfer, or attempt to sell,
barter, trade, or otherwise transfer, for a commercial purpose, any
multispecies finfish from a trip unless the vessel is issued a valid
Federal multispecies permit under this part, or a letter under
Sec. 651.4(b)(7)(v), and is not fishing under the charter/party
restrictions specified in Sec. 651.34(d), or unless the multispecies
finfish were harvested by a vessel that qualifies for the exception
specified in paragraph (e)(1)(ii) of this section.
(3) To be or act as an operator of a vessel fishing for or
possessing multispecies finfish in or from the EEZ, or issued a Federal
multispecies permit under this part, without having been issued and
possessing a valid operator's permit issued under Sec. 651.5.
(4) Purchase, possess, or receive for a commercial purpose, or
attempt to purchase, possess, or receive for a commercial purpose in
the capacity of a dealer, multispecies finfish taken from a fishing
vessel, unless in possession of a valid dealer permit issued under
Sec. 651.6; except that this prohibition does not apply to multispecies
finfish taken from a vessel that qualifies for the exception specified
in paragraph (e)(1)(ii) of this section.
(5) Purchase, possess, or receive for a commercial purpose or
attempt to purchase, possess, or receive multispecies finfish caught by
a vessel other than one issued a valid Federal multispecies permit
under this part, or a letter under Sec. 651.4(b)(7)(v), unless the
multispecies finfish were harvested by a vessel that qualifies for the
exception specified in paragraph (e)(1)(ii) of this section.
(6) Land, offload, cause to be offloaded, sell, or transfer; or
attempt to land, offload, cause to be offloaded, sell, or transfer
multispecies finfish from a fishing vessel, whether on land or at sea,
as an owner or operator without accurately preparing and submitting, in
a timely fashion, the documents required by Sec. 651.7, unless the
multispecies finfish were harvested by a vessel that qualifies for the
exception specified in paragraph (e)(1)(ii) of this section.
(7) Purchase or receive multispecies finfish, or attempt to
purchase or receive multispecies finfish, whether on land or at sea, as
a dealer without accurately preparing, submitting in a timely fashion,
and retaining the documents required by Sec. 651.7.
(8) Possess or land fish caught with nets of mesh smaller than the
minimum size specified in Sec. 650.20 of this chapter, or with scallop
dredge gear, unless said fish are caught, possessed or landed in
accordance with Sec. 651.20, or unless the vessel qualifies for the
exception specified in paragraph (e)(1)(ii) of this section.
(9) Fish with, use, or have on board, within the area described in
Sec. 651.20(a)(1) nets of mesh size smaller than the minimum mesh size
specified in Sec. 651.20(a)(2), except as provided in Sec. 651.20
(a)(3) through (a)(6), (a)(8), (a)(9), (e), (f) and (j), or unless the
vessel qualifies for the exception specified in paragraph (e)(1)(ii) of
this section.
(10) Fish for, harvest, possess, or land in or from the EEZ
northern shrimp, unless such shrimp were fished for or harvested by a
vessel meeting the requirements specified in Sec. 651.20(a)(3).
(11) Fish within the areas described in Sec. 651.20(a)(4) with nets
of mesh smaller than the minimum size specified in Sec. 651.20(a)(2),
unless the vessel is issued and possesses on board the vessel an
authorizing letter issued under Sec. 651.20(a)(4)(i).
(12) Violate any provisions of the Cultivator Shoals Whiting
Fishery specified in Sec. 651.20(a)(4).
(13) Fail to comply with the requirements of Sec. 651.20(a)(5).
[[Page 8550]]
(14) Fail to comply with the requirements of Sec. 651.20(a)(8).
(15) Fail to comply with the requirements of Sec. 651.20(a)(9).
(16) Fish with, use, or have available for immediate use within the
area described in Sec. 651.20(c)(1) nets of mesh size smaller than the
minimum size specified in Sec. 651.20(c)(2), except as provided in
Sec. 651.20(c)(3), (e), (f), and (j), or unless the vessel qualifies
for the exception specified in paragraph (e)(1)(ii) of this section.
(17) Fish with, use, or have available for immediate use within the
area described in Sec. 651.20(d)(1) nets of mesh size smaller than the
minimum size specified in Sec. 651.20(d)(2), except as provided in
Sec. 651.20(d)(3), Sec. 651.20(e), Sec. 651.20(f), and Sec. 651.20(j),
or unless the vessel qualifies for the exception specified in paragraph
(e)(1)(ii) of this section.
(18) Fish for the species specified in Sec. 651.20 (e) or (f) with
a net of mesh size smaller than the applicable mesh size specified in
Sec. 651.20(a)(2), Sec. 651.20(c)(2) or Sec. 651.20(d)(2), or possess
or land such species, unless the vessel is in compliance with the
requirements specified in Sec. 651.20(e) or Sec. 651.20(f), or unless
the vessel qualifies for the exception specified in paragraph
(e)(1)(ii) of this section.
(19) Obstruct or constrict a net as described in Sec. 651.20(h)(1)
and Sec. 651.20(2).
(20) Fish for, land, or possess multispecies finfish harvested by
means of pair trawling or with pair trawl gear, except under the
provisions of Sec. 651.20(e), or unless the vessels that engaged in
pair trawling qualify for the exception specified in paragraph
(e)(1)(ii) of this section.
(21) Violate any of the restrictions on fishing with scallop dredge
gear specified in Sec. 651.20(i).
(22) Violate any of the provisions of Sec. 651.20(j).
(23) Enter or be in the area described in Sec. 651.21(a)(1) on a
fishing vessel, except as provided in Sec. 651.21(a)(2) and
Sec. 651.21(d).
(24) Enter or be in the area described in Sec. 651.21(b)(1) on a
fishing vessel, except as provided in Sec. 651.21(b)(2).
(25) Enter or be in the area described in Sec. 651.21(c)(1), on a
fishing vessel, except as provided in Sec. 651.21(c)(2) and
Sec. 651.21(d).
(26) Enter or be on a fishing vessel, or fail to remove gear from
the EEZ portion of the areas described in Sec. 651.21(f)(1) through
Sec. 651.21(h)(1), during the time period specified, except as provided
in Sec. 651.21(d), Sec. 651.21(f)(2), Sec. 651.21(g)(2), and
Sec. 651.21(h)(2).
(27) Import, export, transfer, land, buy, sell or possess regulated
species smaller than the minimum sizes specified in Sec. 651.23, unless
the regulated species were harvested from a vessel that qualifies for
the exception specified in paragraph (e)(1)(ii) of this section.
(28) Violate any terms of a letter authorizing experimental fishing
pursuant to Sec. 651.24 or fail to keep such letter on board the vessel
during the period of the experiment.
(29) Fail to comply with the gear-marking requirements of
Sec. 651.25.
(30) Purchase, possess, or receive as a dealer, or in the capacity
of a dealer, fish in excess of the possession limits specified for
vessels issued a Federal multispecies permit.
(31) Tamper with, damage, destroy, alter, or in any way distort,
render useless, inoperative, ineffective, or inaccurate the VTS, VTS
unit, or VTS signal required to be installed on or transmitted by
vessel owners or operators required to use a VTS by this part.
(32) Violate any provision of Sec. 651.29.
(33) Land, offload, remove, or otherwise transfer, or attempt to
land, offload, remove or otherwise transfer multispecies finfish from
one vessel to another vessel, unless both vessels qualify under the
exception specified in paragraph (e)(1)(ii) of this section, or unless
authorized in writing by the Regional Director pursuant to
Sec. 651.30(a).
(34) Assault, resist, oppose, impede, harass, intimidate, or
interfere with a NMFS-approved observer aboard a vessel.
(35) Make any false statement, oral or written, to an authorized
officer or employee of NMFS, concerning the taking, catching,
harvesting, landing, purchase, sale, or transfer of any multispecies
finfish.
(36) Make any false statement in connection with an application
under Sec. 651.4 or Sec. 651.5 or on any report required to be
submitted or maintained under Sec. 651.7.
(37) Interfere with, obstruct, delay, or prevent by any means a
lawful investigation or search relating to the enforcement of this
part.
(f) In addition to the general prohibitions specified in Sec. 620.7
of this chapter and the prohibitions specified in paragraphs (a)
through (e) of this section, it is unlawful for the owner or operator
of a charter or party boat issued a permit under Sec. 651.4, or of a
recreational vessel, as applicable, to:
(1) Fish with gear in violation of the restrictions specified in
Sec. 651.34(a).
(2) Possess regulated species smaller than the minimum sizes
specified in Sec. 651.34(b).
(3) Possess cod and haddock in excess of the possession limits
specified in Sec. 651.34(c).
(4) Sell, trade, barter, or otherwise transfer, or attempt to sell,
trade, barter or otherwise transfer, multispecies finfish for a
commercial purpose as specified in Sec. 651.34(d).
(g) It is unlawful to violate any other provision of this part, the
Magnuson Act, or any regulation or permit issued under the Magnuson
Act.
(h) Presumption. The possession for sale of regulated species that
do not meet the minimum sizes specified in Sec. 651.23 will be prima
facie evidence that such regulated species were taken or imported in
violation of these regulations. Evidence that such fish were harvested
by a vessel not issued a permit under this part and fishing exclusively
within state waters will be sufficient to rebut the presumption. This
presumption does not apply to fish being sorted on deck.
5. In Sec. 651.20, paragraph (a)(9) is added and paragraphs (a)(2),
(a)(3)(i)(B), (a)(4)(i)(E), (a)(6)(iii)(C), (a)(7), the introductory
text of paragraph (a)(8) preceding the tables, paragraphs (a)(8)(i),
(a)(8)(iii)(B), (c)(1), (c)(2), (c)(3)(ii), (c)(5), (d), (e)(2),
(f)(2), (i), (j) introductory text and (j)(7) are revised to read as
follows:
Sec. 651.20 Regulated mesh areas and restrictions on gear and methods
of fishing.
* * * * *
(a) * * *
(2) Gear restrictions. (i) Except as provided in paragraphs
(a)(2)(iii) and (j) of this section, and unless otherwise restricted
under paragraphs (a)(2)(ii) and (a)(5) of this section, the minimum
mesh size for any trawl net, sink gillnet, Scottish seine, mid-water
trawl, or purse seine, on a vessel, or used by a vessel fishing under a
DAS in the multispecies DAS program in the GOM/GB regulated mesh area,
shall be 6 inches (15.24 cm) square or diamond mesh throughout the
entire net. This restriction does not apply to nets or pieces of nets
smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft (0.81 m2)), or
to vessels that have not been issued a Federal multispecies permit
under Sec. 651.4 and that are fishing exclusively in state waters.
(ii) Large Mesh vessels. When fishing in the GOM/GB regulated mesh
area, the minimum mesh size for any sink gillnet on a vessel, or used
by a vessel, fishing under a DAS in the Large Mesh DAS program
specified in Sec. 651.22(b)(6) shall be 7-inch (17.78-cm) diamond mesh
throughout the entire net. The minimum
[[Page 8551]]
mesh size for any trawl net on a vessel, or used by a vessel, fishing
under a DAS in the Large Mesh DAS program shall be 8-inch (20.32-cm)
diamond mesh throughout the entire net. This restriction does not apply
to nets or pieces of nets smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9
sq. ft (0.81 m)), or to vessels that have not been issued a Federal
multispecies permit under Sec. 651.4 and that are fishing exclusively
in state waters.
(iii) Other gear and mesh exemptions. The minimum mesh size for any
trawl net, sink gillnet, Scottish seine, mid-water trawl, or purse
seine, on a vessel, or used by a vessel, when not fishing under the
multispecies DAS program and when fishing in the GOM/GB regulated mesh
area, is provided for under the exemptions specified in paragraphs
(a)(3), (a)(4), (a)(6), (a)(8), (a)(9), (e), (f), (i), and (j) of this
section. Vessels that are not fishing in one of these exemption
programs, with exempted gear (as defined under this part), or under the
Scallop state waters exemption program specified in Sec. 650.27 of this
chapter, or under a multispecies DAS are prohibited from fishing in the
GOM/GB regulated mesh area.
(3) * * *
(i) * * *
(B) The following may be retained, with the restrictions noted, as
allowable bycatch species in the northern shrimp fishery as described
in this section: Longhorn sculpin; up to two standard totes of silver
hake (whiting); monkfish and monkfish parts up to 10 percent by weight
of all other species on board; and American lobster up to 10 percent by
weight of all other species on board or two hundred lobsters, whichever
is less.
* * * * *
(4) * * *
(i) * * *
(E) The following may be retained, with the restrictions noted, as
allowable bycatch species in the Cultivator Shoal whiting fishery
exemption area as described in this section: longhorn sculpin; monkfish
and monkfish parts up to 10 percent by weight of all other species on
board; and American lobster up to 10 percent by weight of all other
species on board or two hundred lobsters, whichever is less.
* * * * *
(6) * * *
(iii) * * *
(C) Vessels may not fish for, possess on board, or land any species
of fish except when fishing in the areas specified in paragraphs
(a)(4), (a)(9), (c) and (d) of this section. Vessels may retain
exempted small mesh species as provided in paragraphs (a)(4)(i),
(a)(9)(i), (c)(3) and (d)(3), of this section.
(7) Addition or deletion of exemptions. (i) An exemption may be
added in an existing fishery for which there is sufficient data or
information to ascertain the amount of regulated species bycatch, if
the Regional Director, after consultation with the Council, determines
that the percentage of regulated species caught as bycatch is, or can
be reduced to, less than 5 percent by weight of total catch and that
such exemption will not jeopardize fishing mortality objectives. In
determining whether exempting a fishery may jeopardize meeting fishing
mortality objectives, the Regional Director may take into consideration
factors such as, but not limited to, juvenile mortality. A fishery can
be defined, restricted or allowed by area, gear, season, or other means
determined to be appropriate to reduce bycatch of regulated species. An
existing exemption may be deleted or modified if the Regional Director
determines that the catch of regulated species is equal to or greater
than 5 percent by weight of total catch, or that continuing the
exemption may jeopardize meeting fishing mortality objectives.
Notification of additions, deletions or modifications will be made
through publication of a rule in the Federal Register.
(ii) The Council may recommend to the Regional Director, through
the framework procedure specified in Sec. 651.40(b), additions or
deletions to exemptions for fisheries either existing or proposed for
which there may be insufficient data or information for the Regional
Director to determine, without public comment, percentage catch of
regulated species.
(iii) The Regional Director may, using the process described in
either paragraphs (a)(7) (i) or (ii) of this section, authorize an
exemption for a white hake fishery by vessels using regulated mesh or
hook gear. Determination of the percentage of regulated species caught
in such fishery shall not include white hake.
(iv) Restrictions on exempted fisheries. Exempted fisheries
authorized under this paragraph are subject, at minimum, to the
following restrictions:
(A) With the exception of fisheries authorized under paragraph
(a)(7)(iii) of this section, possession of regulated species will be
prohibited.
(B) Possession of monkfish or monkfish parts will be limited to 10
percent by weight of all other species on board.
(C) Possession of lobsters will be limited to 10 percent by weight
of all other species on board or 200 lobsters, whichever is less.
(D) Possession of skate or skate parts in the SNE regulated mesh
area will be limited to 10 percent by weight of all other species on
board.
(8) Small Mesh Area 1/Small Mesh Area 2. Fisheries using nets of
mesh smaller than the minimum size specified in paragraph (a)(2) of
this section in subareas described as Small Mesh Area 1 and Small Mesh
Area 2 of the Small Mesh Exemption Area as specified under paragraph
(a)(3) of this section, and defined in this paragraph (a)(8), have been
found to meet the exemption qualification requirements specified in
paragraph (a)(7) of this section. Therefore, vessels subject to the
mesh restrictions specified in paragraph (a)(2) of this section may
fish with or possess nets of mesh smaller than the minimum size
specified in paragraph (a)(2) of this section in these areas, if the
vessel complies with the restrictions specified in paragraphs (a)(8)(i)
through (iii) of this section. These subareas are defined by straight
lines connecting the following points in the order stated (see Figure 4
to part 651):
* * * * *
(i) The fishing season is from July 15 through October 31 when
fishing under the exemption in Small Mesh Area 1.
* * * * *
(iii) * * *
(B) Allowable bycatch. Vessels fishing for the exempted species
identified in paragraph (a)(8)(iii)(A) of this section may also possess
and land the following species, with the restrictions noted, as
allowable bycatch species: Longhorn sculpin; monkfish and monkfish
parts up to 10 percent by weight of all other species on board; and
American lobster up to 10 percent by weight of all other species on
board or two hundred lobsters, whichever is less.
(9) Nantucket Shoals dogfish fishery exemption area. The Nantucket
Shoals dogfish fishery as defined in this part has been found to meet
the exemption qualification requirements specified in paragraph (a)(7)
of this section. Therefore, vessels subject to the mesh restrictions
specified in paragraph (a)(2) of this section may fish with, use, or
possess nets of mesh smaller than the minimum size specified in
paragraph (a)(2) of this section in the Nantucket Shoals dogfish
fishery exemption area, if the vessel complies with the requirements
specified in paragraph (a)(9)(i) of this section. The Nantucket Shoals
dogfish fishery exemption area is defined by straight lines connecting
the following points in the order stated (see Figure 4 to part 651):
[[Page 8552]]
Nantucket Shoals Dogfish Exemption Area
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
NS1............................. 41 deg.45' N 70 deg.00' W.
NS2............................. 41 deg.45' N 69 deg.20' W.
NS3............................. 41 deg.30' N 69 deg.20' W.
Cl1............................. 41 deg.30' N 69 deg.23' W.
NS5............................. 41 deg.26.5' N 69 deg.20' W.
NS6............................. 40 deg.50' W 69 deg.20' N.
NS7............................. 40 deg.50' W 70 deg.00' N.
NS1............................. 41 deg.45' N 70 deg.00' W.
------------------------------------------------------------------------
(i) Requirements. Vessels authorized to fish in this fishery must
have on board an authorizing letter issued by the Regional Director.
Vessels are subject to the following conditions:
(A) Authorized vessels may not fish for, possess on board or land
any species of fish other than dogfish except as provided under
paragraph (a)(9)(i)(D) of this section.
(B) Authorized vessels may fish under this exemption during the
season of June 1 through October 15.
(C) When transiting the GOM/GB regulated mesh area as specified
under paragraph (a)(1) of this section, any nets of mesh smaller than
the regulated mesh size specified in paragraph (a)(2) of this section,
must be stowed according to the provisions of paragraph (c)(4) of this
section.
(D) The following may be retained, with the restrictions noted, as
allowable bycatch species in the Nantucket Shoals dogfish fishery
exemption area as described in this section: Longhorn sculpin, up to
two standard totes of silver hake (whiting); monkfish and monkfish
parts up to 10 percent by weight of all other species on board;
American lobster up to 10 percent by weight of all other species on
board or two hundred lobsters, whichever is less; and skate or skate
parts up to 10 percent by weight of all other species on board.
(E) Authorized vessels must comply with any additional gear
restrictions specified in the authorization letter issued by the
Regional Director.
(ii) Sea Sampling. The Regional Director may conduct periodic sea
sampling to determine if there is a need to change the area or season
designation, and to evaluate the bycatch of regulated species.
* * * * *
(c) Southern New England regulated mesh area. (1) Area definition.
The Southern New England regulated mesh area is that area bounded on
the east by straight lines connecting the following points in the order
stated (see Figure 1 part 651):
Southern New England Regulated Mesh Area
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
G5............................. 41 deg.18.6' N 66 deg.24.8' W.
G6............................. 40 deg.55.5' N 66 deg.38' W.
G7............................. 40 deg.45.5' N 68 deg.00' W.
G8............................. 40 deg.37' N 68 deg.00' W.
G9............................. 40 deg.30.5' N 69 deg.00' W.
NL3............................ 40 deg.22.7' N 69 deg.00' W.
NL2............................ 40 deg.18.7' N 69 deg.40' W.
NL1............................ 40 deg.50' N 69 deg.40' W.
G11............................ 40 deg.50' N 70 deg.00' W.
G12............................ ................... 70 deg.00' W.\1\
------------------------------------------------------------------------
\1\ Northward to its intersection with the shoreline of mainland
Massachusetts; and on the west by the eastern boundary of the Mid-
Atlantic regulated mesh area.
(2) Gear restrictions. (i) Except as provided in paragraphs
(c)(2)(iii) and (j) of this section, and unless otherwise restricted
under paragraph (c)(2)(ii) of this section, the minimum mesh size for
any trawl net, sink gillnet, Scottish seine, purse seine or mid-water
trawl, in use, or available for immediate use as described under
paragraph (c)(4) of this section, by a vessel fishing under a DAS in
the multispecies DAS program in the Southern New England (SNE)
regulated mesh area, shall be 6 inches (15.24 cm) square or diamond
mesh throughout the entire net. This restriction does not apply to
vessels that have not been issued a Federal multispecies permit under
Sec. 651.4 and that are fishing exclusively in state waters.
(ii) Large Mesh vessels. When fishing in the SNE regulated mesh
area, the minimum mesh size for any sink gillnet on a vessel, or used
by a vessel, fishing under a DAS in the Large Mesh DAS program
specified in Sec. 651.22(b)(6) shall be 7-inch (17.78-cm) diamond mesh
throughout the entire net. The minimum mesh size for any trawl net on a
vessel, or used by a vessel, fishing under a DAS in the Large Mesh DAS
program shall be 8-inch (20.32-cm) diamond mesh throughout the entire
net. This restriction does not apply to nets or pieces of nets smaller
than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft (0.81 m2)), or to
vessels that have not been issued a Federal multispecies permit under
Sec. 651.4 and that are fishing exclusively in state waters.
(iii) Other gear and mesh exemptions. The minimum mesh size for any
trawl net, sink gillnet, Scottish seine, mid-water trawl, or purse
seine, in use, or available for immediate use as described under
paragraph (c)(4) of this section, by a vessel when not fishing under
the multispecies DAS program and when fishing in the SNE regulated mesh
area, is provided for under the exemptions specified in paragraphs
(c)(3), (e), (f), (i), and (j) of this section. Vessels that are not
fishing in one of these exemption programs, with exempted gear (as
defined under this part), or under the Scallop state waters exemption
program specified in Sec. 650.27 of this chapter, or under a
multispecies DAS are prohibited from fishing in the SNE regulated mesh
area.
(3) * * *
(ii) Possession and net stowage requirements. Vessels may possess
regulated species while in possession of nets with mesh smaller than
the minimum size specified in paragraph (c)(2)(i) of this section,
provided that the nets are stowed and are not available for immediate
use in accordance with paragraph (c)(4) of this section, and provided
that regulated species were not harvested by nets of mesh size smaller
than the minimum mesh size specified in paragraph (c)(2)(i) of this
section. Vessels fishing for the exempted species identified in
paragraph (c)(3)(i) of this section may also possess and retain the
following species, with the restrictions noted, as incidental take to
these exempted fisheries: Conger eels; searobins; black sea bass; red
hake; tautog (blackfish); blowfish (puffer); cunner; John Dory; mullet;
bluefish; tilefish; longhorn sculpin; fourspot flounder; alewife;
hickory shad; American shad; blueback herring; sea ravens; Atlantic
croaker; spot; swordfish; monkfish and monkfish parts up to 10 percent
by weight of all other species on board; American lobster up to 10
percent by weight of all other species on board or two hundred
lobsters, whichever is less; and skate and skate parts up to 10 percent
by weight of all other species on board.
* * * * *
(5) Addition or deletion of exemptions. An exemption may be added,
deleted or modified pursuant to the procedure described in paragraph
(a)(7) of this section.
(d) Mid-Atlantic regulated mesh area. (1) Area definition. The Mid-
Atlantic (MA) regulated mesh area is that area bounded on the east by a
line running from the Rhode Island shoreline along 71 deg.47.5' W.
long. to its intersection with the 3 nautical mile line, south along
the 3 nautical mile line to Montauk Point, southwesterly along the 3
nautical mile line to the intersection of 72 deg.30' W. long., and
south along that line to the intersection of the outer boundary of the
EEZ (see Figure 1 to part 651).
(2) Gear restrictions. (i) Except as provided in paragraphs (d)(3)
and (j) of this section, and unless otherwise restricted under
paragraph (d)(2)(ii) of this section, the minimum mesh size for
[[Page 8553]]
any trawl net, sink gillnet, Scottish seine, purse seine or mid-water
trawl, in use, or available for immediate use as described under
paragraph (c)(4) of this section, by a vessel fishing under a DAS in
the multispecies DAS program in the MA regulated mesh area shall be
that specified in the summer flounder regulations at Sec. 625.24(a) of
this chapter. This restriction does not apply to vessels that have not
been issued a Federal multispecies permit under Sec. 651.4 and that are
fishing exclusively in state waters.
(ii) Large mesh vessels. When fishing in the MA regulated mesh
area, the minimum mesh size for any sink gillnet on a vessel, or used
by a vessel, fishing under a DAS in the Large Mesh DAS program
specified in Sec. 651.22(b)(6) shall be 7-inch (17.78-cm) diamond mesh
throughout the entire net. The minimum mesh size for any trawl net on a
vessel, or used by a vessel, fishing under a DAS in the Large Mesh DAS
program shall be 8-inch (20.32-cm) diamond mesh throughout the net.
This restriction does not apply to nets or pieces of nets smaller than
3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft (0.81 m2)), or to vessels
that have not been issued a Federal multispecies permit under
Sec. 651.4 and that are fishing exclusively in state waters.
(3) Exemptions. Vessels in the MA regulated mesh area may fish with
or possess nets of mesh size smaller than the minimum size specified in
paragraph (d)(2) of this section provided that they do not possess or
land multispecies finfish, except as provided in Sec. 651.27(b).
(ii) Net stowage exemption. Vessels may possess regulated species
while in possession of nets with mesh smaller than the minimum size
specified in paragraph (d)(2)(i) of this section, provided that the
nets are stowed and are not available for immediate use in accordance
with paragraph (c)(4) of this section, and provided that regulated
species were not harvested by nets of mesh size smaller than the
minimum mesh size specified in paragraph (d)(2)(i) of this section.
(4) Additional exemptions. The Regional Director may, using the
process described in either (a)(7)(i) or (a)(7)(ii), authorize an
exemption for a white hake fishery by vessels using regulated mesh or
hook gear. Determination of the percentage of regulated species caught
in such a fishery shall not include white hake.
(e) * * *
(2) When fishing under this exemption in the GOM/GB Regulated Mesh
Area vessels must have on board an authorizing letter issued by the
Regional Director;
* * * * *
(f) * * *
(2) When fishing under this exemption in the GOM/GB Regulated Mesh
Area vessels must have on board an authorizing letter issued by the
Regional Director;
* * * * *
(i) Scallop vessels. (1) Except as provided in paragraph (i)(2) of
this section, scallop vessels that possess a limited access permit
under Sec. 650.4 of this chapter, and that are fishing under the
scallop DAS program described in Sec. 650.24, may possess and land up
to 300 lb (136.1 kg) of regulated species, unless otherwise restricted
pursuant to Sec. 651.27(a)(2).
(2) Combination vessels fishing under a multispecies DAS are
subject to the gear restrictions specified in Sec. 651.20 and may
possess and land unlimited amounts of regulated species. Such vessels
may simultaneously fish under a scallop DAS.
(j) State waters winter flounder exemption. Any vessel issued a
Federal limited access multispecies permit under this part may fish
for, possess, or land winter flounder while fishing with nets of mesh
smaller than the minimum size specified in paragraphs (a)(2), (c)(2),
and (d)(2) of this section provided that:
* * * * *
(7) The vessel, when not fishing under the DAS program, does not
fish for, possess, or land more than 500 lb (226.8 kg) of winter
flounder;
* * * * *
6. In Sec. 651.21, paragraphs (a)(2)(i), (b)(2)(i), (c)(2)(i), (d)
and (e) introductory text are revised, and paragraphs (f), (g), and (h)
are added to read as follows:
Sec. 651.21 Closed areas.
(a) * * *
(2) * * *
(i) Fishing with or using pot gear designed and used to take
lobsters, or pot gear designed and used to take hagfish, and that have
no other gear on board capable of catching multispecies finfish; and
* * * * *
(b) * * *
(2) * * *
(i) Fishing with or using pot gear designed and used to take
lobsters, or pot gear designed and used to take hagfish, and that have
no other gear on board capable of catching multispecies finfish;
* * * * *
(c) * * *
(2) * * *
(i) Fishing with or using pot gear designed and used to take
lobsters, or pot gear designed and used to take hagfish, and that have
no other gear on board capable of catching multispecies finfish;
* * * * *
(d) Transiting. Vessels may transit Closed Area I, the Nantucket
Lightship Closed Area, the Northeast Closure Area, the Mid-coast
Closure Area, and the Massachusetts Bay Closure Area, as defined in
paragraphs (a)(1), (c)(1), (f)(1), (g)(1) and (h)(1), respectively, of
this section, provided that their gear is stowed in accordance with the
provisions of paragraph (e) of this section.
(e) Gear stowage requirements. Vessels transiting the closed areas
must stow their gear as follows:
* * * * *
(f) Northeast Closure Area. (1) During the period August 15 through
September 13, no fishing vessel or person on a fishing vessel may
enter, fish, or be, and no fishing gear capable of catching
multispecies finfish, unless otherwise allowed in this part may be, in
the area known as the Northeast Closure Area (Figure 3 to part 651), as
defined by straight lines connecting the following points in the order
stated, except as specified in paragraphs (d) and (f)(2) of this
section:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
NE1............................ Maine 68 deg.55.0' W.
shoreline
NE2............................ 43 deg.29.6' N 68 deg.55.0' W.
NE3............................ 44 deg.04.4' N 67 deg.48.7' W.
NE4............................ 44 deg.06.9' N 67 deg.52.8' W.
NE5............................ 44 deg.31.2' N 67 deg.02.7' W.
NE6............................ Maine 67 deg.02.7' W.
shoreline
------------------------------------------------------------------------
(2) Exceptions. Paragraph (f)(1) of this section does not apply to
persons on fishing vessels or fishing vessels:
(i) That have not been issued a Federal multispecies permit under
Sec. 651.4 and that are fishing exclusively in state waters;
(ii) Fishing with or using exempted gear as defined under this
part, excluding mid-water trawl gear, provided that there is no other
gear on board capable of catching multispecies finfish; and
(iii) Classified as charter, party, or recreational.
(g) Mid-coast Closure Area. (1) During the period November 1
through December 31, no fishing vessel or person on a fishing vessel
may enter, fish, or be, and no fishing gear capable of catching
multispecies finfish unless otherwise allowed in this part may be,
[[Page 8554]]
in the area known as the Mid-coast Closure Area (Figure 3 to part 651),
as defined by straight lines connecting the following points in the
order stated, except as specified in paragraphs (d) and (g)(2) of this
section:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
MC1........................... 42 deg.30'N Massachusetts
shoreline.
MC2........................... 42 deg.30'N 70 deg.15'W.
MC3........................... 42 deg.40'N 70 deg.15'W.
MC4........................... 42 deg.40'N 70 deg.00'W.
MC5........................... 43 deg.00'N 70 deg.00'W.
MC6........................... 43 deg.00'N 69 deg.30'W.
MC7........................... 43 deg.15'N 69 deg.30'W.
MC8........................... 43 deg.15'N 69 deg.00'W.
MC9........................... Maine 69 deg.00'W.
shoreline
------------------------------------------------------------------------
(2) Exceptions. Paragraph (g)(1) of this section does not apply to
persons on fishing vessels or fishing vessels:
(i) That have not been issued a Federal multispecies permit under
Sec. 651.4 and that are fishing exclusively in state waters;
(ii) Fishing with or using exempted gear as defined under this
part, excluding mid-water trawl gear, provided that there is no other
gear on board capable of catching multispecies finfish; and
(iii) Classified as charter, party, or recreational.
(h) Massachusetts Bay Closure Area. (1) During the period March 1
through March 30, no fishing vessel or person on a fishing vessel may
enter, fish, or be, and no fishing gear capable of catching
multispecies finfish, unless otherwise allowed in this part may be, in
the area known as the Massachusetts Bay Closure Area (Figure 3 to part
651), as defined by straight lines connecting the following points in
the order stated, except as specified in paragraphs (d) and (h)(2) of
this section:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
MB1............................ 42 deg.30' N Massachusetts
shoreline.
MB2............................ 42 deg.30' N 70 deg.30' W.
MB3............................ 42 deg.12' N 70 deg.30' W.
MB4............................ 42 deg.12' N 70 deg.00' W.
MB5............................ Cape Cod 70 deg.00' W.
shoreline
MB6............................ 42 deg.00' N Cape Cod
shoreline.
MB7............................ 42 deg.00' N Massachusetts
shoreline.
------------------------------------------------------------------------
(2) Exceptions. Paragraph (h)(1) of this section does not apply to
persons on fishing vessels or fishing vessels:
(i) That have not been issued a Federal multispecies permit under
Sec. 651.4 and that are fishing exclusively in state waters;
(ii) Fishing with or using exempted gear as defined under this
part, excluding mid-water trawl gear, provided that there is no other
gear on board capable of catching multispecies finfish; and
(iii) Classified as charter, party, or recreational.
7. Section 651.22 is revised to read as follows:
Sec. 651.22 Effort-control program for limited access vessels.
(a) A limited access multispecies vessel issued a permit under
Sec. 651.4(b) may not fish for, possess or land regulated species
except during a DAS as allocated under and in accordance with the
applicable DAS program described below, unless otherwise provided in
these regulations.
(b) DAS program--Permit categories, allocations and initial
assignments to categories. Beginning with the 1996 fishing year, all
limited access multispecies permit holders shall be assigned to one of
the following DAS permit categories according to the criteria
specified. Permit holders may request a change in permit category for
the 1996 fishing year and all fishing years thereafter as specified in
Sec. 651.4(f)(3). Each fishing year shall begin on May 1 and extend
through April 30 of the following year.
(1) Individual DAS Category--(i) DAS allocation. Vessels fishing
under the Individual DAS category shall be allocated 65 percent of
their initial 1994 allocation baseline as established under Amendment 5
to the FMP for the 1996 fishing year and 50 percent of the vessel's
initial allocation baseline for the 1997 fishing year and beyond, as
calculated under paragraph (d)(1) of this section.
(ii) Initial assignment. All vessels issued valid Individual DAS
limited access multispecies permits, including vessels also issued
limited access multispecies Gillnet category permits, as of the
effective date of the final rule for Amendment 7, shall be initially
assigned to this category.
(2) Fleet DAS Category--(i) DAS allocation. Vessels fishing under
the Fleet DAS category shall be allocated 139 DAS for the 1996 fishing
year, and 88 DAS for the 1997 fishing year and beyond.
(ii) Initial assignment. As of the effective date of the final rule
for Amendment 7, vessels issued valid permits in one of the following
categories shall be initially assigned to this category: Fleet DAS
permit holders, including vessels also issued limited access
multispecies Gillnet category permits; limited access multispecies
Hook-Gear permit holders; limited access multispecies Gillnet permit
holders that have not also been issued a permit in a DAS permit
category; limited access multispecies 45 ft (13.7 m)
category permit holders that are larger than 20 ft (6.1 m) in length as
determined by the most recent permit application.
(3) Small vessel category--(i) DAS allocation. Vessels qualified
and electing to fish under the Small Vessel category may retain cod,
haddock, and yellowtail flounder, combined up to 300 lb (136.1 kg) per
trip without being subject to DAS restrictions. These vessels are not
subject to a possession limit for the other multispecies finfish.
(ii) Initial assignment. All vessels issued a valid limited access
multispecies permit and fishing under the Small boat exemption (less
than or equal to 45 ft (13.7 m)) permit as of the effective date of the
final rule for Amendment 7, and that are 20 ft (6.1 m) or less in
length as determined by the vessel's last application for a permit
shall be initially assigned to this category. Other vessels may elect
to change into this category as provided for in Sec. 651.4(f)(3) if
such vessel meets or complies with the following:
(A) The vessel is 30 ft (9.1 m) or less in length overall as
determined by measuring along a horizontal line drawn from a
perpendicular raised from the outside of the most forward portion of
the stem of the vessel to a perpendicular raised from the after most
portion of the stern;
(B) Vessels for which construction was begun after May 1, 1994,
must be constructed such that the quotient of the overall length
divided by the beam will not be less than 2.5; and
(C) Acceptable verification for vessels 20 ft (6.1 m) or less in
length shall be U.S. Guard documentation or state registration papers.
For vessels over 20 ft (6.1 m) in length, the measurement of length
must be verified in writing by a qualified marine surveyor, or the
builder, based on the boat's construction plans, or by other means
determined acceptable by the Regional Director. A copy of the
verification must accompany an application for a Federal multispecies
permit issued under Sec. 651.4.
(D) Adjustments to the small-boat category requirements, including
changes to the length requirement, if required to meet fishing
mortality goals, may be made following a reappraisal and analysis under
the framework provisions specified in subpart C of this part.
(4) Hook-Gear Category--(i) DAS allocation. Vessels issued a valid
[[Page 8555]]
limited access multispecies Hook-Gear permit shall be allocated 139 DAS
for the 1996 fishing year and 88 DAS for the 1997 fishing year and
beyond. A vessel fishing in this permit category under the DAS program
must meet or comply with the following while fishing for, in possession
of, or landing, regulated species:
(A) Vessels, and persons on such vessels, are prohibited from
possessing gear other than hook gear on board the vessel; and
(B) Vessels, and persons on such vessels, are prohibited from
fishing, setting, or hauling back, per day, or possessing on board the
vessel, more than 4,500 rigged hooks. An unbaited hook and gangion that
has not been secured to the ground line of the trawl on board a vessel
is deemed to be a replacement hook and is not counted toward the 4,500
hook limit. A ``snap-on'' hook is deemed to be a replacement hook if it
is not rigged or baited.
(ii) Initial assignment. No vessel shall be initially assigned to
the Hook-Gear category. Any vessel that meets the qualifications
specified in Sec. 651.4(b)(1) may apply for and obtain a permit to fish
under this category.
(5) Combination Vessel Category--(i) DAS allocation. Vessels
fishing under the Combination Vessel category shall be allocated 65
percent of their initial 1994 allocation baseline as established under
Amendment 5 to the FMP for the 1996 fishing year and 50 percent of the
vessel's initial allocation baseline for the 1997 fishing year and
beyond, as calculated under paragraph (d)(1) of this section.
(ii) Initial assignment. All vessels issued a valid limited access
multispecies permit qualified to fish as a Combination Vessel as of the
effective date of the final rule for Amendment 7 shall be assigned to
this category.
(6) Large Mesh DAS Category--(i) DAS allocation. Vessels fishing
under the Large Mesh DAS category shall be allocated 155 DAS for the
1996 fishing year, and 120 DAS for the 1997 fishing year and beyond. To
be eligible to fish under the Large Mesh DAS permit category a vessel
must fish with gillnet gear with a minimum mesh net of 7- inch (17.78-
cm) diamond or trawl gear with a minimum mesh size of 8-inch (20.32-cm)
diamond, as described under Sec. 651.20(a)(2)(ii), (c)(2)(ii), and
(d)(2)(ii).
(ii) Initial assignment. No vessel shall be initially assigned to
the Large Mesh DAS category. Any vessel that is initially assigned to
the Individual DAS, Fleet DAS, or Small Vessel permit category may
request and be granted a change in category into this category as
specified in Sec. 651.4(f)(3).
(c) 1996 DAS appeals. A vessel that was issued a valid 1995 limited
access multispecies permit and fishing under the Small boat exemption
(less than or equal to 45 ft (13.7 m)), Hook-Gear or Gillnet permit
categories, that elects to fish under the Individual DAS category, and
has not previously been allocated Individual DAS, is eligible to appeal
its allocation of DAS if it has not previously done so, as described
under paragraph (d)(2) of this section. Each of these vessel's initial
allocation of Individual DAS will be considered to be 176 for purposes
of this appeal (that is, the Fleet DAS category baseline prior to the
1996-1997 reductions).
(d) Individual DAS allocations--(1) Calculation of a vessel's
Individual DAS. The DAS assigned to a vessel for purposes of
determining that vessel's annual allocation under the Individual DAS
Program shall be calculated as follows:
(i) Calculate the total number of the vessel's multispecies DAS for
the years 1988, 1989, and 1990. Multispecies DAS are deemed to be the
total number of days the vessel was absent from port for a trip where
greater than 10 percent of the vessel's total landings were comprised
of regulated species, minus any days for such trips in which a scallop
dredge was used;
(ii) Exclude the year of least multispecies DAS; and
(iii) If 2 years of multispecies DAS are remaining, average those
years' DAS, or, if only 1 year remains, use that year's DAS.
(2) Appeal of DAS allocation--(i) Appeal criteria. Initial
allocations of Individual DAS to those vessels authorized to appeal
under paragraph (c) of this section may be appealed to the Regional
Director if a request to appeal is received by the Regional Director no
later than July 31, 1996, or 30 days after the initial allocation is
made, whichever is later. Any such appeal must be in writing and be
based on one or more of the following grounds:
(A) The information used by the Regional Director was based on
mistaken or incorrect data;
(B) The applicant was prevented by circumstances beyond his/her
control from meeting relevant criteria; or
(C) The applicant has new or additional information.
(ii) The Regional Director will appoint a designee who will make an
initial decision on the written appeal.
(iii) If the applicant is not satisfied with the initial decision,
the applicant may request that the appeal be presented at a hearing
before an officer appointed by the Regional Director.
(iv) The hearing officer shall present his/her findings to the
Regional Director and the Regional Director will make a decision on the
appeal. The Regional Director's decision on this appeal is the final
administrative decision of the Department of Commerce.
(3) Status of vessels pending appeal of DAS allocations. Vessels,
while their Individual DAS allocation is under appeal, may fish under
the Fleet DAS category until the Regional Director has made a final
determination on the appeal. Any DAS spent fishing for regulated
species by a vessel while that vessel's initial DAS allocation is under
appeal, shall be counted against any DAS allocation that the vessel may
ultimately receive.
(e) Accrual of DAS. DAS shall accrue in hourly increments, with all
partial hours counted as full hours.
(f) Good Samaritan credit. Limited access vessels fishing under the
DAS program and that spend time at sea for one of the following
reasons, and that can document the occurrence through the U.S. Coast
Guard, will be credited for the time documented:
(1) Time spent assisting in a U.S. Coast Guard search and rescue
operation; or
(2) Time spent assisting the U.S. Coast Guard in towing a disabled
vessel.
(g) Spawning season restrictions. Vessels issued a valid Small
Vessel category permit under paragraph (b)(3) of this section may not
fish for, possess, or land regulated species between March 1 and March
20 of each year. All other vessels issued limited access permits must
declare out and be out of the regulated multispecies finfish fishery
for a 20-day period between March 1 and May 31 of each fishing year
using the notification requirements specified under Sec. 651.29. If a
vessel owner has not declared, or taken, the period of time required
between March 1 and May 31 of each fishing year on or before May 12 of
each such year, the vessel is prohibited from fishing for, possessing
or landing any regulated species during the period May 12 through May
31, inclusive.
(h) Declaring DAS and 20-day blocks. A vessel's owner or authorized
representative shall notify the Regional Director of a vessel's
participation in the DAS program and declaration of its 20-day spawning
period out of the multispecies fishery using the notification
requirements specified under Sec. 651.29.
(i) Adjustments in annual DAS allocations. Adjustments in annual
DAS allocations, if required to meet fishing mortality goals, may be
made following
[[Page 8556]]
a reappraisal and analysis as specified in subpart C of this part.
8. In Sec. 651.23, the introductory text of paragraph (a) and
paragraphs (d) and (e) are revised to read as follows:
Sec. 651.23 Minimum fish size.
(a) Minimum fish sizes for recreational vessels and charter/party
vessels that are not fishing under a multispecies DAS are specified in
Sec. 651.34. All other vessels are subject to minimum fish sizes (total
length) as follows:
* * * * *
(d) Exception. (1) Each person aboard a vessel issued a limited
access permit and fishing under the DAS program may possess up to 25 lb
(11.3 kg) of fillets that measure less than the minimum size, if such
fillets are from legal-sized fish and are not offered or intended for
sale, trade, or barter.
(e) Adjustments of minimum size. (1) At anytime when information is
available, the Council will review the best available mesh selectivity
information to determine the appropriate minimum size for the species
listed in paragraph (a) of this section, except winter flounder,
according to the length at which 25 percent of the regulated species
would be retained by the applicable minimum mesh size.
(2) Upon determination of the appropriate minimum sizes, the
Council shall propose the minimum fish sizes to be implemented
following the procedures specified in subpart C of this part.
(3) Additional adjustments or changes to the minimum fish sizes
specified in paragraphs (a) and (b) of this section, and exemptions as
specified in paragraphs (a) and (b) of this section, and exemptions as
specified in paragraph (c) of this section, may be made at any time
after implementation of the final rule as specified under subpart C of
this part.
9. Section 651.27 is revised to read as follows:
Sec. 651.27 Additional possession limits on haddock and winter
flounder.
(a) Haddock--(1) Multispecies DAS vessels. A vessel issued a
limited access multispecies permit under this part that is fishing
under a multispecies DAS may land, or possess on board, up to 1000 lb
(453.6 kg) of haddock. Haddock on board a vessel subject to this
possession limit must be separated from other species of fish and
stored so as to be readily available for inspection.
(2) Scallop dredge vessels--(i) No person owning or operating a
scallop dredge vessel issued a permit under this part may land haddock
from, or possess haddock on board, a scallop dredge vessel, from
January 1 through June 30.
(ii) No person owning or operating a scallop dredge vessel without
a permit under this part may possess haddock in, or harvested from, the
EEZ, from January 1 through June 30.
(iii) From July 1 through December 31, no scallop dredge vessel or
persons owning or operating a scallop dredge vessel, that is fishing
under the scallop DAS program as described in Sec. 651.20(i), may land,
or possess on board, more than 300 lbs (136.1 kg) of haddock. Haddock
on board a vessel subject to this possession limit must be separated
from other species of fish and stored so as to be readily available for
inspection.
(b) Winter flounder. A vessel issued a limited access permit under
this part that is fishing in the MA regulated mesh area and is not
fishing under a multispecies DAS, may land, or possess on board, winter
flounder up to 10 percent by weight of all other species on board or
200 lb (90.7 kg), whichever is less. Winter flounder on board a vessel
subject to this possession limit must be separated from other species
of fish and stored so as to be readily available for inspection in
standard totes.
(c) Vessels are subject to any other applicable possession limit
restrictions of this part.
10. In Sec. 651.28, the heading and the first sentence of paragraph
(a), and paragraphs (b) and (c) are revised to read as follows:
Sec. 651.28 Monitoring requirements.
(a) Individual DAS limited access multispecies vessels. Unless
otherwise authorized or required by the Regional Director under
Sec. 651.29(b), vessel owners fishing under the Individual DAS program
and Combination Vessels must have installed on board an operational VTS
unit that meets the minimum performance criteria specified in paragraph
(a)(2) of this section, or as modified annually as specified in
paragraph (a)(1) of this section. * * *
(b) Fleet DAS and other limited access multispecies vessels.
Vessels issued limited access multispecies permits who are
participating in a DAS program and who are not required to provide
notification using a VTS shall be subject to the call-in requirements
specified in Sec. 651.29(b).
(c) Charter/party vessels. Charter/party vessels that are not
fishing under a multispecies DAS are subject to the following
requirements:
(1) A vessel must declare into and out of the charter/party fishery
providing notification under Sec. 651.29(b).
(2) Vessels that declare into the charter/party fishery are subject
to the restrictions in Sec. 651.34.
(3) Once a vessel has declared into the charter/party fishery, that
vessel must remain in the charter/party fishery for a minimum of 24
hours.
11. Section 651.29 is revised to read as follows:
Sec. 651.29 DAS notification program.
(a) VTS notification. Unless otherwise authorized by the Regional
Director as specified in paragraph (c) of this section, owners of
vessels issued limited access multispecies permits that have elected to
or are required to use a VTS system shall be subject to the following
requirements:
(1) Vessels that are issued limited access multispecies permits,
that have crossed the demarcation line specified under paragraph
(d)(ii) of this section, are deemed to be fishing under the DAS program
unless the vessel's owner or authorized representative declares the
vessel out of the multispecies fishery, by notifying the Regional
Director through the VTS. The owner or authorized representative of any
vessel that has been declared out of the multispecies fishery must
notify the Regional Director through the VTS prior to leaving port on
the vessel's next trip under the DAS program.
(2) If the VTS is not available, or not functional, and if
authorized by the Regional Director, a vessel owner must comply with
the call-in notification requirements specified in paragraph (b) of
this section.
(3) Notification that the vessel is not under the DAS program must
be received prior to the vessel leaving port. A change in status of a
vessel cannot be made after the vessel leaves port or before it returns
to port on any fishing trip.
(b) Call-in notification. Vessel owners authorized or required to
provide notification using the call-in system shall be subject to the
following requirements:
(1) The vessel owner or authorized representative shall notify the
Regional Director, prior to leaving port, that the vessel will be
participating in the applicable DAS program, or the charter party
fishery, by calling 1-800-260-8204 or 508-281-9335, and providing the
following information: Vessel name and permit number, owner and caller
name and phone number, the type of trip to be taken, the port of
departure, and that the vessel is beginning a trip.
(2) A multispecies DAS, or a vessel's participation in the charter/
party fishery, begins once the call has been
[[Page 8557]]
received and confirmation given by the Regional Director.
(3) A vessel must keep its confirmation number on board for the
duration of the trip and must provide it to an authorized officer upon
request.
(4) Upon returning to port, at the conclusion of a trip as defined
in paragraph (d) of this section or when the vessel is leaving the
charter/party fishery, the vessel owner or owner's representative shall
notify the Regional Director that the trip has ended by calling 1-800-
260-8204 or 508-281-9335, and providing the following information:
Vessel name and permit number, owner and caller name and telephone
number, port landed, confirmation number, and that the trip has ended.
(5) A DAS, or the vessel's participation in the charter/party
fishery, ends when the call has been received and confirmation given by
the Regional Director.
(6) Any vessel issued a limited access multispecies permit subject
to the DAS program and call-in requirement, that possess or lands
regulated species, except as provided in Sec. 651.23, shall be deemed
in the DAS program for purposes of counting DAS, regardless of whether
or not the vessel's owner or authorized representative provided
adequate notification as required by this part.
(7) Any change in status of a vessel cannot be done after leaving
port on any fishing trip.
(c) Temporary authorization for use of the call-in system. The
Regional Director may authorize or require, on a temporary basis, the
use of an alternative call-in system of notification. If the call-in
system is authorized or required, the Regional Director shall notify
affected permit holders through a letter, notification in the Federal
Register, or other appropriate means. Vessel owners authorized or
required by the Regional Director to provide notification by a call-in
system under this paragraph shall be subject to the requirements
specified in paragraph (b) of this section.
(d) Counting of DAS. DAS shall be counted as follows:
(1) Vessels fishing under the VTS system. (i) DAS for vessels that
are under the VTS monitoring system described in Sec. 651.29(a) are
counted beginning with the first hourly location signal received
showing that the vessel crossed the Vessel Tracking System Demarcation
Line leaving port. A trip concludes and accrual of DAS ends with the
first hourly location signal received showing that the vessel crossed
the Vessel Tracking System Demarcation Line upon its return to port.
(ii) Vessel Tracking System Demarcation Line. The VTS Demarcation
Line is defined as straight lines connecting the following points in
the order stated (see Figures 6 and 7 to part 651):
Vessel Tracking System Demarcation Line
------------------------------------------------------------------------
Description Longitude Latitude
------------------------------------------------------------------------
1. Northern terminus point 45 deg.03' N 66 deg.47' W.
(Canada land mass).
2. A point east of West Quoddy 44 deg.48.9' N 66 deg.56.1' W.
Head Light.
3. A point east of Little 44 deg.39.0' N 67 deg.10.5' W.
River Light.
4. Whistle Buoy ``8BI'' (SSE 44 deg.13.6' N 68 deg.10.8' W.
of Baker Island).
5. Isle au Haut Light......... 44 deg.03.9' N 68 deg.39.1' W.
6. Pemaquid Point Light....... 43 deg.50.2' N 69 deg.30.4' W.
7. A point west of Halfway 43 deg.38.0' N 70 deg.05.0' W.
Rock.
8. A point east of Cape 43 deg.09.9' N 70 deg.34.5' W.
Neddick Light.
9. Merrimack River Entrance 42 deg.48.6' N 70 deg.47.1' W.
``MR'' Whistle Buoy.
10. Halibut Point Gong Buoy 42 deg.42.0' N 70 deg.37.5' W.
``1AHP''.
11. Connecting reference point 42 deg.40' N 70 deg.30' W.
12. Whistle Buoy ``2'' off 42 deg.34.3' N 70 deg.39.8' W.
Eastern Point.
13. The Graves Light (Boston). 42 deg.21.9' N 70 deg.52.2' W.
14. Minots Ledge Light........ 42 deg.16.2' N 70 deg.45.6' W.
15. Farnham Rock Lighted Bell 42 deg.05.6' N 70 deg.36.5' W.
Buoy.
16. Cape Cod Canal Bell Buoy 41 deg.48.9' N 70 deg.27.7' W.
``CC''.
17. A point inside Cape Cod 41 deg.48.9' N 70 deg.05' W.
Bay.
18. Race Point Lighted Bell 42 deg.04.9' N 70 deg.16.8' W.
Buoy ``RP''.
19. Peaked Hill Bar Whistle 42 deg.07.0' N 70 deg.06.2' W.
Buoy ``2PH''.
20. Connecting point, off 41 deg.50' N. 69 deg.53' W.
Nauset Light.
21. A point south of Chatham 41 deg.38' N. 69 deg.55.2' W.
``C'' Whistle Buoy.
22. A point in eastern 41 deg.30' N 70 deg.33' W.
Vineyard Sound.
23. A point east of Martha's 41 deg.22.2' N 70 deg.24.6' W.
Vineyard.
24. A point east of Great Pt. 41 deg.23.4' N. 69 deg.57' W.
Light, Nantucket.
25. A point SE of Sankaty 41 deg.13' N 69 deg.57' W.
Head, Nantucket.
26. A point west of Nantucket. 41 deg.15.6' N 70 deg.25.2' W.
27. Squibnocket Lighted Bell 41 deg.15.7' N 70 deg.46.3' W.
Buoy ``1''.
28. Wilbur Point (on Sconticut 41 deg.35.2' N 70 deg.51.2' W.
Neck).
29. Mishaum Point (on Smith 41 deg.31.0' N 70 deg.57.2' W.
Neck).
30. Sakonnet Entrance Lighted 41 deg.25.7' N 71 deg.13.4' W.
Whistle Buoy ``SR''.
31. Point Judith Lighted 41 deg.19.3' N 71 deg.28.6' W.
Whistle Buoy ``2''.
32. A point off Block Island 41 deg.08.2' N 71 deg.32.1' W.
Southeast Light.
33. Shinnecock Inlet Lighted 40 deg.49.0' N 72 deg.28.6' W.
Whistle Buoy ``SH''.
34. Scotland Horn Buoy ``S'', 40 deg.26.5' N 73 deg.55.0' W.
off Sandy Hook (NJ).
35. Barnegat Lighted Gong Buoy 39 deg.45.5' N 73 deg.59.5' W.
``2''.
36. A point east of Atlantic 39 deg.21.9' N 74 deg.22.7' W.
City Light.
37. A point east of Hereford 39 deg.00.4' N 74 deg.46' W.
Inlet Light.
38. A point east of Cape 38 deg.47' N 75 deg.04' W.
Henlopen Light.
39. A point east of Fenwick 38 deg.27.1' N 75 deg.02' W.
Island Light.
40. A point NE of Assateague 38 deg.00' N 75 deg.13' W.
Island (VA).
41. Wachapreague Inlet Lighted 37 deg.35.0' N. 75 deg.33.7' W.
Whistle Buoy ``A''.
42. A point NE of Cape Henry.. 36 deg.55.6' N 75 deg.58.5' W.
43. A point east of Currituck 36 deg.22.6' N 75 deg.48' W.
Beach Light.
[[Page 8558]]
44. Oregon Inlet (NC) Whistle 35 deg.48.5' N 75 deg.30' W.
Buoy.
45. Wimble Shoals, east of 35 deg.36' N 75 deg.26' W.
Chicamacomico.
46. A point SE of Cape 35 deg.12.5' N 75 deg.30' W.
Hatteras Light.
47. Hatteras Inlet Entrance 35 deg.10' N 75 deg.46' W.
Buoy ``HI''.
48. Ocracoke Inlet Whistle 35 deg.01.5' N 76 deg.00.5' W.
Buoy ``OC''.
49. A point east of Cape 34 deg.36.5' N 76 deg.30' W.
Lookout Light.
50. Southern terminus point... 34 deg.35' N 76 deg.41' W.
------------------------------------------------------------------------
(2) Gillnet vessels under the call-in system. Accrual of DAS under
the call-in notification system for vessels fishing with gillnet gear
begins once the phone call has been received, and confirmation has been
given by the Regional Director. DAS continue to accrue as long as the
vessel's gillnet gear remains in the water or on the vessel when
returning to port. A trip concludes and accrual of DAS ends when a
vessel returns to port with all of its gillnet gear that was in the
water on board, the phone call has been received, and confirmation has
been given by the Regional Director.
(3) All other vessels under the call-in system. Accrual of DAS
under the call-in notification system begins once the phone call has
been received and confirmation has been given by the Regional Director.
A trip concludes and accrual of DAS ends when after returning to port,
the phone call has been received and confirmation has been given by the
Regional Director.
12. In Sec. 651.31, paragraph (d) is added to read as follows:
Sec. 651.31 At-sea observer coverage.
* * * * *
(d) Industry funded observer coverage. NMFS may accept observer
coverage funded by outside sources provided the following requirements
are met:
(1) All coverage conducted by such observers is determined by NMFS
to be in compliance with NMFS' observer guidelines and procedures;
(2) The owner or operator of the vessel complies with all other
provisions of this part; and
(3) The observer is approved by the Regional Director.
13. Section 651.32 is revised to read as follows:
Sec. 651.32 Sink gillnet requirements to reduce harbor porpoise takes.
(a) Areas closed to sink gillnets. The closed area restrictions
prohibiting sink gillnets in the areas and times specified in
Sec. 651.21(f) through Sec. 651.32(h) are implemented in order to
reduce the takes of harbor porpoise consistent with the harbor porpoise
mortality reduction goals. Additional restrictions may be implemented
following a reappraisal and analysis under the framework provisions
specified in paragraph (b) of this section.
(b) Framework adjustment. (1) At least annually the Regional
Director will provide the Council with the best available information
on the status of Gulf of Maine harbor porpoise including estimates of
abundance and estimates of bycatch in the sink gillnet fishery. Within
60 days of receipt of that information, the Council's Harbor Porpoise
Review Team shall complete a review of the data, assess the adequacy of
existing regulations, evaluate the impacts of other measures that
reduce harbor porpoise take and, if necessary, recommend additional
measures in light of the Council's harbor porpoise mortality reduction
goals. In addition, the HPRT shall make a determination on whether
other conservation issues exist that require a management response to
meet the goals and objectives outlined in the FMP. The HPRT shall
report its findings and recommendations to the Council.
(2) After receiving and reviewing the HPRT's findings and
recommendations, the Council shall determine whether adjustments or
additional management measures are necessary to meet the goals and
objectives of the FMP. If the Council determines that adjustments or
additional management measures are necessary, or at any other time in
consultation with the HPRT, it shall develop and analyze appropriate
management actions over the span of at least two Council meetings.
(3) The Council may request at any time that the HPRT review and
make recommendations on any harbor porpoise take reduction measures or
develop additional take reduction proposals.
(4) The Council shall provide the public with advance notice of the
availability of the proposals, appropriate rationale, economic and
biological analyses, and opportunity to comment on them prior to and at
the second Council meeting. The Council's recommendation on adjustments
or additions to management measures must come from one or more of the
categories specified under Sec. 651.40(b)(1).
(5) If the Council recommends that the management measures should
be published as a final rule, the Council must consider at least the
factors specified in Sec. 651.40(b)(2).
(6) The Regional Director may accept, reject, or with Council
approval, modify the Council's recommendation, including the Council's
recommendation to publish a final rule, as specified under
Sec. 651.40(b)(3).
14. Section 651.33 is revised to read as follows:
Sec. 651.33 Open access permit restrictions.
(a) Handgear permit. A vessel issued a valid open access Handgear
permit issued under Sec. 651.4(c) is subject to the following
restrictions:
(1) The vessel may possess and land up to 300 lb (136.1 kg) of cod,
haddock, and yellowtail flounder, combined, per trip, and unlimited
amounts of the other multispecies finfish provided that it does not
use, or possess on board, gear other than rod and reel or handlines
while in possession of, fishing for, or landing multispecies finfish.
(2) A vessel may not fish for, possess, or land regulated species
between March 1 and March 20 of each year.
(b) Charter/party permit. A vessel that has been issued a valid
open access Charter/party permit under Sec. 651.4(c), and has declared
into the charter/party fishery, is subject to the restrictions on gear,
recreational minimum fish sizes and prohibitions on sale specified in
Sec. 651.34, and any other applicable provisions of this part.
(c) Scallop Multispecies Possession Limit Permit. A vessel that has
been issued a valid open access Scallop Multispecies Possession Limit
permit under Sec. 651.4(c) may possess and land up to 300 lb (136.1 kg)
of regulated species when fishing under a scallop DAS as described
under Sec. 651.20(i), provided the vessel does not fish for, possess or
land haddock during January 1 through June 30 as specified under
Sec. 651.27(a)(2)(i).
15. Section 651.34 is added to subpart B to read as follows:
[[Page 8559]]
Sec. 651.34 Recreational and charter/party restrictions.
(a) Recreational gear restrictions. Persons aboard charter or party
vessels permitted under this part and not fishing under the DAS
program, and recreational fishing vessels in the EEZ, are prohibited
from fishing with more than two hooks per line and one line per angler
and must stow all other fishing gear on board the vessel as specified
under Secs. 651.20(c)(4) and 651.21(e)(2), 651.21(e)(3) and
651.21(e)(4).
(b) Recreational minimum fish sizes. (1) Persons aboard charter or
party vessels permitted under this part and not fishing under the DAS
program, and recreational fishing vessels in the EEZ, are subject to
minimum fish sizes (total length) as follows:
Recreational
----------------------------------------------------------------------------------------------------------------
Inches
Species -----------------------------------------------------------------------
1996 1997+
----------------------------------------------------------------------------------------------------------------
Cod..................................... 20 (50.8 cm) 21 (53.3 cm).
Haddock................................. 20 (50.8 cm) 21 (53.3 cm).
Pollock................................. 19 (48.3 cm) 19 (48.3 cm).
Witch flounder (gray sole).............. 14 (35.6 cm) 14 (35.6 cm).
Yellowtail flounder..................... 13 (33.0 cm) 13 (33.0 cm).
American plaice (dab)................... 14 (35.6 cm) 14 (35.6 cm).
Winter flounder (blackback)............. 12 (30.5 cm) 12 (30.5 cm).
Redfish................................. 9 (22.9 cm) 9 (22.9 cm).
----------------------------------------------------------------------------------------------------------------
(2) Exception. Vessels may possess fillets less than the minimum
size specified if the fillets are taken from legal-sized fish and are
not offered or intended for sale, trade or barter.
(c) Possession restrictions. Each person on a recreational vessel
may not possess more than 10 cod and/or haddock, combined, in or
harvested from the EEZ:
(1) For purposes of counting fish, fillets will be converted to
whole fish at the place of landing by dividing fillet number by two. If
fish are filleted into a single (butterfly) fillet, such fillet shall
be deemed to be from one whole fish.
(2) Cod and haddock harvested by recreational vessels with more
than one person aboard may be pooled in one or more containers.
Compliance with the possession limit will be determined by dividing the
number of fish on board by the number of persons aboard. If there is a
violation of the possession limit on board a vessel carrying more than
one person, the violation shall be deemed to have been committed by the
owner and operator.
(3) Cod and haddock must be stored, so as to be readily available
for inspection.
(d) Restrictions on sale. It is unlawful to sell, barter, trade, or
otherwise transfer for a commercial purpose, or to attempt to sell,
barter, trade, or otherwise transfer for a commercial purpose,
multispecies finfish caught or landed by charter or party vessels
permitted under this part not fishing under a DAS or a recreational
fishing vessels fishing in the EEZ.
15. Section 651.40 is revised to read as follows:
Sec. 651.40 Framework Specifications.
(a) Annual review. The Multispecies Monitoring Committee (MSMC)
shall meet on or before November 15 of each year to develop target TACs
for the upcoming fishing year and options for Council consideration on
any changes, adjustment or additions to DAS allocations, closed areas
or other measures necessary to achieve the FMP goals and objectives.
(1) The MSMC must review available data pertaining to the
following:
(i) Catch and landings;
(ii) DAS and other measures of fishing effort;
(iii) Survey results;
(iv) Stock status;
(v) Current estimates of fishing mortality; and
(vi) Any other relevant information.
(2) Based on this review, the MSMC shall recommend target TACs and
develop options necessary to achieve the FMP goals and objectives,
which may include a preferred option. The MSMC must demonstrate through
analysis and documentation that the options it develops are expected to
meet the FMP goals and objectives. The MSMC may review the performance
of different user groups or fleet sectors in developing options. The
range of options developed by the MSMC may include any of the
management measures in the FMP including, but not limited to:
(i) The annual target TACs which must be based on the projected
fishing mortality levels required to meet the goals and objectives
outlined in the FMP for the 10 regulated species;
(ii) DAS changes;
(iii) Possession limits;
(iv) Gear restrictions;
(v) Closed areas;
(vi) Permitting restrictions;
(vii) Minimum fish sizes;
(viii) Recreational fishing measures; and
(ix) Any other management measures currently included in the FMP.
(3) The Council shall review the recommended target TACs and all of
the options developed by the MSMC, other relevant information, consider
public comment, and develop a recommendation to meet the FMP objective
that is consistent with other applicable law. If the Council does not
submit a recommendation that meets the FMP objectives and is consistent
with other applicable law, the Regional Director may adopt any option
developed by the MSMC, unless rejected by the Council, as specified in
(a)(5) of this section, provided that the option meets the FMP
objective and is consistent with other applicable law.
(4) Based on this review, the Council shall submit a recommendation
to the Regional Director of any changes, adjustments or additions to
DAS allocations, closed areas or other measures necessary to achieve
the FMP's goals and objectives. Included in the Council's
recommendation will be supporting documents, as appropriate, concerning
the environmental and economic impacts of the proposed action and the
other options considered by the Council.
(5) If the Council submits, on or before January 7, a
recommendation to the Regional Director after one Council meeting, and
the Regional Director concurs with the recommendation, the Regional
Director shall publish the Council's recommendation in the Federal
Register as a proposed rule. The Federal Register notification of
proposed action will provide for a 30-
[[Page 8560]]
day public comment period. The Council may instead submit its
recommendation on or before February 1 if it chooses to follow the
framework process outlined in paragraph (b) of this section and
requests that the Regional Director publish the recommendation as a
final rule. If the Regional Director concurs that the Council's
recommendation meets the FMP objective and is consistent with other
applicable law and determines that the recommended management measures
be published as a final rule, the action will be published as a final
rule in the Federal Register. If the Regional Director concurs that the
recommendation meets the FMP objective and is consistent with other
applicable law and determines that a proposed rule is warranted, and as
a result the effective date of a final rule falls after the start of
the fishing year on May 1, fishing may continue. However, DAS used by a
vessel on or after May 1 will be counted against any DAS allocation the
vessel ultimately receives for that year.
(6) If the Regional Director concurs in the Council' s
recommendation, a final rule shall be published in the Federal Register
on or about April 1 of each year, with the exception noted in paragraph
(a)(5) of this section. If the Council fails to submit a recommendation
to the Regional Director by February 1 that meets the FMP goals and
objectives, the Regional Director may publish as a proposed rule one of
the options reviewed and not rejected by the Council, provided that the
option meets the FMP objective and is consistent with other applicable
law. If, after considering public comment, the Regional Director
decides to approve the option published as a proposed rule, the action
will be published as a final rule in the Federal Register.
(b) Within season management action. The Council may, at any time,
initiate action to add or adjust management measures if it finds that
action is necessary to meet or be consistent with the goals and
objectives of the FMP.
(1) Adjustment process. After a management action has been
initiated, the Council shall develop and analyze appropriate management
actions over the span of at least two Council meetings. The Council
shall provide the public with advance notice of the availability of
both the proposals and the analysis, and opportunity to comment on them
prior to and at the second Council meeting. The Council's
recommendation on adjustments or additions to management measures must
come from one or more of the following categories:
(i) DAS changes;
(ii) Effort monitoring;
(iii) Data reporting;
(iv) Possession limits;
(v) Gear restrictions;
(vi) Closed areas;
(vii) Permitting restrictions;
(viii) Crew limits;
(ix) Minimum fish sizes;
(x) Onboard observers;
(xi) Minimum hook size and hook style;
(xii) The use of crucifiers in the hook fishery;
(xiii) Fleet sector shares;
(xiv) Recreational fishing measures;
(xv) Area closures and other appropriate measures to mitigate
marine mammal entanglements and interactions; and
(xvi) Any other management measures currently included in the FMP.
(2) Council recommendation. After developing management actions and
receiving public testimony, the Council shall make a recommendation to
the Regional Director. The Council's recommendation must include
supporting rationale, and, if management measures are recommended, an
analysis of impacts, and a recommendation to the Regional Director on
whether to publish the management measures as a final rule. If the
Council recommends that the management measures should be published as
a final rule, the Council must consider at least the following factors
and provide support and analysis for each factor considered:
(i) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether regulations have to be in place for an
entire harvest/fishing season;
(ii) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Council's recommended management measures;
(iii) Whether there is an immediate need to protect the resource;
and
(iv) Whether there will be a continuing evaluation of management
measures adopted following their implementation as a final rule.
(3) Regional Director action. If the Council's recommendation
includes adjustments or additions to management measures, and if after
reviewing the Council's recommendation and supporting information:
(i) The Regional Director concurs with the Council's recommended
management measures and determines that the recommended management
measures may be published as a final rule based on the factors
specified in paragraph (b)(2) of this section, the action will be
published in the Federal Register as a final rule; or
(ii) The Regional Director concurs with the Council's
recommendation and determines that the recommended management measures
should be published first as a proposed rule, the action will be
published as a proposed rule in the Federal Register. After additional
public comment, if the Regional Director concurs with the Council
recommendation, the action will be published as a final rule in the
Federal Register; or
(iii) The Regional Director does not concur, the Council will be
notified, in writing, of the reasons for the non-concurrence.
(c) Nothing in this section is meant to derogate from the authority
of the Secretary of Commerce to take emergency action under section
305(e) of the Magnuson Act.
16. Figure 5 to part 651 is removed and reserved, and Figures 1, 3,
and 4 to part 651 are revised to read as follows:
BILLING CODE 3510-22-W
[[Page 8561]]
[GRAPHIC] [TIFF OMITTED] TP05MR96.000
[[Page 8562]]
[GRAPHIC] [TIFF OMITTED] TP05MR96.001
[[Page 8563]]
[GRAPHIC] [TIFF OMITTED] TP05MR96.002
[FR Doc. 96-4709 Filed 2-29-96; 2:05 pm]
BILLING CODE 3510-22-C